Uganda's Difficult Path Towards an Agreeable Land Policy

Uganda's Difficult Path Towards an Agreeable Land Policy


Uganda's difficult path towards an agreeable National Land Policy:
The challenges of turning our land into a real development tool.

By Gerald Businge
more from author >>
First published: March 30, 2007


Many individuals have been calling upon the Government of Uganda to put in place a comprehensive national land policy to guide land usage and streamline land ownership in Uganda, following continued land related conflicts and challenges in most parts of the country. The 1995 National Constitution made outstanding provisions, vesting land in private citizens who can own land under one of the following tenure systems: Mailo, leasehold, freehold or customary.


The constitutional provisions however did not adequately solve the historical conflict between mailo landlords and tenants. Neither did they clearly explain to many Ugandans when and how the government could compulsorily acquire an individual's land. The constitution neither clearly showed on what basis the government could lease out or utilize public land (land vested in the government for the benefit of its citizens) nor addresses the claims of land to be returned to especially the Buganda and Bunyoro kingdoms. These issues, together with how the ease of land acquisition can promote or slow development have been the major land related questions debated in the country since 1995.

Many people viewed the enactment of the 1998 Land Act as a good step in solving the country's land problems, but land related conflicts didn't end. The Government of Uganda amended the Land Act in 2003, but this amendment has not solved the problem between tenants and landlords, or helped most Ugandans recognize when and how the government can compulsorily acquire land or lease out public land. The final solution is expected in the National Land Policy, on which the Ugandan government has been consulting for a long time.

The Ministry of Lands, Housing and Urban Development in February 2007 presented a draft National Land Policy, for public discussion and adoption, but this has generated mixed reactions. It now seems that it will be more difficult for Ugandans to agree on a land policy that will ensure the sustainable utilization of Uganda's land resources for poverty eradication than was first thought. Many people, especially landlords and the Buganda Kingdom (the largest mailo landlord) have criticized the proposed National Land Policy, especially the recommendation to scrap the mailo land tenure system. They see this as an attempt by the Ugandan government to take their land.

The minister of Lands, Housing and Urban Development, Omara Atubo, however says that the Ugandan government has no intentions of grabbing anybody's land. He says the government has not yet adopted a position on the draft land policy, since it contains recommendations made by experts, who are not part of the government.

The minister of Lands, Housing and Urban Development, Omara Atubo, left, explains the Ugandan governments position
The minister of Lands, Housing and Urban Development, Omara Atubo, left, explains the Ugandan governments position.

These experts are actually proposing that mailo land be converted into freehold land, and freehold land, especially in urban areas be converted into leasehold land to promote access to land and its usage for development, as well as enhance its marketability. They also recommend that customary tenure, under which 80% of land in Uganda is held, be formalized without turning it into freehold or mailo land as had been earlier provided for by the Land Act (owners are required to get land ownership certificates).

Land as a developmental tool
The major thrust of the National Land Policy, is the need to re-focus the debates, on land from over-emphasis on property rights per se, to land's essential value in development. The Government of Uganda wants to see land positively contributing to the fight against poverty in Uganda. "That paradigm shift requires that the land sector should be fully integrated into the country's overall development planning through identification of effective linkages with other productive sectors," the experts say in the draft National Land Policy.

Margaret Rugadya, one of the land consultants who contributed to the Draft National Land Policy says that it is because of viewing land as a development tool that the experts recommended the scrapping of mailo land, and replacing it with freehold ownership or leases. She says the majority of mailo land was found to be idle, or unutilized by the owners, mainly because of the historical complications that have always plagued mailo land. The British colonialists made agreements with traditional leaders (Buganda Agreement of 1900, Toro Agreement of 1900 and Ankole Agreement of 1901), which granted traditional rulers and chiefs, large chunks of land as mailo (Buganda), freehold (elsewhere) and the balance was declared Crown land. Most of this land was hitherto occupied by people under customary tenure, and was given away under the mailo and freehold tenure systems.

The Bulange building, where the offices of The Buganda Government are located
The Bulange building, where the offices of The Buganda Government are located.

Many people were by a stroke of a pen tuned into tenants, but consequent legislation ensured that they had protected rights on such land, while the 'real' landowners held such land (with a title) and owned the land in perpetuity. The problem is that many tenants and/or their descendants consider themselves the real owners of the land, victimized by the British. The land title owners/holders also consider themselves the real landowners since they have the strongest proof of ownership (land titles). Some of the current title holders have actually bought the land. Thus the conflict between landlords and tenants continues. This state of affairs has caused land development concerns, especially in the urban areas of Uganda where the developments on land are concentrated.

Dr. Augustus Nuwagaba, a senior lecturer at the faculty of Social Sciences, Makerere University who at the same time is a land policy development consultant says that the mailo land tenure system constrains the land market and has created a "land impasse", especially in Kampala. "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.

