Evolution of Bibanja holders on public land to freehold titles

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Evolution of Bibanja holders on public land to freehold titles
Sam Mayanja

By Sam Mayanja

Bibanja holders who after the 1900 land give away bonanza, found themselves on either crown land managed under the Crown Land Ordinance of 1903 or Official Mailo Estates under the Official Estates Ordinance of 1919 were outside the busulu and envujo law of 1928 which set out the management of bibanja holders on private mailo.

The bibanja holders on crown land were as per Crown land’s Ordinance issued with a licence allowing them to settle on crown land at a licence fee of one  shilling per acre up to a maximum of five acres.

The colonial administration was not enthusiastic to collect the payment, and with time it withered away. Bibanja holders therefore on public land ended up not paying anything with no negative legal consequence.

The 1962 constitution, placed the Administration of Public Land in Uganda pursuant to Article 118 of that Constitution under three public entitles.

For the whole of Uganda, the Uganda Land Commission, for each federal state or Kingdom, a federal Board, and for Districts, a District Land Board.

The Public Land Ordinance of 1962 under section 12 vested all crown lands in Buganda Kingdom, in the Buganda Land Board (not the current Buganda Land Board Limited which is a private company) in freehold. All crown land outside Buganda, were under section 13, of the 1962 Public Lands Ordinance, vested in freehold under Land Boards of the District in which the land was situated.

The public land under official mailo reminded under the Official Estate Act since the official mailo offices were under the 1962 constitution public offices.

The 1966 “pigeon hole” constitution under Article 113 sub-section 1(a) and (b) maintained public land under the same management as had been stipulated in the 1962 constitution.

Under Article 113 (7) of the 1966 constitution, the Land Board of a Kingdom or a District was to hold and manage, “for the benefit of the people of the Kingdom or District”, any land

vested in it by any law.

The 1967 constitution, however, under Article 108 (5) vested Public Land which, under the 1962 and 1966 constitutions were under Federal or District Land Boards, into the Uganda

Land Commission. Also vested in the Commission was official mailo previously public land held under corporation sole by virtue of the Official Estates Act.

The 1969 Public Lands Act which operationalized the provisions of the 1967 constitution regarding Public Land, vested under section 1 all rights, titles, estates and interest in land and all other rights, claims, obligations and liabilities previously under the District or federal/Kingdom Boards into the  Uganda Land Commission. They were so vested “for the same estate or interest and to the same extent as they were previously vested”. In other wards that land remained public land.

The kibanja holder under crown land and official mailo under Official Estates Act, became known as customary tenants under the 1969 Public Lands Act. The customary tenants were under section 25 of the Act, conferred a right to apply to the controlling authority and be granted a leasehold estate “in the public land occupied by them at the time of such application”.

Accordingly, the kibanja occupants on crown land and official mailo unlike their counterparts on private mailo maintained under Article 126 (1) of the  1967 constitution, had by the 1967 constitution as operationalized by the 1969 Public Lands Act, advanced to the titled rank of leasehold.

The 1975 Land Reform Decree, converted freeholds and mailo ownership to leaseholds. All titles to land were vested in government in trust for the people of Uganda. The radical

title being with the state, there would be no individual of any registrable interest greater than a leasehold.

The 1995 constitution abolished the 1975 Land Reform Decree State ownership of land. Land is now owned by the citizens of Uganda under tenure systems which are provided under the constitution. The bibanja holders on public land who had become customary tenants under the 1969 Public Land Act and obtained leaseholds on the public land they occupied, are by Article 237 (5) conferred a right to convert their leaseholds to freeholds.

Accordingly, under the 1995 constitution, the kibanja holders who by accident of history, found themselves by virtue of the 1900 occupants on public land are now titled holders of freehold land with security of tenure in perpetuity.

The kibanja holders on the other hand who found themselves by virtue of the same 1900 agreement on the side of those who occupied private mailo land continue to be untitled. They are by virtue of Article 237 (8) of the 1995 constitution, lawful or bona fide occupants and not tenancy titled holders. Their constitutional guarantee is that of occupancy and not land tenure provided for all Ugandans under Article 237 (1).

The salvation of the bibanja holders to advance beyond security of occupancy to tenure, lies with Parliament to enact the law under Article 237 (9) (b) which will enable them to acquire registrable titled interest in freehold land with security of tenure in perpetuity.

Dr. Sam Mayanja

smayanja@kaa.co.ug

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