Opinion: The struggle to end the 122 year old Uganda land question
Calamity befell that area of Uganda original covering three counties, expanded to twenty through the 1900 Buganda Agreement curving it out as the first province of Uganda.
The leadership of the original three counties had collaborated in the colonisation of Uganda and still essential for the pacification, first of the seventeen counties newly conscripted into the first Province and the conquest of the other three Provinces.
The calamity was in the form of a paradigm shift of land ownership, where Clan heads lost their trusteeship of land on behalf of their clans, to a position where land would be bought or sold like any other commodity.
It was this commodity-the chunks of land grabbed and given away to collaborators. The chunks were neither surveyed nor did they have any known tenancy category.
It was the 1908 Land Law which categorised them into two tenancies-mailo and official mailo. The official mailo and crown land was publicly owned. The mailo was private ownership in perpetuity with the right to disposal of it through sale or gift.
Neither the 1900 Agreement nor the 1908 Land Law created any rights for bibanja, neither security of tenure nor formal recognition. Instead bibanja holders became tenants at the mercy of the mailo landlords who could evict them without reprieve.
The 1920s saw bibanja agitations calling for the abolition of 1900 Agreement and took strike action of not growing cash crops which hurt the colonial treasury.
It became clear to the colonialists that an injustice had been committed in 1900 Agreement where only 3700 people out of 1,000,000 had been given land.
The result of this bibanja agitation was the Busuulu and Envujo Law which assured the bibanja of security in the occupation of their plots and freed them from the fear of arbitrary eviction.
The Busuulu and Envujo was fixed at 10 shillings per annum and was never revised until 1975 when it was abolished under the Land Reform Decree. By this time, the busuulu had become of more symbolic rather than of economic value.
Mukwaya writing close to thirty years of passing the 1927 Law posited "it is rare for courts to grant orders of eviction against tenants who fail to pay busuulu or envujo.
Any dues in arrears are legally considered civil debts, which are recoverable in the usual manner." Therefore even the non-payment of busuulu was not ground for eviction.
There was no significant land reform from 1928 to 1975.
Unfortunately the Idi Amin Land Reform Decree which converted Mailo land titles into conditional leases did not have in its vision emolument of bibanja holders in land development of the Country. The Land Reform Decree largely remained a dead letter.
The land question was in limbo until the 1995 when the constitution restored the mailo tenure and also recognised the legal interests of kibanja holders on land titled under mailo, freehold or leasehold.
It guaranteed security of occupancy to bibanja holders under article 237 (8) and a constitutional undertaking for bibanja holders to obtain land titles under article 237 (9) (b). This was to be within two years of coming into force of the 1995 constitution.
However the 1998 Land Act and subsequent amendments thereto did not implement the constitutional guarantees to bibanja holders. Instead the bibanja holders remained tenants essentially at will.
They can and indeed are being evicted Willy nilly. The solution is not in courts of law which regularly issue eviction orders. Sometimes whole villages are brutally evicted and their property destroyed.
The president exercising powers conferred upon him under article 99 (1) and (3) of the constitution has in recent past issued Directives to protect the constitutional rights to security occupancy of bibanja holders.
These directives have included a ban of all evictions, prosecution of all those involved, including offering Government support to those evicted, to be brought back to their bibanja.
Implementations of the recommendations of the Lady Justice Catherine Bamugemereire’s report are expected to strengthen the President’s drive in answering the land question.
The principles of adverse possession as given in the Limitation Act and Registration of Titles Act if applied can offer immediate solution to bibanja owners in the former so called lost counties of Buyaga and Bugangaizi.
The Restitution of Properties to Traditional Rulers Act of 1993 should be brought into conformity with the constitution pursuant to article 274 (1) in order to eliminate ambiguity of land ownership and administration in the country.
Time is up to the 122 year land question. Land is property per excellence. There is now an opportunity to address the issue squarely so that bibanja holders can become truly liberated.
There cannot be dual interests of kibanja, and mailo or any other titled holder existing side by side on the same piece of land.
It is in this scheme of things that the drive of President Museveni to give the final solution to the decades old land question must be supported and applauded.
The author is the Minister for State of Lands.
