CONTROL OVER LAND

Ownership of land by non-citizens

• The Land Act expressly prohibits non-
citizens from owning mailo or freehold
land.
• This ban dates back to the colonial era
when the British governor was prohibited
from alienating freehold land to non-
Africans.
 Cont’d
• The Buganda Lukiiko also followed suit by
prohibiting the baganda from selling outright
their mailo to non-natives.
• Article 237(2)c provides that non- citizens may
acquire a lease in land.
• S.40 of the Land Act provides that a non-
citizen may acquire a lease for a maximum
period of 99 years.
 Cont’d
• The Land Act under s.40(7) defines a non-
citizen to mean:
a) A person who is not a citizen of Uganda as
defined under the constitution and the
Uganda Citizenship Act.
b) In the case of a corporate body or company
with shares, the majority shares are held by
persons who are not citizens.
 Cont’d

d) Incase of a company without shares, a company in

whose decisions are arrived at by the majority who
are not citizens.
e) A company in which the shares are held in trust for
non-citizens
f) A company incorporated in Uganda whose Articles
of Association do not contain a provision restricting
transfer or issue of shares to non-citizens.
 Cont’d
• While the constitution vests ownership of land
in the citizens of Uganda, it gives the
government power to regulate land use under
laws made by parliament.
• S. 43 of the Land Act provides that a
landowner or occupier must use and manage
land in accordance with the Forest Act, the
National Environmental Act, the Water Act, the
Uganda Wildlife Act and any other law.
 Cont’d
• Under article 237(2), the government has
power to take over the management of
environmentally sensitive areas for the benefit
of the society as a whole.
• Such land include forests, water systems,
swamps, national parks, wetlands, rivers,
forest reserves, natural lakes and gazetted
areas.
 Cont’d
• S.44 of the Land Act is to the effect that the
government shall be a trustee of such land and
may allow a local government to be the trustee
of the land for the benefit of society as a whole.
• Section 44 (4) prohibits government from
leasing or alienating land it holds in trust.
• However it may grant concessions, licences and
permits in respect of a natural resource subject
to any law.
 INSTITUTIONS GOVERNING LAND
• The 1995 Constitution incorporates the policy
of decentralisation of governance.
• The aim of this policy is to involve the local
people in decision making process in matters
affecting them.
• This objective is reflected in the Land Act with
regard to Land management and dispute
settlement.
 Cont’d
• Uganda’s operating framework on land
governance includes both formal and informal
institutions.
• The existence of multiple institutions with
diverse categories of actors, rules and
processes significantly contribute to the land
governance challenge.
 Cont’d
• The Uganda Land Commission (ss.46 -55) L.A
• District Land Boards (ss.56 -63) L.A
• Commissioner Land Registration ( s.91) L.A
• Land Committees (ss.64 -68 and 77) L.A
• Mediation in Customary matters (ss.88 – 89)
• The Local Council Courts Act, 2006
 Uganda Land Commission (ULC)
• Article 238 and s. 46 of the L.A provide for
Uganda Land Commission.
• The functions of the Commission are set out in
S. 49.
• The powers are set out in S.53
 Challenges
• The L.A does not exhaustively deal with the
detail of how the ULC should be run on what
terms and within which boundaries.
• This detail affects the effectiveness of the ULC
in executing its functions.
• S. 49 vis a vis S.53(c)
 Cont’d
• The Commission is located in Kampala yet
government land is also in other areas.
• This makes it difficult to deal with issues on the
outskirts of the capital.
• Not all government land is known or
ascertained and registered in an inventory. This
leads to uncertainity and creates the risk of ULC
loosing land to grabbers and also laying a claim
to land that does not belong to the government
 Cont’d
Overlaps in its mandate with other institutions
• The ULC has the mandate to lease and take
charge of leases out of public land.
• At the same time the functions of the DLB
include occupying the position of a lessor in case
of leases granted by the former controlling
authority.
• Such institutional overlaps of mandate impair the
effectiveness of both the ULC and DLB.
 Cont’d
Fraud
• This has led to frequent loss of land in and
around Kampala city. The case of Nakasero
Primary School v Prestigious Apartments
Limited
• The process adopted to irregularly acquire public
land include:
 Create new plots out of existing plots to
disguise the theft
 Cont’d
 Identify key actors at the various stages of the
application process and connive with them to
guarantee co – operation.
 Speed up the process to escape further
scrutiny by any other person.
 Conceal information from the victim
 Immediately transfer the interest in the land
to someone else.
 Cont’d
 Use it as collateral to secure a loan from a bank.
This makes it difficult for the right claimant to get
it back unencumbered and could even discourage
them from pursuing efforts to regain the land.
 Use court system to defeat any efforts to regain
the land. This is mainly through filing court cases
and not serving the parties involved such that
they do not appear to assert their claim of right
to the land.
 Cont’d
• Such land losses have been subjected to
probes with limited hope that the results
thereof can be used against the all-powerful
and well-connected perpetrators of such land
grabs.
 District Land Boards
• Its provided for under article 240 of the
Constitution and S. 56 – 63 L.A
 Challenges
DLBs are not properly constituted in some
instances
• This has undermined the Rule of Law where
they have executed their core mandate devoid
of the above.
Overlaps between the mandate of DLB and ULC
• Both can deal with land which was formerly
under the controlling authority i.e public land
 Cont’d
Lack of supervision
• Article 241 (2) and S. 60(1) provides that DLBs
are independent of ULC and are not supposed to
be controlled or directed by ULC.
 Contention on compensation for crops and
other items on land
• The DLB has a role of setting compensation rates
for crops and temporary structures on land
acquired.
 Cont’d
• Several new districts are grappling with setting
up district structures of governance and do not
have DLBs.
• This means that such districts do not have
compensation rates for the non-land items and
crops.
• In some instances, DLBs have also compiled lists
of compensation rates without reviewing them
annually as provided under section 59(f) L.A
 Cont’d
• The application of outdated rates lead to unfair
compensation to persons losing crops and
temporary structures in situations of land
acquisition.
• The same is the case where district without
rates borrow them from neighbouring districts.
Such rates may not offer a value
commensurate to that of an item in the district
