LAND TENURE SYSTEMS IN

UGANDA
 There exists various landholding systems in Uganda both in
history and to date.
 These systems are not static but they keep evolving. They
include:
 Customary tenure
Mailo tenure
Freehold tenure
Leasehold tenure
Customary Tenure
 Before the advent of colonialism there was no single tenure
for Uganda.
 Customary tenure under which individual ownership is not
absolute was dominant.
 Customary systems were not universal. They differed from
one community to the other.
 That notwithstanding, there are some basic characteristics
of customary tenure that cut across many if not all
communities in Uganda.
Cont’d
 Land was regarded as a common heritage. For both the
present and future generation
 Initially when there was surplus land, rights were more
defined for groups than for individuals.
 Within the groups, individual or family rights rested
elaborate traditions or customs which served to enforce
group control over the use and disposition of land.
Cont’d
 Because the community endures beyond the lifetime of one
individual, the concept of community tenure carried with it an
obligation to future generations as well.
 The individual right to possess and use land subject to
control by the family and community was however
recognized and all this was weaved into a framework of
multiple rights in land.
Cont’d
 The individual could utilize his land as he thought best, could
lend it out for temporary purposes.
 Disposal of the land was strictly in accordance with the
customary rules of the area.
 The community as a whole exercised rights of access to
water, grazing, natural vegetation.
 The community’s authority was vested in kings, chiefs and
clan heads.
Cont’d
 The clan or family had the following rights or roles to play:

To settle disputes within the area of control.

The right to buy any land offered for sale by its
members.
Prohibit sale of clan land to undesirable persons and
declare void any land transaction which had not
received its approval.
Cont’d
 Generally customary land was not titled or recorded.
 In the kingdom areas, special land rights had evolved to
semi-feudal status.
 In Buganda, land was by and large held by the kabaka on
behalf of and in trust for the people.
Cont’d
 The kabaka undermined the power of the clan heads and
appointed chiefs of various grades who had both
administrative and millitary duties.
 In return chiefs also got the right to use land and produce of
the peasants under them.
Cont’d
 There were four categories of rights of control over land:
1. Obutaka( Rights of clans over land)
• The heads of clans in Buganda were known as the Bataka.
• They held particular land deemed to be ancestral where the
head of the clan had a right to reside.
2. Obutongole ( Rights of the
kabaka and chiefs)
 The king held paramount title in all the land which he granted
to his great chiefs and lesser chiefs.
 The rights so acquired were called Butongole rights and
were as good as long as one was in office, ceasing with
termination from office.
 The land was not bequeathable to the heirs of the chief.
3.Obwesengeze( Individual
hereditary rights)
 These were individual rights over land stemming from long
and undisputed occupation or original grant by the king.
 They could be acquired by a chief or individual tenant.
 This type of tenure carried no political duties.
 This land could also be inherited.
4. Kibanja (Peasant rights of
occupation)
 The ordinary people (Bakopi) formed the majority of the
population and were free to choose a chief under whom to
live from whom one could get a piece of land for his
undisturbed occupation.
 Such rights could be passed on to heirs and entailed full
usufructuary rights.
 The chief would guarantee him security and general
welfare.
Cont’d
 In turn the peasant was to respect his chief, render him
some tribute and occasionally work for him and being called
upon for millitary service whenever need arose.
 The tenant could be evicted by the chief at any time.
 His right of tenure depended on correct social and political
behaviour.
Customary tenure in Colonial and
Post-Colonial Uganda
 Under the British Protectorate administration, all land in
Uganda except mailo was crown land.
 Customary land was recognised but within limits.
 Crown Lands Ordinance of 1903 made customary land
crown land., vested in her majesty the Queen of England.
 The land occupied under customary tenure was regarded as
unalienated crown land.
Cont’d
 Under S.33 of the Crown Lands Ordinance, 1903, the
governor had the power to sell or lease such land to any
other person.
 The only right the customary tenants had was to remain in
occupation until arrangements were made to re-allocate
them some other land.
East African Royal Commission
of 1955
 This commission recommended registration and
conversion of customary land into freehold but it
remained vested in the state.
 During this period those in power were pre- occupied with
development using land as a tool.
 The commission’s recommendation was seen as one of the
best ways to boost investment and development, prevent
sub-division of land and also support progressive farmers.
They wanted individual ownership not communal.
 The Public Lands Act, 1962
 The legal status of customary land tenure remained the same even
after Uganda became independent
 Under s. 22 of the Public Lands Act, Customary land could still be
leased or sold without the consent of the of the occupier.
 Customary tenants were tenants at will of the government with no
legal protection against eviction.
Cont’d
 Compensation would only be made for improvements and
crops on the land and not the land itself.
