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Uganda's Land Tenure Systems

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Uganda's Land Tenure Systems

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Peter Ssenyondo
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© © All Rights Reserved
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MAKERERE LAW JOURNAL OCTOBER 2022

Volume 51 Issue 12

UGANDA’S LAND TENURE SYSTEMS AND THEIR IMPACT ON DEVELOPMENT

Nampwera Chrispus

Recommended Citation: Nampwera Chrispus (2022); “Uganda’s Land Tenure Systems and Their Impact on
Development” Volume 51 Issue 12, Makerere Law Journal, pp. 1- 29.
Volume 51 Issue 12

UGANDA’S LAND TENURE SYSTEMS AND THEIR IMPACT ON


DEVELOPMENT

Nampwera Chrispus*

ABSTRACT

The article explores the historical, legal, institutional and


enforcement structure of Uganda’s existing land tenure
systems, criticizing their relative impact on economic
development, and emphasizing the quintessential role of an
effective and efficient tenure system. Improvement of the
current system is both directly and indirectly proportional
to development. Further traversed are critical economic
issues such as credibility of land from various frameworks,
which develop into a rich blend of perspectives on the
overall impact of the system on development in Uganda. As
a major factor of production and a carrier of economic
activities, the land resource in Uganda is an indispensable
factor in economic development, and, being a prerequisite
for both human and economic activities, its governance is
therefore essential for development and growth.

1.0 INTRODUCTION
According to the Food and Agriculture Organisation, land tenure is the
relationship, whether legally or customarily defined, among people as
individuals or groups concerning land. Land tenure as an institution refers to
rules invented by societies to regulate behaviour which define how property
rights to land are to be allocated within societies. They also define how access
is granted to rights of use, control, and transfer of land, as well as associated
responsibilities and restraints. In simple terms, land tenure systems

* LLB. MAK (Hons), PGD (Law Development Centre) Email- <[email protected]>

1
Uganda’s Land Tenure Systems and Their Impact on Development

determine who can use what resources, for how long and under what
conditions.1

There was no umbrella land tenure system for Uganda in the pre-colonial era,
because of the varying practices of customary tenure that differed from one
ethnic group to another.2 In Buganda for instance, the rights of clans over
land were comprised of ancestral grounds and not alienable to strangers,
while the Kabaka held a paramount title to all land in Buganda. Scholarly
researchers have however indicated that whatever the differences, none of the
communities in Uganda recognized individual ownership of land.3

The individual only had the right to utilize the land as he/she thought best.
He could rent it out, pledge crops on the land (but not the land itself), sell
land subject to the approval of the family, dispose of the land according to the
customary laws of inheritance and dispose of trees growing on the land,
among others.

However, when the British came to Uganda, they introduced a new


landholding system that altered the way land was held. They introduced three
more types of land ownership; mailo, freehold, and leasehold.4 Margaret
Rugadya has noted that the colonial administration thought customary land
holding was not a good system of land rights ownership. When signing the
agreement, she thought that they would be able to introduce freehold as a
unified system of landholding in Uganda, as it was in Britain at that time.5

The 1995 Constitution of Uganda and the Land Act then introduced a land
regime, which not only recognized everyone’s right to own land, but also
provided for tenures as means of land ownership. The Uganda National Land
Policy was also adopted, which recognizes the role of land in development and
its ability to transform the Ugandan peasant society into a modern,

1 Lilian Mono W Oryema; Changing Face of Land Tenure in Uganda: Period before 1900
to date. <https://www.researchgate.net/publication/307631527> Accessed 4
February 2022
2 Margaret Rugadya; Land use and villagisation 1999 land reform: the Ugandan
experience
3 supra note 1
4 ibid.
5 supra note 2
Volume 51 Issue 12

industrialized, and urbanized society through poverty reduction, wealth


creation, and socio-economic transformation. This has however been
hindered by issues like the existence of multiple interests over the same land,
evictions, fraud, and ineffective dispute resolution mechanisms.

Secure property rights are important. They give confidence to individuals and
businesses to invest in land, enable borrowing using land as collateral, enable
governments to collect taxes, are essential for urban development and are
crucial for private sector development.

This article discusses the origins and incidents of the four land tenure
systems in Uganda, their continued impediment on development that would
otherwise be through investments, agricultural production and productivity,
access to credit, empowering women among others. The paper also discusses
the current land regime, makes recommendations regarding secure tenure
and then the conclusion.

2.0 LAND TENURE SYSTEMS IN UGANDA


The Constitution of Uganda is to the effect that land in Uganda belongs to the
citizens of Uganda, and shall vest in them in accordance with the land tenure
systems provided for in the Constitution.6 It provides for four land tenure
systems, which are customary, freehold, mailo, and leasehold.7 The four
tenures are reiterated in the Land Act, together with their respective
incidents.8

The Ministry of Lands, Housing and Urban Development, claims that 68.6
percent of all households are on customary land, 18.6 percent on freehold,
9.2 percent on mailo and 3.6 percent on leasehold.9

2.1 Mailo Land Tenure System


This resulted from allotments made out of the 1900 Buganda Agreement. The
system entails the holding of registered land in perpetuity and roots in the

6 Article 237(1)
7 Article 237(3)
8 Section 3 of the Land Act Cap 227
9 A 2010 statistical abstract from the Ministry basing itself on the 2002 Uganda
Population and Housing Census Analytical Report

3
Uganda’s Land Tenure Systems and Their Impact on Development

allotment of land pursuant to the 1900 Uganda Agreement between Buganda


and the British.10 Under the agreement, the total land of Buganda was divided
amongst the Kabaka and other notables in the protectorate including the
royal family, high-ranking officials, chiefs and other private notables.11