where compensation has to be paid
 Cont’d
 The Land Act attempts to connect the DLBs to
institutions of a traditional or cultural nature.
S. 59(2)
• This may lead to problems because the
management of customary land is normally on
the basis of traditional ethos.
• Members of the municipal and urban council
are not necessarily conversant with such ethos
which may lead to unfortunate outcomes.
 Cont’d
• The ideal situation would be to allow a certain
level of collaboration and room for direction
by the traditional authorities who are firmly
grounded in the traditional norms of land
governance.
• This is curtailed by S. 59(3) which is to the
effect that traditional authorities do not have
any power of control or direction over the DLB
 Land Committees
• Land Committees are provided for under s.64
Land ( Amendment ) Act 2004
• The functions of the Committee include
advising the Land board after doing
preliminary checks or carrying out verifications
of applications for the conversion of customary
land into freehold and applications for the
grant of freehold. S.9(3), 9(4), 10(2).
 Cont’d
• Incase of application for conversion of
customary land into freehold, the committees
forward the file to the DLB for a decision.
• The Committee also plays a key role as
mediators in land disputes pursuant to sec. 89
of the Land Act. S. 64(8) A
 Challenge
• These committees have not been set up in most
parts of the country because of limited finances.
• The funding gap is sometimes filled by persons
seeking the services of the committee which may
affect their neutrality and fairness.
• There is no clear chain of supervision established
between them and other bodies yet they deal
with pertinent issues of land registration
 Cont’d
• This leaves room for mistakes which may not
be detected by a body greater in hierarchy
than the DLB, yet DLB also simply sanctions
what the land committees present without
ascertaining the accuracy of information on
file from the committees.
 Recorders
• This office is established under S.68 L.A.
• In rural areas the recorders are the sub-county
chiefs, while in urban areas it is the town clerk
and in the division of a city, the assistant town
clerk.
 Functions of a recorder
• Updates records of interests in land and
record keeping. S.7(3) L.A
• Endorses as an encumbrance any third party
interests in land for which a certificate of
customary ownership is issued. S. 7(5) L.A
• Issues a CCO and ensures that any restrictions
that are agreed upon are set on the certificate
 Cont’d
• Issues a certificate of occupancy to the tenant
by occupancy after the landlord has granted
consent to such issuance and also to notify the
registrar to register the interest of the tenant
as an encumbrance on the title of the landlord
 Challenges
• Much as recorders are supposed to be record –
keepers, the records are normally kept at the district
under the auspices of the DLB and District Land
Office.
• In areas where there is neither customary land nor
public land, the recorders are redundant.
• Limited facilitation: They are not given the requisite
resources to keep the records safe. No wonder they
keep records at the district where such facilities and
their safety are better guaranteed.
 Land Tribunals
• Land Tribunals were meant to be the first
point of recourse in case of a dispute over
land.
• The tribunals were to be at the district, the
sub-county and in urban areas.
• They started operating in 2000 but were
suspended in 2004 by the Land Amendment
Act of 2004.
 Challenges
• Resource constraints
• The mandate overlap with magistrates’ courts
and the lack of a clear coordination plan of
hierarchy among tribunals and other courts.
• This led to forum- shopping resulting in
delayed justice.
 Cont’d
• By virtue of Practice Direction No.1 of 2006,
when the contracts of chairpersons and members
of the District Land Tribunals expired, their
mandate was taken over by Magistrate’s Courts
presided over by Magistrate Grade 1.
• This means that land matters are not benefitting
from the expeditious disposal which was the
reason for creating land tribunals.
 Informal Customary Institutions of Land
Governance
• Article 246 of the Constitution allowed the
existence of institutions of traditional or
cultural leaders as per the customs and
traditions of a given people.
• The key objective of this provision is to
promote cultural and traditional values that
may facilitate the promotion of democracy and
other fundamental rights and freedoms of the
people.
 Cont’d
• There are specific roles set out for
traditional/customary institutions under the
Land Act.
• The land Act provides for mediators in land
disputes.
• Under S.88, traditional authorities have the
mandate to resolve disputes arising in
customary tenure
 Cont’d
• Such mediation is regulated under customary
tenure according to the ethos of a given
community.
• A number of disputes are resolved by
mediation through clan structures of
communities in Northern Uganda.
Advantages of customary systems
• Customary systems were found to be more
efficient and faster in handling cases
compared to LC’s and Magistrates’ courts
• Customary systems are relatively cheaper.
• Geographically accessible to the people.
 Disadvantages of customary systems
• The systems are relegated to second-class
status in a customary space with limited
government support and facilitation.
• This hampers their progressive evolution and
standardisation.
• The rules applicable are highly informal,
inscribed in the minds of the elderly who pass
on with the knowledge. This in turn affects
consistency and continuity.
 Cont’d
• Lack of documents of title leading to high
propensity for land grabbing.
 The Local Councils
• They have limited jurisdiction when it comes to
customary land matters.
• That notwithstanding, they have acquired roles and
powers in land transactions and land administration
not granted by the establishing law, Local
Governments Act.
• They have become official witnesses to land
transactions where an LC stamp is regarded as
evidence of the authenticity of an agreement for the
sale of land.
 Cont’d
• They are easily traceable witnesses who can
be summoned to court to verify land
transactions.
 Challenge
• LCs frequently discriminate against women and
other vulnerable groups in their actions and
decisions regarding land matters.
• They are vulnerable to being influenced by
those with more power in the state’s extensive
patronage network.
• While they witness land transactions, they also
become involved in mass evictions perpetrated
by state agencies, elites and the powerful.
 The Implications of multiple Institutions of
Land Governance
• Duplicity or at times competition rather than
co-operation in the absence of clear
mechanisms of coordination impinging on fair
outcomes.
• Many times the state sidesteps formal policy
and legislation whenever it suits their
purposes and enforce on forceful means to
enforce their decisions.
 Cont’d

