EVALUATION OF THE LAND INVENTORY APPROACH FOR SECURING TENURE OF LAWFUL AND BONA FIDE OCCUPANTS ON PRIVATE MAILO LAND IN

THORSTEN HUBER1, MOSES MUSINGUZI2, DANIEL KIRUMIRA1, PAMELLA DRATE1

1Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), , Uganda [email protected], [email protected], [email protected]

2Department of Geomatics and Land Management, Makerere University, Uganda [email protected], [email protected]

Paper prepared for presentation at the “2019 WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 25-29, 2019

Copyright 2019 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies.

Abstract This paper introduces and evaluates the Land Inventory Approach developed to improve security of tenure for both landlords and tenants on private Mailo Land in Uganda. The approach is a non-authoritative form of adjudication that considers the unique features of Mailo tenure and the various arrangements between landlords and tenants on Mailo land. The approach is based on a realization that addressing the impasse between registered owners and tenants on Mailo land in a manner that is fair and acceptable to both parties, requires appreciation and in-depth understanding of the dynamics. To attain such appreciation requires improved transparency through a land inventory of the nature and extent of tenancy rights as well as gathering other basic information such as opinions of landlords and tenants on preferred solutions, areas of agreement and areas of conflict.

The land inventory approach was initiated by GIZ under the Improvement of Land Governance in Uganda (ILGU) project co-funded by the European Union (EU) and the German Government, under the Special Initiative One World No Hunger (SEWOH) of the German Federal Ministry for Economic Cooperation and Development (BMZ). As of February 2019, a total of over 14,000 occupancy rights have been inventoried and mapped after building consensus between landlords and tenants through sensitization and dispute resolution.

After more than 1 year of actual implementation, a rapid evaluation has been undertaken to review the relevance of the approach to advancing security of tenure of both landlords and tenants on Mailo Land. The evaluation is based on four guiding questions, namely whether the approach: (i) improves the relationship between landlords and tenants, (ii) addresses all land related disputes on Mailo tenure, (iii) provides adequate information for negotiations between landlords and tenants, and (iv) provides an appropriate Fit- For-Purpose (FFP) technological as well as operational/procedural solution.

Initial findings indicate that overall, the approach significantly improved the relationship between landlords and tenants in the areas where the project was successfully implemented. The approach provides the necessary basic information, such as location of tenancies, size of tenancies, use of tenancy portions, claims to usufruct rights and proportion of the landlords’ occupied and unoccupied land, which helps further negotiations. The collected information may increase the menu of negotiation options and hence empowers both the landlords and tenants to reach consensus.

Key Words: Private Mailo, Land Inventory, Occupancy Rights, Fit-For-Purpose, Uganda

1 INTRODUCTION 1.1 Background The 1995 Constitution of Uganda and Land Act 1998 provides for four land tenure systems: Mailo, freehold, leasehold and customary. Mailo tenure permits holding of registered land in perpetuity just like freehold tenure but provides for separation of ownership of land from the ownership of developments on land by lawful or bona fide occupants. The problem of overlapping rights between registered owners and occupants was introduced soon after the 1900 agreement between the Kingdom (and other kingdoms) and the British protectorate government. Since then, conflicts have been escalating and are exacerbated by increasing population pressure and rising land values mainly in the central part of Uganda.

Successive governments have, through legislation, attempted to address the problem of overlapping land rights in vain. Legislation efforts started with the Busuulu and Envujjo law of 1927 that attempted to strengthen the tenure of tenants as long as they paid a nominal ground rent (busuulu) or part of the farm produce (envujjo) to the registered owner. The land reform decree 1975, abolished Mailo tenure and removed the security of tenure to tenants derived from the previous laws. All land was declared public land. The tenants were not recognized by law while landlords were required to attain a lease for their land which involved a risk of losing land in case of failure to meet the statutory development conditions (Mugambwa John, 2007). The 1995 Constitution and 1998 Land Act re-introduced the co-existence of landlords and tenants on Mailo tenure and provided more details on their relationship (Huber et al, 2018, pp.3). The Land Amendment Act 2004 revised payment of ground rent and criminalized non-payment of rent by occupants. The 2013 Uganda National Land Policy (NLP) further provided avenues for addressing landlord and tenant overlapping rights including accessibility to the National Land Fund for providing registerable interests to the tenants. Despite these efforts, the problem of overlapping rights on the same parcel of land is still widely prevalent on Mailo tenure and has led to unrest, occasionally to violence and criminal offences between tenants and landlords or has increasingly led to illegal eviction of tenants from the land.

