L and Ri gh ts And Ch al l enges i n Ug a n d a

Overview of Land Tenure Systems in Uganda

he 1995 Constitution of Uganda and the Land Act provide that land in Uganda may be held in terms of four tenure categories only. These are Customary, Freehold, Mailo and Leasehold tenure.

CUSTOMARY TENURE
Customary land tenure is a system of land relations, the incidences of which are not always capable of precise definition. These incidents often vary from community to community or even within communities. The underlying commonality in all customary law systems is that rights are derived by reason of membership in a community and are retained as a result of performance of reciprocal obligations in that community. It is thus defined in terms of its territoriality or clan nature, existence of rules governing community, family, or individual access to land, and perpetual ownership of land and resources. The Constitution and the Land Act restored the status of customary land tenure by recognizing it as one of the four tenure regimes. The Land Act enumerates the incidents of customary tenure and it also provides that customary tenure may be converted to freehold.

Hon. Daudi Migereko, Minister of Lands, Housing and Urban Development. cally standard, include the conferment of a full power of disposition, and compulsory registration of title in perpetuity.

Hon. Idah Nantaba, State Minister for Lands.

6. The Land Acquisition Act, Cap.226, 1962 7. Registration of Titles Act, Cap.230 8. The Mortgage Act, Cap. 229

LEASEHOLD TENURE
Leasehold involves the derivation and enjoyment of land rights from a superior title in exchange for conditions, including but not limited to, the payment of rent. The 1995 Constitution (under Article 237 (5)) provides that any lease, which was granted to a Ugandan citizen out of former public land, may be converted into freehold.

LAND REGISTRATION IN UGANDA

A land title or Certificate of Customary Ownership is very important because it is the only legal and conclusive evidence you have of ownership. It also contributes to tenure security because you can be sure that you cannot be evicted. It avoids land disputes and is required by banks to give you loan facilities. It is also essential for one to have updated title or certificate record other than keeping it in the names of the dead. Land owners should on a regular basis go to the Ministry Zonal Offices to check the status of their land. The development and implementation of the new Land Information System strengthens the decentralized land administration system. Before the introduction of the Land Information System, people had to go to Kampala which cost a lot of time and money. Thanks to the Zonal offices, services have been taken closer to the people. The Ugandan land registration system is modeled on the Torrens system originally developed by Sir Robert Torrens and first implemented in South Australia. In Ugandas Torrens-type registration system, the State maintains Certificates of Title which has registered information regarding ownership

MAILO TENURE
Mailo is subject to the rights of occupiers or kibanja holders. Both separate the ownership of land from occupancy or ownership of developments by lawful or bonafide occupants and this is guaranteed by the Land Act 1998. The kibanja holder has option to purchase and, thus, move up to the Mailo title status. The Land Act also guarantees statutory protection to the kibanja holder and his or her successors against any eviction as long as the prescribed nominal ground rent is paid to the land owner.

THE LEGAL FRAMEWORK OF LAND ADMINISTRATION

Ugandas legal framework for land administration has undergone reforms in the recent past and consists of a number of legal acts. Some of these legal acts are outdated and require harmonization after the approval by Cabinet of the National Land Policy on Feb. 7, 2013. The land administration system of Uganda is however based on a number of laws which include: 1. The Constitution of the Republic of Uganda 2. Land Act 1998 as amended in 2004 and 2010 (CAP227) 3. The Condominium Property Act 2001 4. Land Regulations, 2004 5. The Survey Act, Cap. 232, 1970

FREEHOLD TENURE
About five percent of households in Uganda hold land under this tenure. The incidents of freehold tenure, which are basi-

La n d R igh t s & Chal l en ges in Ugand a

and other legal interests affecting land. According to Ugandan law, the Certificate of Title is deemed to be conclusive evidence that the person named in the Certificate as the owner of the land is the owner, and that any person named as having any other interest in the land possesses such interest. The State in effect guarantees the accuracy of the information on the Certificate of Title so that anyone dealing in land may rely on the accuracy of title information. Each time there is a transaction that changes the ownership or other rights to a plot, the legal instrument (such as a purchase and sale agreement, lease or mortgage) that accomplishes the change is submitted to the office of Titles, and the appropriate change is registered on the Certificate of Title. The Titles Office retains instruments in addition to retaining the Registry Copy. Efforts have been made to computerize the land records with a view of making the registration process simplified, keep it updated and to inculcate an element of transparency in land market to foster a conducive environment for safer and more efficient investment in land.