The Public Lands Act, 1969
 This Act introduced the requirement of consent of the
customary occupier before his land was alienated. ( s. 24)
 Persons applying for grant of public land had to state
whether or not land had been occupied by a customary
tenant and whether they had freely consented to the
proposed alienation.
Cont’d
 The Act also gave customary tenants a right to apply for a
lease over land they occupied.
 Paul Kisekka Saku vs Sda church
The Land Reform Decree,1975
 The decree declared all land in Uganda public land and
vested it in Uganda Land Commission to manage it on behalf
of the state.
 Bibanja holders or customary tenants became “tenants at
suffrance” on public land. (s.3(1).
 The Uganda Land Commission could lease to another
person any land occupied by a customary tenant without his
consent.
Cont’d
 They could be evicted by lessee’s who required the land for
development purposes subject to compensation for any
improvements on the land.
 Acquisition of new customary tenures without written
permission of the prescribed authority was made unlawful
and punishable by imprisonment of up to one year.
Cont’d
 A customary tenant retained the right to sell or give away
their tenure provided it did not vest any title in the transferee
except over improvements on the land.
 Any agreement purpoting to transfer customary tenure was
void and punishable.
 Lawrence Kitts v Bugisu Co-operative Union SCCA
No.15/2004. as per the land reform decree where one had to
request for permission to get a lease from the commission
board but the appellant had not so he had not got lawful
occupation and the respondent won as the board had the
discretion to give anyone land.
The Customary tenure under the 1995
Constitution and the Land Act,1998
 Article 237 of the Constitution declares that all land in
Uganda is vested in the citizens of Uganda as opposed to
the government.
 Article 237 (4) provides that all citizens owning former public
land under customary tenure have a right to acquire a
certificate of ownership of their land and to convert their title
to freehold.
 A customary holder can get a caertificate of customary
ownership to show ownership but it is nota certificate of title.
Cont’d
 The Land Act,1998 under s. 3 (1) b defines customary tenure
as a form of tenure that shall be governed by rules generally
accepted as binding by the particular community.
 The application of any customary rule is subject to the rule
not being repugnant to natural justice, equity and good
conscience or being incompatible either directly or indirectly
with any written law.
Cont’d
 S. 27 of the Land Act expressly renders void any customary
rule or practice that denies women, children and disabled
persons access to ownership, use or occupation of land.
Certification of Customary rights
 Article 237(4)a of the constitution empowers all ugandan
citizens owning land under customary tenure to acquire
certificates of ownership in a manner prescribed by
parliament.
 On the basis of this article, s.5(1) of the Land Act is to the
effect that individuals, families or communities owning land
under customary tenure on former public land may acquire a
certificate of customary ownership in respect of that land.
Procedure for Application for
certificate of customary Ownership
 The applicant must submit an application in the prescribed
form to the land committee in the parish where the land is
situated. ( s.6 L.A)
 The committee on receipt of the application is required to
publish a notice and post it in a prominent place in the parish
and on the land which is the subject of the application
specifying:
Cont’d
1. The location and approximate area of the land.
2. An invitation to any person with an interest or claim in the
subject land to attend a meeting of the committee at a
specified time to make his or her claim.
 The committee shall hear and determine all claims on the
date specified.
 The committee then prepares a report recording all claims
and interests in the land setting out its
Cont’d
findings and recommendations on whether or not the
application should be approved with or without conditions.
 Give or send a copy of the report to the applicant.
 Submit the report to the board
 Make a copy of the report available within the parish for
inspection by all persons who submitted claims to or who
were heard by the committee.
Cont’d
 The board upon receipt of the report and recommendations
of the committee may;
Confirm the recommendations of the committee where the
recommendation is to issue out a certificate of customary
ownership and do the same.
Where the recommendations are to refuse to issue, confirm that
refusal.
Where the recommendation is to issue a certificate subject to
conditions or restrictions vary or confirm.
Cont’d
Return the report to the committee with directions as to what
action the committee is to undertake on the application.
Reject the report of the committee and act accordingly giving
reasons.
 The board shall communicate its decision in writing to the
recorder.
 The recorder shall issue a certificate based on the decision
of the board.
Cont’d
 A party aggrieved with the decision of the board may appeal
to the land tribunal which may either confirm, vary, reverse or
modify the decision of the board.
Effect of a certificate
 It is conclusive evidence of the customary rights and
interests endorsed on the certificate.( s.8(1) L.A)
 The land to which the certificate refers shall continue to be
occupied, used and regulated in accordance with customary
law.
 A certificate of customary ownership shall confer on the
holder to undertake any transactions subject to the
conditions or restrictions contained in the certificate including
but not limited to:
Cont’d
Leasing
Allow others exercise usufructuary rights
Sub-divide the land
Selling the land
Disposing by will
Mortgage or pledge
Conversion of Customary tenure
to Freehold tenure
 S. 9 of the Land Act makes provision for owners of land
under customary tenure to convert it freehold.
