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| UCU students |
Land is central in
humanity’s survival in this world. Failure to be accorded ownership presents
serious crises. The world at large has made it paramount for persons to have
land ownership. The 1995 Constitution of the Republic of Uganda provides for freedom
of property ownership, either individually or in association with others. The
ownership entails different tenures under article 234; to include: customary,
mailo, leasehold and freehold. All the three tenures are governed by
legislations of parliament, but customary is specifically governed by the
principles and practices of an area where the land sits.
The government has
thought it wise to introduce the National Land Policy, 2013 to ensure equitable
land management for overall socio-economic development.
The land issue in Uganda
It is worthwhile
noting, that since 1900 Buganda Agreement, no good legislation ever came into
effect to stipulate the governing of customary tenure. Worst to note, was the
Land Decree, 1975; where the military regime of Idi Amin tried to overhaul Uganda’s
legal system of land. It decreed that all land in Uganda would be public land
vested in the government – Uganda Land Commission.
Nevertheless, those
customarily settled on the land would easily be evicted without seeking their
consent. Compensation would only issue where developments had occasioned on the
suit land. It took 95 years from 1900 to 1995 for the government to take
cognisance of customary tenure in its legislation. Thus, the government is
acclaimed for the 1995 Constitution of the Republic of Uganda and the Land Act
of 1998, having taken note of customary tenure.
However, amidst these
legislations, customary tenure has continued to face several problems, namely:
(i) that it does not provide security of tenure for the land owner; (ii) it impedes
advancement of land market; and (iii) it discriminates against women according
to the National Land Policy. Nevertheless, the Land Policy, 2013 has been
introduced creating avenues for the recognition of customary tenure in its own
form to be at par with other tenure systems; and to establish a land registry
system for the registration of land rights under customary tenure.
Land and Equitable Movement Uganda
LEMU – Land and Equity
Movement in Uganda records customary tenure in the country to be at 80%. For
Lango, in specific is 99%. This not for profit organisation was founded in
2005. It has worked over the years to ensure customary land right vests in all
without discrimination; fulfilling its motto: Making land work for us all. With its headquarters in Namwongo,
Kampala, it has scattered branches covering the districts of Apac, Lira,
Soroti, Kitgum, Gulu, Bunyoro and West Nile. All these sub regions share almost
a custom in common.
LEMU has worked
closely with the Land Ministry. And its vision is to have a Ugandan society with land tenure security and equitable land rights
to make land secure for all for equitable development. It has strengthened
traditional institutions through training clan leaders to apply Principles
Practices Rights and Responsibilities (PPRR) and amicably resolve wrangles
within their clan communities. It has registered successes amidst challenges as
shall be noted later.
Objectives for the project in Lango.
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| UCU students take group photo |
Previous projects have
been always organised, with specific purposes made clear. For students would
leave the faculty knowing what they would engage in. For instance; mediation
and boundary tree planting. However, it was a complete turn of events this time
as LEMU overhauled its modalities. Thus, we did not know what our objectives
would entail.
It was upon reaching
LEMU office that we were briefed on what we would be doing. Thereon we
formulated our objectives to include the following;
·
To
learn and appreciate the vision of LEMU;
·
To
educate the students to practically understand how customary tenure works;
·
To
train and equip clan leaders with necessary tools to carryout mediations;
·
To
conduct impact assessments on disputes previously mediated by LEMU; and
·
To
establish the importance of drawing family land rights tree (FLRT) when
mediating land disputes.
The students, lecturer
together with some LEMU staff made locus visits. These were intended to conduct
impact assessment on matters that had earlier been mediated. In the event of
locus visits, interviews were also conducted. These altogether helped the
students to garner their information which is now herein documented for
reference.
Some of the activities
we engaged in.
Clan Leaders’ Training
The training lasted
for two days. That is 10th to 11th of August 2017. Though
majorly conducted by the Executive Director of LEMU, Mrs Judy Adoko with
minimal contribution from Uganda Christian University students, it conversed
several issues.
