Recently, I was invited to speak about land to a group of senior retired public servants many of whom live off the land now. Since it was a mixed group and I was not given a specific topic to talk about, I decided to be neutral and talk about how customary rules can help resolve land disputes and stop the practice of land grabbing.
The scourge of land disputes and land grabbing is on the rise because we have failed to implement the provisions of the Constitution, which recognise customary tenure as one of the four land tenures, the others being freehold, mailo and leasehold.
Secondly, since all land in Uganda is owned by the community through various systems of community and or clan systems, one can easily get a title deed issued by the Ministry of Lands, which covers a customary holding unless the rules of custom are first satisfied.
Thirdly, many land disputes are due to the conflict between customary rules which governed our land systems from time immemorial and statutory titling, which was first introduced in the country in 1900.
Before the arrival of the colonialists, land in the country was owned in trusteeship form whose incidents depended on how a particular region was settled by our ancestors, many of whom originated either from the former Kush empire in northern Sudan and near the Red Sea in what is now Ethiopia or from the Congo basin.
From 800 BC Kushites began to develop a civilisation, which was centred around Meroe near present day Khartoum. This Sudanic civilisation started to decline around AD 200 and its people began to spread out.
Another civilisation which developed around this time was that of the Axum, who were a group of early Ethiopians and lived around the southern shores of the Red Sea. Towards 1500, a group of cattle raising people who were the ancestors of the Luo of today, began to move from the north southward and gave rise to many peoples, including the Alur, Acholi and Jopadhola in northern Uganda. Another group known as Bito moved from the shores of the Red Sea and overthrew the Chwezi empire.
One branch of the Bito established their own Bunyoro Kitara empire and maintained the systems established by the Chwezi rulers while another branch established the Buganda Kingdom.
The Bito were resisted by the Hima rulers in the south west where a line of Hima kings was founded. In each case, the group developed their system of land holding. For example, the Bito found five clans, which had already settled along the shores of Lake Victoria under clan land systems. Around 1650, King Katerega through war, expanded the territory of Buganda into Mawokota, Gomba, Butambala and Singo. Since the clan land system could not apply to the new territories, the land so acquired was vested in the Kabaka as trustee for the entire kingdom. This led to the development of usufruct rights known as ettaka ly’obwami,ettaka lyobusenze and etaka ly’obwesenze, which were recognised under the 1900 Agreement.
However, the introduction of statutory ownership conflicted with usufruct rights. Such conflicts were only resolved when customary rules were enacted into the Busuulu and Envujjo Law of 1927.
In order to stop the current land disputes, we must recognise the importance of custom in our people’s lives. Legislation alone will not stop land disputes.
A statutory title deed issued by the government should only be evidence that the beneficiary of the interest has satisfied local customary requirements for acquisition, disposal and other rights of the area.
Mr Mulira is a lawyer.