Landgrabbingandcustomarylandrightsin Uganda

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Land Grabbing and Customary Land Rights in Uganda: A Critical Reﬂection of

the Constitutional and Legislative Right to Land
Article in International Journal on Minority and Group Rights · June 2019

DOI: 10.1163/15718115-02701003
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international journal on minority and group
rights 27 (2020) 121-147
brill.com/ijgr
Land Grabbing and Customary Land Rights in

Uganda: A Critical Reflection of the Constitutional
and Legislative Right to Land
Jean-Claude N. Ashukem1
North-West University Potchefstroom, Potchefstroom, South Africa
[email protected]
Abstract
Despite the constitutional and legislative guarantee to land in Uganda, customary land
tenure seems to suffer from inadequate legal protection, a situation that is analogous
to that in the colonial and the immediate post-independence era. This article critically
examines the normative content of the constitutional and legislative right to land in
Uganda and argues that the customary land right is not adequately protected as the
other categories of land tenure, in which land is owned and legally recognised in Ugan-
da. It also serves to illustrate that the inadequate protection of customary land rights is
analogous to the situation in the colonial and immediate post-independence era, and
that weak customary land rights could be susceptible to the occupants’ deprivation
during land grabbing. There is a need to address this situation in order to holistically
ensure and promote an effective land governance regime that respects and protect
customary land tenure.
Keywords
land grabbing in Uganda – customary land rights – land tenure – local communities
1 Introduction
Land tenure has been defined as a system in which land is owned − the right
to possess land, either by an individual or the collective in a given society or
1 The research in this article was conducted during the author’s post-doctoral research fellow-
ship at North-West University, Potchefstroom Campus.
© koninklijke brill nv, leiden, 2019 | doi:10.1163/15718115-02701003

122 Ashukem
community.2 Thus, land tenure security plays an increasingly important role

in safeguarding people’s right in land and the right to own and use it. Yet, land
tenure security remains a serious challenge in sub-Saharan Africa, where the
majority of rural communities, such as in Uganda, still have undocumented
land rights under customary land tenure.
Interestingly, land tenure reform has been at the top of the agenda of most
sub-Saharan African countries, including Uganda, to the extent that attempts
are being made by states to ensure a holistic land governance framework that
provides for the protection of people’s right in land, including customary land
tenure.3 The protection of the land right and particularly customary land right
is crucially relevant in this era of land grabbing, an activity that is defined be-
low, and that has the potential to alienate local communities from their tra-
ditionally owned, occupied and used land under customary practices, as in
Uganda.
The Constitution of the Republic of Uganda, 1995 (the Constitution)4 and
the Uganda Land Act of 1998 (ula)5 provide for a dual land tenure governance
regime that lays the basis for an informed and protected right to land in the
country. In terms of the Constitution and the ula, land belongs to the people
of Uganda, and attendant rights are vested in the people in accordance with
the various recognisable land tenure systems.6 The foregoing suggests that it
is the duty and responsibility of the government of Uganda to respect and
protect people’s right to land in either of these tenure systems.Yet the practi-
cal protection of customary land rights seems to be illusory,7 and the situa-
tion is akin to that which existed in the precolonial, colonial and immediate
post-independence eras, as discussed below. This is predicated on the fact that
under the Constitution and the ula, the protection of customary land is rele-
gated to the provision of a certificate of customary ownership,8 which could be
2 F.A. Akena, ‘Customary Land Tenure and Ecological Sustainability in Acholi land, Northern
Uganda’, in J. McIntyre-Mills, J. Norma, R.A. Romm and Y. Corcoran-Nantes (eds.), Balancing
Individualism and Collectivism: Social and Environmental Justice (Springer, New York, 2017)
p. 221.
3 See for example, J. Mugambwa, ‘A Comparative Analysis of Land Tenure Law Reform in Uganda
and Papua New Guinea’, 11:1 Journal of South Pacific Law (2007) pp. 41; 52.
4 Constitution of the Republic of Uganda, 1995 (the Constitution).
5 Act 16 of 1998.
6 Art. 237 of the Constitution and s. 3 of the ula. These include: customary, freehold, mailo and
leasehold land tenure systems.
7 H. Busingye, ‘Customary Land Tenure Reform in Uganda; Lessons for South Africa’, Interna-
tional Symposium on Communal Tenure Reform, Land Reform in Africa: Lessons for South
Africa (2002) p. 8; Mugambwa, supra note 3, p. 52.
8 See Art. 237(4)(a) of the Constitution; and s. 5(1) of the ula.
international journal on minority and group rights 27 (2020) 121-147

Land Grabbing and Customary Land Rights in Uganda 123
convertedto freehold in the land tenure system,9 in which case the land could
cease to be the subject of customary land tenure. There is no obligation to re-
convert freehold land right into customary land right. This raises the question,
why should the protection of the customary ownership of land be premised
on the possession of a certificate of ownership, when under Article 237(3)(a)
and section 3 of the ula, customary land tenure is inter alia one of the four
ways in which land is legally owned, recognised and protected,10 and why must
customary land rights be converted into freehold land tenure without a cor-
responding similar obligation on freehold land tenure to be re-converted back
into customary land rights?In the light of the above, three issues are worthy of
consideration here and need to be addressed. First, the Constitution and the
ula provide for overlapping and possibly conflicting and opposing provisions
to the right to land; secondly, this overlap indicates and highlights profound
socio-legal implications relating to the constitutional and legislative right to
land; and a third factor related to the second is that both the Constitution and
the ula have placed local communities in a vulnerable and precarious situa-
tion where they could find themselves being dispossessed of their customary
land rights during land grabbing activities for lack of a certificate of customary
ownership.
This article critically reflects on the normative content of the constitutional
and legislative right to land in Uganda. It argues that both Article 237(4) of the
Constitution and section 5(1) of the ula provide inadequate protection of cus-
tomary land tenure. The thesis of the article is that this inadequate protection
of customary land right could be a possible vehicle for use in the dispossession
of customary land within the context of land grabbing. The critical analysis
also serves to illustrate that the inadequate protection of customary land right
is analogous to that in the colonial and immediate post-independence era. The
analysis commences in part 2 with a synoptic discussion of the land regime
generally and specifically customary land right in Uganda during the preco-
lonial, the colonial era, and the immediate post-independence era in order to
understand the rationale behind the argument for the inadequate protection
of customary land rights and particularly so within the context of land grab-
bing. The contextual background also serves to support the contention raised
in the article that not much has changed with respect to the protection of cus-
tomary land right in Uganda, because the envisioned protection of land rights
9 Art. 237(4)(b) of the Constitution; and s. 10(1) of the ula.

10 See J.C.N. Ashukem, ‘A Human Rights-Based Approach to Foreign Agricultural Investment
in Uganda’, 27:2 African Journal of International and Comparative Law (2019) pp. 268–291.
The other three ways include: freehold, mailo, and leasehold.

