Land Reform and Customary Rights: The Case of Uganda

Author(s): Simon Coldham

Source: Journal of African Law , 2000, Vol. 44, No. 1 (2000), pp. 65-77
Published by: School of Oriental and African Studies

Stable URL: https://www.jstor.org/stable/1587438

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Journal of African Law, 44: 65-77

LAND REFORM AND CUSTOMARY RIGHTS:

THE CASE OF UGANDA

SIMON COLDHAM*

Over the last ten years land reform has been the subject of intense
Uganda. Some of the issues that have arisen (e.g. the future of custo
tenure) are familiar and have been discussed at length in the contex
reform elsewhere in sub-Saharan Africa. Others are rooted in Uganda's
historical context. The Land Act 1998 (No. 16 of 1998) is the end-
this debate. It is not a comprehensive code of land law, but it does p
legal framework governing land tenure, land administration and the
of land disputes. Issues of land policy are worked out in some detail in
reflecting the view that a law which recognizes and protects private l
needs to be specific and clear and that a law which provides for the
powers by officials needs to spell out clearly how such powers are to b
leaving as little as possible to administrative discretion.' The Land Act
the most important piece of land legislation since the Land Refo
19752 (which it repeals) and, arguably, it represents as great a revoluti
relations as the Uganda Agreement and other reforms ushered in at t
the colonial period. Inevitably, it is highly controversial.
In this article I propose first to set out the principal reforms intro
the Act under three headings (mailo land, customary land, land admin
and then to select for further discussion certain issues of general inte
by the Act.

REFORM OF MAILO LAND

The most intractable policy issue facing the government was, undoubtedly,
the future of mailo land. Indeed, ever since the Uganda Agreement of 1900
between the British Government and the Kingdom of Buganda granted some
8,000 square miles of land (hence known as "mailo" land) to the Kabaka of
Buganda and various other chiefs and notables, the nature of the rights of those
who had traditionally occupied and farmed those lands has always been a vexed
question. In spite of colonial legislation designed to protect customary tenants
of this kind, their position was always vulnerable. The Land Reform Decree,
1975, which declared all land in Uganda to be public land to be administered
by the Lands Commission, further weakened their position. All freeholds including
mailo ownership rights were converted into 99-year government leases and
customary tenancies on mailo land were converted into customary tenures on

* I am grateful to Patrick McAuslan for making certain materials available to me.

1 Patrick McAuslan has argued forcefully in favour of "more" rather than "less" law in the context
of land law reform in Tanzania. See Patrick McAuslan, "Making law work: restructuring land
relations in Africa" (1998) 29 Development and Change 525 at 534ff. The Land Act of Tanzania, for
which he was in large part responsible, runs to 186 sections. He applied the same principles in
assisting with the drafting of the Ugandan Act; the original Bill was much shorter.
2 Apart from the controversial "reforms" introduced by the Decree (promulgated during Amin's
regime), the fact that it was poorly drafted and incompletely implemented has led to considerable
uncertainty in land matters, an uncertainty which has been compounded by the chaotic state of the
land registry system.

? 2000 School of Oriental and African Studies

65

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66 Land Reform and Customary Rights in Uganda [2000] J.A.L.

public land with little security of tenure. In the discussions on land policy that
took place during the 1990s the former mailo owners pressed for the full
restoration of their rights while the customary tenants for their part demanded
security of tenure of the lands they occupied.
The 1995 Constitution sought to address the land question. While Article
237(1) declared that land in Uganda belonged to the citizens of Uganda, clause
(3) made it clear that land was to be held on one of the following four tenures:
customary, freehold, mailo and leasehold. Although mailo ownership is equivalent
to freehold ownership, the clause left no doubt that the 1975 conversion of mailo
rights had been reversed. On the other hand, clause (9) required Parliament
within two years to enact a law (a) regulating the relationship between the lawful
or bonafide occupants of mailo, freehold or leasehold land and the owners of the
land, and (b) providing for the acquisition of a registrable interest in the land
by the occupant. In the meantime the occupant was to enjoy security of tenure.
The determination of the precise nature of the relative rights of owners and
occupants was thus deferred. However, while it was obviously desirable to hold
consultations on the issue, it was equally obvious that it would be impossible to
secure a consensus.