1.2 Options for land tenure security for lawful and bona fide tenants on private Mailo under the Land Policy

The legal and regulatory framework provide for various options for addressing the problem of over-lapping rights on the same piece of land. Under the Land Act 1998 (with subsequent amendments) statutory

protection is granted to the bona fide and lawful occupants (and their successors) against arbitrary eviction, as long as a prescribed nominal ground rent is paid. The law does not protect tenants who do not pay ground rent leaving them at a risk of eviction and criminal prosecution. The National Land Policy 2013 provides for four concrete options for tenants under Mailo tenure to pursue tenure security thus (see Figure 1Figure 1)

1. Buyout – The tenants can negotiate with the landlord and purchase their tenure rights fully and acquire a certificate of title. Government made policy provisions for a land fund to be accessed by tenants. 2. Sharing and land re-adjustment – The option provides for a tenant to negotiate with his/her landlord and agree on a portion that the tenant returns to the landlord and acquires a title for the remaining portion.

3. Lease – The landlord issues the tenant a lease guided by terms and conditions 4. Provision of Certificate of Occupancy (CO) – The tenant is issued with a CO and keeps paying a nominal annual ground rent.

Figure 1: (right side) Options for regularizing tenancy rights under the Land Policy 2013. (left side) Approaches for implementing the options.

2 THE LAND INVENTORY APPROACH 2.1 Project Approach

The GIZ project Responsible Land Policy in Uganda (RELAPU) is part of the Global Project Responsible Land Policy and belongs to the Special Initiative One World No Hunger (SEWOH) of the German Federal Ministry for Economic Cooperation and Development (BMZ). The Improvement of Land Governance in Uganda to increase productivity of small-scale farmers on private Mailo-land (ILGU) is part of the RELAPU project and is co-funded by the European Union and the BMZ. Both projects, RELAPU and ILGU are implemented by GIZ.

Figure 2 below illustrates the project approach and associated activities to facilitate the tenants and landlords to pursue security of tenure in relation to the options provided for in the National Land Policy 2013. The approach was developed by the ILGU project.

CO Process on private Mailo

Social Preparedness Mapping with Free, Verification and for Mapping Prior Informed Documentation Consent

Negotiation Capturing of Village display Issuance of process Registration Landlord and Mobilisation Mapping of Political Awareness tenant and maps and Land Inventory between and issuance of tenant of tenants for tenancy buy-in raising meetings mapping landlord info public notice Report landlord and CO tenant

Referral of unsolved and Dispute resolution through On the spot dispute resolution criminal cases to the district mediation committees courts

Figure 2: Process of Certificate of Occupancy on private Mailo

The project area includes 6 sub counties located in Mityana, and Kassana districts (see Figure 3 below). Awareness raising and conflict mediation is done in partnership with the Ugandan NGO Uganda Community Based Association for Women & Children Welfare (UCOBAC) whereas the technical

implementation of the project is done by Makerere University, School of Build Environment (MUK- CEDAT).

Figure 3: Project area sub counties.

Because of the political sensitivity of Mailo tenure in Uganda, the methodology takes an incremental approach involving assurance of local political support, awareness raising, capacity development, alternative dispute resolution mechanisms, documenting of land rights and negotiation processes. The capacity of the Area Land Committee, the legally mandated land authorities at sub-county level, is developed to enable them to mediate among the landlords and tenants who opt for any of the options mentioned above. The activities under each component are outlined below.

(i) Sensitization of stakeholders who include landlords and tenants, local authorities, traditional leaders, ensuring free prior informed consent (FPIC); (ii) Capacity building of land administration structures including training of senior government officers, locally recruited paralegals, local land administration assistants, members of area land committees and local council executive members; (iii) Parcel inventory - of conflict free parcels - through use of Fit for Purpose Land Administration (FFP LA); (iv) Conflict mediation and alternative dispute resolution processes throughout the approach;

(v) GIS overlay of occupancy rights and cadastral boundaries using open source GIS; (vi) Display of village maps, correction of errors, and issuance of a provisional social document (Land Inventory Protocol); (vii) Provision of facts to landlords and tenants to facilitate negotiation; (viii) Provision of facts to government for streamlining policy, law and the relationship between landlords and occupants. (ix) Support for issuance of a legal document

2.2 Implications of existing rights on approach for security of tenure 2.2.1 Buy-out option

The baseline evaluation study of the GIZ ILGU project, carried out by the World Bank Research Group and funded by GIZ, has revealed that tenants are only willing or able to offer as much as UGX 2.2 M (600 USD) per acre (Ali et al, pp.4, 2018) for the tenanted portion to the owners for full rights to be granted. Such low offers are often not accepted by the land owners. On the other hand, land owners often offer very little to buy-out the tenancy right, while asking for much more for the tenant to buy-out the registered Mailo interest in the tenanted portion. This perceived value-discrepancy is aggravated by a lack of transparency of objective land values in most . Many tenants are constrained by their low income as well as lack of information on available options to enable buy-outs. Few tenants in the project are aware that some commercial banks have developed mortgage products specifically tailored to enable the buy-out of either right. Still, both parties are often not open to innovative options like seasonal instalments for the buy-out clearly agreed upon in a witnessed agreement. Further still, the government instituted National Land Fund could be utilized to buy-out the specific tenanted portions, however in reality this is not an option as the intended funds are not available. The documented user rights would inform decisions aimed at helping tenants specifically targeting acquisition of the tenanted portions as opposed to acquiring the entire Mailo interest even when it is not entirely encumbered with tenancy rights.