124 Ashukem
embedded in the current legal framework discussed below is analogous to that

of the colonial and immediate post-independence era. Part 3 discusses the
land governance regime in the current constitutional and legislative dispensa-
tion and focuses on the normative content of the constitutional and legislative
right to land. Part 4 critically appraises their legal content in order to illustrate
the inadequacy of the protection of the customary land right and how this
could play out in the context of land grabbing. The article concludes in part 5
with some recommendations for a way forward.
2 Land Rights in Uganda: Conceptual Background
Prior to undertaking an in-depth analysis of the protection of land rights in

Uganda, it is expedient to have a background understanding of the nature of
legal protection to land tenure generally and specifically customary land ten-
ure during the pre-colonial and colonial eras and in the post-independence
era. As mentioned earlier, the aim of supplying this contextual background is
to evince the similarity of the inadequate protection of customary land rights
as it was during the precolonial, colonial and post-independence eras and in
the current legal framework embedded in the Constitution and the ula.
2.1 Pre-Colonial and Colonial Era

The system of land holding during the pre-colonial and colonial period in
Uganda was fundamentally premised on an array of diverse customary norms
and practices that evidently prescribed the forms of access to and the use of
land.11 These vast and diverse norms and practices of customary land ten-
ure made it difficult to decry a unique customary land tenure system for the
whole of Uganda.12 Prior to 1900, customary land tenure was the only form
of land tenure that was applicable throughout Uganda.13 During this period
and until after 1995, customary land tenure had no legal provision and was not
11 R. Nakayi, ‘The Legal and Policy Framework and Emerging Trends of Large Scale Land
Acquisition in Uganda: Implication for Women’s Land Rights’, cbr Working Paper No. 109
(2015) p. 4; M. Rugadya, ‘Land Reform: The Ugandan Experience’, Land Use and Villagisa-
tion Workshop (Kigali, 20–21 September 1999) p. 3.
12 Rugadya, supra note 11.
13 L.M.W. Oryema ‘Changing Face of Land Tenure in Uganda’, 3, <https://www.research-
gate.net/publication/307631527_Changing_Face_of_Land_Tenure_in_Uganda_Period_
Before_1900_to_date/download>, visited 1 February 2019.

recognisedin Uganda as customary land holders were regarded as tenants at

sufferance and could be evicted from their land at any time by the state.14
In 1900 there was three categories of land tenure that existed in Uganda –
communal land, clan land and nomadic land tenures, and in all these cate-
gories, customary rules governed the ownership and right of access to land,15
though were not formally recognised. While there are four categories of rights
over land in Buganda Kingdom,16 there was a significant difference in the prac-
tice of customary land rights in the rest of the country.17 This difference lies in
the fact that there was no individual ownership of land. A person had only the
right to possess and use land. Instead, there was the unwavering right of people
to access land either directly or through an established authority or entity or
association, as was the case in the Kingdom of Buganda, where land was held
solely on the basis of agency for members of the community.18 The difference
could also be explained by the fact the Buganda Kings lobbied for a complete
independence of the Kingdom and it was granted special autonomous status
from the rest of Uganda, including in land matters.19
The Uganda Agreement of 1900 between the British Government and the
Kingdom of Buganda marked a significant difference between the land tenure
system in Buganda and the rest of Uganda.20 The Agreement created the mailo
land tenure system in Buganda that granted ownership rights over large blocks
of land that were measured in square miles known as mailo to the King (Ka-
baka) of Buganda and his notables.21 All land not covered by the agreement,
14 Busingye, supra note 7, p. 3.

15 Oryema, supra note 13.
16 These included: rights of clan, rights of Kabaka, individual hereditary rights and peasant
rights.
17 Rugadya, supra note 11.
18 Nakayi, supra note 11; S.B. Mabikke ‘Historical Continuum of Land Rights in Uganda: A Re-
view of Land Tenure Systems and Approaches for Improving Tenure Security’, 4:2 Journal
of Land and Rural Studies (2016) p. 157.
19 S.A. Pitsch ‘Agenda Setting in Uganda: Influencing Attitude on Land Through Policy and
Persuasion’, 10:2 Journal of Global Initiatives: Policy, Pedagogy, Perspective (2016) p. 34.
20 For details on the Buganda land tenure system, see L.P. Mair, ‘Buganda Land Tenure’, 6:2
Africa: Journal of the International African Institute (1993) pp. 187–205.
21 D. Hunt, ‘Unintended Consequences of Land Rights Reform: The Case of the 1998 Uganda
Land Act’, 22:2 Development Policy Review (2004) pp. 175–176; K. Deininger and D.A. Ali,
‘Do Overlapping Land Rights Reduce Agricultural Investment? Evidence from Uganda’,
90:4 American Journal of Agricultural Economics (2008) p. 870; K. Deininger, D. Ayalew
and T. Yamano, ‘Legal Knowledge and Economic Development: The Case of Land Rights
in Uganda’, in World Bank Policy Research Working Paper 3868 (2008) p. 595, <www.econ.
worldbank.org.>, visited 18 May 2018.

126 Ashukem
including communal land, was designated Crown land and vested in the pro-
tectorate government with the possibility of the latter alienating it under free-
hold or leasehold grant.22
It must be pointed out that this system of land tenure existed only in the
central and western parts of Uganda-Buganda, Ankole, Bunyoro and Tooro
sub-regions,23 as opposed to customary land tenure that was common in the
northern part of the country. Also, owners of land under mailo land tenure
had the right to sell or pass on their right to their heirs,24 unlike those who
held land under customary land tenure, which was considered Crown land.
Consequently, the mailo land tenure system specifically delineates who owns
land, for what duration, and under which conditions. It is apposite that the
Agreement did not in any way address the issue of customary land tenure, as
customary land holders were treated as occupants or occupiers and had to
share their land rights with the landlord – the King. Thus, customary rights
holders were deprived of their ownership rights to land. However, indigenous
Ugandans were allowed in accordance with their customary land tenure laws
to occupy land outside the Buganda Kingdom that was not granted in lease-
hold or freehold land tenures.25
In sum, the British colonial administration did nothing to revamp the sta-
tus and nature of customary land tenure in Uganda in a way that could be
beneficial to local Ugandans. Instead they were bent on alienating locals from
their customary land rights. For example, the Crown Lands Ordinance of 1903
converted all customary land into Crown land26 and by extension land was
vested in the British sovereign, making the de facto occupiers and owners of
land mere tenants.27 The Crown had absolute authority over land and could
deal it any way necessary or creates interests on it without consulting the oc-
cupier28- the customary right-holder. It is apposite that, while customary land
outside the Buganda Kingdom was considered Crown land, local Ugandans
were equally not privileged and legally empowered to own land inside the
Buganda Kingdom. Their right was to use the land. In sum, mailo land tenure
22 Hunt, supra note 21; Deininger and Ali, supra note 21; also see s. 24(4) of the Crown Land
Ordinance of 1903.
23 Also see Rugadya, supra note 11; J. Ssemutooke, ‘Explaining the different types of land ten-
ure’, Monitor, 11 February 2015, http://www.monitor.co.ug/Magazines/HomesandProperty/
land-tenurehome689858-2619680-iv4ifmz/index.html, visited 28 January 2019.
24 Ssemutooke, ibid.
25 Mugambwa, supra note 3, p. 40.
26 Akena, supra note 2, p. 222.
27 Nakayi, supra note 11.
28 Ibid.

was the preferred and specific form of customary land tenure practised in the
Buganda Kingdom. As indicated above, it differed considerably from the cus-
tomary land tenure outside the Kingdom where locals were deprived of their
rights to own and use land.
During the colonial era, the British government perceived the custom-
ary land tenure system to be a major constraint on economic development
in Uganda.29 In 1953 the Royal Commission Investigation Report30 instituted
measures of land tenure reform by replacing customary land tenure with the
individual ownership of land,31 on the premise that the demarcation and reg-
istration of individual titles would give customary landowners a more secure
title and would also serve to eliminate disputes over ownership and land
boundaries. Relatedly, the 1955 East African Royal Commission Report (earcr)
marked a significant turning point in the land tenure regimes and the sys-
tem of customary land tenure in British East African countries, including
Uganda,32 through championing land privatisation. According to the Report,
customary land tenure was of a communal nature and was based essentially
on the needs of a simple subsistence economy and the social relationships
that were associated with land use in such an economy.33 The foregoing ap-
pears to indicate that during the colonial era the recognition and protection
of customary land tenure was the exception rather than the rule. The relics
of the colonial administration of land tenure were unfortunately transferred
to the post-independence era of 1962–1975, and customary land tenure was
relegated to the least important tier of land tenure after mailo, freehold and
leasehold. To be sure, it has been suggested that the land tenure regime under
the post-independence era was administered on a template left by the colonial
administration.34
2.2 Post-independence Era, 1962–1975

The Public Lands Act of 1969 could be said to have provided some recognition
of customary land tenure, as opposed to the system in the colonial era. The Act
acknowledged the right of customary occupants to acquire any non-alienated
public land in rural areas,35 and the right to apply for a leasehold interest in

30 Also see the East African Royal Commission, 1953–1955: Report, Cmd. 9475 (earc Report).
31 Mugambwa, supra note 3.
32 Ibid.
33 Ibid.
34 Nakayi, supra note 11, p. 5.
35 S. 24(1) of the Public Land Act of 1969.

