LEGAL REALITIES VERSUSES CULTURE: A PERSPECTIVE ON LAND ACQUISATION IN WEST MOYO DISTRICT IN UGANDA

BY ARIZIO SALLY

LLB/38059/123/DU

A DISSERTATION PRESENTED TO THE SCHOOL OF LAW AT KAMPALA INTERNATIONAL UNIVERSITY IN FULFILLMENT OF THE REQUIREMENTS FOR AN A WARD OF A BACHELORS DEGREE IN LA \V.

AUGUST, 201-l DECLARATION

I, Arizio Sally, declare that the contents presented herein are a result of my personal analysis and observations, unless otherwise stated by reference, and this report has never been submitted for a degree in this university or any other university or any institution of high Leaming.

D S1.g ned ...... '$;~ii...... ~I~ .. ·········

ARIZIO SALLY

Date ...... ~ .\ .. ~~ .. ~~ . ~ .~, ...... APPROVAL

I Nyanchieo Mary, hereby declare that this research has been supervised by me and has been presented with my approval.

Si~OO ~ ......

Miss Nyanchieo Mary

Date ..?.-~~~\ .~i -••• • • • • • • • • · · · · · ·· · · · ·

ii DEDICATION

To the Almighty God who has seen me through the struggle and to my beloved mothers Angela Kareo who has always worked, prayed and wished for me to succeed in life and Prof. Christine Dranzoa who has nrniured and given me a platform for my success in life.

iii ACKNOWLEDGMENT

First and foremost I would like to thank the Almighty God for in all His with me. I would also like to sincerely thank my supervisor for the altruistic guidance and criticisms she offered through out this research.

Special thanks to Prof Christine Dranzoa, for the love, support, protection and education she has generously offered to me. My dear mother who sacrificed all for the betterment of me and my sister, no amount of words can justify how grateful I am. Be blessed forever. My dear sister Florence, thank you for the love and all financial assistances.

In a special way I extend my sincere gratitude to Akule Geoffrey, Alice, Acok Jeff, Alumai Jeff, Draciri Walter, Byaruhanga Frank, for being there for me when I needed you all, either morally, financially or for career guidance.

Gracie Mukiibi and the Entire Mukiibi family, thank you for being my second family. Gracie, I can't appreciate enough what you have done for me throughout this struggle. You believed, encouraged and supported me all way through. You have taught me the true meaning or friendship and sisterhood. May the good Lord bless you everyday of your life. l also acknowledge the services or the editors of my work and all my friends at the university especially, Urso Dominic Luoga, Kamau Dorris, Stella Nakiwala for the academic support and love during my stay at the University. Lastly to all those who have contributed to my education life one way or another. thank you too.

iv TABLE OF CONTENTS

DECLARATION ...... i APPROVAL ...... ii DEDICATION ...... iii ACKNOWLEDGMENT ...... iv TABLE OF CONTENTS ...... v LIST OF ACROYNYMS ...... viii TABLE OF STATUTES ...... ix ABSTRACT: ...... x

CHAPTER ONE ...... l 1.0 Introduction ...... I 1.1 Background: ...... I 1.2 Statement of the problern ...... 4 1.3 Hypothesis ...... 5 1.4 Objectives ...... 5 1.5. Research question ...... 5 1.6 The scope of the study ...... 6 1.7 Signiltcance of the study ...... 6 1.8 Methodology: ...... 7 1.8.1 Sampling ...... ? 1.8.2. Data collection Methods ...... 7

CHAPTER T\VO ...... 8 LITERATURE REVIE\V ...... 8 2.1. Introduction ...... 8 2.2. Tenure Systems ...... 9 2.2.1 Tenure systems in the world ...... I 0 2.2.2 Tenure systems Al'rica ...... 10 2.2.3 Tenure systems in Uganda ...... 15

V 2.3 Forms and Nature of Land Acquisition ...... 17 2.3.1 Globally...... 17 2.3.2 Forms and Nature of Land Acquisition in Uganda ...... 19 2.4 Conflict between ways of transacting land in statutory system and in communally owned land ...... 22 2.4.1 Regionally ...... 22 2.4.2. In Uganda ...... 25 2.5 How can the two regimes compliment each other...... 27 2.5.1 Regionally ...... 27 2.5.2 In Uganda ...... 28 2.6 How to transform procedure of Land Acquisition? ...... 30 2.7. Gap identified from existing literature ...... 31

CHAPTER THREE ...... 35 3.0 Legal and institutioal framework on land acquisition and ownership ...... 35 3.1 Introduction ...... 35 3.2 Legal Framework, ...... 35 3.2.1 International Legal Framework ...... 35 3.2.1.1 Convention of Indigenous and Tribal pcoplcs ...... 36 3.2.1.2 Convention on the Elimination or all forms or Discrimination Against Women (CEDA W) ·······················································································································································37 3.2.1.3 The International Bill or Human rights ...... 37 3.3. Regional Legal Frameworks ...... 38 3.3.1. African Charter on Human and Peoples· Rights (Banjul Charter) ...... 38 3.4 National legal Frameworks ...... 40 3.4.1 Constitution of the Republic 01· Uganda 1995 ...... 40 3.4.2. The 1998 Land Act Cap.227 as Amcnded ...... 41 3.4.3 Land Acquisition Act ( 1965 )...... 42 3.4.4 The .Judicature Act Cap 13 ...... 43 3.5. Institutional Frameworks ...... 43 3.5. l l ganda Land Commission ...... --1-3

vi 3.5.2 Land Board ...... 43 3.5.3 The District Land Office ...... 44

CHAPTER FOUR ...... 47 4.0 Presentation and Discussion of the Research Findings ...... 47 4. l Introduction ...... 47 4. l. l Current legal situation ...... 47 4.1.2 Transparency of statutory land governance System in Moyo District ...... 49 4. l .2. l Weak Land Governance ...... 50 4.1.3 Information Access and Land Records ...... 51 4.2 Land Acquisitions: Power and Influence of Custom at Play ...... 52

CHAPTER FIVE ...... 54 5.0 Summary ...... 54 5.1 Recommendations ...... 54 5.2. Conclusions ...... 57

REFERENCES: ...... 58

vii LIST OF ACROYNYMS

African Development Bank (AfDB).

Afiican Union (AU).

African Union Commission (AUC).

Communal Land Associations (CLA).

Economic Commission for Africa (EC A).

Food and Agriculture Agency (FAO).

International Labour Organization(ILO).

Local Councils (LC).

Regional Economic Communities (RECs).

The Convention on the Elimination or all forms or Discrimination Against Women (CEDA W).

The International Covenant on Civil and Political Rights (ICCPR).

The International Covenant on Economic, Social and Cultural Rights (ICESCR).

Universal Declaration or Human Rights (UDI-IR).

United Nations (UN).

viii TABLE OF STATUTES.

The Constitution of the republic of Uganda, !995(as amended).

The Judicature Act of Uganda. Cap 13.

The land Act Cap 227

The land (amendment) Act 2004

The land acquisition Act, 1964, laws of Uganda

The registration of titles Act cap 230. (RTA)

Convention on the Elimination of all forms of Discrimination Against Women.

Convention of Indigenous and Tribal peoples African Charter on Human and Peoples' Rights (Banjul Charter).

ix ABSTRACT:

Land is the most essential pillar of human existence and national development, according to the Government of Uganda (Ministry of Lands, Housing and Urban Development, 2011: 2). It is a source of identity and cultural heritage. With 87 percent living in rural areas, of which 34 percent lives in pove1iy, land in general and access to land in specific is a crucial issue in Uganda (FAO, 2010.) Indeed there is an upsurge in large scale land acquisition including a rush for land that fonnerly was of no interest to any investment. But there is limited infonnation over the nature, the scale and location of such deals and it is difficult to report with accuracy, the nature and the scale of deals which take place. In most cases land grabbing goes unnoticed; there is underreporting of land deals and the perpetuators of land deals do it either indirectly through others or in a manner that may not depict the deal as land grabbing. In Uganda, there has been a vehement denial by government that land grabbing phenomenon does exist. There is limited information on land grabbing in Uganda. What may pass as genuine land acquisition may actually turn out to be land grabbing thus the invisibility or land grabbing. Lack or information complicates assessing their impact on development. This research is to present some findings .The research is guided by the following objectives; a) to identify strategic and practical solutions that can transform the proccdural acquisition or land in Moyo district. b) To identify the existing forms and nature of land acquisition in the district. c) To find out iflt is a question or choice oC which should have supremacy over the other. cl) How do we make the two legal regimes, work together or compliment each other0 e) To address the clash between statutory system and customary tenure land system for sale or communally owned land. To achieve these objectives the researcher wi II use the methodology. The researcher also intends to use a descriptive case study approach and he or she will focus on West Moyo district in Uganda fi:ir data collection.

X CHAPTER ONE

1.0 INTRODUCTION

1.1 Background:

Moyo district was created fifty years ago, like other districts it's named after, its chief town, 1 "Moyo". It may be referred to as the cock (Aulogo) crowing district • This is because of its strong identity with the people as chosen by the ancestors and its one of the oldest districts of West Nile region which celebrated !00years of existence in Uganda on the 21st April 2014. Madi is the main language spoken in the district.

Moyo district is located in North Western Uganda bordered by the Republic of South Sudan in the North, Adjumani district in the East and Yumbe district in the West. The district headquarters at Moyo are located approximately 455 kilometers by road, northwest of Uganda capital and ifs reached by road from Arua, the largest town in the sub region, located approximately 140 kilometers, by road southwest of Moyo. The coordinates of the district are: 03 39N, 31 43E (Latitude: 3.6500; Longitude: 3 I. 7 I 90)2 The district covers approximately a total area or 2059km2 and is made of counties of west Moyo and Obongi which lies in the west Nile­ lowlands area and 9 sub-counties. the town council inclusive, 43 parishes and 227 villages. 3

The population of Moyo district is predominantly rural and totaled to 202,291 people as per the 4 2002 national census of whom 48.8°/c, were females and 51.2% were males • The district has experienced a rapid population growth and it's estimated that the population or the district in 20 I 0. was approximately 253,200.

1www.monitor.co.ug/ ... /M oyo ... district/-/ ... /-/index.html

2 www.wikipedia.org/wiki/Moyo-District.

'Distnct Pl.rnning Unit Moyo town. 'Uganda Bureau of Statistics (UBOS)

1 Like in most other Ugandan districts, agriculture fonns the backbone of the district economy. Over 90% of the district populations are involved in agricultural activities, with 86.6% of the population involved in some fonn of subsistence production. Most agricultural production is for household consumption. The Nile River is the main source of fish within the district. Some cattle, goats and chicken are kept, mostly on a subsistence level. Bee keeping, for honey production, is gaining popularity in the district.

Tenure arrangement: Land in Moyo district is communally owned, and primarily based on small land holding. In the urban areas of Moyo town council, the land is under leasehold. There is also public land of 5 which 70 % of the plots of land in the district are under the customary land tenure . The public land used by the squatters account for 10.4%. Lease holding which is the most secure form of tenure in Uganda, is held by less than 30 people in the district (with the exception of plots located within the town council.

The law of Uganda gives people secure rights over their land, whether or not they have title". Peoplc·s rights to land arc guaranteed by the law. If the land is customary land meaning there is no title to land, then the law guarantees the rights of customary practice or customary law 7 .The Land Act defines the incidents of customary land tenure to include territorial or clan nature, existence of rules and regulations governing community, families and individual access to land, and perpetuate ownership of land. The Act also provides that customary land tenure may be converted to freehold by individuals, families or communities on application to a district land board. These incidents however do not clearly define the essential characteristics of customary tenure

There is a growing critical interest in land acquisition by individuals. groups of people. NGO's and Gll\'Crnment for agriculture, household construction. projects and industrialization. Howe,·cr phcnorncnon of the land Acquisition/land deal is contrm·ersial in the rnist of the applicable laws s Office of Natural Resources Mayo District ''Article 26 of the 1995 constitution of the republic of Uganda 7 Section 17 of the Judicature cap 13

2 that are to be followed by any one who wants to entitle himself or herself to a piece of land. Access to land in Moyo district is secured through donation, inheritance, by virtue of membership within a family, purchase and bon-owing.

While land acqms1l!on has gained prominence m West Moyo district, the legal process of acquisition which has been statutorily provided for in the 1995 constitution of Uganda8, the Land

9 10 Act as amended , and Land Acquisition Act on the local population and those neighboring the boarders remain under represented. This has largely been due to social cultural beliefs, lack of knowledge of the laws that govern land, and this has created tension surrounding land and also created localized land conflicts. The challenges faced by land owners in the district are that land is sometimes taken without consent. The indigenous people do not know their legal rights and so cannot ask for fair treatment or make a challenge if they are not happy with what is happening and under customary system, which is the major tenure system in Moyo district, there is a native assumption that land is given as a loan, not permanently and that in future it reverts to the original owners. People wrongly believe that the right of' the local authorities to make planning regulations gives those authorities ownership over the land. Many people believe that land in the trading Centre ceases to be customary land.

Given the above, the research intended to argue that the traditional land right which encompasses customary land tenure system which is the largest tenure in the west Moyo district needs a thick legal regress as the law is very unclear .This tenure is estimated to compromise at least 75 percent of' land in Uganda. It was administered based on traditional institutional arrangements. It is not very clear to the locals on when and how land is acquired and who can actually take possession of'the lands because practice of'thc law is minimal by the locals.

