Opinion: Continued emphasis on security of occupancy for bibanja holders is unconstitutional
The Constitution provides under article 237 (8) for security of occupancy of bibanja holders on mailo land, freehold or leasehold land to enjoy security of occupancy immediately on coming into force of the 1995 Constitution.
Parliament was however obliged under article 237 (8) to within two years after the first sitting of Parliament elected under the 1995 Constitution, to enact a law regulating the relationship between the lawful bibanja holders of land and the registered owners of that land; providing for the acquisition of registrable interest in the land by bibanja holders.
However the 1998 Land Act and all subsequent amendments of that Act have all been about relationship issues between bibanja holders and landlords, all touching only on security of occupancy and none providing for the acquisition of registrable ownership rights interests in the land.
Security of occupancy was provided by the Constitution as a mere interim measure pending the enactment of the Land Act after two years of coming to force of the 1995 Constitution.
The Constitution envisaged that the Land Act to be enacted would enable a Kibanja holder to acquire ownership interest in his own land and obtain ownership with security of tenancy in perpetuity.
The Constitution did not envisage that some of its own citizens would remain mere occupants, squatters or serfs on land that they owned before the onslaught of the injustice created by the 1900 Buganda Agreement that enriched the chosen few.
The Constitution provides for equal treatment before the law (Article 21) and this mitigates against the notion that people rendered mere occupants over decades should remain serfs on their land in the central region while their counterparts in the rest of the country continue to enjoy security of tenure holding land in perpetuity under customary or freehold tenures.
It accordingly stands to reason that in so far as the Land Act 1998 as amended continues to emphasize security of occupancy as oppose to security of tenure, the bibanja holders continue to suffer unconstitutional treatment in violation of the fundamental rights to ownership of property guaranteed to every citizen of Uganda.
The Land Act and subsequent amendments thereto have not attempted to enhance security of tenure as recommended by the Odoki Constitutional Report which was the foundation of the 1995 Constitution.
The current Land Act is in contravention of Article 237(9)(b) in so far as it did not enable a Kibanja holder to acquire a registrable interest in land that could be held in perpetuity like other tenure systems recognised under article 237 (3) of the Constitution.
It must be emphasized that according to article 237 (1) all land in Uganda belongs to the citizens of Uganda and vests in them in accordance with the land tenure systems provided for in article 237 (3) of the Constitution.
The current Land Act 1998 and amendments made thereto have merely attempted to create permanent occupancy interests on registered land for the bibanja holders which has resulted into a deadlock between the statutory tenants (lawful occupants and bona fide occupants, i.e. bibanja holders) and the registered landowner (mailo, native freehold, leasehold owner), considering that the landlord is still allowed under the law to evict the kibanja occupant under certain circumstances.
It is therefore imperative that amendments to the Land Act 1998 notwithstanding amendments already made thereto, be put in place to comply with the constitutional command of article 237 (9) (b) to provide for registrable interest of bibanja holders.
Within the context of article 237 (1) and (3), that registrable interest can only be anyone of the four tenancies stated in article 237 (3).
The reform process shall include granting a kibanja holder with a freehold title from the Government to hold the land occupied by him in perpetuity.
However the former landlord of such land shall be compensated in terms recommended by the Odoki Constitutional Commission or other subsequent studies on the subject.
The author is Minister of State for Lands
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