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Fact Sheets

 

COMMUNAL LAND ASSOCIATIONS

Land is essential and the central asset for mainly the poor and their only source of subsistence. One of the most serious after effects of colonialism in Uganda is the way land was controlled and redistributed, a process that to the present day continues to affect livelihoods coupled with poverty. However, the Constitution of the Republic of Uganda (1995) provides for new and innovative ways for communities to redevelop systems of control and management of land so that their needs are met and the resource is protected. The said Constitution and Land Act of 1998 allow communities to form Communal Land Associations (CLAs) to own and manage land, including forests, as a community.

Formation of Communal Land Associations

A group of persons who wish to form themselves into an association may apply to the district registrar of titles to become an association under the Land Act.

A communal land association may be formed by any group of persons in accordance with the Land Act for any purpose connected with communal ownership and management of land, whether under customary law or otherwise. Within each district, the district registrar of titles performs such functions relating to communal land associations as are conferred on that officer by the Land Act or as may be prescribed.

The district registrar of titles shall, on receipt of an application convene a meeting of the group of persons which determines whether to incorporate themselves into an association whereby not less than 60% of the group determine so to incorporate themselves, elect not more than nine nor less than three persons of whom not less than three persons of whom not less than one third shall be women to be the officers of the association. The district registrar of titles or an authorized officer presides at the meeting convened.

The district registrar of titles keeps a public register of associations in the prescribed form and exercises a broad and general supervision over the administration of the associations within his or her district in order to ensure that they comply with their constitutions and manage the communal land under their control with due regard to the interests of the members of the association and without limiting the generality of that function. He or she may at any time that he or she considers it necessary for the proper performance of his or her functions or that it is in the public interest so to do, give direction to any officer of the association as to the proper performance of his or her duties and that officer shall be under a duty to comply with any such order.

CERTIFICATE OF CUSTOMARY OWNERSHIP

The Land Act Cap. 227 Section 4 provides that, any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land.

The application for a certificate of customary ownership is in a prescribed form and can be acquired from the Area Land Committee where as the certificate for customary ownership is supposed to be issued by the District Land Board.

Incidents of Certificate of Customary Ownership

Under Section 8 of the Land Act a certificate of customary ownership is considered as confirmation and conclusive evidence of the customary rights and interests specified in it and the land to which the certificate refers continues to be occupied, used, regulated and any transactions in respect of the land undertaken and any third party rights over the land exercised in accordance with customary law.

A certificate of customary ownership confers upon the holder of the certificate the right of the holder to undertake, subject to the conditions, restrictions and limitations contained in the certificate.

The holder of the certificate of customary ownership who undertakes any transaction in respect of the land to which the certificate relates provides the recorder with a copy or other accurate record of the transaction and the recorder shall keep all such records in the prescribed manner.

No transaction of leasing the land or part of it, mortgaging or pledging the land or a part of it where a certificate of customary ownership does not restrict it or selling the land or a part of it, where a certificate of customary ownership does not restrict it, shall have the effect of passing any interest in land to which the transaction relates unless it is registered by the recorder.

For the avoidance of doubt, where a mortgage of land to which incidents of certificate of customary ownership apply has been made under the Mortgage Act, the mortgagee has the power to sell and execute a transfer of that land to a purchaser in case of default by the mortgagor.

Under incidents of certificate of customary ownership, “usufructuary right” means the right to use and derive profit from a piece of property belonging to another while the property itself remains undiminished and uninjured in any way.

A certificate of customary ownership is recognized by financial institutions, bodies and authorities as a valid certificate for purposes of evidence of title.

Land Committees

The Land Act CAP. 227 establishes land committees under  S. 64 which states that, there shall be for each parish a land committees consisting of a chairperson and three other members appointed by the district council on recommendation of the sub county council and for each gazette urban land area and each division in the case of a city, a land committee consisting of a chairperson and three other members appointed by the council on recommendation of the urban council and in the case of a city, on recommendation of the city division council.

Terms and conditions

1. A person holding office as a member of a local government council shall relinquish the office upon appointment as a member of the land committee.
2. A member of the committee shall hold office for a period of three years and may be eligible for re appointment for another one term.
3. The district council may terminate the appointment of a member of the committee for his or her inability to perform the functions of his or her office or for any good cause.
4. The committee shall assist the board in an advisory capacity on matters relating to land, including ascertaining rights in land and shall perform any other function conferred on it by or under this Act or any other law.

Qualification for appointment as a member of a committee

To qualify for membership on land committee;

• A person must be thirty years of age or more
• He or she has never been convicted of an offense involving moral turpitude and
• In the case of a chairperson, he or she is able to speak and write English
• At least one of the members shall be a woman
• At least one of the members shall be a person with knowledge and experience in land matters.

 

Challenges Faced by the District Land Boards

The District Land Boards derive their mandate from the Constitution of the Republic of Uganda (1995) and the Land Act (1998) which directly provide for their establishment, functions and powers and in addition the Registration of Titles Act which law directly provides for registration of land and the expropriated properties Act and Regulations which is mainly used in Kampala. The boards also rely on council policy and guidelines at institutional level while customary land law and cultural norms are also applied in certain instances. In applying all these laws, the boards face several challenges mainly related to conflict within and between various laws.

The Concept of Bonafide Occupants

This concept is under Section 29 (2) of the Land Act and the confusion arises out of this concept and its application. This section was designed to protect the rights of tenants who were sitting on registered land and these are in four categories.

• Those who bought land from the registered owner (they change over time)
• Those who were historically sitting on the land with the concept of the registered owner
• Those who are settled on registered land by government institutions regardless of the period of settlement
• Those who had been sitting on registered land without the challenge of the registered owner for twelve years between 1993 and 1995.

However, many of these tenants have no legal support to qualify the category within which they follow. It is argued that the provision of land belongs to the people under the constitution, caused many internal migrants to just settle on land and begin counting the 12 years and hence creating another category of tenants who begun to claim rights on already registered land. These provisions seem to be unfair and have created a challenge of sorting out who among the tenants follows into what category and the tenants make no distinction between these categories as well.

Conflict with the Constitution

The Land Act conflicts with the constitution whereby the constitution provides that everyone has right to property (legally acquired) yet the Act is taking away this right by allowing tenants to have rights on somebody else’s land.

Other provisions in the Land Act are deemed Inadequate

The land Act provides that the board shall meet once every two months to discharge of its functions. This time seems inadequate because land boards have a lot to handle, the law should set more realistic timelines to enhance the ability of the district land boards to effectively implement their mandate.

Functions of the District Land Boards

The District Land Boards are established under the constitution (1995) article 240 and Section 56 of the Land Act (CAP. 227) which states that there shall be for each district a district land board and the board shall be a body corporate with perpetual succession and common seal and may sue or be sued in its corporate name.

FUNCTIONS OF A BOARD

The functions of the District Land Board are provided for under article 241 of the Constitution and Section 59 of the Land Act.

• To hold and allocate land in the district which is not owned by any person or authority.

• To facilitate the registration and transfer of interests in land.
• To take over the role and exercise the powers of the lessor in the case of a lease granted by former controlling authority.
• To cause surveys, plans, maps, drawings and estimates to be made by or through its officers or agents.
• To compile and maintain a list of rates of compensation payable in respect of crops, buildings of a nonpermanent nature and any other thing that may be prescribed.
• To review every year the list of rates of compensation referred to in respect of crops, buildings of a nonpermanent nature and any other thing that may be prescribed.
• To deal with any matter which is incidental or connected to the other functions referred to in this subsection.

However in the performance of its functions, a District Land Board shall be independent of the Uganda Land Commission and shall not be subject to the direction or control of any person or authority but shall take into account National and District council policy on land.