 An application for conversion together with the prescribed
fee shall be submitted to the committee of the parish in which
the land is situated.
Communal Land Associations
 S.15 L.A provides for the formation of Communal Land
Associations for the purpose of ownership and management
of land under customary law.
 The principle objective of such an association is to protect
and regulate the rights of joint land users.
 There is no prescribed minimum or maximum number of
members.
 S.16 (1) empowers a group of persons wishing to form a land
association to apply to the District
Cont’d
Registrar of Titles to become an association under the Act.
 Upon receipt of an application, the District Registrar of titles
shall convene a meeting for the persons seeking to form an
association.
 If atleast 60% of the members vote for the association to be
incorporated under the Land Act they will elect the office
bearers of their association.
Cont’d
 The officials shall be responsible for drafting the
association’s constitution.
 The District Registrar of Titles must incorporate the
association once satisfied that all statutory requirements are
complied with.
Cont’d
 Once incorporated then the association becomes a body
corporate and its officers can sue and be sued in its name
and may enter into contracts binding the association and all
its members.
 The managing committee of the Association is charged with
the responsibility to hold and manage the land on behalf of
all members.
Uganda National Land Policy
2013,
 According to Policy 4.3, Customary Land tenure is
associated with three problems:

 It does not provide security of tenure for

landowners.
It impedes the advancement of land markets.
It discriminates against women.
Cont’d
 According to the policy, the 1995 Constitution and the Land
Act attempted to formalize customary but were criticized for
destabilising and undermining its progressive evolution.
 Despite these attempts, customary tenure continues to be
treated as inferior in practice compared to other property
rights.
Cont’d
 Assessed as lesser regarding dispute resolution and
mediation compared to statutory system.
 Assessed as lesser compared to other tenures that have
titles for proof of ownership in courts of law.
Cont’d
 Under the policy the government aims at taking measures to
among others;
Design and implement a land registry system to support the
implementation of land rights under customary tenure.
Issue certificates of customary ownership based on customary
land registry that confers rights equivalent to freehold tenure.
Facilitate conversion of customary land which is already
privatized and individualized into freehold tenure.
Cont’d
 Promote systematic demarcation as a measure to reduce the
cost of registering rights under customary tenure.

Discussion
 What are the gender and Human Rights issues arising
from the foregoing discussion on customary tenure
Check case of best kemigisa to read about inequality on
women.
It may infringe on articles 20, 26,33,34, as some communities
stiil see
The future of customary tenure
 Can customary tenure be sustainable in light of economic
development?
 Can customary claims be enforceable in courts of laws in
Uganda?
 How relevant is customary tenure in a country that is moving
towards capitalism?
Customary Tenure and
Development
 It did not allow mobility in the transfer and disposition of land.
 Ownership of land under customary tenure was not
recognised by financial institutions for purposes of loans.
 Customary inheritance coupled with expansion of population
lead to fragmentation and subdivision of holding.
Cont’d
 In cattle keeping communities, customary law permitted
communal grazing which leads to absence of proper pasture
management and the deterioration of the pasture eventually
leading to soil erosion.
 Absence of private ownership of land.
 This land is neither surveyed nor registered
 Absence of security of tenure.
Cont’d
 Devoid of title and market
 Uncertain boundaries.
Can customary claims be enforced
in Courts of Laws in Uganda?
 The Case of Hon. Ocula Micheal & Others v Amuru
District Land Board, Major General Oketa Julius,
Christine Atimango and Amuru Sugar Works Ltd HCT-02-
CV-MA No.126 of 2008
Cont’d
 In this case the applicants were challenging the authority of
the Gulu District Land Board to give away land ( by sale or
lease) to the respondents which they claimed was customary
land belonging to some communities in northern Uganda.
Cont’d
 The major ground of contention is the allocation of the land
without the consent or involvement of customary owners
which the applicants alleged is a violation of their customary
right to it and therefore a breach of the constitution of
Uganda that guarantees this right.
 The onus of proof is on the one who alleges the customary
tenure. The applicants should have brought clan heads or
chiefs as expert witnesses to prove the community owned
the land customarily.
Cont’d
 On the other hand , the respondents argued that the land in
question is public land because it was initially gazetted by
the colonial government as game reserve and in 1972 it was
degazetted and was under the control of the Uganda Land
Commission and only came under the control of Amuru
District Land Board in 1998 with the enactment of the Land
Act.
Cont’d
 On the basis of the above the Amuru District Land Board had
authority over it as public land.
 According to the court, the applicants did not prove
customary tenure. They failed to prove who had authority to
transfer the land. There was war and the people were
displaced so could not exercise their rights of occupation and
utilization which the courts did not consider. They applied the
British system of tenure that land must be utilized.
 The case confirms the secondary position of customary or
perceived customary claims to land compared to other claims
rooted in other forms of tenure.
