TACKLING UGANDA’S BIGGEST FAULT LINE-LAND, KENYAN LAWYER ADVISES UGANDA’S JUDICIARY ON LAND REFORM.
UGANDA’S LAND REFORMS TAKES SHAPE AS LAND PROBE COMMISSION COMES TO END, KENYA’S PROFFESSOR PATRICK LUMUMBA SAYS JUSTICE CATHERINE BAMUGEMEREIRE’S REPORT SHOULD HELP PRESIDENT MUSEVENI TO SORT THE LAST COLONIAL QUESTION IN AFRICA-LAND.
Justice Catherine Bamugemereire’s Land Probe Commission has confronted Uganda’s biggest fault line- LAND. East Africa and most of Southern Africa have failed on land reform only to push the Law reform supported by World Bank and European Union.
Africa’s Intellectual Kenyan Born, Patrick Lumumba delivered a presentation in Uganda’s Gateway “City” of Entebbe at an engagement meeting between the Judiciary and The Commission of Inquiry into Land Matters.
Prof Lumumba discussed a presentation titled, “Independence and Accountability of the Judiciary in the delivery of Land Justice in Africa”.
Lumumba said the British and present rulers have used new laws that have not been redistributive or transformative in a positive way. Longstanding grievances and injustices have not been addressed. Legislation has failed to curtail predatory bureaucracies which in turn have stymied reform through delaying tactics and sabotage.
He said after adopting the 1995 Constitution, Uganda missed a real opportunity to enshrine in law their radical principles for land reform. Even with the Land Act of 1998 that was supposed to operationalize these provisions of the constitution, still the problem of land failed to be resolved.
“It’s the reason President Yoweri Museveni appointed Justice Catherine Bamugemereire and the 6 Commissioners to lead the Commission of Inquiry into land matters”.Justice Catherine Bamugemereire is set to hand over the report to Prresident Museveni for action.
Proffessor Lumumba says the sensitivity of land matters is nolonger tenable for a judge to listen to a case without going into the finer details.
“Throughout the continent of Africa land remains an emotive issue. The Experiences of
Zimbabwe, Namibia, South Africa, Kenya, to mention only a few. Kenya’s H.W.O
Okoth Ogendo was right when he said that land is the last colonial question.
It is in escapable therefore that disputes will continue to attend land and that the
Judiciary in every country will continue to play a critical role in dispute resolution.
The truth however is that while broad principles may be borrowed the peculiarities
of each jurisdiction will determine how issues are adjudicated. Each country is
Enjoined to determine issues as informed by history and peculiar circumstances as
long as justice is watchword”.
According to Lumumba quoted in South Africa, “former President Nelson Mandela would have questioned why a mineral rich continent such as Africa would have remained poor.
“He would have asked how is it that our continent that is so endowed produces what it does not consume and consumes what it does not produce. He would have asked whether the continent of Africa is really liberated. Nelson Mandela would have reminded us that we Africans have suffered more‚” Lumumba said.
The lack of legal title depresses demand for land because potential buyers do not want to negotiate the complexities of proving ownership. No one wants the nightmare of procuring a piece of land that is then mired in contention that prevents business activity from moving forward. Further, the lack of legal ownership also makes it difficult for land holders to come together and combine smaller pieces of land into a mass that can more effectively attract capital investment. In short, both supply and demand are affected by the land question.
Finally, infrastructure development is more costly, mired in delays and incredibly complex because of land issues. In some cases communities do not agree with the valuation of land engendering renegotiations, in other cases absentee landlords make the process of land acquisition long and arduous. However, the most complex is where communities live on what they consider their ancestral land but the land is legally owned by another person or entity.