3 Article 237 '1 Section 40, land Act '° Cap 226 1964

3 1.2 STATEMENT OF THE PROBLEM

Since 1998, Moyo district has undergone what has been termed as slow but divergent development. Prior to the I 998 Land Act, 11 the district had a small population and relatively diverse unoccupied land that was majorly owned under the freehold and customary tenure system. Due to the increased population, the interest in land also revitalized causing the desire to acquire and own land, however people acquire land through dubious ways by mingling with the legal process and others do not take the initiative to understand the legal process at all and others fm1her go on to attach cultural ties by virtue of their lineage prior and post the colonial era as well as the post 1970 political war and the law has not taken great effect to redress the situation. Because of the above there have been prompted legal and customary diversions as to land acquisition. CmTently the law: presents complex web of interlocking and overlapping systems of rights drawing their legitimacy from both indigenous customary law and statutory law thus the study therefore sought to analyze the legal realities viz-a vis cultural norms and how each has impacted on land acquisition in Moyodistrict.The customary tenure system provided rules that were generally accepted as binding and authoritative by a class of persons lo which it applies. The customary tenure system in Moyo still provides for communal ownership, use and acquisition of land guided by local customary norms. rules, regulation and management. A parcel of land may be recognized as subdivision belonging lo a person, a family or traditional institution

2 and is owned in perpetuity1 . Customary lands arc subject lo rules grounded in prevailing customs that are applicable to particular communities. Following the enactment of the 1998 Land Act, rnslomary ownership customary ownership became legally equal to having title, although land held under customary tenure is subject lo any local customary rules of ownership (e.g. rules on inheritance or various rights to use land which other members of the family may have). The system docs not rely on the exercise of force, nor on the evidence of rights guaranteed by statute. but on the fact that they arc recognized as legitimate by the community, enforced in the customary courts, or even merely by social pressure and generally known though not normally documented. Very little has ever been written on customary tenure in iVloyo. which is somewhat surprising since land is by l'ar the most

11 Chapter 227 1-'Land Act 1998,cap 227

4 imp01iant asset in this reg10n. Local rules govermng land have never been written down. Neve1iheless, customary tenure has survived the rigorous of displacement in the short-term and is still the prefeITed tenure in Moyo.

1.3 HYPOTHESIS.

The study was based on the assumption that Moyo district is having land wrangles due to lack of knowledge of the land laws and rights that accrue to them as individuals and land issues emerging clue to customs that surpass the relative legal rules on land acquisition . The aim of the study was to prove the prepositions right or wrong with recommendation where necessary.

1.4 OBJECTIVES

The general objective of the study was to make analysis of the loopholes that exist in the Law and Customs as to land acquisition in Moyo district. The specific objectives of the study are as follows; a) To identify the tenure systems in Moyo District. b) To identify the existing forms and nature ofland acquisition in the district c) To address the clash between statutory transactions in the sale of communally owned land. cl) To establish how to make the two legal regimes, work together or compliment each other. e) To identify strategic and practical solutions that can transform the procedural acquisition of land in Moyo district.

1.5. RESEARCH QUESTION. a) What arc the tenure systems which exist in Moyo District° b) What arc the forms and nature of land acquisition in Moyo district'' c) Whether there is a clash bet\\een the statutory system and customary tenure systems in regard to communally owned land'' d) Whether the t11·0 legal regimes can compliment each other''

5 e) What strategic or practical solutions t can transform the procedural acquisition of land in Moyo district?

1.6 THE SCOPE OF THE STUDY

The research focused on the existing laws governing land ownership in Uganda, the tenure system both nationally and locally in Moyo district, the process land acquisition and how customs and forms of land acquisition relate to the available laws on land. This study walso examined the prevalence of land acquisition rights in the district.

The case study was limited to west Moyo district in the North western part of Uganda, where customary land ownership is prevalent because either the principle or access to land is based on communal acquisition, lineage, and inheritance. The study considered relevant information from sample study group, laws or statutes, and other laws from foreign jurisdiction, examples from other regions in Uganda and case law.

1.7 SIGNIFICANCE OF THE STUDY

This study would be great for the rural people or Moyo district and it's not only imporlanl for local indigenous but also for government authorities, the land board and lhe whole society al large. Land ownership is increasingly becoming a national obsession. Thus given the increase of population in Moyo district. there is also increased demand for land acquisition in all forms, such as raw land deals and land grabbing .land has become a source or friction between families. and even between communities. and Stale or public corporations. Claims lo land in Moyo are still traditionally secured through the length or residency or through use and through social links. Commercial fanning has displaced peasants. In numerous cases lhe researcher pities Village Councils and villagers against legal system, because there has been no pattern to the courts' rulings. Therefore the absence or research on the causes and effects or these lcmns or land acquisitions. this type or research is important to people of Moyo district.

6 1.8 METHODOLOGY:

Owing to the fact that the people in Moyo district are predominantly agriculturalists, they do attach high sensitivity to matters concerning land. The researcher therefore believed in depth analysis on the topic would help us unemth facts. The researcher opted to orient him or herself with descriptive and explanatory case studying for a detailed analysis of the land dynamics and acquisition in this selected part of the country.

1.8.1 Sampling

A sample size of 20 respondents will be selected for the study. This will include ten (IO) local residents from Moyo town council and five (5) from Obongi County and the other five will include local council chairpersons, religious leaders and councilors.

1.8.2. Data collection Methods Primary data will be collected by key informant interviews especially with victims or defective land deals. These interviews will last for 20 minutes for any individual victim the researcher will identify. The researcher will also endeavor to observe the impact of these land deals /acquisition on people· s livelihoods. The researcher will also base him/herself to desk reviews especially basing on sources from internet and documents at his or her disposal.

7 CHAPTER TWO

LITERATURE REVIEW

2.1 Introduction Up to one quarter of the world's population is estimated to be landless, including 200 million people living in rural areas, 13 and approximately 75% of the world"s population living in extreme poverty (less than $!/day) live in rural areas. 14 According to the Food and Agriculture Agency of the United Nations (FAO),"rural landlessness is often the best predictor of pove1ty and hunger." 15 "While not the only pathway out of pove1ty, ample evidence suggests that access to land is effective in helping rural households generate higher incomes" through the sale of crops and the money saved when the family feeds itself from the land. 16 "Yet even though "land constitutes the main asset from which the rural poor are able to derive a livelihood .... millions of families, though they toil on the land, do not enjoy ownership rights over it and are considered landless." 17

The condition of landlessness threatens the enjoyment of a number of ti.tndamental human rights. Access to land is important for development and poverty reduction, but also otlen necessary for access to numerous economic. social and cultural rights. and as a gateway for many civil and political rights. However, there is no right to land codified in international human rights law.

Land is a cross-cutting issue, and is not simply a resource for one human right 111 the

international legal framework. And yet, while rights have been established 111 the international legal framework that relate to land access !'or particular groups (e.g. indigenous people and, to a more limited extent. women), numerous rights are affected by access to land (e.g., housing. rood. water, work), and general principles in international

13 SECURE LAND RIGHTS FOR ALL, UN-HABITAT GLOBAL LAND TOOL NETWORK 4 (2008). 14 Roy L. Pros term an& Tim Hans tad, Land Reform in the Twenty-First Century: New Challenges, NewResponses, (2006). 15 Centre on Housing Rights and Evictions (COHRE), Housing and Property Restitution for Refugees and Displaced Persons 3-7 (2007)

16 Alain De Janvry et al, Access to Land and Land Policy Reforms, in Aceess to Land, Rural Poverty, and Publication 4 Oxford University Press 2001. 17 Human Rights Council, Report of the Specral Rapporteur an adequente housing as a component of the right to an adequente standard of living, and on the right to non-discrimination in this context. Miloon Kothari, U.N Doc. A/HRC/7/16.

8 law provide protections that relate to access to land ( e.g., equality and nondiscrimination in ownership and inheritance), an explicit consideration of the legal implications of access to land for a broad range of human rights is necessary.

2.2. Tenure Systems. The word "Land Tenure" is derived from the Latin ·'Tenere" meanmg "to hold a tenant" is simple one who holds. Land tenure has to do with la11d-11um-aml the rights. It is the nature of legal estate in land such as fi-eehold, leasehold, mortgage or occupancy. It may be expressed as the mode of holding the land property and is frequently based on social structure and religious belief. Land tenure olien plays a crucial role in the individual's sense of participation in a society as well as in the investment of labor and capital on any piece of land. The significance of land tenure can be realized not only for the land market, use of land and right over land but also 18 recognized as the major determinant of the land/property tax base .

Therefore, the institutions for defining ownership, right and use of land called land tenure are the important concerns of human society. Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. (For convenience. "land" is used here to include other natural resources such as water and trees.) Land tenure is an institution, i.e .. rules invented by societies to regulate peoples· relationship with one another for the common good. Rules of tenure define how property rights to land arc to be allocated within societies. They define how access is granted to rights to use, control, and transfer land. as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions as well as articulating the rights therein attached to lor the maintenance of consistence19 It remains the only fr1ctor of production that is constant in size and proportion. Land is the basis of human

. ')o existence- .

18 Land tenure and taxation (Nepal :llahesh Chandra Reg111i)

"FAO 2002).

'''BalHI Ram ACHAR\'A, Nepal

9 2.2.1 Tenure systems in the world. Land tenure globally is an impmtant pait of social, political and economic structures.it is a fundamental to lives of poor rural people.It is evident that it is multi-dimensionally, bringing into play social, technical, economic, institutional, legal and political aspects that are often ignored but must be taken into account. Land tenure relationships may be well-defined and enforceable in a formal cornt of law or through customary structures in a community depending on the most suitable desirable remedy. Alternatively, they may be relatively poorly defined with ambiguities open to exploitation.

According to Professor FrithjofKuhnenprivate ownership of land is a Western concept that was first introduced into many developing countries by Europeans. It arose under a specific legal order by original acquisitioning of land (occupying and making the land arable) or changes in ownership (conquest, contract, inheritance). Until today, some societies have still not developed any forms of personal, private rights to land that would grant a right of disposition. Instead, the individual is allotted land for his own usage that reve1ts to the hands of the group (tribe) as soon as it is no longer used.

2.2.2 Tenure systems Africa Over the past decades there has been a rapid growth in the literature on African land tenure. However, there arc relatively few studies on the land tenure of African hunter-gatherers in particular and other self~identified African indigenous peoples. The point made by Bohannan and Bohannan ( 1968) that "The literature on land tenure is one of the largest and one of the poorest - in all of social and legal science" apparently still holds true for indigenous groups in sub-Saharan Africa. The weak literature base is particularly true for seminomadic forest dwellers in Central Africa, whose landholding practices have rarely been studied in any detail. Howc\'cr. there arc

1 notable cxccptions' • In addition, some data are available on customary tenure arrangements of San Bushmen from southern Africa. even though many effectively lost their customary rights

21 Biesbrouck, K. 1999. Agriculture among Equatorial African hunter-gatherers and the process of sedentarization: the case of the Bagyeli in Cameroon.

10 many years ago and are now seeking to reclaim them. 22 There has also been extensive work to assess land refonn initiatives, along with steps being undertaken to codify customary landholding systems, develop new land policies and implement registration systems.23 These and other sources fonn the basis for this review of customary land tenure in sub-Saharan Africa and the state's role in defining legal entitlements to land, the practice and persistence of customary tenure mTangements, and the links between indigenous land tenure and livelihood security. My aim is to highlight key characteristics of the discourse on African land tenure, to highlight the gaps in knowledge which mitigate that discourse and to identify the direction of future changes required to address indigenous communities· rights to their lands adequately.

Much of the research on African land tenure has been rooted in the agricultural sector. This is hardly surprising, given the huge amount of work that has been clone under various forms of economic development promoted since the clays of colonialism. However, many African indigenous peoples clo not engage in agriculture, or agriculture is not their primary concern. For example, some Baka Pygmy families may have small garden plots, which they cultivate to provide grains and vegetables used to supplement their mainly hunting and gathering diet; seminomaclic pastoralists may not cultivate at all; and most Rwandan Batwa are landless, so any agriculture they engage in is generally on other peoples· lands in return for cash or payments in kind. This review also cites extensive work that has been clone to synthesize the available knowledge on customary and "'modern" tenure, as the development and research community has begun to appreciate fully the importance of understanding the long term impacts of landholding systems on household food security, sustainable rural livelihoods and poverty reduction in general.

Customary land tenure remains the predominant model or landholding in rural Africa today and for most or all African indigenous peoples it has been the dominant system used to assert rights

22 Chennells, R. 2001. Indigenous peoples and conservation. Submission to Kigali Conference on Indigenous Peoples and Protected Areas in Africa, From Prindples to Practice. Kigali, 4 - 7 September 2001. Moreton-in-Marsh, UK, Forest Peoples Project. 23Wiley, L. &Mbaya, S. 2001. Land, people and forests in eastern and southern Africa at the beginning of the 21st century: the impact of land relat,ons on the role of communities in forest future. Nairobi, World Conservation Union (IUCN) - Region for Eastern Africa

11 24 to land . An old-fashioned view is that the manifestation of customary land tenure systems in Africa was governed mainly by structural factors, the --productive mix", with population density being a critical factor guiding the evolution of land-use systems25 for an overview of the debates). However, more recently it has been accepted that ··)and concentration is not necessarily the most important or even a major determinant of African agricultural performance", and that 26 ·'under customary law access to rights in land was often based upon social identity'' • Indeed, many of these customary regimes are regional and interethnic and provide differentiated rights of tenure or access to different social groups.

Reviews of the common features where "customary tenure principles and local regulatory systems prevail'' in Africa ove1whelmingly emphasize the importance of social status in gaining and securing access to natural resources, and the social aspect of securing and holding land rights 27 under customary systems is critical for indigenous peoples . Location, culture, status and production system all affect how most rural Africans access and maintain property rights. These rights arc often overlain across land fanned or otherwise used by others. The ··bundle of sticks"analogy holds: rights can be distributed across many different parcels of land for different purposes, and even though most of the rights cannot be sold, they arc often divisible, individual rights transferring easily between individuals or groups. This system of validation and exchange is underpinned by the maintenance of social relations between the different groups who are involved, including indigenous peoples, many of whom face social discrimination from society and the state.

Most land held under African customary tenure rules can be considered to be --common property.. , in the sense that land is considered the properly or defined collectives and is subject to, and managed in accordance with, detailed customary laws that regulate access by groups and

24 Bahuchet, s., Gren ard, F. & de Maret, P. 2001. Tropical forests, human forests: an overview. Vol. !.Brussels, Avenir des Peuples des ForetsTropicales. 87 25Mortimore, M. 1997. History and evolution of land tenure and administration in West Africa. Issue Paper No. 71. London, International Institute for Environment and Development. 26Berry, s. 1988. Property rights and rural resource management: the case of tree crops in West Africa. Cohiers des Sciences Humaines, 24(1): 3 · 17. 2 \avigne-Delville, M. 2000.Harmonising formal !aw and customary land rights in French '>peaking West Africa./nC. Toulmin& J. Quan, eds. Evolving land rights, policy and tenure in Africa. pp 97 - 121. London, DFID/IIED/NRI.