Termination of Joint Tenancy

Joint tenancy refers to the ownership of land in common by several persons with a right of survivorship that is to say at the death of one of the joint owners, land as a whole vests in the survivors and can only be disposed of by will by the last surviving owner. Every joint property is seized or possessed by the joint tenant “by the half and by the whole” in other wards by every part and by the whole. Joint tenancy as a form of co-ownership has two distinguishing features that is; the right of survivorship and the four unities.

Joint tenancy can be terminated in three main ways and these are either by conversion into sole ownership, severance and partition.

Conversion into sole ownership means that, by virtue of the doctrine of survivor-ship when one or more of the joint tenants die, the survivor becomes the sole owner of the property. He or she can opt to be registered as the sole proprietor of the land by virtue of S. 192 of the RTA Cap 23

Severance occurs when a joint tenancy is converted into a tenancy in common. Since all joint tenants have a potential share in the property, they can sever the joint tenancy in their lifetime. Severance cannot be affected by will. There are several reasons why co-owners may opt to sever the joint tenancy, but the most common event can bring severance is the breakdown in the relationship between co-owners. In these circumstances the likelihood is that each of the co-owners would no longer wish the other co-owner to take the property in its entirety but would prefer to leave his or her share to someone else. In situations where only one party desires to sever the joint tenancy then only then an act of any party operating on his or her own share allows unilateral severance of a joint tenancy. However, severance can be done in three ways and these are;

• Unilateral severance which occurs when the Co-owner indulges in an act that destroys one of the four unities. For example, where one of the two co-owners transfers his or her interest in the co-owned property to another. The severance will be effective when the transferee gets registered under the RTA. But at equity, severance is effective before registration.

• Mutual Agreement; in this case when the parties are registered as joint proprietors under the RTA, they can agree verbally or otherwise to sever their interest. This means that they hold the property as tenants in common- in equal shares. This relinquishes the joint interest and each party can now point to a particular share holding interest in this property.

• Course of dealing; this one occurs where there are circumstances that do not involve any agreement but where it can be inferred that parties have formed a “common intention” to hold their property as tenants in common. In other wards where the conduct of the joint tenants towards each other reveals a mutual understanding that the joint tenancy should be severed.

Partition: The co-owners owners may apply to court to have the land divided. However, this is a legal right and there is no way how one can stop this action. When a court grants a partition action for joint tenants with rights of survivorship, the property is either physically broken into parts and each owner is given a part of equal value or the property is sold and the proceeds are distributed equally between the co-owners.

Vesting Orders as Registrable Instruments

Among the powers given to the registrar, there is granting vesting orders in cases of completed purchase. Under Section 166 of the R.T.A it is provided that whenever any person interested in land under the operation of the R.T.A or any estate or interest in the land appears to the High Court to be a trustee of that land, estate or interest within the intent and meaning of any law for the time being in force relating to trusts and trustees and any vesting order is made in the premises by the High Court, the registrar on being served with the order or an office copy of the order, shall enter in the Register Book and on the duplicate certificate of title and duplicate instrument, if any, the date of the order, the time of its production to him or her and the name and addition of the person in whom order purports to vest the land, estate or interest and upon the date of that registration as defined in section 46 (3) that person shall become the transferee and be deemed to be the proprietor of the land, estate or interest. Unless its registration is affected, the order shall have no effect or operation in transferring or otherwise vesting the land, estate or interest.

Still under Section 167 of the R.T.A, it is stated that if it is proved that to the satisfaction of the registrar that land under R.T.A has been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase and that entry and possession have been acquiesced in by the vendor or his or her representatives, but that a transfer has never been executed by the vendor  and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by Section 166 in the case of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by Section166 in respect of the vesting orders mentioned there.

However, according to the case of Aida Najjemba Vs. Esther Mpagi (Civil Appeal No. 74/05) [2009] (UGCA 22^nd Jan. 2009). There are 4 conditions provided in order for the registrar to exercise his or her powers of granting vesting orders and these are;
1.  The land must be registered under the provisions of the Registration of Titles Act and the purchaser must have paid the whole of the price to the vendor.
2.  The purchaser or those claiming under him or her have taken possession of the purchased land.
3.  That the entry into possession by the purchaser has been acquiesced by the vendor or his or her representative.
4.  The transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or he/she cannot be found.

Conveyance of Land by Sale & Transfer

In Uganda if one wishes to buy or purchase land it is advisable to seek the help of a lawyer or refer to the land observatory (ULA) for advice in order to competently handle the process. However, the main procedures involved during the said process are summarized hereunder for reference;

Title searches: Immediately after identifying the land there is need to conduct a search and this is done by making a written request addressed to the commissioner- land registration, giving the description of the land. The buyer needs to establish that the vendor has a “Clean” Title before he can proceed with a purchase or lease. Carrying out a Title search at the Land Registry Office confirms true ownership and whether the said land is free from other claims or encumbrances and if so, the intending buyer is free to go on and buy the land.

Payment of deposit and executing of sale agreement: The terms of payment for the land in question should be set out in either a sale or lease agreement as the case may be. The sale and lease agreements are normally drafted and witnessed by lawyers/advocates and area local councilors in certain cases. The seller and the buyer plus their witnesses are required to sign the agreement.

Transfer forms: A sale agreement or lease agreement does not by itself constitute transfer of the land sold or leased. The seller of registered land should sign transfer forms to enable the buyer to have the registration of the land officially changed into the buyer’s names. The transfer forms upon execution are registered with the Registrar of Titles.

Assessment and payment of stamp duty: A transfer of land or lease attracts stamp duty, which must be paid before a transfer can be affected. The Uganda Revenue Authority assesses the stamp duty payable. The assessment is done after the land in question has been valued. The stamp duty payable on transfer of land is 1% of the value of such land. Once stamp duty has been paid, the original and the duplicate certificates of title are then presented to the Registrar of Titles to record the change.

However, it should be noted that in Uganda only citizens have land ownership rights as stipulated by the 1995 constitution of the republic of Uganda. The constitution restricts non citizens to only acquiring leases in land. It should further be noted that, a person claiming any interest in registered land, for instance a lease or mortgage can lodge a caveat with the Registrar of titles. Any caveat lodged will be reflected on the certificate of title, on the encumbrance’s page. The caveat forbids the registration of any person as transferee or proprietor by way of a sale, lease, mortgage or any other interest on land.

The Difference between A Lease & License

A Lease is a conveyance of land for a specific period of time and this is usually done by the premium or rent. However, it is a system of owning land on contract. A grant of land would be made by an owner of freehold or Mailo or by the Crown or Uganda Land Commission to another person for a specified period of time and on certain conditions, which included but limited to payment of rent. The grantee of a lease for a period of 3 years or more would be entitled to a certificate of title.

Types of leases:

1. There are periodic tenancies
2. Those which are fixed

Key features:

1. Created by contract or operation of the law
2. Grant of exclusive possession and use of land to a tenant for an agreed period
3. Payment of rent or premium by the tenant to the landlord
4. Land use and possession is granted for a limited period

A License is a permission given to a person to enter another person’s land for a specified purpose, an act which would otherwise have amounted to trespass.

There are four types of licenses and each confers different protections to the holder of a license.

• Bare license
• License coupled with interest
• Contractual license
• License by estoppels

To amount to a lease there must be exclusive possession unlike a license where there is no proprietary interest and hence it is non transferable because it does not create an interest in land.

A lease has a specific period of time and can be determined by the operation of the law, failure of which attracts damages whereas a license cannot be disposed by will or devolve by operation of law.  This means that a license is enforceable between the parties and is not alienable in any way.

