Problem of Asymmetry in Land Conflicts - the Powerful vs. the Poor

DIALOGUE ON LAND RIGHTS AND POLICING IN UGANDA: “Towards Peace and Reconciliation in Land Use and Management” - Land Rights and Policing in Uganda: Practical experiences, challenges and prospects.

Tuesday 29^th November, 2016 – Hotel Africana, Kampala

By Ms. Sarah Bireete

Deputy Executive Director (CCG)

Sarah.bireete@gmail.com

Introduction:

Land conflicts are a widespread phenomenon, and can occur at any time or place. Both need and greed can equally lead to them, and scarcity and increases in land value can make things worse.

A land conflict can be defined as a social fact, in which at least two parties are involved, the roots of which are different interests over the property rights to land. This can be understood as a misuse, restriction or dispute over property rights to land[1]

Scope of land problem:

Land conflicts occur in many forms. There are conflicts between single parties (as for instance boundary conflicts between neighbours), inheritance conflicts between siblings and disputes over the use of a given piece of land. These conflicts are comparably easy to solve. Those that include several parties though - such as group invasions or evictions of entire settlements – are more difficult to deal with. But by far the most complex land conflicts are those that include corrupt land administration and state capture.

There is a problem of asymmetry in land conflicts – the powerful vs. the poor. “Whatever the land law says, the ill-educated poor are usually defeated by the well-connected rich in any legal battle. There are quite a number of orphaned children turned to a relative after their parents died, only to find the relative apparently more interested in their property than in taking care of them

Key issues to note:

Pertinent question:  Why is changing land law being pitched as a quick fix to prevent land grabbing and resolve land disputes?

·         Natural resources. Northern Uganda is considered a potential breadbasket for the country, and its competitive advantage also relies on natural resources such as minerals and petroleum.

·         The Albertine Graben: citizens have been rendered destitute by shabby land compensation practices.

Land Grabbing

Land grabbing, refers to large-scale land acquisitions, mainly, by foreign agribusiness investors, or the extraction industry—that are often preceded by grabbing of the land by government (including local government), the military, government/ military officials, and even clan elites. These grabs are possible when land law is confused or complex; when legal literacy (understanding of legal rights, protections, benefits) of the population is low; and when land administration structures and processes are weak. Land grabbing and the attendant displacement of large numbers of people, often using very brutal means, is developing into a serious national security problem.

The proposed Land Amendment:

On August 1, 2016 the Minister of Lands released a statement that government intended to propose an amendment to the law that would remove the requirement for speedy and adequate compensation prior to acquisition of land for public works. These proposed amendments were announced despite having admitted in 2013 that government has not handled compulsory acquisition responsibly.

 Secondly, the proposed amendments suggest the creation of two subcommittees: the first is to address land evictions (to create a ‘policy framework’) and conduct civic education regarding tenancy with a specific focus on Buganda; and the creation of a government land registry for the purposes of surveying the land and demarcation.

And finally, government seeks to make an amendment to Article 26 of the 1995 Constitution to add a third clause related to compensation. Article 26 of the 1995 Constitution states that “no person shall be compulsorily deprived of property or any interest in or right over property of any description except where the following conditions are satisfied—(1) the taking of possession or acquisition is necessary for public use or in the interest of defense, public safety, public order, public morality or public health; and (2) the compulsory taking of possession or acquisition of property is made under a law which makes provision for (i)prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property.”

As ascertained above, the proposed land amendments indicate that the changes to the law would allow the regime to take land prior to compensation.

These proposed changes are unconstitutional, and this explains why government intends to add a vaguely worded clause to the Constitution which would allow a government land appraiser to ‘deposit’ money on account should there be a dispute over the amount to be compensated, pending a resolution of the courts. This is contrary to the recent Supreme Court decision – Uganda National Roads Authority Vs. Irumba Asumani & Peter Mageleh, (Supreme Court Constitutional Appeal No.2 of 2014), which determined that the Land Acquisition Act (Cap 226) is unconstitutional as it provided for the compulsory acquisition of property before the payment of compensation of the owner. The Supreme Court determined that the act of the National Roads Authority was inconsistent with Article 26 Clause 2.

Problem of Forced Evictions in Uganda

Forced eviction is both an urban and a rural problem in Uganda, and is carried out by both government agencies and private owners.

Examples of forced mass include: the eviction and demolition of about 120 homes in the Kisenyi area of Kampala, during which agents of the land owner, a former Kampala mayor, distributed what appeared to be forged eviction notices bearing the name of the City Council.

That eviction was carried out by Uganda Railways Corporation (URC) and Kampala City Council Authority (KCCA) to make way for a new railway line to connect Uganda, Kenya and Rwanda. It was a typical eviction in Banda slum, home to an informal settlement of around 1.3 million people. Residents lost everything: clothing, furniture, and the roofs over their heads.

