Following in the footsteps of the United Nations Charter, Uganda's liberal Constitution recognises that democracy has two integral dimensions regarding the issue of rights. These are; civil and political first generation rights, and then the more substantive economic, social and cultural rights.

Civil and political rights are largely about liberty from state interference. This enables a citizen's freedom of faith, assembly, association and expression.

Economic, social and cultural rights focus on the citizen's actual well being. Their existence enables man to inherit the political kingdom. Although man's liberty to form political parties or assemble at City Square is important, for most Ugandans, mainly the rural based who earn two thousand shillings a day or less, what is of critical relevance is the enjoyment of economic, social and cultural rights to enable them generate a secure and meaningful livelihood on their land. This in addition to the right to education, health, clean water, etc.

Surprisingly, amidst the crucial debate on land reform, usually vocal civil society organisations on issues relating to political rights, say the influential Uganda Law Society, academia and even the constitutionally established Uganda Human Rights Commission, have kept a deafening silence.

Are they probably unaware of or unbothered by the inhumane evictions, and infringement of the affected citizens' constitutionally protected economic, social and cultural rights? Or is it because it's a class question, with the marginal peasants, bakopi, bibanja holders, not deserving their vocal intervention?

State stake

Most citizens can only enjoy their economic, social and cultural rights through the positive involvement of the state. It's such intervention that would enable their security of tenure over their usually small, say 20 acres or less bibanja holdings.

In their immense wisdom, the founding fathers and mothers of our democracy constitutionally committed the State of Uganda to ensure the economic, social and cultural rights of its citizens.

Article 32 categorically states that "... the State shall take affirmative action in favour of groups marginalised on the basis of gender.... or any other reason created by history, tradition or custom, for the purpose of redressing imbalances which existed against them."

The 1900 Buganda Agreement is one such gross historical injustice. Through the stroke of a pen, a desperate colonial administration parceled out half of Buganda's land, 8,000 square miles, to 3,700 collaborating chiefs and their relatives.

Do recall that Kabaka Mwanga and supporters such as Gabulyeri Kintu resisted this colonial imposition. At the time, Buganda's population was approximately one million people. Thus a mere 0.37% of the population was the beneficiary of half the land, while the other half was expropriated by the colonial administration as Crown Land! This left the remaining 99.63% of the population landless, destitute, in their own country!

The current reforms are not about a massive redistribution of land. The bibanja holders would only retain the security of tenure of their small holdings, usually a few acres or less. They are not about to become a landed mailo gentry. The colonial Busulu and Envujjo Law of 1928 had protected these tenants, prior to 1975.

It was a piece of legislation imposed by the colonial administration on the then mailo gentry-monopolised Lukiiko amid intense protestation.

It criminalised the hitherto rampant imposition by mailo landlords of commercial rents on produce (envujjo) and land (obusulu), and stopped the arbitrary evictions of the bibanja tenants.

Outside Buganda, the intended reforms will regularise the security of tenure of tenants on customary land.

Under colonialism, customary tenants on public land lacked legal protection. The situation only temporarily changed with the enactment of the Public Lands Act, 1969. This law hindered land alienation without the consent of the lawful occupants, who were also given the right to apply for a lease over the land they occupied.

Amin's decree

Unfortunately, Amin's Land Reform Decree of 1975 nullified all these protections. It made all land in Uganda public property, centrally vested in the Uganda Land Commission (ULC). Mailo land holdings were converted into 99-year leases. Consequently, the ULC could lease land occupied by a customary tenant, without the consent of the occupant. A similar fate befell the kibanja tenant. The government's only objection was to pay compensation for any improvements on the land, which for practical purposes was conducted in an arbitrary manner.

Individual ownership of land returned under the NRM through the 1995 Constitution. This document actually attempts to reconcile the uneasy relationship between the mailo landlord and the tenant. Although the Constitution recognises the right to a secure tenancy of the kibanja holder, and that of the customary tenant on public land, the 1998 Land Act had a serious lacuna. It did not lay out the procedure for lawful eviction, or the penalty for wrongful evictions of bona fide tenants.

This lacuna enabled the landlords and powerful elites, amidst a land and real estate boom, to arbitrarily evict the tenants. The pattern has been for the enforcement agencies; Police, the Bench and Bar to side with the evicting mailo landlord and powerful elite. This has undermined the rule of law, which Lord Dicey reminded us, rotates around the dictum that all, regardless of social background, should be equal before the law! Thousands of bibanja tenants have been evicted, creating a social political crisis.

In part, the proposed land reforms intend to stop a simmering peasant uprising. Recently in Sembabule, a mailo landlord was hacked to death while attempting to evict a tenant. In Kira, Wakiso, youths roughed up another. Land evictions are thus a real political hot potato. Although many landlords desire the current lucrative dispensation, it is no longer tenable, and it's in their enlightened self interest to seek a progressive change before the social political conditions of a Zimbabwe emerge.

A win-win solution is required. This to secure the tenancy rights of the mailo and customary tenants. There is need for a Land Fund informed by the precedents of Ankole and Kibaale; to buy off the landlords, while offering the bibanja tenants freehold titles.

The British introduced Buganda's land problems. President Museveni's initiative to obtain their contribution to the Land Fund is thus justified. A precedent was set in Kenya under Jomo Kenyatta when Britain donated an equivalent of today's 250,000,000 Pound Sterling to help pay for land redistribution in the former "White Highlands".