Peasants or cultivators previously settled on the land were however not


recognized, at least until they rioted in 1927 and the Busuulu and Envujju
Laws were enacted. Its incidents include the holding of registered land in
perpetuity and permitting the separation of ownership of land from the
ownership of developments on land made by a lawful or bona fide occupant.
It also enables the holder, subject to the customary and statutory rights of
those persons lawful or bona fide in occupation of the land at the time that
the tenure was created and their successors in title, to exercise all the powers
of ownership of the owner of land held of a freehold title.12

2.2 Freehold Tenure System


This tenure grants absolute right of ownership, which is the greatest interest
in land for an indefinite period of time.13 In Uganda, this was first introduced
in the Kingdoms of Toro and Ankole by agreements with the British and
tenancy terms between the tenants on this land. In the same spirit, the British
also issued adjudicated freeholds to some people and religious institutions
under the Crown Ordinance of 1803.14 The Land Act is to the effect that
freehold involves the holding of registered land in perpetuity or for a period
less than perpetuity which maybe fixed by a condition, and enables the holder
to exercise, subject to the law, full powers of ownership of land.15

2.3 Leasehold Tenure System


This was born out of the Crown Lands Declaration Ordinance 1922, where all
customary land outside Buganda was declared crown land, and, leasehold

10 supra note 1
11 Article 15 of the Agreement
12 Section 3(4) of the Land Act.
13 Section 3(2) of the Land Act.
14 Section 24(4) of the Ordinance
15 supra Note 11
Volume 51 Issue 12

titles would be granted out of that land.16 Leasehold has since independence
in 1962, been granted from public land vested in the government (the state).
It is a tenure system which makes access to land on contract possible.17 The
above individualization of ownership of the land changed the focus of land
use in Uganda from communal grazing and farming, into a means of
supporting the industrial revolution in Europe and America, and it was the
case, at least until the enactment of the Public Land Act 1969.

Justice Mubiru has noted that under section 11 (1) (a) of the 1962 Act, all
"Public Land" (land that had not been demised by way of lease under the
provisions of The Crown Lands Ordinance, 1903), was vested in the Uganda
Land Commission.18

Then came the 1975 Land Reform Decree which vested all land in Uganda in
the state in trust for the people to facilitate its use for economic and social
development. It also declared all land in Uganda public land to be
administered by the Uganda Land Commission, and abolished freehold
interests in the land, except those where this interest was vested in the State
through the Commission. In addition, all mailo ownership, which existed
immediately before the enactment of the decree, was converted into leasehold
for 199 years for public bodies and 99 years for individuals.19

Leasehold tenure is either created by contract or by operation of law and the


terms and conditions may be regulated by law to the exclusion of any
contractual agreement reached between the parties. It also includes a
landlord or lessor, granting or deemed to have granted another person, a
tenant or lessee, exclusive possession of land usually but not necessarily for
a period defined, directly or indirectly, by reference to a specific date of
commencement, and usually but not necessarily in return for a rent.20

16 A Fit-for-Purpose Approach to Register Customary Land Rights in Uganda Hans-Gerd


Becker, Uganda
17 Land Tenure and Economic Activities in Uganda: A Literature Review. DIIS Working
Paper 2012:13. Section 3(5) of the Land Act
18 Atunya v Okeny HCCA No. 51/2017
19 supra note 1. Section 3 of the and Reform Law Decree.
20 Section 3(5) of the Land Act

5
Uganda’s Land Tenure Systems and Their Impact on Development

2.4 Customary Tenure System


This is a system of land ownership based on customary rules formed from
norms and cultures of clans, families or communities of which these rules are
applicable to. Customary land tenure is wide spread throughout the country
and covers more than half of the country (MoLHUD, 2010). Rights to control,
use and ownership of customary land are derived from being a member of a
clan, family, tribe or a given community.21

It is estimated that approximately 70 percent of all available land in Uganda


is administered as customary land.22 In the past, the recognition of customary
land rights was only marginally important and also undermined by civil
conflicts, demographic and socio-cultural changes. The passing of the 1975
Land Reform Decree, for instance, altered the fundamental legal status of
tenants by abolishing the Busuulu and Envujju Laws of 1927, the Ankole
Landlord and Tenant Law, and the Toro landlord and Tenant law of 1937.

Customary tenants on public land therefore became tenants at sufferance,


had no transferable interest on land, and developments on land could only be
transferred after giving notice of three months to the controlling Authority.23
According to Mugambwa, the implementation of the Decree was not possible
because there was the difficulty of identifying on a national or even regional
level appropriate development conditions to suit all manner of land and
circumstances.

For example, it was impossible to specify the percentage of land that had to
be cultivated in a particular period or crops to be planted because there were
many variables such as the ecology of the land, weather patterns, and value

21 Section 3(1) of the Land Act


22 supra note 15
23 John Mugambwa; A Comparative Analysis of Land Tenure law reform in Uganda and
Papua New Guinea. Journal of South Pacific Law (2007) 11 (1). Also, the term “tenant
at sufferance” refers to a person who initially entered in possession with the consent of
the landowner, and remains in possession, after the period for which the consent was
given expires, without the consent or dissent of the landowner (Butterworths Australian
Property Law Dictionary (1997)).
Volume 51 Issue 12

of the land. Moreover, the cost of enforcing the conditions was likely to be
disproportionate to the benefit.24

The other main criticism of the Decree was that it rendered the status of
customary tenants vulnerable and caused panic throughout the country with
landowners fearing losing their land to the rich and well connected people.
This made the Decree’s implementation partial, because it was politically
unpalatable.25