In the Kayunga District, about 200 kilometers northwest of Kampala, more than 17,000 people were evicted from their farms when the landlord sold his land to a Kampala businessman.

Both government and private evictions often fly in the face of the law. For example, in February 2008, ten days after the murder of a Belgian tourist at the Mt. Elgon National Park allegedly carried out by cattle thieves, the Uganda Wildlife Authority (UWA) evicted more than 4,000 people from communities indigenous to the Mt. Elgon area. The UWA acted with the assistance of the Uganda People’s Defense Forces, and justified its action as “humanely” addressing “encroachment in the park.” The eviction, however, directly contradicted an October 2005 decision by the Uganda High Court in Mbale, which ruled that the Benet were the “historical and indigenous inhabitants” of the park and should be allowed to “carry out agricultural activities.”

In the face of such impunity, it is unclear how legislative reform alone could be expected to significantly protect tenants against forced eviction. The proposed land amendments increase the skepticism.

Effectiveness of Land Policy in Curbing Illegal Land Evictions in Uganda

According to a 2014 study carried out with Slum Development International (SDI), 85 percent of slum-dwellers around the world live in constant fear of their homes being demolished amid a wave of private sector development and infrastructure upgrades by the government. "The slum-dwellers in Kampala, who form around 70 percent of the city's residents, are faced with the threat of eviction because they dwell on land that does not belong to them."

In August 2001, the government of Uganda brutally evicted approximately 2041 persons from their land in Mubende District in Central Uganda. The land was given to a German coffee company, Neumann Kaffee Gruppe (NKG), under its local subsidiary, which evicted people and used the land to establish the first large-scale coffee plantation in Uganda. The legal action to reclaim their land and properties is being continuously obstructed and delayed. It’s now 15 years without remedy. Despite more than a decade of mobilization and legal struggle, Mubende evictees have not yet seen justice and continue to suffer the collateral consequences of this brutal act.

Oxfam says that between 2006 and 2010, more than 22,000 people were evicted in the Kiboga and Mubende districts of central Uganda as part of a “land grab” by the New Forests Company.

In Amuru, women defended their land with their nakedness. Elederly women strippled naked in protest against grabbing of their land last year. 

Women land rights and security of tenure (Them being the affected vulnerable group)

Even though women are the main agricultural producers in Uganda, only few of them enjoy secure rights to the land they till as control of land is mainly concentrated in the hands of men[2]. Despite the government deliberate efforts to redress gender based inequalities in land access and ownership abuse of women’s land rights is still common, especially in the rural areas where women are frequently dispossessed of their land by members of their own families.

Although Ugandan women have significant land rights under both formal and customary law, they are often unable to implement or enforce their rights.

More than 80% of land in Uganda is held under undocumented customary tenure systems. About 23% of all households in Uganda are headed by women, many of them widowed or divorced. In Uganda, women grow 70-80% of the food crops, yet they own less than 8% of the land. Formal law in Uganda recognizes property rights for women and outlaws discrimination. The Constitution of 1995 forbids discrimination against women.

Article 237(1) of the 1995 Constitution which vests the radical title to all land in Uganda in the citizens of Uganda and proposes a reduction of the period non-citizens can acquire interest in land under leasehold tenure from 99 years provided for under the Land Act to not more than 49 years with the option to renew. It guarantees the rights of ethnic minorities, pastoralists, women and children and other vulnerable groups including those infected and affected by HIV/AIDS, the terminally ill, persons with disabilities, the elderly and internally displaced communities. Under the policy, government retains the power of compulsory acquisition of land in public interest. However, it recommends amendment of the Land Act and Land Acquisition Act to clarify the roles and responsibilities of different actors in the exercise of this power and provide guidelines and procedures for prompt, adequate and fair compensation by local governments. The policy is packed with broad strategies ranging from formulation of policies and guidelines to conducting studies on land matters.

Solutions to the bad land conflicts include arbitration and adjudication. Arbitration can be carried out by different institutions. Solutions to land conflicts include arbitration and adjucation. Special land courts or land tribunals could apply the method of arbitration, for instance. Adjudication should be reserved for violent and major criminal land conflicts such as violent evictions, destruction of another’s property, land grabbing, or expropriation through unethical behavior by banks (e.g. forcing loans with extremely high interest rates on people while undervaluing their property etc.) which require punishment.

Negative impact of bad land policing:

Land conflicts often have extensive negative effects on economic, social, spatial and ecological development. This is especially true in developing countries and countries in transition, where land market institutions are weak, opportunities for economic gain by illegal action are widespread and many poor people lack access to land. Land conflicts can have disastrous effects on individuals as well as on groups and even entire nations. Many conflicts that are perceived to be clashes between different cultures are actually conflicts over land and related natural resources e.g. the part of Kasese conflict.

