WRITTEN BY NORAH OWARAGA
“Uganda’s dualist land tenure system is a root cause of conflict over land use and ownership. The current land tenure laws facilitate land alienation, threaten livelihoods and contribute to food insecurity. Given the nature of land disputes in Uganda, reform is needed to move forward and develop a land tenure system that works for the country. Examples of different models from other countries, like China, may offer inspiration for an improved system in Uganda.”
I surmised in 2011 in a backgrounder – a policy brief on Uganda’s land tenure – that I authored for the Centre for International Governance Innovation (CIGI), who published it in 2012 on their Africa Portal. Read more: http://www.africaportal.org/dspace/articles/conflict-ugadans-land-tenure
Dr. Rose Nakayi, a Lecturer at the Faculty of Law at Makerere University Kampala on Thursday, 6th November 2013, validated my conclusions during a presentation that she made at the launch of a Kigo Thinkers paper: “The Land Question” #KigoThinkers. She did so beautifully from a clear lense that enlightened on the issue from the perspective the judiciary and the challenges that Uganda’s land tenure system presents in terms of resolving conflict associated with land use and land ownership. Here below is a transcript of the first part of what Dr. Nakayi said during the Kigo Thinkers event:
There are a lot of simultaneous claims to land – claims to the same piece of land that are all legally recognised. For example, registered owners of land are protected and at the same time bibanja holders are also protected within the law. Imagine a situation in court where you have a matter between these two people? Both of them are protected by the law. Definitely, there might be an issue regarding whose interests to protect – since both of them are provided for or are protected by the law. This means that dealing with land issues within the context of the judiciary, a formal institution, is not as easy as a tick box exercise – the plaintiff has presented, tick; the defendant has presented, tick; who is the winner.
And, of course, that makes me think deeper about whether a legal focus is not a narrow focus. I am looking at a situation where the land question that we are dealing with in this particular case is not purely legal. It could have a social dimension. We all know that the kind of justice which comes through our courts is a winner versus looser justice – one person wins, the other person looses. But these are people that are both protected by the law. So thinking forward, I think it is important to interrogate that question deeper. Can winner loose justice be appropriate for all kinds of contentious questions on land that come to our courts of law? My guess is that it wouldn’t.
Now, a contextual issue that I would like to flag here is the training of lawyers. In the judiciary you find lawyers acting as judges or magistrates, you find lawyers pleading for defendants and plaintive – lawyers that have been trained in a (global)-western tradition of black letter rules of the law. Usually the question is what does the law say? When you look at the land issue in Uganda, not all answers can be found in the law. The historical context of Uganda’s land tenure is evidence of this. It is a multi-dimensional question that cannot be resolved by looking at the law – and at the same time it is politicised.
Look at the contents of our law. They are mostly a product of politics. We all know that law making is like sausage making. The worst meat is used to make sausage. If you know how sausages are made you can’t eat them. When you look at deliberations in processes of making laws, they are about political leveraging, in the sense that someone will present an amendment to a law having thought about who is going to benefit or who has political clout to influence a certain outcome and therefore there issues should be considered in the law. Uganda’s land act has been amended a number of times – the ones that I can keep track of are 2004, 2007 and 2010. Let’s just take 2010, before the 2011 elections, right, and what amendments does it make? Strengthen protection for bibanja holders. How many bibanja holders? Do they have the vote? Yes.
So the point I am trying to make here is that we cannot look at the land question purely through the law, because the law is a product of political leveraging and might not necessarily always represent what we or the people may want as an outcome.
The author is one of the founding Kigo Thinkers.