12 ..... ··· .. ~·===

individuals.28 The notion is not without perils, however, as in some instances "common prope11y regimes'· have been used as an excuse by administrators to treat indigenous peoples' lands as ··common pool resources" and taken over by the state to be allocated to other interests, including land speculators, conservation organizations and logging interests.29

Indigenous peoples will also need to address questions about how to validate their claims to land and resource rights. Documentation of their customary arrangements, by community mapping, historical research or through the recording of oral history, is needed if they are to enter into constructive negotiation with states and before they are totally disenfranchised because of the pressures bearing upon them and wider society as populations grow, towns extend and lands become more scarce.

A central platform of reforms now being proposed should emphasize the importance of community-based solutions, perhaps facilitated by outsiders, and a re-institutionalization of indigenous land tenure, without replacing existing customary systems. 30 Governments should look to ways to legalize customary arrangements that protect indigenous peoples' rights. The integration of received and indigenous law will be a corollary of this, and states will have to recognize community-based tenure and customary rights in law. This is possible if governments are able to overcome the political obstacles now preventing the institutional reforms that are needed to address the chronic and growing pove11y and land insecurity that indigenous communities now face in Africa.

Customary land tenure remains the predominant model of landholding in rural Africa today and !ix most or all African indigenous peoples it has been the dominant system used to assert rights 31 to land . An old-fashioncd view is that the manifestation of customary land tenure systems in Africa was governed mainly by structural !actors, the .. productive mix ... with population density

23 Bruce, J. &Migot-Adholla, 5., eds. 1994.Searching for land tenure security in Africa.Washington, DC, and Iowa, USA. World Bank and Kendall/Hunt 2"FPP.2001. Indigenous peoples and protected areas: from principles to practice. September Conference Proceedings.Kigali, Rwanda, Forest Peoples Project. 30Platteau, J.-P.2000. Does Africa need land reform? In C. Toulmin& J. Quan, eds. Evolving land rights, policy and tenure in Africa. London, DFID/IIED/NRL nBahuchet, S., Grenard, F. & de Maret, P. 2001. Tropical forests, human forests: an overview. Vol. l.Brusse!s, Avenir des Peup!es des ForEtsTropicales. 87

13 being a critical factor guiding the evolution of land-use systems32 for an overview of the debates). However, more recently it has been accepted that ··land concentration is not necessarily the most imp01iant or even a major determinant of African agricultural performance", and that 33 "under customary law access to rights in land was often based upon social identity" . Indeed, many of these customary regimes are regional and interethnic and provide differentiated rights of tenure or access to different social groups.

Reviews of the common features where "customary tenure principles and local regulatory systems prevail'" in Africa overwhelmingly emphasize the importance of social status in gaining and securing access to natural resources, and the social aspect of securing and holding land rights 34 under customary systems is critical for indigenous peoples . Location, culture, status and production system all affect how most rural Africans access and maintain property rights. These rights are often overlain across land fanned or otherwise used by others. The "bundle of sticks" analogy holds: rights can be distributed across many different parcels of land for different purposes, and even though most of the rights cannot be sold, they are oflcn divisible, individual rights transferring easily between individuals or groups. This system of validation and exchange is underpinned by the maintenance of social relations between the different groups who are involved, including indigenous peoples, many of whom face social discrimination from society and the state.

Most land held under African customary tenure rules can be considered lo be "common property", in the sense that land is considered the property of defined collectives and is subject to, and managed in accordance with, detailed customary laws that regulate access by groups and individuals35 The notion is not without perils, however, as in some instances "common property regimes" have been used as an excuse by administrators to treat indigenous peoples lands as

3;Mortimore, M. 1997. History and evolution of land tenure and administration in West Africa. Issue Paper No. 71. London, International Institute for Environment and Development. HBerry, S. 1988. Property rights and rural resource management: the case of tree crops in West Africa. Cohiers des Sciences Humaines, 24(1): 3 - 17. 3\avigne-Delville, M. 2000.Harmonising formal law and customary land rights in French speaking West Africa.Inc. Toulmin& J. Quan, eds. Evolving land rights, policy and tenure in Africa, pp. 97 · 121. London, DFID/IIED/NRI. 'Bruce, J. &Migot-Adholla, S., eds. 1994.Searchmg far fond tenure security in Africa.Washington, DC, and Iowa, USA, World Bank and Kendall/Hunt.

14 ·'common pool resources" and taken over by the state to be allocated to other interests, including land speculators, conservation organizations and logging interests.36

Indigenous peoples will also need to address questions about how to validate their claims to land and resource rights. Documentation of their customary arrangements, by community mapping, historical research or through the recording of oral history, is needed if they are to enter into constructive negotiation with states and before they are totally disenfranchised because of the pressures bearing upon them and wider society as populations grow, towns extend and lands become more scarce.

A central platform of refonns now being proposed should emphasize the impo11ance of community-based solutions, perhaps facilitated by outsiders, and a re-institutionalization of indigenous land tenure, without replacing existing customary systems. 37 Governments should look to ways to legalize customary arrangements that protect indigenous peoples· rights. The integration of received and indigenous law will be a corollary of this, and states will have to recognize community-based tenure and customary rights in law. This is possible if governments are able to overcome the political obstacles now preventing the institutional reforms that are needed to address the chronic and growing poverty and land insecurity that indigenous communities now face in Africa.

2.2.3 Tenure systems in Uganda. In Uganda, according to the 1995 Constitution and the Land Act l 998". land is managed under four basic land tenure regimes: customary, mailo, freehold, and leasehold. These regimes confer different land rights to the owners and therefore have different implications on security or tenure.

Customary Tenure

The most common tenure system in Uganda is customary tenure, which the Land Act recognizes as governed by customs, rules. and regulations or the community.-1'' ln this system, landholders

36FPP.2001. Indigenous peoples and protected areas: from principles to practice. September Conference Proceedings.Kigali, Rwanda, Forest Peoples Project. 37 Platteau, J.-P.2000. Does Africa need land reform 7 In C. Toulmin& J. Quan, eds. Evolving land rights. policy and tenure in Africa. London, DFID/IIED/NRI. 38 Cap 227 as ammended 39Uganda, Ministry of Lands, Housing and Urban Development. 1998 Land Act of Uganda. Kampala, Uganda. 2010 Land Amendment Act of Uganda. Kampala, Uganda.

15 do not have a formal title to the land they use, although A1iicle 237(4)(a)stipulates that all Ugandan citizens owning land under customary tenure may acquire ce1iificates of ownership in a manner prescribed by Parliament.40

More than 80 percent of the land in Uganda is held under unregistered customary tenure. Despite the lack of registration, customary tenure is recognized by the state (A1iicle 237(1) of the 1995 Constitution of Uganda).

Freehold Tenure

Freehold tenure is a system whereby owners of the land have a deed to their land that allows them to hold the registered land indefinitely. Landowners are given complete rights to use, sell, lease, transfer, subdivide, mortgage, and bequeath the land as they see fit, so long as it is clone in a manner consistent with the laws of Uganda. These rights are well respected by the state. However, freehold interests in land are not widespread; they were formerly established and limited to a small category or individual's kings, notables, and chiefs; large-scale agricultural estate developers; and some special interest groups such as the Protestant and Catholic churches. 41

Leasehold Tenure

In the leasehold tenure system, the owner or the land grants the tenant exclusive use of the land, 2 usually for a specific period of time in accordance to the rules in the Land Act 4 . Land may also be leased from the state to individuals for typical lease periods or 5, 45, or 99 years. In return, the tenant usually pays an annual rent or service under specified terms and conditions. Leaseholders may or may not hold formal contracts with the owner. Lease holders arc not required to be Ugandan citizens: the other forms or tenure arc, however. available only to Ugandan citizens.

4°Constitution of the republic of Uganda. 41Bikaako, w., and J. Ssenkumba. 2003. "Gender, Land and Rights: Contemporary Contestations in Law, Policy and Practice in Uganda." In Women and Land in Africa: Culture, Religion and Realizing Women's Rights, edited by L. M. Wanyeki, 232-277. London: Zed. 4 -' Cap 227 laws of uganda

16 2.3 Forms and Nature of Land Acquisition.

2.3.1 Globally.

With the illustration of Kenya, there are several ways of acquiring land but there are most prevalent one that also apply to our research. With the use of case law, in Asher v. W!titlock43where in 1850, Williamson took possession of land enclosed some manorial land on which he built a cottage. He lived there until he dies in 1860. By his will he devised the land to his widow as long as she remained unmarried, with the remainder to his daughter in fee simple. The widow and the daughter continued to live in the cottage: and in 1861 they were joined by the defendant, who had married the widow. ln 1863 both widow and the daughter died: and the defendant continued lo live in the collage .in 1865 the plaintiffs, the heirs of the daughter, sought lo remove the defendant; and they relied on the better right to possession of Williamson which they had inherited from his daughter. The plaintiff succeeded.

According lo Boaz Amoro,"4communily land is vested in and held by communities identified on the basis of ethnicity, culture or similar community of interest, by this he meant that a communal land shall consist of lawfully registered in a name of group representative by any process of law: any other land declared to be community land by the an act of parliament; and any other land that is lawfully held.managed or used by specific communities as community forest,grazingareas or shrines: ancestrallands traditionally occupied by hunter-gatherer communities; or lawli.illy held as trust land by the county governments but not including any public land held in trust by the county government under Article 62(2) of the Kenyan Constitution

Further the constitution of Kenya provides that any unregistered community land shall be held in trust by county government on behalf or the communities for which it is hcld. 45 Amoro asse1ied that this did not begin with constitution or Kenya 20 I 0.ltmainly existed in the early 1890s. An example of communal land was any land which community conquered. The land would then be divided into polygamous families because those were the most prcvalent.4(,

4 ' Asher V Whitlock( 1865)L.R. 1 Q.B.1( court of Exchequer Chamber,Cockburn C.J., mellor and Lush JJ. 44 Boaz AmoroNyakeri (2012).Land Law: The Concept of Ownership and The Acqusition Rights of Land In Kenya. "Constitution at Kenya ,2010.Article 63,(1-3). ·''onaloP L. (2010). Land law and Convenycing in Kenya.LawAfric.Nairobi:Kenya.Pg34 Pg 2&3

17 Research has it that land in Africa is acquired through conquest. In Kenya this is mainly characterised by traditions. One author stated that power to acquire land in East Africa remained unresolved He further gave ways in which title were acquired and this was through conquering, treaties agreements and purchase.4711 was an inter-clan warfare and the clan that worn acquired the land. An example is the conquest which occurred in Kenya between the luo Nyanza and the Abaluhyia of western Kenya. 48

Evenly, a clan from which land had been conquered could re-conquer that same land or the strongest man with the group of more closely related persons in the clan could move to other places and conquer land49

Boaz Amaro, in his literature stated that Land can be acquired through traditional transfer of land in Africa especially in East Africa. If one was from a different grandfather but of the same clan, he could acquire temporary title of land. 50Land could be acquired by different person, and group rights in particular areas of land or common prope11y rights also existed. These different rights in land could be transferred from one generation to the next. The common examples noted in Kenya include Banyore, BakhayoansBamrach from the Luhyia community.

Research has proved that land in Africa can acquired be as a gift .it is common in Kenya, Nigeria and Uganda. However this should be understood with a close distinction with inherited land. Land transferred as agift is mainly held and used without payment. Inheritance is the practice of passing on property and obligations upon the death of an individual. It has long played an important role in human societies especially in the rights of acquisition. The rules of inheritance 51 have differed between societies in Africa and have changed ove11ime. . In law an heir is a person who is entitled to receive a share of the deceasecl"sproperty, subject to the rules of inheritance inthe jurisdiction where the deceased died or owned properly at the time of death. When an heir cannot be identilied, the land reverts back to the state52

4 'okoth~Ogendo.(1991). Tenants of the crown: Evolution of Agrarian Law and lnstitutins In Kenya. ·' 'onalo P L. (2010). Land law and Convenyacing in Kenya. Law Africa.Nairobi: Kenya.pg 34. Para 1 ., 'Ibid, pg 34 :, ·onalo PL. (2010). Land law and Convenyacing in Kenya. Law Africa. Nairobi: Kenya. Pg35.Para3 ', Boaz Amaro Nyakeri (2012).Land law: The Concept of Ownership and The Acquisition Rights of Land ln Kenya : Constitution of Kenya, 2010. Article 62(1) (e)

18 Acquisition of land can also be by adverse possess10n. In law adverse possession rs the occupation of the land of another against his wish and in opposition of his tile. Where such possession continues without the inte1rnption of an eviction for a period of over 12 years, then the squatter becomes legally entitled to the land by operation of the doctrine of adverse possession. This in the view of Boaz Amaro is another way of acquiring land in Kenya and Africa at large

2.3.2 Forms and Nature of Laud Acquisition in Uganda

The global rush for land acquisition has not left Uganda untouched. Literature show that forms and nature land acquisition in Uganda date back to pre-colonial times. However the wave has intensified for large-scale investments.