128 Ashukem
land that they occupied.36 Despite these recognisable rights, there was a grow-
ing trend to convert customary land into leaseholds. The Act vested land held
under customary land tenure (with the exclusion of mailo or freehold land ten-
ure) as public land in the Land Commission. It provided that:
Land occupied under customary tenure was public land and could still
be alienated in freehold or leasehold but only with the consent of those
occupying the land under customary tenure and such persons would be
entitled to compensation.37
The foregoing evidently illustrates the recognition and protection afforded by

the Act to customary rights occupants to the extent that any conversion of land
previously held under customary land tenure into mailo or freehold had to be
done with the consent of the customary occupant, and compensation had to
be granted.38
Although section 3 of the 1975 Land Reform Decree, which was enacted
by former President Idi Amin, seemed to have provided some protection to
customary land tenure,39 the Decree nationalised all land in Uganda, and this
added further complexity to the already existing complex land tenure regime
in the country. The 1975 Decree fundamentally changed the existing land ten-
ure regime including the freehold and leasehold systems and introduced what
some have considered the most radical stance on land reform in Uganda, de-
scribed as the “alluvial or radical title to land in Uganda”.40
In addition to considering the state as the public trustee of all land in Ugan-
da with the concomitant responsibility to ensure and facilitate its use for so-
cio-economic development, the Decree also declared all land to be public land
and to be administered by the Uganda Land Commission.41 It emerges from
the foregoing that the concept of Crown land was renamed public land after
independence, which indicates that the status and legal nature of customary
36 Ibid., s. 25.
37 Ibid., s. 24(2) and (3); Hunt, supra note 21, p. 176 citing P. McAuslan, ‘As Good As It Gets:
Politics and Markets in the Making of Uganda’s Land Act, 1998’ (unpublished, 1999) at 5.
38 See s. 24(2) and (3) of the Public Land Act of 1969.
39 S. 3(1) provided that: “The system of occupying public land under customary tenure may
continue and no holder of a customary tenure shall be terminated in his holding except
under terms and conditions imposed by the Commission, including the payment of com-
pensation, and approved by the Minister having regard to the zoning scheme, if any, af-
fecting the land so occupied, and accordingly, the Public Lands Act, 1969, shall (…)”.
40 Rugadya, supra note 11, p. 4.
41 Rugadya, ibid.; Akena supra note 2, p. 225.

land tenure remained unchanged. It is reported that the Decree empowered

the state with the right to lease any land occupied by customary tenants to
any person without the tenants’ consent.42 Little wonder the Decree has been
heavily criticised for failing to provide and ensure an adequate land policy
framework for Uganda.43 The Decree abolished individual freehold interest in
land and prior existing mailo ownership were converted into leasehold for a
period of 199 years and 999 years for public bodies and individuals respective-
ly.44 The Decree also changed the legal status of customary land ownership
and the rights of the occupiers/tenants of lands. The Busuulu and Envujju Law
of 1927, as well as the Ankole Landlord and Tenant Law and the Toro Landlord
and Tenant law of 1937 were abolished, and customary tenants occupying pub-
lic land under these laws were turned into tenants at sufferance.45 According
to the Decree: “a customary occupation of public land shall, notwithstanding
anything contained in any other written law, be only at sufferance and a lease
of any such land may be granted by the Commission to any person including
the holder of the tenure in accordance with this Decree”.46
There was no transferable interest in land for these tenants, only develop-
ment on the land could be transferred upon a three-month notification to the
controlling authority. Relatedly, it was equally prohibited for anyone to occupy
public land by customary tenure except duly authorised by the relevant au-
thority.47 However, in spite of the desire of the Decree not to protect customary
land tenure, it has been submitted that the 1975 Decree was never implement-
ed. As a result effective land tenure security and specifically customary land
tenure was left to develop on its own,48 if one considers the political instability
at that time.49 Supposedly, there was a need for the government to reconfigure
its land tenure regime in a way that could better protect and respect people’s
rights to land. With the advent of political stabilisation in the 1980s, the issue
of land rights was a major preoccupation of the government.50 In 1989 a joint
study by the University of Wisconsin Land Tenure Centre and the Makerere
Institute of Social Research funded by the World Bank strongly advocated the
42 Akena, supra note 2, p. 226.

43 For details on these criticisms see Mugambwa, supra note 3, pp. 44–45.
44 Rugadya, supra note 11, p. 4
45 Ibid.
46 S. 3(2) of the 1975 Land Reform Decree.
47 See s. 5 of the 1975 Land Reform Decree.
48 Deininger et al., supra note 21, p. 595; Mugambwa, supra note 3, p. 52; Akena, supra note 2,
p. 226.
49 Mugambwa, supra note 3, p. 52; Akena, ibid.
50 Mugambwa, ibid.

130 Ashukem
promotion of freehold tenure security for the whole of Uganda, as it would

help facilitate the commercialisation of land in the land market, and the use
of land titles as collateral for credits.51 Hunt52 outlined five considerations on
which advocacy for land tenure security was premised:
− concern on the part of spokesperson for Uganda’s larger commercial farm
sector and some sources of foreign aid to establish freehold tenure through-
out the country;
− concern to create greater security of land rights for all who were using land
under customary tenure;
− concern to provide stronger protection for the rights of underprivileged
groups, notably women and minors;
− the President’s concern to provide security of tenure to tenants on mailo
land; and
− concern on the part of mailo landowners to obtain compensation for any
curtailment of their rights.
Much hope and optimism for a comprehensive land tenure system that takes
into account the rights of customary land holders was centred on the 1995 Con-
stitution as amended,53 which is discussed below.
3 The Present Era
3.1 The Constitution of the Republic of 1995

It must be borne in mind that the four systems of land tenure systems in
Uganda have their roots in pre-colonial and the colonial eras.54 Thus, the Con-
stitution of Uganda, 1995 only re-established what existed before indepen-
dence and was re-affirmed by the ula. The 1995 constitutional dispensation
of Uganda ushered in a significant shift in the land tenure regime with the
intention of addressing the historical imbalances, injustices and inequality in
the ownership, use and control of land in the country. In fact, the 1995 Consti-
tution brought about a new kind of land tenure system underpinned by a new
way of thinking about tenure security generally and rights of customary land
51 Hunt, supra note 21, p. 176; S. Coldham, ‘Land Reform and Customary Land Rights: The
Case of Uganda’, 44:1 Journal of African Law (2000) pp. 67–68.
52 Hunt, supra note 21, p. 176.
53 It should be noted that the Constitution of the Republic of Uganda has been amended
five times.
54 Pitsch, supra note 19, p. 34; Busingye supra note 7, p. 3.

olders specifically, that replaced the old form of land tenure security in the
h
pre-colonial and colonial era discussed above. The Constitution could be said
to have fundamentally changed the landscape of land tenure reform in Uganda
through the introduction of changes in land ownership, tenure management
and land use and control. Article 237 of the Constitution stipulates that: “Land
belongs to the people of Uganda and shall vest in them in accordance with the
land tenure systems provided for in this Constitution”.55
Evidently, the Constitution vests the ownership and control of land in the
Ugandan people and simultaneously vests in them attendant rights in ac-
cordance with four formally recognised systems of land tenure – customary,
freehold, mailo, and leasehold.56 Accordingly, Article 237 of the Constitution
appears to be firmly rooted in the utilitarian and social philosophy that reflects
a form of enlightened self-interest, to conserve land and its resources for human
use, for which legal respect and protection of land and specifically custom-
ary land tenure is and should be paramount. The Constitution successfully
transforms the concept of the ownership of rights in land from one of state
control and ownership that was prevalent during the colonial and immediate
post-independence eras discussed above to one of individual and communal
ownership that must be respected and protected. In this light, the Constitution
seemed to have put to rest any lingering doubts in terms of the protection of
rights in land in Uganda. Perhaps the premise of this change is the fact that
Uganda is a signatory to an array of international, regional and sub-regional
instruments that profess a strong obligation on the state to respect, protect
and fulfil the right to property.57 In terms of the Constitution, the state retains
the exclusive right to acquire land in the public interest,58 and the requisite
55 See Art. 237(1) of the Constitution.

