The mailo system introduced by the 1900 Buganda Agreement was a disaster. Land was grabbed from the over ninety-nine percent of the population and awarded to less than one percent.
By stroke of a pen, bibanja holders became slaves in their own Country. They were dispossessed and forced to provide free labour to the newly created mailo landlords who could evict them for any reason without recourse to any law.
Bibanja holders lived in a permanent state of trauma.
Rural unrest and discontent was inevitable and undermined the production of cash crops.
Leadership was found in bataka (clan heads) who had themselves been dispossessed of their butaka land. A violent revolution appeared inevitable.
The colonialists moved to nap this eventuality in the bud by enacting the 1927 Busulu and Envujo Law. This law assured bibanja holders security in the occupation of their plots and freed them from the fear of arbitrary eviction.
This security of tenure was however brought to an end by the 1975 Land Reform Decree. Bibanja holders were rendered tenants at sufferance.
Their lot was back to the pre-1928 Busulu and Envujo Law.
The coming into power of the NRM sought to restore security of tenure to Bibanja holders through the 1995 Constitution and the Land Act Cap 227 as amended in 2004 and 2010. The Constitution under Article 237 (8) granted security of occupancy to bibanja holders.
His Excellency the President exercising his powers under Article 99 (1) (2) and (3) of the
Constitution has issued two directives operationalizing bibanja security of occupancy.
Article 237 (9) (b) of the constitution required that within two years after the first sitting of Parliament elected under the 1995 Constitution, that Parliament would enact a law......., "(b) Providing for the acquisition of registrable interest in the land by the occupant (bibanja holder)".
The occupants being the one as defined in Article 237 (8), i.e. the lawful of bone fide occupants of mailo land, freehold or leasehold.
The law which Parliament was obliged to enact would have provided for mechanisms, procedures, processes and whereby a Kibanja holder would acquire a registrable freehold interest tenure on the land he occupied.
Unfortunately, the Land Law that was enacted i.e. the Land Act of 1998 was mainly directed towards enhancing bibanja's security of occupancy.
The mailo landlord continues to hold the land in perpetuity and is still allowed to evict the kibanja holder under certain circumstances.
In view of the fact that the Land Act is not the one envisaged under Article 237 (9) (b) of the constitution and therefore did not provide for a registrable tenancy interest of a Kibanja occupant in perpetuity, the kibanja holder has to look elsewhere in the law to obtain security of tenure as opposed to security of occupancy.
Case law has provided that shelter in the doctrine of adverse possession. A person who get into possession of land without consent of the registered owner and the registered owner does not enforce his right of possession, for a period of twelve years, the law confers a title on the adverse possessor.
The owner's remedy and indefeasibility of title under Section 59 and 176(2) is thus extinguished and defeated under adverse possession.
A person who claims that he has acquired a title by adverse possession may apply under section 78 to 91 of the Registration of Titles Act, for an order vesting the land in him for an estate in fee simple i.e. mailo or freehold.
The limitation Act section 5 read together with section 16 means that an owner cannot bring an action to recover land after 12 years and therefore a person who has been possession of land for 12 years undisturbed by the landlord that person in possession becomes the owner, and is entitled to a title by possession.
Decided cases of courts of judicature with binding force of law have confirmed this position.
Bonafide occupants, i.e. bibanja holders are adverse possessors who can apply to obtain title to the land they occupy under section 78 to 91 of the Registration of Titles Act.
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The provisions of Section 29 of the Land Act, defines a bonafide occupant as one who entered the land without the consent of the owner and was occupying that land for 12 years before the coming into force of the Constitution.
This section when read together with Sections 5, 11, 16 and 29 of the Limitation Act, shows that whoever qualifies as a bonafide occupant, also qualifies as adverse possessor.
The tenure entitlement of the land owner of that area under possession of kibanja holder is extinguished by the uninterrupted use of that land by the kibanja holder for 12 years.
While the nation awaits Parliaments enactment, the bibanja holders who have been in possession for more than 12 years uninterrupted by the registered proprietor can apply to the Registrar to have the land over the area they occupy vested in them as adverse possessor and own that land in perpetuity through freehold registrable interest.
Dr. Sam Mayanja Minister of state for Lands smayanja@kaa.co.ug