Research has it that land acquisition is through buying, concessions and forced entry. Uganda's land law requires that transfer of land ownership should be agreed upon by the land owner and the bonafide occupants and the new owners should respect the bonafide occupants. The law in Uganda stipulates that land may be sold to a willing buyer at free will but it also recognises that bonafide occupants should be given first opportunity before the land is sold. 53

Research has that the buying and selling of land is, more or less a closed deal between the buyer and the seller without consulting the bonalide occupants as prescribed by the constitution and subsequent Land amendment Act. Literature also has it that land district land onicials. local council chiefs and area land boards are never consulted when deals are negotiated and executed

Men and women of Moyo have established different relationships with nature specifically the relationship with lands have attained the most significant impact that is ugri-Culture. It is the land they all get food from, the material li.1r cloth and shelter. build landscape around them, the forests, contribution to a natural growth or people and the development of their identity. It docs not increase nor does it expand to accommodate the e,·cr rapid expanse of the population. This therefore means that there arc always bound to a rise tensions as far as the acquisition of this ll1ctor of production is concerned. To this society, land in its· sell' is a source of hcritance and equally offers a sense of belonging. People of a particular clan arc usually named according to

53The 2009 land Amendment !\ct

19 the place where they emanate from. Land should not just be seen from its bear form, to the greater perspective it's a source of security both physically and financially to the people. But the bigger question remains if this has been developed to remedy this lacuna

Land tenure is often categorized as:

Private: the assignment of rights to a private party who may be an individual, a married couple, a group of people, or a corporate body such as a commercial entity or non-profit organization. For example, within a community, individual families may have exclusive rights to residential parcels, agricultural parcels and certain trees. Other members of the community can be excluded from using these resources without the consent of those who hold the rights. This right basically falls under the freehold system of land tenure. In real sense this is the most common avenue of land acquisition in this area of research.

• Communal: a right of commons may exist within a community where each member has a right to use independently the holdings or the community. For example, members or a community may have the right to graze cattle on a common pasture, fetch water from a common place and even at times a common hunting place. Communal land ownership usually but not always springs from traditional point of view. Open access: According to section 25," common land management scheme may include common land used for communal grazing and watering livestock. Specilic rights are not assigned to anyone and no-one can be excluded. This typically includes marine tenure where access to the high seas is generally open to anyone: it may include rangelands, forests, etc, where there may be free access to the resources for all. (An important difference between open access and cornrnunal systems is that under a communal system, non-members of the comrnunity are excluded from using the comrnon areas.) • State: property rights arc assigned to some authority in the public sector. For example, in among the East African Countries. rorcst lands. mineral rich areas fall under the mandate 01· the state. whether at a central or decentralized level of government. Even the mineral resomces that lies under the ground are said to

q The 1998 land Act as amended

20 belong under the control and confines of state authority on behalf of the citizen. However A11icle 23755 seems to be saying something a little bit different. It does provide that land in Uganda shall vest in the citizen, this seems too vague because under clause 2 (a) of the same time m1icle this right seems to have been technically taken away from the people in the name of the public good. In other words individual rights and benefits must be traded for the so called "'public interest" and yet the international Bill of Human Rights categorically states that while the right to prope11y is an internationally accepted human right, with regard to indigenous people, their collective interest and relationship with the concerned land is recognized, and thus their integrity with the total environment of the areas which the people concerned occupy or otherwise use shall be respected and maintained. Therefore, the rights of the people to pm1icipate in, and be consulted with regards to decisions taken which affect their lands, helps create sustainable developments likely to benefit everyone. But the real debate still rotates around the adequacy of compensation that is usually given to those whose land has been taken to meet or satisfy pub! ie benefit.

In practice, most forms of holdings may he found within a given society, for example, common grazing rights, private residential and agricultural holdings, and state ownership of forests. Customary tenure typically includes communal rights to pastures and exclusive private rights to agricultural and residential parcels. In Uganda under the national objectives and directive principles of state policy, the state is mandated under part 12 in ensuring social justice to regulate the ownership, use and disposition of land in trust for the people. 56 Unfo11unately despite this wonderful wording of the constitution, little consultation is carried out when the government wants to take away such private rights because the public interest lends to override everything.

The right that a person has in an object such as land may be considered as property. The range of property is extensive and includes. lt,r example, intellectual property. In the case of land tenure. it is sometimes described more precisely as prope11y rights to land. A distinction is often made between .. real property.. or .. imrn,nablc property" on the one hand. and "personal

''\he constitution of the republic of Uganda

'.,f, The 1995 constitution of the republic of Ugand;i

21 property .. or ··movable prope11y" on the other hand. In the first case, prope11y would include land and fixtures (buildings, trees, etc) that would be regarded as immovable. In the second case, prope11y would include objects not considered fixed to the land, such as cattle, etc.

Just like in other literature review, in this community (Madi) there are equally other ways through which people acquire land:

• Purchase, often using capital accumulated while working as migrants in urban areas. (Freehold). • Adverse possession or prescription (the acquisition of rights through possession for a prescribed period of time). In some countries, this may be the only method for small farmers to gain formal access to vacant or abandoned land and to bring it into productive use. However this shall only take legal efficacy if the acquiescence has taken a period of twelfth years and above. • Leasing, or gaining access to land by paying rent to the owner especially Town council because most of the Ieasable land in not individually owned. • Sharecropping, or gaining access to land in return for paying the owner a percentage of the production. • Inheritance or gaining access to land as an heir. , Squatting illegally on land especially by the Sudanese tribe known as Kulm who first came as refugees and then lost this title at the independence of South Sudan but refused lo return.

2.4 Conflict between ways of transacting land in statutory system and in communally owned land.

2.-l. l Regionally The system or land tenure in the wide perspective of regional organization is almost the similar the world over basing on the following analysis. To that extent the housing crunch has also led to occasional hostility between displaced landowners and the chiefs and dcvdopcrs they perceive lo be benefiting I'rom their calamity. This stems from the fact that the traditional hereditary chiefs ,,idd a lot 01· powers over their subjects. Recent studies report that customary o,,·ncrship rights in rural areas. too, arc becoming kss secure as commcn.::ial transactions and de, dopmcnt

22 increase. The homelessness, pove1ty, and violence spnngmg from these prope1ty failures demonstrate that land tenure security is a problem not just of economic development, but of human rights. Government interventions meant to address these problems have sometimes worsened them. Well-intentioned but ill-considered land reforms can exacerbate the division between custom and statutory law, leaving vulnerable groups such as women with less protection than they had under customary systems. Several governmental acquisitions of vast tracts of land in high-pressure urban areas only compound the problem, especially when that land is cleared and then left unused. Shanties and kiosks begin reappearing almost overnight, stubbornly asserting customary claims in the face of government bulldozer. "Everybody truly knows the law." Customary laws claim such popular legitimacy in pmt because they "are not expressed in esoteric language requiring a great learning ... to fathom their meanings. They are in simple language which requires no pmiicular expertise or training to understand." In addition to this apparent transparency, customary law remains more grounded in personal relationships, social status, and constant negotiation. As in many traditional societies, "not one group but a hierarchy of groups is the focus of land rights, with each ascending group larger and embracing several groups of the next lower order, pyramiding toward a king or paramount chief of the tribe." This system of rights embeds land rights within a well-established social structure-the tribe in some places, the clan or family in many others-that exists outside of the world of statutory law. Ghanaian customary law begins from the basic tenet that all land has an owner. In fact. nearly all land has multiple owners, with a chief holding the highest title, and numerous other rights­ holders claiming lesser rights of possession, use. or trans/er. This embedding of the individual's land rights within ce1iain group or secondary rights is perhaps the major difference between customary and Western property law. In tying together dilkrent land rights, customary law builds on the social and political structures, such as the chicltaincy, that play an important part in many Ghanaians· lives. The Law Reform Commission of Ghana identilicd !'our specific categories of interests in land in Ghana. which \I ere subsequently officially recognized in the Land Title Registration Law of I 986.The customary rights in land described above can be acquired in a \\·iclc variety or ways, including grant. rent. share contract. inheritance. and gill. The forms and mechanisms of transfer under customary la\\ arc of course drawn from tradition. but also reflect the contemporary social and economic needs t>f each indi, idual area. Subjects of a chief can sometimes claim a tract of unused sto(>I land free of charge simply by I inuc of their

23 membership in the stool community, though population pressures have made such unused land increasingly rare. A "stranger" (a member of another tribal community) can acquire interest in stool land by explicit grant, contract, or some other means of transfer. Residency or use of land, however, will not suffice: Long undisturbed possession by a non-owner, whether a trespasser or a person with a limited interest, cannot ripen into title to land under customary law. When stool land is allocated, recipients of stool land pay "drinks money" to the proper chief, after which no additional rent-type payments are generally required. Though this drinks money was traditionally paid in the form of kola nuts or schnapps, today it can amount to millions of cedis in cash, essentially reflecting a purchase price. The chief generally does not share these payments with the rest of the community, since their original function was as a symbol of allegiance to the chief, not as valuable. The exact form of land transaction varies greatly from area to area, and government attempts to impose uniformity on customary modes of inheritance and other forms of transfer have largely failed. Even without formal state mechanisms, customary transactions are usually accompanied by some kind of traditional publicity or other "documentation, .. often the presentation of some small bit of prope11y such as drinks or an animal. In many Akan areas, for example, the guaha ceremony accompanies all land sales. Since written documentation is not sufltcient (and may not be necessary) to affect a valid transfer of customary land rights, these ceremonial requirements help facilitate and guarantee customary. The African continent is experiencing m,tjor processes of social transformation. Population pressure is increasing in many parts of Africa, and competition over land is rising as a result and rapid development or slum dwellers usually settling on encroached plots of land illegally occupied. Urban settlements are growing last, encroaching on agricultural land and attracting youths from rural areas. In many places, livelihoods arc changing, in some cases towards greater diversification - with many rural households increasingly relying on a range or on:rann acti, itics in rural areas. as well as on income from urban areas. Local production systems are becoming more integrated into the global economy. with cxp01i crops expanding into areas preYiously used for locally consumed products. International migration generates 1mtjor financial !lows (remittances), which may affect local relations in the home country. Socio-cultural change dri,en by the cheaper communication technology and easier cultural exchange is affecting the "ay "tradition .. is interpreted. Government policies and laws struggle to be prnpcdy implemented in rural areas. but nonetheless pr,,duce intended or unintended outcomes that alkcl social relations on the ground.

24 These and many other changes have important repercussions for local land relations, and are affecting the way "customary'' tenure systems operate. This trend shows some of the main factors driving change in ··customary" land tenure. The relative importance of these "drivers of change" varies very substantially across and even within countries. The implications of similar changes for different land tenure contexts are also likely to vary. While the land tenure implications of some of these factors are well documented and given legal authority, for others linkages are likely but not empirically documented.

2.4.2. In Uganda 57 Customary tenure fits the description of land ownership in the "traditional African sense" , in which land is a resource for which people have use-rights. In this understanding, unconditional individual ownership of land is not allowed but access to land for individuals, in accordance with community authority, is encouraged. 58 Literature has it that the majority of Ugandans, however, perceive ownership of land in the "traditional African sense," according to a national survey where 75 percent of respondents claimed they owned land, although 95 per cent of Ugandans do not have land titles.''' In contrast the Ugandan government holds the view that land ownership in the "traditional Afi·ican" sense is inenicient and delays development. The government argues that this understanding impedes the transformation of the country from a peasant-based culture to

· · NI a mo cl crn eeonom,c society. Reconciliation of customary and statutory property law in Africa has never been more important, or more dirlicult. than it is now. This assertion and view by the government does not seem lo fit into the legal framework because such rights of land ownership arc guaranteed clearly under the laws of Uganda. Most literatures show countries across Africa are currently struggling to create rational, crlicicnt land policies that merge modern statutory law with the traditional customary law that governs many people's day-to-day lives. The costs of failure, of the divergence between formality and reality. can be alarming. The government bulldozers that destroyed thousands of homes and businesses throughout Zimbab\\ c in the summer of 2005 as part of President Robert Mugabc·s Operation Dri,·c out Trash gm·e a particularly vivid representation of this battle. This sad episode would not have happened if open and sober mindedness was allowed to reach to the

"Pottiers 2007. 18 Atwood.100-;Aultand Rutman, 1979;Barrows ans Roth,1990. ;,,;,:,', Ministry of !ands ,Housing and urban Developmi:•nt,2011:174 ,,. Republic of Uganda .2010: 173

25 ·-··. . . ·------~,

realities on the ground of what people actually want Those homes, like the shanties, kiosks and unofficial markets that make up a large share of Africa·s "informal" economy, existed outside of Zimbabwe's formal law. This made them, in Mugabe's vision, ""trash." Although some scholars have begun to address the issue of how property rights transition from customary or Marxist systems into private capitalist systems, few have taken on the difficult and relatively unglamorous task of proposing feasible, country-specific solutions for how custom and informal rights can be integrated with statute into a nationwide economy. Research shows that for decades, many African governments have sought to replace ''customary" land tenure systems with a "modern" system of prope1ty rights, based on state legislation, on European concepts of ownership and on land titling and registration. This is paitly because, since colonial times, customary land tenure was held not to provide adequate tenure security, thereby discouraging investment and negatively affecting agricultural productivity.61 In order to address these issues, African states took on a key role in regulating land relations - either directly, through land nationalization, or through registration programmes aimed at creating private ownership rights. This central role of the state in land relations was to promote agricultural development on the one hand, and to control a valuable asset and a source of political power on the other while at the same time maintaining some political order. However, in much of rural Africa, lack of financial resources and of institutional capacity in government agencies, lack of legal awareness and, ofien, lack of perceived legitimacy of oflkial rules and institutions have all contributed to limit the outreach of state interventions. With the need to increase agricultural production and also protects the vulnerable indigenous groups in the country, access debate has been focused on reviewing the status of land ownership in the country with specific reference to mailo and customary land ownerships despite their recognition in constitution. This social reality has contradicted the state initiated interventions. especially in customary ownership where access lo land was guaranteed to indigenous population by legally encouraging customary land holders form an association lo acquire a ce11ificate of customary ownership which could be used as a sectwity for securing funding from banking institutions. However, this process or registering communal land has made very little progress as people percci,-c land as an inheritable not a commodity. Even banks do not recognize certificate or customary ownership as a guarantee for accessing loans by the holders thus meaning that there is little access to ,iablc liquid linancial

1 \" Swynnerton,1954;Wilson,1971

26 supp01i to the owners of such plots of land. The 1998 Land Act62 recognizes any person, family, community or Association holding land under customary tenure may conve1i the customary tenure into freehold. Members may agree to set out their rights and duties of an individual or families who belong to this association and apply for a certificate of ownership or a freehold title. Ce1iificate holders can thus have access to credits. Financial institutions, bodies, and authorities are obliged to recognize a ce1iificate of customary ownership as a valid ce1iificate for 63 the purposes of evidence of tit!e •

What is this certificate of customary ownership all about? It is a document that can be acquired by any person holding land under customary tenure and it is issued by a recorder (sub-County Chief). It confirms and concludes an evidence of customary rights and interests specified in it. This certificate also means that any transaction on it to third party rights shall be exercised in accordance with the customary law; section 8(1) of the Land Act 1998, cap.227. To obtain a certificate of customary ownership, the applicant(s) must have a customary land without dispute on it. In case of dispute it has to be resolved first. Neighbours have to be present when Area Land Committee is marking the boundaries. An applicant submits a complete form to the Area Land Committee together with application lees. Area Land Committee puts a notice in public place which runs for 14 days to give time for those with claims on the same land to come up. The Area Land Committee confirms the boundary by way of land inspection. Despite this well articulation conl1icting interests arc bound to arise when a group realizes that it has been cheated. Secondly due the ever growing population land is most likely to be parcelled out in tiny plots with barely any economic viability.

