By Joshua Kato
Under the mailo land system, land is owned in perpetuity by the landlord. The word ‘mailo’ was coined from the fact that each of the first beneficiaries was given a mailo (mile) of land under the 1900 agreement.
Mailo land is more prevalent in the central region and parts of the west, especially in Kibaale and Kakumiro districts. Under the system, land ownership is registered with the area land board and a title of ownership issued to the land lord. If the land is occupied by other people, they are called bonafide occupant and the Land Act explicitly explains how they deal with the landlord.
However, the relationship of landlord and the occupant creates a dual kind of ownership. Lawyer Robert Kirunda says the creation of ‘dualism’ on mailo land is a recipe for conflicts, for example, those in Kasanda, which affected Batanudde. Kirunda is a corporate and commercial lawyer, who also teaches land law at Makerere University.
There are mainly two ways through which one can become a mailo land title holder. When the system started in 1900, the chiefs who got this land immediately became mailo owners. Through the years, generations of these chiefs have sold pieces of their land to other people who also after buying are given titles, hence becoming mailo land owners. Anybody who is sitting on this land, but without a title is known as a tenant.
“The definition of rights accorded to bonafide occupants in the Land Act (Cap 227) and all subsequent amendments, lack legitimacy on the part of land owners,” he said. The Land Act (Amendment) 2010 grants statutory protection to the bonafide and lawful holder and his or her successors against any eviction as long as the prescribed nominal ground rent is paid.
“However, the nominal ground rent provided for, as opposed to economic rent is largely ignored, creating a land use deadlock between the tenants and registered land owner, leading to conflicts and many times evictions,” Kirunda explains. This is what is affecting most of the sitting tenants in places like Mubende, Kibale, Kakumiro, Mityana, Kasanda, Kiboga, Gomba, Ssembabule, Rakai, Kyotera, Lyantonde, Nakasongola, Kayunga, Kyankwanzi, Nakaseke and Luwero. These areas have a population of over 5million voters and this should ideally interest politicians.
“Every politician who comes here tells us that he is on our side,” said Teddy Mukasa, a tenant in Kasanda, however, the evictions continue almost unabated as livelihoods suffer.
Communal land system
Kirunda says the majority of Ugandans hold land under this tenure. However, he says this system is dotted with lack of security of tenure for the land, it impedes development because it does not allow the advancement of land markets through which those who want land can acquire it and it discriminates against women.
However, in some parts of the east, some community members have started registering the land and getting certificates of ownership.
“The practice, especially in the far eastern part of Uganda, has grown whereby families that previously held land under customary tenure have sought and obtained certificates of title,” Kirunda says. In some cases, the title has got as many as 50 proprietors. Kirunda says this development has had the major benefit of making this land commercially attractive.
Norah Owaraga,a cultural anthropologist and researcher, says on the other hand, the customary tenure system is good for the people.
“Every member of the community feels that he owns a part of the land,” she says. She explains that this should have been the national tenure system had it not been for the coming of colonialism. Before the 1900 agreements, land belonged to the people of the various nations, with no individualistic ownership of the land.
“What we call Uganda had over 50 sub-nations and each of these had their system of land administration,” Owaraga says.
She says that these laws worked and there was no problem. For example, in Buganda, the institution of the Kabaka managed land on behalf of the population.
“The laws of our people worked, however after the 1900 agreements, these laws were bastardised by the new laws of the state,” she says. This is when the system of tenants started.
“Chiefs were given huge pieces of land in order to bribe them to sign the Protectorate Agreements and unfortunately, these huge pieces of land already had people on them, who immediately became squatters,” Owaraga says.
This is when vast pieces of land in many parts of Buganda were titled to just around 3,000 chiefs and family members. This was irrespective of the fact that they had millions of people settled on them.
Other pieces were declared as ‘colonial land’ later becoming ‘state land’, while another 9,000 square miles were kept in ‘reserve’ or ‘vested’ in the state for the people of Uganda. Some chiefs’ families, for example, that of Sir Apollo Kaggwa, received over 100 square miles, while the other regents received at least 15-20 square miles of land scattered around Buganda. Other chiefs received between 1-10 square miles.