With all free land converted into leaseholds, there was no tenure security, and
evictions from land became rampant. Customary occupants could be evicted
at any time, despite the condition of payment of compensation prior, as the
decree empowered the government to lease any land occupied by customary
tenants to any person (including the occupants) without the consent of the
occupants. According to Mugambwa, during its existence, government
activities were almost at a standstill and it was not until the mid-1980s when
relative peace was reinstated and indeed, the government declared land
tenure reform one of its major policy initiatives.26

This was the case until 1995 when Uganda created a legal framework for the
registration and recognition of the prevailing customary land tenure.
Legislation and policies have also since been put in place promoting official
land titles and modernizing land law for customary ownership and land
governance.27

3.0 CURRENT TENURE REGIME.


The current land regime is majorly governed by the 1995 Constitution and
the Land Act Cap 227. The two collectively abolished the alluvial or radical
title to land in Uganda that had been introduced by the 1975 Reform Decree.

The present principal constitutional provisions vest land in the citizens of


Uganda, recognize and protect private property rights and recognize

24 ibid
25 ibid
26 Supra Note 23
27 supra Note 14

7
Uganda’s Land Tenure Systems and Their Impact on Development

customary, mailo, leasehold, and freehold land tenures. Leasehold and


customary tenures have to be converted to freehold to guarantee the security
of lawful and bona fide occupants. On the latter, the Land Act espouses
provisions on the security of tenure of all land users, especially regarding the
relationship between registered landowners as well as lawful and bona fide
occupants.28

The current land laws’ primary objective is to operationalise the land reforms
in the 1995 Constitution, the latter having brought about fundamental
reforms in ownership, tenure management and control of land in Uganda. At
the forefront is Article 237 of the Constitution, which provides that land shall
belong to the citizens of Uganda and shall vest in them in accordance with
the four tenure systems. This provision is reiterated in section 3 of the Land
Act. This position totally reverses the old system where land was vested in the
state. The state no longer controls ownership of land in Uganda.29

The current land regime also recognises people’s right to hold communal land,
form themselves into a communal land association, form a common land
management scheme by which the members agree to manage the communal
land and to set out their rights and duties. Under the Land Act, any person,
family or community holding land under customary tenure on former public
land may acquire a certificate of customary ownership in respect of that land
in accordance with this Act.30

The regime also provides protection of family land by requiring spousal


consent before any transaction on such a land can take place and makes void
any customary provisions or practices that may deny women and children
their land rights, thereby ensuring that the rights of these vulnerable groups
are protected.31

At the start of the reform process, it was stated that the most appropriate
goals for tenure reform in Uganda were that the land tenure law and practice

28 Sections 29 and 30 of the Land Act


29 supra note 2
30 Sections 4,5,6,7 and 8 of the Land Act
31 Section 38A and 39 of the Land Act.
Volume 51 Issue 12

contribute to the economic and social development of agriculture. The tenure


had to protect the land rights of farmers with no alternative source of income
and contribute to the evolution of a uniform, efficient and equitable tenure
system for the nation. Whether or not the current reform will achieve these
expected results still remains to be seen.32

4.0 LAND AND DEVELOPMENT.


Here, I interrogate the link between land and development, examining how
secure tenure contributes to development. To understand development in this
context, reference is made to the Land Policy 2013, whose objective was to
transform Uganda’s society through the optimal use of land resources into a
prosperous and industrialized economy. Its goal was to ensure efficient,
equitable and optimal utilization and management of land resources for
poverty eradication, wealth creation and socio-economic development.

In agrarian societies, land is not only a means of generating a livelihood, but


is also a means of accumulating wealth. In Uganda, it is a basic source of
food, employment, a key agricultural input, and a major determinant of access
to other production resources. The nature of land tenure therefore has
profound implications for the development process of nations.33

The Land Act, which provides for land reform, therefore has far reaching
implications on development, as it aims to do this through functioning land
markets, establishing security of tenure, and ensuring sustainable utilization
of land to bring about development.34 These aspects will be discussed herein
below. Because land is important for both human and economic
activities, land governance is essential for development and growth.

Sustainable land governance is strongly and closely linked to economic


development. As the carrier of economic activities, the land resource is an
indispensable production factor of economic development. It is also the

32 supra note 2
33 John Anthony Okuku; The Land Act (1998) and land tenure reform in Uganda. Africa
Development, Vol. XXXI No.1 2006 pp 1-26.
34 ibid

9
Uganda’s Land Tenure Systems and Their Impact on Development

ultimate resource, for, without it, life on earth cannot be sustained.35 It is a


basic element to every country, since all activities of man take place in it.36

A nation’s economic wealth is directly related to the richness of its natural


resources.37 This is so because land determines agricultural production, the
industrial progress and prosperity of a country, its total production,
influences its economic growth, maintains ecological balance, directly or
indirectly fulfills the basic needs of the people, and influences trade, among
others.38 All primary occupations like agriculture, animal husbandry, poultry
farming, fisheries, dairying, and forestry among others are land-oriented.39

Land tenure, meanwhile, determines who can use land, for what and how
long, and under what conditions. Tenure arrangements may be based both
official laws and policies and on informal customs. If those arrangements are
secure, users of land have an incentive to not just implement best practices
for their use of it, but also, to invest more.40

Secure property rights and efficient land registration institutions are therefore
a cornerstone of any modern economy.41 They give confidence to individuals
and businesses to invest in land, allow private companies to borrow using
land as collateral and expand job opportunities. They enable governments to
collect property taxes necessary to finance the provision of infrastructure and
services to citizens.42

With land at the heart of development therefore, secure land tenure is vital to
building inclusive, resilient, and sustainable communities that will propel
economic and social progress well into the future. The National Land Policy
2013 recognizes the role of land in development and its ability to transform

35 The United Nations Economic Commission for Europe, 1996


36 supra note 1
37 Land in Economics: Notes, Characteristics, Functions, Importance and Productivity. at
<https://www.economicsdiscussion.net> Accessed 13 December 2021
38 ibid
39 supra note 34
39 ibid
40 supra note 14
41 <https://blogs.worldbank.org/voices/7-> Accessed 5 December 2021
42 supra note 14
Volume 51 Issue 12

the Ugandan peasant society into a modern, industrialized, and urbanized


society.

