Opinion: Tackling land disputes in the lost counties

I want to say at once that the 1995 constitution clearly provides for security of ownership of land for all Ugandans.

There is no room for unlawful activities to flourish when the law for peaceful utilization of land is so well settled. The constitutional provisions on land are well set out in article 237 of the constitution.

Article 237 (1) provides clearly that all land belongs to the citizens of Uganda and vests in them in accordance with the land tenure systems provided for in the constitution.

Article 237 (3) provides for four tenure systems namely: customary, freehold, Mailo and leasehold. A reading of article 237 (4) (b) and 237 (5) shows that all land tenures end up as freehold. This shows that the constitutional intention is for all Ugandans to enjoy security of tenure in perpetuity.

Article 237 (8) provides for a category of citizens who are lawful or bona fide occupants holding land on mailo, freehold or leasehold.

The local language for these occupants are either “bibanja, basenze or bafulusi” or other term depending on the local area dialect. The constitution provides these people with security of occupancy on the land they occupy and possess as indicated in article 237 (8).

The constitutional guarantee of security of occupancy to all citizens who are bibanja holders (legal or bona fide occupants) is secured under article 2 (2) whereby any law or custom inconsistent with the constitution is to the extent of the inconsistency be void.

Therefore any law which pages the right of security of occupancy to any conditionality be it payment of busulu (rent) or prior consultation by a kibanja holder by sale as provided in the 1998 Land Act as amended from time to time are invalid in as far as those provisions clot the constitutional right of occupancy to conditions not provided in the constitution.

Conditionalities in a legislations cannot over ride constitutional provisions. Those provisions in the 1998 Land Act (as amended) are therefore null and void to the extent of the inconsistency with the constitution.

It follows therefore that all criminal charges against bibanja holders are a nullity and no kibanja holder can be charged for trespass. No one can be a trespasser on his own land possession more so when occupancy on that land possession is guaranteed by the constitution.

Consequently all those bibanja holders charged and convicted have been convicted in vain and if they are serving any prison sentence they should release forthwith.

Those who charged them and those who imprisoned them must bear liability personally and not throw it to the state claiming vicarious liability.

Those still under charges of trespass on their own bibanja, those illegal and unconstitutional charges must be withdrawn immediately and those who preferred the charges against them and those who entertained the charges must bear personal liability.

Government cannot bear liability for its errant officers who act unconstitutionally and do so on frolics of their own. The prosecution and judicial department must be cleansed of these ineptitudes who cause misery to the citizens and yet are paid to serve.

It is because of this state of affairs that His Excellency the President exercising his powers under article 99 (1) and 99 (3) of the constitution, issued two directives:

• The first one on 22^nd February 2013 directing:
• That evicting bibanja holders must stop;
• Those who do evictions to be prosecuted;
• Government to assist bibanja holders who have been evicted to go back to their bibanja.
• The second one issued on 28^th February 2022:
• That all court orders evicting bibanja holders be subjected to the scrutiny of the RDC/RCC within a security committee chaired by the RDC/RCC;
• That thereafter the committee sends the court order to the Ministry of Lands, Housing and Urban Development for further guidance;
• That if with the above in place and evictions are still carried out, members of the security committee will be held accountable.

In view of the above the person or persons to be charged with trespass is the title hold of either mailo, freehold or leasehold. He is the trespasser because he is not in possession. The security of occupancy is to the kibanja holder and not him.

It is surprising therefore that the prosecutors and courts leave in freedom the real criminal i.e. the title holder who is trespassing the kibanja holding and charge the innocent kibanja holder living on his kibanja and going above his businesses in peace and quiet enjoyment of his kibanja.

Therefore those who have left free the title holders who are the real trespassers and charged and convicted the innocent bibanja holders must be brought to book and bear liability personally.

I want to point out that there is no constitutional provision that a kibanja holder to enjoy his kibanja, the titled holder of either mailo, freehold or leasehold must first be compensated by Government buying off his title interest.

This is just loose talk. The constitutional guarantee of kibanja holder’s occupancy holding under article 237 (8) does not depend on government buying the land from a mailo, freehold or leasehold title holder and then in turn give title to the kibanja holder.

This loose talk has led many people speculating in land to obtain fake titles in the hope of selling it to government which in turn gives out titles to the mailo, freehold, leasehold bibanja occupants.

Thus the cries are getting loud and louder for government to put money in the land fund to pay off these mailo, freehold, leasehold title holders.

This loose talk is constitutionally unfounded because the right of a kibanja occupant in article 237 (9) to get a registrable interest which in light of article 237 (1), 237 (3), 237 4 (b) and 237 (5) must be a freehold title is not conditioned on government buying land from the mailo, freehold, leasehold title holders and then make titles to the bibanja occupants.

The question of how the title holders of mailo,  freehold and leasehold will be handled after the constitutional rights of bibanja holders have gotten their rights under article 237 (9) is for Parliament to determine when passing the appropriate law which have should been in place within two years after the sitting of Parliament elected under the 1995 constitution.