“Among the other most prominent misnomers was the creation of the ‘absent landlord’ in places like Kibaale and Buruuli,” Owaraga says. The tale of the absent land lords came about after two counties in Bunyoro, namely Buyaga and Bugangaizi were given out to Baganda chiefs as compensation. At the time, the counties had thousands of people on them.
“All these issues of bafuruki came because the tenure is not clear,” says Boaz Mutumba, a farmer in Kakumiro.
“People from other areas of the country came and took over parts of the land that we sat on, largely because its ownership was given to people far away in Buganda,” he adds.
Mutumba says because they are perpetual squatters, their usage of the land is limited.
Kirunda agrees with Mutumba.
“The squatter cannot set up long-term commercial agricultural projects because he ‘does not’ own the land, while the title holder cannot also set up any project there because the land is occupied by the squatter,” Kirunda says. In the longrun, this affects agriculture production.
Free hold is almost similar to the mailo land tenure, since it requires one to register a land and a title given in perpetuity. At the moment, most of freehold land holding is under institutions like churches and schools.
“It clear that the public policy regards freehold as the property regime of the future, to the extent that current law provides for conversion from leasehold or customary tenure to freehold,” Kirunda says.
“Mailo land or public land can give out land to other users for a specified period,” Kirunda says.
This promotes a sophisticated form of concurrent ownership such as condominiums and time share arrangements, thus opening land to a much larger range of users.
This is good for commercial land usage since the user knows the period and powers of usage. At the moment, most of the large agricultural estates like Lugazi (SCOUL) and Kakira sugar.
In places like Luwero, Nakaseke, Kayunga and Kiboga, some landlords hire out their land to investors for periods ranging from six months to two years in what can be termed as quash leases.
“We give it out for short term crops like vegetables, but not for long term crops like coffee,” says Salongo Muwanga Kizito, a landlord in Kikyusa, Bamunanika, Luwero district.
Can politics solve the issue?
It depends on how and where the politician stands.
“Equally for we politicians, any attempt at radical land reforms is met with huge political risks,” says Ogenga Latigo, MP Agago, also a ‘progressive’ land rights advocate.
He explains that contradictory provisions on land were enacted to buy support and appease voters.
“Any advocacy on land by we politicians is more about playing to the gallery of voters,” he added. On many occasions, politicians claim to support the ‘peasants’ without any enabling or implementable law at the expense of developmental agriculture projects. Such political statements have failed or affected by projects in places like Acholi, Lango, Mubende, Bunyoro and Kayunga.
In Kayunga district, Woman MP Erios Nantaba won her 2016 race with over 80% largely because she openly fought land grabbers’. On the other, hand, in Kasanda, Simeo Nsubuga won in 2016 because he vowed to ‘defeat’ land grabbers. However, four years later, with the evictions still going on, for example in Batanudde’s case, Nsubuga recently lost in the NRM primaries.
Clearly, politicians must find real solutions to the local land problems.
In order to make the available land more useful, there are suggestions that laws must enforce developmental land usage.
Latigo says a number of people have gone land banking, purchasing large chunks of land and leaving it idle at the expense of food production.
“With this law in place, the Government can force land owners to put their land in use or rent it out to other people who can make it productive,” he explains.
Latigo says the current National Land Policy does not explicitly define land as a key national resource critical for production and national development and transformation.
“It is a horse placed after the cart. It focuses on rights of women, children, etc. It does not marry rights given in the law with use, nor does it set individual obligations on effective land use.
In short, our NLP does not help in the key challenge of promoting land use for food security, agricultural transformation and development,” he explains.
John Kigula observes that: “Any land not used, or used otherwise as planned, is taxed to force land owners to properly use their land, to enter into use partnerships, or to hire out land or out-rightly sell land they cannot use, thus transforming land utilization and use efficiency.”
He says there should be a formal and legal definition of land use for agriculture on the basis of agro-ecologies, commodity targets and land availability.
“We should make it mandatory for every land holder to put aside a percentage of their land for particular purposes to meet legally specified national goals of food security, woodlot, environmental protection and strategic production,” Kigula says.