The Land Act severely restricts the powers of the

and leasehold) owners.3 On the one hand, mailo owner
of a freehold owner and are stated to hold their lan
other hand, their tenure is subject to the customary and
persons in lawful or bona fide occupation of the lan
defined to include customary tenants as well as any ot
the land with the consent of the owner.5 A "bonafid
who had been in adverse possession of the land for at
the coming into force of the Constitution and those
the land by government before that date.6 Given th
recognize the acquisition of rights by adverse possession
absentee landlords) was controversial.
Both lawful and bonafide occupants enjoy what the
occupancy"7 and the incidents of such a tenancy are s
tenant enjoys security of tenure8 and is entitled to
occupancy.9 He is required, however, to pay the
ground rent.'1 A tenancy by occupancy may be inher
consent of the owner, be assigned, sub-let, pledged, s
tenant wishes to assign his tenancy or the owner wis

3 Given the emphasis on furthering social justice in land matters

of the Constitution, this was hardly surprising.
4 S. 4.
5 S. 30(1).
6 S. 30(2). A person who had been in adverse possession for less than twelve years is required by
s. 31(1) to negotiate with the owner concerning his occupation of the land. However, it is not clear
what is to happen if they fail to reach agreement on what is to prevent the owner from evicting the
squatter.
7 S. 2 and 32(2).
8 S. 32(1).
9 S. 34(1).
10 S. 32(3).
1 S. 35. The section sets out the consent procedures including a provision for appeal to the Land
Tribunal.

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Vol. 44, No. 1 Land Reform and Customay Rights in Uganda 67

must give first refusal to the owner or tenant as the case may be.'2 Although a
tenancy by occupancy is in many ways similar to a common-law tenancy, its
existence is conditional on continued occupation of the land by the tenant, his
agent or a member of his family. If the land is left unattended for three years
or more, the tenancy lapses.'3
While the Act thus strengthens the position of those in occupation of mailo
land, it does not go so far as to provide for the compulsory enfranchisement of
customary tenancies, as had been demanded in some quarters and indeed as
had been done in neighbouring Tanzania.'4 Instead, a tenant may apply to the
owner to be registered as the mailo owner in his place.15 A Mediator may be
called in to assist negotiations between the parties, but it is clear that there is
nothing to prevent the owner from simply rejecting the application. To this
extent the Act can be seen as striking a compromise between the interests of
mailo owners and occupants, albeit one that tends to favour the latter group.

CUSTOMARY LAND TENURE REFORM

Apart from addressing the specific problems relating to mailo land, those
responsible for framing a national land policy had to consider the future of
customary land tenure. Ever since the Crown Land Ordinance, 1903, whose
effect was to make those occupying land under customary law (outside the mailo
area) tenants at will of the Crown, the legal position of such people has been
extremely precarious. The Land Reform Decree, 1975, declared the customary
occupation of public land to "be only at sufferance", though it provided for
compensation to be paid if the occupation was terminated by the Lands
Commission.l6 Instances of government alienation of such land on freehold
(before 1975) or leasehold had led to demands for some degree of security of
tenure.

The Constitution itself went some way to meeting these demands. Artic
237(2) recognized customary land tenure as being one of the four ways (tog
with freehold, mailo and leasehold) in which land could be owned, while a
237(4) provided for the possibility (a) of customary owners acquiring certif
of ownership, and (b) of customary land being converted to freehold land
registration. These provisions left open a number of obvious questions wh
were to be addressed in the course of discussions on the Land Bill, but they
indicate that it was government policy that, at least in the long term, most
in Uganda should be held on individual freehold tenure. To this extent it ado
the free market approach recommended by the 1989 study carried out by

12 S. 36. A Mediator may assist the parties in reaching an agreement.

13 S. 38(1) and (2). It is far from clear what "unattended" means. No other titles are conditi
on attendance. The position is further obscured by the provision that section 38(1) is subj
section 28, itself a problematic section (discussed below) seemingly designed to prevent wom
children or persons with disability being denied access to land.
14 Customary Leaseholds (Enfranchisement) Act, 1968. The enfranchisement process was
with difficulties. The Ugandan Land Act s. 29 does provide for the enfranchisement of le
public land; however, enfranchisement is not automatic, as it was under the original Bill, nor,
the area of land exceeds 100 hectares, is it free.
15 S. 39. Tenants of freehold or leasehold land have equivalent rights.
16 S. 3(1) and (2). Some of those who were granted large tracts of land under the Decree
less interested in developing the land than in using the land as security for loans to be used for
purposes.

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68 Land Reform and Customay Rights in Uganda [2000] J.A.L.