Fact 19/2/2012: Acquisition of Land by non-Citizens

According to the Land Act, a non citizen means a person not a citizen as defined by the Constitution and the Citizenship Act, i.e. any person whose parentage lacks citizenship of Uganda or has not been naturalised by government or whose registered birth was outside Uganda but whose parents are not Ugandan citizens. Whereas for corporate bodies, non citizen is a corporate body whose controlling interest or decision making lies with non citizens or a company incorporated in Uganda whose Articles of Association does not contain a provision restricting transfer or issue of shares to non citizens.

The Constitution of the republic of Uganda (1995) stipulates that land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems which are Customary, Freehold, Mailo and Leasehold ownership. The registration of Titles Act allows the proprietor of land or lease or mortgage or of any estate, right or interest therein to transfer the same by transfer and the form is provided in the seventh schedule of the same Act and all the interests and liabilities are then vested in the transferee.  However, under the land Act a non citizen can only acquire land through a lease tenure system which is registered under the Registration of Titles Act if the lease is for 5 years or more but if is more than 99 years it cannot be granted to non citizens. On the other hand, a citizen holding freehold or mailo land tenure and loses Ugandan citizenship shall be obliged to convert their tenure to leasehold for a period of 99 years.

However, leasehold tenure was created to mean a system of owning land on contract. A grant of land would be made by an owner of freehold or Mailo or by the Crown or Uganda Land Commission to another person for a specified period of time and on certain conditions, which include but not limited to payment of rent. The grantee of a lease for a period of 3 years or more would be entitled to a certificate of title.

Under the Land Act, Leasehold tenure is a form of tenure

(a)  created either by contract or by operation of the law;

(b) the terms and conditions of which may be regulated by law to the exclusion of any contractual agreement reached between the parties;

(c)  under which one person, namely the landlord or lessor, grants or is deemed to have granted another person, namely the tenant or lessee, exclusive possession of land usually but not necessarily for a period defined, directly or indirectly, by reference to a specific date of commencement and specific date of ending;

(d)  usually but not necessarily in return for rent which may be for a capital sum known as a premium or for both a rent and a premium but may be in return for services or may be free of any required return;

(e)   Under  which both the landlord and the tenant may, subject to the terms and conditions of the lease and having due regard for the interests of the other party, exercise such of the powers of a freehold owner as are appropriate and possible given the specific nature of a leasehold tenure.

 

Fact 18/1/2012: Implications of Derived Rights and Land Reform

The derived rights have several advantages and should not be disregarded, their arrangements allow for efficient solutions to be found to the unequal distribution of factors of production which include land, labour, technical, and financial capital e.t.c.

Derived rights arrangements do not seem to cause a great deal of insecurity because they depend on the relations which exist between the parties and the extent to which the commitments are respected.  The degree of insecurity associated with these rights varies, depending on factors such as the level of competition for land, the relationship between the parties concerned, or the effectiveness with which land tenure is regulated.

Some of the derived rights like, land renting, loaning, and borrowing transactions have positive effects in as far as household agricultural production is concerned.  However, there are negative effects in the arena of social relations where the transactions turn out to be a source of social tension owing to conflicts that arise over conflicting intra-familial interests and failure to honour agreements.

The diversity and flexibility of derived rights stem from and help meet the needs of particular farming systems within a given community.  Trying to define a legal status for them raises insurmountable legal difficulties, given that they occur on customary land, most of which is not registered nor is likely to become so in the near future. Derived rights arrangements therefore, need to be left free of regulation as this may impede their efficiency and effectiveness.

Policy issues;

a) Recognizing the legitimacy and dynamism of derived rights

This encompasses recognizing the dynamics of customary land tenure and its capacity to adapt to changing circumstances.  There needs to be a  recognition of the existence of rights and institutions operating within communities which is not dependent on the establishment of legal rights of ownership, but rather, on the establishment of processes whereby rights and the assignment of those rights are recognized and guaranteed by clear  procedures.  This requires the adoption of measures which enable the achievement of greater security to the holders of the derived rights, without making registration and the attainment of a certificate the only procedure for achieving recognition of rights in land.

Derived rights ensure access to land for those who would otherwise have been regarded landless.  These rights, therefore, need to be recognized as normal elements which exist in all land tenure systems and a positive factor in agricultural production, thus, reducing poverty among the landless and facilitating the land market.

b)       There is need to determine the degree of autonomy allowed to traditional systems of managing customary land.

This specifically comes into play when considering women’s rights and rights of other vulnerable groups that society may deny access rights to land.  Women’s access to land should not be conditioned on whether they are cultivating high value crops or not.  Provisions of Articles 33, 34 & 35 of the Constitution and Section 28 of the Land Act need to be taken seriously if the access rights of the vulnerable are to be protected.

Recourse must be made to the law where it is applicable despite the customary nature of the land.  The policy must therefore state the level of autonomy that these traditional institutions are granted in the administration of customary land and in dispute resolution.  Although the Land Act takes cognizance of traditional institutions in dispute resolution, there is need to harness these in policy and recognize the important role they play in ensuring the efficiency and effectiveness of the derived rights arrangements.

c) There is need to determine the degree of subsidiarity permitted in land management

Despite the provision for customary land management in the Land Act, there are other existing traditional mechanisms that communities recognize and respect as institutions facilitating land management.  The policy needs to stipulate mechanisms and determine the degree to which these institutions should be empowered to participate in land management, taking into consideration the role they play in securing derived rights arrangements in the communities they serve.

Fact 17/12/2011: Conditions on purchasing land

Consent of spouses and children:  The Land Act prohibits the disposal of land from which the family ordinarily resides and from which they derive their sustenance without the prior written consent of the spouse whether by way of sale, transfer, exchange, mortgage or lease.  Without this written consent, a buyer acquires no title to the land.

Title searches:   The buyer needs to establish that the vendor has a “Clean” Title before he can proceed with a purchase or lease. Carrying out a Title search at the Land Registry Office confirms true ownership and whether the said land is free from other claims or encumbrances. A Title search may be done through a lawyer.

Payment of deposit and executing of sale agreement: The terms of payment for the land in question should be set out in either a sale or lease agreement as the case may be. The sale and lease agreements are normally drafted and witnessed by lawyers/advocates. The seller and the buyer plus their witnesses are required to sign the agreement.

Caveats: A person claiming any interest in registered land, for instance a lease or mortgage can lodge a caveat with the Registrar of titles. Any caveat lodged will be reflected on the certificate of title, on the encumbrances page. The caveat forbids the registration of any person as transferee or proprietor by way of a sale, lease, mortgage or any other interest on land.

 

Transfer forms: A sale agreement or lease agreement does not by itself constitute transfer of the land sold or leased. The seller of registered land should sign transfer forms to enable the buyer to have the registration of the land officially changed into the buyer’s names. The transfer forms upon execution are registered with the Registrar of Titles.

Assessment and payment of stamp duty:  A transfer of land or lease attracts stamp duty, which must be paid before a transfer can be affected. The Uganda Revenue Authority assesses the stamp duty payable. The assessment is done after the land in question has been valued. The stamp duty payable on transfer of land is 1% of the value of such land. Once stamp duty has been paid, the original and the duplicate certificates of title are then presented to the Registrar of Titles to record the change.

Registration of Mortgages: Once a mortgage has been executed, the land title is deposited with the mortgagee. Upon payment of the prescribed fee and stamp duty, the Registrar registers the mortgage by indicating it on the encumbrances page of both the original certificate of title (kept in the registry) and the duplicate title presented by the mortgagee. However, a release of a mortgage may be executed upon payment of the debt. The mortgagee releases the land title and the release of mortgage document to the registered proprietor. The registered proprietor then presents the release of mortgage document and the title deed to the Registrar of Land Titles. Upon payment of the prescribed fee, the Registrar releases the mortgage.