Cont’d
 This is moreso where the customary cannot concretely be
proved and is in competition with other claims to land and the
imperative of promoting economic development.
 In this case, the respondents according to court acquired a
‘better claim’ in a leasehold type tenure that they could by
documentary evidence prove.
Cont’d
 This case also raises issues on who has authority over and
knowledge about customary land.
 There are distinct institutions that deal with land matters that
arise within the customary space from those that handle
cases in those spaces controlled by the state.(section 88 of
the Land Act Cap 227). The courts should be guided by
knowledge of elders about customary law since judges are
not well versed with customary law as it is varies from tribe to
tribe.
Cont’d
 Having customary cases decided by statutory institutions
or land administered by government institutions has the
effect of abdicating traditional authority and the power of the
people over their land. Courts usually undermine traditional
authority and follow legal procedure that is a disfavour to the
custoamry tenure holders.
Cont’d
 Customary tenure is highly informal and greatly managed in
informal spaces and it is unrealistic to expect the law to deal
with all issues touching it.
 S.3 of the Land Act affirms the peculiar nature of customary
tenure that differs from community to community.
Cont’d
 S.88 of the Land Act preserves the power of traditional
authorities to determine disputes over customary tenure or
act as a mediator between persons who are in dispute over
any matters arising out of customary tenure.
Cont’d
 This confirms that the authority to deal with land matters is
not exclusively left to Land Commissions and District Land
Boards, but traditional institutions recognized as such in the
community where a matter arises.
 Can non- customary institutions provided for in the laws
of Uganda deal with cases on customary tenure in the
circumstances where the detail on customary tenure is
not in statutory law?
Cont’d
 Not all matters of customary land tenure are written down.
 To what extent should a judge engage on matters of
customary law not fully provided for in the written law or
where excessive application of the law would be unjust
to customary claimants?
Cont’d
 This case also raises issues on to the application of rules of
evidence.
 Among the pertinent questions in the case was the extent to
which article 126 of the constitution is applied for the benefit
of the applicants. Justice was not given to the applicants
because of failure to follow certain rules of procedure for
example documentary evidence that does not exist in
customary law.
 The applicants did not have corroborative evidence.
Cont’d
 Much effort was put on scrutinizing the evidence of the
applicants and court did not take an opportunity to ask
pertinent questions which would have thrown more light to
the cases.
Cont’d
 There were also gaps in the evidence to prove customary
tenure
 In civil matters of this nature, the court relies on the evidence
produced by either party to come to its judgement.
Cont’d
 The court cited s.46 of the Evidence Act of Uganda about
proving custom which is to the effect that: “when a court has
to form an opinion as to the existence of any general custom
of right, the opinions as to the existence of that custom or
right of persons who would be likely to know its existence if it
existed is relevant.”
Cont’d
 Court cited the case of Ernest Kinyanjui Kimani v Muira
Gikanga [1956] EA 735 AT 789:
As a matter of necessity customary law must be accurately and
definitely established. This might be done by reference to a book
or a document of reference and if there is no book of reference, a
party propounding customary law would have to call evidence to
prove customary law.
Cont’d
 From the above, evidence would be from experts.
 In this particular case, there is lack of an authoritative book
written on Acholi customary law and leaves the opinions of
persons who are experts on this as a good source of
evidence.
 The role of elders /chiefs in proving customary law on land
cannot therefore be underestimated.
Cont’d
 The applicants failed to produce the expert evidence to prove
customary tenure.
 Occupation and continued utilization of customary land came
out as a key fact that must be proved .
 Court cited a number of authorities on this that set a
precedent.
Cont’d
 Kampala District Land Board and Anor v Vanansio
Bwebulayaka & 3 Others SCCA No. 2 of 2007 where court
emphasized the need for one claiming customary rights over
land to be in position to prove to be in occupation of land and
actively utilizing it.
Cont’d
 Marko Matovu & 2 Others v Mohammed Sseviri and
Another [1979] H.C.B where court held that active utilization
includes grazing animals or growing crops on land and
occupying it.
 Bwetegaine Kizza and anor v Kadooba kizza civil appeal no.
59 of 2009. the issue was whether the customary tenure
would be created through a gift in the Banyoro custom.
 In this case there was no evidence adduced tp prove the
custom that the LC’S and the Bataka can allocate land in the
form of a gift from which arises a customary interest in
Bunyoro.
Conclusion
 There is a gap between the law and practice with regard to
Customary land tenure system.
 The protection given to customary claimants is not as
tangible as it looks on paper.
 Customary tenure lacks the necessary support for survival
and an enabling environment to remain strong on foot.
Cont’d
 From history to date, there have been efforts to suffocate the
traditional customary tenure and institutions and replace
them with state institutions run in accordance with western
originated tenures, rules and institutions.