University of Wisconsin Land Tenure Center together with the Makerere Institute
of Social Research.17
If, as the Constitution clearly envisaged, customary owners were to be able
to acquire certificates of ownership, the Land Bill had to lay down procedures for
determining who was a "customary owner" and to set out the legal consequences of
such a person acquiring a certificate of ownership. The adjudication and
registration of individual freehold titles in Kenya had threatened the customary
entitlements of members of the owner's family (particularly those of women and
children) and the question in Uganda was how to strike a balance between
promoting a free market in land on the one hand and protecting customary
rights on the other. The result was a compromise.
The definition of customary tenure contained in section 4(1) recognizes both
individual, family and communal ownership of land, and section 5 accordingly
provides that any person, family or community holding land under customary
tenure may apply for a certificate of customary ownership of that land. The
application is to be determined by the parish Land Committee, a body whose
establishment,18 composition, functions"9 and procedures20 are set out in some
detail in the Act. The Committee's recommendation has to be forwarded to the
District Land Board which has broad powers to confirm, reject or vary it.21
From the Board there is an appeal to the Land Tribunal22 and from the Land
Tribunal to the High Court.23 As in Kenya under the Land Adjudication Act,
the determination and recording of customary land rights, including the settlement
of any disputes that may arise, is entrusted largely to administrative bodies rather
than to the courts. An important difference, though, is the central role given to
"elders" in Kenya (rather appointed officers).24
Of particular interest are the provisions designed to protect those who have
customary rights in the land that do not amount to ownership. Research has
shown that the Kenyan land adjudication programme concentrated solely on
determining which individual should be recorded as the owner of a particular
plot of land (almost invariably the household-head (male)). Little attempt was
made to record and protect the customary rights of women, children and others,
and these were consequently put at risk.25 The Land Act seeks to avoid this by
requiring the Committee to record third-party rights over customary land
(including rights of occupation or use)26 and specifically to "safeguard the interests
and rights in the land ... of women, absent persons, minors and persons with

17 MISR/University of Wisconsin, Land Tenure and Agricultural Development, University of Wisconsin

Land Tenure Center, Madison, 1990. The Study was funded by the World Bank and USAID.
18 S. 65. The Committee consists of a Chairperson and three other members appointed by the
District Council. At least one member must be a woman and at least one must be experienced in
land matters.
19 S. 6.
20 S. 7.
21 S. 8.
22 S. 8(6).
23 S. 88.
24 Interestingly, in Tanzania there has recently been some debate about the recommendation of
the Presidential Commission of Inquiry into Land Matters to give certain responsibilities to a panel
of elders (Baraz a lWazee la Ardhz). See P. McAuslan, op. cit., at 548.
25 See, for example, S. Coldham, "The effect of registration of title upon customary land rights
in Kenya", [1978] J.A.L. 91 and F. Mackenzie, "Gender and land rights in Muranga District,
Kenya", (1990) Journal of Peasant Studies, 17(4), 609.
26 S. 6(l)(e).

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Vol. 44, No. 1 Land Reform and Customary Rights in Uganda 69

or under a disability".27 Where the Committee has recorded the existence of a

third-party right, the certificate of customary ownership will carry a note of such
right.28 The holder of a certificate is given broad powers to deal with the land
(including leasing, mortgaging, selling, subdividing and leaving it by will), but
these powers are subject to any restrictions noted on the certificate.2 A Recorder
is to be appointed for each Sub-county with responsibility for keeping certificates
of customary ownership and records relating to such certificates,30 and any
transaction in respect of the land is ineffective unless registered by the Recorder.31
The scheme is that the Recorder will not register a transaction which ignores
third-party rights.
In addition to introducing a system which provides for the issuing of certificates
of customary ownership of land and for the recording of transactions relating to
such land, the Act also makes provision for the conversion of customary tenure
to freehold tenure, as required by the Constitution.32 The procedure is similar
to the one outlined above and again gives an important role to both the Land
Committee, the Land Board and the Land Tribunal.33 The crucial difference,
of course, is that, if the application is successful, it is the Registrar of Titles who
issues the freehold certificate of title. The land is now subject to the general land
law of Uganda and, in particular, the Registration of Titles Act. However,
although customary law no longer applies, customary third-party rights are to
be protected by the endorsement of the certificate of title with an appropriate
restriction, condition or limitation.34 It is not clear exactly how this is to be done,
but one possibility would be to enter a restriction that no dealing with the land
should be registered without the consent of, say, the spouse, children and parents
of the owner. Such a restriction would, of course, undermine one of the objectives
of land registration, namely, to increase the marketability of land. This is discussed
below.