 

Fact 16/11/2011: Derived rights

Derived rights are not generally understood and have consequently received very little attention.  Focus is often on issues of permanent and transmissible ownership rights.  However, they have been most commonly used as a means of accessing land by the landless and stand as a solution to increase productivity and reduce landlessness in most parts of Uganda.  Derived rights are flexible non- permanent arrangements, which enable farming systems to adapt to changing economic conditions.  They play a vital part in local land relations and have grown in importance with the increase in rural migration; thereby enabling migrants gain access to land.  Derived rights play a very important role in real life agrarian situations by encompassing the use of land by people other than the owner and therefore, according the landless a chance to put land to productive use and consequently get out of poverty. Derived rights are defined as; “All means by which people gain access rights to grow crops on agricultural plots controlled by third parties, from open-ended loans of land to tenancies or share cropping agreements”.

Although Derived rights exist in all systems of land tenure in Uganda, they are mostly found on customary land.  The customary tenure system is characterized by the coexistence of a multiplicity of rights regimes in the social and geographical territories controlled by rural communities.  These property regimes among others are: individualized customary tenure (which is usually around resources of high use and exchange value), communal customary tenure (individual rights to land are taken cognizance of whereas the administration vests with the clan heads and ownership is vested in the clan/community as a whole) , common land (which is usually of lesser value but supportive of the entire community needs), State reserves that are often

treated as open access resources (the rights in these areas are always not well defined). All these tenure regimes may be found within the spaces that communities consider to be their own.  These tenure arrangements are often site specific so no generalizations can be made about them, and thus the justification for their regulation by customary norms and practices of any given area or community.  They also have a tendency to change and adapt to changing conditions and varying circumstances.  Thus, the customary norms and practices governing them are not static and therefore, cannot be codified.

A Derived rights arrangement (i.e. the assignment of rights of access to land) tends to be highly dependent on social relations between the parties and the extent to which commitments are respected depends very much on the quality of relationship itself. In some instances consideration in the form of money is given with oral contracts being entered into.  These agreements have means of ensuring that commitments are respected and the rules enforced.  These may take the form of social sanctions against those who transgress the rules, mutual acquaintance, and trust between the parties, the clauses within the agreement itself and the right of appeal in the event of disagreement.  Most people find land to cultivate through one of the mechanisms for transferring these rights.  The flexibility in land transfer mechanisms helps to maintain peace and stability in rural areas and helps to ensure that local disadvantaged populations, migrants, and internally displaced people can gain access to land, a key productive resource.

 

Women in particular have been able to gain access to land and use it for farming, a means of increasing their incomes. These Derived rights are governed by customs and practices of a given society and traditional institutions/ systems that exist to execute them.  Giving consideration to these existing institutions and systems facilitates an analysis of how things work in practice, rather than relying on an analysis of the formal legal framework or general principles of customary law.

 

Although not exhaustive, derived rights can therefore be categorized into the following;

(1)   Renting of land  (2) Land borrowing (3) Land Pledging (4) Access to land in return for labour services

(5) Share-cropping contracts and (6) Revolving cropping contracts.

Fact 15/11/2011: Restrictive Covenants

A restrictive covenant is an agreement that restricts/limits the use of the servient land for the benefit of the dominant land.  There are three major rules that have been refined by the Courts of law for application in enforcing restrictive covenants Tulk V Moxhay [1843-60] All ER Rep.9.  These rules are:

• That the covenant must be negative in nature and substance.  Thus, it must restrict the servient owner from doing something and not impose a duty on him/her to do something.
• That the covenant must be made for the benefit and protection of land retained by the dominant landowner.  This means that there should be both the servient and dominant land.  Where there is no dominant land at the time the agreement is made, the agreement is enforceable only between the parties and not their successors in title.
• That the two parties to the agreement must have agreed and intended the burden and benefit of the agreement to run with the servient and dominant land respectively.  This should be expressly stated in the agreement.

In the case of Uganda today, restrictive covenants are mostly applicable in the housing estates schemes where developers such as National Housing, Akright Housing Project and others purchase huge chunks of land and subdivide them into plots with the intension of creating well planned neighborhoods.  The aim of the developer is to have the plan maintained in a certain way consistent with the scheme.  In such a case a restrictive covenant to maintain the plan is enforceable not only against the immediate purchaser, but also against the successive purchasers of the plot.  The rules for enforcement of this right are laid down in the case of Elliston V Reacher [1965] Ch. 816 as:

• The party wishing to enforce the covenants and the party against which it is sought to enforce the covenant must derive title from a common vendor.
• The vendor prior to selling the land must have divided it into plots with the intention of imposing restrictions on all the plots.  The restrictions must be consistent with the general scheme of development.
• The common vendor must have intended the restrictions to be and they are for the benefit of the land retained by the vendor.
• The parties or their predecessors must have purchased their plots from the vendor upon the footing that the restrictions to which the purchases were subjected were made for the benefit of all the other plots included in the general scheme.

Restrictive Covenants and Land Reforms

There is growing a culture of condominiums, housing estates and housing projects which require strict adherence to plan if the purpose for which they are established is to be achieved, and if the value of the land is to be maintained.  Restrictive covenants come in handy to guarantee that purchasers of property in these estates stick to the plan of the estates or condominiums to ensure that the neighborhood is comfortable for those living in it. The purpose of such restrictive covenants is that plot owners can sue each other to enforce covenants in the scheme and therefore maintain the purpose for which the scheme was created.  It should however, be bone in mind that only negative covenants are enforceable.

Issues for Policy

Whether notations of restrictive covenants should be made on a certificate of title.

The Registration of Titles Act makes no provision for the registration of Restrictive covenants.  However, because of their importance, it makes it desirable that a notification be made on the certificate of title to bind the holder of such certificate to comply with the requirements of the covenant.

Fact 14/11/2011: PROFITS A` PRENDRE

This confers a right to enter and remove something that forms part of the land, e.g. sand, gravel, timber or grass from the land of another person. It may also include the right to catch fish or hunt wild animals.  This may be an exclusive right or a right enjoyed in common including the grantor for an indefinite or specified period of time.

Profits a` prendre may also be referred to as rights of individuals over common land.  These rights are recognized by the Land Act, which goes ahead to lay down the uses for which common land may be set aside.  These are mainly traditional uses such as collecting firewood, hunting, watering points, etc. mainly for the well-being of individuals within the community

A profit a` prendre is an incorporeal (intangible) hereditament which confers rights in land and, therefore, binds the person dealing in the subject matter and hence it is an interest in land.  Land registered under the RTA is free from this right unless expressly granted by the owner of such land. There are relatively limited tracts of common land often tied to land held by the Kingdoms and government.

Profits a` prendre and Land Reforms

These rights that exist on customary land are crucial for the smooth functioning of society.  However, in view of increased individualization of customary land and the reduction in the amount of vacant land available, it is becoming more and more difficult for the members of a given community to exercise this right without reproach.

Tenure reform involves among others, interventions in already existing social and property relations, and the affected communities may be more or less resistant or supportive, and more or less united or divided, in their responses to such innovations such as enhanced land rights for women or their representation on land management bodies.

Nevertheless, given the value of common property resources to women, policies aimed at strengthening community access to these resources, and recognizing the layers of overlapping rights in land that are accommodated within customary systems of land tenure can be very important for not only the women, but all the socially vulnerable and disadvantaged groups of society.