Benefits of the Land Information System (LIS)

PROTECTION OF GOVERNMENT LAND GUARANTEE OF OWNERSHIP & SECURITY OF TENURE ENHANCED ACCESS TO CREDIT INCREASED LAND PRODUCTIVITY

IMPROVE URBAN PLANNING & INFRASTRUCTURE DEVELOPMENT FOR SUSTAINABLE DEVELOPMENT & A CLEAN ENVIRONMENT REDUCE LAND DISPUTES

LIS

LOWER TRANSACTION COSTS ON THE REAL PROPERTY MARKET LOWER TRANSACTION COSTS ON THE REAL PROPERTY MARKET

MORE EQUITABLE AND COST EFFECTIVE REVENUE GENERATION IMPROVE OPPORTUNITIES TO IMPLEMENT LAND REFORMS

CHEAPER INFORMATION FOR ADMINISTRATION

Benefits of Computerizing the Land Registration process

 The system is more responsive to the
needs and demands of the citizens and business clients;  Computerization prevents, reduces or eliminates backdoor transactions, forgeries and graft;  There is more efficient and speedy registration of transactions;  The problems of missing land records has been eliminated;  There is a decrease in the cost and space required for storing land records;  There is a simplification of the preparation of disaster copies;  There is a faster resolution of land disputes;  There will be online access to the information in the Registry with reduced interfacing with the public which discourages soliciting for unofficial fees;  The problems which are experienced under the manual system no longer happen. These include multiple allocations of plots; forgeries and altering of land documents; unauthorized involvement in land allocation; land use abuses; en-

croachments on roads and road reserves; wrong and overlapping surveys; inefficient revenue generation and loss of revenue; rampant subdivisions, amendments and falsification survey information on land titles.  There is already a reduction in time and cost involved in land transactions;  The system provides built in security measures for ensuring accuracy, reliability of registry record and ensure integrity of land records;  There is easier identification and prevention of fraud and illegal transaction;  The system facilitates search and verification of title in the shortest possible time;  The system also facilitates monitoring and analysis of market and rental values of land and property; and  The system will in the near future provide special online access to Courts, Banks and mortgage finance institutions.

Land within the context of Gender and Development

Land rights of women and other marginalized groups are a key development issue and are very crucial in the Governments strategy to fight poverty. Without secure rights to land womens ability and incentive to participate in income expanding economic activities is impaired, since, for

example, they are not able to control the income from farming activities and make decisions on land use. Five critical issues comprise the gender issues in the land sector:  The nature of womens land rights;  The position of women regarding access to and control of land;  The consequences of gender inequality relating to productive and optimal land use;  The limited and non-effective conflict resolution for women; and  Womens participation in the land administration institutions. Women gain access to land and control to land through inheritance; access by virtue of membership within a family; and through renting or outright purchase. In most cases, family land is handed over by several generations through the male lineage. As a result, of this practice, the sons deem their right to family land as automatic while daughters are not eligible. Although Ugandan laws are quite clear about women being as free as men to own and dispose of property, including land, in practice women have not effectively accessed the land market. Therefore, equitable distribution of land and gender equality in land access, control and ownership are prerequisites to agricultural modernization. Without commitment to improving women and youths ability

L and Ri gh ts And Ch al l enges i n Ug a n d a

to access and own land, the contribution of industrialization and a modernized agriculture sector for wealth creation is seriously hampered. insecurity, as the growing scarcity for land increases. it must give the tenant at least six months from the date of the order to vacate the land. Any person who participates in illegally evicting tenants will be liable upon conviction to imprisonment not exceeding seven years or to a fine not exceeding 96 currency points (UGX.1, 920, 000) or both.

