Karoli Ssemogerere
6 August 2008
opinion
On December 18, 2007, the Minister of Lands, Daniel Omara Atubo, published the Land Bill. Its stated intent was "to provide for the security of occupancy of the lawful occupants".
According to the minister's brief memorandum to the Bill, there has been widespread evictions of lawful and bona-fide occupants of land in utter disregard of their "interest" in the land in "utter disregard of their interest in the land protected by the Constitution and the Land Act".
Mr Atubo ended his memo by stating the final objective of the Bill as an "enhancement of the protection of lawful and bona-fide occupants on customary land from widespread evictions from land without due regard to their constitutional and statutory rights."
The Bill then rigorously proceeds with its objectives. Section 31 of the principal act is amended to expand the minister's jurisdiction in customary land matters allowing him to approve and or determine rent payable should the principal parties fail to do so.
It also limits the grounds for eviction of a lawful or bona-fide occupant from registered land to non-payment of the annual nominal ground rent. Eviction orders are mandatory creating a statutory offense for offenders. Evicting lawful tenants without an eviction order attracts a sentence not exceeding seven years.
Customary tenants are given similar protections. They cannot be evicted without a court order. In addition, the court is required to visit the locus in quo to conduct a hearing prior to maing any orders.
Section 32B(3) as proposed excludes temporary occupants of land under customary tenure. Lastly, the Land Bill adds a mutual new right of first refusal to the registered owner and tenant.
Neither of the two can convey land without offering the other the right to buy him out. From its looks, nothing in the Bill should be non-negotiable. Why has the Bill become so toxic and nearly radioactive without a nuclear bomb embedded in it? Some reasons will remain a mystery until the death of their originators.
However, given the dust raised, we can now point to a few points of concern and why the government machinery failed so dismally this time to a point of losing political authority over its latest pet project.
On May 8, 2008, Prime Minister Apolo Nsibambi fired off a terse note to the now deposed Chairmen of the Public Infrastructure Committee Nathan Byanyima and the Legal Affairs Committee PeterNyombi Ref PA/15/01 after a Cabinet meeting held on May 7, opening as follows: "As you know, a number of political opportunists have lied to the population that the purpose of the Land Act (Amendment) Bill 2007 is to enable government to steal the land of Ugandans..."
Mr Nsibambi made further changes to the Bill, agreeing to a wider role for the minister in setting ground rent. He removed Customary Land from jurisdiction of the District Land Boards, but then introduced a new fire-bomb by defining customary tenure to include lands formerly held as public lands. Omnibus legislation is rarely encouraged in legislative practice. Most legislation is remedial and narrowly tailored to cure a stated defect.
Omnibus bills limit the ability of the legislature to exhaustively debate and make good law because issues tend to be mixed up. Sometimes government may come up with a consolidation or a revision bill to update and combine existing laws that have been in place for a long time or occasionally on matters of great public significance write a new bill to oversee a new area of public interest.
In Uganda, the enactment of the Land Bill, land has been catered for in separate legislative schemes: customary, mailo and freehold and public land. There is a legitimate concern over the rights of customary tenants, a tension that has been around since the days of the Uganda Protectorate, but nothing dramatically new has come in the way we define the customary tenant's interest.
That said, the rights of the customary tenant tend to be the most protracted, valid and legitimate of all the land ownership schemes we have in Uganda, more so outside Buganda. Land is held communally, with a system of part-conveyance, part-rental making land grabbing almost impossible on a large scale.
This is an area where any role for the central government or the Minister of Lands becomes tenuous and suspicious. Many communities in Uganda, for example, don't have the concept of "permanent" conveyance of customary land.
They have traditional courts to interpret the usage and management of communal lands and these include areas contrary to public opinion where the cash economy is flourishing like the Rwenzori region, Nebbi district and the districts of Bugisu.
What Nsibambi, Atubo and President Yoweri Museveni have failed to explain is why they have tried to use an "innocuous" reference to "customary tenants" ambiguously mixed with the word "occupant" to oversee forceful occupations of former public land.
This public land in many areas is still contested. In Buganda, the crown land, "akenda" has been rapidly allocated by District Land Boards. In Gulu barely months after the war, giveaways on the scale of 10,000 acres are being made; why now? This is not customary land, it is also not "former public land" !
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