The Act recognizes that there are areas of the country where the recording
of individual ownership of land (whether customary or freehold) would not be
appropriate, that is, where land is communally owned and managed. The Act
therefore makes provision for the formation of Communal Land Associations
under the overall supervision of the District Land Registrar.35 Where not less
than 60 per cent of the members of a group wish to incorporate themselves as

27 S. 6(1)(g). The original Bill did not set out the functions of the Committee in this detail. It
made no mention of third-party rights and it did not contain the equivalent of section 6(1)(g). Neither
the Bill nor the Act require the matrimonial home to be registered in the joint names of the spouses,
as had been demanded by women's groups.
28 S. 8(3).
29 S. 9(1), (2).
30 S. 69.
31 S. 9(4).
32 S. 10. Section 11 allows any person to apply to be granted land in freehold. The procedure is
the same.
33 S. 13 and 14. The procedure is simplified where the applicant already possesses a certificate
of customary ownership of the land. However, whereas an applicant for such a certificate need only
show that s/he has exercised rights over the land which "should be recognised as ownership of that
land" (s. 6(1)(d)), in an application for freehold title the Committee must consider whether the
applicable customary law "recognises or provides for individual ownership of land" (s. 12(2)). The
difference in wording is presumably intended to be significant, though the significance may well be
ignored by the Land Committees.
34 S. 14(4) and (6)(b), 15(3).
35 S. 16. The original Bill contained a single section providing for communal land-holding; it said
nothing about Communal Land Associations.

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70 Land Reform and Customary Rights in Uganda [2000] J.A.L.

an Association, they must elect 3-9 persons to be the officers of the Association.36
The officers must then prepare a constitution for approval by the majority of
the members37 and, once this is done, they must apply for incorporation as a
"Managing Committee".38 The Committee holds the land and may deal with
the land on behalf of the Association members,39 and it may set aside areas of
land for common use to be managed in accordance with a "common land
management scheme".40 Provision is also made for an individual or family who
is occupying and using a part of the communal land in accordance with customary
law, to apply to have that part excised from the communal land and recorded/
registered in the name of the individual or family head as customary/freehold
owner.41 The carving-up of the communal land into individual farms would, of
course, eventually lead to the dissolution of the Association.

LAND ADMINISTRATION

In addition to introducing major tenurial reforms, the Act, as envisaged by

the Constitution, establishes machinery at various levels for the administration
of land and for the settlement of land disputes, thereby reflecting the importance
that the government attaches to land matters as well as its belief that the
decentralization of authority will promote a democratic culture. A Land Com-
mission is to be set up at the national level which will be responsible, inter alia,
for holding and managing government land.42 Moreover, Land Boards are to
be established at district level.43 They will have various statutory powers and
duties, including an important role to play in the land reform process, as noted
above. Finally, a Land Committee is to be appointed by the District Council
for every parish,44 and it is these committees which will have initial responsibility
for considering applications for certificates of customary ownership as well as
applications for grants of land in freehold and applications to convert customary
tenure to freehold tenure. The success of the land reform programme will depend
in large part on the effective operation of these committees.
The Act further requires a Land Tribunal to be established for each district, to
consist of a Chairperson (qualified to be a Magistrate Grade 1) and two other
persons.45 Such tribunals are to have a very broad jurisdiction over land disputes,46
though in appropriate cases they may advise parties to use the services of traditional

36 S. 17.
37 S. 18.
38 S. 19.
39 S. 20.
40 S. 24(1). The ingredients of such schemes as well as the duties and rights of members in relation
to such schemes are set out in some detail in the Act. The most common type of scheme is likely
to be for the grazing and watering of livestock and such a scheme would be expected to contain
restrictions designed to maintain or increase the carrying capacity of the land. Similar schemes to
preserve the rangelands of Tanzania (under the Range Development and Management Act) and of
Kenya (under the Land (Group Representatives) Act) were not very successful.
41 S. 23.
42 S. 47 and 50. The Act makes provision for the Commission's membership, its meetings and
its powers.
43 S. 57. In addition, section 60(6) requires every District Council to have a District Land Office
containing the offices of the Physical Planner, the Land Officer, the Valuer, the Surveyor and the
Registrar of Titles.
44 S. 65(1).
45 S. 75.
46 S. 77.

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Vol. 44, No. 1 Land Reform and Customary Rights in Uganda 71

authorities or of a Mediator appointed by the Tribunal to assist in the mediation

of the dispute.47 Appeal from the District Land Tribunal lies to the High Court.48

CRITIQUE

The Ugandan land reforms possess a number of interesting and original

features and in many ways constitute a compromise between several competing
considerations. At this stage it is, of course, impossible to predict whether they
will be successful in achieving their objectives, let alone whether they might
provide a useful model for adoption elsewhere in Africa. None the less it is
appropriate to highlight some of these features here.

