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Uganda’s tough land questions

By Morris Ogenga-Latigo

Leaders need to champion radical reforms not play politics to please voters

In 1994, when supporting a candidate for the Constituent Assembly election, I extracted key issues in the Draft Constitution. On land, I was emphatic that former president Idi Amin’s 1975 Land Decree was the best option for Uganda. Of course the sentiments and politics of the day prevailed, and we now have in our 1995 Constitution provisions on land that are a noose around the development neck of Uganda.

For Northern Uganda, the post-war flux and adjustment in social and material relationships that followed the end of the LRA-war in mid-2000 made land an extremely explosive issue. At household, clan, and administrative levels, people fought, got injured, and even killed one another over “our land”. Politicians too reaped huge dividends defending “our land”- a supposed defence that stifled legitimate development initiatives.

In the heat, any attempt to bring logic and sobriety to the land debate, such as I once tried (see Land and Investment in the North: Legal and Conceptual Challenges. New Vision, 5 August 2012), elicited very strong negative responses, with emotive accusations of “he is a traitor”, “he has been bought” etc. Yet, it is absolutely critical that we address honestly and squarely Uganda’s land question if we are to avoid the abyss and development gridlock that land conflicts are inevitably throwing us into.

In this article, I highlight some thoughts on Uganda’s land issues in respect to legal and conceptual questions; the tragedy of double rights, and the inevitability of change. I also review challenges that we must confront, and suggest some way forward.

Legal and conceptual questions

In colonial times, land in Uganda, other than that specified otherwise, was vested in the Crown of the United Kingdom; a responsibility that shifted to the Ugandan State after independence. It was the 1995 Uganda Constitution that changed this and provided that “Land is vested in the citizen of Uganda”. My main wonder is whether the framers of this Constitution really gave serious thought to their “vested” declaration!

Google search gives various meanings of vesting: “to give an immediate secured right of present or future deployment”; “the conveying of unconditional entitlement”; “conferring, bestowing (power, authority, property)”; “to accrue non-forfeitable rights”; “to give an immediate fixed rights of present and future enjoyment” etc.

In the absence of any constitutional definition, to our people, “vested” now means absolute power over land, unchallengeable even by the State, including unfettered access to and use of land in the hand of the State such as vacant road and railway reserves, ranches etc.

It is this non-scrutiny and undefined acceptance of “vested” that led to our leaders formulating, tragically as it now is, the “double land rights” in the Constitution and the Land Act 1998.

Tragedy of double rights

Under our laws, Ugandans have a right to own land through registered lease and freeholds, or through “customary” and “mailo” tenure systems.

In much of northern and eastern Uganda, there is blanket customary claim on land, with a given chunk of land owned by an individual or family also being a communal “belonging” under custom. Consequently, like in the case of Amuru Sugar Project, whereas individuals want to cede their land for the project, the “Lamogi community” have invoked their customary rights of “belonging” over this land (“megwa” in Lwo), even when not provided in law, and blocked land acquisition.

In Buganda, individuals also own large chunks of land under mailo tenure, but with those settled on such land also having rights in law over “their” pieces as bibanja holders. Although the bibanja settlement originated from the magnanimous grant of use by “mailo” land owners, or even illegally through stealth, the bibanja holders must now be contended with and must, like the Acholi communes, equally consent to and be guaranteed benefits from sale of this land if any transaction is to take place.

Juxtaposed on the above two conflicting rights is the constitutional vestment of land in the citizen of Uganda but oil and mineral rights and the obligation to protect and develop it in the State. Conflict arising from this conferment of double rights to individuals and the State is best illustrated by provisions in our Constitution and laws that give surface ownership rights over land to individuals but vests all rights on oil and minerals under it in the State.

These conflicting land rights have become a source of numerous land conflicts among citizens in Uganda, of intense citizen resentment against the Government, and now an impediment to quick implementation of investment initiatives. Yet Ugandan land must be used to create development, and our people must embrace this reality if we are to march forward with the rest of the world.

Inevitability of progress and change

In the last two decades, we have witnessed Asian countries progress and join the ranks of the developed world. Over this period, Uganda too stabilised, grew and educated its population, attracted foreign investments and made tremendous economic progress. As happened in Asia, Uganda’s progress is impacting on land in terms of perception, value, and use. With rapid change, therefore, we must look afresh at our land question.

Firstly, throughout Uganda, there is a growing trend towards individual, registered ownership of land, as opposed to traditional collective ownership under custom. How and when then must and shall we deal with the double rights of individuals verses communities, and “mailo” verses “bibanja” holders? What must happen to land as a “common good” under individualised ownership?

Secondly, with education, industrialisation, and cross-ethnic mobility, traditional/ customary dependence on land for basic livelihoods and ethnic identity is diminishing. How will this affect the sentimentally held definition of, and people’s origin-based rights and ownership over, ethnic, clan, or communal land (i.e. Acholi or Lamogi land of the Acholi tribe or the Lamogi clan and Buganda land of the Baganda tribe etc.)?

Thirdly, change and the looming entry into the oil economy will render our current stand on land redundant. Uganda’s population is largely of young people, most of who detest agriculture and are flocking to urban centres, but who still have to eat and be employed. Our entry into the oil economy will compound this, drastically raise the cost of living, and turn our traditional expectations and ways of life upside down.

Whereas oil      producing countries such as Nigeria, Gabon, Angola etc. whose agriculture has collapsed have coastlines through which they can import food for their people using their oil money, what insecurity will we face importing food through Kenya or Tanzania, if we do not quickly develop our own sustainable food production systems?

Fourthly, progress cannot come without the effective role of the State as guide, protector, and instigator of development in this country. In light of current laws, contradictions, and conflicts on land, what must we do to ensure that the Ugandan State has capacity to play this role effectively and without undue obstruction by citizens?

Overall, we must contend with the reality of how progress and change will irreversibly impact land issues in Uganda, particularly ownership and use as now framed in our laws and policies. Of absolute necessity, we must also urgently define the trajectory of that change and our progress, anticipate and prepare for their consequences, and make those hard choices in respect to land.

As we ponder our next moves, a number of key challenges stand out relating to provisions in our laws, management of the Ugandan State, our inordinate focus on land ownership rather than use, and the inertia of custom.

Provisions on land in law

The foremost legal challenges we face are the provisions in our Constitution and Land Act that vested land in the people without imposing concrete demands on them. Tragically, our laws, as they now are, ceded and subdivided Uganda, the land, among individuals rather than entrusting it to the State as the collective that, in modernity and country-hood, replaced custom in our governance, social organisation, and security; and that must hold us together. Yet, in spite of the conflicts and development bottlenecks they are generating, these provisions in laws are deeply popular with ordinary Ugandans and are politically extremely sensitive.

Even then, do we recognise the folly of ceding Uganda the land to individuals (persons/lineage) who are highly transitory and will inevitably die, and not to the State as a permanent common entity and bond (custom) that in normalcy holds our collective past, present, and future and is best placed to organise and hold us together? With their reversal currently virtually politically untenable, what are we to do with those contradictory and obstructive provisions in our land laws?

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