56 Art. 237(3)(a)–(d) of the Constitution.
57 Uganda has signed and ratified the United Nations Convention on Civil and Political
Rights of 1966, the United Nations Convention on Economic, Social and Cultural Rights,
the African Charter on Human and People’s Rights of 1981, the Protocol to the African
Charter on Human and People’s Rights on the Rights of Women of 2003 and the East Afri-
can Development Community Bill of Rights of 2009. As a member of the United Nations,
Uganda also adheres to the obligations contained in the Universal Declaration of Human
Rights of 1948.
58 Art. 237(2)(a). “This constitutional protection avails any claim against article 26(2) of the
Constitution against the deprivation of property except where certain conditions are ful-
filled such as: (a) the taking of possession or acquisition is necessary for public use or in
the interest of defence, public safety, public order, public morality or public health; and
(b) the compulsory taking of possession or acquisition of property is made under a law

132 Ashukem
conditions for such acquisition are defined by Parliament.Under the Constitu-

tion, holders of customary land tenure are encouraged and required to acquire
a certificate of customary ownership as prima facie proof or conclusive evi-
dence of permanent land ownership.59 It is apposite to say that the rationale
behind the acquisition of a certificate of customary ownership is to ensure a
flexible and easy approach to land use, since the certificate holders could ap-
ply for a loan on or mortgage the land. The Constitution further requires cus-
tomary land tenure to be converted to freehold land if duly registered,60 while
also guaranteeing the enjoyment of security of occupancy for lawful or bona
fide occupants61 of mailo land, freehold or leasehold land.62 The Constitution
places a duty on parliament to enact legislation that would regulate the rela-
tionship between the lawful or bona fide occupants of land and provide for the
acquisition of registered interests in land by the occupant.63 The next section
discusses this law and its relevant provisions.
3.2 The Land Act of 1998

In line with Article 237(9)(b) of the Constitution requiring parliament to en-
act national land legislation, the ula of 1998 was enacted to provide for the
tenure, ownership and management of land, to amend and consolidate the
law relating to the tenure, ownership and management of land, and to im-
prove the delivery of land services to the population by decentralising land
which makes provision for—(i) prompt payment of fair and adequate compensation,
prior to the taking of possession or acquisition of the property; and (ii) a right of access to
a court of law by any person who has an interest or right over the property”.
59 Art. 237(4)(a) of the Constitution.
60 Art. 237(4)(b) of the Constitution.
61 S. 30 of the ula defines lawful or bona fide occupants as follows: “(1) lawful occupant
means (a) a person occupying land by virtue of the repealed: (i) Busuulu and Envujjo Law
of 1928; (ii) Toro Landlord and Tenant Law of 1937; (iii) Ankole Landlord and Tenant Law
of 1937; or (b) a person who entered the land with the consent of the registered owner
and includes a purchaser; (c) a person who had occupied land as a customary tenant but
whose tenancy was not disclosed or compensated for by the registered owner at the time
of acquiring the leasehold certificate of title (2) Bona fide occupant means a person who
before the coming into force of the Constitution (a) had occupied and utilised or devel-
oped any land unchallenged by the registered owner or agent of the registered owner for
twelve years or more; or (b) had been settled on land by the government or an agent of
the government, which may include a local authority”.
62 Art. 237(8) of the Constitution.
63 Art. 237(9)(a) and (b) of the Constitution.

administration.64 According to Rugadya,65 the law was enacted based on the

following three core principles which could serve as the foundational basis on
which the Ugandan land reform processes is found and by which it should be
guided:
− a good land tenure system should support agricultural development through
the function of a land market which permits those who have rights in land
to voluntarily sell their land and for progressive framers to gain access to
land;
− a good land tenure system should not force people off the land, particularly
those who have no other way to earn a reasonable living or to survive. The
land tenure system should protect people’s rights in land so that they are
not forced off the land before there are jobs available in the non-agricultural
sector of the economy; and
− a good land tenure system should be uniform throughout the country.
Be that as it may, the Act reiterated, operationalised and elaborated upon the
constitutional requirement of the right to land and stipulates in its section 3
that all land in Uganda is vested in the citizens of Uganda and shall be owned
in accordance with the following land tenure systems, customary, freehold,
mailo and leasehold.66 The foregoing suggests that Ugandans who previously
held land under the customary form of tenure were legally recognised as land
owners. Busingye67 outlined four mechanisms – including the radical title,
certificate of customary ownership, right of conversion to freehold tenure and
communal land ownership – by which the Land Act specifically gave custom-
ary land rights holders some sort of legal protection. Section 5 of the Act en-
ables holders of customary land rights to acquire a certificate of customary
ownership.68
Though it is credible that the ula provides the foundational basis for for-
malising traditionally owned land rights, it also helps to facilitate and accel-
erate the transition from customary land tenure to freehold tenure. The ula
equally provides insufficient protection to customary land tenure by a com-
plete recapitulation and firm support of the constitutional requirement that
all holders of customary land rights may acquire a certificate of customary
64 Preamble of the ula.

65 Rugadya, supra note 11, p. 5.
66 S. 3 (a)–(d) of the ula.
67 Busingye, supra 7, pp. 5–6.
68 See s. 5(1) of the ula.

134 Ashukem
ownership in respect of their land, which in terms of section 9 of the Act is

prima facie deemed to be conclusive evidence of the ownership of rights and
interests in land.69
In terms of the Act, a certificate of customary ownership confers on the
owner the right to undertake certain transactions with the land unless other-
wise stated by the certificate of ownership.70 The rights conferred by a certifi-
cate of customary ownership could be the right to lease the land, the right to
permit a usufructuary right over the land, the right to mortgage the land, the
right to subdivide the land, the right to create an easement and or the right to
sell the land, transfer the land to any other person or dispose of the land by
will.71 Section 9(3) requires a record of the aforementioned transactions to be
provided to the Recorder. Upon a failure to do so the rights in the transactions
shall be forfeited.72 Like the Constitution, the Act provides that any person,
family, community or association holding land under the customary form of
land tenure may convert the customary tenure into freehold land tenure.73
Thus, like the Constitution, the Act attempts to vigorously formalise the tra-
ditional land right holding with its accelerated transition to freehold tenure,
while concomitantly striving to enhance the protection of the customary land
rights of underprivileged Ugandans.74 However, whether or not this has been
the practical effect is determined in the next section of this article. Under the
Act, customary tenants on mailo land and other bona fide occupants of land
which has been occupied, used or developed unchallenged by the owner for at
least 12 years are required to apply for certificates of occupancy.75 A certificate
of occupancy entitles the tenant by occupancy to assign, sublet, pledge, create
third-party rights in, sub-divide or undertake any other lawful transaction in
respect of the occupancy.76
69 Also see s. 9(1) of the ula.

70 Ibid., s. 9(2).
71 Ibid., s. 9(2)(a)–(h).
72 Ibid., s. 9(4).
73 S. 10(1) of the ula; also see Art. 237(4)(b) of the Constitution.
74 Hunt, supra note 21, p. 174.
75 S. 31(1) of the ula. S. 2 defines a certificate of occupancy as a certificate issued in terms of
s. 34 of the Act.
76 S. 35(1) of the ula. It must be noted the Land Act was amended in 2004 and 2010 and a
National Land Policy (nlp) was adopted in 2013 to strengthen tenure security in the coun-
try. However, neither the 2004 nor the 2010 amended laws or the nlp dealt with the issue
of the customary land right or specifically the issue of the certificate of ownership or the
reconversion of freehold tenure back into customary land tenure.

