Article Index
4. Land Tenure Systems
Article 237 (3) of the 1995 Constitution and Section 3 of the Land Act Cap 227 both provide that land in Uganda may be held in terms of four tenure categories, namely freehold, mailo, leasehold and customary.
4.1 Freehold Tenure
Freehold titles give rights “in perpetuity”; that means the rights do not have a time limit and may be passed on to future generations. About five per cent of households in Uganda hold land under this tenure. The incidences of freehold tenure, which are standard, include the conferment of full power of disposition and the compulsory registration of title in perpetuity (Obbo et al, 2014).
4.2 Mailo Land Tenure
Mailo land tenure was introduced in Uganda as a result of the 1900 Buganda Agreement, commonly known as the Uganda Agreement with the British. Mailo land tenure is peculiar to the Buganda Kingdom. It used miles as its measuring reference, but a corruption of pronunciation in the native Luganda language resulted in the term
“mailo”. Under Article 15 of the 1900 Buganda Agreement, the total land area of
Buganda was estimated to be 19,600 square miles (approximately 20 per cent of the total area of Uganda) and was divided between the Kabaka (King) of Buganda and other notables in the Protectorate Government. This land included that of the “lost” counties of Buyaga and Bugangaizi, which had been forcefully removed from the Bunyoro Kingdom with the help of the British colonial administration (Batungi, 2008). Under the Mailo tenure system, land is held in perpetuity and a certificate of increasing women access to land is key for transforming title is issued. The main advantage of this system is that it provides security of tenure, thus allowing long-term investments, including those related to conservation. Originally, there were two categories of ownership under this system (Official and Private Mailo). The major challenge of mailo tenure is with the multiple, overlapping and conflicting interests and rights. Mailo is subject to the rights of occupiers, or kibanja holders.
Both separate the ownership of land from occupancy or ownership of developments by lawful or bona fide occupants and this is guaranteed by the Land Act 1998. The kibanja holder has an option to purchase and, thus, move up to the mailo title status. The Land Act also guarantees statutory protection to the kibanja holder and his or her successors against any eviction as long as the prescribed nominal ground rent is paid to the landowner (Obbo, et al, 2014).
4.3 Leasehold Tenure
A leasehold estate is created in land as the result of a contractual agreement between a lessor (landowner) and a lessee, in which the lessee enjoys exclusive possession of the land of the lessor for a specified period for a cash payment, called rent, from the lessee to the lessor. There are two types of leasehold tenure arrangements, namely, private leases given to individual landlords and official or statutory leases given to individuals and/or corporate groups under public act terms. Private leases granted by a landowner often require the payment of rent, while statutory leases issued by the Uganda Land Commission (ULC) on public land may be accompanied by conditions of land use. Therefore the lessor still holds the right to revoke ownership when leasehold conditions are abused.
Leaseholds can be obtained from an individual, local authority or the government for a period, usually 49 or 99 years, with agreed terms and conditions. The leasehold transactions, being essentially contractual, allow parties to define the terms and conditions of access in such a manner that suits their reciprocal land-use needs. Most public land in urban areas is converting to state leasehold, enabling local authorities to raise revenues.
Leases are instruments for development for a specific period. They give rights on condition that certain developments will be made, such as the construction of certain structures and the payment of a yearly rent to the lessor. In practice, leases are rarely monitored. Many existing leases have expired, while with others the conditions have not been met.
4.4 Customary Land Tenure
It is the most dominant land tenure system and covers 68.6 per cent of the land in Uganda (MLHUD, 2010). Customary tenure is found all over the country, butm predominates in the northern and eastern, 2000). Customary tenure is managed by families and clans. Clan structures for managing customary land tenure vary from family, extended family and clan committees or clan positions, such as that of “Rwot kweri” in Acholi, and “Adwong wang tic” in Lango.
Other clan structures, such as in Buganda, Bunyoro and Tooro, are organized under a kingdom. The Land Act defines customary tenure as “a form of tenure applicable to a specific area of land and a specific description or class of persons, subject to section 27, which prohibits discrimination against women, children and people with disabilities (USAID, 2013). The current Land Act (1998) contains provisions that permit public land occupants and holders of customary rights to apply either for leaseholds (public land) or freeholds (public land and customary land). Leaseholds can be obtained from an individual, local authority or the government for a period, usually 49 or 99 years, with agreed terms and conditions. The leasehold transactions, being essentially contractual, allow parties to define the terms and conditions of access in such a manner that suits their reciprocal land-use needs. Most public land in urban areas is converting to state leasehold, enabling local authorities to raise revenues. The major disadvantage of customary tenure is that it tends to emphasize cultural values more than the economic and financial gains from the land. This retards development. Land users are not encouraged to make long-term investments in the land, nor can they take care of the land as they would do if they had clear title to it. Land held under customary land tenure especially for communal use tends to suffer from neglect and consequent degradation.
The government has received funding under which it will carry out mapping, surveying and registration of customary land. In its pilot phase, about 600 communal land associations in Apach District are to be registered, thereafter other Districts shall follow suit.