LESSONS FOR UGANDA
A survey of diverse experiences in African Jurisdictions offers a number of
lessons which the Ugandan Judiciary can creatively borrow from and implement
with due regard to the specificities and peculiarities of Ugandan laws and
The Kenyan Report of the Commission of Inquiry into the Illegal/Irregular
Allocation of Public Land (Ndungu Report) established to address generally the
allocation of lands, and in particular:
To inquire into the allocation, to private individuals or corporations, of
public lands or lands dedicated or reserved for a public purpose;
(ii) To collect and collate all evidence and information available, whether
from ministry-based committees or from any other source, relating to
the nature and extent of unlawful or irregular allocations of such lands;
(iii)To prepare a list of all lands unlawfully or irregularly allocated,
specifying particulars of the lands and of the persons to whom they
were allocated, the date of allocation, particulars of all subsequent
dealings in the lands concerned and their current ownership and
(iv) To inquire into and ascertain- (i) the identity of any persons, whether
individuals or bodies corporate, to whom any such lands were
allocated by unlawful or irregular means; and (ii) the identity of any
public officials involved in such allocations;
(v) To carry out such other investigations into any matters incidental to the
foregoing as, in the opinion of the commissioners, will be beneficial to
a better and fuller discharge of their commission;
(vi) To carry out such other investigations as may be directed by the
President or the Minister for Lands and Settlement
(vii) to recommend- legal and administrative measures for the
restoration of such lands to their proper title or purpose, having due
regard to the rights of any private person having any bona fide
entitlement to or claim of right over the lands concerned;
(viii) legal and administrative measures to be taken in the event that
such lands are for any reason unable to be restored to their proper title
(ix) Criminal investigation or prosecution of, and any other measures to be
taken against, persons involved in the unlawful or irregular allocation
of such lands; and
(x) Legal and administrative measures for the prevention of unlawful or
irregular allocations of such land in the future.
The Ndungu Report offers lessons which Uganda can borrow from. Some of the
1. Establishment of a Land Titles Tribunal :
a. Each case of a suspected illegal or irregular allocation of public land
must be dealt with on its own merits.
2. Computerization of Land Records:
a. One of the main problems which has fueled the illegal allocation of
public land is the poor and chaotic record keeping system in the
Ministry of Lands and Settlement and in the District Registries. Because
of poor records, members of the public are unable to trace and keep
track of the history transactions relating to particular titles of land.
Quite often, records have been falsified or even hidden so as to
conceal illegal allocations of land.
3. Insurance of Land Titles Members of the public
Page 26 of 29
a. Members of the public should be able to rely on a Title Deed
document in which to transact either as buyers or sellers of land.
b. If land is to be freely transferable on the market then a secure system
of titling must be devised.
c. It is therefore recommended that a comprehensive land Title Insurance
Scheme be established in the country
d. A consortium of Insurance companies should be encouraged and
licensed to offer insurance services in this regard. This will eliminate
risk and uncertainty of dealing with forged titles.
4. Establishment of a Land Commission
The absence a centralized and professional body charged with the
duty of land administration has facilitated the illegal allocation of land.
5. Enhancing the Capacity of Institutions:
a. The technical and personnel capacities in the Ministry of Lands and
Settlement, the Judiciary and the Attorney General’s Chambers should
be enhanced so as to competently and efficiently deal with land
matters. All ministries and local authorities dealing with the
administration of public land should have properly trained legal
personnel to advise them and to ensure reliable representation in
courts of law.
b. The Government is also obliged to protect the public interest by
enforcing the development conditions strictly and by refusing to
consent to any dealing with the land until such conditions have been
c. Allocations of developed public land e.g. Government houses, should
generally be made at market value.
6. Inventory of All Public Land:
a. There appears to be no complete record or register of public land in
the country. Some Ministries, State Corporations and Departments
cannot give a comprehensive account of what public land they hold.
b. It is therefore recommended that all Ministries, Local Authorities, and
State Corporations should maintain registers of all assets they hold.
These registers should be updated annually.
Page 27 of 29
c. The Government should prepare an inventory of all public land in the
7. Harmonization of Land Legislation
The Government should harmonize land legislation to prevent double
issuance of land titles and other abuses.
The Government should embark upon the legal recovery of all monies
that were unjustly gotten through the illegal allocation and sale of
Public Land. The recovery should be extended to original allotees,
All public officials, private individuals, companies and professionals
who participated in the illegal allocation of public land in ways that
disclose the commission of crimes should be investigated, prosecuted
and/or retired from public service in the public interest
10. Upgrading Informal Settlements
Illegal allocations of public land have greatly contributed to the spread
of informal settlements in the main urban centres in the country. The
Government should initiate programmes to address the problem of