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 29th 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.”
