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LAND TENURE IN UGANDA

Evolution of Land Tenure and Land Administration in Uganda

Land tenure is a mode or way of holding land alongside the terms and conditions of
occupancy. It is sometimes referred to as a definition of rights or ``bundle of rights´´ held
and enjoyed in the respective land resources.
These rights may include but not limited to the manner of use of the land, the duration of
use or occupancy, as well as relocation rights (transfer, lease, sublease, licensing,
bequeathing etc).

The Land Act, 1998, is probably the most important law affecting the land tenure in
Uganda. It combines with both written and unwritten laws, constituting the land tenure
governance in Uganda.

It is worthwhile noting that some of the land transactions, such as the delivery
procedures have derived their form, nature and legal basis from these various land
tenure systems.

Since Uganda is a country that has undergone different political dispensations since
colonial times, it is therefore important to consider the past and the incumbent land
tenure systems that have been used in Uganda.

Pre-Colonial Land Tenure Systems

It is difficult to identify a single land tenure pattern for Uganda as a whole for this period.
The situation may be partially indicated by reference to customary land tenure systems
in Buganda as contrasted with other parts of Uganda.

Walubiri. P (1994) points out that before the advent of colonization, land in Uganda was
customarily owned either by individuals or communally and everyone had inalienable
rights to the land.
In Buganda, one would say that land was by and large held by the Kabaka on behalf of
and in trust for the people.
The administration of land rested in the hands of chiefs, elders and clan heads.
Customary tenure under which individual ownership is not absolute was dominant. In
cases where there was surplus land, the rights were more defined for groups rather
than for an individual.

The family had control on an individual’s right to possess and use land. The disposal of
land however was in accordance with the customary rules obtaining in the respective
areas. The families had powers to veto the transfer of land by a family member to an
undesirable person and could nullify any transaction that had not obtained family
approval. The authority of the communities was vested in kings, chiefs, clan heads and
elders.

In the kingdom areas, special rights had evolved to semi-feudal status (Walubiri, 1994).
One such Kingdom was the Buganda Kingdom (in central Uganda). It is worthwhile
considering Buganda further, for it was in the heart of this Kingdom that the present
Kampala City came into being.

According to Walubiri, 1994, four types of landholding existed in the Buganda Kingdom:
1. Butaka (clan rights)
These rights accrued to the heads of clans and sub-clans who were known as ‘bataka’
The particular land involved was viewed as clan or ancestry land, the traditional seat o
the head of the clan or sub-clan who determined a right to reside on such land. Other
members of the clan had no right to reside there but had a right after their death to be
buried on such land.
2. , Obutongole (rights of the King or Kabaka as locally known and/or Chiefs),
The Kabaka held paramount title in all the land in Buganda. He granted land to his
chiefs (bakungu) who were few in number and to his lesser and more numerous chiefs
called batongole. These rights in land are collectively known as obutongole
 3. Obwesengese (individual hereditary rights)
These were individual rights over land stemming from long and undisputed
occupation and /or original grant by the Kabaka. They could be acquired by a
chief or an individual tenant.
4. the Bakopi (peasant rights of occupation-Ebibanja).
The peasants formed the majority of the population. The peasants were free to
choose a chief under whom to live.

Colonial Land Tenure Systems.

According to The Uganda Constitutional Commission Report of 1992, The Colonial state
in Uganda did not introduce radical changes in the system of customary tenure in
Uganda, for fear of modifying customs and arbitrarily imposing change that would cause
a total failure in administering the local indigenous population.

However, in order to appease the local chiefs and get local political allies in the effective
administration of the country, the colonialists introduced other land policies which could
accommodate customary tenure. Thus, besides the preservation of customary tenure,
mailo land tenure, freehold and leasehold tenures were introduced.

