Since 1900, commoners have had to fight for their land occupancy rights. After dividing the mailo, the leaders of the day raised no finger as the colonists declared the rest of the land ‘crown land’.
By this stroke of the pen, the colonialists became holders of the radical title, and all land users became, tenants of the British.
As holders of the radical title, the colonialists proceeded to grant a limited number of freehold estates to selected individuals and corporations, and by virtue of political sovereignty, asserted the right to control the management and use of land in Uganda.
They however delegated the control of mailo to the mailo landlords.
The mailo landlords exacted heavy taxes in the form of Busuulu and Envujo on the bibanja holders who in protest threatened to stop growing cash crops.
This threat would undermine the production of export crops thereby diminishing the colonial states revenue base. Consequently their grievances were addressed by the passing of the Busulu and Envujo law, 1927.
The law assured them of security of tenure and freed them from the fear of arbitrary eviction.
Upon independence in 1962, the mailo system was retained including Busuulu and Envujo Law and all former crown lands became public land under the Public Land Act, 1969 enacted to govern its management.
The official mailo being public land had already been placed under the Commission by the 1967 Constitution.
In 1975, however, Idi Amin issued “the Land Reform Decree” declaring all land public land, vesting the same in the State to be held in trust for the people Uganda and administered by the Uganda land Commission.
The decree abolished the Mailo tenure, the Busuulu and Envijo Law, effectively removing the security of tenure guaranteed by the 1927 Busuulu and Envijo Law.
When in 1986 the NRM administration took power, it vowed to correct all historical injustices. This was interpreted by the mailo landowners as the return of their rule.
They demanded economical instead of nominal rents from Bibanja holders, and demanded for a restoration a Buganda Kingdom with political power, chiefs, and land-hence the call for federo, special status.
This delayed the restoration of security of tenure taken away by the 1975 Land Reform Decree. The situation was aggravated by the Kabaka’s call to the Baganda to stop selling land.
Many non-Baganda had bought mailo and bibanja. They saw this as a move against them.
This heightened ethnic tensions, which thankfully culminated into a major land reform enshrined in the Constitution of the Republic of Uganda, 1995 and the Land Act Cap 227 enacted in 1998.
The 1995 Constitution repealed the 1975 Land Reform Decree, and vested all land to the citizens of Uganda, under four land tenure systems namely customary, leasehold, freehold and mailo.
The Land Act Cap 227 operationalises all constitutional reform relating to land and provides a framework for the management of land under a decentralised system.
The constitution was the first document ever to recognise customary land holding as a land tenure system in Uganda.
It guaranteed the security of land ownership of the majority of Ugandans who hold land under customary tenure.
The Constitution provided that customary tenants could acquire certificates of customary ownership which they could convert to freehold titles.
The Land Act Cap 227 reiterated these provisions.
Another radical provision of the constitution and the Land Act was the recognition of the rights of tenants namely, legal and bona fide occupants, on mailo land with security of occupancy.
A ‘legal occupant’ is the one who occupied land by virtue of the repealed Busuulu and Envujo Law of 1927 (kibanja holder) or who had entered the land with the consent of the registered proprietor.
A ‘bona fide occupant’ on the other hand, is anyone who had occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more.
Bona fide and lawful occupants may only be evicted from registered land on grounds of non-payment of rent and only by order of court.
However, the rent payable is nominal, non-commercial in nature, and is to be determined by the District Land Boards with the approval of the Minister.
It is important to recognise that there was no public land to be returned to the institution of a traditional or cultural leader as a corporation sole following the vesting of all land in the citizens of Uganda and also conferring ownership on customary tenants on former public land by the 1995 constitution.
A cultural leader can however as a corporation sole like any Ugandan, juridical or natural, can acquire and own land under any four tenancies.
The cause of current illegal evictions in Uganda therefore, is not the lack of laws protecting Bibanja or other untitled occupants.
It is therefore within this scheme of things, that one of the core challenges of President Museveni in his fresh term, is to consolidate the security of tenure for all Ugandans in perpetuity.
The author is a Senior Partner at Kampala Associated Advocates