On 10th March 1900, calamity befell Uganda. The men of power and their missionary advisers finalized their act of sharing Buganda land among themselves and reduced this sharing, later referred to as “allocations” into an agreement known as “THE UGANDA AGREEMENT, 1900”. The interests of the men of power were supreme, any consideration for others was absurd. Legal instrument known as LAND LAW of 15th June 1908 coined this holding known as Mailo. The men of power created two types of Mailo; one private and the other official. Private mailo were personal estates that the holder could alienate freely, on the other hand, official mailo were held by virtue of office and did not pass to the holder’s family upon death or loss of office.
The general Buganda populace who had not sat at the table of allotment suddenly became landless peasants baptized “Bakopi” and the land which they occupied became “Bibanja”. It was an injustice of great proportions where those dispossessed of land were forced to pay cash (Busuulu) and goods (Envujjo) to the new landlords. The colonial masters felt the heat of resistance against the injustice and set up a commission of inquiry which recommended the redistribution of the mailo. However, instead the colonialists codified the relationship between Mailo owners and Kibanja holders into the Busuulu and Envujjo Law of 1st January 1928. The occupier of the kibanja was named in that law as a mukopi and the land tilled was to be kibanja. In addition, a mukopi on succession of a kibanja was to remain in quiet possession thereof and no conveyance by the Mailo owner, be it by sell, lease, exchange or gift was to affect the status of the mukopi or his kibanja.
Clearly, the kibanja owner had obtained security of tenure with rights almost equal to that of the mailo owner. The next development in the law would naturally be the enactment of legislation converting the kibanja holding into Mailo or Freehold. This would be the only logical step in correcting the historical injustice. Unfortunately, the 1975 Land Reform Decree which abolished mailo did not correct the historical injustice and instead, the new law relegated the kibanja to tenancy at sufferance whose only right was a six months eviction notice and compensation for developments on the kibanja.
The restoration of the Mailo under the 1995 Constitution still did not come out clearly in correcting the historical injustice of the kibanja holder. The current Land Act is clear on the status of a customary tenant and one of the attributes of that tenancy is the holding of land in perpetuity. Provisions have even been put in place where a customary tenant can convert his customary holding into Freehold. However, no such provision has been made to a kibanja holder who has been stated by law to be that tenant whose holding came into existence by virtue of the repealed Busuulu and envujjo law. It would appear that the kibanja holder’s rights are not catered for at all. The fair assumption is that when the constitution restored the mailo tenure system, it also restored the busuulu and envujjo law. It would therefore stand to reason that a kibanja holder has security of tenure in perpetuity derived from the Busuulu and Envujjo law. The boundaries of a kibanja has never been a dispute in Buganda. The customary method of marking bibanja boundaries in Buganda has been in existence for over decades and there is no village in Buganda where villagers do know each other’s kibanja boundaries.
For avoidance of doubt, there is a case for legislation giving the same right to Bibanja holders as those given to customary tenants namely; whereby a kibanja holder can on application obtain a Freehold title. His position cannot remain at Busuulu and Envujjo law level forever. The point must be made that a kibanja holding is a creature of the law under the Busuulu and Envujjo law. It cannot be abolished or turned into a leasehold by mere announcement of a mailo owner. It requires legislation to convert a kibanja holder into a Lease holder. A Lease offer by a Mailo holder or proprietor of a freehold of three years and above is registrable under the Registration of Titles Act and must not be confused with the one which the Buganda Land Board is proposing which is a conversion of a kibanja holding.
The legal position of the current Buganda Land Board must be clarified. The current Buganda Land Board is not legally akin to the Buganda Land Board which was in place under the 1962 Independence Constitution. That Buganda Land Board was a government body put in place under a constitutionally recognized administrative unit which was a Federal Unit called Buganda Kingdom. The current constitution put the district as the administrative unit and the District Land Board as the administrative unit for land which lie in that district. Where the Districts agreed to work together in the Regional tier, those districts would form a Regional Land Board. The law allows the District Boards to extend leaseholds and protects citizens by prohibiting automatic re-entry into a lessee’s land by the districts and providing for automatic renewal and extension of leases on initial and full term.
The Buganda Land Board on the other hand, is not a District Land Board and neither is it a Regional Land Board since negotiations for the Regional tier remains unfinished business. Its operations are only confined to Mailo and the Lands returned to the Kabaka under the Traditional Rulers (Restriction of Assets and Properties) Act. It is in this context, that the Land Titles of the official mailo recently handed over by the government to Buganda Land Board lacked legal force. Those titles were the official mailo’s and therefore public land and the proper bodies to hand them over were the District Land Boards and not the Buganda Land Board as currently constituted. The Buganda Land Board can only be holding those titles in a custodial capacity awaiting the conclusion of the unfinished business on Regional tier. In the meantime, the Buganda Land Board should be cautious when carrying out any conveyancing or other dealing on properties whose legal status is still in abeyance.
Land is the source of all material wealth and is the key to human existence. Failure to resolve land issues, can lead to instability and possibly the breakup of a nation.
The sweep of history has taught that in the 1960s the Nation was destabilized by the emotionally charged phrase of “Kabaka Yeka.” The coinage which the Buganda Land Board has used in the current “Kyapa mungalo” push is “Kabaka Asiimye.” Of course, history repeats itself, the first time, it is a fuss, the second a tragedy.
Sam Mayanja
Senior Partner
Kampala Associated Advocates