2.5 How can the two regimes compliment each other.

2.5.1 Regionally Customary land tenure was communal. an aspect which has nceci,·cd admiration from a number or scholm,. T,ibal leadedchiefadminislcnxl tlic !mid ftir ,me! on bchalforhis subjc-cts mid would allocate it lo tliose in need for cultivation or crops. With dismm1tlc orTrnditional ruleic; in Tmmmia at the time or independence in 1961

61 Cap 227, Laws of Uganda. 63 FAO 2010.

27 and in subsequent legislation (e.g. Act No. l of 1965), tl1e customaiy land temu-e was left to die at1d individuals occupied and acqui1-ed lat1d in what is aldn to a modem matket situation. In 1-ecent studies in Msat-anga Moshionly 15% ofnew land occupiers obtained their land witl1in tl1e Chagga trnclition of inhe1iting from pat-ents. S.12 of Act No. 5 1-ecognizes tl1is fact at1d provides for th1-ee categrnies of village lat1d: the Commtmal Village lat1d, tl1e individual/family/group lat1d and the lat1d that can be allocated to individuals at1d

2.5.2 In Uganda Land administration is the way in which the rules (laws) of land tenure are applied and made operational. Land administration, whether formal or infonnal, comprises an extensive range of systems and processes to administer; in the district this usually undertaken by the district land board especially land that is not owned by any private individual;

• Land rights: the allocation of rights in land; the delimitation of boundaries of parcels for which the rights are allocated; the transfer from one party to another through sale, lease, loan, gift or inheritance; and the adjudication or doubts and disputes regarding rights and parcel boundaries. • Land-use regulation: land-use planning and enforcement and the adjudication or land use conl1icts. • Land valuation and taxation: the gathering or revenues through forms or land valuation and taxation. and the adjudication or land valuation and taxation disputes. In other words this falls broadly as property tax.

Research has it that Information on land. people, and their rights is l'undamcntal to effective land administration since rights to land do not exist in a physical l'orm and they have to be represented in some way. In a formal legal setting. inf,mnation on rights, whether held by individuals, families, communities. the state, or commercial and other organizations, is orten recorded in some form or land registration and cadastrc system. In a customary tenure environment, information may be held, unwritten, within a community through rnllectivc memory and the use or witnesses. In a number or communities. those holding inl the rormal state administration. ,\ml still this informati,)[1 seems to be spreading sentimental ideas based on

28 discrimination of a certain group of people contrary to A11icle 32 of the constitution of the republic of Uganda.

The idea of enforcement or protection component is that it ensures effective land administration since rights to land are valuable when claims to them can be enforced. Such a component allows a person's recognized rights to be protected against the acts of others. This protection may come from the state or the community through social consensus as described below in the section on ''Tenure Security". A stable land tenure regime is one in which the results of protective actions are relatively easy to forecast. In a formal legal setting, rights may be enforced through the system of comts, tribunals, etc. In a customary tenure environment, rights may be enforced through customary leaders. In both cases, people may be induced to recognize the rights of others through informal mechanisms such as community pressures.

In addition to such individual strategies, access to land can be provided systematically through land reform interventions by national governments, often as a result or policies to correct historic injustices and lo distribute land more equitably. Such land reforms usually occur in situations where much or the land is owned by a relatively small number or land owners and the land is idle or under-utilized (although it should be noted that determining whether land is under-utilized depends on the criteria selected for the assessment). In some countries, land restitution has been an important type or land reform. Other land reform interventions include land redistribution programmes which aim at providing the rural poor with access to land and promoting erliciency and investment in agriculture. These programmes are olien, but not always, accompanied by provision or subsidized agricultural services such as extension and credit. In some cases, the state has provided access lo idle or under-utilized public land but most often private land holdings have been the source of' land fi)r resettlement purposes.

ln imposed redistributive land reforms. land is taken from large land holders by the State and transferred to landless and land-poor Canners. Compensation has been paid to the original owners in some reforms but not in others. In some cases, the ret'onns have benelitcd the tenants who worked the land. Such reforms change the structure of land ownership by translixming tenants into owners but d,, n,,t change the operational holdings. In other cases, the rcltmns have innilved

29 the resettlement of beneficiaries on the expropriated lands and the creation of new farming operations.

Some recent land reform initiatives have been designed so that beneficiaries negotiate with land owners to purchase land using funds provided by the State in the form of grants and/or loans. Beneficiaries are usually required to form a group which identifies suitable land, negotiates the purchase from the seller, formulates a project eligible for state grants and/or credit, and determines how the land will be allocated among the members of the group and what their corresponding payment obligations will be.

While there is broad consensus that land refonn plays an imp01iant role in rural development where land concentration is high, great controversy surrounds the choice of mechanisms to transfer land from large land owners to the landless and land poor. However, this debate is well beyond the scope of this guide to address.

2.6 How to transform procedure of Land Acquisition"? Policies and legislation must recognize the many facets of land rights and usage. Above all, poor rural people must be empowered to participate in policy formulation to ensure that their needs and rights arc addressed and protected. Securing land rights is a complicated business. Land tenure systems can be formal or informal, statutory or customary, permanent or temporary. Some are legally recognized, others are not. Some involve private ownership; others arc based on common property. There is no single solution. Legally registered individual land rights are not always

The constitution of Uganda 1995 guarantees the right to own property either individually or in common."4 One or the most important aspects or this constitutional guarantee is the fact that it offers no limitation on any person from owning prope11y. However to me this is a blatant right that needs a bit of amendment to suit to what's on the ground.

It will be rele,·ant to mention the purpose of land registration and its legal basis in Ugandan context. The most li.mdamental purpose of land registration in Uganda is lo establish certainty of ownership, rights to land and collecting revenue (tax). Other important purposes arc to facilitate

6 1 ' Article 26.

30 the transfer of land and other land-related activities and to provide easy access to information about land. The legal framework forms the backbone of both civil and criminal justice system, setting out kind of actions that are viewed as infringing the 1ights of individuals; at the same time outlying out the procedures for investigating, prosecuting and bringing to book those who are suspected of being in violation of the rightful owners rights. Land being a source of pride and security to those that hold proprietary interests in it, it therefore becomes a question of fact whether the legal regime is capable of protecting those who are vulnerable. Understanding this pmi of the law, helps us to understand how well or ill equipped the state and its branches of enforcement are tackling the problem of land wrangles and encroachment

2.7. Gap identified from existing literature. Access to land for the rural poor is olien based on custom. Customary rights to land in indigenous societies, for example, are usually created following their traditions and through the ways in which community leaders assign land use rights to the community members. According 65 to J.T Mugambwa , this system of land tenure is usually governed and regulated by customary principles and sanctioned by customary authority. These rights of access may have their origin in the use of the land over a long period. They are oflen rights developed by ancestral occupation and by the use of land by ancestral societies. In such cases. it is through the act of original clearance of the land and settlement by ancestors that rights are claimed. The major form acquisition land in this region is basically through inheritance especially the customary land, which usually vests in the male members of the family. In other word the female sex arc not taken into consideration as far the apportion of land is concerned. However this seems lo be contrary to Article 24<,<, that provides that every person is equal before and under the law and should be protected against discrimination. However despite the affirmative actions taken by the government of Uganda under Article 33 of the constitution, towards the protection of the rights of the female sex is concerned when it comes to especially property inheritance. culture seems to have taken the lead in the exploitation of the rights or,,omen. Its either clue to lack or awareness. ignorance or total disregard to the calls or the law and the society seems to be reluctant in addressing this lacuna. However this is the most common way or land acquisition the other ltmns like the granting or leases and not vibrant.

5:,Mugambwa J. T. principles of !and law in Uganda at page 23 66 Constitution of the Uganda

31 ------,--

Holding land alone is just enough; people have to be protected against the infringement of their rights. Security of tenure is the certainty that a person· s rights to land will be recognized by others and protected in cases of specific challenges. People with insecure tenure face the risk that their rights to land will be threatened by competing claims, and even lost as a result of eviction. Without security of tenure, households are significantly impaired in their ability to secure sufficient food and to enjoy sustainable rural livelihoods. The failure to ensure the protection this right usually leads to general insecurity and chaos in the community.

Security of tenure cannot be measured directly and, to a large extent, it is what people perceive it to be. The attributes of security or tenure may change from context to context. For example, a person may have a right to use a parcel or land for a 6 month growing season, and if that person is safe from eviction during the season, the tenure is secure. By extension, tenure security can relate to the length of tenure, in the context of the time needed to recover the cost of investment. Thus the person with use rights for 6 months will not plant trees. or invest in irrigation works or take measures to prevent soil erosion as the time is too short for that person to benefit from the investment. The tenure is insecure for long-term investments even if it is secure for short-term ones.

The importance or long-term security has led some to argue that full security can arise only when there is full private ownership (e.g .. freehold) as, under such tenure. the time for which the rights can be held is not limited to a lixed period. ll is argued that only an owner enjoys secure rights, and holders or lesser rights. such as tenants, have insecure tenure because they are dependent on the will or the owner. It is then implied that security or tenure comes only with holding transfer rights such as the rights to sell and mortgage. Equating security with transfer rights to sell and mortgage is true fix some parts or the world but it is not true in many others. People in paits or the world where there are strong community-based tenure regimes may enjoy tenure security without wishing lo sell their land. or without having the right to do so, or having strictly limited rights to transfer (e.g .. transfers may be limited to heirs through inheritance. or sales may be restricted to members or the community).

The sources of security may also vary from context to context:

32 • An important source is the community and its specific groups such as local farmers' organizations and water users· associations. When neighbours recognize and enforce a person's rights, that person's security increases. In many customary tenure arrangements, people gain property rights through membership of social communities. Maintaining property rights validates membership in the group just as much as membership facilitates the acquisition and safeguarding of property rights. • Governments represent another source of security as they may provide political recognition of some rights. For example, a government may accept the illegal encroachment and settlement of a community on state forest lands and undertake not to evict it. However, in doing so, a government usually recognizes the right of the community lo occupy the land, but does not go as far as recognizing the rights of individual people within the community. • Another source may be the administrative stale and the formal legal system. The state may provide security in general by affirming the rights that people hold as well as through specific measures such as providing protection against trespass. Security is often seen to come from protections provided through land registration and cadastral systems, with adjudication of disputes taking place in the formal court system.

The total security enjoyed by a person is the, cumulative security provided by all sources. In many cases. increasing security from one or more sources will result in an increase in total security. In many development projects. providing or improving legal security is considered the most important way of increasing security or tenure. Examples or land tenure reforms include the upgrading or informal rights lo legally c,nforcc,able rights; the upgrading of slate-issued permits to leases that provide greater protection lo the land users; the introduction or provisions for communities lo become the legal owners or their traditional land holdings instead or the rights being \TS!Gd in the State; and better dclinition of properly rights through improvements to formal land administration systems.

A person·s security or tenure may be threatened in many ways. Ironically. attempts to increase the legal security of' some may result 111 others losing their rights. For example. titling and registration projects. if' poor!; designed. can reduce security of' many rural residents by foiling to rccogni1.c certain rights, oltcn held by" <>men and the poor. and all,m ing them to be merged into

33 simplistically conceived ''ownership" rights. The rights to impo1iant use of the land, for example, to gather minor forest products or to obtain water, may not be recognized by the legal system and may be effectively destroyed as a result. Of course, other types of development projects can also result in the loss of rights to land.

Rights may also be reduced or eliminated if the state statis to enforce existing rules that prevent access to resources. For example, more rigid enforcement of state policy on forest conservation may result in villagers being evicted from land which they have been using for agricultural and grazing purposes. And of course this does not leave out land that is mineral rich.

The societal approach and its out look to given members can as well be source insecurity. The most immediate is the everyday social changes. HIV/AIDS, for example, is impacting the security of women in patis of Africa. Widows may lose access to land in a legal sense if they are unable to inherit rights from their husbands and in a practical sense if they are forced off the farms by male relatives.

People may lose rights when others ignore land tenure rules. Exploitation of unequal power relationships within communities, for example, may result in some members fencing off portions of communal lands !or their own exclusive use, thereby denying access by other members of the community to shared grazing lands.

Landlcssncss may occur, of course, for reasons other than insecure tenure. Some may sell their land through .. distress sales'' (forced sales) in order to survive in times of crises such as famine, sickness or other calamities. Other reasons for selling land may include the need to meet social pressures such as providing a dowry for daughters upon their marriage.

34 CHAPTER THREE

3.0 LEGAL AND INSTITUTIOAL FRAMEWORK ON LAND ACQUISITION Al'ID OWNERSHIP.

3.1 INTRODUCTION Land Acquisition is simply another term for gomg out and getting some land. Typically acquisition simply means to buy it. You can also acquire land through inheritance and gift. There is also land acquisition through adverse possession, which is a way to obtain abandoned prope1ty. Land acquisitions have been suppo1ied by international covenants ,regional and national legislations; The Constitution of the Republic of Uganda 1995 (and as amended in 2005, land Act, Land Acquisition Act and other regulations .Uganda's constitution provides that all 67 land in Uganda is owned by the people of Uganda, not by the Ugandan State . In the context of defining who owns land, Uganda's land laws, 1995 Constitution, and 1998 Land Act have enshrined legal pluralism by recognizing the customary land tenure system. When conl1ict arises between customary and statutory laws with regard to landownership, the Constitution mandates that state law prevails. However, this stipulation is oilen unheeded, resulting in the continuation of ownership conlliets.