Compulsory versus voluntary registration

The reform, indeed the upgrading, of customary land tenure lies at the heart
of government land policy. For the first time, those with customary land rights
are to be given security of tenure in the form of a documentary title, whether
customary or freehold. However, unlike what occurred in neighbouring Kenya
where the adjudication and registration of titles was conducted on a systematic
area-by-area basis, in Uganda the Act merely provides a framework within which
an individual or group may apply for a certificate of title. Such an approach
reflects the new orthodoxy which recognizes that the systematic conversion of
titles (a "replacement" strategy) is not only extremely costly but is likely to be
ineffective unless accompanied by other reforms of the rural economy. Where,
as in Uganda, the majority feel secure with customary rights of access to land,
the incremental adaptation of customary land tenure within a suitable institutional
and legal framework may be more appropriate.49 Registration of titles should be
gradual, demand-led and funded (in part, at least) by the applicant.50 The
argument is a persuasive one. Population densities and types of land use vary
considerably within the country, from the extensive rangelands of Karamoja to
the tiny fragmented smallholdings of Kigezi, and demands for enhanced security
of tenure may vary too. A Kenya-style frontal programme would be very
expensive and would require a considerable investment in technical staff such
as surveyors, registrars and other officials. On the other hand, in densely
populated areas affected by land fragmentation it would be wasteful of resources
to leave the adjudication of titles to individual initiative; it would only make
sense for a large area to be surveyed and adjudicated as a whole. Moreover,
where the grant of certificates of title is based on individual applications, there
is always a risk of land-grabbing, that is, that an applicant may lay claim to a
larger area of land than that to which he is customarily entitled. It may be that
a flexible approach, allowing for both systematic and voluntary adjudication and
making use of pilot schemes, is called for.

47 S. 89(2).
48 S. 88.
49 SeeJohn Bruce and others, "Land and natural resource tenure on the Horn of Africa: synthesis
of African trends and issues raised by land tenure country profiles of East Africa countries, 1996",
in Workshop Report on Land Tenure Issues in Natural Resources Management in the Anglophone East Africa with
afocus on the IGAD Region, Addis Ababa, 11-15 March, 1996, unpublished.
50 M. Marquardt, "Access to land and other natural resources: Research and Policy Development
Project Uganda", ibid. He argues that registration should be related to the commercialization of
agriculture and the need to secure investment.

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72 Land Reform and Customary Rights in Uganda [2000] J.A.L.

Parallel registration systems

A novel feature of the Act is that it gives an individual or group the option
of applying either for a certificate of customary ownership or for a freehold title,
and it provides a straightforward procedure for converting the former into the
latter. Given that it is government policy that, in the long term at least, all land
should be held on freehold tenure, the question arises whether it would not have
been more sensible simply to have provided for freehold applications. The
argument for a two-stage process (first register customary titles, then convert
them to freehold titles) would have been stronger if the incidents of the two
types of tenure had been markedly different, but that is not the case. It is true
that the general law applies to freehold land, whereas customary law continues
to apply to land subject to a certificate of customary ownership, yet in two
important aspects the incidents of the two types of tenure are very similar. One
is the basic requirement that dispositions of both types of land should be recorded;
in the case of freehold land they should be registered under the Registration of
Titles Act and in the case of customary land they should be registered by the
Recorder.51 The other is that both customary and freehold titles will be registered
subject to third party rights, usually customary rights of a family nature. The
mechanism for protecting such rights will depend on the form of tenure, but in
either system they will constitute a major restriction on the freedom of the title-
holder (whether customary or freehold) to deal with the land.52

Security of title and transactions

Assuming that the existence of two parallel registration systems (one for
customary titles and one for freehold titles) can be justified, the question still
arises as to whether the registration programme introduced by the Land Act is
likely to achieve its objectives. It is certain that the Act will go a long way
towards clarifying land rights in Uganda and providing security of tenure for
those in occupation of land where previously they were at risk of eviction by
government or by mailo "owners" or by government lessees. However, the grant
of a documentary title to land, particularly a freehold title, is also intended to
promote development by giving the titleholder an incentive to invest in his or
her land and the opportunity to raise credit on the security of the land. In
addition, it is likely to stimulate the market in land and to ensure, the argument
goes, that land is in the hands of those best able to develop it. It was considerations
of this kind that lay behind the land adjudication and registration programme
in Kenya which resulted in the abolition of customary land tenure and the
registration of household-heads as "absolute owners" of their land.53 Moreover,
it was these considerations that informed the recommendations of the University
of Wisconsin Land Tenure Center 1989 report that Uganda should move towards

51 Note, in particular, section 9(4) which provides that no lease, mortgage or sale shall have the
effect of passing any interest in the land unless it is registered by the Recorder.
52 See ss. 9(1) and (2), 15(3), mentioned above.
53 The well-known Swynnerton Plan proposed that "the African farmer... be provided with such
security of tenure through an indefeasible title as will encourage him to invest his labour and profits
into the development of his farm and as will enable him to offer it as security against financial
credits." R. J. M. Swynnerton, A Plan to Intensif the Development of African Agriculture in Kenya, 1954, s.
13.