The policy is to the effect that this can be done through poverty reduction,
wealth creation, and socio-economic transformation. This has however been
hindered by the existence of multiple interests over the same land, tribal land
disputes, evictions, land grabbing, fraud, undue utilization, land
fragmentation, environmental degradation, and ineffective dispute resolution
mechanisms among others.43

Note that commercial dealings and population growth has intensified demand
for formal recognition of land claims especially those transacted through
market mechanisms, for example, tenancies purchased in urban areas or for
land purchased in rural areas.44 There is also evidence that tenure insecurity
does have an impact on land use. For instance, compared with weak or
insufficient property rights, tenure security increases credit use through
greater incentives for investment, improved creditworthiness of projects, and
enhanced collateral value of land.

It increases land transactions, facilitating land transfers from less efficient to


more efficient users by increasing the certainty of contracts and lowering
enforcement costs, reduces the incidence of land disputes through clearer
definition and protection of rights, and raises productivity through increased
agricultural investment.45 It is therefore apparent that land tenure impacts
investment, credit availability, poverty rates, land values, and agricultural
productivity, which are all linked to economic performance.

When land tenure and property rights are secure, individuals can make
investments, secure credit, sell land, and make longer-term decisions about
agricultural practices. On the other hand, in developing countries (like

43 Land reform: A source unending conflict in Uganda. Uganda sustainability Bulletin, A


Publication of Uganda Coalition for Sustainable Development
44 Leatherdale and Palmer, 1999
45 Michael Roth and Dwight Haase; Land Tenure Security and Agricultural Performance
in Southern Africa. June 1998

11
Uganda’s Land Tenure Systems and Their Impact on Development

Uganda) where land tenure is insecure, people lack opportunities to invest in


or profit from the land, and their transactions are not protected by the State.46
Below, the author discusses how secure tenure encourages or can encourage
development by improving agricultural productivity, encouraging investments
among others.

4.1 Economic Growth.


The is an argument underpinning the theory on the formalization of land
rights is that land can contribute to investment and increased productivity
through several interrelated mechanisms. That security of tenure conferred
by formal rights can make people more willing to invest in their land enabling
them to access credit and also facilitate and even encourage transfers of land
through land markets. Land can therefore have an impact on economic
growth through agricultural productivity, and through its use as collateral for
credit, through investments in land and non-land enterprises and through
land markets.47

In rural areas, secure land tenure could lead to economic growth by allowing
farmers to invest in better seeds or tools, see returns on those investments,
making it easier to gain credit to finance investments in agriculture or other
entrepreneurial activity. It may also free farmers to choose whether they want
to use their land for agriculture, or lease it to someone else and pursue an
alternate livelihood. This attracts the external investment necessary for
broad-based economic growth.

In addition to the above, when governments seek to stimulate economic


growth through foreign investment in large land areas, the lack of secure
tenure presents a problem for the existing individuals or community holders
who occupy that land but are unrecognized as rightful holders of property.
These people are at risk of displacement and being denied fair, prompt, and
adequate compensation for resources and livelihoods lost, which affects their
investment in the land, agricultural productivity, and the land market.

46 Economic Growth Depends on Secure Land Tenure. at <https://www.land-links.org>


Accessed 14 December 2021
47 Platteau, J.-P. 2000.
Volume 51 Issue 12

In recognition of this, the United States Agency for International Development


supports the United Nations-negotiated Voluntary Guidelines on the
Responsible Governance of Tenure of Land, Fisheries and Forests in the
Context of National Food Security and forthcoming Principles for Responsible
Agricultural Investment. This is aimed at improving the security of property
rights for all, facilitating the development of more economic opportunities for
small, medium and large-scale producers, and contributing to food security
and economic growth.

From the foregoing, it is clear secure tenure will stimulate economic growth
and development through increased agricultural productivity, investments
and a more competitive and rewarding land market.

4.2 Access to Credit


Finance/credit has been recognised as an important driver of economic
growth (Claessens 2006). Access to financial services can be defined as broad
financial inclusion or broad access to financial services in a specified
location.48 Several theoretical arguments are commonly advanced concerning
the links between land ownership, land markets, security, and production
incentives.49

It is argued that the presence of an efficient land market results in a more


efficient allocation of land between producers which stimulates production.
Secure land rights stimulate the credit market through the use of land as
collateral, and, security of land rights is linked to increased incentives to
invest in land and land-based production.50

Availability of credit in Uganda has tended to be relatively narrow, and uptake


among rural households is not high. The formal credit system operates based
on land as collateral, with a preference for urban and titled land that is more
easily disposed of in cases of default. While financial services in Uganda have
developed, the majority of smallholders “do not or cannot access the services

48 ibid
49 Ibid
50 Institutions, Social Norms and Economic Development, Jean Philipe Platteau, 2000.