3.2 Legal Framework,

3.2.l International Legal Framework The necessity of providing access to land in order to facilitate the realization of human rights has been considered in several international principles and interpretive docurnents,68 but no international right to land is explicit in the international legal li·arnework. Moreover. the obligation of states towards individuals and land access has not been given adequate attention. However, a review of the international human rights li-amework as it stands makes clear that while not wholly delincd, land rights arc inrnkcd in a number or key areas, suggesting that Ji.uther consideration by the international community is necessary.

57 Uganda, Ministry of constitutional Affairs. 68See, e.g., The Vancouver Declaration on Human Settlements, UN Conference on Human Settlements, Adopted June 11, 1976, General Principles: Land; Voluntary Guidelines of lhe Food and Agriculture Organization of the United

35 Explicit rights to land have been developed in two key areas of international human rights law, the rights of indigenous people and the rights of women. Land access and use is frequently tied to the spiritual, cultural and social identities of peoples. As such, land rights have been more fully developed in the sphere of indigenous rights.

3.2.1.1 Convention of Indigenous and Tribal peoples. Convention on Indigenous and Tribal Peoples, which was adopted by the International Labour Organization in 1989,69 is legally binding on States Patties and the only binding international instrument related to the rights of indigenous peoples. The Convention establishes the right of indigenous peoples in independent countries to .. exercise control, to the extent possible, over their own economic, social and cultural development,•· in a number of areas. 70 The Convention includes a section on land, and requires States Patties to identify lands traditionally occupied by indigenous peoples and guarantee ownership and protection rights. 71 ln essence, the ··measures shall be taken in appropriate cases to safeguard the right or the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities ... 72 The Convention also requires the provision ol' legal procedures to resolve land claims, 73 establishes rights over natural resources,74 protects against forced removal,75 and establishes a right or return and compensation for lost land through either 7 land (or at least equal quality and quantity) or moncy. "

In 2007, the U.N. General Assembly adopted the Declaration on the Rights or Indigenous

Peoples, which states that, .. indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquircd ... 77 The

69See International Labour Organization, Convention, Indigenous and Tribal Peoples Convention, opened for signature Jun. 27, 1989, available at http://www.ilo.org/ilo1ex/cgi-lex/convde.pl?Cl69 [Hereinafter ILO Convention 70 1d. at art. 1. 71 1d. at art. 14. 72 1d. at art. 13. nld. at art. 14. "1d. at art. 15. 75 1d. at art. 16. "Id. at art. 16. "united Nations, Declaration on the Rights of Indigenous Peoples, art 26(1), Sept 13, 2007, available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf [Hereinafter Declaration on the Rights of Indigenous Peoples]. The Declaratlon was adopted by the General Assembly but is not legally binding on state parties.

36 Declaration, while not binding, states that indigenous people have a right to own and develop resources on their land, a right to legal recognition of indigenous lands by states, and a ·'right to redress ... for the lands, teITitories and resources which they have traditionally owned or othe1wise occupied or used, land which have been confiscated, taken, occupied, used or damaged."78 Both the Convention and the Declaration emphasize participatory dialogue and the need for free, prior, and informed consent with respect to decision-making about lands occupied by indigenous peoples, 79 especially where the relocation of peoples from land is under consideration.

3.2.1.2 Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) Land rights are also invoked in the international legal framework on women's rights. The Convention on the Elimination of all forms of Discrimination Against Women (CEDA W) requires that State Parties "shall ensure women the right to ... equal treatment in land and agrarian refonn as well as in land resettlement schemes ... :· CEDA W also provides that both spouses must enjoy --the same rights ... in respect or the ownership, acquisition, management, administration. enjoyment and disposition or property.. in marriage.80 Equal rights to inherit, purchase, and dispose of property also prornote wornen·s rights rnore generally. While land rights arc not explicitly developed more fully in this Convention or elsewhere in the core hurnan rights treaties, however. the hurnan rights frarnework clearly dictates that human rights be applied non-discriminatorily and equally for all people.

3.2.1.3 The International Bill of Human rights Within the international bill or hurnan rights namely, the Universal Declaration or Human Rights (UDHR), and the two binding Covenants. the lnternational Covenant on Civil and Political Rights (ICCPR) and the International CO\·enanl on Econornic. Social and Cultural Rights (ICESCR)-a nurnbcr or articles are directly tied to rights to land. The UDHR and ICCPR protect privacy and properly rights. Numerous economic. social and cultural rights in the UDHR and ICESCR arc intirnately connected to access lo land. including the rights to housing. rood.

''see art. 26(2), 26(3) & 28. ·see art. 10, 28, 29, 32 'art. 16(h).CEDAW

37 81 health, and work. , Security of tenure and the protection against forced eviction is often a touchstone with respect to identifying where the right to adequate housing is protected, and these elements are also necessary with respect to access to land. While the economic, social and cultural rights protected under the ICESCR are on their face most obvious in their connection to land, the civil and political rights in the UDHR and ICCPR should not be ignored. A11icle 17 of the UDHR states that, "everyone has the right to own property alone as well as in association with others and [n]o one shall be arbitrarily deprived of his property."82 The same wording is not reflected in the ICCPR, where Article 17, focusing on privacy, states that "[n]o one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence ,.gJ

3.3. Regional Legal Frameworks

3.3.1. African Charter on Human and Peoples' Rights (Banjul Charter). The adoption orthe right to property in the Banjul Charter came at the time that most States have emerged from decolonisation. This right became a matter of relevance in the sense that the continent to a large extent depended on natural resources such as land and minerals as way of generating incomes. As noted by Banning84 in Africa property relationship is often in the form of customary and common property whereby for instance in some countries property like land arc traditionally held in common.

Banjul Charter provides in article 14 "the right to property shall be guaranteed. It may only be encroached upon in the interest of public needs or in the general interest of the community and in accordance with the provisions or appropriate laws." However

81 6 See, e.g., United Nations, Universal Declaration of Human Rights (UDHR), art. 23, 25, Dec. 10, 1948, available at http://wwwun.org/Overview/rights.htmlffa25 [Hereinafter UDHR]; United Nations International Covenant on Economic, Social, and Cultural Rights (ICESCR), art.2, open for signature Dec. 16, 1966, available at http://www.unhchr.ch/html/menu3/b/a_cescr.htm [Hereinafter ICESCR], at art. 6, 7, 11, 12. The ICESCR is binding on States Parties, obligating States to "take steps . .. to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means." See also Committee on Economic, Social and Cultural Rights, General Comment No. 3, The nature of States parties obligations (art. 2, para 1), UN doc. E/1991/23 (Dec. 14, 1990). 32 UDHR, at, article. 17. 23 United Nations, International Covenant on Civil and Political Rights (ICCPR), art. 17, open for signature Dec. 16,1966, available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm ''Banning (2002) p. 61

38 As posited by Ouguergouz85 A1iicle 14 "tolerates infringements of the right to property of a natural or legal person" but there must be justification on the basis of lawful, public or general interest where general interest takes precedence over individual interest when they come in conflict. As noted by Gittleman86 ·'under this provision individuals have a right to prope1iy; however, eminent domain subrogates the right in the interest of public needs on in the general interest of the community" in attempt to balance the relationship between prope1ty ownership and eminent domain. In the case law of Banjul Charter, very limited cases have established violation of miicle l 4 but with that of SERAC vs. Nigeria case.87 In the above case Nigeria government fail to protect the Ogoni people from the activities of Oil Companies operating in the Niger Delta in contrasts to fulfilling its state obligation under International Human Right Law to respect, protect, promote and fi.Ilfil these rights to ensure progressive realisation of the rights of people. The Commission declared that the people of Ogoniland right to prope,ty were violated and therefore appeal to the Nigerian government to ensure that adequate compensation are paid to the victims. In the case of ilialmvi Afi-ican Association vs. 1Wauritania88 the Commission found violation of article 14 among black Mauritanians.

Another article which also made reference to property is article 21 w, which provides details standard on wealth and natural resources. According to Banning "the aiticle is considered oneof' six so-called Peoples' rights:·''" Article 21(2) li.uther provides that "in case of' spoliation the dispossessed people shall have the right to the lawfol recovery of' its property as well as to an adequate compensation:· However, with respect to compensation. ··the African Charter provides no such protection and leaves the question of compensation to each individual State, except in reference to a protected peoples righr-'' 1 as compared to the Inter-American system but case law has shown that is not always the case since they sometimes comments on the amount or

85 Ouguergouz (2003) p.153 "Gittleman (1982) p.699 875ERAC vs. Nigeria, Communication No. 155/96 (2001) § 44-47,57 "2communication No. 54/91, 61/91, 98/93, 164/97, 196/97, 210/98, § 128 39Refer to article 21 of the Banjul Charter '°Banning (2002) p.63 91 Gittleman (1982) p. 33

39 compensation that needs to be paid.

3.4 National legal Frameworks.

3.4.1 Constitution of the Republic of Uganda 1995. Uganda· s 1995 Constitution is also heralded as one of the most gender neutral constitutions since it prohibits discrimination based on gender and accords men and women the same status and rights. In addition to the guarantee of property rights without bias to gender or marital status, the Ugandan Constitution also decrees equal land rights for men and women during a marriage and at its dissolution. The State is enjoined to take affirmative action in favor of marginalized groups on the basis of gender or other reason created by history. tradition or custom. for the purpose of redressing existing imbalances.92 However, as noted above, customary law is also recognized with regard to land rights and Article 237(1) of the Constitution vests all land of Uganda in the citizens of Uganda. However the government or local government can acquire land in the public interest.93 Such acquisition is subject to the provisions of the Constitution,''4 which gives every person in Uganda a right to own property. The Constitution also prescribes the tenure regimes in accordance with which rights and interests in which land may be held (Customary, Leasehold, Mailo and Freehold'". It introduces ·bonalide occupancy' as a l,1nn of tenure that gives the occupant some rights to the land occupied. According to the Constitution, all land belongs to the people of Uganda and is held in trust by the Government. Government is authorized to acquire land for a public purpose and compensate affected persons in accordance with the law. It provides procedures to follow during the acquisition of land for public interest and provides for the ··prompt payment off,tir mu/ adequate co111pe11satio11" prior to taking possession of the land.

The constitution provides for a customary tenant to be issued with certificate or title against his/her occupancy"" and again has a choice to apply to c01wcrt his or her interest into li-eehold tenure provided it's done in accordance with the law. It established a body called Uganda land commission dully charged with holding and managing land vested "ith the government and also

92 Article 32(1) 93 Article 237(l)(a) 94 Article 26 "Section 3(3) of the Land Act 06 Article 237(4)

40 provides for existence of land tribunals as judicial body at every district level with several roles to play among which is the allocation of any unclaimed land in the district, facilitating its registration and transfers determining ground rent payable by tenants on land not to forget resolving disputes.

3.4.2. The 1998 Land Act Cap.227 as Amended. The Act provides for the tenure, ownership and management of land. It recognises custommy tenure as a form of land holding97 and thus places custommy tenants in a position of ownership of land unlike the Land Refonn Decree, 1975, that made them tenants at sufferance. The Act stipulates that any decision taken in respect of land held under custommy tenure, whether in respect of land held individually or communally shall be in accordance with the custom, traditions and practices of the community concerned.98 Furthermore, provision is made for communal land associations (CLA) 99 which may be formed for management of land whether under custommy law or othe1wise .

The Act describes a lawful ownership in threefold;

❖ First as a person occupying land by virtue or Busuulu and Envujjo law or 1928 and the respective Ankole and Toro Land lord and tenant laws 1937.

❖ The second category is or a person who entered the land with consent or land owner who is registered owner of that land and includes a purchaser.

❖ The third category is of a person who was in occupation of the land under customary tenure but whose tenancy has neither been disclosed nor compensated for by the registered owner of the land. The key requirement in the provision is that a person should enter land with consent or authority of the owner an underlying object of excluding trespassers and a licensee as per interpretation of section 30. Again the section includes a purchaser. meaning a person who purchases land li-0111 its rightful owner 01· purchaser.

The Act recognises other forms or tenure namely li'cd10ld, mailo and leasehold. 100 The Act provides for bonalicle occupancy and defines a bonalidc occupant as a person who is not the title holder or

97 Section 3 land Act cap 227. 'ts. Section 28 Land Act 227 . ·· Section 16 Land Act cap 227. •••) Section 3 ( 2) (3) (4) cap227

41 customary tenant of the land he occupies and has enjoyed undisturbed occupancy of the land for 12 years or more. Any person who owns or occupies land under any tenure must manage and utilise that land in accordance, inter alia, with the National Environment Act, Cap 153, the Water Act, Cap 101 152 and any other relevant Iaw .

The Act provides for the compulsory acquisition of land for public purposes. The land owner must be compensated. The occupant of land would be compensated for the value of their chattels. In instances where there are bonafide occupants on land, compensation would have to be made to both the land owner and the bonafide occupant

The Land Act also upholds the constitution's support for women and girls property rights 102 as it provides that ··any decision made on customary land according to the customs or traditions that denies women access to ownership, occupation or use of any land or violates the rights of women in the 1995 constitution is null and void.'' The 2004 amendment to the Land Act gives all spouses the right lo security of occupancy on family land and requires consent of the spouses for transactions of family land.

The Land Act further outlines what obligations tenants and landlords have towards one another. The 20 IO amendments was made lo the I 998 Land Act which requires court orders for a lawful or bona licle tenant on Mailo land lo be evicted, and also requires landlords looking lo sell to give tenants the lirsl option to buy.

3.4.3 Land Acquisition Act (1965). This Act makes provision for the procedures and method of compulsory acquisition of land for public purposes whether for temporary or permanent use. The Minister responsible for land may authorize any person to enter upon the land and survey the land dig or bore the subsoil or any other thing necessary for ascertaining whether the land is suitable for a public purpose.