Collectively considered, it is apposite that the legal problem with customary

land tenure in Uganda that is different from the other three categories of land
tenure lies in the fact (a) it is relegated to a certificate of customary ownership,
and (b) it could be converted into freehold land tenure. The following section
examines these issues in order to show how they result in the inadequate pro-
tection of customary land tenure to the extent that they could facilitate the
deprivation of its holders from their rights within the context of land grabbing.
4 Analysis
The section critically analyses the normative content of the constitutional and
legislative right to land in Uganda from two perspectives – the issue of the reg-
istration of customary land rights and the issue of the conversion of customary
land rights and how this could play out within the context of land grabbing.
4.1 The Issue of Registration of Customary Land Rights

Although, as discussed above, the customary land right is inter alia a recogni-
sable form of land tenure in Uganda, the effective respect and protection of
this form of tenure security leaves much to be desired, as the customary right
in land is not guaranteed in perpetuity. The four land tenure systems in terms
of which land is owned in Uganda should in principle deserve similar respect
and protection without differentiation, and any condition applicable to one
of them should also apply to all. Given that the idea of land tenure security
in Uganda does not appear to be inchoate, as is evident from the above de-
scription of the historical context, the Constitution and the ula could have es-
tablished and provided clear and simple provisions concretising and ensuring
an effective land tenure system. Instead, they provided for contradictory and
possibly opposing provisions to rights in land. The narrowly framed normative
provision of Article 237 of the Constitution and section 3 of the ula, which is
firmly supported by a contradictory Article 237(4)(a) of the Constitution and
section 5 of the ula, clearly show that this is not the case.
Both the Constitution and the ula explicitly and specifically exclude cus-
tomary land tenure from the broad umbrella of protection and subject it to the
registration of a certificate of ownership. The implication of this is that any
customary land rights holders who have not yet acquired a certificate of cus-
tomary ownership could be deprived of their rights therein, since there is no
conclusive evidence to justify the customary rights and interests in the land.77
77 S. 9 of the ula.

136 Ashukem
Thus, the issue of a certificate of customary ownership appears to erode the

envisioned legal protection of customary land tenure, which is indicative of
the fact that the status quo remains predominantly the same78 as in the colo-
nial era and most probably could remain so in the near future if measures are
not taken to address the issue. With an estimated 80% of all land in Uganda
held under customary tenure, customary rules for land governance should in
principle play a major role in determining customary land and property rights,
which arguably do not rely on a certificate of customary ownership, but in-
stead customary rules of acquisition and ownership of land. The reason is that
in a traditional African system such as that which exists in Uganda, oral proof
of title is the most commonly and widely used and accepted form of land hold-
ing. This is so because the vast majority of customary laws and customs relat-
ing to land in Africa are passed down orally from one generation to another,79
and this accounts for the continuity and resilience of customary land tenure.
Clearly, the fact that norms of customary land tenure are derived from and are
sustained by the community itself and not by statutory law, suggests that cus-
tomary land tenure should be as much a social system as a legal code on which
land rights held under this form of land tenure as it is in Uganda, ought to be
respected and protected. Also, although customary tenure is constitutionally
protected and has been legislated, it must be borne in mind that the practices
and cultures of a people in terms of its land use, ownership, administration
and management may not change for a long time.
Notwithstanding the above, the logic here is that Article 237(4)(a) of the
Constitution leaves open a number of obvious observations that require at-
tention and should have been addressed by the ula.80 While on the one hand
the absence of registered land rights for rural Ugandans underscores the view
that the land governance regime is weak and practically incapable of protect-
ing customary land rights,81 on the other hand Article 237(4)(a) makes the

79 M. Hansungule and A. O. Jegede, ‘The Impact of Climate Change on Indigenous Peo-
ples’ Land Tenure and Use’, 21:2 International Journal on Minority Group Rights (2014)
pp. 256–291.
80 However, this was not the case, since it was government’s intention that in future most
customary land rights would be converted into freehold, following the free market ap-
proach adopted by the 1989 study by the University of Wisconsin.
81 Also see S.B. Mabikke, ‘Escalating Land Grabbing in Post-Conflict Regions of Northern
Uganda: A Need for Strengthening Good Land Governance in the Acholi Region’, in the
International Conference on Global Land Grabbing, p. 1; D. Kraybill and M. Kidoido, ‘An
Analysis of Relative Profitability of Key Uganda Agricultural Enterprises by Agriculture
Zone’, in Background Paper No. 4, p. 1.

legal position of people holding land under customary form of land tenure
extremely precarious and susceptible to dispossession within the context of
land grabbing, which is defined as:
The acquisition of vast portions of land, often through non-transparent

and exclusionary land acquisition deals whether purchased or leased
that negatively impact on the rights and interests of local communities
and affected stakeholders. Such land deals are usually concluded be-
tween a foreign investor, which can either be a private company or a for-
eign government or a financial institution, and the government of a host
country, and is often directed towards the eventual production of food
crops and increasingly biofuels. This practice can lead to the usurpation
of the rights of ownership and use of land of local communities and it
can negatively impact on a whole range of social, economic and envi-
ronmental and related rights and interests. It is this usurpation of rights
(both ownership and of use) that is termed land grabbing.82
From the above, it may be seen that it is the usurpation of the rights of own-
ership and use in land that is tantamount to land grabbing, an activity that
takes place against the backdrop of unprotected land, as foreign investors like
investing in countries with weak land governance – such as Uganda, that does
not protect customary land rights, for example.83 Thus, unprotected customary
land rights are inextricably linked to land grabbing, and are highly susceptible
to violation.84 As shown above, Article 237(4)(a) and section 5(1) of the ula
82 J.C.N. Ashukem, ‘A Rights-Based Approach to Foreign Agro-Investment Governance

in Cameroon, Uganda and South Africa’ (lld thesis, nwu, 2016) p. 37; J.C.N. Ashukem,
‘Included or Excluded? An Analysis of the Application of the Free, Prior and Informed
Consent Principle in Land Grabbing Cases in Cameroon’, 39 Potchefstroom Electronic Law
Journal (2016) p. 2; also see O. De Schutter, ‘The Green Rush: The Global Race for Farmland
and the Rights of Land Users’, Harvard International Law Journal (2011) p. 504; L. Cotula, S.
Vermeulen, R. Leonard and J. Keeley, Land Grab or Development Opportunity? Agricultural
investment and International Land Deals in Africa (fao, 2009) p. 17.
83 Mabikke, supra note 81, p. 1, R.K. Muriisa, P.K. Mbabazi and M. Twinamatsiko, ‘Land Deals
in Uganda: An Invisible Hand in Land Grabbing and Rural Development’ paper, Interna-
tional Conference on Land Politics in Africa (May 2013, South Africa) p. 19; W. Anseeuw,
T. Breu, M. Giger, J. Lay, P. Messerli and K. Nolte, Transnational Land Deals for Agriculture
in the Global South: Analytical Report Based on the Land Matrix Database (cde, cirad,
giga, 2012) p. 37.
84 nape, ‘A Study on Land Grabbing Cases in Uganda’, 2012, p. 17, <www.reliefweb.int/sites/
reliefweb.int/files/resources/Full_Report_3823.pdf>, visited 18 May 2018.