2.2.2 Sharing arrangement

An alternative to buy-out is a land sharing arrangement which can be offered by land owners to those with user rights on their land. The NLP has proposed that a tenant may give-up interest in part of the tenanted portion to the owner in pursuit of full, unencumbered registered interest over a reduced portion. This option is largely constrained by a number of factors including the often very small size of the tenancies and access

to amenities like roads and water sources. The average size of tenancies mapped under the GIZ ILGU project as of January 2019 is 1.6 acres only (0.64 hectares), making land sharing an option only available to a few tenants with larger tenancies. Many tenants are now aware of whether land sharing is an option feasible to them based on the ascertained location, size and shape after the user rights documentation activities of the GIZ ILGU project.

Still, sharing is controversially discussed and in the case of the project, at least one Member of Parliament (MP) representing part of the project area has indicated unwillingness to encourage his constituents to consider sharing their tenancy with the land owners. The MP’s fear stems from the suspicion that the land owners could lead to situations where landlords cherry-pick the most attractive or valuable parts of tenanted portions that give them the highest benefit in terms of value including: proximity to amenities like access, power and water resources, quality of the soil in terms of fertility or proximity to the land owners untenanted portion.

Land sharing, while stipulated in the NLP, is a lengthy and consultative process. It is also somewhat discouraged by government due to the limitations it brings to farmers. Sharing the tenanted portion amongst the users and owners, while probably the cheapest option available to the parties in monetary terms, would increasingly render agricultural land uneconomical to farm as parcels become too small and land fragmentation increases. The consequence of land sharing is reduced farming portions for the tenants and dispersed portions for the land owners. As a consequence of this the need for land consolidation would arise, which is yet another lengthy, time consuming and expensive process.

2.2.3 Lease agreement

The transparency on existing land rights created under the ILGU project opens the avenues for leasing as another option since the granted lease as an encumbrance in effect does not diminish the registered Mailo interest in instances where the Mailo interest is not entirely tenanted. Such a determination is enabled through mapping of the user rights. While few of the tenants in the project area have this far indicated interest in the leasing option, many are rather skeptical and hesitant about the option due to the lack of clarity on the consequences and safeguards considered under this option, especially on the question of what happens after the lease agreement has expired. Interesting to note here is that in the case of Mailo land under the jurisdiction of the Buganda kingdom (kabaka land), the Buganda Land Board, the land agency of the Buganda kingdom, promotes leasehold agreements only for their tenants. Leasehold agreements are

entered into force for a duration of 49 years, however, it is not yet clearly laid out what the consequences will be once the leasehold has expired.

2.2.4 Certificate of Occupancy (CO)

All hitherto mentioned options - buy-out, land sharing, leasing – do presently not offer favorable options for the large majority of tenancies. The absence of skilled, neutral and affordable third parties to moderate successful negotiations towards legally binding buy out, land sharing or lease options does not help the situation either. The consequence is that majority of tenants reached by the GIZ ILGU project as of January 2019 have revealed that they are presently only comfortable with or can only afford the option to remain as compliant tenants, paying their nominal annual ground rent dues (about 3 USD per year, regardless of the size of the tenancy). However, many of these became aware of the option to pursue a Certificate of Occupancy (CO) only through the awareness raising work of the GIZ ILGU project. Determination of the tenancy attributes informs the application for and subsequent negotiation for grant of consent by the land owners. To better understand the interest of tenants and to determine the willingness of landlords for this option, a pilot to issue CO’s has been done in sub-county. The ALC in Myanzi sub-county relies on the mapped user rights indicated in the Land Inventory Protocol (LIP) as a basis for processing CO applications.

The CO is the most affordable (about 3 USD/ year) option to improve the level of tenure security of tenancies on private Mailo land (see Figure 4). However, the MLHUD and District authorities are yet to support and establish the necessary capacities of the sub-counties for the application, processing and issuance of the CO. District Land Boards (DLB), Area Land Committees (ALC), land owners and recorders in the project area are devoid of the skills, logistics, knowledge and finances necessary for the activities involved in the mandatory legal procedures. To date no CO has ever been issued in Uganda. The GIZ ILGU project aims to issue the ever first CO in 2019 in close partnership with the MLHUD and the sub-county local government of Myanzi.

