The untold story why bibanja evictions are rooted in Mailo tenure

SAM MAYANJA

The evictions following land grabbing as the Mailo tenure structure was being implemented pursuant to the 1900 Uganda (Buganda) Agreement was so vast that, it was as if the entire nation was under eviction.

Bishop Alfred Tucker was so shocked at the effect of the implementation of the Mailo that he felt obliged to describe what he was seeing to the British public.

His vivid pictorial explanation says it all; “The man in occupation had to be turned out and he in turn, turned out others and so on and so on. Streams of men, women and children going east with all their household goods, cattle, sheep, goats, and fouls, met similar streams going west.”

This internal displacement of people in their own country and the extent of havoc, the resultant disruption of an entire way of life and resultant misery was beyond description. The evictions turned entire populations upside down, evictees moving from one area to another.

These events shocked the colonial governor and in his report to the British Colonial Secretary noted that, “it has become clear that this system (mailo) is a dangerous one.”

The 1922 Conference of the provincial commissioners convened to consider the effect of the implementation of the mailo structure, concluded that it was “a matter for deep regret that the ideas of freehold and mailo landlordism should have been introduced into the protectorate by the Uganda (Buganda) , Ankole and Toro Agreements and would urge that this disastrous mistake should not be perpetuated in districts where the government has not committed itself by any such unfortunate contracts”.

Moved by the misery of their people and unprotected by the colonial administration and their own Lukiiko leadership, the Bataka clan heads formed the Bataka Association which mobilized the landless bibanja peasants and demanded for an immediate amendment to the 1900 Agreement.

The Bataka Association gained considerable popular support and the colonial administration feared that it may grow into a bigger political movement, threatening to make the colony ungovernable.

The Lukiiko, to which the Bataka Association initially presented the bibanja grievances was unfortunately the personification of the political feudal mailo landlord class, and totally rejected any attempt at revising the 1900 Agreement.

The colonial administration stepped in, ignored the political shortsightedness of the Lukiiko, and set up a commission of inquiry which investigated the Bataka’s claims and upheld them putting in place the 1928 Busuulu and Nvujjo law.

This law gave the bibanja peasants complete hereditary security of tenure. This settlement satisfied the bibanja peasant holders and pulled the political sting out of the bataka movement.

Weary that the mailo curse could spread to other areas of the protectorate, the 1928 Busuulu and Nvujo law, became the basis of colonial land policy in the rest of the country.

In Toro, busulu was outlawed, in Bunyoro, the landlord and tenant system was rejected, in Busoga, the labour tribute a chief could extract from peasants was abolished and the peasants granted security of tenure the only condition being in effective occupation of the claimed piece of land.

It should be noted that the 1928 Busuulu and Nvujjo law covered only private mailo. On the official mailo, the issue of eviction did not arise. Indeed, under the 1962 Independence Constitution, all official mailo was under the administration of Federal land Boards and accountable to the Auditor General.

After the 1966 successful Revolution, and the subsequent promulgation of the 1967 Constitution, the administration of the official Mailo was streamlined with other land holding in the rest of the country and placed under the administration of the Uganda Land Commission under the oversight of, and accountability to the Auditor General.

The 1975 Land Reform Decree, abolished the private mailo and converted it to 99 year leases tenure system.

This means that all land was now back in the hands of the people of Uganda governed under one administrative organ, namely The Uganda Land Commission.

Many former bibanja holders on official mailo applied and obtained leasehold titles from the Uganda Land Commission or the Land controlling authorities like urban authorities and districts so delegated by the Land Commission.

Under Article 237(5) of the Constitution, these citizens have a constitutional right to convert their leases into freehold.

It should be noted that even where the holder of a lease has not yet exercised his constitutional right to convert it to a Freehold, Section 4.2 of the guidelines of the Administration of Land under the Land Act Cap.

227 stipulates that Renewal and extension of lease on initial or full term for all citizens is automatic, re-entry for any reason was prohibited. In this light, therefore, the claim of the Buganda Land Board (BLB) LTD to the official mailo land whose titles are in its custody is an affront to the constitution.

The call by the BLB Ltd to holders of lease titles to report for revalidation or extension is definitely unconstitutional. It is therefore imperative that the sole shareholder of BLB Ltd moves quickly to adjust to the constitutional reality.

As for the bibanja holders on the private mailo now converted by the 1975 Land Reform Decree to a tenant at sufferance - a unique creature of that law with nothing akin to a similarly named tenancy in the British Feudal Land System.

The requirement to notice and compensation was not an obligation on the head lease owner since this would create another feudal landlordism, but was only applicable to Government in cases of compulsory acquisition and therefore imposing the requirements and procedures laid down under the Compulsory Acquisition Act on takeover of land being held by a tenant at sufferance.

The Land Reform Decree therefore, had put this type of tenancy at par with the head lease as far as security of tenure was concerned. Thus by 1975 both the official and private mailo had died and with it the whole concept bibanjaism.

However, the 1995 Constitution revived the private mailo tenure. It is important to emphasise that what was revived was the private mailo as at that point in time, there was no official mailo anymore.

Ugandans who were bibanja holders had already obtained their leasehold titles from the Public Land Commission and even when they expire, the law as indicated above grants them automatic renewal with constitutional guaranteed option of conversion to a freehold.

The reversal back to private mailo from the 99 year lease tenancy was superfluous and unnecessary in light of Article 237(5) which gave Ugandans constitutional right to convert a leasehold tenancy into freehold.

The unintended negative effect was to reverse the gains of the hundred year’s struggle of bibanja holders.

The current custodianship of titles of public land (former official mailo) covering an area of over three thousand square miles in the hands of a private company which has one shareholder was equally unnecessary and constitutionally untenable especially as under Article 246(3)(a), the traditional leader could exercise his constitutional right to apply and obtain land, assets, or other properties of importance to the cultural institution he leads.

That property, if land, would be registered in the cultural leader’s name as corporation sole and hold it in trust for itself and the people concerned.

Such land could be cultural burial sites, official residences or headquarters of the cultural institutions. In similar vein the Bataka clan heads who are culturally corporation sole in their own rights could also apply and obtain land titles on the cultural clan land, under the corporate name of that clan head.

This is the dignified constitutional way forward.

The conclusion is inescapable.

The re-introduction of the private mailo by the 1995 Constitution reversed the gains of decades of struggle of bibanja holders for security of tenure.

This matter must be hammered on the head by the recently appointed constitutional review commission. To whom much is given, much is required.

The author is a senior partner at Kampala Associated Advocates