The purpose of the
training was; To use the five cases (clans that had land disputes) to highlight
bigger problems facing customary tenure and the way of life of the Langi; and To
give skills in family land rights tree tool and principles of natural justice
to resolve current and future land cases in the clans.
Day one – 10th August 2017
Five clans attended.
These were; Banya, Okarowok iyi acel, Atek Okwero Owiny, Okwero Ngec - Okwero Ayita and Oyima Ngila with their
respective representatives. Their cases would be handled and used as references
in future in form of precedent. The target was to limit LEMU’s involvement.
Unfortunately, the five cases were never resolved.
1.5 Recognition of Customary Tenure
A question was posed
to the clans’ leaders: why is it that it
took government several years to recognise customary tenure in its legislation
– Constitution?
Several answers were
suggested. That the law was made by the whites who had their own interests –
not customary. Peoples’ interests were more focused on power struggle. The
population was low – thus no land wrangles by then. Now some
parliamentarians/tribes want to use it as an avenue for land acquisition.
Lastly, land has become economically viable. Therefore, the government has been
prompted to recognise customary tenure. Even though, continuous disputes pose
to inhibit enjoyment of the same.
Land disputes in Apac
was seen to be severe. Bad relations and greed were indicated as causes which
are so rampant. It was noted at the training that; the problems now are bigger
than what people think or see. The problem is coming from the extreme world.
The whites want our land for investments, and customary tenure has posed
insecurity for them. Thus, sending a message to the government.
It was observed that
customary land is characterised by inheritance, culturally administered, women
have no rights and cannot be mortgaged. This, it is suggested, sabotages land
transactions. To curb, legislative frame work is laid down to ensure
individualism in land ownership. Freehold is preferred. It quickens land
purchase. Land is registered and a certificate is granted under the law which
becomes conclusive evidence of ownership, not easily impeachable.
Illustration was done
on how land leaves lango, with basically three key players involved. These
players are; Government, Lawyer and Bank.
The weaknesses of the Clans
What makes clans weak?
The following were
raised; conflicts, lies, greed for money, child marriage, polygamy, witch
craft, government laws against clans’ laws, discrimination, competition for
authority, jealous, weak leadership and laziness. From the training, it was
observed that the government can set laws to strengthen culture or customary
tenure. But the investors will let it fail.
However, the clan
leaders were suggestive that, they can find a solution by themselves and stop
the investors from taking their land. It was agreed that; respectable clan
leaders should be appointed to sanction land sales to boost investments. Well
established registry where customary land transactions can be registered should
be put in place. The clan leaders also thought it wise to go back to the old
days; where there was no greed, discrimination, struggle for authority, bias,
and rights of women, children and the vulnerable people were honoured and
respected. This could ensure better conflict resolution. The clan members
agreed to work on the return of good relations in all clans.
The manifestation of
the above, it was noted, would be exhibited through looking at the number of
cases settled by the clan leaders; cases not coming to LEMU and the government;
land sold through proper channels; and the voices of women and children heard.
Day two – 11th August 2017
Presentation was made
in respect to the following areas;
·
Why
the family land rights tree is useful;
·
Principles
of natural justice and how to handle difficulties;
·
Types
of governance (State and traditional parallel; clans only; state only or a
partnership); and
·
Plenary
discussion made on, how should the partnership between the state and the
tradition be?
Before discussing the
importance of family land rights tree, the trainer informed the clan leaders
that, there was a critical issue to be tackled first. She noted that LEMU is
not told the truth. How then can LEMU do work when it is not told the truth?
And why LEMU and not the clan leaders?
Responses were
received in respect to the two questions. Highlighting the following; that
there is bias by the clan leaders, harassment, to deceive LEMU since LEMU can
take it in, disrespect pf the clan, dispute between two clans, some people are
vulnerable and others have a lot of power, corruption – clan leaders only want
to decide on cases paid for, and to bribe LEMU to win.