The Go,·ernmcnl or Uganda is supposed lo pay compensation lo any person who suflers damage as a result or any action. Any dispute as lo the compensation payable is lo be referred lo the Attorney General or court lor decision. The Land Acquisition Act slops al payment of compensation

1 11 ' Section 44 cap 227 102 Section 27 cap 227

42 3.4.4 The Judicature Act Cap 13. Customary law is stipulated under the Act as law applicable in Uganda though it is subordinate to written law. Further the custom in issue should not be repugnant to natural justice or equity. Some customary laws recognize the impo1iance of maintaining clean water sources paiiicularly for drinking water. There are cultural practices that recognize the value of the common good which could be harnessed.

3.5. Institutional Frameworks. The Land Act follows the overall government policy of decentralised land management. The land management hierarchy stmis with the Uganda Land Commission, which is responsible for all government land and related issues. The District Land Board is independent from the Uganda Land Commission and from any other government. It is in charge of all land at the district level. It is also responsible for, among others things, for managing and allocating land that does not belong to anyone, assist in recording, registering and transferring claims on land; mark, survey, plan, map and draw estimates on land; and maintain and revise lists of rates of compensation for loss or damage of property.

3.5.l Uganda Land Commission The land acquired by government is managed by the Uganda Land Commission "J.1_ The other function of the commission arc to set out in the land Act. one of them is that where applicable , the commission shall hold and manage any Land Acquired by the government abroad ,except that the commission may delegate the management of such land to Uganda's mission abroad. The other function is to procure certificates of title for any land vested in or acquired by the government. The commission shall manage the land fund and is entrusted with the role of giving loans to tenants by occupancy to enable them acquire registerable interests

3.5.2 Land Board Another institutional board that deals with land acqu1s1t1on and ownership is the Land Boards 100 provided for in the land act. The board shall own land within the district which is not owned 15 by any person or authority" • The board shall take over the role and exercise the powers of the

103 Article 240 supra 1°' Section 56 land Act cap227 '°'' Article 241(1)(e )ibid

43 ------······ ··········· ····----·····

leaser in the case of a lease granted by a former controlling authority. Further to cause surveys, plans maps, drawings and estimates to be made by or though its officers or agents. Also the board shall compile and maintain a list of rates of compensation payable in respect of crops, 106 buildings of a non permanent nature and anything that may be prescribed . The board shall review every year the list of rates of compensation. 107The board is also empowered to deal with any matter which is incidental or connected to the other functions. ios

3.5.3 The District Land Office The District Land Office issues certificates of title and has technical officers such as physical planners, the land officer, the district valuer, the district surveyor and the district registrar of titles. Together these persons give technical advice to the District Land Board to enable the board to cmTy out its functions. The procedure and functions of a district board on application for certificate of customary ownership is provided for and the recorder shall issue a certificate in the terms of the decision of the board to the applicant where the decision of the board is to issue a 10 certificate of customary ownership without conditions, restrictions or limitations ".

Recorders (Sub County, town. township, and division in the city), Accepts application for and issues ce11ilicates of occupancy and certificates of customary ownership, and keeps records of certificate of occupancy and certificates of customary ownership.

The certificates of title are issued to owners of land by registrar as proof ownership or the land

1 by the registrar 1<>_ The most important aspect of registration or land is to keep record of ownership and transactions I land.

Land Dispute Resolution Institutions

Land Dispute Resolution Institutions in Uganda include local council eou,1s, magistrate courts, high cou11, traditional authorities. and mediators. Article 243 or the Constitution provides for the establishment of District Land tribunals and their jurisdiction in dispute resolution. It is interesting to note that the law did not give a requirement for the composition or the Land

106 Section.59(1) ( e) Land act 107 Section.59(1) (f)ibid 10s5ection.59. w, section 7 (S)ibid 110 Section 38

44 Tribunal to ensure women's representation as it did for the land administration institutions, though in practice, women have been appointed as chairpersons and members to the District Land Tribunals on affirmative basis of 1/3 representation. Uganda's Parliament has specials seats for Woman Members of Parliament and Persons with Disabilities

Land committees

The Act also establishes committees. A land committee consisting of a chairperson and other three other members appointed by the district council on the recommendation of the sub county council shall be for each parish. A similar committee shall be for each gazetted urban area and be for each division in the case of a city except that members will be recommended by the urban council and in the case of a city or recommendation of the city division council 111 .the committee shall determine, verify and mark boundaries of customary land situated cords parish which is the subject of an application for a certificate of customary ownership and to recommend to the board whether to grant the certificate. 112The committee exercises a similar li.mction with respect to application for conversion of customary tenure to freehold 113_ The committee plays an advisory role to the district land board on matters of customary land law applicable in its parish. Also the committee shall safeguard the interest in land in respect of which application of women, absent persons. minors and persons with or under a disability. The committee will also take into account of any interest in land in respect of which. for any reason, no claim has been made. As earlier mentioned, the land committee receives applications for certificate of customary ownership. A comprehensive procedure is out lined in section 6 of application of the ce1tificate. The committee makes a report and recommendations which are submitted to the board. A copy of the rep011 is availed within the parish for inspection by all persons who submitted claims to or wow re heard by the committee.

Arca land committee (Moyo District) assists the District Land Board on land matters, especially regarding the rights of customary land. helps people obtain eertilicatc of customary tenure and ccrtilicatcs or occupancy. and protects the land rights or women, children and persons with disabilities.

S.64(2) Land Act S,5 supra 5.9 land Act

45 In addition the District administrations (Local Governments) would be heavily involved in housing, resettlement, acquiring arable land especially for development. For this purpose, each district in Uganda has a five tier Local Government structure which operates from the lowest level known as the Local Council I through to the Local Council V at the District Headquarters. This structure is a political set up whose office bearers are elected into their positions. There is a parallel administrative structure at each Local Government level composed of technical public ol1icers whose appointments are based on the required qualifications and experience for the respective technical offices. These are headed by the Chief Administrative Officer (CAO) who is also the accounting Officer of the district. All projects which require resettlement, housing, structural development have to closely liaise with this local Government administration lo ensure equity, acceptability and compliance.

46 CHAPTER FOUR

4.0 PRESENTATION AND DISCUSSION OF THE RESEARCH FINDINGS

4.1 INTRODUCTION In West Moyo district, there are mainly three fonns of land tenure system that exist, but the predominant one is customary with limited lease systems. Most of the land in Moyo is held under customary tenure; the land is not registered to one single owner but is held communally. The predominance of the customary land tenure system is a result of the history of the madi people. The findings in the district show that a big number of people do not know the forms of land tenure systems and which land tenure system does exist in places of their residents. 80% of the local people whom we surveyed did not understand the operations of the tenure systems.

4.1.1 Current legal situation. Customary tenure is the predominant of the four tenure systems in Moyo District. The Land Act defines it as a right which is subject to local customary regulations and provides for communal and individual or household ownership. 114 The specific terms of the tenure vary according to Clan groups. In some places, especially in the deeper villages ownership of land is practically communal with usufructs rights for individual persons or families.

Like freehold and mailo tenure of Buganda and western regions, customary tenure system in this area is in perpetuity. Any family or community holding land under customary tenure on former 115 public land may acquire a certificate of customary ownership . However the findings did not acquire the practicality of the above. Like a freehold or mailo title, the certificate of customary ownership theoretically may be transferred, mortgaged, or otherwise pledged and shall be 111 recognized by financial institutions for access to credit '. The rules and customs of every clan or village are binding to every particular community and that ownership is generally a function or community, family or lineage membership. The customary rules or every community apply as

ii, Section 3(1) land Act cap227 m Section of the Land Act(Amended) 116 Section 8 of the Land act

47 long as they are not repugnant to natural justice, equity, good conscience or incompatible either or m. d'irect Iy wit. h wntten. Iaw. 117

Under the current law of Uganda land boards have the authority to issue a ce11ificate of customary ownership after receiving a recommendation of the land committees. The land committees shall give recommendations in accordance with customary law, 118and before making a recommendation, has to follow a detailed procedure, including the placement of the public notice about claims and conducting a hearing of any person claiming interest in the concerned land. The committee may also seek advice of customary institutions land Act Aller receiving a 119 120 recommendation of the committee , the land Board may endorse, alternate or reject it. The land board decides that a certificate is to be granted, the registrar will issue a certificate of customary ownership. Any person aggrieved by the decision may appeal to the land Tribunal. 121 The ce1iificate shall be conclusive evidence of any customary rights and interests specified in it and thus would al least in theory make impossible any evictions.

As is evident from the above the procedure of applying for a certificate is long and curnbersome. Given the lack of' functioning land board and committee in the district until ih rnarch 2014, not one certificate or customary ownership had been issued. Under these circumstances. it is currently up to traditional authorities or courts lo determine themselves on the basis or the local rules about who is the appropriate owner or user of' land. Under the current systcrn in Moyo, traditional institutions rnay intervene in conllicts. Article 88 or the constitution stipulates that traditional authorities shall not be prevented, hindered or limited in their function of' deterrnining disputes over custornary law or acting as rnediators in these rnatters.

In surnrnary, under the current law, a person claiming ownership of land may apply with the land board to be issued a ce1iilicate of' ownership. Under the procedure, at least theoretically. traditional institutions rnay be consulted. Further. dispute resolutions by traditional institutions

117section 17(1) Judicature Statute No.13 of 1996.

118 Section S( c)land Act cap 277. 11 ' Section 5(2) (di cap 227. i:o Section7 land Act cap227. 1 :i Section 8 (6) land Act cap227.

48 supplements or may take precedence over settlements by formal courts. Since customary tenure is a form of tenure which is subject to local customary regulations, there might be several reasons for evictions and their lawfulness must be decided separately in each case.

4.1.2 Transparency of statutory land governance System in Moyo District In the area of the research, land governance is far from being transparent. Local people have limited access to records, so are the land management offices such as the district planning unit and the Land protection unit. We made a survey on the statement; on a scale of 1- 10, where, 1 is non-transparent at all and 10 is very transparent, rate the transparency of the land system in your district. 70% of the respondents including the land Surveyors indicated that the land system is not transparent at all, I 0% indicated that land system is transparent, 20% indicated that the system is fairly transparent. As one respondent noted; T!tere is" 11C1tiw.fi1ctor- t!te indigenous people trust C111d ll'Ottfd prefer t!te elem leaders C111d c!tiefy to !ta11d!e t!teir land issues hecC111se it may take " _vear hefhre !a11d C1pp!icatio11 fim11s are processed hy t!te !a11d hoard if'yo11 do not !tare e11011g!t offer/hr speedy processi11g or t!te fit ct r!tat t!tey do 11ot !un·e t!tc k110\\ledge of' t!te procedures. I i11ten·ie1!'ed, 011e perso11 who has heCII appll'ing _/hr a fund rit!e si11ce 2009, e,·en afier paying lease offer fees, a11d t!te respo11dC11t lamented; "/ !un·cfai!cd lo get a land title hernusc t!tc process is so sloll' a11d u11fi1ir. To date t!te applicant !tas not rl!Cci1'1!d Cl title to t!te !C111c!. Hm,·e,·er 011 inquirv t!te lands sun•cvor said t!tC1t, "t!te delayed procc.,scs are due to the 1•acw1c1· of't!te IC111d hoC1rdfhr t!te last t!tree yeC1rs ".

The 1998 Land Act as amended has been translated into the local languages for example ··Eteka Lye Etaka·· in Luganda ... A zitaa (Ojataa) Nyakunirirni Eli .. in Lugbara. However there is no translation of the Land (amendment) Act in the madi language. Likewise in determining the transparency and the practice or the land law in the district. it was round that 60% or the people arc aware or the law. 20% practice the knowledge or the law and I 0% do not know the law. It is this ignorance or la\\' that has made land \\'ranglcs. land grabbing as to acquisition a phenomenon in Moyo district.

49 4.1.2.1 Weak Land Governance. The different types of land acquisition persist where the society is characterized by weak land governance. Weak governance, whether in formal land administration or customary tenure arrangements, means that land rights of the poor local people are not protected. This has affected the poor in pat1icular and has left them marginalized and outside the law .The vulnerable groups like widows, elderly and orphans in Mayo particularly, lack the money to pay the bribes needed to benefit from the corruption or to pay for legal protection to defend their rights to land. Most of them do not even know their rights given the customary nature of ownership that has never been documented. These marginalized groups nonnally don't know how to defend their rights because of illiteracy or marginalization caused by custom.

Poor system of land acquisition tends to flourish where the law is complex, inconsistent or obsolete. Although the laws and the constitution of Uganda recognize people's customary rights to land and recognizes the powers of the customary authorities to determine any land disputes according to customary rules (provided they do not discriminate e.g. against women, disabled), events such as land grabbing in almost every village is rampant. In Moyo, three-quarters of all widows face difficulties in enjoying their legal land rights; over 80% of divorcees or unmarried women are denied their legal rights to land.(source :an Elder in Vura Madullu Village, name withheld).

Corruption 1s one con1111011 factor in governance problems. Land agencies m Uganda are particularly vulnerable to corruption and other practices of weak land governance especially when the conflict involves powerful versus weak individuals. Those who have the money, status and connections or are feared because they have weapons arc likely to interfere the decision making in the land institutions. For instance in cases when district officials grant themselves leases on other pcoplc·s land. or when the powerful expropriate large areas of land. Despite the existence of legally recognized land administration structures in Uganda, the structures arc used to serve the interest of those in control for example, by the illegal transfer of slate lands and common lands into the private possessions of those in control or their allies.

Weak land governance results into unjust compensation Cor those whose land is expropriated for eminent domain.

50 Conflicts pe1iaining land Acquisition continues to persist 111 the district due to lack of institutional capacity. In pmiicular, the absence of a land board for the last three years (Source: Land Surveyor's Office) For instance, the functioning of the traditional institution, capacity and culture of work has been completely mandated to traditional leaders with only the powers of land allocation of customary land and this has created a perfect environment for land grabbing to flourish in the distiict because these are easily bribed with a little token. According to a respondent, the existence of weak land policies favors those with money, power and connection to acquire land from the locals. People purchase land at cheap cost and informally from desperate Land Users without necessarily establishing whether the seller has the right to sell or not. This has been blamed on the Fact the locals don't know their rights of ownership and this has created new waves of violence within the families because land sold is usually customary land. As a result, the affected families have become victims to land grabbing victims.

