THE REPUBLIC OF UGANDA Private Sector Foundation Uganda SECOND PRIVATE SECTOR COMPETITIVENESS PROJECT (PSCP II) CREDIT NUMBER: 3975 UG Review of the Legal Framework for Land Administration FINAL DRAFT ISSUES PAPER PROPOSED GOVERNMENT LANDS ACT Kalenge, Bwanika, Kimuli & Co., Advocates August 2010 1 PROPOSED GOVERNMENT LANDS ACT ISSUES PAPER 1. BACKGROUND TO THE CONSULTATION 1.0 Introduction 1.1 The Policy Context 1.1.1 Project for Review of the Legal Framework for Lands Administration 1.1.2 The Private Sector Competitiveness Project (PSCP II). 1.1.3 The LSSP and other Policies 1.1.4 Legislative Backdrop 1.1.4.1 Constitution of Uganda, 1995 and Land Act - Chapter 227 1.1.5 Need for a definition “Government land” 2.0 CONCEPTUAL BASIS FOR GOVERNMENT LAND MANAGEMENT 2.1 Conceptual issues in distinguishing Government Land from State or Public Land 2.1.1 Historical Beginnings of Government Land and Public Land in Uganda 2.1.2 Public Land, State Land and Government Land Generally 2.1.3 International Experience and Practice with Concepts of ‘Government Land’ or ‘State Land’ and ‘Public Land’ 2.1.4 Definition of ‘Government Land’ or ‘State Land’ and ‘Public Land’ may be peculiarly suited or specific to particular legislation 2.1.5 Categorization of ‘Government Land’ and Public Land, a matter of nomenclature 2.1.6 Public Property of the State and Private Property of the State 2.2 Classification in Government Land 2.3 Definition of Government and State 2.3.1 The State 2.3.2 The Government 2.4 Concepts of ‘Government Land’, ‘State Land’ and ‘Public Land’ in Uganda 2.5 Government Land and Public Land in the National Land Policy 2 3.0 THE POLICY GOALS FOR GOVERNMENT LAND AND THE ISSUES REQUIRING LEGISLATION THEREIN 3.1 Determination of the extent of Government land on the ground (inventory). 3.1.1 Project for Developing an Inventory of Government Land 3.2 Determination of the Boundaries of Individual Holdings of Government Land, i.e., Adjudication and Demarcation, and Titling 3.3 Divestiture of Land that is no longer required for public use 3.4 Other Government Land Management Issues additional to the LSSP Policy Goals 3.4.1 Government Land Classification and Reclassification 4.0 LEGAL FRAMEWORK FOR THE MANAGEMENT OF GOVERNMENT HELD LAND 4.1 Managerial Matters 4.1.1 The role of the Uganda Land Commission (ULC) 4.1.2 Acquisition of Land for Government 4.1.3 Co-ordination of Management of Government Land between Users and the Uganda Land Commission 4.1.3.1 Examples of High-Level Bodies with a whole-of-government focus that coordinate Government Land Management. 4.1.4 Custodianship of Government Land 4.1.5 Definition and concept 4.1.6 Illustrations of International Practice in Custodianship of the Public Estate 4.1.7 Government Land Management Principles 4.1.8 Land of Former Public Bodies, Statutory Institutions & Parastatals 4.1.9 Diplomatic and other Government Property Abroad 4.1.9.1 Uganda Property Holdings Limited (UPHL) 4.1.10 Procurement of Offices for Government 4.2 Procedures for Disposal of Government Land 4.2.1 Matters preliminary to Disposal of Government Land 4.2.1.1 Inventory 4.2.1.2 Land Classification 4.2.1.3 Justification for Ownership of Land by the Government 4.2.1.4 International Best Practice 4.2.1.4.1 Canada. 3 4.2.1.4.2 South Africa 4.2.1.4.3 New Zealand 4.2.1.4.4 Australia 4.2.1.4.5 United Kingdom 4.2.1.4.6 Palestine Land Management Study. 4.2.1.4.6 Uganda 4.2.1.5 Other Country Context Issues for Uganda 4.2.1.5.1 Policy for Unsolicited infrastructure proposals 4.2.1.5.2 Lack of a PPI or PPP Law/Regulatory Framework 4.2.1.5.3 Uganda Poverty Reduction Support Credit 7 4.2.2 Government Land Disposal and Exchange 4.2.2.1 Transparency 4.2.2.2 Market Value 4.2.2.3 Internal Transfers of Government Land 4.2.2.4 Issues in disposal of Government Land at Local Government Level 4.2.2.5 Exchange of Government Land with Private Land 4.2.2.6 Sale Proceeds 4.2.3 Terms and conditions of grants of Government Land 4.2.4 Oversight and Accountability 4.2.5 Law Enforcement and Government Land Recovery 4.2.5.1 Rights of Occupants on Government Land 4.2.5.2 Recovery of Government Lands 4.3 Government Land in connection with other Land Sector Policies 4.3.1 LSSP Strategic Objectives 4.3.2 Systematic Demarcation 4.3.3 Land Information System 5.0 Summary of Recommendations 4 PROPOSED GOVERNMENT LANDS ACT ISSUES PAPER Executive Summary The Government of Uganda has received funds (under Credit Number: 3975 UG) from the International Development Association (IDA), towards the cost of the Second Private Sector Competitiveness Project (PSCP II). It has applied part of the proceeds of this Credit to the Land Component of that Project. The Land Component implements the rehabilitation and modernization of existing Land Registry records and operations, the development