Figure 4: Continuum of land rights in Uganda

2.3 Evaluation of the Land Inventory Approach The land inventory approach is new in Uganda. Whereas there are established and well tested approaches for dealing with formalization of unregistered land through first registration, experiences on formalizing occupancies on registered land are non-existent in Uganda. The GIZ ILGU project targets to document 75,000 user rights in the districts of Mubende, Kassanda and Mityana Central Uganda. This necessitates the deployment of four field teams to simultaneously, digitally document user rights in four villages per sub-county, in up to 10 sub-counties at the same time. Upon completion of social preparation activities in several villages within a targeted sub-county, field teams are deployed with one team per village. Upon completion of user rights data capture in a village, the field team is then assigned to another village. Each field team is headed by a member of the sub-county council appointed ALC. Such a field team structure

(Figure 5 Figure 5 below) has enabled the project document no less than 40 parcels per pay per sub-county; especially if adequate level of social preparedness has been achieved.

Figure 5 ILGU project user rights capturing field team structure

Given that the approach will be up-scaled to address the problem of overlapping rights in all project areas where Mailo tenure exists, it was important to undertake an evaluation of the approach before scaling-up. The evaluation of Land Inventory approach was based on four guiding questions, namely whether the approach:

i) improves the relationship between landlords and tenants, ii) addresses all land related disputes on Mailo tenure, iii) provides adequate information for negotiations between landlords and tenants, and iv) provides an appropriate Fit-For-Purpose (FFP) technological as well as operational/procedural solution

3 FINDINGS 3.1 Does the approach improve relationships between landlords and tenants?

The often-poor relationship between landlords and tenants is one of the constraints hampering productivity and establishment of a land market on private Mailo land. The project identified that despite the popular understanding that tenants are the most inconvenienced by the existence of overlapping rights on Mailo

tenure, there are many cases where landlords are denied entry or access to their land pointing to the fact that landlords are equally inconvenienced by the impasse.

The project identified that the most common threat to tenants on private Mailo tenure is the practice of landlords selling land to other parties without giving the first option to tenants, as per the legal requirement. Given that there is no documented information about the occupancy rights in the Mailo register, the new landlord may in many cases pre-meditate vacant possession of the land, only to get surprised after learning later that the land is substantially occupied. This may result in the new landlord attempting to evict the tenants illegally. Where tenants fall into the “under-privileged” categories such as the poor, uneducated women, widows, children, the elderly and terminally ill, the likelihood of illegal or fraudulent legal eviction increases. Where tenants are empowered or have attracted political intervention, the new landlord will most likely lose and therefore take up the unoccupied portion of the land, but with hope that the entire land will be freed of occupants at a later opportunity. This scenario increases tension between landlords and tenants.

The GIZ ILGU project identified very poor relationship between landlords and tenants. Many landlords had rejected the nominal ground rent (busuulu) and had not made any arrangement to collect it from the tenants. Likewise, many landlords who live in other cities considered the amount being too low, not even enough to cover their transport expenses. Especially since nominal payment is done regardless of the size, location or fertility of the ground. On the other hand, some tenants did not see the reason why they would pay to a landlord whom they had not seen or whom they did not recognize as the legitimate owner of the land. In some villages in Myanzi Sub-county for example, some tenants had mobilized to chase away the landlord in case he appeared. The GIZ ILGU project attempts to bridge the gap by sensitizing both the landlords and tenants. For the landlords, the sensitization was aimed at explaining that the tenants’ rights were protected by the law and hence there was a very limited possibility that the landlord would evict them. Sensitization of tenants aimed at explaining the risk ahead if they continued to default payment of ground rent.

One of the measurable benefits of the project is that it opened communication channels between landlords and tenants to negotiate terms under which they would co-exist. This resulted in now many tenants paying nominal ground rent to landlords, which in many cases was made as a pre-condition for allowing them to map their occupancy rights. Beside improved payment behavior, the overall relation between the two parties has improved, resulting in stronger respect of each other. Overall approximately 80% of the tenants paid ground rent as a result of this intervention. In some cases, an understanding would be reached for the tenants to pay ground rent at a later date and this would be documented. Other tenants who had illegally occupied

the landlords’ land were required to pay an introduction fee (known as ekanzu) which establishes the first recognition of a tenant by the landlord. Though this is not a legally recognized fee, it is part of the traditional customs paving the way for improved coexistence. This development improved the security of tenure of “squatters” or unlawful tenants given that for the first time, they gained recognition by the landlords as tenants on their land, legalizing their land use rights.

Another major source of landlord-tenant unrest that the project handled was that of unclear boundaries of the land used by tenants. Many landlords claimed that tenants were frequently extending the boundaries of their allocated land hence encroaching on the Mailo owners land. This was possible given that there was no proper and precise documentation of boundaries. Lack of well-defined boundaries had also triggered disputes between tenants as some tenant tried to fraudulently extend into other tenant’s land. The project has mapped boundaries of the land belonging to each tenant in a participatory and transparent manner and this has led to a record of agreed boundaries between landlords and tenants. The procedure has improved landlord-tenant and tenant-tenant relationships given that each party cannot attempt to extend boundary markers into another’s land.