It should be bone in mind that profit a` prendre is vital to local communities because it is a means of generating income.  This access is to mainly communally owned lands such as the forests, grazing land (rangelands), swamps, quarries, riverbanks and lake shores, which too are subject to various restrictions under various pieces of legislation.  The critical issue then is the responsibility at community level on the management of common lands.

 

Issues for Policy

a)                  Policy needs to reconcile access to these resources with the provisions embedded in the various       pieces of legislation and policies.

b)                  There is need to harness the guarantee of these rights through the protection of common property     resources.

c)                  There is need to harness the guarantee of these rights through the protection of common property     resources.

Fact 13/11/2011: Climate Change

Climate change refers to the change of normal weather patterns around the world over a long period of time.

Some of the major causes of climate change are;

Deforestation which means the loss of forest and loss of carbon storage.

Emission which refers to a substance discharged in the air.

Carbon is one of the normal weather patterns around the world over a long period of time, so if this is in abundance and cannot be absorbed then climate change occurs.

Forest degradation which reduces the number of trees and stock of carbon in a specific area, the combination of all these has led to climate change and as a result many changes are witnessed and these include among others; the change in seasons, volcano eruptions, changes in solar energy that reaches the earth, ocean currents, amounts of snow and so on.

Key terms related to climate change

Climate is described as the average weather or weather conditions that happen over a long period of time.

Carbon dioxide refers to the result of joining carbon with oxygen. It takes 1 part of carbon joining with 2 parts of oxygen to form the gas carbon dioxide.

Carbon cycle refers to the natural process of carbon moving or flowing between the different places where it is used and stored (reservoirs).

Ecosystem is a natural group of plants, animals and micro- organisms that live together in a specific place with specific characteristics or environment.

Adaptation refers to a change in the way of doing something. Because the climate is changing, plants, animals and people are going to need to adapt to new weather conditions.

Global warming refers to the increase in the average temperature of the earth’s atmosphere.

Atmosphere refers to the mixture of gases that surround the earth- the atmosphere begins at the surface of the earth and extends into outer space in many layers.

Weather refers to the temperature, rainfall or storms in a specific place on a specific day or over a short period, like one season.

Mitigation is the process of stopping or lessening climate change by reducing greenhouse gas (GHG) emissions that come from industrial activities and forestry and agricultural activities.

Greenhouse gases (GHG) these are gases that help to regulate the earth’s atmosphere.

Greenhouse effect refers to the process of how the atmosphere keeps the earth warm.

Photosynthesis refers to the natural process where plants take in the light and heat from the sun and carbon dioxide from the air, and release oxygen to make plants grow and keep our air clean.

Fact 12/11/2011: Land occupancy and land reforms

Lawful and Bonafide Occupants shall enjoy security of tenure.  This legal guarantee of continued occupancy rights for the tenants by the Land Act is aimed at enhancing productivity and sustainable livelihoods, and to reduce recurring instances of massive evictions in the country.  Tenants may acquire certificates of occupancy on the land they occupy if they so wish.  This is evidence of their ascertained rights.  However, not having one does not mean, one loses the right to the tenancy.  This certificate of occupancy can be mortgaged, pledged, transferred or passed on by will with the permission of the landowner.  In granting permission, the landowner may impose conditions, which must not discourage the transaction from taking place.

Tenancies may be terminated by mutual agreement or by failure to pay ground rent for two (2) consecutive years which results into notice of one year to the tenant to show sufficient reason for not paying.  If after one year of notice, the tenant is still unable to pay, the Land Tribunal will terminate the tenancy.

Tenancies by occupancy, although viewed by some as detrimental to development because both the land owner and the tenant do not put the land to optimal productive use, this opinion is countered by that of ensuring security of tenure to the citizens of Uganda; which in turn is a production incentive.

Issues for Policy

a)      The extent to which security of occupancy for Bonafide occupants should be guaranteed.

Whereas no problems arise relating to the lawful occupants, the Bonafide occupants create a set of problems that policy should sort out.

Where the owner of land has been absent not by choice, e.g. has been in prison or exile, must he forfeit his/her rights to land because of the existence of a Bonafide occupant?

Should the law be guaranteeing the Bonafide occupants the same rights as the lawful occupants?

b)      The rights of the tenant can almost be equated to those of the landowner, thus creating a stalemate in the use of land.  Banks no longer take Mailo land for mortgaging because of tenant landlord concerns.

c)      The Land markets especially in central Uganda are affected by the impasse created on the land. Because of the restrictions on sell of land without the consent of the other, it is becoming more and more cumbersome to purchase mailo land especially for development purposes.  This is because of the encumbrance of existing tenants by occupancy who cannot be evicted.

Fact 11/10/2011: Licences

A license is a permission given to a person to enter another person’s land for a specified purpose, an act which would otherwise have amounted to trespass.  A license does not create an interest in land although it is a secondary right.  Because it does not create an interest in land, it cannot be disposed by will or devolve by operation of law.  This means that a license is enforceable between the parties and is not alienable in any way.  Thus if a landlord who granted a license to another sold the land, the new purchaser of the land does not have an obligation to recognize the existing license even if the seller had notified him.  Thus the license does not bind the purchaser.

There are four types of licenses and each confers different protections to the holder of a license.

A bare license is the simplest type of license and does not confer any protection to the license holder.  It is a license granted without valuable consideration and therefore, may be withdrawn at any time by the grantor of the license.  If the licensee remains on the land, an action of trespass can be brought against him by the grantor of the license.

A license coupled with interest is where a license is granted for the specific purpose of taking away something that forms part of the land or is upon the land.  This license is irrevocable as long as the grant exists and may be assigned provided it is disposed of with the interest to which it is annexed.  If the license is granted to take away something forming part of the land e.g. minerals, gravel, sand, e.t.c, it is profit a` prendre discussed above.  The common examples here are licenses granted by Government to explore minerals and to excavate.

A contractual license is a license granted for valuable consideration although it does not run with the land.  Thus, it does not bind third parties.  In case of revocation, the licensee has recourse to the law in breach of contract, and therefore, is entitled to damages, payable by the grantor of the license.

Licenses by estoppel are created where a landowner creates an impression in the mind of another that he/she is granted such land for use.  If there is such continuous use without notice to vacate from the owner of the land, it is presumed that there was an intention to create a license and the owner in law may be deterred for revoking that use or occupation of land.  This kind of license may apply to successors in title.

Fact 10/10/2011: Creation of Easements

Easements created by statute

A statute may authorize, usually, a public authority to create easements for carrying out their activities. Under The Water Statute, the Director of Water Development has power to create an easement over a person’s land for the purpose of carrying water over that land to another person’s land. Under the Registration of titles Act, the statement in a certificate of title that a person named in the certificate is entitled to an easement is conclusive evidence that he or she is so entitled.  Therefore, Easements created by statute need not have all the essential characteristics of easements discussed above.

Easements created by express grant or reservation

An easement may be created by express grant where a landlord sells part of her/his land to buyer and in the transfer, she/he grants the purchaser, for the benefit of the land sold to him, a right to use a footpath over her/his land to reach a public road.  The right to use the footpath on the seller’s land is an easement created by express grant.  An easement by express reservation is created where, in our example, the landlord sells part of her/his land to the buyer and in the instrument of transfer, she/he reserves a right of way over the land sold for the benefit of the land she/he retains.  The right of way is an easement created by express reservation.  The legal effect is the same whether an easement is created by express grant or by express reservation.

Easement created by implied grant and implied or intended easements

An easement by implied grant is a quasi-easement, thus a continuous and apparent easement which is necessary to the reasonable enjoyment of the land and is at the time of the grant used by the landowner for the benefit of that part of the land.  An example of this is a garden attached to the land.  On the other hand implied easements are those where the easement is required for the purpose of carrying out the common intention of both the grantor and grantee of the easement without express agreement.  Easements may also be created by long user or prescription even though there may be no actual evidence of grant of the easement.  By long user it means a period of not less than 20 years.