• Individuals and others with access to the

system can secure decisions in their favor
through political as opposed to legal and
administrative channels
• Selective enforcement of the law and a
continual shifting of goal posts.
 Protection of Family Property
• Section 38 A, S. 39 of the Land (Amendment )
ACT, 2004
COMPULSORY LAND ACQUISITION
The Doctrine of Eminent Domain
• This is the right and inherent power of a
government to take private property for public
use on compensating the owner with fair market
value of the property.
• All governments reserve to themselves this power.
 Cont’d
• It is based on the philosophy that in certain
circumstances individual rights may be
sacrificed for the general good.
• The power entrusted in the government to
compulsorily take away property is provided
for under the constitution.
 Cont’d
• Article 26 gives a right to every person to own
property either individually or in association
with others.
• Important to note is that this right is not
absolute. Article 26(2) connotes that this
property can be compulsorily taken away
subject to certain conditions which act as safe
guards under the law. The conditions are:
 Cont’d
 The taking of possession must be necessary for
public use, in the interest of defence, public
safety, public order, public morality or public
health.
 Prompt payment of fair and adequate
compensation prior to the taking of possession
or acquisition of the property.
 A right of access to a court of law by any person
who has interest or right over the property.
 Cont’d
• Under section 3 of the Land Acquisition Act
Cap 226, the minister is empowered to
acquire any land if he or she is satisfied that
the land is required for a public purpose.
• The Act makes provision for payment of
compensation to any person whose estate or
interest in the land is extinguished as a result.
( s. 6 and 7).
 Cont’d
• Under section 13 and 14 any aggrieved party
by the minister’s decision or by the
compensation paid may appeal to the High
court.
• Whether or not land is acquired for public use
would depend on the circumstances of each
individual case.
 Cont’d
• A statute may expressly state that land
acquired for a particular purpose is a public
purpose. e.g Water Act , Cap 152 (s.84) and
Electricity Act , Cap 145 ( s.74).
• The above sections declare that the
acquisition of such land shall be deemed to be
in the public interest whether the beneficiary
is a public entity or a private person.
 Cont’d
• The government may also acquire land by
compulsory process under the Land Act
• S.42 is to the effect that the government or
Local government may acquire land in
accordance with the provisions of articles 26
and 237(2) of the Constitution.
Procedure for Government Acquisition of
Land under the Land Acquisition Act
Who to compensate and for what
• Category of claims - Basis of assessment
(Entitlements)
• Owners – Land: Cash compensation based
upon Market Value of land + disturbance
allowance (15% or 30%) See Land Act sec.77(1)
& (2).
• However, where a Person chooses physical
replacement of land, an alternative land is
given.
 Cont’d
• Tenants –Land: Entitled to compensation
based on Market Value of land as apportioned
+ disturbance allowance (15% or 30%) See
Land Act sec.77(2) ).
• However, where a Person chooses physical
replacement of land, an alternative land is
given.
 Cont’d