3.2 Does the approach address all land related disputes on Mailo tenure?

Disputes on Mailo tenure arise from uncertainty of boundaries between landlords, between two or more tenants with adjoining parcels and between landlords and tenants. Other disputes identified by the project include succession disputes among family members of landlords and tenants, and disputes on payment of busuulu and ekanzu.

The lack of transparency over private Mailo land, as well as the strained socio-economic relationship between land owners and tenants is often further aggravated by political interference by politicians and the powerful elite of the country. Land conflicts are not uncommon in the project area. Conflict mediation forms a pivotal part of the project approach. To date (January 2019) 452 cases of conflicts have been recorded, of which 55% have been processed, 42% resolved and 03% unresolved and referred to formal courts of law (see Table 1). While the projects’ mandate is to resolve new disputes arising out of the project mapping activities, in line with the ‘do no harm principle’, many disputes ‘re-surface’ and constrain land rights mapping activities during the process. Such pre-existing land disputes between land owners and tenants as well as between tenants and their fellow neighboring tenants or in-family related disputes are exacerbated by leaders, largely with a bias towards the larger number of tenants, for political gain.

Table 1: Statistics of land disputes reported and resolved under the GIZ ILGU Project

No. of No. of No. of No. of Nature of Dispute Disputes disputes in resolved referred Reported process disputes disputes Absentee land lords 18 16 1 Land grabbing 53 28 22 3 Deprivation of land rights 27 10 14 3 Disagreement on the amount of busuulu 13 4 9 and ekanzu Forced buy out or/and land sharing land 26 16 10 fraudulent/wrongful sale 6 2 1 3 Squatter on Mailo land 31 17 14 inheritance/succession conflict 18 10 8 Land boundary dispute 51 15 36 Land eviction case 10 9 1 Land lord OR tenants not yet convinced 51 35 14 2 Landlord refused busuulu 17 14 3 Sale of land without Land Lord consent 6 4 1 1 Tenants refusal to pay busuulu 109 64 45 Uncertainty about the true land lord 16 3 13 Total 452 247 192 12

Disputes between landowners and tenants manifest both as boundary as well as legitimacy conflicts. 11% of the conflicts processed under the project are boundary related. These result often from the unauthorized extension of the tenancy boundaries. The spatial extent of a tenancy has never legally been defined. Having never been recorded the spatial limits of the tenancies renders such disputes rather difficult to settle due to the absence of a reference point1.

The absence of such reference data or legal definition of the tenancy size recorded boundaries of the extent of tenanted portions on the registered Mailo parcels also has had the consequence that sometimes tenancy parcels have extended into more than one registered Mailo parcel. While tenants and landowners alike may unknowingly believe that a particular tenancy lies on one registered parcel, this may not be the case in

1 The Land administration domain model provides that party or rights holder, right and parcel or portion over which the right is held must be adjudicated for proper land administration. Since tenancy rights were legally defined, rights holders and the related parcels had never been recorded.

reality. One of the project outputs is the overlay of mapped tenancies over the Mailo cadastral parcels done with the help of Makerere University, School of Build Environment (MUK-CEDAT). The overlay reveals which tenancy lies over more than one Mailo parcel. The GIZ ILGU project approach establishes the reference points for user rights boundaries. This forms the basis upon which boundary related disputes could be resolved later in the event of moved or destroyed user rights boundary points through staking out the previously captured boundary point coordinates.

Tenancies that lie over more than one Mailo parcel may not only be a consequence of unauthorized extension of the tenanted portion over registered Mailo land but can also originate from previous transactions or subdivision of the Mailo parcel resulting from sales, gifting and inheritance. This compound the challenges faced by the tenants since they are then legally obligated to pay dues to more than one land owner as well as having to negotiate further tenure security options for several tenancies and with several owners. The GIZ ILGU approach creates transparency on such occurrences through overlays of user rights documented over cadastral records of the registered Mailo parcels. However, no further attempt is made to resolve such disputes and as such, it remains the obligation of the affected parties to resolve such challenges.

Disputes emanating from the legitimacy of holding rights to the tenancy are abound 6.8 % of the disputes processed under the project are attributed to unclear origin of the rights claimed by tenants commonly referred to as squatters. Many tenants are challenged to prove their rights in line with the legal provisions within the Land Act. Many have long not abided to the requirement to pay ground rent, having acquired the tenancy through purchase when the land owner was not granted the first option to buy-out the user right or are devoid of administration instruments proving inheritance of rights of a deceased legitimate tenant. While majority of the tenants have revealed that they bear sales agreements as proof of their user rights claim, such agreements are often not witnessed by the land owners.