of a Land Information System (LIS) and expansion of cadastral information access to all districts, and strengthening the capacity of the land sector. The capacity building activities for the land sector include a comprehensive revision of the legal framework for land administration including the revision of existing laws and the enactment of new legislation, in this case the proposed Government Lands Act. This Paper discusses issues that, in our view, require legislative attention for effective regulation of acquisition, disposal and management of Government Land in Uganda. The Constitution of Uganda, 1995 and the Land Act, 1998 ushered in revolutionary changes in the ownership of land in Uganda. While previous thereto, all land in Uganda was public land centrally vested with the Uganda Land Commission, as a result of the land tenure law reform brought about by the Constitution and the Land Act, most land in Uganda is now privately owned in mailo, freehold, leasehold and customary tenure. Notwithstanding these changes and those four official categories of land tenure, Government owns land which is comprised in and consists of the numerous immovable property assets used by government agencies to perform the functions of government. But Government land is now a limited category whose nature and legal incidents have to be determined by a process of elimination after an examination of the Constitution and the Land Act as amended. As such, although there is a new legal framework for land tenure and land management in Uganda, Government land is not defined. There is therefore a need to define Government Land . The policy goals for Government land in Uganda are stated by the Land Sector Strategic Plan 2001 - 2011 (LSSP). According to this, the resolution of a number of management issues for Government land will resolve conflicts and permit improved management of this land, or its divestiture where and if the land is no longer required for public use. The LSSP also acknowledges that documentation of Government land has not been adequate in the past, leading to many conflicts, encroachment, and poor management of 5 Government’s land resources. Further that, the rationale for maintaining some of these properties is no longer clear. The problems and issues in government land management are not unique to Uganda. Globally, there are a broad range of policy issues in relation to Government land and the public estate . These include the concern that Government land assets should be effectively managed in the public's best interest with the global perception being that public assets are generally badly managed with undefined management arrangements and responsibilities, poor records and lack of appropriate land information; that the tenure rights of those who beneficially occupy public land should be secure; and that Government land should be properly allocated for land reform (including redistribution of some of it to the land poor); and that government land management can benefit national development programmes in comparison with the general perception that Government land assets are taken as “free”, that land grabbing is common, and that there is pervasive lack of transparency, legitimacy and accountability in Government land acquisition and disposals. Another key global issue with a local appearance is the phenomenon of unsolicited development or infrastructure proposals which frequently result in disposals of prime government land to investors without considerations of transparency, value-for-money or public benefit. Recent developments involving large-scale acquisitions of farmland in Africa and similar international land deals are left out as they concern State or Public Land. According to the LSSP the demarcation, valuation and assessment of use of government properties should provide vital information for better land use planning and for improved management of Government’s land holdings. Identifying Government property and its current users can also enhance the revenue prospects for the Land sector, and enable rents to be charged and collected. The LSSP then plans to address the following issues with regard to the management of Government Land: • Determination of the extent of Government land on the ground (inventory). • Determination of the boundaries of individual holdings of Government land, i.e., adjudication and demarcation, and titling; • Management of encroached Government land (disputes) and the resolution of the rights of occupants of Government land • Resolution of conflicts between Government and Local Authorities who may lay claims on the land. • co-ordination of management of Government land between user ministries/Departments/Institutions and Uganda Land Commission • Divestiture of land that is no longer required for public use.