Land Tenure Policies Complicating Development in Kampala
"You need to make sure there are no tenants on the land you are buying, or that they have vacated and have been adequately compensated by the party selling you the land. You can also use a credible estates agency in buying and developing land whenever possible, since they have experts in sorting out issues of land. Otherwise, you may buy land, which although it has a land title, has perennial problems with tenants."
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First published: April 24, 2006
The government of Uganda recently put in place a commission of inquiry on sale and/or allocation of land in the city of Kampala following allegations of corruption in the allocation and approving of land developments by Kampala City Council.
All developments in city of Kampala like elsewhere take place on land- the most basic resource. In Uganda, according to the 1995 Constitution, land is vested in private citizens who may own it either under mailo, customary, leasehold and/or freehold tenures.
About customary, mailo, leasehold and freehold land tenure systems
Mailo Land Tenure: This form of tenure was was created by the 1900 Buganda Agreement between Her Majesty's Government of Great Britain and the Kingdom of Buganda. By this agreement, chunks of land were given to some individuals to own in perpetuity. The royal family of Buganda received 958 sq miles as private Mailo, chiefs and other notables received 8 sq miles each. Local peasants previously on the land were not recognized and became tenants on land and had to pay rent to the Landlord commonly known as "Busulu." The owner of Mailo land was and is entitled to a certificate of title.
Freehold Land Tenure: This form of tenure also existed in Uganda especially in the Western part of the Country. This is a system of owning land in Perpetuity and was set up by agreement between the Kingdoms and the British Government. Grants of land in freehold were made by the Crown and later by the Uganda Land Commission. The grantee of land in freehold was and is entitled to a certificate of title. Most of this land was issued to church missionaries and academic Institutions.
Leasehold Land Tenure: This is a system of owning land on contract. A grant of land can be made by an owner of freehold or Mailo or by the government or Uganda Land Commission to another person for a specified period of time and on certain conditions, which included but not limited to payment of rent. The grantee of a lease for a period of 3 years or more is entitled to a certificate of title.
Customary Land Tenure
Customary tenure is the first tenure category specified in the 1995 Constitution and the 1998 Land Act. It has two broad classifications; Communal customary tenure predominantly in Northern and parts of Eastern Uganda and individual/family/clan customary tenure prevalent in central, Western, parts of the North and south Western Uganda. Before 1995 customary tenure though not legally recognized continued to exist as a system of holding unregistered land by customary rules. Customary tenants could be in occupation of mailo-land, Freehold, Leasehold or Public land. They occupy such land by either growing various crops, exercising customary rights to look after animals thereon or by carrying out any other activity thereon as occupiers of such land. The term "Kibanja" became synonymous with occupants of land under customary tenure.
Land, which was not owned either in freehold or by way of mailo, was known as public land. Out of public land leases and freeholds can be granted. Public land is vested in Uganda Land Commission (ULC)
Kampala's skyline, as viewed from Entebbe Road.
Despite several attempts by different land regimes (read governments and or attempts) to harmonise land ownership and utilisation, many unresolved issues remain and they continue to hinder land development in the country, especially the city of Kampala. This is a fact that seems to have dodged the commission, which recently presented its report to the Minister of Local Government. The report confirmed the allegations of corruption and mafia like acquisition of land, but did not mention the land tenure politics that some people believe is behind the land development problems in the city of Kampala.
Dr. Nuwagaba Augustus, a senior lecturer in the faculty of Social Sciences, Makerere University and land policy development consultant says the current land tenure constrains the land market; especially mailo land, which he says, has created a "land impasse."
"The problem with mailo land is that it creates legal ownership of land which the owner does not occupy and occupation of land which the occupant does not own. This has led to constrained land transactions," Nuwagaba says. More than 52% of the land in Kampala is owned under mailo, but the owners in most cases are not settled on this land. The land is settled on by bonafide or illegal tenants and they have to be compensated and resettled before a mailo landowner can sell and/or develop the land in question.
