Land reform or theft?





John B. Kakooza





What exactly is behind the proposed amendment to the Land Act 1998? The NRM has lined up its well known cadres, among them Moses Byaruhanga (New Vision, December 11, 2007), and David Mafabi (Sunday Vision, December 16, 2007) to tell the country that the proposals aim to protect the peasants or the poor in Buganda who did not get land in 1900.



It is my educated guess that Mr. Byaruhanga owns some land, probably mailo interest, somewhere in Buganda although he surely did not get any in 1900. He should therefore know that not all the land that was given to the 1,000 chiefs and members of the Buganda Royal family is still held by them alone. It has over the last 107 years peacefully changed hands up to Byaruhanga himself. The least that any person in Buganda needs is land stolen for him by the government.



By its own record, this government lacks legal and moral authority to effect “reforms” aimed to help the poor. The poor do not have land, but they do not have basic necessaries of life either. They have no access to medicine, food, clothing, etc.



The proposed amendments will play the Robin Hood of sorts, by stealing land from the rich and giving it to the poor. But the rich government officials are given 4.5 litre 4x4 vehicles, fully maintained by the taxpayer, to drive from Kololo to the city centre and to their country homes without accountability when the poor do not have so much as a basic public transport system!



The rich are given resources to travel abroad for treatment of illnesses that can be handled in Uganda. Are we about to do the same for the poor, if we care so much for them? Does government provide basic drugs in the local hospitals for the poor? Why don’t we give part of the Shimoni or UBC land at Nakasero to the landless? To whose benefit were those two institutions demolished?



It is not clear, except from Byaruhanga’s article, who the proposed amendments intend to protect, certainly not Bibanja holders in Buganda. According to the prefatory memorandum, the minister says the Bill aims to enhance the security of the lawful or ‘bona fide’ occupants of registered land and to protect them from “rampant evictions”.

Tenancy by occupancy



We all know that there have been no rampant evictions of bibanja holders in Buganda. Even Byaruhanga agrees that the enactment of the Busuulu and Envujjo law in 1928 put paid to the frictions that had begun to surface as a result of the unregulated relationship between land lords and bibanja holders at that time. Under that law the rent was fixed at Shs 10 per annum in 1928. Compare that to the NRM’s Shs 1,000 a year in 1998 regardless of size and location!



And who exactly is “a tenant by occupancy?” The proposed amendment, like the Land Act itself, is silent on it. It is, thus, tempting to agree with Peter Mulira, lawyer and landlord, when he suggests that the words “tenant by occupancy” connote occupiers who enter upon another’s land without the owner’s knowledge, let alone consent (Abesenza, but this time with covert and tacit government encouragement).



This is what is driving some people in Buganda into thinking that the proposed enactment is contrived to grant occupancy to a distinct group of people being stealthily brought in to settle on other people’s land, including the 9,000 square miles which are still held by the central government by expropriation.



Traditional bibanja holders in Buganda do not need the protection contemplated by the proposed law. They feel that they have lived in harmony with their landlords for at least a century and can continue to do so.



Evictions are a recent phenomenon, and they are not rampant. That is why people like David Mafabi labour to cite isolated incidents of violence connected with attempted evictions in Sembabule and Wakiso. No such violence is reported in a period of 107 years. Evictions have occurred in recent times, but have been perpetrated by the nouveaux riches that are emerging as land owners.



Some landlords, frustrated by the Land Act of 1998 which cynically fixed annual rent (busuulu) at 1,000 a year regardless of size or location, have decided to sell their interests to the more daring and powerful individuals loaded with cash from inexplicable sources who have the means to evict their ‘squatters’. It is not hyperbole to observe that they are all invariably from or are connected with security agencies or inner-government.



Barring these recent developments, bibanja holders in Buganda have enjoyed security of tenure since at least 1928. They have always been at liberty to construct permanent houses, grow perennial cash and food crops, rear animals and bury their dead on their bibanja. Above all, the kibanja holder has always been able to sell his “kibanja interest” at its market value to move on. All he needed to do was introduce the purchaser to the landlord who demanded a token premium – ekanzu (tunic).



I went to St. Augustine’s Primary School at Kalungu (Masaka), a Catholic founded and government aided school. It stands on mailo land donated to the church by the late Yozefu Nsingisira of Bulawula, one of the beneficiaries under the 1900 arrangement.



Hundreds of families in Kalungu County live on Nsingisira’s land. I have never heard of a single occasion when any of Nsingisira’s descendants evicted any “peasant”. The relationship between Nsingisira’s descendants and their basenze has always been cordial, characterised by mutual respect. I am inclined to believe that the situation in Kalungu reflects the whole of Buganda in microcosm, and hopefully much of the rest of Uganda.



Over the years, the children and grandchildren of local peasants who did not get land in 1900 have through education or by entering formal economy, bought their landlords’ interests and got title to their former bibanja (okwegula) and have since bought more.



That is how Byaruhanga now owns land in Buganda, if my guess is right, and it is perfectly legal and legitimate. The process has been peaceful and has left no hard feelings in its wake. The Catholic Church has been negotiating with its bibanja holders along this line, and it works. Former bibanja holders on church land have been granted leases and certificates of title.



The proposal to wrest title from one Ugandan and give it to another will create conflict without alleviating the plight of the poor because these poor will instead sell off the land to the nouveaux riches.