• Licensee –Land : Have NO CLAIM to land, entitled

to compensation for improvements + disturbance
allowance (15% or 30%) See Land Act sec.77(2)
• Owners –“Non Permanent” Buildings:Cash
compensation based on Replacement Cost as
determined under District Compensation Rates+
disturbance allowance (15% or 30%) See Land Act
sec.77(2)
 Cont’d
• Owners –“Permanent” Buildings: Cash
compensation based on Market Value-Land
Act Sec.77 (1b) + disturbance allowance (15%
or 30%) See Land Act sec.77 (2).
• Current Replacement Cost
 Cont’d
• Crops and Trees: Cash compensation based
upon District Compensation Rates - L/A, sec 59
(1) (e)+ disturbance allowance (15% or 30%)
See Land Act sec.77 (2).(Rates for crops are
determined on a net or an expected one
season output).
 Cont’d
• Where time allows, claimant should be given an
opportunity to harvest crops that are due for
harvesting.
• Protected Areas (National Parks, Wildlife
Reserves And Forest Reserves): The protected
areas are owned by Government (on behalf of
the people) and acquisition ought to be handled
REASONABLY unless these are licensed to
private users under a SPECIAL LEASE/LICENCE.
 Cont’d
• CONSENT to enter and use land in protected
areas should be sought at first instance
• Land under diminution: As a result of the
restrictions, the land value is diminished (in
value) also known as “diminution”. The
diminution rate varies depending on the
circumstances.
 Market Value and Valuation

• Market Value: This is the estimated amount

for which a property should exchange at the
date of valuation between a willing buyer and
a willing seller in an arm’s length transaction
after proper marketing wherein the parties
had each acted knowledgeably, prudently and
without compulsion.
 Cont’d
• Market values are determined by the Valuer and
are based on evidence from transactions in
comparable properties, inter alia, among other
factors as hereunder:
 Location of the property in relation to urban
centers
 Economic activity in the area
 Physical and geographical factors, Population
density
 Cont’d
 Proximity to services such as water,
electricity and roads.
 Cultural attitudes to land transactions.
• Information on market values is generally
derived from field enquiries in the various
project areas, land/valuation offices and
estate agents among others.
Principles that may guide the process
of Land Acquisition
•Principle of Equivalence - Compensation
should be Fair , Adequate and Timely.
•Principle of Severance - If only part of the
property is taken and the value of the
remaining property depreciates because of
the government's proposed use of the taken
share, the owner is entitled to compensation
called severance damage.
 Cont’d

• Principle of Injurious Affection -

Loss or damage of non-physical nature to land
remaining with a dispossessed owner after a
partial compulsory acquisition. Excludes any
sentimental value. E.g. (i)Direct, Physical
interference or complete Obstruction(ii) Loss
of View or Loss of privacy
 Problematic Issues in Valuation and
Compensation