13
Uganda’s Land Tenure Systems and Their Impact on Development

they need to compete in the market and to improve their livelihoods.”51


Therefore, with majority of the land in the country untitled, coupled with
insecure tenure, access to credit is limited, as the land cannot then act as
security, thwarting attempts to invest in the land that would otherwise, lead
to development.52

4.3 Agriculture
Secure land rights are an important pillar in agriculture.53 Agriculture is the
backbone of Uganda’s economy and the most important source of income and
livelihood for the predominantly rural Ugandan population. In just 2020,
agriculture contributed around 23.93 percent to Uganda’s Gross Domestic
Product,54 while according to the International Trade Administration, in the
fiscal year 2020/2021, agriculture accounted for 31 percent of Uganda’s total
export earnings.

According to the International Labor Organization, employment in agriculture


in Uganda was reported at 72.44 percent in 2020,55 though the Uganda
Bureau of Statistics puts the figure at 70 percent of Uganda’s total working
population.56

However, the International Trade Administration reports that Uganda’s


Agriculture sector growth is impaired by among others; a shortage of
agricultural credit, the lack of all-weather feeder roads in rural areas, a
complicated and inefficient land tenure system. Moreover, because of the
significance of agriculture to rural livelihoods, the land is the most important
asset for many Ugandan households,57 with the average land holdings
estimated at 2.2 hectares per household. Still there are inter and intra-

51 MAAIF 2010: 39
52 supra note 15.
53 <https://twitter.com/intent/tweet?text> Accessed 13 December 2021.
54 <https://www.statista.com Accessed 13 December 2021.
55 <https://tradingeconomics.com.> Accessed 11th December 2021
56 <https://www.trade.gov/country-commercial-guides/uganda-agricultural-sector.>
Accessed 16 December 2021.
57 Agriculture: A Driver of growth and poverty reduction. The World Bank. Accessed at
<https://www.worldbank.org > Accessed 26 April 2022.
Volume 51 Issue 12

regional inequalities in this distribution, though, evidence suggests much of


this land is not cultivated.58

Additionally, there is evidence that agriculture can contribute to poverty


reduction beyond a direct effect on farmers’ incomes.59 Agricultural
development can stimulate economic development outside of the agricultural
sector, and lead to higher job and growth creation. Increased productivity of
agriculture meanwhile raises farm incomes and food supply, reduces food
prices, and provides greater employment opportunities in both rural and
urban areas60. Higher incomes can also increase the consumer demand for
goods and services produced by sectors other than agriculture.

Such linkages between growth in the agricultural sector and the wider
economy can then enable developing countries to diversify to other sectors
where growth is higher and wages are better. In Uganda’s first Poverty
Eradication Action Plan (PEAP) in 1996 – 1997, access to land and sustainable
use of land was recognized as critical issues for enabling the poor to increase
their incomes. The strategies included in the plan recognized tenure security
particularly that of smallholders, women, and tenant farmers, as a key
objective of government policy towards land.

The plan based its strategy on the argument that tenure insecurity was a
barrier to increased production by smallholders. In addition, the lack of
acceptability of rural land as collateral by the banking system was believed to
be a problem. Second, there is proof that as agricultural productivity
increases, other sectors also develop and countries are less dependent on
agriculture for their economy.

Agricultural growth, therefore, contributes to wider growth and poverty


reduction. It is no secret that with secure land rights, farmers and others are
more likely to develop their property, plant crops with longer time horizons,
or use the land as collateral for bank loans to improve their standard of

58 McKinnon and Reinikka, 2000.


59 <https://www.soas.ac.uk/cedep-demos/> Accessed 15 December 2021.
60 The Current Aid Framework: Agriculture & Rural Development Investments;
Agriculture and its contribution to poverty reduction. Accessed at
<https://www.soas.ac.uk> Accessed 27 April 2022.

15
Uganda’s Land Tenure Systems and Their Impact on Development

living.61 It is estimated that roughly 2.5 billion people around the globe survive
on less than 2 dollars a day, and about three-quarters of them live in rural
areas and are dependent on the land they cultivate to survive. Yet, around 1
billion of them do not have secure rights to the land they till.62

Land reform has been established as having potential impacts on all the four
PEAP goals of creating an enabling environment for rapid and sustainable
economic growth, good governance, direct income-enhancing actions, and
direct enhancement of the quality of life of the poor. This, and more, justify
why, the World Bank, with current commitments of approximately 1.5 billion
dollars, has supported more than 50 countries over the last 25 years to
improve land tenure security. This has been through policy and legal support,
institutional and capacity development, and financing efforts for land titling
and digitalizing land registration systems, in addition to analytical products
and technical assistance to many countries.63

Agricultural productivity can therefore be seen as a first step or engine of


growth leading to greater income for a country.64 It is interesting to note that
historically, no poor countries have reduced poverty solely through
agriculture, but almost none have achieved it without increasing agricultural
productivity in the first instance. Agricultural growth is an essential
complement to growth in other sectors.65

From the above, it is clear that most of Uganda’s households depend directly
or indirectly on agriculture creating a link between land and economic activity
and justifying land tenure effects on agricultural productivity and investment
and the need for secure tenures.