138 Ashukem
provide little protection to customary land rights to the extent that they have
in practice altered the protection of customary land rights and made it pos-
sible for customary land tenure rights to be usurped within the framework of
land grabbing. Land grabbing has been reported to deprive local communities
of their customary land rights and means of livelihood, and their eviction is
justified on the grounds that they do not hold a certificate of ownership to the
land in question,85 and are thus considered as illegal occupants of the land.
The use of the conditionality “may acquire certificates of ownership…” em-
bedded in both the Constitution and the ula86 means that holders of custom-
ary land rights are free to decide whether or not to acquire the said certificate,
and in the likelihood that they choose not to, their right to land must in prin-
ciple not be alienated insofar as customary land tenure is a constitutionally
and legislatively recognised and guaranteed form of tenure security. However,
it could be possible for this condition to be ignored and instead interpreted as
an obligation for holders of customary land rights to acquire a certificate of
ownership, in which case they could be deprived of their customary land rights
for the lack of a certificate of ownership. In this era of land grabbing, the gov-
ernment may capitalise on this and forcibly take these lands and lease them
to foreign investors for investment purposes at will,87 for lack of a certificate
justifying ownership.88 The issuing of a certificate of customary registration
cannot detract from the consequential reality that its absence is not an open
vehicle for use in the deprivation of customary land.
It has been reported that local communities have in fact been deprived of
their customary land rights and were also forcibly and violently evicted from
85 Ashukem, supra note 82, p. 37; De Schutter, supra note 82; Cotula et al., supra note 82,
p. 15; nape, ‘Land, Life and Justice: How Land Grabbing in Uganda is Affecting the Envi-
ronment, Livelihood and Food Sovereignty of Communities’ (Friends of the Earth Interna-
tional, 2012) p. 11; S. Daniel and A. Mittal, The Great Land Grab: Rush for World’s Farmland
Threatens Food Security for the Poor (Oakland Institute, Oakland, CA, 2009) p. 1; S. Daniel,
‘Land Grabbing and Potential Implication for World Food Security’, in M. Behnassi et al.
(eds.), Sustainable Agricultural Development (Springer, Heidelberg, 2011) pp. 25–26; S.M.
Borras and J. Franco, ‘Global Land Grabbing and Trajectories of Agrarian Change: A Pre-
liminary Analysis’, Journal of Agrarian Change (2012) p. 34.
86 See Art. 237(4)(a) of the Constitution and s. 5(1) of the ula.
87 nape, supra note 84, p. 5; Ashukem, supra note 82, p. 43.
88 Ashukem, supra note 82, p. 27; De Schutter, supra note 82; Cotula et al., supra note 82, p. 15;
nape, supra note 84; Daniel and Mittal, supra note 85; Daniel, supra note 85; Borras and
Franco, supra note 85.

their customary land at gunpoint by the Ugandan army,89 in order to make way
for the Kaweri Coffee Plantation Ltd. in the Mubende District. Depriving local
Ugandans of their traditionally owned, used and occupied land for the lack of a
certificate of customary ownership could impact negatively inter alia on their
livelihood and consequently their lives. This is especially true as the Ugandan
economy is largely agricultural, with over 80 per cent of the total population
dependent upon it, and in rural areas the ratio is greater, with over 85 per cent
of the population involved in and depending on agricultural activities as their
only means of achieving livelihood.90
Because land is an important factor for agricultural production, this presup-
poses that a system of land tenure reform that clearly and correctly identi-
fies land tenure security as an issue should be premised on the unequivocal
commitment and need of the state to protect land rights. Yet Article 237(4)(a)
of the Constitution in conjunction with section 5(1) of the ula seems to pre-
vent the effective protection of customary land rights. This concern is crucially
timely in this era of land grabbing, which has the potential to impact nega-
tively on customary land rights. It has been suggested that the government and
the law in Uganda need to be clear on how land resources are to be accessed
and developed, to whom the land belongs, and who else may lay valid claim to
the land.91 Instead of making the normative content of Article 237 of the Con-
stitution and section 3 of the ula a justifiable claim for the ownership and use
of land in Uganda, Article 247(4)(a) of the Constitution and section 5(1) of the
ula rather provide some vague justifications that in a way appear to occlude
the application of both the normative content and the right of Article 237 of
the Constitution and section 3 of the ula, and the envisaged possible solution,
which is to provide customary land tenure, in terms of the ownership, use and
control of rights and interests in land.
Although the Constitution empowers Parliament to prescribe the manner
of and procedure for registering and obtaining a certificate of ownership, it
is surprising that to date Parliament has not done so,92 and most locals liv-
ing in remote areas are not aware of the need to acquire the supposed cer-
tificates. This makes the protection of customary land rights difficult. It may
be correct, therefore, to argue that the less restrictive protection afforded to
89 fian, ‘Land Grabbing in Uganda: Evictions for Foreign Investment in Coffee in Mubende’,
(2012) p. 1.
90 fowode, ‘Gender Policy Brief for Uganda’s Agriculture Sector’ (2012) p. 3; Ashukem, su-
pra note 82, p. 253; Mabikke, supra note 81; Kraybill and Kidoido, supra note 81.
91 Ashukem, supra note 82, p. 10.
92 nape, supra note 84, p. 13

140 Ashukem
customary land rights premised on proof of registration of ownership is akin

to the 1975 Land Reform Decree that undermined the protection of the rights
of customary land holders.93 It would therefore be interesting to know why the
protection of customary land rights should be premised on the possession of a
certificate of ownership, when under Article 237(3)(a) customary land tenure
is inter alia one of the four ways in which land is legally owned, recognised and
protected.94 Presumably, the constitutional clause requiring the acquisition of
certificates by owners of customary land seems to be a deliberate tactic by the
government to avoid respecting and protecting customary land rights and to
make it possible to systematically deprive locals of their land on the grounds
that they do not have a certificate of title.95 The fact that customary land rights
are protected only if duly registered and a certificate of ownership is obtained
suggests a perceived irregularity and a legal nuance in the legal protection of
Article 237 of the Constitution on the right to land in Uganda. It must be borne
in mind that Uganda uses the Torren System of title registration introduced
by the Registration of Titles Act of 1924. Interestingly, this system applies only
to mailo, freehold and leasehold tenure systems and not also to customary
land tenure as the latter must be converted into freehold in order to be regis-
tered. The foregoing indicates that the envisaged constitutional requirement
for holders of customary land, that they need to obtain a certificate of owner-
ship, is only an attempt to eradicate the customary form of land tenure and
the constitutional protection it deserves, because the Torren System does not
recognise it and the only way for it to be recognised is for it to be converted
into freehold.
According to Toulmin, the security of land right entails two forms of valida-
tion at the local and state levels.96 Locally, land rights are secured if the claim
to a particular parcel of land is recognised by neighbours and others as being
legitimate – which evokes a form of customary practice. On the other hand,
land rights are secured if formally recognised by the state – which could be
through statutory provision(s). The fact that Article 237 of the Constitution of
Uganda clearly recognises these two forms of land security suggests that the
customary land right is legally protected and must not be subjected to further
93 See for example section 5 of the repealed 1975 Land Decree.

94 Ashukem, supra note 10.
95 Ibid.
96 C. Toulmin, ‘Securing Land and Property Rights in sub-Saharan Africa: The Role of Local
Institutions’, in Securing Land and Property Rights in Africa: Improving the Investment Cli-
mate Global Competitiveness Report 2005–2006 (World Economic Forum, Geneva, 2006)
p. 37.

measures of security or protection. This does not in any way suggest that cus-
tomary rights should not be registered or that Article 237(4)(a) of the Consti-
tution is invalid, but rather that the requirement to obtain a certificate of title
further subjects customary land rights, which are legally recognised and pro-
tected by the Constitution and the Land Act, to further measures of protection
that are somewhat inconsistent with Article 237 itself.
Despite the constitutional requirement that customary land owners are re-
quired to acquire a certificate of ownership, it has been suggested that it was
the duty and responsibility of the Land Act to clearly delineate these proce-
dures and to define who is a customary land owner.97 However, the Ugandan
Land Bill/ula has failed to clearly provide procedures for ascertaining who is
a customary owner and the legal consequences of not acquiring the envisaged
certificate of ownerships. It remains unclear why there is a failure to provide
these procedures, which could have acted as a catalyst to ensure the effective
protection of customary land rights, especially considering that “those respon-
sible for framing a national land policy had to consider the future of customary
land tenure”.98 Also, the fact that the Act does not contain any clear-cut objec-
tives nor does it spell out the policy goals which it intends to achieve – given
that there was no stated national land policy at the time of the passing of the
Act – makes it appropriate to question the normative provision, the basis and
the legal content of section 5 of the Act.99 In other words, one has to ask why
the Act subjects customary land tenure to a certificate of ownership.
If it is correct that section 4 of the ula considers customary land tenure
to be a form of tenure applicable to a specific description of land or class of
persons, and that such tenure is governed by rules that are generally accepted
as binding and authoritative by the class of persons to whom it applies, or ap-
plicable to any persons acquiring land in an area that is characterised by local
customary regulation providing for the communal ownership and use of land,
then it may also be correct to argue that there is an overlap between the con-
stitutional and legislative rights to land.
Section 28 of the Land Act, which governs customary land tenure, supports
this view and requires that decisions on matters of land held under custom-
ary forms of land tenure, whether individually or in common, shall be held
in accordance with the custom, tradition and practices of the community
97 Coldham, supra note 51, p. 68. The law does not define who is a customary owner. S. 2 of
the Act defines customary tenure as “a system of land tenure regulated by customary rules
which are limited in their operation to a particular description or class of persons…”.
98 Coldham, supra note 51, p. 67.
99 See s. 5(1) of the Act.

