The Restitution Act, 1993 was only sound and fury signifying nothing. The mischief intended to be corrected was a perceived historical injustice visited on the Traditional Rulers by the 1967 Constitution alleging confiscation of their properties and therefore justify restitution.
Still suffering from the hangover of the pre-independence Buganda special statusism, the Act provided that in the case of Buganda the assets and properties which were specified in the schedule to the Act, were to vest in the traditional ruler of Buganda.
The 1967 constitution however did not confiscate any property belonging to Traditional Rulers. On the contrary article 108 (5) of 1967 Constitution only vested public land which under article 118 (1) (a) and (b) of the 1962 Constitution had vested in the Land Board of a Kingdom/Federal or of a District Board into the Uganda Land Commission.
The Federal States were defined in article 2 (2) of the 1962 constitution as the Kingdom of Buganda, the Kingdom of Ankole, the Kingdom of Bunyoro, the Kingdom of Toro and the Territory of Busoga.
The Districts on the other hand were defined in article 2 (3) as Acholi, Bugisu, Bukedi, Karamoja, Kigezi, Lango, Madi, sebei, Teso and West Nile.
The 1967 constitution abolished federal creating Districts as the only units of administration under article 80 (1), these were Acholi, Ankole, Bugisu, Bukedi, Bunyoro, Busoga, East Mengo, Karamoja, Kigezi, Lango, Madi, Masaka, Mubende, Sebei, Teso, West Mengo and West Nile.
Accordingly when article 108 (5) of the 1967 Constitution vested public land from District Land Boards and Kingdom/Federal Boards to Uganda Land Commission it was giving effect to the now one uniform administrative Unit of Uganda-Districts.
It was public land under the 1962 constitution, administered either under a Federal/Kingdom or a District Board which got vested in the Uganda Land Commission and not properties of traditional rulers.
The first traditional ruler of Buganda gifted with personal properties known as mailo tenure was Sir Daudi Chwa.
On his death his properties were distributed to his children. Edward Mutesa who at the time of the 1962 Constitution was the traditional ruler of Buganda Kingdom/Federal Unit as defined under Article 2 (2) of the 1962 Constitution, had been one of the children of the late Daudi Chwa, and obtained his share as bequeathed to him by his father.
When Edward Mutesa died, his properties reverted to his estate and distributed by the Administrators of that estate. Ronald Muwenda Mutebi the current traditional ruler of Baganda as defined in article 246 (1) and (3) of the 1995 constitution received his share as a son of the late Edward Mutesa.
The properties of the Traditional Rulers were exclusively mailo and the 1967 constitution article 126 (1) preserved the mailo tenure in the Districts of Bunyoro, East Mengo, Masaka, Mubende, and West Mengo which were the former Federal/Kingdom mailo areas of Uganda. Mailo was never confiscated.
It was the 1975 Land Reform Decree which confiscated the Mailo, turned it into 99 year old leases and vested it in the Uganda Land Commission.
Abu Mayanja (RIP) who was the Attorney General of the day, while presenting the 1993 Restoration Bill, told Parliament that since the 1975 Decree had converted the mailo into 99 year leases, for properties to be returned to Traditional Rulers it had to revert to its mailo status. In the words of the learned Attorney General “the effect of that will be that the land will revert to its mailo tenure status. That means what the Traditional Rulers will get mailo which is now a 99 year lease as provided by the Land Reform Decree 1975”.
Clearly then the 1993 Restitution Act was not about the 1967 constitution transfer of public land from District and Kingdom Boards, which property had never belonged to Traditional Rulers but mailo which had been preserved under article 126 (1) of 1967 Constitution but confiscated by Idi Amin’s 1975 Reform Decree, turned into leasehold and transferred to the Uganda Land Commission.
The Attorney General had explained that: “I want to explain to the house that the land which was taken away was mailo land-it was subject to mailo land tenure and statute in force at that time. When that land was confiscated it was vested in Uganda Land Commission”.
The 1995 constitution and the Land Act cap 227 decentralised land Administration functions from Uganda Land Commission to the District Land Boards and Area Land Committees. The public land which was vested from District Land Boards and Kingdom/Federal Land Boards under article 108 (5) (b) to Uganda Land Commission is now with District Land Boards-none of it is mailo. It cannot by any legal engineering be under the Administration of Buganda Land Board Limited- a private Company.
Clearly the 1993 Restitution Act was dead on arrival. It stands alone in the legal wildness, where any action by whatever name called, claiming to derive authority or legitimacy from that Act is a nullity and of no consequence contriving article 2 of the 1995 constitution.
Hon. Dr. Sam Mayanja
Minister of State for Lands