Family Land Rights Tree (FLRT)
Discussions on the
usefulness of family land rights tree ensued, and was pointed out that, the
above problems can easily be cured if family land rights tree is effectively
and properly utilized.
The family land rights
tree helps or will help clan leaders; to establish the relationships of the
parties to the dispute, and those constituted to hear the matter indicating
what interests they have, if any. This will help avoid possibility of bias in
case one meant to hear the dispute is a relative or has an interest in the
matter. He/she must recuse him/herself from the proceeding. It will also point
out who has power and who is vulnerable within a family where there is land
dispute. Proper land rights will be established.
For instance, where in a family; two wives
were married, and land distributed to them. Then in the event children are
produced, the clan committee will know which of the children or women (wives)
are crossing the boundary to cause land dispute. Possible interests in the land
wrangle will be pointed out; and reason why there is a conflict, with potential
witnesses being spotted.
In drawing the family
land rights tree, the clan committee should note details in respect to sex,
age, status, names of parents, children, stages of birth, and any other relevant
information must be included.
The clan leaders were
instructed to take due diligence regarding which family do rights come from
when handling land disputes.
The clan leaders
themselves observed that; when the family land rights tree is followed
appropriately and the above table is taken note of, disputes will be
effectively settled. However, the trainer was so cautious that, the parties in
dispute should avoid several and disorganised shopping forum. For example; from
police to the Local Council, again to the clan committee, and to court and
probably to LEMU. This was highlighted to be very disorganised and lacking in
sense, which might cause conflict between different forums.
Principles of Natural Justice
It was emphasised
that; the duty to act fairly in administrative decision is prime. Thus, clan
leaders were instructed to have the principles of natural justice in whatever
proceeding they would conduct. They include;
a) Impartiality, the decision maker must not have
personal interest in the case to avoid bias.
b) Transparency, the decision should be open to public
and not in secrecy.
c) Fairness, where
every person appearing before the committee is accorded equal treatment. A
complaint was raised by a woman who had attended the training; and was noted
that different fees are being paid by different persons who have matters before
the clan committees. This creates unfairness. It was agreed by the clan leaders
that 10.000 UGX would be a uniform
fee.
d) Quorum, the quorum should be well constituted. Thus,
the clan committee would contain five members. This makes the decision stand
strong and unchallenged.
e) A right of being heard, a safe place of being heard and
a right of an appeal. It was suggested and agreed that, three chances would be
granted to a person to appear and his or her side of the story is heard. With
safe place where that person can freely express himself. If in case the
decision is made against one of the persons, then a right to appeal to higher
authority should be availed to him or her.
Nevertheless,
where the three chances are given to the person and he or she fails to turn up,
then a letter is written to the police with such evidence of records, to halt
the person from using the land. The clan leaders were also advised that; where
one person grabs the land of another, then they would invoke section 92 (1c) of the Land Act Cap.227
(as amended). The provision prescribes for the penalty against a person who
unlawfully grabs another’s land.
f) Documentation. Some members complained that, once a
decision is wrongfully reached, it is never documented. However, at the
meeting, it was agreed by all clan leaders that good administration requires
documentation. This will promote truthfulness and transparency in reaching a
decision. And therefore, the counter books were given to the clan leaders to
keep their records.
State and Traditional Governance
Issues were raised
that the relation between the two are parallel. Thus, the decision made by clan
leaders has always been rendered void by the government courts. As a result,
the attendants of the meeting were of the view that, this gap be bridged so
that the two can coordinate and work hand in hand with the other. But how could
this be possible was the point that took people to the same thinking cup.