142 Ashukem
concerned. Section 28 is to the effect that important decisions of land held un-
der customary land tenure cannot in principle be changed or easily dismissed.
Evidently, a land tenure system (such as customary land tenure) that supports
land allocation and transaction is arguably relevant and crucial to determine
equitable land administration and dispute resolution. The fact that in terms of
section 28 the adjudication of matters of customary tenure is based on the cus-
tomary rules, practices, customs and traditions of the people concerned sug-
gests that the possession of a certificate of ownership to prove of ownership
could appear to be somewhat inappropriate and unnecessary. In other words,
because the customary right to own land is often based on the local customs,
traditions and practices of the community concerned, the requirement for a
certificate of ownership appears irrelevant and contrary to this form of land
tenure, which is an explicitly recognised way of legally owning land in Uganda.
The logic here is that a robust application of the constitutional and statutory
requirements could significantly threaten the customary land rights of Ugan-
dans. It would have been better had clauses 1 and 3 of Article 237 of the Con-
stitution not existed and the only constitutional provision pertaining to land
rights was clause 4(a), which is to the effect that all Ugandan citizens owing
land under customary tenure may acquire certificates of ownership in a man-
ner prescribed by Parliament. Given the amendment of the Land Act in 2004
and 2010 and the adoption of a nlp, it was reasonably expected that the issue
of the customary land right and the stringent conditions attached to it would
be addressed. Still, this was far from being the case, as the continuance of the
system of customary ownership was not contemplated. Instead, attention was
inter alia put on strengthening women’s land rights, security of occupancy of
family land, and ensuring female gender representation in land management
bodies and institutions.
4.2 The Issue of Conversion of Customary Land Rights

It has been argued that the envisioned legal recognition and protection af-
forded by the Constitution and the Land Act to customary land tenure has not
been and is still to be translated into “a pro-customary land tenure policy”.100
Clause (8) of Article 237 of the Constitution provides that the lawful or bona
fide occupants of mailo land, freehold or leasehold land shall enjoy security
of occupancy on their land, The same rhetoric is repeated in section 10 of the
Land Act, but not with reference to customary land tenure. Thus, a need re-
mains to understand why holders of customary land tenure should acquire a
certificate of registration which may be converted into freehold land tenure
100 Mugambwa, supra note 3, p. 52; Busingye, supra note 7.

upon registration, or why the lawful or bona fide occupants of mailo land, free-
hold or leasehold land should enjoy security of occupancy and not the holders
of customary land tenure? It must be noted that the idea of converting cus-
tomary land tenure into freehold was largely based on the recommendations
of the Ugandan Constitutional Commission, which was of the view that “in
practice, many individuals and families holding land under customary tenure
have something akin to freehold tenure”101 and that converting customary land
tenure into freehold was conceivably the best way forward for the country’s
greater economic development. The Commission stated that:
The great disadvantage of the customary tenure is that it tends to empha-

sise cultural values more than the economic and financial gains from the
land. This retards development. Land users are not encouraged to make
long-term investments in the land; nor can they take good care of the
land as they would have done if they had clear titles to it. Land held under
customary land tenure especially for communal use tends to suffer from
neglect and consequent degradation.102
The Commission’s recommendations could be premised on the perception

that since most land in Buganda and other urban areas are held in freehold
land tenure, it is necessary for all land in the country to be under the same
tenure system – freehold – as this could serve to advance rapid economic de-
velopment.103 Given the desire of the government to liberalise the land market
in order to boost economic development – a rationale that also drives land
grabbing – it could be argued that Article 237(4)(a) of the Constitution and
section 5 of the ula subject only customary land rights holders to further dis-
possession, as customary rights to land could easily be converted to leasehold
or freehold land tenure. The foregoing is premised on the fact that land grab-
bing also takes place against the backdrop of contractual leases,104 and it could
be that the Constitution and the ula arguably facilitate the leasing of cus-
tomary land as they explicitly require the holders of customary land tenure
101 Justice B. Odoki (Chairperson), The Report of the Uganda Constitutional Commission:
Analysis and Recommendations, (1992) 25.61, cited in Mugambwa, supra note 3, at foot-
note 72, p. 53.
102 Ibid., Justice Odoki, paras. 25.62-63.
104 Ashukem, supra note 82, p. 6; also see S.M. Borras and J. Franco, ‘Towards a Broader View
of the Politics of Global Land Grabs: Rethinking Land Issues, Reframing Resistance’, icas
Working Paper Series No 001 (May 2010) p. 4; nape, supra note 84, p. 5.

144 Ashukem
to acquire a certificate of ownership in order for them to be able to convert it

into freehold/leasehold land tenure, where it could be sold.105 The foregoing
presupposes that the current legal regime is weak and incapable of protect-
ing the customary form of land tenure, this weakness paving the way for the
continuous deprivation and violation of customary land rights in the context
of land grabbing. This resonate with Mabikke’s contention that the weak land
governance regime in Uganda: “thrives on the failure of the prevailing land
tenure systems to respond to the challenges posed by appreciation of land in
a way that would enhance effective land tenure and investment security”.106
It is therefore apparent from the above that the current weak land gover-
nance regime in Uganda does not protect people’s right to land (especially
customary land), and particularly so within the context of the formal land
administration set-up.107 In light of the above, should Article 237(4)(a) and
section 5 of the ula be strictly applied, then the government of Uganda is in-
evitably putting a vast majority of Ugandans who own and occupy land under
customary land tenure in a de facto situation of illegality. This makes it reason-
able to question the legality of Article 237 of the Constitution and section 3 of
the ula with respect to the land tenure regime in Uganda, especially consider-
ing the historical injustice and insecurity in this context.
The constitutional and legislative requirement of converting customary
land into freehold seems to suggest that rights in freehold land tenure are held
in perpetuity but not those of customary land tenure, because rights in cus-
tomary land ceases to exist once converted into freehold land tenure. Neither
does the ula nor the Constitution explicitly require a reconversion of freehold
land tenure back into customary land tenure. The absence of this further sup-
ports the argument that the Constitution and the Land Act aim to facilitate the
demise of the customary land tenure system.108 It has been suggested that the
ula, in conjunction with the Constitution, have treated customary land ten-
ure as a transitory and secondary form of land tenure that may cease to exist
after everyone has converted their right to freehold.109 By converting custom-
ary land tenure into freehold, the rights inherent in the former are invariably
105 Ibid., nape, p. 17.

