The bibanja “ebyaffe” is a constitutional right. Articles 237 (8), and 237 (9) sets out to correct the historical injustices they have suffered for decades.
Article 237 (8) guarantees them security of occupancy as, an interim measure, pending the attainment of full “ebyaffe” when two years after the first sitting of Parliament elected under the 1995 Constitution two things would happen:
A law would be put in place regulating the relationship between the bibanja holder and titled landlords and under 237 (9) (b) a law would be put in place providing bibanja holders with guaranteed perpetual registrable interests in land under freehold title.
This is the final “Ebyaffe” for bibanja holder.
It baffles why Parliament elected after the 1995 Constitution not to pass the bibanja “ebyaffe” legislation. Parliament instead enacted the 1998 Land Act which circumvented the “ebyaffe” in articles 237 (8), and 237 (9).
The “Ebyaffe” involves giving freehold titles to bibanja holders on mailo, freehold, and leasehold as set out in Article 237 (8). It is freehold titling because Article 237 (1), (3) and the conversion provisions of a leasehold to freehold in article 237 (5) and customary tenure to freehold under Article 237 (b) all indicate freehold titling as the ultimate goal.
That goal is for all citizens to enjoy one registrable security of tenure in freehold. A single tenure for all Ugandans with registrable interest in perpetuity is the “ebyaffe”.
The calls for compensation to title holders from where the “ebyaffe” shall be obtained means a payment of a lump sum that is an equivalent of the legal interest of the title curved out the landlords’ holding.
This is either the nominal ground rate receivable by the title holder or the monetary value of the production activity receivable by the kibanja holder, enjoyable or realizable in perpetuity.
In land valuation terms perpetuity means a maximum of 15 years. If we use a capitalization rate (yield) of 8%, it would mean the titled landlords’ compensation has long being lost through the influential of time.
It means that busulu or rental payment ceased in 1943! In fact the average valuation practice of capitalisation rate or yield of 11% common in Uganda valuation practice is used, perpetuity would only be nine (9) years.
Taking nine (9) years as perpetuity, a landlord title holder who has exploited the kibanja occupant through four generations of grandfathers, for over one hundred and twenty years, would therefore find the compensable quantum calculated in perpetuity to be zero.
It must be recognized that the annual busulu that was fixed a century ago was an amount of ten (10) shillings. Rental review was not provided for, whether there was appreciation in land value or not.
Taking this to its logical conclusion-the bibanja holders would after the nine years perpetuity valuation period, occupy the kibanja without any disturbance of busulu payments.
The mailo owner’s right to busulu was to expire after the perpetuity valuation period of nine years.
In this scheme of things, a titled land owner part of which shall be taken up by “ebyaffe” under Article 237 (8), is entitled to no trillions, no compensation.
Even when computed over the century long period of historical injustices, the titled landlord’s share amount to nothing, as the compensation would have been limited only to a lump sum arising from the landlords’ legal interest of ten (10) shillings, or using the current Land Act, arising from the annual ground rent (busulu) acknowledged by the District Land Boards.
The current practice of valuers putting some kind of apportioning of compensation amount between the bibanja holders (project affected persons-PAPs) is irregular.
It apportions, 60%-70% to bibanja holder while 30%-40% is given to the titled landlord.
This practice only means that landlords have been receiving much more than their legal interests. It is a scheme which has been cheating the kibanja holder.
With the NRM Government fully committed to ensuring registrable security of tenure for every citizen, compensation to landlords should only be an equivalent share of their interests.
As of today, fair and adequate compensation to titled landlords would be in a ratio that is of equivalent, or equal to the ratio of the nominal ground rent to the net income from an acre parcel of land that prevailed during the colonial period or a lump sum arising out of the amounts at a ground rent acknowledged by the District Land Boards. It can therefore not be a compensation in the trillions being tossed around, rather it has to be zero.
In this scheme of thing, the magnanimity of the NRM leadership under President Museveni, shall have to be stretched to the limit, to find a formula on which a compensation value can be calculated-which formula may only be possible if based on compassionate grounds.
The author is minister of state for Lands