Easement of necessity of way

Where a landowner sells part of his/her land and the part he or she retains is left without any legally enforceable means of access to a public road, an easement of way of necessity will be implied over the land sold.  Likewise, where a landowner grants part of his/her land to another and the latter has no legally enforceable means of access to the land granted, then an easement of way of necessity arises by operation of the law over the land retained. The easement arises by operation of the law because, it is a matter of necessity and vital to the effective ownership of that part of the land that the owner should have access to, otherwise the land would not be of much use to him or her. However, an easement of way of necessity does not arise if there is an alternative means to access what is practicably available to the claimant as a matter of right.

Fact 9/9/2011: Rights of Individuals over communal land

Communal land is that land held by a specific community or group of people recognizing individual rights in that land and regulating its use and management. Communal land may be held on a certificate of customary ownership or freehold title by the managing committee on behalf of members of the Communal Land Association.

Communal land is managed under customary law and any other laws that may be applicable such as the Constitutional and Land Act provisions on non-discrimination, the provisions of the National Environment Statute that ensure conservation of the environment. Where an Association holds land under customary or Freehold tenure, the Association must recognize and verify that all or part of the land it holds is occupied and used by individuals and or families for their own purposes and benefits.

Under customary tenure, a family is recognized as a legal person represented by the head of the family. The individual/family therefore has access and user rights to this land but the actual ownership lies with the Communal Land Association. The shares of each individual or family are well known by the entire community or clan and therefore ascertaining their rights to a particular piece of land is feasible.

However, an individual or family within a community wishing to own her/his/its land which under customary norms is available for her/his/its use and occupation [may]:

 

• If held by the Association on behalf of the community applies for a certificate of customary ownership or a certificate of freehold title in respect of her/his/its portion of land.  The rules that apply for the application for a certificate of customary ownership or freehold certificate of title apply in this case without exception.
• Where the Association holds land under customary tenure, the individual or family applies to the Association to have her/his/its portion of land transferred.  If the Association approves, the applicant causes her/his/its land to be demarcated, transferred, and registered by the Recorder.
• Where the Association holds the land under freehold, the individual, or family applies to the Association to transfer the portion of land to her/him/it.  If the Association approves the application, the applicant causes the piece of land to be surveyed and transferred to the applicant and registered by the Registrar of Titles.

 

Under circumstances where one wishes to have conversion from customary ownership to freehold ownership the procedure is provided as follows;

Conversion from Customary to Freehold Ownership

ü  The Customary owner makes an application using form 4 to the land Committee and pays Shs.15,000/=

ü  The Committee makes a report with recommendations on the application to the board.

ü  The land board then orders and has the land surveyed.

ü  The land board accepts the conversion with or without conditions or rejects the application. The decision of the board is recorded on the application.

ü  Where the board accepts the application, it sends a copy to the office of the titles for issuance of a certificate of title.

Fact 8/8/2011: The plight of Widows in Uganda

In 1995 Uganda adopted the Constitution of the Republic of Uganda (1995) which protected a wide range of human rights. Under chapter 4 of the   Constitution women have the right to be treated equally with men. This includes having equal opportunities as men in every area of life (socially, economically and politically). Women have the same rights as men in regard to owning property. Women have the same rights to keep alone or share property with other people. Widows have the right to inherit the property of their deceased spouses and the right to look after their children if their spouses die as provided for under the Succession Act Cap 162.

Under Customary law, it is assumed that the welfare of Widows and their children will be taken care of by the deceased’s kin. In Uganda, for example where there is no will, a widow is allowed only 25% of the deceased husband. All children, even if they are illegitimate, are entitled to 75%. In theory this applies to girls as well as boys. However, reports indicate that, in practice, female children may often not inherit.

However, many women particularly widows continue to suffer attempts  by neighbors or relatives to grab their land leaving them with no means of economic gain and hence leading to starvation of the family and failure of children to go to school due to lack of school fees. In addition to that, the divorced or separated women are denied land by their own brothers yet they have children to support. It should be noted that most of the time land is taken in violent means causing injury to people if not deaths. The Constitutional court however, declared Section 27 of the Succession Act which guarantees a widow only 15% of the value of the estate and Rule 8 (a) of the second schedule that provides for a widow’s rights of occupancy only until she remarries unconstitutional but the question remains whether the law will be changed. There is need to put in place legislation that addresses the widow’s share in the entire estate of her deceased husband as was the inheritance of the matrimonial home. The clause that states that the matrimonial home is not part of the estate to be distributed remains contentious since the widow is unable to transfer the title deed of the matrimonial home into her name; it becomes hard for her to use her deceased husband’s title deeds as collateral for a loan. She thus cannot utilize the matrimonial home to generate income for the family.

Fact 7/8/2011: Women’s Rights in Regard to the Family Norm

In 1995 Uganda adopted the Constitution of the Republic of Uganda 1995 which protected a wide range of human rights.  Under chapter 4 of the   Constitution women have the right to be treated equally with men. This includes having equal opportunities as men in every area of life (socially, economically and politically). Women have the same rights as men in regard to owning property. Women have the same rights to keep alone or share property with other people.

As such, no one should take away a woman’s property for no good reason. However, a situation may arise where taking of possession or acquisition is necessary for public use or is in the interest of defiance, public safety, public order, public health and the compulsory taking of possession or acquisition of property is made under a law which makes provision for prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property and a right of access to a court of law by any person who has an interest or right over the property, as provided for under Article 26 of the Constitution.  Widows have the right to inherit the property of their deceased spouses and the right to look after their children if their spouses die as provided for under the Succession Act Cap 162.

Under Article 31 of the Constitution, women of 18 years and above have a right to marry and start a family. The woman and her intended spouse must agree to get married and they both have equal rights in getting married, during marriage and when they decide to end the marriage. Article 32 provides that women have the right to affirmative action, for purposes of redressing the imbalances created by history, tradition or custom. The constitution under Article 33 (6) prohibits any laws, cultures, customs, or traditions which are against the dignity, welfare or interest of women or which undermine their status.

However, many women particularly widows continue to suffer attempts  by neighbors or relatives to grab their land leaving them with no means of economic gain and hence leading to starvation of the family and failure of children to go to school due to lack of school fees. In addition to that, the divorced or separated women are denied land by their own brothers yet they have children to support. It should be noted that most of the time land is taken in violent means causing injury to people if not deaths. The Constitutional court however, declared Section 27 of the Succession Act which guarantees a widow only 15% of the value of the estate and Rule 8 (a) of the second schedule that provides for a widow’s rights of occupancy only until she remarries unconstitutional but the question remains whether the law will be changed. There is need to put in place legislation that addresses the widow’s share in the entire estate of her deceased husband as was the inheritance of the matrimonial home. The clause that states that the matrimonial home is not part of the estate to be distributed remains contentious since the widow is unable to transfer the title deed of the matrimonial home into her name, it becomes hard for her to use her deceased husband’s title deeds as collateral for a loan. She thus cannot utilize the matrimonial home to generate income for the family.

The blame should be laid on customary law; that is to say, cultural norms for the different regions are still backward and discriminatory hence treating women as possessions and denying them rights. Solutions to such problems are among others; to have titles for land. Let everybody have a land title or a certificate such that the land may have the State’s protection; to give automatic co-ownership between the man and woman on the land on which the family lives since the Marriage Act considers married couples to be one person and to own property jointly save for given circumstances; there is need to clearly mark land boundaries such that those who want to grab land do not take advantage of the situation and this can best be done during the process of acquiring certificates for land; there is need for the state to support or acknowledge the role that customary authorities are playing in land administration. And further still the government has to be proactive about improving the situation and policy should be based on evidence and not on preconception.    