Challenges in the Land Sector

Uganda like any other African country is manifested with many land challenges, which have impeded economic development, sound environmental management, and human survival. Some of the key challenges include: 1. The urban areas continue to grow at a pace that considerably exceeds the average for most other parts of the world. Physical planning has not kept pace with rapid urbanization and population increase; neither has it been pro-poor nor pro-growth, causing inadequate supply of serviced land for urban activities and industries. 2. The historical injustices related to land as land grievances stretch back to the colonial era and resulted in the disinheritance and grabbing of communities, clans and individuals customary land. These injustices arose from dispossession of land resources and require redress. 3. The incidence of land use conflicts within and across our borders is a worrying phenomenon. These conflicts are many and include human-wildlife conflicts, livestockcrop farming conflicts, competition over water conflicts, territorial and boundary conflicts, human settlement and environment conflicts, mining and rural settlement conflicts, historical injustices conflicts, and Landlord - Tenant conflicts. 4. There is a problem of under utilization and under exploitation of our natural resources, because of use of poor technology, poor infrastructure, and lack of utilization of local and foreign knowledge. This has kept land idle and underutilized, calling for the need to sensitize these land owners to put their land to productive use. 5. The Trust land management system has been abused by various actors, leading to a systematic breakdown in land administration and poor delivery procedures throughout the country with manifestations of acts of corruption and unethical practices. 6. The issue of unlawful land evictions, which have adversely affected the majority and most vulnerable categories of people in our communities. If left without provision of specific policy direction, it would lead to untold socio-political instability and tenure

WHAT CONSTITUTES AN ILLEGAL LAND EVICTION?

An illegal land eviction is any forcible removal of a tenant, directly or indirectly, without prior court approval. Illegal eviction involves the threat or use of violence; a landlords attempt to make a land unlivable in the hope that the tenants will leave. No matter what the issue is between the tenant and landlord, as long as the Landlord does not obtain a court order, then it constitutes an illegal eviction.

Advantages and benefits

1. It serves interests of both Landlords and Tenants, whose age old rights and obligations are now better defined and strengthened; 2. It minimizes the conflicts and creates harmony between Landlords and Tenants and as such consolidates social order while also enabling development; 3. It protects the rights of the vulnerable Tenants, who constitute the majority population in Uganda, from untold suffering and becoming landless.

WHAT THE LAND LAW ON EVICTIONS SAYS

The lawful or bonafide occupants can only be evicted by an order of court only for failure to pay ground rent. When the lawful or bonafide occupant is in default of payment of ground rent exceeding one year, the registered owner is entitled to serve him or her a notice to show cause why the tenancy should not be terminated. If the tenant disputes the notice, he or she may refer the matter to the court within a period of six months after the date of service of the notice by the registered owner. Where the tenant does not challenge the notice within the prescribed period or pay the outstanding rent within a period of one year from the date of the notice, the registered owner applies to Court for an order to terminate the tenancy for non-payment of rent. Where the Court grants the registered owner an order terminating the tenancy,

OPTIONS TO PURCHASE
Whenever a tenant by occupancy wishes to sell his or her rights of occupancy, he or she must give the first option of purchase to the registered owner. Any tenant by occupancy who sells his or her rights of occupancy without giving the first option of purchase to the registered owner commits an offence and is liable on conviction to a fine of 1,920,000 or imprisonment not exceeding 4 years or both and the transaction shall be invalid. Any tenant by occupancy who does not give the first option the right to purchase option shall forfeit the right over the land and the land shall revert to the registered owner. Where the registered owner gives consent to the tenant by occupancy to sell his or her

Hon. Daudi Migereko at a land rights sensitization community meeting for residents at JagalaKavule in Wakiso District

La n d R igh t s & Chal l en ges in Ugand a

rights of occupancy to a third party, the tenant by occupancy shall introduce the third party to the landlord. The registered land owner is free to sell his/her land with or without offering the option to the tenant by occupancy. For avoidance of doubt, the new landlord can only evict the existing tenant by an Order of Court for nonpayment of rent. Should the registered owner effect the ownership of title by sale, grant succession the interests of the tenant by occupancy, the new owner shall be obliged to respect the existing interests i.e. he /she cannot evict the tenants by occupancy without any order of court.