Bonafide tenants, who occupy and own the same land under customary tenure are those who have stayed on the piece of land for more than 12 years, according to the Land Act. Many of these are actually the original owners of the land, or it was passed to them from their grandparents. When the British colonialists were established their stronghold in Uganda at the beginning of the 20th century, land in Buganda (where Kampala is found) and some other parts of Uganda was given to the royals, chiefs and colonial administrators as mailo (Ekyapa) as the legal owners and people who were on the land became squatters overnight, supposed to pay Busuulu to the land owners annually.
These tenants are also recognised as legal owners, with rights to sell and develop land, but in consultation with the mailo landowner. Many continue to insist that they are the true owners of the land, and have the ear and support of people like President Yoweri Museveni. The most secure way to acquire land is to buy from the mailo landowner, but he/she must compensate the tenants on the land he/she intends to sell. Illegal tenants are those that just settle on mailo land without the landowner's permission and can be evicted without compensation, but only with adequate notice and having stayed less than 12years.
Nuwagaba says this has resulted in tenants who need a lot of compensation from potential land developers, yet they occupy most of the land in Kampala. He says separating the rights of tenants and mailo landowners, is a situation, which apart from precipitating corruption, also breeds favouritism in enforcing to favour tenants or landlords. Even the law is vague on the matter of land rights between tenants and mailo holders, making property acquisition, ownership and development in Kampala difficult.
Recently, the Court of Appeal dismissed a High Court ruling that had awarded Kampala businessman George Mitala ownership of a piece of land in Ndeeba, plot 1028 on Kibuga block on which over 100 customary occupants live and work. Justice John Bosco Katusi of the High Court had on February 9, 2001 ruled that there was no proof of ownership of the land by the customary occupants who had lodged the complaint of being wrongfully dispossessed by KCC who had allocated Barenzi the land on leasehold basis. KCC owns (on behalf of the people) public land in the city of Kampala.
One of the Court of Appeal Judges actually said the Kampala District Land Board had awarded Mitala "air". How come? The law itself, as embedded in the 1995 Constitution and Land Act 1998, creates multiple legitimacy over the same piece of land.
John Kigula, a senior lecturer at the Faculty of Law, Makerere University who did a joint study (with others) on Land Tenure and Urban Development for KCC says there is legal dualism of land in Kampala where there is legal recognition and social recognition of claims to land and it is complicating land development in the city. He says this is evidenced by the multiple legitimacies over a particular land parcel. Nuwagaba says this is particularly rampant on customary ownership, which is the one traditionally recognized, has no titling, and ownership is by social recognition.
"In such a volatile urban situation and mass society in Kampala, such a system can hardly survive. But the problem is that the law recognizes it," Nuwagaba says.
Dr. Nuwagaba Augustus,land policy development consultant.
Customary tenure was abolished in urban areas under the repealed Public Lands Act, 1969; but the current Land Act and Land Regulations, 2001 encourage it in urban areas. This is despite the report on KCC's study arguing that security of tenure awarded customary tenants and tenants-by-occupancy on registered land, is suitable for rural areas.
"In the city, this security encourages informal userships and less orderly development. There is need to formulate an urban policy on the basis of an exclusive urban tenure system," Kigula says.
What then can be done to help KCC?
"There is need to revisit the land reform issue. In addition to re-orderings, it is necessary to institute a specialized land tenure system for the city of Kampala," the report says. "This revolutionary intervention should seriously consider that the relatively orderly development in Kampala has been carried out on public land rather than mailo."
But, says Kigula, any by-laws or regulations made in the above regard should be flexible, understandable, problem focused, applicable; and consider land banking costs and sensitization. "But there is lack of political will and direction," he notes.
The legal dualism on land is evident even in standard laws. For example the Land Act 1998 provides for lawful, bonafide and illegal occupants on land. Lawful tenants are recognized by the law. The bonafide are recognized by the law because they have lived on such land for more than 12 years. But they have to apply for a "Registrable interest". Illegal occupants are mere squatters who settle on someone's land without permission.
Kikoni: one of Kampala's suburbs being built on without proper development.
All this has led to a situation where people on land fail to develop it (build permanent structures) because of fearing eviction. Even the legal owners (mailo) can't develop or easily sell the land to developers because they are required to compensate the occupants. This situation has also fueld corruption from bodies like KCC as legal land buying or allocation and approval is more complicated because of the current land laws.