Fact 6/8/2011: The procedure through which Government can acquire private land

The Registration of Titles Act Cap 230 governs Land acquisition and leasing of registered land. The seller or lessor of land must be in possession of a certificate of title. A certificate of title in the names of a party is conclusive proof of ownership of the land in question as provided for under the RTA. However, the Land Acquisition Act Cap. 226 governs the compulsory acquisition of land for public purposes in addition to the Constitution of Uganda and the Land Act. Before going into the procedure through which government can acquire land there is need to discuss the reasons as to why Government can compulsorily acquire private land. Government can acquire your land for the following purposes:

 

• For public use for example to settle internally displaced people
• In the interest of defense e.g. if the land is strategic and the army needs to use it to protect our country.
• Public safety for example if there is toxic waste, or land slides in the case of mountainous areas, or a serious earthquake envisaged.
• Public order – If the place is being used for assembling riotous crowds, thieves, e.t.c
• Public morality – if the place was being used for immoral acts
• Public health – if there is an outbreak of a serious disease e.g. the tsetse fly.

 

It should be noted that, before Government can acquire your land, it must compensate you without delay, fairly and adequately. (Article 26 of the Constitution and Section 42 of the Land Act)

 

The Procedure

 

1.   The Minister responsible for lands authorize any person to find out the suitability of land for the purpose it is being acquired. This includes surveying the land, digging or boring the land for samples e.t.c. Id damage occurs on the land, Government compensates the land owner for the damage (Section 2 of the Land Acquisition Act).

 

2.   The Minister then makes a declaration by statutory Instrument (by law) that the land is suitable and a copy of the declaration given to the owner of the land (Section 3 of the Land Acquisition Act).

 

3.   The Assessment officer (this is a public officer appointed by the Minister) orders the marking, measuring of the land and a plan of the land to be made (Section 4 of the Land Acquisition Act).

 

4.   A notice of not less than 15 days is given inviting all people having interest in the land to the assessment officer on a day, time and place specified in order to determine the nature of their claims, the amount of compensation to be paid and any objections they may have to the plan for the land use (Section 5 of the Land Acquisition Act).

 

5.   The Assessment officer on the day specified hears the claims and makes an award specifying the true area of the land and the compensation which should be paid to each person having an interest in the land (Section 6(1) of the Land Acquisition Act).

 

6.   Compensation is paid basing on the current market price of the land in the area prepared annually by the District Land Board. (Section 59(1)(e)&(f) of the Uganda Land Act).

 

7.   Any person aggrieved by the award of the Assessment officer may appeal to the District Land Tribunal or the High court if the Value of the land exceeds 50,000,000/= (Section 76 1(b) &(c) of the Land Act)

 

8.   The Uganda Land Commission then pays compensation for the value of the land if no appeal is made to the Courts of law (Section 6(4)(b) of the Land Acquisition Act).

 

9.   It is only after all people having interest in the land have been fully and adequately compensated that Government then takes possession of the land and the land is then managed by the Uganda Land Commission (Section 7 of the Land Acquisition Act, Article 26(2)(b)(i) of the Constitution).

Fact 5/8/2011: Customary Land Tenure and the Right to own Property by Women

Customary tenure is one of the land tenure systems specified in the 1995 Constitution and the Land Act 1998. Under this tenure land is communally owned by a particular group of people in a particular area. Its utilization is usually controlled by elders, clan heads or a group in its own well-defined administrative structures. Over 70% of land in Uganda is held on customary tenure system. In such cases, people own their land, have their rights to it, but don’t have land titles. Some tenants on such land allocate specific areas to themselves with known and defined boundaries usually marked by ridges, trenches, trees etc.

This type of tenure has two broad classifications and these are 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 the 1995 constitution, 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 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.

However, one can own customary land while in occupation of mailo land which may be belonging to a different person and may be referred to as a bonafide tenant. 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 20^th century, land in Buganda 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. Although many continue to insist that they are the true owners of the land. 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. However, 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.

Land is the most important resource in Uganda because people depend on it for cultivation and therefore their livelihoods. The contemporary land tenure regimes, which generally include a mix of customary, statutory and religious legal arrangements, have their origins in the early colonial period of consolidation in which colonialists left family and community concerns such as land under the jurisdiction of “customary law” and customary courts. After the 1930s the customary tenure arrangements had become an obstacle to changing colonial objectives that now incorporated the promotion of economic growth through agricultural production. The new goals were predicted upon the state’s fostering of the emergence of freehold system and individual property of land ownership. This led to the introduction of private property system which was done through titling and registering land.

It is worth noting that, through this arrangement women lost out because their rights to land through husbands, fathers or sons diminished in importance. By titling and registering land colonial governments colonial governments eliminated the importance of secondary rights of women to access land and men increased their control over land. More so the majority of women are not aware of what the law states with regard to land ownership. They are not informed that they have such rights and must demand for them.

Most women do not even consider themselves as land owners and actually are surprised by such a suggestion. Attempts to improve women’s access to land must be given massive awareness creation, educating women on the existing land laws and policies. Women must also be empowered economically to ensure that they can access land and not just be tied to be small scale farmers. There is need to visualize a situation where women can become large scale producers and this requires them to own large tracts of land which can only be achieved through financial support.

 

Fact 4/7/2011: Land Management in Uganda (Public Land)

Land has become a contentious issue in Uganda. Many incidents on land are happening in Uganda and they call for debate and address from the concerned people.

According to the Constitution of the Republic of Uganda article 237 land belongs to the citizens of Uganda and is vested in them in accordance with the land tenure systems. The same Constitution gives power to the Government to acquire land in public interest and that it shall hold in trust for the people. Under Article 239 the Uganda land commission is given authority to hold and manage any land vested in or acquired by the Government of Uganda.

However, it is realized that of recent, government is giving away large chunks of land to the so-called investors through illegal means. The case in point is land belonging to Uganda Broadcasting Corporation that has issues and in the simple language one may term it as being mismanaged.

The facts as per one of the cases are that; Uganda Broadcasting Corporation as a body corporate having attained the status in 2005 by an Act of Parliament through selective bidding, put up bids and it is assumed that Extreme Innovations through right procedures won the bid and the same was granted the award and was required to pay Shs. 957,454,648/= However, it is established that there was an order from the then Minister of Internal Affairs- Hon. Kirunda Kivejinja directing UBC managers to grant 2 acres of land to Extreme Innovations, and there is a letter to that effect. Before paying the said amount of money, the directors through their engineers learnt that the place was a marsh and that it required lots of money if a building is to be constructed thereon. It is at this moment that Extreme Innovations decided to transfer their interest to Sino East Africa Development. However, there was already a lease agreement between Uganda broadcasting services and Extreme Innovations. On acquiring interests Sino East Africa Development (Chinese) Company paid for the said land and started developing the land.

However, one of the directors of Extreme Innovations stated that they did not sell the land as it is purported in the news and that they did not get any benefit out of this land. But on being asked what it meant to give away what they had not yet paid for she stated that they had lost a lot of money during the bidding process and that Sino East Africa Development had to pay in order to get interest in the land.

Pertinent issues that raise concern are as follows;

• If Extreme Innovations had won the bid following the right procedure was there need for the minister to order UBC officials to grant land to the winner?

• If Extreme Innovation had not paid for the award how then did they acquire interest in the land that they even had to transfer?

• When is a lease agreement created and when does it become effective?

• In conducting all this was the public procurement and disposal of public assets Authority following the process or it was not in the know of the same?