The law is long overdue but government should not be stampeded into pouring money to the land fund which is not the envisaged mode in article 237 (9) of the constitution.

It should be noted that even where an individual is holding a title either as a mailo, freehold, or leasehold there can be no compensation if that title was issued in the following circumstances:

• A title is void under section 59 (1a) of the Land Act and liable for cancellation under section 91 (2) of the Land Act if:
• Issued by the District Land Board or Uganda Land Commission in a wetland or forest or under circumstances indicated in article 237 (2) (b) of the constitution and section 44 (1) of the Land Act;
• Issued by the District Land Board when that land under section 59 (1) (a) is occupied or owned by some person or authority. This means any land occupied by bibanja holder is not available for allocation and if such a title is issued it is void under section 59 (1a). The same applied for land owned by government, local government or any other person or authority. Such titled are liable to be cancelled under section 91 (2) of the Land Act.
•  Titles are null and void if a title is issued on top of another title. Under section 59 and 176 of the Registration of Titles Act prior in date of registration is one which is valid. Any other titles on top of a running title registered prior in date to the first one is invalid.

The all country must take note of the fact that the issue of absent landlords is not provided for under the Land Act.

However under the law of limitations, the interest of an absentee landlord can be vanquished when a person occupies the land undisturbed for 12years.

So if there are persons who have been on land for 12 years and they have never been disturbed by the absentee landlords, the said persons can apply to court for an order of adverse possession by proving the following; that they occupied the land for 12 years; their occupation was without the consent of the landlord; the land lord has not disturbed them for the last 12 years and they intended to take the title of the land lord.

Under this provision of the law bibanja holders on the so called absentee landlords can apply to court and obtain titled ownership of the land they occupy.

We have noted that many bibanja holders and even titled land owners have lost their land to moneylenders fleecing people of their property.

Not should be taken that any moneylender must conform to the tier 4 Microfinance and moneylenders Act of 2016. He must incorporate a company and obtain a license from the Uganda Microfinance Regulatory Authority (UMRA).

Other conditions include execution of the legal or equitable mortgage governed by the laws governing mortgages in Uganda. Any moneylending contract which does not follow these guidelines is invalid and unenforceable. It is void.

Since most of our people are illiterate, the law provides that every agreement signed by an illiterate person must be translated to the person in the language they understand and the person who translated it must indicate at the bottom of the government that same had been translated. If the agreement is not translated it is null and void.

In any case, whatever the case maybe all agreements concerning land must be in writing and witnessed by practicing lawyer. It is therefore important that people don’t draft land agreements without guidance of a lawyer.

The parties must always sign by first writing their names in full and then appending their signature. Ensure that before selling land, the consent of the legally married wife is obtained. Those who buy land must carry out due diligence.

In view of the above constitutional provisions, presidential declarations and legal position. I take liberty to declare the following as a way forward:

• All legal or bona fide occupants by whatever local name called i.e. bibanja holders, basenze, bafuluki convicted on trespass charges i.e. trespassing on their own land, must be released forthwith. Liability must be personal to these who charged or convicted them;
• Those legal or bone fide occupants (bibanja, basenze, bafuluki etc.) currently charged for trespass must have those charges withdrawn forthwith. Those who arrested, charged or imprisoned them must bear liability personally;
• All land titles in wetlands, forests or other reserved areas are hereby cancelled in accordance with the law quoted hereinabove and avoid depletion of CFR and wetlands enjoying political protection;
• All titles made prior to the first title are cancelled in accordance with the law herein quoted;
• All individuals claiming ownership of land titles in the so called lost counties (Buyaga, Bugangaizi) since 1964 must be returned to the Ministry of Lands, Housing and Urban Development to be reviewed along with the Administrator General to ascertain the genuineness of the title deeds, the letters of administration, the certificates of no-objection and authenticity of a current proprietors. The forgeries in this area are too many to be allowed to go and checked. This vetting exercising will where applicable be a condition precedent to any compensation of a claiming title holder.
• We shall seek the guidance of the Attorney General so that the issue of absentee landlords be brought to an end through the current occupants exercising their rights of adverse possession in accordance with the Limitation and Registration of Titles Act.
• That all lands currently lined up for compensation belonging to so called absentee landlords be tasted again on the ground to avoid suspicious tendencies of original Banyoro and new Banyoro over land ownership. In addition to weeding out suspected absent land grabbing targeting compensation.
• That where titles are being given out original Banyoro be given first priority to get titles without prejudice to constitutional right of occupancy, right of access to adverse possession rights and any other rights of other “babibanja, basenze or bafuluki” as the case maybe, as these rights accrue to all Ugandans as per the constitution.
• All moneylenders must clear their practice with RDC to avoid incidents where locals have been fleeced of their land. RDC to ensure that the law of literacy is complied with in all moneylending and land transactions.

The author is state minister for Lands. This is an abridged version of the speech he delivered on August 18 when he met up with communities  in the so- called lost counties of Buyaga and Bugangaizi to discuss  how  to solve the decades long unsolved land ownership issue.