9,000 square miles



And with regard to the 9000 square miles, government fails to show any good reason for holding on to this land. The law and precedent are not on government side on this one. The law is the Constitution of Uganda and the Land Act 1998. The precedent is the Expropriated Properties Act, which the government implemented to the letter in returning properties previously abandoned by Asians in 1972. Details of this precedent will be a subject for another day. Under the law all land in Uganda belongs to Ugandan citizens under various tenure systems:



-Customary land holding

-Freehold

-Mailo

-Leasehold



Under which of these tenure systems does the central government own land, and which land is that?

Article 237(2) (a) of the Constitution allows government to acquire land in public interest – i.e. for public use, such as the construction of a road, a school or water works.



There is an elaborate procedure under the Land Acquisition Act which the government must follow, not least on the payment of just compensation to those whose land is to be acquired in public interest (This procedure was not followed in the construction of the Northern by-pass and people were cheated out of their compensation money).

Government does not own land as a landlord. Or does it?



It therefore cannot give out land, like the Shimoni or Mbuya institutions! The 9000 sq. miles which government refuses to return to its lawful owners is expropriated land. The situation does not change when the land is placed in district land boards, because those boards are institutions of the central government managed by it through the Ministry of Local Government.



It is a settled fact that the British expropriated that land and vested it in the crown (British government). It could have decided to steal it just as it did the land in Zimbabwe, Kenya, South Africa and elsewhere, or given it to Uganda Company like the Mitchell Cots land. Well, it did not. It returned it to Buganda in 1962.



This land was expropriated again in 1967 and remains expropriated to-date. Expropriation is illegal taking of property, including land. The act of expropriation does not confer title to the expropriator or anyone else receiving from the expropriator. There is a difference between compulsory acquisition, which is legal if the owner is compensated, and expropriation, which is illegal. The effect of this is that the expropriating authority does not acquire title because no title can result from expropriation.



This to me would mean that the government does not have title to this land, a circumstance that renders all leases given out on it invalid, for, NEMO DAT QUOD NON HABET (no one can give what one does not have). No one can acquire a valid lease title offered to him or her by the government out of this land since the government does not have title to pass. So much is the value of the leases that have been given out by the District Land Boards.



The same will apply to Shimoni, UBC, Mbuya and other such pieces of land. The government which is giving out land, any land, must establish its title to it, first of all.



Does government own land? If so, under which tenure system? Expropriation is unconstitutional because Article 26 prohibits it. The victim of expropriation should seek to invoke Article 3 of the Constitution which provides that when provisions of the Constitution are infringed upon the victims of the infringement should resist and where it is impossible to resist; that victim should wait for that time in future when their rights will be restored.



What the Buganda Kingdom may end up doing is initiate a process that serves formal notices on whoever receives lease from the government on expropriated land to put him or her in the position of a knowing receiver of stolen property.

Mabira forest



The Mabira Forest reserve controversy and the bloody demonstration it engendered should be viewed in this context. The government is enjoined in section 44 of the Land Act, to take charge of, and protect forests reserves, rivers and other natural resources, but only for ecological and touristic purposes.



Section 44 (4) specifically prohibits government or a local government to lease or in any other way alienate any of the said natural resources, least of all to give them away for commercial purposes. But this is exactly what the government attempted to do with Mabira early this year.



It is unfortunate that land matters are causing tension just because government does not want to follow the law, including or rather, especially, those laws enacted by it, after castigating all past governments for bad governance. To me the issue of land has the potential of exploding into violence, yet this is not inevitable.



In this exasperating land grabbing craze being packaged as ‘reform’, there is a rat which I can smell. President Museveni has for the last 20 years lamented lack of land for his nebulous ‘investors’, dubious and even invisible but deep in the President’s heart and mind. I can see much of this in these land illegalities.



When the proposed enactment finally comes into force, its beneficiaries, not bibanja holders, will for a while bask in victory as new owners of land under an indeterminate tenure until reality strikes and they find all their eyes on the stalks. They will then learn that certificates of occupancy were not certificates of title after all. There is a world of difference between the two.



Certificates of occupancy cannot confer title to occupants. They can only serve to remove you from your private landlord to becoming a tenant of the state at its pleasure. The intention of this law is not far to seek. Landlords with their certificates of title are a much harder nut to crack.



The trick lies in wresting ownership of the land and placing it, temporarily, in the hands of ‘peasants’ with certificates of occupancy whose content is hollow and whose essence is Greek to their holder. Then, not with a bang, but in a subtle but cruel move, those certificates will be removed from their holders and the land will be given away to ‘investors’ for ‘modernisation and job creation’.

If government can repudiate title, it can even more easily discard the meaningless certificates of occupancy.



That moment cannot be far off. It is this rat that I smell and it is that rat which former President of Kenya Jomo Kenyatta once described thus: “when they came we had the land and they had the Bible. They taught us to pray with our eyes closed. When we opened our eyes again, they had the land and we had the Bible.”



It is this rat that has earned President Robert Mugabe the British/American-led racist hate campaign, which some African scholars, journalists and fake clergymen have picked up and joined in parrot fashion.



It could happen in our lifetime, but the parties involved on both sides of the deal can afford to bide their time. The vulture is a patient bird. What is certain is that our children and their children will certainly be landless; in the situation black Zimbabweans and Aborigines of Australia find themselves today.



President Museveni knows better than President Mugabe.

He will give away land and whatever else the ‘international community’ will demand in exchange for an opportunity to continue “serving the people of Uganda” as their president without taking pressure on issues of human rights, governance and all that. It is all grist to the mill.





The author is a lawyer and former Corporation Secretary of the NSSF. from observer