The mailo curse was introduced within the framework of the indirect rule schemed in the 1900 Buganda Agreement. The scheme provided for the grant of freehold parcels of land measured in square miles leaving the occupants, completely landless at the mercy of the chiefs who roamed the countryside, picking out the best land they could find. The result was that the landless majority moved around from one area to another following a particular grantee/chief whom they considered would provide them with security of tenure. This movement turned the country into a glorified camp of the internally displaced in their own country.
The colonialists responded to the crisis by enacting the Land Law on 15th June 1908 which defined the land given away under the 1900 as “mailo”, and splitting it into “official mailo” (public land) and “mailo” (private land).
The mailo landlords extracted a land rent (busulu), and a tribute on each crop (nvujjo). The mailo chiefs in the lukiiko increased their control over the cash being earned by the peasants by passing a law which increased the busulu and nvujjo payable to them by peasants.
The peasants cried out to the bataka who mobilized them under the “bataka party” which successfully articulated the grievances of the peasantry winning considerable popular support and political importance. The Protectorate was becoming ungovernable as the peasants were refused to grow any more cash crops unless security of tenure was guaranteed.
In response the colonial administration transferred chiefs and put all of them on salary ending their demand of “busulu” and “nvujjo” from peasants on official mailo. In addition, the 1928 “Busulu” and “Nvujjo” Law, which guaranteed peasants complete and hereditary security of tenure was enacted. The law expressly stated that “no mukopi maybe evicted by the mailo owner from his kibanja”, that “a mukopi on succession to a kibanja shall remain in quiet possession”, and that “no sale, exchange or gift of mailo land shall affect the status” of a kibanja holder.
While the security of tenure of the bibanja holders was now assured by the “Busulu” and “Nvujjo Law”, those on official mailo were under the administration of Buganda Land Board set up by the colonial authority to administer public land (official mailo). The Buganda Land Board was a statutory body under the 1962 Independence Constitution. The same Constitution put the administration of Public Land in other parts of the country either under District Land Boards, Federal State Land Boards or Uganda Land Commission.
The 1967 Constitution adopted the District as a uniform unit of local administration in all parts of Uganda. Consequently all public land formerly administered by Land Boards of Federal States or District Land Boards was vested in the Uganda Land Commission. Mailo land tenure was retained in the Districts of Bunyoro, East Mengo, Masaka, Mubende and West Mengo, which areas under the 1962 constitution had covered the former federal states of the Kingdom of Bunyoro, and Buganda. The bibanja holders on official mailo (public land) which under the 1967 got vested into the Uganda Land Commission applied and obtained titled land in form of leasehold interest. The struggle of over sixty years had finally born fruit. The bibanja holders on mailo under article 126 (1) of the 1967 Constitution also tested victory of the struggle when the Land Reform Decree 1975 declared all land in Uganda public land to be administered by the Uganda Land Commission. It is accordingly clear that the 1967 Constitution never confiscated any land from any Ugandan or institution, Traditional/Cultural or otherwise. There is therefore no merit in claims for restitution by any person, or culture institution by whatever name called.
The 1995 Constitution consolidated the gains of Ugandan’s quest for security of tenure by providing under article 237 for any Ugandan who had obtained leasehold out of public land, to on application, convert it into a freehold interest. The “Guidelines on the Administration of Land”, made under the Land Act, Cap 227, protects the leaseholder by prohibiting in section 4.2, the District Land Boards not to automatically re-enter a lessee’ land, and directing that, “renewal and extension of lessees on initial and full term for all citizens shall be automatic”. Traditional rulers are obligated under the same legal regime to uphold and honour all the terms and conditions of the existing leases on the land they claim.
Unexplainably Article 237 (3) (c) of the 1995 Constitution reintroduced the mailo. The sweep of history teaches that revolutions have no reverse gear, in biblical terms: Babylon falls never to rise. The struggle of the last one hundred years has been for ownership of land in perpetuity for all citizens. This is achievable when the administration of all land is vested in the Uganda Land Commission with no interest in land granter than a leasehold.
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Author
Sam is a founding partner of the Firm and heads the Banking and Finance Department. He has been practicing as a lawyer for almost 45 years and is recognised as a leading authority on land law and in the Ugandan banking and financial services sector. His main areas of practice include banking and finance, real estate, agriculture and litigation.