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Vol. 44, No. 1 Land Reform and Customary Rights in Uganda 73

a land tenure system based on freehold titles free from development conditions.54
Supporting this view, Marquardt claims that research points to the desirability
of moving to open land markets in Uganda and that, rather than causing
landlessness, the move may result in a more equitable distribution of land.55 In
particular, he found that the majority of women landowners had acquired their
land by purchase, leading him to conclude that a functional land market may
be beneficial rather than detrimental to women.56
The government of Uganda has adopted this policy in so far as the Land Act
sets out procedures for the move from customary to freehold tenure and imposes
no development conditions on freehold (or customary) titles.57 However, the
alleged benefits of titling are likely to be undermined by the Act's insistence on
the protection of third-party, essentially customary, land rights. It is, of course,
understandable that the government would yield to pressure to protect the rights
of spouses, children and other household members rather than putting them at
risk, as had occurred in Kenya, by failing to enter them on the register. It is
obvious, though, that the greater the number of rights or restrictions entered
against a person's title, the less negotiable that title becomes. Under the Land
Act the number could be considerable.
Some of the provisions have already been mentioned. The procedure relating
to the issue of certificates of customary ownership clearly envisages that such
certificates should be subject to such restrictions as are necessary to give effect
to customary entitlements (those of women, minors, absentees and persons under
a disability are specifically mentioned) and that an owner's freedom to deal with
the land should be circumscribed by such restrictions. Similarly, where a person
applies for the grant of a freehold title or for the conversion of a customary title
to a freehold title, third-party rights are to be protected on the land register. It
is not clear what form this protection will take. If they are to be substantively
registered, the Registrar will face the difficult task of finding in the general law
an equivalent for a customary right. Alternatively, the Registrar may simply
enter a restriction prohibiting dealings with the land without the consent of
certain named persons. In either case, given the potentially large number of

54 As mentioned above, the government of Uganda embraced the freehold option in the 1995
Constitution. So the question hardly arose in the debates on the Land Bill. It has been argued,
however, that Ugandan farmers do not need freehold titles as long as they have security of tenure.
See Nyangabyaki Bazaara, "Land reforms and agrarian structure in Uganda; retrospect and prospect",
(1995) 34/35 Nomadic Peoples 37. It has also been argued that government attempts (e.g. in Kenya
and Tanzania) to intervene in indigenous land tenure arrangements are generally misguided.
"Governments can best devote their resources to other uses, while standing ready to intervene to
the minimum extent possible ... where some tenure reform is required." T. C. Pinckney and P. K.
Kimuyu, "Land tenure reform in Africa: good, bad or unimportant?", (1994) 3(1) Journal of African
Economies 1 at 26.
55 M. Marquardt, op. cit. At the same workshop Professor Nsibambi also argued in favour of an
open land market. A. R. Nsibambi, "Land tenure relations in Uganda 1900-1995", ibid.
56 Ambreena Manji also argues that women are likely to benefit from individual titling. "In
Tanzania individualisation, registration and titling on the Kenyan model is more likely to be the
means by which the State provides women with land rights." Ambreena Manji, "Gender and the
politics of the land reform process in Tanzania", (1998) 36(4) Journal of Modern African Studies 645 at
666. Government policy in Tanzania has, of course, been based on the premise that marketability
of land increases insecurity of tenure.
57 Contrast policies adopted elsewhere in sub-Saharan Africa, e.g. in Tanzania where development
conditions are attached to granted rights of occupancy and in Zambia where they are attached to
the grant of government leaseholds. The Land Act is not concerned with land use except in relation
to common land.

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74 Land Reform and Customary Rights in Uganda [2000] J.A.L.

customary rights-holders, the marketability of the land will be affected. Indeed,

