Wednesday, January 30, 2008


Land Bill: What does the amendment say?
As parliament braces itself for a show down between the supporters and those opposed to the government’s controversial land amendments that have strained relations between state house and Buganda’s seat at Mengo, it’s imperative for the country to know what all this means to the ordinary citizen.

The amendments, generally affect the relationship and rights of the tenants as provided for in the constitution and those of the registered owners/landlords.

Among the tenants which the amendments seek to protect include ‘lawful occupants’. These are people in occupation of land under customary tenure but whose tenancy was not closed or compensated for by the registered owner when he or she applied for a public lease over the land.

The other and significant category of tenants whose interests the land amendments seeks to champion are those called bona fide occupants. A bona fide occupant according to the Land Act, is a person who, before the enactment of the 1995 constitution, had occupied or improved land without being challenged by the registered owner of the land or his agents for 12 years.

Bona fide occupant also refers to a person ( or a successor in title of such a person) who had been settled on land by government or its agents including the local authorities such as district councils.

The legal effect of these provisions is that the law treats bona fide occupant as a tenant by occupancy - meaning that such a person is a tenant of the registered owner and that such a tenant is supposed to pay ground rent to the landlord. The 1998 Land Act had fixed ground rent which at a laughable shs1,000.

According to the proposed amendments, the district land boards are legally mandated to determine the annual nominal ground rent payable by a tenant by occupancy within six months after the commencement of the said amendments.

In the event that a particular board fails to fix the nominal ground rent, then such rent will be determined by the central government minister responsible for land matters.

The government also proposes that the rent payable shall be paid within one year after the minister’s approval. It’s also provided under the amendments that if a tenant fails to pay the approved ground rent for a period exceeding one year, the registered owner shall give a notice to the tenant requiring him or her to show cause why the tenancy should not be terminated for non-payment of rent and shall send a copy of the notice to the district land committee.

But the most controversial and important aspect of the amendments is that which deals with the grounds and procedure under which a tenant can be evicted by the landlord. The amendments state that there is only one ground under which a lawful or bona fide occupants can be evicted and that’s for non-payment of ground rent.

The proposals further state that even for the eviction to be carried out, there must be a court order only for non payment of the annual nominal ground rent.

The amendments go further to criminalise any attempts to evict or participation in the eviction of a lawful or bona fide occupant from registered land without a court order.

If a person is convicted of evicting lawful or bona fide occupants without a court order then such a person commits an offence and is liable on conviction to imprisonment not exceeding seven years.

The same principles apply to a person claiming an interest in land under customary tenure. But before the court issues an order, it must do certain things and these include hearing the case of the person claiming the interest in the land; ensuring that adequate compensation has been paid to the person claiming the interest in the land before a landlord evicts such a person, except where the person has abandoned the occupancy; and that the court has visited the locus in quo (the location of the land in dispute) and has received a report from the land committee of the area on the status of the occupants on the land.

Next week, the writer will examine the competing rights of registered land owners (landlords) and the lawful/bona fide occupants and why the amendments can’t cure this conflict.

The writer is a journalist and advocate


We need land reforms that are fair to all
Let's face it: much as the country is divided over government’s proposed land amendments, the law will have no effect nor provide a lasting solution to the land problem in the country - unless money is provided by government for the peasants and landlords to secure their land rights.

In the new amendments to Section 31 of the Land Act 1998, the government has empowered district land boards to determine a suitable annual nominal ground rent payable by a tenant. On failure, the government insists, the lands minister would set the ground rent.

“Where the board has not determined the annual nominal ground rent payable by a tenant by occupancy within six months after the commencement of this Act, the rent may be determined by the minister,” the new proposal reads in part.

Contrary to the previous law, the government has reduced the timeframe for the payment of the ground rent from two years to one year after the minister has approved the rent payable to the mailo land owner.

Similarly, in a veil attempt to ‘protect’ the interests of the registered land owner (landlord), government is proposing an amendment to section 35 of the Land Act that will make it difficult for tenants to assign their tenancy by occupancy ( sell) to a third party without giving the first option of taking the assignment of the occupancy (sell) to the land owner.

What this means is that tenants by occupancy or Bibanja, holders can’t sell or subdivide their land without giving the registered land owner priority; if they did , they commit an offence and are liable for imprisonment not exceeding four years.

