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Will a Functional Customary Land Registry Address Customary Land Issues?

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By Lucky Brian Wamboka

In exploring the understanding of land tenure and land management in Uganda there is need to underpin access to, ownership of, and use of land and other natural resources as vital for addressing food insecurity and poverty. Land tenure security guarantees increased agricultural production and productivity as people have access to own and use land. Any form of tenure insecurity is a source of conflict within families and between groups and communities.

Tenure insecurity exists in all the four types of tenure systems in Uganda but land owned under customary tenure is the most vulnerable. Between 70 and 80 percent of land owned in Uganda is held under customary tenure as it is privately owned by either individuals, families or clans (Human Rights Focus, 2013). Specifically, Northern Uganda has over 95 percent of its land under customary tenure and the region has the highest levels of poverty, food insecurity mainly brought about by land disputes recorded at 42 percent.

The many conflicts under this customary tenure arise mainly from border disputes when others overstep boundaries, often deliberately. Those conflicts are particularly common during the rainy season, when people are farming and land is under particular pressure. The competition for water resources is accelerated by increasing internal land-grabbing by elites where community rights over these areas to management and user rights have been limited.

The state on the other hand plays a significant role in facilitating large scale land transfers to foreign investors through promising access to land and other natural resources like water, wetlands, forest reserves, which perpetuates land grabbing. Such conflicts do not only render the land inaccessible for production, they consume productive time in litigation. Until individuals, families and communities in the customary sector are recognized as lawful owners of their lands, they run the continuing and worsening risk of losing those lands to others.

Traditionally, land wrangles under customary tenure are counteracted by vesting formal ownership with the clan and the elders would decide who should be allocated land and for what purposes. Land is considered to be ‘held in trust’ for the next generation and so the conceptual discussion of who can be said to own what leads to very different outcomes. One consequence of this is that the ‘entities’ owning land are becoming smaller: where once land was owned by the tribe as a whole, has gradually changed to village and clan units, then to families and now increasingly to household level units. Household land is now commonly divided amongst sons who are increasingly assuming absolute ownership as individuals.

Uganda’s policy framework on the other hand recognizes customary land tenure equally as other tenure systems. The 1998 Land Act recognizes that occupancy of customary land and conveys legal rights without documentary evidence. The National Land Policy 2013 supports the registration of land rights under customary tenure and contains a number of important reform proposals to cause gender equality with regard to land rights and inheritance of land. The policy includes also measures geared at rationalizing and streamlining the land dispute resolution structures and recognizes the role of customary institutions in making rules governing land, resolving disputes and protecting land rights (Zevenbergen and al., 2012). This calls for efficiency and at the same time the reinforcement of customary institutions is not without creating ambiguities. The National Land Policy also provides for the need for legal recognition of the dual operation of both customary and statutory systems in land rights administration, land dispute resolution and land management by empowering customary authorities to undertake these functions.

Despite the existence of laws alongside traditional mechanisms to address customary land issues, Customary land interests can only be respected in national laws if they are treated as equivalent in legal force to land interests obtained through non-customary regimes;  certified or registered without first being converted into non-customary forms of landholding; respected to equal degree as property whether owned by families, spouses, groups, or whole communities, not just individuals; understood in the law as expressible in different bundles of rights, including, for example, the seasonal rights of pastoralists; supported by the creation of local-level dispute resolution bodies, whose decisions carry force and whose rulings rely on just customary practices and be given the same protection as statutorily derived private properties when required for public purposes, as indicated by the extent to which the law requires the same levels of compensation to be paid and the same conditions to both forms of property to apply.

The need to bridge the current gaps in policy and practice are necessary. Whereas there is commendable progress in policy development on land governance in Uganda, it is important that the government through the Ministry of Lands Urban Housing and Development puts in place a Customary Land Registry. Having a Customary Land Registry will make customary tenure information accessible enabling data based decision making and improving security of tenure for occupants, as it will be used as evidence of ownership to prevent land grabbing and land conflicts.

It will promote equitable use and management of natural resources by people within the communities since it will define roles and responsibilities of different stakeholders. The creation of a Customary Land Registry will improve transparency accountability and service delivery by duty bearers as per the National Land Policy. Justice will also be upheld for vulnerable groups as the Registry will be much clearer what they are entitled to.

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