Be that as it may, an
answer was suggested. That the harmonisation of the traditional and state
governance can only take effect; if the clan leaders use the Principles,
Practices, Rights and Responsibilities (PPRR) effectively. This is because the
PPRR outlines the customs and cultural practices of lango. Of which the 1995
Constitution of the Republic of Uganda allows them to practice; if they do not
contravene its provisions. And where there is transparency and truthfulness in
the administrative decision taken; with due regard to the principles of natural
justice. The courts of law will not fail to respect traditional system of
governance; therefore, making the clan decision effective.
The clan leaders were
also advised to look for alternative means of punishment; which is not
unconstitutional since beating is no longer working within the confines of the
Constitution.
Nonetheless, Uganda
Christian University students drafted a sample template of how the clan
decision/ judgment should look like after which the project for these 2 days
was ended.
Case Tracking/impact assessment
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| Visit to the locus |
We made locus visits
to carry out case tracking. In one case, located in Bar – Odong village, Apac
municipal parish, Akere division in Apac district. We were informed of the
quantity of land in dispute to be about three acres. And the dispute arouse
since the land was sold twice by the same person (seller) to different buyers.
The reason which was
given indicated that, the seller complained the size of the land was not
proportional to the quantum of money advanced for it. Yet, agreement of consent
was signed by all parties. The second buyer intimated to us that, since she
realised the land was first sold to somebody else, she called upon the seller
to locate for her another portion. Since the first portion had issues. This
request received compliance, and she was given another piece adjoining the one
in dispute. Even though the matter seemed settled, boundary issues cropped in
again. This prompted the complainants to approach LEMU in 2015. The case was
successfully resolved.
LEMU immediately
carried out boundary tree planting. So that it would be easy for both parties
to recognise their extent and limit of their land portions. We (students)
eventually went to the field to confirm the boundary demarcation, and assess if
any dispute again aroused thereafter. We received good news. No dispute
occurred. The boundary plant, traditionally known as omara-omara played a vital role.
Nevertheless, LEMU
field officer advised the neighbours around to arrange by their own consent;
and plant omara-omara around all
their individual land portions to avoid probable future land disputes
In another dispute in
Wiitim B village, Abedi parish, Apac sub-county in Apac district. This was a
customary land. And the land in dispute was one acre. A neighbour narrated to
us about the matter. That the owner of the suit land had two wives. One of the
wives (the second wife) has a lame child. But another boy (named Okello) from
the second wife, has been a menace to the whole village due to theft. He kept
on disturbing the father to give him his own portion to cultivate. However, the
father was hesitant.
Nonetheless, this
prompted Okello to reach LEMU to let him access his own portion. The land was
given to him, with demarcation marks clearly planted. From our impact
assessment, there has been no problem of any dispute again.
Lessons learnt in the project
·
Mediation
is an effective mode of dispute resolution. This cannot be likened to
litigation that is very costly. It spoils relations within the societies. We
realised that in the event of mediation, parties participate themselves in
resolution of the matter.
·
We
learnt that, it is important to follow cases that have been resolved to find
out whether there are no further disputes after boundary tree planting. This
helps to keep the full track of the records.
·
The
importance of not for profit organisation like LEMU was open to us. Had it not
been because of this organisation, then customary tenure would have a serious
setback. LEMU has worked so hard ensuring the existence of customary tenure,
and its effective management.
Challenges
In the event of collating our information together, we
envisaged the following challenges;
Long distance coupled with bad roads. The distance between
Kampala and Apac is along one. Besides, it had been a rainy reason in Apac. Our
van got stuck. Thus, it had to be pushed by the well wishers who were using the
road. We encountered this immediately after we had just left the lake side
heading to Apac town. The same was observed on our way to Wiitim B, from which
we had moved to carry out impact assessment /case tracking. It made our
travelling difficult with several delays on the way.
Language barrier; it ought to be noted that, not all
students who went for the project knew the language. And some, who understood,
could not speak properly. Besides, those
who maneuvered to give explanations to the clan leaders did with a lot of
difficulties. At the time of the training, it was appropriate for the luo
speakers, to interpret for the students that did not know the language. This
made collecting the information a bit hard. Since not everything could be
translated. In the end, some information was missed.