Under the new arrangements, illegal occupancy has been criminalised. The land owner can approach the police and evict trespassers because it is criminal and anybody liable commits an offence and imprisonment for four years and a fine of about Shs1.9m. On the other hand, the landlord is also under an obligation to give notice when selling his/her land.

Where one secretly sells his or her land this will be illegal and no title will be given. But then again, how many tenants in this country have the resources to purchase land on the open market. This is the root cause of the problem- which unfortunately, government has failed to address in its quest to secure land rights for the landless Ugandans.

And much as the provisions of the land amendments which purport to secure the rights of bonafide occupants ( people who have lived on any given piece of land for more than 12 years before the coming into effect of the 19995 constitution) and the lawful occupants (those entered on land with the consent of the registered owner by virtue of the Busuulu and Nvujjo law of 1928), do not confer a superior title to that of the registered land owner (landlord) in practical terms the law creates two competing rights/interests.

With these contradictions in the law, it has increasingly become very difficult for registered land owners and tenants to deal with land as a factor of production.

Neither of the two people ( landlords and tenants) can transfer or assign their interest in land without first compensating/ or buying out the other. This is the sad reality that affects the principles of land law which provide that if you want to deal in land you don’t have to investigate outside the register.

The government has conveniently opted to ignore this fundamental principle of law thus making it difficult for people to purchase or sell a vital resource to ensure economic growth/development.

This situation can best explain the strategic tendencies of landlords to sell/ assign their interests to military men or powerful political actors who can employ the power of the gun or political muscle to wrestle the tenants off the land without compensation. Or worse still, for the same government officials to instigate/or encourage peasants to take over land without compensating landlords.

The other problem with the present regime of our land law is the lack of a definitive provision on how much land a kibanja holder should have and the mechanism of getting a tenant off the land if the landlord wants to develop that land whether ground rent is paid or not.

The amendments provide for only one ground under which tenants can be evicted and that’s if they fail to pay rent. So what happens when a landlord wants to sell his land even if ground rent has been paid by the tenants whose means are so limited that they have no money to purchase land in the first place? And which sane businessman or developer will purchase land which is heavily encumbered?

The country needs land reforms that are fair to all- landlords and tenants alike and, government should as a priority put in place a land fund that will help the affected people to source for alternative land or buy themselves out without causing imaginary political or tribal conflicts.

The writer is a journalist and advocate

Friday, January 18, 2008


Leaders shouldn’t tribalise the land debate
The dispute between President Yoweri Museveni and the Kabaka of Buganda Ronald Mutebi has reached acrimonious levels with the former accusing the latter among other things, seditious intentions.

Sedition is a very serious offence. According to our penal law, sedition means hatred or contempt or to exercise disaffection against the person of the president or government as by law established or the constitution.

Sedition can also refer to the promotion of subversion of the government or the administration of the government or, the administration of a district. I’m not sure whether the Kabaka is headed in that direction but not too long ago, in this column , a point was made that our leaders shouldn’t politicise or tribalise the land issue in Uganda.

Take for instance, the case of Buganda which now our leaders want to employ to pit landlords against their tenants; even when the country’s history clearly demonstrates that the two categories of people have until recently lived happily together.

It’s not true, as some people have expressed in this wanton excitement about land ownership, that the Baganda are selfish and inward looking. Many will agree that contrary to the objectives of those who are funning tribal sentiments for political or other interests, the Baganda are strikingly open and very accommodative. This is why from the onset, this legitimate debate about land ownership not only in Buganda but elsewhere in the country, should be devoid of tribal hatred and politics.

There are fresh lessons to learn from the turmoil in Kenya - once a stable country in this part of the world, that’s now torn apart because of the selfish interests of a few political and tribal leaders.

There is no elaborate difference in the wording and meaning or legal efficacy (effect) of the revised land amendments viz the Land Act. The only departure between the proposed amendments and the Act which can be said to be fundamental is the emphasis that before selling land, landlords should give their tenants the first choice to buy themselves out.

Apart from being put on paper, this proposal is not any different from the fundamental principles of the land law that recognise the equitable interests of people who dwell on land whether registered or not. In any case, the constitution of Uganda recognises these equitable interests in its provisions when it states that all persons in lawful or bonafide occupation of mailo, freehold or leasehold land shall enjoy security of tenure.