106 Mabikke, supra note 81; R.K. Muriisa, P.K. Mbabazi and M. Twinamatsiko, ‘Land Deals in
Uganda: An Invisible Hand in Land Grabbing and Rural Development’, paper presented at
the International Conference on Land Politics in Africa, South Africa (March 2013) p. 19.
107 Mabikke, supra note 81, pp. 21–22.
108 Busingye, supra note 7.
109 Ibid.

transferred to the latter, and this further raises the complexity of the matter
of the security of customary land tenure under the Constitution and the ula.
The transfer of customary land rights into freehold tenure does not in any way
guarantee the security of customary land tenure, because the transferability of
a land right is not synonymous with and does not denote the security of land
tenure. Thus, treating the two interchangeably is tantamount to arriving at il-
logical and unnecessarily flawed conclusions that arguably could not address
land tenure security issues in any way. Instead, customary land tenure loses its
protection once it is converted into freehold tenure. Accordingly, the rationale
behind the holders of customary land tenure acquiring certificates of owner-
ship is not primarily safeguarding their rights and interests in land, but simply
converting it into freehold which is then registered in the Torren System and
ceases to be the subject of customary land law.110 The holders of the land are
deprived of their rights and interests. This is akin to what Hunt termed the “un-
intended consequences of land rights reform”.111 It emerges clearly that the un-
derlying principle relating to the requirement to convert customary land into
freehold relates essentially to the issue of creating a land market, an idea that
underpinned land reform in Uganda, to the effect that there would a change in
the ownership of land from people – rural Ugandans who do not have the ca-
pacity to develop the land to people with the requisite capacity and know-how
to develop the land.112 The rationale for the land market, as earlier mentioned
was driven by the fact that over 75 per cent of land in Uganda is under custom-
ary land tenure with most rural people having no capacity to put the land into
productive use. Thus the hope to fully implement the ula was to achieve this
goal. Yet, achieving this goal has the potential to trample on the constitutional
and legislative right to customary land tenure, while concomitantly placing its
holders in terrible position of a lack of protection and specifically within the
context of land grabbing.
Thus, pragmatically, it is apparent that there is insufficient legal protection
for customary land rights in Uganda, as local communities could frequently
find themselves being dispossessed of their customary land rights during land
grabbing exercises for the lack of a certificate showing their title to the land.113
110 S. 15 of the ula.

111 Hunt, supra note 21, pp. 173–191.
113 For details on this see Ashukem, supra note 10.

146 Ashukem
5 Conclusion
This article has demonstrated that although the present Ugandan land tenure
regime represents a significant positive step against the pre-colonial and colo-
nial era, there is a considerable overlap and possible opposing and conflicting
provisions to the constitutional and legislative guarantee to the right to land.
For this reason, it cannot be characterised as an adequate framework designed
to adequately ensure and provide an efficient land governance regime in the
country generally and with reference to customary land tenure specifically.
It has been argued that despite the four formally recognised forms of land
tenure in the country, the protection of customary land rights has been made
subject to a stringent condition – the ownership of a certificate of title, the ab-
sence of which acts as a catalyst for the deprivation of customary land rights,
and particularly so in the context of land grabbing. In fact, not much in terms
of implementation of Article 237(4) of the Constitution and the ula has hap-
pened permitting the measurement of the progressive realisation of the pro-
tection of land rights generally and customary land tenure in particular. It has
been indicated that the status quo remains practically unchanged as no single
certificate of ownership has been issued by the government to date.114
One would have expected both Article 237 of the Constitution and sec-
tion 3 of the ula to be much clearer on the protection of land rights in Ugan-
da generally and customary land rights specifically. Yet this does not seem to
be the case. Even if both Article 237 of the Constitution and section 3 of the
ula do not gain traction in relation to the intended protection of customary
land rights, the least that was expected was that the government of Uganda
would have respected and reflected on the existing legal provision(s) and its
pre-existing political commitment to providing and ensuring adequate protec-
tion to the land tenure regime and customary land rights specifically, taking
into consideration the historical injustices and inequality in land governance
in the country. The constitutional and legislative guarantees of the right to
land are of little avail and do not (as initially intended) guarantee in practice
the protection of customary land tenure, since the requirement of a certificate
of customary ownership negates the guarantee. The system could be used as
a means to systematically deprive customary land rights holders of the land
that they have owned, used and occupied for years under diverse customary
land tenure traditional systems. Customary land rights holders will continue
to suffer the adverse effect of a lack of acknowledgement of their customary
land rights, as the government will continue to evict them from their land for
114 Busingye, supra note 7; Deininger et al., supra note 21, p. 597.

lack of a certificate of customary ownership. In the end, the availability of a

certificate of customary ownership intensifies the vulnerability of customary
land rights holders and leads one to question how serious the government of
Uganda’s intention is in protecting land rights generally and customary land
rights specifically.
Given the present context, land tenure security (and possibly customary
land tenure) in Uganda seems to be and remains a conundrum that requires
urgent attention on the part of the state, if it is truly committed to changing
the landscape of the land ownership to one that recognises the connectivity,
nonlinearity and complexity of the land question and the land tenure regime
in general. While this could seem to be the ultimate regulatory challenge, it is
strongly believed that it could provide a suitable cognitive approach to proac-
tively and holistically ensuring proper land governance and specifically cus-
tomary land rights in Uganda.
Accordingly, in order to effectively protect the customary land rights of
Ugandans, there is a need for a more rigorous and self-conscious land regime
that protects customary land tenure, and for the government to address the
legal nuances in the Constitution and the Land Act in order for the state to ef-
fectively respect and protect customary land tenure.
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Land Grabbing and Customary Land Rights in Uganda: A Critical Reﬂection of

Article in International Journal on Minority and Group Rights · June 2019

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Land Grabbing and Customary Land Rights in

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community.2 Thus, land tenure security plays an increasingly important role

international journal on minority and group rights 27 (2020) 121-147

9 Art. 237(4)(b) of the Constitution; and s. 10(1) of the ula.

international journal on minority and group rights 27 (2020) 121-147

embedded in the current legal framework discussed below is analogous to that

2 Land Rights in Uganda: Conceptual Background

Prior to undertaking an in-depth analysis of the protection of land rights in

2.1 Pre-Colonial and Colonial Era

international journal on minority and group rights 27 (2020) 121-147

recognised­in Uganda as customary land holders were regarded as tenants at

14 Busingye, supra note 7, p. 3.

international journal on minority and group rights 27 (2020) 121-147

international journal on minority and group rights 27 (2020) 121-147

2.2 Post-independence Era, 1962–1975

29 Mugambwa, supra note 3, p. 39.

international journal on minority and group rights 27 (2020) 121-147

The foregoing evidently illustrates the recognition and protection afforded by

international journal on minority and group rights 27 (2020) 121-147

land tenure remained unchanged. It is reported that the Decree empowered

42 Akena, supra note 2, p. 226.

international journal on minority and group rights 27 (2020) 121-147

promotion of freehold tenure security for the whole of Uganda, as it would

3 The Present Era

3.1 The Constitution of the Republic of 1995

international journal on minority and group rights 27 (2020) 121-147

55 See Art. 237(1) of the Constitution.

international journal on minority and group rights 27 (2020) 121-147

conditions for such acquisition are defined by Parliament.Under the Constitu-

3.2 The Land Act of 1998

international journal on minority and group rights 27 (2020) 121-147

administration­.64 According to Rugadya,65 the law was enacted based on the

64 Preamble of the ula.

international journal on minority and group rights 27 (2020) 121-147

ownership in respect of their land, which in terms of section 9 of the Act is

69 Also see s. 9(1) of the ula.

international journal on minority and group rights 27 (2020) 121-147

Collectively considered, it is apposite that the legal problem with customary

4.1 The Issue of Registration of Customary Land Rights

international journal on minority and group rights 27 (2020) 121-147

Thus, the issue of a certificate of customary ownership appears to erode the

78 Busingye, supra note 7, p. 8.

international journal on minority and group rights 27 (2020) 121-147

The acquisition of vast portions of land, often through non-transparent

82 J.C.N. Ashukem, ‘A Rights-Based Approach to Foreign Agro-Investment Governance

international journal on minority and group rights 27 (2020) 121-147

international journal on minority and group rights 27 (2020) 121-147

international journal on minority and group rights 27 (2020) 121-147

customary land rights premised on proof of registration of ownership is akin

93 See for example section 5 of the repealed 1975 Land Decree.

international journal on minority and group rights 27 (2020) 121-147

international journal on minority and group rights 27 (2020) 121-147

4.2 The Issue of Conversion of Customary Land Rights

100 Mugambwa, supra note 3, p. 52; Busingye, supra note 7.

recognisedin Uganda as customary land holders were regarded as tenants at

administration.64 According to Rugadya,65 the law was enacted based on the