Requests for money from the interviewees; when in the
field for locus visits, some of the village members who helped us to explain
the chain of events in respect of land disputes did it in expectation of money
in return. It was hard to convince them that we were students. And there is a
misconception in Uganda; that those who speak English have money. And since
most of the students kept on interacting in English, the villagers knew we were
government officials. We had come to do land survey. I make a re-collection
when we went to Bar-odong village. Upon finishing the purpose of our visit, an
old man called aside a LEMU staff; informed him, that in their practice of land
survey, once finished like we did, he was entitled to 10.000UGX. This can of
solicitation delayed us to move to the next destinations. Since so much time
was spent explaining to these people; that we were actually students, with no
money to offer.
No prior communication given to the land owners which the
students were meant to visit. To carry out impact assessment was not easy. The
land owners feared that we (students) were government officials who had come to
grab their land. So they became very hesitant to show us where the land was.
Besides, we went with some new staff. They had not participated in the previous
dispute resolution. In fact the new staff we went with was a stranger to them
too. We wasted so much time negotiating,
that we were actually from LEMU. We entirely blame LEMU who had not made
communications to such owners about our visits.
2.2
Conclusion
Land and Equity Movement in Uganda has done commendable
work within Apac district. Through its Motto; making land work for us all, all persons have been made aware of
their land rights under customary tenure. Irrespective of people’s status in
the village; be woman, man, divorced, child, orphan, widowed, mention them;
land is working for them all. Traditionally, it was widely thought and a
practice that women have no land rights under custom. LEMU has changed this
thinking. Disputes have been resolved amicably in regard to land wrangles
within clan members. In consultation with Lango Cultural Foundation, LEMU
drafted the Principles, Practices, Rights and Responsibilities (PPRR). The book
stipulates the customs and practices of Lango. In fact the book almost is next
to the Constitution of Lango.
The not for profit organization has written a series of
discussion papers advising the government, and several stake holders to take
concern on customary tenure. It has highlighted the challenges customary tenure
encounter, and the dangers most likely to arise in future. It works closely
with the Ministry of Land. Thus, in 2013, the government came up with National
Land Policy capturing customary tenure and the procedure that should be laid
down; in dealing with customary land transactions. We therefore, call upon the
government to give the necessary support to the organization; in order to
broaden its area of operation.
2.3
Recommendation
We recommend the following;
Increase of manpower. LEMU looks like a one person’s
organization. With the executive director doing almost everything; there is
limited contribution from other staff members. Thus, we recommend LEMU to
recruit other staffs, like lawyers who can do research as well. The few staffs
apparently in office most do basically craft work. We advise that some lawyers
also be part of the system to handle crucial matters when the executive
director is not within.
Inclusion of some clan elders as staff of LEMU; this will
help LEMU appreciate disputes arising from the community and find effective
lasting solution.
Liaison with Lango Cultural Foundation; LEMU should liaise
with the foundation to establish a Registry for customary land transactions.
This should be at the Lango Cultural Foundation offices. Thus, records of
customary land transactions will be kept in such places. This will enable in
the effective administration of customary land by the clan leaders.
Communication to be made when students are making locus
visits. Next time students are carrying out case tracking, communication should
be made prior. This will avoid students being looked like strangers, and
avoidance of time wastage.
Students’ contribution to increase; as was noted,
participation of the students in some of these activities was minimal. Yet
students had reached the field not to be idle but rather to engage effectively.
This was an account of Ongom
Raymond, Aol Brenda Peace, Akumu Glora Blick, Adong Lucy, Akello Dora, Pimer
Alipa Hope, Adoch Phiona law students of UCU under the supervision of Ms. Mirriam Achieng, Lecturer
at UCU.
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