The land Act, defines lawful occupant to mean a person occupying land by virtue of the Busuulu and Envujjo law of 1928 or that person(s) who entered the land with the consent of the registered owner (squatter/tenant).

And before we look at the other categories of people whose land rights are protected by not only the Land Act but the constitution, we need to understand who a registered owner of land (Land Lord ) is.

A registered land owner is that person who holds a certificate of title of land ( or what is commonly known as ‘land title’), which is issued upon an application to bring such land under the protection of the law – read (the Registration of Titles Act or RTA).

Further, the RTA specifically provides that except so far as is expressly enacted to the contrary, no Act or rule so far as inconsistent with this law (RTA) shall apply or be deemed to apply to land whether freehold or leasehold which is under the operation of the RTA.

What this simply means is that once a person legally acquires a certificate of title to any given piece of land anywhere in the country, that persons is the lawful registered owner of such land and his/her title can’t be impeached ( violated ) unless with a court order. That person is the landlord and at law, any other interest (equitable) is only secondary to his title deed.

The second legal effect of the provisions discussed above is that its only that person, (registered owner) who can pass a good title ( sell land). That’s why the land Act amendments, presumably taking into consideration that straight point of law, is now suggesting that when this registered owner takes a decision to sell his land, he/she should consider to sell to the tenants on that land first, and can do this by putting such tenant(s) on notice that he wants to sell the land.

Next WEEK: we shall look at the other categories of land rights protected by the Constitution and the legal effects of the proposed amendments.

The Writer is a journalist and advocate of the High Court of Uganda

Tuesday, January 8, 2008


Hard lessons to draw from Bhutto’s murder
A fortnight ago, the world gathered in grief following the shock assassination of Benazir Bhutto, one of the charismatic leaders and a naturally engaging speaker in her generation.

The late Bhutto was a brave woman too, acknowledging before her death that by returning to her home country to champion democracy and fight Islamic fundamentalism, she put her life at great danger.

There is no denial that Bhutto’s brutal murder is a cowardly act that undermines the growth of democracy not only in the Islamic state of Pakistan but anywhere in the world. The civilised world should however, draw lessons from the bad moments such as the Bhutto assassination.

First, in a world where the majority of women are kept in the backyard, Bhutto raised their profile and opened up the gender-political space on the world stage.

She was the first female prime minister of Pakistan and of any Islamic nation. But most fundamental was the fact that she personified the enormous generosity and tolerance of old-school liberalism that embraces diversity of opinion, views and convictions in a complex political arena.

These are the most important virtues for a young and fragile democracy like that of Uganda. These are the same principles captured in our constitution, which provides for freedom to express our political views and opinions without facing the threat of tear gas and doing long jail terms without trial.

In this perspective, Bhutto came off as a rare breed of a politician. Her benevolence was a sharp contrast to many of our African leaders whose only interest is to fend for themselves, their families and a few cronies/ cheerleaders while the majority of the people they lead languish in poverty.

The second lesson we can draw from the Bhutto assassination is the lifestyle and character of many of our leaders. They are consumed by fear and worried about sharing the absolute power that they wield.

They barricade themselves in villas and ‘palaces’ guarded by tanks manned by their mean looking henchmen, while offering little or no protection at all to their political opponents.

Bhutto reached out to the masses travelling in civilian vehicles even after the state declined to give her adequate protection. The state owes a duty to all its citizens including those with opposing political views to guarantee them adequate security.

The other and perhaps the most significant lesson that can be learned from the demise of Bhutto is the pragmatism(realism) that political problems/challenges don’t require military solutions. We don’t have to eliminate our political opponents to achieve our political objectives ; we can only engage them.

The crucial advantage that Uganda has and indeed the larger part of the African continent is that we don’t have a radical population. Apart from some parts of north Africa we have not had cases of people blowing themselves up in public places to send a political message. That’s why the struggle against the forces of terror and extremism should not be rested in this part of the world.

The civilised world should stand firm against any form and manifestation of cowardice and, the immense brutality being perpetuated by fundamentalists- who groom and send out suicide bombers to claim the lives of thousands of innocent people in a misguided effort to impose their political and religious ideologies.

In Africa where socio-economic conditions don’t favour stable democracy; political organisation based on the spirit of constitutionalism is the only viable mechanism in ensuring good governance, observance of human rights and the rule of law. Our leaders whether in power or the opposition should respect each other and work for peace and national unity.

The writer is a journalist and advocate