OPINION: HERE’S WHY NO ONE SHOULD STAND IN ORDINARY UGANDANS’ WAY TO BECOME REGISTERED LAND OWNERS

The bibanja holders coined as customary tenants in the 1969 Public Lands Act were empowered under section 25 of that Act, to apply for and be granted a leasehold estate “in the public land occupied by them”. This provision was not repealed by the 1975 Land Reform Decree.

The repealing by the Decree of Busulu and Envujo law, did not affect bibanja security of occupancy, since they were left with the option of obtaining a leasehold title. Moreover under the Decree there was no longer any interest in land greater than a leasehold. All freeholds, including mailo ownership had been converted into leaseholds.

The 1969 Public Lands Act had operationalized Article 108 of 1967 constitution, which constitution vested all Public Lands that the 1962 and 1966 constitutions had placed under the management of Kingdom or a District Land Boards, and had been so vested in the same estate or interest and to the same extent as previously vested in the District or Kingdom Boards, or every official estate held and managed by a corporation sole, by virtue of the provisions of the Official Estates Act.

The 1995 constitution reversed the 1975 Land Reform Decree legal dispensation through Article 237 (1) which declared land to belong to the citizens of Uganda vesting it in them in accordance with the land tenure systems provided for in the constitution.

These tenure systems were in Article 237 (3) named as customary; freehold; mailo; and leasehold. All of them convertible into freehold.

The Mailo and Freehold tenures are both ownership in perpetuity. Customary can under Article 4 (b) be converted to Freehold. Similarly Leasehold can be converted to Freehold under Article 237 (5).

Consequently bibanja holders who obtained leaseholds under section 25 of the Public Lands Act 1969 can convert their leaseholds into freeholds, completing their hundred year struggle since land was grabbed from them by the 1900 Buganda Agreement.

The untitled land owners are under Article 237 (8) extended a right of occupancy. This discriminates them against their fellow citizens who have land vested in them pursuant to Article 237 (1).

The constitution provided for temporary measure where Parliament will enact a law in article 237 (9) which would effect two achievements.

Firstly to regulate, the relationship between the untitled occupants on mailo, freehold or leasehold and the proprietors. This legislation which would have been akin to the Busulu and Envujo Law of 1928, has never been enacted.

The lacuna has been filled by the three Presidential Directives of 22nd February 2013, 29th July 2020 and 28th February 2022.

These Directives were issued under Presidential authority stipulated in Article 99 (1) (2) and (3) of the constitution and operationalized article 237 (8) giving security to bibanja holders.

This was in addition to the security extended to customary holders on Public Land under section 59 (1) (a) of the Land Act and 59 (1a) of the Land Act as amended.

Courts have confirmed the force of law of a Presidential Directive. In Namuganza Persis Princess versus Attorney General, (2022,) and in Christine Nanding & 6 others Versus Attorney General (2024) courts ruled respectively that “the oral or verbal Presidential Directives must be strictly applied” and that “disregarding the Presidential Directive is illegal and undermines the person of the President as the fountain of honour and his authority”.

The constitutional, Presidential and legislative legal position have stabilized the occupancy of untitled land holders. However the law provides for vesting of land to all Ugandans in tenancies. Otherwise some Ugandans have land vested in them while others are discriminated.

This is unconstitutional. All citizens must be provided with registrable tenancy in order for all to build a nation where every Ugandan has the opportunity to own registrable interest in perpetuity for a secure future, contributing to the development of the nation.

Secondly, Parliament is mandated to put in place a law under Article 237 (9) (b), to provide for the bibanja holders to acquire titles under freehold registrable Interest or Estate.

The law envisaged would be akin to section 78 Registration of Titles Act where a citizen in possession applies to the Registrar of Lands for an order vesting in him or her that land under their occupation for an estate in mailo or freehold. This section is better applied when read together with section 5 of the Limitation Act.

The application of this law will provide all current untitled land occupants with registrable freehold tenancy in the former Buyaga and Bugangaizi counties and other bibanja problem areas in the Country without the state being burdened with compensation claims.

With the problem of land titling for all Ugandans solved, a constitutional amendment will be required reducing all tenure systems in one freehold -secured in perpetuity. The author, Dr. Sam Mayanja, is the Minister of State for Lands and can be reached with feedback via: Smayanja@kaa.co.ug
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