4.1.3 Information Access and Land Records Land records are vital for both the Legal system and customary institution and access to such records by legitimate inquirers such as the land rights holders is an important indicator of a transparent land governance system (Deininger et al 2012). However, this research analyzed that district lacks a record system that can facilitate access of land records and reason was that the indigenous people do not inform of the land transaction process except where they have a problem and they eventually need legal redress or else they do not !incl it vital as they have they clan leaders to guide them with the area local councils, who also keep no records as they stand in as witnesses. Uganda has a central registry of land and records existing at district land offices .. We interviewed the land officer of Moyo district and he lamented that lack of records was hampering land management and governance on land acquisition in Moyo in the district.

According to the LC chairperson of Celecclea west village. land ownership claims and Acquisition in Moyo is complex: So/itr lhl!l'e are three lvpes of'clai111s laking place; 011 !he 011e hand !here are ge1111i11e clai111s a11d the claimant OH'IJS u genuine land title ancl is /hi/owing the right truck.; on the other hand. there arc claims through a third parzr or land clealers and thl~l' come clai111i11g ownership mu/ can:1·i11g fake fiafiers h111 110 Ii/le is i111'0!t·ed. l11ere are also ca1C•.,· ,rhcrc land tirles are nw11ifi11/a1ed a11d the clainwnts un· can:1·illgfi.1kc titles. Some ;woplc get Litle, from other places. the,, COJIU' 11 it/,

51 swTeyors claiming they want to ascertain the boundaries of' the land on that title, but impose the

title on that land and get a new land title 011 the land. In all these cases, as local leaders we need to verify, but this is not possible without proper land records".

According to district Land surveyor, There are limited proper land records, as there has been no lands o[ficerfor the Land Board/or 11 the last three years. The office was inducted on the 7 ' march of' 2014 . The district has been utilizing the se1Tices of'the town council. This has hampered the operations in the district with respect to land management. According to the surveyor, most of'the li111d 11n111gles existing in the district res11/t.fi·o111 lack of'records of' land as the !cmci.Y are milinlv customilrilv owned thus not registered.

4.2 Land Acquisitions: Power and Influence of Custom at Play Land governance also relates with the system of transfer of land from one party to another. Land in Uganda can be transferred in different ways; through purchase (willing buyer-willing seller), through inheritance where land is held on customary basis, through leasing (especially with public land). The system of land transfer seems very clearly laid clown. However, rarely is the system foflowecl. Throughout the research it was realized that although influence peddling and power remain highly invisible, they play a lot in land translers. This was manifested by the indirect way of land purchases and the approach that land grabbers usc. 1l was found that most !and grabbers use their power and influence to buy land. The approach they use is by making sure that people are left with no choice but to sell their land for example they give them bribe known as ··Tuba" which is a small amount or money or gill. They also do this by exposing the people to risks and vulnerable situations such as crop damages by calllc. or by stealing their load stuff. In most cases when land is grabbed the victims fear taking the mallcr to court in addition to being poor and illiterate or their rights. and cannot stand to challenge the rich land grabbers and worst still their clan leaders for want or togetherness in the community . Asked whether they were interested in taking cases to court. local residents who arc \ ictims or onerous land acquisition mentioned the challenge or illiteracy or the law \\hich they \\'Ould seek for. P'" crty situations that local residents li,c in. which makes them incapable: Pl' handling coul'l cases. r,rn local residents in Adua Village had the foll,m ing to say:

52 People hm,e lost their land to the outsiders without any choice due lack of" knowledge of their inherent land rights and their customa,y legal rights. Most of them are ve1y poor that they cannot take cases of" onerous acquisitions to court. Some even fear going to court because they know court cases are always bought in famr of" the rich who have influence and are educated to buy lawvers. When you talk about compensation, I do not understand you well because, you cannot compare 2 acres of" land and someone gil'ing you just 200,000shs. This is not comparable.... In general the process of land acquisition is not transparent; you cannot know how people get land titles. The law provides a process through which people should get land titles, as mentioned above but these are not followed at all as most of the land is communally and customarily owned and the decision is made by the elders of the family living the vulnerable children, Old and women in despair. From the above, one can deduce that land acquisition in Moyo district does not go through the legal system as most or the land is not registered as it s mainly communally owned and the process or such transactions is left in the hands of clan leaders, chiefs, with the help or local chairpersons who are not all fully aware or the process of the land ownership. Event he police avoid dubious land ownerships have no knowledge orthe law that governs the lands.

53 CHAPTER FIVE

5.0 Summary This chapter summarizes and discusses the major results from the case study area. Our findings suggest that the rural people are not fully aware of their land rights and the laws that protect them and thus they rely and highly believe in the cultural institutions other than the legal systems' protection yet these cultural institutions vary accordingly. At the end of the day they are discriminative of the minorities especially the children and women. The legal system is less captured by the locals because of lack sensitization in the district. Strategies that achieve win­ win-win outcomes are prudent to check the realities that infest land acquisitions in Moyo district.

5.1 Recommendations Responses indicated that there is need for local capacity building. In order to achieve good land governance, priority should be given to capacity building in land administration agencies to improve eniciency, effectiveness and competence. Where necessary, recruitment of competent staffs should be immediately addressed As for as this research could conclude land office assured us that it is involving in educating the local people on their rights and the tenure systems that accrue to them so as to guard them against wrong local land dispositions and also make people guard against large scale land acquisition.

Findings on ground among the local residents including the Local council chairpersons interviewed indicate that there is general lack of knowledge about the existence of a translated version of the Land Act into the local language. On confirmation from the Lands Office there is no translated land Act in Madi language, the initiative to translate the law into the local language is a positive step towards minimizing land conl1icts resulting li'Om all forms of acquisition. There is need lo translate the land law into local languages to make it more understandable by the local people. The Lugbara have the Land amendment Act 20 IO translated into local language: a local language with th<: title. ··A zitaa (Ojataa) Nyakunirirni Eli".

Although the District is slowly strengthening the capacity of land offices( sou1·cc: Land Surveyor). It 11as r1:11:akd that the district still has challenges of having fully llcdged land of'lices

54 to make access to land records possible without restrictions. Thus in order to streamline all fonns of land acquisition both legal and customary, educating people and giving them assistance and support documents to regularize ownership is impmiant.

This research found that people owned land on customary basis but did not know that they needed to have ce1iificate of customary ownership for them to have claim over land. , the researcher interacted with four family members who claimed that their land had been grabbed by other clans; ti.uiher interaction revealed that they had nothing to show that the land in question ever belonged to them. This complicates the matter as communal lands in this sub-region seem to be taken over on the pretext that it belonged to no body. This indicates how people can exploit a weak system of land governance and utilize it for their selfish interests. As Okuku argues, it is not legislation that matters but institutionalization which provides security of rights. The security of tenure does not mean that everybody has secure rights protected by the institution (Okuku 2006). Indeed with the data gathered from people indicates that while there is a clear law about land access and land rights, the same law is not well understood and evidently not practiced. The constitution provides for rights or access, but people's land rights are not protected. People are aware of the law but its understanding is not clear. Of' the 65% respondents interviewed who claimed they were aware of the existence or the law; a majority or these did not know its application. Indeed interpretation or the law is still a challenging factor; moreover. the law is silent on ce1iain key aspects such as to the boundaries or custom in regard to land rights and it is such loopholes and challenges that provide a conducive milieu for land grabbing and conl1icts in Moyo district in Uganda. In a nutshell there is need for institutionalization or the tenure systems of Moyo district.

Weak land governance is the cause or many land tenure-related problems. Improving land governance often means improving land tenure problems. EIT01is should be directed towards moving from a less secure customary tenure to a more secure tenure system. Although there is a widespread belief that land in northern Uganda is hdd under communal customary system. in reality most families own their llmn lands as private property. There is an urgent need to undertake land titling in order to reduce the high le, cl and nature or threats to indigenous

55 customary ownership. Titling should be pursued in a manner that is complementary to the customary tenure rather than a total replacement of the customary tenure.

Harmonise Customary and State land administration systems: Since land is mainly held under customary tenure, customary institutions must be strengthened to improve internal administration of land and adjudication of disputes. The two parallel legal and judicial systems (customary and state land administration) dealing with land issues in the district should be harmonised to avoid unresolved contradictions. Although the state land administration recognizes the customary judicial system, the two systems still remain operating parallel to each other. This could be a potential source of conflict over land in the future and is likely to give powerful groups in the society an advantage over their targeted victims. Although there are many laws to protect the vulnerable from land rights violation, the implementation of such laws in post conflict regions requires urgent attention.

Suppo1i Traditional and State Justice Systems: Many victims of dubious land acquisition cannot afford the costs of state litigation. Even though the case requires being resolved through traditional justice, the victims are expected to facilitate the process of bringing witnesses and mobilizing of the traditional leaders. This is sometimes too expensive !or widows, orphans. disabled and elderly persons to achieve fair listening. Financial supprni should be given to courts in order to reduce the costs of litigation !or the poor. For example, in cases where the Chief Magistrate is compelled to visit the disputed site, the disputing paiiies must meet the costs of the Chief Magistrate's movement29: such costs must be paid by the government in order !or the poor victims to have a fair judgment. ln order to reduce the backlogs al the Chief Magistrate Cou1i, the dysli.mctional LC ll and Sub-County Court committees should be revived and facilitated to effectively perform their duties. A comprehensive appraisal of LC ll Courts and Sub-County Court Committees should be carried out: this appraisal should be quickly Iollowcd by intensive and long-term training, provision of necessary equipment. and re-starting where necessary. The poor capacities of these LC [I and Sub- County Court committees require immediate and sustained attention.

Restoration and strengthening of traditional culture: A community that does not cherish and promote its culture is usually bound lo extinction. The role of culture in social cohesion. conllict resolution and sustainable resource utilization cannot be ,11 er emphasized. Madi culture and

56 traditional systems of justice should be restored and promoted. Restoration of social no1111s, values and beliefs offers oppm1unities to correct social ills in the community. These traditional systems need to be documented and preserved for the future generation. Many elders who knew and remembered the traditions of their people have died before passing on this knowledge to be written down and preserved. Several attempts should be made to promote the Madi traditions among the youth in order to appreciate and promote their cultural heritage. However all traditions that promote any form of discrimination against women, children, elderly and disabled should be strongly discouraged and such acts of discrimination be condemned.

Policies and legislation must recognize the many facets of land rights and usage. Above all the poor rural people must be empowered to participate in policy formulation to ensure their needs and rights are addressed and protected. Securing land rights is a complicated business. Land tenure systems can be formal, or informal, statutory or customary, permanent or temporary. Some are legally recognized and others are not. Some involve private ownership; others are based on common property. it is often better lo strengthen traditional administrative systems than to establish new, formal systems of land ownership. This is particularly true of communal and common-property lands. which are very important to the livelihoods of poor rural people. Mechanisms for securing indigenous peoples rights to their lands are important to cultural survival.

5.2. Conclusions We have discussed that the nature and character 01· land acqu1s1t1on m Moyo cannot be described otherwise except as per custom of community since the land is mainly customarily owned and also by other forms other than legal purchase because the loophole in the governance .. This is based on the understanding that any land acquisition which leads to Yiolation of people's rights, is as a result of the loopholes in the legal system which is supposed to work alongside the customs concurrently. lndeed the research round that customary land tenure ownership is a l'cature characterizing the district or Moyo. The research however found that the nature of land acquisition. the processes involved leave a lot beneath the eye for it to easily be recognized as a set back or the practicability of the legal system. The forms of land acquisition has af'l'cctcd tkvelopmcnt and the lives or the people: people have lost valued land for a lesser price and also because the clan norms do not fovor them especially the women. Majority or the locals arc illiterate of land l,rns. The research also concludes that leaving the management or customary land solely in the hands of traditional leaders has slo\\cd development or lands in the district.

57 REFERENCES: A Case study ofNakasongola District, published by Lambert Publishers, Saarbriicken-Germany.

Banning, Theo R. G. van (2002): The Human Right to Property. Intersentia, Antwerpen

Constitution of the Republic of Uganda l 995(as amended).

Constitution of the republic of Kenya 20 l 0.

Deininger, K. and Castagnini, R. (2006), Jncidence and impact of land conflict in Uganda· m Journal of Economic Behavior & Organization, 60: 321-345.

Gittleman Richards ( 1982), The African Charter on Human and People's Rights: A Legal

Analysis, Virginia Journal.

FAO (Food and Agriculture Organization of the United Nations). 2002. Land Tenure and Rural Development. FAO Land Tenure Studies No. 3. FAO, Rome.

Government or Uganda (20 I 0) Land Amendment Act of 20 l 0, Kampala.

Klaus, Selod Harris, and Burns Anthony (2012), The Land Governance Assessment Framework: ldentilying and Monitoring Good Practice in the Land Sector, Washington DC, World Bank.

LEMU (2009) why is customary protection failing to prevent land grabbing?

Mabikkc S. (2010) implications of Land Governance on Rural Development in Uganda.

Moyo. S ( 1995). 'A Gendered Perspective of the Land Question' in Sal'crc. 1.1.

Okoth -Ogcnclo. ( 1991 ). Tenants of the crown: Evolution of Agarian Law and institutions 111 Kenya. Kenya Africa Centre for Technology studiccl(ACTS). Nairobi: Kenya.

Onalo PL. (20 I 0). Land law and Con\\:nyacing in Kenya. Lal\ Al'rica. Nairobi: Kenya.

58 Okuku Juma (2006),"The land Act (1998) and Tenure Refonn in Uganda'', Africa Development, Vol. XXXI, no. I, 1- 26.

Rugadya, Margaret. 2009. Escalating Land Conflicts in Uganda. Review of Evidence from Recent Studies and Surveys. Report to the International Republican institute ([RI) and the Uganda Round Table Foundation.

Toulmin, C and J Quan (2000a). 'Registering Customary Rights' in C Toulmin and J Quan (eds) Evolving land rights, policy and tenure in Africa. DFID/IED/NRI, London.

Zeemeijerllse (201 I). Who gets What, When and How? New Corporate Land Acquisitions and the Impact on Local Livelihoods in Uganda, Leiden International Development Studies Department or Human Geography, Utrecht University

59