Negative impact includes homelessness, loss of lives, loss of livelihood (famine, hunger and starvation), etc.

Challenges

• -         State house land unit
• -         Land proposed amendments (state land grabbing)
• -         Land grabbing by UPDF officers
• -         Connivance with lawyers
• -         Unprofessional police
• -         Corrupt judicial system
• -         Rich mafia networks

Prospects

• -         Computerization of land titles
• -         Police land protection unit
• -         Land policy 2013

Conclusion

The current situation of land in Uganda is summarized by the words John Steinbeck wrote in his Prize-winning novel The Grapes of Wrath, published in 1939: “And the great owners, who must lose their land in an upheaval, the great owners with access to history, with eyes to read history and to know the great fact: when property accumulates in too few hands it is taken away. And that companion fact: when a majority of the people are hungry and cold they will take by force what they need. And the little screaming fact that sounds through all history: repression works only to strengthen and knit the repressed. The great owners ignored the three cries of history. The land fell into fewer hands, the number of the dispossessed increased, and every effort of the great owners was directed at repression. The money was spent for arms, for gas to protect the great holdings, and spies were sent to catch the murmuring of revolt so that it might be stamped out. The changing economy was ignored, plans for the change ignored; and only means to destroy revolt were considered, while the causes of revolt went on.”

---

[1] (Wehrmann 2005)

[2] Women’s Land Rights and Tenure Security in Uganda: Experiences from Mbale, Apac and Ntungamo1- Barbara Garber 

WHOSE POWER DO THE LEADERS EXERCISE IN UGANDA AND WHY?

WHOSE POWER DO THE LEADERS EXERCISE IN UGANDA AND WHY?

By Sarah Bireete

Democracy is popularly defined as the government of the people, for the people and by the people. This simply means rule of the majority i.e. "a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation.

One theory holds that democracy requires three fundamental principles: (1) upward control, i.e. sovereignty residing at the lowest levels of authority, (2) political equality, and (3) social norms by which individuals and institutions only consider acceptable acts that reflect the first two principles of upward control and political equality.

The term "democracy" is sometimes used as shorthand for liberal democracy, which is a variant of representative democracy that may include elements such as political pluralism; equality before the law; the right to petition elected officials for redress of grievances; due process; civil liberties; human rights; and elements of civil society outside the government.

In any democracy, government authority flows from the people and is based upon their consent. This is also enshrined in Article 1 of the 1995 Constitution of Uganda as amended (Sovereignty of the People)

Democracy is a system of government in which a country’s political leaders are chosen by the people in regular, free, and fair elections. In a democracy, people have a choice between different candidates and parties who want the power to govern.  The people can criticize and replace their elected leaders and representatives if they do not perform well.  The people are sovereign—they are the highest authority—and government is based on the will of the people.  Elected representatives at the national and local levels must listen to the people and be responsive to their needs. 

What is the Role of the Citizen in a Democracy?

Citizens participate in public affairs, with respect for different points of view.

           

The key role of citizens in a democracy is participation. This takes many forms.  Citizens have an obligation to become informed about public issues, to monitor the conduct of their leaders and representatives, and to express their own opinions.  Participation also involves voting in elections, debating issues, attending community meetings, becoming involved in private, voluntary organizations, and even protesting.  However, political participation in a democracy must be peaceful, respectful of the law, and tolerant of the different views of other groups and individuals.

Thus, in any democracy, political freedom lies at the heart of the concept of democracy. ... the legislation, legal decisions, and acts of government officials do not violate basic rights #Liberties

The quality of democracy and involvement of the people can be determined using:

(i) The three principles of democracy which are: Freedom, control and equality

(ii) Individual liberties including right to physical liberty and right to free conduct of life

(iii) Rule of law including equality before the law and quality of legal system
(iv) Freedom to associate and freedom of opinion
(v) Vulnerability and contestability during political competitions?
(vi) Horizontal and vertical checks of the three powers
(vii) Government capability i.e. resources versus efficient implementation
(viii) Transparency i.e. no secrecy and transparent political processes
(ix) Equality of participation and effective participation
(x) Representation - is it substantive representation or descriptive representation?
In view of the foregoing, what’s the behavior and character if Ugandans and how does the same impact on our democracy? Do we have representative democracy in its true sense?

The People 

What are our power relations and does public opinion matter at all? A clear example of this is the recent private prosecution of Uganda’s IGP about police brutality – How does the state treat its people and does it matter what the people think?

If not, then whose power do the leaders exercise in Uganda and why?