Most pastoralists in the central region of Uganda 'squat' on Mailo land
Most pastoralists in the central region of Uganda 'squat' on Mailo land.

He adds that much of the mailo land is occupied by either bonafide tenants or illegal tenants who demand a lot in compensation from potential land developers, yet these tenants occupy most of the land in Kampala, the capital. This has resulted in a situation where the mailo land title holder can not sell the land or utilize it because he/she has to adequately compensate the tenants, while the tenants are not comfortable enough to develop or sell land for which they don't have a title, even though they may own it under customary law. This has greatly constrained the land market.

What the policy is addressing.
The experts who prepared the draft National Land Policy say that land in Uganda remains chronically under-utilized and inefficiently managed. With the 1995 Constitution of Uganda and current land laws ambiguous on the content and viability of land rights under the various tenure categories, the land market in Uganda is constrained. Amid all this, is the concern that the role of the State and local authorities in land stewardship and development control is not always strongly executed. There is also concern about "uncontrolled landlordism" (mailo land ownership) in urban centers which is limiting effective land use and control, while encouraging irregular development as can be exemplified by slums in some places near the Kampala city center.

Additionally, demand exerted by Uganda's increasing population and settlement expansion is putting land reserved for conservation purposes (wildlife resources, catchments areas, forests and wetlands) at an increased risk of illegal squatting despite the existence of legislation to protect these areas. You may all remember how the need for development has always been mentioned by President Yoweri Museveni as a justification for leasing some of such reserved land to investors. The National Land Policy provides guidelines on all these issues.

Towards a pro-people land regime
The experts who worked on the draft National Land Policy say that Uganda's land tenure framework requires a radical reform. They say that a good land tenure system should guarantee security of tenure and access, ensure equity in the distribution of land resources, eliminate gender discrimination in ownership and transmission of land and preserve and conserve resources for future generations. "The system of law that defines incidents of tenure should derive its legitimacy and relevance from cultural, economic and social usages indigenous to Uganda and not from those imported from elsewhere," the draft National Land Policy reads in art.

This may be seen as advocating for customary land ownership and a move towards favouring tenants, who are the majority in terms of numbers, and who undertake most of the economic activities on the land. Over 80% of land in Uganda is owned under customary tenure. The experts recommend that the Ugandan government should address this reality and avoid the continued suppression of customary tenure in favor of "imposed property regimes".

They also call for the increased capacity with which the government enforces land use laws, and particularly for the urban authorities to effectively enforce development control measures in all areas under their jurisdiction as stipulated in Ugandan laws and regulations. But this, the experts say, should be carried out in less bureaucratic, more transparent ways to make it cost-effective and accessible to all.

But the accusations of land grabbing, especially from Buganda, and counter accusations of selfishness in defending unpalatable land regimes from other sources, currently go a long way in clouding any agreement on an appropriate land policy, given the importance attached to land in Uganda.

The Kingdom of Buganda is the landlord at Kiyindi landing site, Mukono district on the shores of Lake Victoria
The Kingdom of Buganda is the landlord at Kiyindi landing site, Mukono district on the shores of Lake Victoria.

The importance of land
It is argued that land is perhaps the most essential resource and an important pillar of national development. Land is a resource in terms of the space it provides, the environment, the resources it contains and supports, and the capital it represents and generates. Land is a commercial asset that can be used and traded; it is a critical factor of production.

Land is also an essential pillar of the national patrimony, and is a key factor in shaping individual and collective identities by virtue of its history, the cultural expressions and idioms with which it is associated and the influence that it has on spirituality and aesthetic values in all our societies. Land is therefore always an important asset and issue of contention.

National Land Policy Objectives on Land tenure

 

  1. Tenure law must ensure secure access to land
  2. Tenure law must not impede the development of a land market
  3. Tenure law must protect natural resources
  4. Tenure law must protect common property resources (e.g. Forests, cultural sites etc)
  5. Tenure law must protect government/public land
  6. Tenure law must clarify the conditions under which land restored to traditional rulers is held
  7. Tenure law must guarantee land rights of the poor and marginalized
  8. Tenure law must not discriminate against women and children
  9. Tenure law must secure land for pastoral communities
  10. Tenure law must secure land rights of victims of HIV/AIDS
  11. Statutory tenure regimes must be reformed
  12. Putting in place a system of supporting land rights
By Gerald Businge
more from author >>
First published: March 30, 2007
To learn more about Ultimate Media Consult go to www.ultimatemediaconsult.com.

Gerald Businge is a media practitioner and features Editor at Ultimate Media Consult in Uganda. He is a graduate of Mass Communication and several journalism and leadership certificates. He has been a practicing journalist since March 2001 and has worked at The New Vision as features writer, and has written extensively for different newspapers, magazines, newsletters in Uganda and internationally. He currently does fulltime media communication consultancy work as well as writing and editing at Ultimate Media Consult (U) Ltd where he is a founding member and CEO. You can get his attention so long as you are interested in and you are working for a better world.