• Outdated legal framework; the Land

Acquisition Act, 1965 (Uganda National Roads
Authority vs. Asuman Irumba, SCCA no.2 of
2014)
• Incomprehensive laws (The Survey Act,1939,
The Surveyors Registration Act 1974 (CAP275)
that do not rhyme with the current laws.
 Cont’d
• Disrespect for cut-off-dates hence hiking cost of
compensation.
• Delays in Resettlement Action Plan (RAP)
implementations leads to updating of RAP hence
increase in the no. of PAPs & Compensation costs
• Institutional deficiencies (Chief Government Valuer
with less human resource & therefore privatization of
services.)
• Launch of projects before availing monies for
compensation
 Cont’d
• Uganda National Roads Authority v Irumba
Asumani and Peter Magelah Supreme Court
Constitutional Appeal No.2 of 2014
• The Government of Uganda commissioned a
project to upgrade the Hoima-Kaiso-Tonya
road, leading to Uganda’s oil fields in the
Albertine Graben.
 Cont’d
• Acting under the Land Acquisition Act, the
Government compulsorily acquired the
project land and the Uganda National Roads
Authority (“UNRA”) took possession before
payment of compensation to the owners.
 Cont’d
• The respondents challenged the constitutionality of
the Land Acquisition Act that permitted the
Government to compulsorily acquire land before
payment of compensation
• The Constitutional Court found the Land Acquisition
Act unconstitutional to the extent of its inconsistency
with Article 26(2) of the Constitution in so far as it did
not provide for the prompt payment of fair and
adequate compensation prior to the taking of
possession or acquisition of any property by the State.
Alternative to cash compensation
• Land for land
• Uganda Petroleum Co. Ltd Vs Kampala City
Council (CIVIL SUIT NO. 250 OF 2005)
 Cont’d
• On 30th April, 1998, the plaintiff entered into a
Memorandum of Understanding (MoU) with
the defendant whereby the plaintiff
surrendered 0.8 acres (0.321 hectares) of its
land comprised in Plot 60-80 Fifth
Street, and Plot 1 Kibira Road to the
defendant for purposes of the latter
constructing and enlarging of the Nakivubo
Channel and its reserve.
 Cont’d
• According to the MOU, the defendant was
supposed to compensate the plaintiff for the
0.8 acres by allocating it land of the equivalent
value elsewhere.
 Cont’d
• However, the defendant purported to
compensate the plaintiff with Plot No.
M10 comprised in LRV 2808 Folio 23 measuring
only approximately 0.30 acres (0.121 hectares)
which was valued at just USD 30,000; a figure
reflecting property of far less the value than the
one which plaintiff surrendered, and whose
title has also never been surrendered over to
the plaintiff by the defendant.
 Cont’d
• The plaintiff also claimed that the expansion of the
Nakivubo Channel affected and extended to a much
bigger area on the plaintiff’s land contrary to the
MOU. The plaintiff thus claims to have lost valuable
land, and also that some of its land was rendered
unusable as a result. The plaintiff further claims that
it suffered massive special damage to its structures
on the land as a result of the defendant’s actions.
• Court held that there was a breach of contract.
 The Constitution(Amendment Bill) 2017

• The purpose of the Bill is to resolve the

current problem of delayed implementation of
Government infrastructure and investment
projects due to disputes arising out of the
compulsory land acquisition process.
 Cont’d
• The problem of delayed Government projects
has caused significant financial loss to the
Government amounting to millions of dollars
in penalties paid to road contractors for
redundant machinery at construction or
project sites as the courts attempt to resolve
the disputes
 Cont’d
• Where the owner of property or any person having any
interest in or right over property objects to the
compensation awarded under a law made under clause
(2b), the Government or local government shall deposit
with court for the property owner or any person having
any interest in or right over the property, the
compensation awarded for the property, and the
Government or local government shall take possession
of the property pending determination by the court of
any dispute relating to the compensation.
 Cont’d
• The owner of property or person having any
interest in or right over the property shall have
a right to access the compensation deposited
with the court referred to in clause (3), at any
time during the determination of the dispute.
 Analysis of the Bill
• Violation of the right to property in the
purported interest of development.
• Taking land before compensation could be
detrimental to non-land owners who may only
be entitled to compensation for loss of assets,
user rights or resettlement.
• Proving claims after removal may be
cumbersome.
 Cont’d
• A generic, pre-conceived idea of urgency in
implementation of development projects may
affect transparency and fairness in
negotiations, especially for the poor or
vulnerable, who may need facilitation to
engage in such negotiations. Rushed processes
may undermine pathways to public
accountability in the event that things go
wrong.
 Cont’d
• In addition, current market values are the
standard for compensation. If land is taken
before compensation, revaluation at the time
of late payment is inevitable. Considering that
valuation is not cheap, its financial and other
costs may increase, thereby increasing the
burden on the taxpayer. 
 Cont’d
• Government has a bad compensation track
record leaving embattled people languishing
in courts of law.
• Court cases drag indefinitely.
• It threatens livelihood as land is used as a
means of survival.
• It tramples on the power of judiciary by the
executive.