paradoxically, the Act may make land less marketable than otherwise.
In addition to the provisions discussed in the last paragraph, there are two
other provisions in the Act which are designed to protect certain classes of person
and which impose further limits on the alienability of land, sections 28 and 40.
Section 28 provides that any decision taken in respect of customary land shall
follow customary law, but that if the decision "denies women or children or
persons with disability access to ownership, occupation or use of any land or
imposes conditions which violate articles 33, 34 and 35 of the Constitution on
any ownership, occupation or use of any land", it shall be null and void. While
the drafting of this section is not wholly satisfactory,58 its purpose is fairly clear.
It applies both to land which is the subject of a certificate of customary ownership
(in which case it introduces a further, but unrecorded, limitation on the owner's
powers of disposition), and to land which is not so subject. It would seem to
invalidate any dealing with land currently occupied or used by a woman, child
or person with disability (regardless of consent) since sales, leases, mortgages and
subdivisions would all deny, or at least restrict, access. The invalidation of
conditions imposed in violation of certain Constitutional provisions is similarly
intended to protect women (article 33), children (article 34) and persons with
disabilities (article 35). However, there are differences in the nature of the
protection provided. The protection given to women is directly relevant, since
article 33(4) gives women the right to equal treatment with men and article 33(6)
prohibits customs and traditions "which are against the dignity, welfare or interest
of women". Allocations of land which discriminated against women would thus
be void. However, the protection given to children and people with disabilities
is formulated in more general terms,59 and it is not certain that decisions relating
to land which disadvantaged such persons would be unconstitutional.
Section 40 gives protection specifically to spouses and children of land owners.
It provides that no person shall sell, exchange, pledge, mortgage, lease, give
away or "enter into any other transaction in respect of land" except with the
prior written consent of any spouse or dependent child of majority age residing
on the land. In the case of minor children the consent of the Land Committee
is required. Any transaction entered into without the requisite consent (not to
be unreasonably withheld) is void. Although section 40(7) recognizes that a
spouse or major child may enter a caveat on the certificate of title or certificate
of customary ownership, there is no requirement to do so. Indeed it seems that
the section's protection extends to land which is not the subject of a certificate
of title or ownership.
Although the Act thus contains a number of provisions designed to protect
the interests of those occupying land under customary law, some of these
provisions are not well drafted and the way in which they interlink is a trifle

58 A word like "action" might be better than "decision", though "decision" is apt to include a
determination of the Land Committee, Land Board or Land Tribunal. The expression "access to"
is unclear. The location of the section in the statute, wedged between a series of sections dealing
with Communal Land Associations and a long section dealing with the conversion of leaseholds, is
odd. In the original Land Bill the fore-runner of this section gave no protection to persons with
disability and it omitted the reference to unconstitutional conditions.
59 For example, article 34(7) ("The law shall accord special protection to orphans and other
vulnerable children") and article 35(1) ("Persons with disabilities have a right to respect and human
dignity and the State and society shall take appropriate measures to ensure that they realise their
true potential").

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Vol. 44, No. 1 Land Reform and Customary Rights in Uganda 75

confusing. For example, as noted above, the procedures to be followed after a

person has made an application for a certificate of customary ownership or a
certificate of freehold title require the Land Committee to adjudicate and record
all rights affecting the land (taking particular care to safeguard the position of
women, minors, absentees and those under a disability), and to ensure that such
rights are entered on the certificate. However, the effect of section 28 is to make
these procedures largely redundant as far as certificates of customary ownership
are concerned; a purchaser of customary land will be bound by the rights of
women, children and those under a disability whether these have been entered
on the certificate or not, and regardless of the parties' consent. The effect is that
the marketability of customary land will be severely restricted. Moreover, as if
any further protection was needed, section 40 imposes a consent requirement
for land dealings where a spouse or child is residing on the land. The relationship
between sections 28 and 40 is not entirely clear, but section 40 is likely to be
particularly significant in relation to freehold and mailo land; there will be no
incentive for spouses and children to protect their rights on the register. Again one
of the purposes of the adjudication process is undermined and the marketability of
the land diminished.
Land reform inevitably involves a rearrangement of rights which has winners
and losers, and the extent to which customary rights should be protected has
proved a vexed question in sub-Saharan Africa. In Kenya, as noted above, the
effect of the land registration programme was that male heads of household
would usually be registered as owners of land and little attempt was made to
protect the interests of customary occupants. As customary law had been
abolished, there was little to prevent an owner from evicting them from his land.
Although a system for the control of land transactions was set up, the criteria
governing the grant or refusal of consent to a proposed transaction were primarily
developmental.60 The effect of the reform was to stimulate the land market,
facilitating the accumulation of land by some and increasing the risk oflandlessness
for others. By way of contrast, the recently enacted Land Act of Tanzania (No.
4 of 1999) in many ways continues the "socialist" policies of the 1960s and
1970s. Thus, the Act makes no provision for freehold titles; all land is public
land and the greatest interest that a person can have in land is a right of
occupancy, either a customary right of occupancy or a statutory (or "granted")
right of occupancy.61 Both the grant and disposition of statutory rights of
occupancy remain subject to conditions.62 The Act says little about village land,
where, it is assumed, "customary law" will continue to govern land relations.63