61 Why #landmatters for economic development; Deborah Horan.


<https://www.devex.com/news/> Accessed 13 December 2021
62 ibid
63 <https://blogs.worldbank.org> Accessed 20th December 2021
64 Seven reasons for land and property rights to be at the top of the global agenda
<https://landportal.org/node/81137> Accessed 7 January 2022
65 Department for International Development 2005
Volume 51 Issue 12

4.4 Private Sector Development.


Secure property rights and access to land are crucial for private sector
development and job creation. The private sector needs land to build factories,
commercial buildings, and residential properties, which of course fuel
development.66 According to a World Bank report that assessed private sector
performance in the Middle East and North Africa, the top constraints to the
region’s private sector include the lack of access to land as well as issues
related to land titling and registration.67

Additionally, companies often use land or property titles as collateral to


finance operational costs and to expand existing businesses or open new
ones, thus creating more jobs, a further testament to the relevance and
importance of secure tenure.68

4.5 Empowering Women.


Secure property rights are important in empowering women. The World Bank
Group’s gender strategy highlights access to assets as one of the three main
pillars for women’s empowerment.69 Unfortunately, a host of women around
the world are still denied their land rights by inefficient legal frameworks that
do not fully support women’s equal access to property ownership or use of
land titles as collateral without a male guardian,70 and men not registering
their properties as joint property, resulting in women often losing their home
or land in the case of a divorce or the death of the husband.

In some cultures, women do not inherit land or properties, despite having


legal rights to do so – they are often forced by male relatives to waive their
rights.71 Women in Uganda provide 80 percent of farm labor, yet own a paltry
7 percent of the land.72 Therefore, the stake of Uganda's female farmers in

66 J. Bosworth: Integrating land issues into the broader development agenda: Uganda.
<https://www.fao.org/3/y5026e/y5026e0f.htm> Accessed 26 April 2022
67 Laura Tuck and Wael Zakout: 7 Reasons for land property rights to be at the top of the
world agenda. <https://blogs.worldbank.org> Accessed 5 December 2021
68 supra note 63
69 <https://documents.worldbank.org> Accessed 19 December 2021
70 supra note 64
71 <https://blogs.worldbank.org/> Accessed 19 December 2021
72 The Current Aid Framework: Agriculture & Rural Development Investments;
Agriculture and its contribution to poverty reduction. <https://www.soas.ac.uk>
Accessed 27 April 2022.

17
Uganda’s Land Tenure Systems and Their Impact on Development

this critical productive asset is severely limited and the manner of accessing
land for women perpetuates social and economic inequality.73

Besides the difficulties of divorced and widowed women in retaining access to


marital land, a growing body of evidence points to the fact that married women
are denied the opportunity to plant perennial cash crops or tree crops, and
withdraw their labor from cash-crop production on fields they do not
control.74

There are direct links between women's land tenure insecurity and household
food insecurity. At the household level for example, there are growing
indications that gender divisions of labor and control of income tend to
undermine food security where the expansion of cash crops is at the expense
of food crop cultivation.75 The gender distribution of land rights has been
linked to this phenomenon, specifically because where women own land or
have a stronger stake in decision-making on the family farm, they also have
a higher degree of control over production and income from cash crops.76

This therefore means low incentives to produce, exacerbates poverty and food
insecurity as women who provide 80 percent of farm labor in the country own
and control a paltry 7 percent of the land. With that, there is no way we can
transform the poor society into an industrialized and modernized economy,
create wealth and achieve socio-economic development.

5.0 CURRENT LAND SYSTEM SHORTCOMINGS


Globally, a measly 30 percent of the global population has legally registered
rights to their land and homes.77 Without land tenure systems that work,
economies risk missing the foundation for sustainable growth, threatening
the livelihoods of the poor and vulnerable the most.78 According to the World

73 ibid
74 ibid
75 Ovonji-Odida et al., 2000
76 ibid
77 <https://twitter.com/intent/tweet?text=> Accessed 2 February 2022
78 Why #landmatters for economic development; Deborah Horan.
<https://www.devex.com> Accessed 13 December 2021
Volume 51 Issue 12

Bank, it is simply not possible to end poverty and boost shared prosperity
without making serious progress on land and property rights.79

In Uganda, around 5 - 10 percent of households access land predominantly


through borrowing or renting.80 According to Bosworth,81 such households are
often among the poorest and supplement their incomes by casual labor, and,
for those renting land, rental rates frequently represent a substantial
proportion of the value of crop produced and this may contribute to poverty.82
Nevertheless, in areas where land is in short supply, the availability of rental
land provides an opportunity for some households to access land, and can be
an important part of the strategy for increasing income, acquiring assets and
eradicating poverty.83

Land tenure insecurity therefore represents one of the major challenges that
people in developing countries like Uganda face. The majority, who are small-
scale farmers, especially women, work on land that they do not own,
exacerbating their poverty, lack of political power, and equal recognition of
basic rights.84 Insecure land tenure rights in Uganda, for instance, make
farmers shun long-term investments on land which could otherwise help them
manage resources sustainably.

In this section, discussed is how Uganda’s land tenure systems have affected
land rights, investment, productivity, and development.

5.1 Customary Land Rights


Article 237 (4) (a) of the Constitution and Section 3 of the Land Act recognize
customary tenure as one of the forms of holding land in Uganda. The majority
of Ugandans hold land under customary tenure and, this provision, therefore,
guarantees the security of land ownership. Further, they can even acquire a
certificate of customary ownership of the land they occupy, which they can

79 <supra note 38>


80 <https://www.fao.org> Accessed 19 December 2021
81 supra note 69
82 Ibid
83 Ibid
84 World farmers’ organisation land tenure challenges & practices <https://www.wfo-
oma.org> Accessed 9 December 2021

19
Uganda’s Land Tenure Systems and Their Impact on Development

convert into a freehold title. This certificate has also been accorded value
under the Land Act enabling it to be transferred, mortgaged, or pledged,
enabling holders to have access to credit.