Commissioner Mulinde Mukasa-Kintu of Lands Ministry sensitizing on the rights and obligations of Land lords and tenants occupants on registered land. To qualify to be a bonafide occupant, one must have settled and utilized the land unchallenged by the registered owner for twelve years or more before the coming into force of the 1995 Constitution. This is a person who settled and used the land before 8th October 1983. Any person who settled on the land after that date does not qualify to be a bonafide occupant. The following categories of people are not protected by this Amendment to the Act;  Unlawful occupants;  Illegal tenants;  Trespassers;  Licensees (these are persons temporarily brought in by the land owners to utilize the land);  Lessees (these are persons with oral or written agreements with the land owners to temporarily occupy or use the land) for specific period of time;  People renting agricultural land;  People renting premises. Where someone does not quality as Bonafide Occupant, the law provides that this person takes reasonable steps to look for the land owner and undertake negotiations with the owner concerning his or her occupancy on the land. They can seek the help of a mediator agreed upon by both parties. 4. May pass on the land to anybody by will, gift or sale. 5. Is entitled to be given the first option to buy out the interests from tenants by occupancy who may be on that land and willing to sell. 6. May own the land and the developments he /she made on the land. 7. Must recognize the rights of the lawful and the bonafide occupants if they exist 8. Must recognize the rights of the successors of the Lawful and Bonafide Occupants. 9. Uses land in accordance with other Policies and laws governing Land Use.

POWERS OF DISTRICT LAND BOARDS

The Boards have no powers to allocate any land which is owned by any person or authority which is either under Customary, freehold, Mailo. Where the Board enters or undertakes or concludes such allocations, they shall be null and void.

WHO IS A TENANT?
Someone who pays rent to use land or any occupant who dwells on land. The Constitution provides for two types of tenants: a Lawful Occupant and a bona fide occupant. Lawful Occupant means: a person occupying land by virtue of the repealed  Busuulu and Envujjo Law of 1928  Toro Landlord and Tenant Law of 1937  Ankole Landlord and Tenant Law of 1937 1. A person who entered the land with the consent of the registered owner, and includes a purchaser; or 2. A person who had occupied land as customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title. Bona fide Occupant means a person who before the coming into force of the constitution Had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or Had been settled on land by the Government or an agent of the Government which may include a local authority. For avoidance of any doubt, the Amendment only protects lawful and bonafide

THE RIGHTS & OBLIGATIONS OF TENANTS

1. Enjoys security of occupancy. 2. Must pay annual nominal ground rent to the Land owner. 3. May acquire a certificate of occupancy by applying through the Land owner. 4. With permission of the Land owner, a tenant may sublet or subdivide the kibanja. 5. May assign, pledge and create 3rd party rights in the land with consent of the Land owner. 6. May end the occupancy and return the Kibanja to the Land owner.

WHERE VICTIMS CAN SEEK FURTHER HELP AVOID ILLEGAL LAND EVICTIONS
1. The Committee on Illegal Land Evictions (CILE) under the Ministry of Lands, Housing & Urban Development; 2. The Nearest Police Post; 3. Land Protection Unit under Police on Tel No: 0800100999 4. Magistrate Grade 1 or Chief Magistrate. By Dennis Obbo, Mary Nanziri and Nicholas Ndawula Ministry of Lands, Housing & Urban Development

THE RIGHTS AND OBLIGATIONS OF REGISTERED LAND OWNERS

1. A Mailo and Freehold proprietor owns the land forever. 2. May sub-lease, mortgage, pledge or sell the land. 3. May sub-divide the land for purpose of sale or any other lawful purpose.