60 However, there is some evidence that land control boards have been concerned to consult the
owner's family where the effect of the transaction would be to leave them with insufficient or no
land. See S. F. R. Coldham, "Land control in Kenya", [1978] J1A.L. 63.
61 During the period of British rule only a very small area of land was held on freehold or
government leasehold titles, and these were converted to statutory rights of occupancy in the 1960s.
When public land was granted, whether to Africans or non-Africans, it was granted on a statutory
right of occupancy for a term and subject to conditions. At independence around 98 per cent of
land was held according to customary tenure on a customary right of occupancy. The general
picture remains the same today.
62 See Part VI generally. The provisions relating to the need to obtain the consent of the
Commissioner for Lands for the disposition of a right of occupancy are complex. Of particular
interest in the present context is section 41(l)(e) which requires the Commissioner to have regard
for the interests of groups at risk such as displaced persons, children and low income persons.
63 Interestingly, the Draft Bill contained a whole Part (60 sections) devoted to the formalization
of land tenure on village lands. It proved too controversial, however, and that Part was omitted
from the final version.

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76 Land Reform and Customary Rights in Uganda [2000] J.A.L.

The Ugandan land policy charts a rather curious course between those of its
East African neighbours. It espouses a move towards freehold titles (like Kenya),
it shies away from an open land market (like Tanzania),64 and (unlike both
Kenya and Tanzania) it rejects the imposition of any administrative consent
requirement.65 While its rejection of a consent requirement was justified, it has
been argued here that, in so far as the registration of titles is intended to increase
the marketability of land, that objective is likely to be undermined by restrictions
protecting customary rights.

Implementation

Just as it was important to have public consultations in the period preceding

the enactment of the Land Act, so it will now be necessary for the government
to launch a campaign to educate the public about the objectives of the Act and
about the ways in which these are to be achieved. Furthermore, it will be
essential to train the cadres who will be responsible for implementing the Act.
In addition to increasing significantly the existing number of surveyors, planners
and registrars, it will be essential to train the members of all the new administrative
bodies (land committees, boards, and tribunals) destined to play a central role
in the process. It will have become clear from the above discussion that the
Act's provisions are detailed and sometimes complex and that their effective
implementation will require a knowledge of both the general law and customary
law. While an extensive recruitment and training exercise will add substantially
to the cost, the land reform programme is already controversial and, if it is
carried out in a way that is insensitive or inept, it will leave behind a legacy of
disputes and bitterness.66

CONCLUSIONS

The Ugandan Land Act is important, not simply because it ushers in a new
era in land relations in Uganda, but because it embodies new ideas on land
reform in Africa, and while it seeks to provide answers to problems that are
specific to Uganda, the nature of its successes and failures will be of general
interest, just as the land reform policies of Kenya and Tanzania have spawned
a vast literature. Although the last few years have seen widespread discussions
of land matters in Uganda and although the Land Bill went through a number
of drafts,67 it would be unrealistic to suggest that the Act represents a consensus.
It is not simply that the Act may be seen as a victory for some groups and a
defeat for others, but there were a number of policy issues on which opinion
would always be divided. The Act has introduced a legal framework governing
land tenure, land administration and the settlement of land disputes. It has

64 Among the fundamental principles of land policy set out in section 3(1) of the Tanzanian Act
are the need both to facilitate the operation of a market in land and to regulate the operation of a
market in land so as to ensure that rural and urban small-holders and pastoralists are not
disadvantaged.
65 For a discussion of the free market approach versus public law regulatory approach see
P. McAuslan, op. cit., at 537ff.
66 One writer has identified corruption as a major source of conflict in land matters in Uganda.
See A. Nsibambi, "The land question and conflict", in K. Rupesinghe (ed.), Conflict Resolution in
Uganda (International Peace Research Institute), Oslo, 1989, at 239.
67 This, as well as the need to ensure enactment by 2 July, 1998, may account for some
unsatisfactory drafting, for the "scissors and paste" feel of a few provisions.

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Vol. 44, No. 1 Land Reform and Customary Rights in Uganda 77

introduced certainty into an area of law for a long time beset by uncertainty
and conflict. Its detailed provisions regarding land tenure and administration
should ensure certainty in the future. It provides security of tenure for customary
occupants of land (both mailo and non-mailo land). It decentralizes land ad-
ministration and establishes specialized land courts. These are all desirable
outcomes. However, doubts have been expressed above about some of the other
reforms, about whether registration of title should be left solely to individual
initiative, about whether there is a need for both customary and freehold titles,
about whether customary restrictions on titles will not adversely affect the
marketability of land, and about whether sufficient has yet been done in terms
of public education and the training of officials for the Act to be capable of
implementation in the near future.

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