Around 75 percent of Uganda's population is believed to occupy land under


customary tenure, either on an individual or a communal basis.85 In as much
as the Constitution recognizes customary land tenure as one of the modes of
land ownership in Uganda, the subsequent enabling legal regime, in
particular the Land Act did not capture the aspirations of the Constitution.86

According to the land policy 2013, customary tenure continues to be regarded


and treated as inferior in practice to other forms of registered property rights,
thereby denying it an opportunity for greater and deeper transformation.87 It
is assessed as lesser regarding dispute resolution and mediation compared to
the statutory system and weighed as less to other tenures that have titles for
proof of ownership in courts of law in the administration of justice.

It must be converted to freehold before it attains the totality of the bundle of


rights inherent in all other registered tenures that are held in perpetuity, and
is disparaged and sabotaged in preference of other forms of registered tenures,
denying it the opportunity to progressively evolve.88 According to Action 4
Justice, because under customary land tenure land is not registered, there
are a number of problems that arise with it.

These include land grabbing, because the customary land owner cannot easily
prove their ownership, difficulty in establishing interest over the land,
difficulty in establishing which of the multiple interests take precedence over
the other, high chances of encroachment among others.89 Customary tenure
limits development because the land is not documented and hence not

85 Oates and Ecaat, 1999. Supra Note 21


86 Piloting the protection of rights to customary land ownership in Acholi land. Existing
Tenure Options for Protection of Customary Land Owners. A legal opinion submitted to
Trócaire and joint Acholi sub-region leaders’ forum (JASLF)
87 Steven Lawry; Customary Land Tenure. <https://dai-global-
developments.com/articles/customary-land-tenure> Accessed 27 December 2021
88 The Uganda National land Policy, February 2013, page 17
89 Land Rights in Uganda; Land Disputes- Problems with ownership and Rights. Accessed
at <https://uganda.action4justice.org/> Accessed 12 March 2022
Volume 51 Issue 12

available for planning. More so, some customs such as those prohibiting sale
of land outside the clan do not promote the maximum utility of land inhibiting
development.90 Customary tenure does not encourage record keeping, which
makes the resolution of disputes and the approval of any development plans
difficult or impossible.

So, despite the constitutional and legislative guarantee, customary land


tenure and customary land owners still suffer from inadequate legal
protection, a situation that is analogous to that in the colonial and the
immediate post-independence era and inhibits development.

5.2 Tenants on Registered Land


Previously, being engaged in a semi-feudal customary relationship with the
chiefs, were tenants vulnerable to expulsion by the landowner without any
legal protection. It is estimated that currently, this applies to around 19
percent of the population, occupying around 14 percent of the land area.91
The 1995 Constitution and the Land Act however currently guarantees
security of tenure to tenants on registered land, commonly referred to as
lawful or bona fide occupants.

The tenants can acquire certificates of occupancy on the land they occupy,
and if they so wish, can negotiate with the registered owner to be able to
acquire a freehold title.92 They are to pay the registered owner of the land a
ground rent, and failure to do this for two consecutive years may lead the
tenant to lose their security if they do not have sufficient reasons for
defaulting.

The registered owner cannot ask the tenants for anything except the amount
provided for the certificate of occupancy, and the certificate can also be
mortgaged, pledged, or transferred. The tenant also has a right to pass on
their tenancy in a will.93 The Land Act of 1998 made clear the tension between

90 Brian Makabayi and Moses Musinguzi; To What Extent Have the Existing Land Tenure
Systems Affected Urban Land Development?
91 supra note 63
92 Section 29 of the Land Act
93 Sections 34 and 35 of the Land Act

21
Uganda’s Land Tenure Systems and Their Impact on Development

the landlord (who is the ultimate owner of the land) and the tenant (who is
the current user of the land).

These conflicting rights make it hard for landlords to develop their land even
when they are financially able, which weakens the powers of the landlords
over their land, and of course, hard for tenants because they are not ultimate
owners of the land.94

The issue of willing buyer-willing seller coined in the Act further complicates
the transfer of land from one person to another. Where the landlord might
wish to buy the tenant off the land, the tenant must be willing to sell their
rights to use the land and vice-versa. Moreover, tenants have failed to develop
land, out of fear that the landlords will one day evict them; likewise, landlords
cannot develop the land because they cannot evict the tenants.

This standoff has inhibited land markets in urban areas where purchasers
have trouble purchasing secure property holdings. This land use deadlock
has also inhibited land development, investment and productivity, delaying
the country’s transformation into a modernised economy.

5.3 Squatters.
Lawful and bona fide occupants or tenants enjoy security of occupancy and
in return, pay annual ground rent to the Landowner. They may acquire a
Certificate of Occupancy by applying for it through the Landlord, and with the
permission of the landlord, may sublet or subdivide the land they occupy.95
On the other hand, squatters are illegal occupants and are not protected by
any law.

In urban areas, particularly Kampala, informal trading and inheritance of


land has created a complex web under which "squatters" claim rights to land.
Similar situations exist in leasehold properties, with sublease rights being
traded for substantial fees. Whereas the law does not recognize squatters,
they have oftentimes received backing from the President in the face of
evictions, and more often than not, stood in the way of any possible

94 Sections 35, 36, and 37 of the Land Act


95 Sections 31, 33, 34, 35 and 36
Volume 51 Issue 12

developments on the land. An example is in Masindi where a land conflict


involving squatters affected the completion of many government projects
including roads.96

5.4 Legislation
Uganda’s legislation relating to registration, surveying, and land acquisition
is outdated and not suited to the current needs of landowners and users. The
requirements for obtaining certificates of title, for instance, have made the
process of acquiring registered title, registering subsequent transactions and
transfers difficult and costly, with the addition of bureaucratic inefficiency.