Disputes also abound due to the legally regulated nominal annual ground rent (about 3 USD for rural areas) with 24% of the cases arising from tenants’ refusal to pay the ground rent while 3.7% of the cases arising from landlords refusal of the ground rent Land owners are hesitant to accept ground rent for which the tenant is obligated to pay by law since it is often uneconomic to levy it, especially for those being non- resident land owners. Additionally, the ground rent payable in rural areas targeted by the project interventions, disregards the size of the tenancy or the fertility of soil. While tenants commonly rent out part of the tenanted portion for no less than 30 USD per acre per season, they have before the project awareness raising activities absconded from paying their ground rent arrears or resisted negotiations with

land owners on a mutually agreeable amount, higher than that set by the mandated government entities. The GIZ ILGU project capacity development of land administration structures include trainings of DLBs, DLOs and ALCs and creates the competence within targeted sub-counties for facilitating negotiations for payment and receipt of ground rent arrears as well as possible higher mutually agreeable amounts.

Rejection of ground rent payments by land owners leaves tenants in a legally precarious situation since they are still obligated to pay annually, without which they could lose their rights for non-payment for two consecutive years. Such a situation motivates land owners to illegally restrict tenants from developing the tenancies, since further long-term investment like perennial crops, irrigation systems, conservation measures and agro-forestry would entrench their tenancy rights. Consequently, this would make it difficult to buy-out the tenancy right as well as to compensate the tenant for the developments made overtime. Many of such disputes have been resolved under the project initially through raising awareness on rights, duties and restrictions under the law as well as during Alternative Dispute Resolution (ADR).

Tenants in some villages have either lost contact or never been in touch with the owners of the land they occupy. Over generations, descendants to the land owner reflected in the register may have abandoned the land or are not aware of such property due to e.g. loss of ownership documents. In certain instances, owners may have passed-on intestate or without biological heirs to their estate. On many occasions, tenants in the project target sub-counties have revealed that they have never heard from any person claiming the ownership of the land they occupy. In other instances, tenants have indicated that due to the tense relationship between them and the land owners, the owners have abandoned the land for several years. It is therefore not uncommon for tenants to dispute ownership of those that approach them, even with evidence like title deeds or letters of estate administration. Adherence to payment of annual ground rent and restrictions of having to give the first option to buy-out the tenancy interest to the land owner is rather cumbersome in instances where the owners or their descendants are disputed or cannot be traced. Family disputes (11%) among members of the landowners affect the mapping processes as families often own square miles of land.

Many tenants have also, before the project, mostly been unaware of the procedures for establishing the rightful owners, which necessitates them to make a formal search with the land registry at the District Land Office. The social preparation activities have greatly encouraged land owners to re-engage with tenants. Many are contacted with the purpose to have them attend parish and village level meetings. Such contact

is made in varied ways including through community leaders, tenants, representatives of the land owners’ resident in the community as well as through the projects awareness raising and conflict resolution partner.

15% of the disputes recorded for processing are boundary disputes between tenants and fellow tenants. Having never before demarcated their tenancy portion boundaries, tenants need to resolve the boundary disputes, agree to shared boundary points marked with vegetative material locally known as luwaanyi (singular) before they are mapped. Such disputes are often resolved on the spot by the members of the land rights mapping team, in the presence of a community paralegal representing the CSO partner UCOBAC responsible for awareness raising and land conflict management. In a few instances, tenants have also disputed ownership claims by fellow tenants to the entire or part of the tenanted portion. Such disputes require sufficient time to resolve and thus are often not resolved on-the-spot but settled through the ADR mechanism established under the project at village level, or if referred, at sub county level.

Land owner to land owner disputes are uncommon with 2% of the disputes managed found to be between one land owner and another. These manifest in terms of either unclear boundaries exacerbated by poor land surveys or in-family disputes due to multiple claims of ownership. Without administratively resolving and documenting the sharing of property, beneficiaries to the estates of former owners commonly contest over land. This leads to a situation where some landlords dispute for who the rightful recipient of ground rent due from tenants should be. Tenants are often constrained on who the rightful owner is as well as the authoritative person with whom to negotiate further land rights security options. While the project builds the capacity of land administration entities as well as creates awareness at community level about what procedures to follow to address such challenges, the onus remains on the beneficiaries to address and resolve such disputes as a gateway towards eventually resolving the overlapping rights on private Mailo land. The project does not seek to deliberately address such pre-existing disputes through ADR due to their time and resource consuming nature

Furthermore, the legal framework provides for land disputes resolution by the courts of law, Land Tribunals, Area Land Committees and Local Council Courts. However, the current practice, as per instruction from the Ministry of Justice and Constitutional Affairs is that court proceedings will not begin unless mediation efforts have failed to yield results. This implies that alternative dispute resolution is encouraged as the first attempt to address land disputes although it is inferior to litigation. Furthermore, the Ministry issued a directive that obligates judicial officers to visit the land that is subject of dispute, before a judgement is passed. Although implementation of this directive has been affected by logistical problems,

it has the potential to minimize illegal evictions of tenants based on un-informed, manipulated or fraudulent court judgments.