Mailo Tenure System

Mailo tenure was introduced as a kind of freehold tenure but was unique only to the
Buganda Kingdom (see map below for location of Buganda in Uganda). The Mailo
Tenure System was derived from The Buganda Agreement of 1900, which was signed
between the colonialists and the Buganda Kingdom.
Uganda in 1900

Out of the entire kingdom land that was approximately 19,700 square miles, about half
of it was allocated to the chiefs and notables as their property in perpetuity (see Table
1), while the rest of it was declared crown land (Kiwanuka, 1971). The land was allotted
in square miles and hence the name ‘mailo’, a Luganda (local language) corruption of
the English word mile.
Table 1: Distribution of land under the 1900 Agreement
No Recipient Size in square miles
1 King and his relatives 498
2 County Chiefs (20) 16 miles each 320
3 Regents (3) 32 miles each 96
4 Chiefs and private owners 8000
5 Missionary societies (3) 276
6 The state 50
7 Forest Reserve 1500
8 The Crown 9000

Source: Obol-Ochola, 1971, ´´Customary Land Law and economic

Development´´.LLM. Thesis, University of Dar-es-Salaam

Although initially only a few privileged people owned the mailo land, gradually through
side donations and inheritance, the land got subdivided and fragmented. Consequently,
by 1962 (the year of independence), there were several thousand mailo land owners,
who owned small parcels of land. The parcels were registered and certificates of title
were issued to them under the Registration of Titles Act (cap 205).

The Buganda Agreement did not clearly define the nature of mailo tenure. In practice, it
was regarded as an absolute grant in perpetuity, similar to the common law free hold in
fee simple. Subsequent legislations however prohibited the mailo owners from
transferring land to non-indigenous Ugandans and religious organizations without the
prior approval of the Lukiiko (Buganda Council) and the governor.
The mailo land was made subject to the traditional and customary rights of the kibanja
(plot) holders.

Kibanja holders were peasants who had settled on the land with consent of the land
owners. Their rights were further strengthened by the Busuulu and Envujjo law of 1928
that guaranteed their inheritable and permanent rights upon payment of a fixed annual
rent. Regrettably, some peasants were left out in the distribution of land though they
had legitimate interests. This appears to be the major cause of landlord-tenant conflicts
today.

Freehold Tenure
Derived from the British Freehold system, by 1962, three distinct types of freehold
operated in the country. These were: freeholds created under the Crown Land
Ordinance of 1903, the ´native´ freeholds of the then Ankole and Toro regions (South
West of the country) and the ´adjudicated´ freeholds.

Under the freeholds created under the Crown Land Ordinance of 1903, the governor
had extensive powers to dispose of the crown land in freehold. The legislation was
enacted almost at the inception of the Protectorate in a bid to pave way for European
settlement. Until 1915, it was an administrative policy to grant crown land to Europeans
in freehold. However, in 1915 the colonial office seated in London directed the governor
to stop granting crown land freeholds to non-natives, but instead grant leaseholds
subject to developments conditions. This ban subsequently became a permanent
feature of the colonial administration land policy in Uganda.
A number of scholars have argued that the land administration features adopted from
colonial masters have had an effect on the nature of development of some cities till
today.

Post-Colonial Tenure (1962-1995)

With the independence of 1962, the Public Lands Act converted all former crown land
into public land, subject to customary tenure, but did not specify the limit to which a
person could acquire land. All crown land that Public bodies had, (such as Makerere
University, Uganda Electricity Board, The Churches), was converted to Freehold.

Crown land in urban areas was vested in local boards, and where the urban authorities
exercised over such land, leases of 199 years were drawn. Such leases were to contain
no restrictions on the use of land or the rights to sublet.
In 1965, The Land Acquisition Act empowered the relevant Minister to acquire land for
any public need that he/she deemed necessary.

The Land Transfer Act of 1965 provided that with the exception of Buganda, non-
Africans were not allowed to occupy or posses any land without the consent of the
Minister.

Article 108 of the 1967 Constitution abolished all District Land Boards, and put a central
body in their place, The Uganda Land Commission (ULC). Consequently, after 2 years,
all Public Land was brought under ULC. It was then made lawful for any person holding
customary tenure to occupy without grant, lease or licence from the controlling authority
of any public land vested in the Commission. Sub-section 24 of the 1969 Public Lands
Act required the consent of the customary tenant before such land could be surrendered
for any other purpose. It served as an important protection for all who held land under
this tenure.

The Land Reform Decree, 1975

The Land Reform Decree, Decree 3 of 1975, instituted many changes into the Uganda
land tenure systems. It vested all land in the government for the benefit of all the
citizens. It essentially nationalized all land, extinguishing all forms of land holding that
had existed.