• Was this the right ministry to address such an issue?

All these concerns may be addressed by the Public Procurement and Disposal of Public Assets Act, 2003 (Act No. 1 of 2003) of Uganda. The law was gazetted in January 2003 and brought into effect by the Minister of Finance Planning and Economic Development. The Act set up the Public Procurement and Disposal of Public Assets Authority (PPDA) as the principal regulatory body for public procurement and disposal.

The law is now in operation and all Government departments and other Government-owned bodies are obliged to follow the law. The law emphasizes best practices including procurement and disposal principles, rules, administrative review systems, Codes of Conduct, as well as suspension of providers for offences and disciplinary measures against public officers who commit malpractices.

The law is also complimented by Regulations, Guidelines, Forms and Standard Bidding Documentation. These serve to assist the procuring and disposing entities and providers of services, supplies and works in carrying out procurement and disposal processes.

 

Fact 3/7/2011: Rights of Spouses in Marriage

Under the Marriage Act, the law that governs marriages in Uganda, property rights of married men and women are not clearly spelt out; but under the Constitution of the Republic of Uganda (1995) and the Land Act (1998), both women and men have equal rights to own land and property, either individu­ally or jointly with other people. When they get married they do not lose these rights. It is important to remember that the Constitution is the ultimate guide for property rights in marriage and the following provisions of the Constitution apply to the property rights of both men and women regardless of the type of marriage, as long as that marriage is one that is legally recognized in Uganda:

• Article 21 provides that all people men and women are equal before the law in every area of life and shall be protected equally by the law.
• Article 26 provides that women have the same right as men to have property that they can keep alone or share with other people and no one should deprive them of their property.
• Article 31 provides that women have equal rights as men in getting married, during marriage, and if and when they decide to end the mar­riage. These rights include the right to property.
• Article 32 bans any laws, customs, cultures and traditions that treat women unfairly or deny women the same oppor­tunities as men.

In addition to that, some provisions of the Land Act specifically protect the property rights of married people. Under the Land Act it is stated that:

• Both husbands and wives have the right to use and live on family land. Family land is defined as land where the family home is situated, land that helps sustain the family (such as land for crops or animals or land from which the family earns an income), or land that according to the family’s norms, custom or tradi­tion is called family land.
• Both spouses—husbands and wives must seek the approval of the other spouse before carrying out any transac­tion on family land. Such transactions include sale, exchange, mortgage or lease.

Under S.38 (A) of the Land Act as amended it is provided that every spouse has a right to enjoy security of occupancy on family land.  Security of occupancy means the right to have access and live on the family land.  The spouse has the right to use family land and give or withhold consent to any transaction referred to in S. 39 of the Land Act, which may affect his/her rights on the land.  This however excludes the mortgagee’s right to transfer land in exercise of powers under the mortgage.  A purchaser in good faith for value of family land where consent was not given has the right to claim from any person with whom he/she entered into a transaction any money paid or consideration given in respect of the transaction.  A spouse may put a caveat on the certificate of title or certificate of customary Ownership to indicate that the property is subject to the requirement of permission and approval (consent) and this caveat does not lapse as long as the right to security of occupancy subsists.

 

Fact 2/6/2011: Land acquisition and Lawful or Bonafide occupants

The Registration of Titles Act Cap 230 governs Land acquisition and leasing of registered land. Regardless of the land tenure system, the seller or lessor of land must be in possession of a certificate of title. A certificate of title in the names of a party is conclusive proof of ownership of the land in question. However, the Land Act 1998 Cap 227, including the Land Regulations is the principal land tenure legislation in Uganda. The Act contains principles such as rights of “bonafide” and “lawful” occupants who are given security of occupancy on land and rights of children and spouses in cases where land has to be sold, leased, subleased, mortgaged or dealt with in other forms.

According to the Land Act; Section 29 a Lawful occupant means a person occupying land by virtue of the repealed of Busuulu and Envujjo Law, Toro Landlord and Tenant Law, Ankole Landlord and Tenant Law and a person who entered the land with the consent of the registered owner, and includes a purchaser or a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title. Whereas a bona fide occupant means a person who before the coming into force of the Constitution had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more or has been settled on land by Government or agent of Government, which may include a local authority.

Complications arise by virtue of the complex land tenure systems that exist in Uganda. It is not strange to find for example that three different entities legally enjoy different interest on the same Piece of land for example a Mailo landowner and a leaseholder say a farmer. The farmer will obtain a land Title in respect to the lease. To the common man there will be no difference between the Mailo owner’s Title and the leasehold Title. Both these parties are free to sell their interest in the land and there will be nothing illegal about their transaction although the transaction will have different implications on the purchaser. If a purchaser were to buy the mailo interest, it would mean that he becomes the owner of the land. He also becomes the landlord of the lessee but most important of all, unless he is in the know, he will not take possession of the land until the expiry of the lease granted on the land.

On the other hand, a customary tenant (commonly known as Kibanja holder) may occupy the land. The Lessee in the example above may not have been aware of the presence of a Kibanja holder. Since his lease is for a specified time eg 10 years, his immediate intention would be to occupy the land and commence farming. His immediate reaction is to try and evict the Kibanja holder from the land. This however is not possible as the Kibanja holder is also protected by the law, so he may turn to the registered owner to try and take possession of the purchased land bearing in mind that the owner of land who wishes to sell the reversionary interest in the land shall, give the first option of buying that interest to the tenant by occupancy.

Fact 1/6/2011: Leasehold Land Tenure system in Uganda

Leasehold tenure was created to mean a system of owning land on contract. A grant of land would be made by an owner of freehold or Mailo or by the Crown or Uganda Land Commission to another person for a specified period of time and on certain conditions, which included but limited to payment of rent. The grantee of a lease for a period of 3 years or more would be entitled to a certificate of title.

Under the Land Act, Leasehold tenure is a form of tenure

(a)  created either by contract or by operation of the law;

(b) the terms and conditions of which may be regulated by law to the exclusion of any contractual agreement reached between the parties;

(c)  under which one person, namely the landlord or lessor, grants or is deemed to have granted another person, namely the tenant or lessee, exclusive possession of land usually but not necessarily for a period defined, directly or indirectly, by reference to a specific date of commencement and specific date of ending;

(d)  usually but not necessarily in return for rent which may be for a capital sum known as a premium or for both a rent and a premium but may be in return for services or may be free of any required return;

(e)   Under  which both the landlord and the tenant may, subject to the terms and conditions of the lease and having due regard for the interests of the other party, exercise such of the powers of a freehold owner as are appropriate and possible given the specific nature of a leasehold tenure.

In short, leasehold tenure is created either by contract or operation of the law. The lease agreement sets out terms and conditions for the contracting parties. A direct date of commencement and a termination or expiry date of the leasehold period must be stipulated. In return for the occupation or use of the land, the land or lessor receives rent or premium from tenant.

Leasehold tenure is the optimal tenure available to foreign investors. A foreign investor can acquire a leasehold interest in land for not more than 99 years.

The Registration of Titles Act Cap. 230 governs land acquisition and leasing of registered land. The seller or lessor of land must be in possession of a certificate of title. A certificate of title in the names of a party is conclusive proof of ownership of the land in question.

Key features:

1. Created by contract or operation of the law
2. Grant of exclusive possession and use of land to a tenant for an agreed period.
3. Payment of rent or premium by the tenant to the landlord
4. Land use and possession is granted for a limited period

Advantages:

• Flexible renewable terms
• It is the optimal land tenure system available to foreign investors.
• Acceptable as loan security depending on the unexpired lease period.

Disadvantages

• It does not confer title forever
• It can be terminated before expiry if terms are breached