The major constraint facing tenants on Mailo tenure is that the Local Council Courts Act 2006 which empowers local councils to preside over land cases, does not extend to registered private Mailo tenure. The result is that many poor tenants who cannot hire a good lawyer to represent them in the court of law sometimes end up losing their land. Sometimes such tenants become frustrated and end up getting involved in criminal activities such as assault and murder. The project established thorough consultation, that the majority (around 70-80%) of the criminal cases handled by police and courts have a rooting in a land dispute.

Apart from the legally mandated dispute resolution institutions mentioned above, there is a number of other institutions that are involved in handling land disputes because of their related mandates or special executive assignment. Such institutions include the Office of District Resident Administrator, Uganda Police Force Land Protection Unit, State House Land Unit and ad hoc commissions such as the Judicial Inquiry into Land Matters (e.g. the Bamugemereire Commission). The availability of various uncoordinated institutions for dispute resolution has sometimes caused confusion given that there is no hierarchy in which cases should be reported. Sometimes a case concluded by a higher institution may be revisited by a lower or parallel institution, and in some cases, an order issued by an authoritative institution may be resisted with support from another dispute resolution institution.

The GIZ ILGU project philosophy to dispute resolution in light of the existing uncertainty is for disputing parties to properly reconcile is the best means to sustainable settlement of disputes. The project therefore promotes alternative dispute resolution using locally trained paralegals, local councils and respected elders in the areas. This approach has resolved many disputes which otherwise would have ended up in courts of law. Furthermore, the approach has promoted harmonious living between landlords and tenants. Evidence of this is manifested in the piloted Certificate of Occupancy (CO) application and issuance procedure initiated in Myanzi subcounty, where more than 1,000 CO applications have so far been received by the Area Land Committees and more than 550 of these have been granted consent to proceed by the respective land owners.

3.3 Does the approach provide for adequate information for negotiations between landlords and tenants?

The Uganda land policy options for addressing the impasse between landlords and tenants require empowerment of both parties with information about the size, location, use and other details pertaining to the land used by tenants. This information has for a long time not been available in the official land register, and neither is it available in any database. Lack of this information has greatly hampered implementation of the land policy provisions for addressing multiple rights on Mailo tenure.

At village level meetings during project implementation, it is common for land owners to ‘disown’ tenants as illegitimate, disrespectful or non-compliant. Land owners often initially reject having received ground rent from such tenants. It is at this stage that the initial alternative dispute resolution activities are triggered. Since the project’s Free Prior Informed Consent (FPIC) approach necessitates that disputes must be resolved first prior to user rights documentation, many tenants are non-eligible to participate in user rights documentation, not until such disputes have been resolved. The consequence is that user rights documentation is initially sporadic and over time gradually improves to the desired, more systematic procedure as more tenants resolve grievances between them and the owners of the land they occupy. Due to the initially rather sporadic mapping approach, the intended benefits of the CRISP2 software developed by GIZ, including snapping onto already mapped adjacent boundary points, are thus not utilized initially by the field teams. These benefits materialize only gradually when mapping activities are done in a more systematic way, resulting in the mapping exercise being much faster since previously mapped boundary points need not be revisited.

The land inventory approach gradually builds trust between land owners, political leaders and tenants using registered Mailo land. A step by step approach is followed for social preparedness of community members prior to the succeeding land use rights mapping and documentation activities. Following project introductory meetings with political, cultural as well as opinion leaders at district and subcounty level, meetings of land owners within a specific sub-county are held at each parish to further create awareness for parish and village level leaders as well as to seek the buy-in of land owners prior to the engagement of tenants at village level. The activities and benefits of the project activities are elaborated in detail to the owners. It is at such meetings that the FPIC of land owners is assessed and ensured. This entails asking

2 Cadaster, Registration and Information Saving Paper software for data capture of information on persons and parcel

them to list those tenants they would grant consent to participate in the subsequent user rights documentation.