The 1993 Constitutional Commission reported that many people had given up
trying to obtain titles to their land because of corruption in the land office.
Underfunding and underinvestment, together with lack of qualified personnel
in some areas also hamper efficiency further, particularly due to the poor
condition of records and maps and lack of equipment.

From the foregoing, it is clear this may undermine the whole notion of
development through privately owned land.

5.5 Dispute Resolution.


The inefficiencies and inequities of the judicial system regarding land are of
greater importance as the numbers of disputes multiply every other day in
response to the increasing commercialization of land in some areas and the
problems in the land registry. The majority of land disputes take forever to be
resolved due to inaccessible judicial mechanisms brought about by few
judicial officers, the high cost of litigation, the complexity of the process, and
physical barriers like distance that keep away litigants.

The situation is worsened by the ever-growing case backlog resulting from


countless adjournments which ties pieces of land in courts barring any
possible developmental activities.

96 Land wrangles threaten food security, government projects in Bunyoro


<https://reliefweb.int/report> Accessed 23 May 2022

23
Uganda’s Land Tenure Systems and Their Impact on Development

6.0 RECOMMENDATIONS.
The link between secure land rights and economic development became more
and more recognized in the international development community, so much
so that there is the inclusion of land rights as a goal in the post-2015
development agenda.97 In the premises, these recommendations are made:

6.1 Opportunities for the Resource-Poor


There is a need for land reform, which will provide opportunities for the
resource-poor to access land via redistribution, resettlement, or rental and
lease markets; and, increase and sustain productivity. The country’s national
development arguments for the land-reform process are still couched in terms
of increasing the ability of the poor to raise their incomes.

Of importance are policy and legal framework, sustainability of land use, land
tenure and protection of land rights, land administration and land
information, decentralization, and sector efficiency and self-sufficiency.98
There is therefore need to reform land tenure, including legal and regulatory
reforms that might need consolidation, and/or harmonizing the existing laws,
and institutional capacity building to reduce on the bureaucracy associated
with land transactions.

6.2 The need to Recognize “Secondary Rights” to Land Tenure


Here, recognition does not merely mean that everyone holds a legal title to his
or her land or home. The United States Agency for International Development
endorses the principle of “secure enough” tenure, in which there is a
continuum of rights that can be strengthened through a variety of affordable
and sustainable approaches.

These approaches may include the respect of customary or indigenous rights


to an area in addition to legal recognition, certificates that secure the rights
to use or manage resources, a community-managed titling process, or more
formal strategies such as land titling or creating public land registries.

Tiernan Mennen: Know your SDGs: Land matters for sustainable Development.
Accessed at <https://chemonics.com/blog>
98 <https://www.fao.org/> Accessed 26th December 2021
Volume 51 Issue 12

6.3 Publicity and Sensitization


Sometimes, locals are unaware of new laws or regulations that strengthen
their claims to the land. State and non-state actors can therefore work to
ensure that people know their rights. When Kenya passed land reforms, for
instance, Landesa informed not only villagers in rural areas, but also
government officials and judges. In Burkina Faso, Madagascar, Mozambique,
and elsewhere, MCC helped the government reform land tenure laws and
inform the public of changes to their land rights.

Sensitizing citizens makes them aware of their rights, aware of the laws and
policies that relate to land, creating responsive and accountable institutions.
That is what ends up driving economic growth in the end.

6.4 Supporting Projects that Encourage Long-Term Investment


There is evidence to show that when land owners feel secure in their land
rights, they might grow crops that require a longer time to bear fruit. This
often leads to greater crop diversification and other measures that improve
agricultural output over time and lead to greater long-term economic
development. In Ethiopia, for instance, donor projects to plant trees following
droughts in the 1980s largely failed, because the ownership of the trees was
not well defined, so farmers were not interested in maintaining them.

By contrast, for farmers in the Sahel, where farmers have secure access to
communal lands, had successfully maintained an estimated 200 million new
trees in the last 20 years, leading to richer soil and less wind erosion. In Niger
and Burkina Faso, farmers dug in hardened soil to plant manure that would
soften the ground, eventually restoring some 500,000 hectares of barren and
degraded land.

If they didn’t have secure rights, they wouldn’t have been motivated to invest
all their labor and energy in it. Land tenure is a very complex and political
issue but very vital for the future.

25
Uganda’s Land Tenure Systems and Their Impact on Development

7.0 CONCLUSION.
Today, land transfers are one of the most contested issues in Uganda. In the
wake of development strategies in the country, the power to control and to
use land in Uganda is seen as an impetus to investors for both agricultural
and industrial development. A good land tenure system, at least for Uganda,
ought to support agricultural development through the function of the 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 ought to protect people’s rights in the land and especially those who
have no other way to earn a reasonable living or to survive.

Both the 1995 Constitution and the Land Act have gone a long way in
providing security of tenure to all land users including customary, bonafide
and lawful tenants, resolving the impasse between registered land owners and
tenants by occupancy and recognising customary tenure as legal tenure equal
to other tenures. They have provided an institutional framework for the
control and management of land under a decentralised system.

However, there are still informal developments or lack thereof in Uganda. This
is attributed to inefficient land access processes caused by poorly
administered land rights, a handful of land use planning and development
regulations ill-suited to the local tenure situation, and institutional
incapacity. It can also be accredited to ignorance of the law, political
interference, institutional and administrative weaknesses among others.

Hence, there is the need for a suitable land tenure, preferably uniform,
coupled with a good judicial system, affordable and accessible legal services,
and a trustworthy land administration system for effective land tenure, to
drive Uganda to development.
Volume 51 Issue 12

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Volume 51 Issue 12

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29

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