The Decree abolished mailo, freehold and any other rights of ownership. The absolute
titles were converted to leaseholds of 99 years for individuals under ULC and 199 years
for public bodies such as the church and other charitable organizations.
However, for all the years that the Decree was in place, it was never effectively
implemented. Mailo and freehold titles were not at all converted to leaseholds.
Customary tenants on state land continued to enjoy their rights as held before the
Decree.
Land tenure systems in Uganda today
Fundamentally, the 1995 constitution repealed the Land Reform Decree 1975 and
vested all land in Uganda in the citizens. Article 237 of the current Constitution of
Uganda vests all land in the citizens, and stipulates that the ownership of land shall be
based on four land tenure systems: Customary, Freehold, Mailo and Leasehold,

The Land Act 1998

The Land Act, 1998(LA 98), puts into effect the provisions of Article 237, and reiterates
that land in Uganda vests in the people of Uganda and shall be held in the afore
mentioned four land tenure systems. The apparent objective of the Land Act is for the
citizens of Uganda to own land as freehold.

Customary land tenure

It is a system of land ownership governed and regulated by customary principles and
usually sanctioned by customary authority. With the exception of land in Buganda and
urban areas, most land in Uganda is owned under customary tenure

Features of the customary system;

 Applicable to a specific area of land and a specific description or class of people
 It is governed by rules generally accepted as binding and authoritative by the
class of persons to which it applies
 Applicable to any persons acquiring land in that area in accordance with those
rules.
 It is characterized by local customary regulations
 Provides for communal ownership and use of land.
 It is ownership in perpetuity.
Freehold land tenure
Freehold tenure as stipulated in the Land Act entails perpetual and full ownership of
land. The Act offers provisions for the conversion of former public land and customary
holdings into freehold tenure.
Features of the Freehold land tenure;
 It involves the holding of the registered land in perpetuity or for a period less than
perpetuity which may be fixed by a condition
 It enables the holder to exercise, subject to the law, full powers of ownership of
land, including but not necessarily limited to
a) Using and developing the land for any lawful purpose
b) Taking and using any and all produce from the land.
c) Entering into any transaction in connection with land, including but not
limited to selling, leasing, mortgaging, or pledging, subdividing, creating
rights and interests for other people in the land and creating trusts of the
land.
Mailo tenure system
Section 4(4) of the LA 98 describes the ‘mailo tenure’ as a tenure that derives its basis
from the Constitution of Uganda and incidents of written law.

Main features;
 Involves holding of land in perpetuity
 Permits the separation of ownership of land from the ownership of developments
on the land made by a lawful or bonafide occupant.

From a legal perspective, mailo tenure is ideally a freehold tenure. The only observable
difference between the mailo system and the freehold is that the former is subject to
customary tenure and statutory rights of lawful or bonafide occupants of the land. It also
permits separation between ownership of land and the developments there in made by
the occupants. Freehold tenure does not permit this
Also, from the legal perspective, customary tenure, mailo and freehold are similar in that
land is held in perpetuity. The main difference however is that, in customary tenure, it is
the customary laws that regulate the tenure. The application of the customary rules
however is subject to the rules not being in contravention with natural justice, equity,
and good conscience, or being incompatible with either directly or indirectly with any
written law.

Leasehold tenure
Leasehold tenure entails one party granting another, a right to exclusive possession of
land for a specified period, usually, though not necessarily, in return for periodic
payment called rent. In section 41(3) of the LA 98, the maximum lease period for non-
Ugandans is 99 years. Under this system, owners of Mailo and freehold can grant
leases. The ULC and District Boards equally have the powers to lease land that is
vested unto them. The Act does not stipulate the conditions of the leases, but rather
leaves it as a matter between the respective parties.

Features of the Leasehold land tenure: It is a form of tenure;

 Created either by contract or operation of law.
 Where the terms and conditions of which may be regulated by law to the exclusion
of any contractual agreement reached between parties.
 Under which one person namely the land lord or lessor, grants or is deemed to have
granted another person, namely the tenant or lessee exclusive possession of land
usually but not necessarily for a period defined, directly or indirectly, by reference to
a specific date of commencement and a specific date of ending.
 Usually, but not necessarily, in return for a rent which may be for a capital sum
known as a premium but may be in return for services or may be free of any required
return.
 Under which both the land lord and the tenant, may, subject to the terms and
conditions of the lease and having due regard for the interests of the other party,
exercise such of the powers of a free hold owners as are appropriate and possible
given the specific nature of a lease hold tenure.
Distribution of land tenure systems in Kampala District
Source: KCC GIS unit.