At village level meetings, land owners commonly receive ground rent payments from their tenants. Many tenants have during the project’s social preparedness activities paid up ground rent arrears after many years of non-compliance

The land inventory approach also facilitates capture of information about the boundaries size and use, which assists both landlords and tenants to understand the details of land utilized by the tenant and the proportion of the remaining land for use by the tenants. The other useful information captured by the project includes particulars of the landlord and tenants, proof of occupancy rights such as possession of sales agreements, ground rent receipts, letters of administration and other relevant documents. Pictures of the documents are taken and directly entered into the CRSIP software and into the database. All data are handled at the sub- count levels and are available for the Area Land Committee and the Ministry of Lands, Housing and Urban Development and respective land agencies at district levels. Presently efforts to insert information into the National Land Information System (NLIS) of the National Land Information Centre (NLIC) which is part of the Ministry of Lands, Housing and Urban Development (MLHUD) are discussed. The information on occupancy rights, parcel boundaries and particulars of parties will be useful while negotiating for options for settling landlord tenant relationships in the subsequent phases of the project. Currently, this information is being used to upgrade the temporary social documents (Land Inventory Protocols) into Certificates of Occupancy, which are legal documents with more protection.

3.4 Does the approach provide an appropriate Fit-For-Purpose (FFP) technological as well as operational/procedural solution?

One of the hindrances to addressing the impasses between landlords and tenants is that most tenants cannot afford the costs of hiring a private land surveyor to survey their land, in case the landlord has no objection in subdividing the land. On average, a tenant with a small sized plot of a quarter of an acre (o.1 hectares) requires more than 2 million Uganda shillings (500 USD) to process a land title. Additional official charges and fees are levied at the district land office, rendering the whole process costly and inaccessible for most tenants.

The GIZ ILGU project therefore tested and follows a Fit-for-purpose solution (Enemark. et. al. 2015) for mapping and documentation of occupancy rights. The procedures and technologies for the fit-for-purpose

solution used in the project are well documented by Huber et al (2018). The focus of the approach was to document the land use rights to enable tenants acquire documentation that proves their ownership to the claimed rights. The social document issued to the tenants empowers them to pursue further steps in securing tenure as recognized by law. Since the documentation is based on claimed rights, there is no segregation of the parcels based on size or use as may be for acquisition of legal documents

The challenge encountered while applying the solution was the mismatches between occupancy rights boundaries and cadastral maps obtained from the Department of Surveys and Mapping of the MLHUD. The mismatch was attributed to the quality of cadastral maps which either lacked internal consistency or had not been properly geo-referenced. On the other hand, the occupancy rights boundaries were validated using a 40 cm spatial resolution ortho-rectified aerial image, which was obtained from the Department of Surveys and Mapping, MLHUD. Given that the occupancy rights tallied well with the features on the image, the generated maps could be used as preliminary benchmarks to rectify cadastral maps.

The additional advantage with the fit-for-purpose solution is that landowners and tenants are facilitated to view their boundaries against an ortho-rectified image which improves their understanding and appreciation of the size, location and dimensions of their land.

4 CONCLUSION

Tenure security on private Mailo remains a highly sensitive and political issue in Uganda. Through improved awareness and information sharing at all levels, the different parties in the project areas have obtained a stronger understanding of available options for sustainable solutions. The issuance of the Land Inventory Protocol (LIP) through the GIZ ILGU project in partnership with Makerere University, School of Build Environment (MUK-CEDAT) provides for a first documentation of land use claims by tenants, and serves as social evidence of the size, location and claimants of the parcel. This is a fundamental requirement for improved transparency of land use and occupation and provides the prerequisite for further improved tenure security options as outlines in the National Land Policy (2013) and the Land Act (1998). Many tenants would opt to buy-out their tenancy, however, due to limited financial resources this option is for most tenants not available. Due to unclear rules and regulations concerning lease and sharing arrangements, tenants tend to opt for the Certificate of Occupancy (CO). The CO application process is affordable and creates improved harmony between both parties. Furthermore, it is increasingly seen as a stepping stone to possibly seek for higher tenure options in the future.

Through the GIZ ILGU project, the pursuit for harmonious living has resulted into tremendous reduction of conflicts between landlords and tenants, as well as tenants and tenants. Landlords are now in closer relations with tenants as they can discuss their land rights which was not the case before. Overall, the project has achieved a strong buy-in of the local population and government in the project areas and has proven, that despite of the complexity and high tensions on private Mailo land, solutions can be found. It is however important to ensure high levels of social preparedness and involvement of the different partners from Government, Civil Society, politicians, landlords and tenants.

References

Ali, D.A., Duponchel, M.,Felicienne., (2018): Shortcomings to overlapping rights and a way forward: the case of Mailo land in Central Uganda

Enemark. S, Mclaren.R, Lemmen.C (2015): Fit for Purpose Land Administration Guiding Principles

Huber, T., Musinguzi, M., Namuli, R., Kirumira, D (2018) Fit-for-purpose user rights documentation: The case of private Mailo land in Uganda, 2018 World Bank conference on land and poverty, The World Bank - Washington DC

Mugambwa, J., (2007): A Comparative Analysis of land tenure law reform in Uganda and Papua New Guinea. Journal of South Pacific Law