By Jimmy Ochom
The 1995 Constitution of Uganda under Article 237 vests land in the citizens of Uganda to be held in accordance with four land tenure systems. Article 237 (3) provides for the tenure systems as (a) customary, (b) freehold, (c) mailo (d) leasehold. For Mailo land there is a Mailo Registry which elaborates a method which the land details are captured that is to say, County, Block & Plot no; * For Leasehold there exists a Leasehold Register which elaborates a method that is to say/ Volume & Folio Number; For Freehold Freehold Register Volume & Folio Number and finally for customary land the law is silent. For customary land, nonexistence of a customary land registry obviously does not provide for an elaborate method under which land shall be captured, this in its self makes ownership under customary nature very insecure.
Under section 4 (a) it states that all citizens owing land under customary tenure may acquire a certificate of customary ownership in a manner prescribed by parliament. This article gives as a chance to influence parliament to enact a law which in its self-addresses the legal loophole. A number of suggestions have been made on how this can be solved, we either come up with a customary land act which specifically captures the customary tenure in a manner in which land is owned by different cultures and customs considering that the customs are not discriminatory in nature. That will entail documenting all customs owned by different customs when it comes to land management.
Perhaps this new law can address the issue of coming up with customary land Register which stipulates or elaborates the methods and manner in which land can be owned under that tenure system. This idea is further supported by the National land policy of 2013 under Chapter 4 which provides for land tenure framework. The policy recognizes that a majority of the people in Uganda own their land under customary tenure. The policy further acknowledges that the tenure system is faced with a number of challenges some of which include:
1. That the tenure does not provide security of tenure
2. Because of its ambiguous nature it does not support advancement of land markets, therefore government is losing a lot of money since it cannot be able to tap in to this form of tenure which literally is what 85 percent of Ugandans are subscribed to which is rather a shame.
3. It greatly discriminates against women since it gives power to customs to take on its management. A few laws under land act and land regulations try to mention some laws but a lot is lacking in terms of procedure. The procedure is still ambiguous.
Despite various attempt the little legal provisions leanly scattered over the Land Act and Land Regulations, customary land by nature still faces these problems. It is regarded inferior in practice and what makes it worse is the fact that the same law devalues it by encouraging sections under the Land Act and Regulations to convert it into free hold or lease hold. The problem of devaluing of land further is seen in registration, it should be noted that customary land tenure under the CCO is not captured in the National Land Information system, as yet, thus leading to more concerns about its apparent inferiority to other land tenure systems and its non-acceptance by the financial institutions.
Policy statement 39(a) states that the state shall recognize customary to be at par or same level like other forms of tenure systems and (b) states that the state shall establish a land registry system for registration of land rights under the customary tenure.
Much as the Land Act, Cap.227, Section 4 (1) provides a mechanism for protection of customary land rights by providing, inter alia, that 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 the Land Act. Acquisition of a certificate under customary tenure is meant to reduce the danger of unlawful appropriation associated with the rapidly increasing land values, land conflicts, and evictions among others, it is it is still failing to meet standards of protecting the tenure security of people who own it.
The national land policy 2013 has tried to come up with a number of strategies it aims to put in place in order to achieve equal footing of the customary tenure with other forms of tenures. It provides that government shall design and implement land registry system to support the registration of land rights under customary tenure; issue certificates of title customary ownership based on the customary land registry that is will be put in place.
Currently what beats my understanding is that a number of CCOs are being issued out all over the country but the question is, are they in conformity with the what the policy stipulates?; document customary rules applicable to specific communities; at district or subcounty level; make an inventory of common property resources owned by communities and vest these resources in communities to be managed under the customary law. The policy also stipulates that government will facilitate the design and evolution of a legislative framework for customary tenure and lastly strengthen traditional land management and administration institutions.
Why is government not fast enough particularly on this elaborate part of the policy? Should we say its not ready for the possible challenges that will come with a land registry. Should we say they are having arguments amongst each other. What exactly is the problem. With the expiry of the National land policy implantation plan this year I expect that civil society as a whole takes it upon them selves to push for this cause in the next implementation plan that is yet to be designed for the next five years.
Lets push for the amendment of the Land act cap 227 to permit only individually owned customary land to be converted, for amendment of the Registration of titles Act cap230 to place customary tenure at the same level with other tenures, modification of the rules of transmission of land rights under customary land tenure to guarantee gender equality and equity, make provisions for joint ownership of family land by spouses, for provision for registration of customary land held and trusteeship by traditional institutions or cultural leaders on behalf of communities in the names of a trustee.
About the Author. Jimmy Ochom is the Land Rights Coordinator at Oxfam in Uganda