That is why for one to get genuine land in Kampala, you need to make sure the land you are buying has a valid land title by crosschecking with the Uganda Land Commission and Ministry of Lands.
You also need to make sure there are no tenants on the land you are buying, or that they have vacated and have been adequately compensated by the party selling you the land. You can also use a credible estates agency in buying and developing land whenever possible, since they have experts in sorting out issues of land. Otherwise, you may buy land, which although it has a land title, has perennial problems with tenants.
You also need to make sure there are no tenants on the land you are buying...
Some people agree that the land law is responsible for the many "illegal structures" as KCC calls them, and underdeveloped settlements in Kampala, even as near the city centre as Wandegeya, Nsambya, Kisenyi, Kasubi, Makerere, Kivulu and many others.
Dr. Nuwagaba has been doing a study with SIDA (Swedish International Development Agency) on Land Tenure and Administration, and how it impacts on urban development. He says the study has clearly shown that one other problem of land development is land administration in the city of Kampala.
Multiple land administration organisations, each pursuing its own interests...
"The city has multiple land administration organisations, each pursuing its own interests irrespective of the urban development standards as stipulated by the Town and Country Planning Act," Nuwagaba says. KCC Land Board, government (the Land Registry), Buganda Land Board, religious institutions, schools all dispense land without having a common land management information system. Nuwagaba says this is very bad for the city. Potential developers also fear the many encumbrances (legal claim on other people's land) in the city.
The Town and Country Planning Act 1964 also empowers KCC to plan for all land under its jurisdiction irrespective of which land tenure system or administration of such land. "Despite the Act, KCC practically fails to override private interests. It has no leverage of power to control access and ownership of urban land," Kigula's report says.
"KCC enforcement is very weak. They have been inefficient in enforcing standards hence the proliferation of slum settlements in the city," agrees Nuwagaba.
Nuwagaba says the major problem in KCC is lack of capacity in terms of equipment as well as personnel to enforce the required legal requirements. "This is true as up to now KCC has only 6 physical planners. This is a drop in the ocean of what is required for effective enforcement of modern standards," he says.
Jane Bagonza, KCC's Land Officer says they have a master plan (structure plan) on how to develop the city, which they are following. "We expect everybody to follow it. But enforcement is difficult, and mailo land creates problems for planning," she agrees.
Kigula says the absence of an exclusive urban tenure regime indirectly incapacitates KCC. "Security of tenure accorded tenants-by-occupancy, under the Land Act, may work against optimal urban land use and also aggravate informal userships."
The poor have taken advantage of the multi-tenural system and weak enforcement standards by occupying public land, undeveloped mailo land, wetlands and any 'free' piece of land they come across. Surprising, but this group is the majority in Kampala.
Nuwagaba says most of these people live on mailo land on which they carry out mostly informal economic activities including metal fabrication, petty commodity trade, and urban agriculture as their survival strategies.
And why is KCC failing to prevail?
"Of recent this population has captured political space in the city. They have realized the sensitivity of their livelihood systems and the need to protect their legitimate survival in the city," reveals Nuwagaba.
What about the affluent leaders like the Mayor?
They are also elected and although KCC has tried a lot for example to demolish 'illegal structures', they have to be conscious of the majority. So the people have also to 'vote wisely' in order to have their interests protected. And they have a next time.
Nuwagaba who did his PhD thesis on this subject refers to this scenario as the emergence of urbanization of poverty. "It depicts a situation where the city authority increasingly succumbs to the demands of the poor instead of the poor struggling to grapple with the demands of the city," Nuwagaba says. "But KCC has the obligation to control urban development to acceptable standards. Yet politically, the mayor is elected. It becomes difficult for any Mayor to antagonize a mass where he derives his power," he adds.
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First published: April 24, 2006
Gerald Rulekere is a Journalist and member of Ultimate Media Consult. He has written and published extensively on business and gender issues and been writing for Ultimate Media Consult (U) Ltd for the last two years. A professional and graduate journalist, Rulekere is always looking for an opportunity to better his writing especially for international media.