Opinion: Bibanja holders need security of tenure not security of occupancy

The 1995 Constitution restored the mailo tenure but left out recognition of bibanja as a tenancy, and all

the amendments made thereto have been emphasizing security of occupancy for bibanja holders rather than security of tenure.

Bibanja holding continues to be in jeopardy and threatened by laws that recognises overlapping interests in Mailo tenure.

The assumption that kibanja holder will be comfortable with security of occupancy other than security of tenure is out of touch with the injustice suffered for over a century were the power dynamics were constructed in such a way that the mailo aristocrats controlled the “landless” bibanja occupier in perpetuity.

The 1928 Busulu and Envujo Law was a tokenism and within its scheme continued to condemn to landlessness without registrable security of tenure.

The power of the mailo landlords was wielded by the powerful of the day ranging from the Kabaka at the

top, through the hierarchy of the Government system of the day to the lowest muluka chief.

The mailo influence was also wielded by the three traditional religious groups including the Anglicans, Catholics, and Muhammedans, all of whom held vast square miles of mailo gifted to them under the so called 1900 Buganda Agreement.

The attempts by NRM administration to grant security of tenure to bibanja holders during the 1995

Constitutional enactment was resisted by the combined forces of the three traditional religious

groups and the newly regrouped Mengo establishment.

The compromise position agreed was for parliament to enact a law within two years of the first sitting of Parliament elected under the 1995 Constitution to handle this issue.

When Parliament convened to fulfill its constitutional duty, the efforts of the NRM to provide security of

tenure to bibanja holders was heavily resisted by the three forces of the three established religious groups

and the now regrouped Mengo establishment.

All religious functions including teachings on pulpits were awash with summons condemning the 1998

Land Act with the result that the legislation when it came out gave little protection to bibanja holders.

It was the Mengo Establishment which gave the most expressive disgust to the new law when they put up a public display of mourning by wearing backcloth on the day the bill was passed into law.

The failed attempt to give security of tenure to bibanja holders was a sad day. The Constitution had envisaged that under article 237 (9) (b) a Kibanja holder would acquire a registrable interest in the land he or she occupied.

This would have meant that the Kibanja holder should have been enabled to also own land in perpetuity without any threat of eviction.

Indeed the Odoki Constitution Commission Report had recommended firstly that all people who were

legally occupying land should be guaranteed security of tenure and enabled to register their interests and obtain certificates of titles.

Secondly that all land held under leasehold tenure in the rural areas should in the long run be converted into, freehold; and thirdly that Bibanja holders should be granted free-hold titles to the land occupied by them, with the proviso that Government was to make arrangements for compensation to the mailo owners.

The amount of compensation to be paid to the mailo landlord should be determined by an independent body considering the value of the land in the hands of a Kibanja occupant.

Unfortunately, the Land Act of 1998 that was enacted by Parliament, was due to the fierce resistance from the three establishment religious organisations and the newly revamped Mengo establishment, ended up directing its reforms towards enhancing bibanja holders’ security of occupancy and not security of tenure whereby the

mailo landowner continued to hold the land in perpetuity.

Subsequent amendments to the Act have not changed this position.

The Act in effect was unconstitutional for contravening Article 237(9)(b) in so far as it did not enable a kibanja holder to acquire a registrable interest in land that would be held in perpetuity.

The Mailo owner is still allowed to evict the kibanja holder under certain circumstances. The provision for issuance of Certificates of Occupancy has not afforded protection to bibanja holders and is opposed by mailo owners as it creates an encumbrance on the land which lowers its commercial value.

The conversion from kibanja occupancy to a freehold title holder would have freed mailo from the encumbrance of bibanja holders while at the same time giving the kibanja occupant an opportunity to

convert his holding to freehold so as to have the benefits of that tenure.

A recent study by the World Bank; Shortcomings to overlapping land rights and a way forward: the case of Mailo land in Central Uganda June 2018 found that the willingness to pay for obtaining a legal certificate to secure the occupation of kibanja is high, and that 71% of tenant households expressed high willingness to buy kibanja parcels from landlords if they were to sell at an affordable fee.

Thus the raison detra of President Museveni’s amendment call to the mailo tenure.

The author is Minister for State of Lands

smayanja@kaa.co.ug

www.kaa.co.ug