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April 21, 2009

The challenges of modernising land legislation in Uganda

by Rachel Keeler

Uganda’s new land policy aims to modernise land rights and streamline the land administration to support investment, both in agriculture and other sectors. However, inconsistencies in the proposed regime, corrupt land handouts and a distrust of the intentions of the central government make this a potentially explosive initiative.

Convoluted traditional tenure systems have dominated land use in Uganda for more than a century. Deadlocks between land owners and tenants, vague and often disputed communal rights, and a basic lack of clear administration have kept the country from developing much of its land.

After many failed attempts to address these problems, the government is now in the final stages of producing a National Land Policy—a sweeping piece of legislation that would modernise land rights and streamline administration to support national development planning. The stated intention of this legislation to cultivate the urban market, introduce new technologies to smallholder farming and attract investment for commercial agriculture.

But while Ugandans support the idea of development and job creation, many are wary of reforms that they fear could undermine social tradition in favour of modern exploitation. Political and ethnic tensions also come into play: Leaders from the influential Buganda Kingdom—the region that surrounds Uganda’s capital city, Kampala, and is home to the nation’s largest ethnic group—have accused President Yoweri Museveni of colluding with foreign investors to steal their traditional land. Sentiments are much the same in the eastern and northern regions. And in the west, land-related suspicions have been mounting on all sides ever since oil was discovered along the Lake Albert basin in 2006.

“There is a new awareness of the value of land now, especially with the discovery of oil and minerals,” says Alex Nkabahona, a lecturer on peace and conflict studies at Kampala’s Makerere University. Prompted by outside investor interests, locals are now beginning to look at land as a source of commercial capital. But this transition is in its early stages: As in much of sub-Saharan Africa, land is a highly emotive issue, and Ugandans continue to link cultural heritage and community cohesion to land rights, creating an intractable combination of economic pursuit and identity politics that has gridlocked the debate on land reform.

With a presidential election set for 2011, many are watching the land issue closely to see if Museveni can implement much needed modernisations without further alienating traditional authorities. Successful reform would open myriad opportunities for new investment and improved food security in one of the fastest growing economies in sub-Saharan Africa. But more failed attempts could destabilise the country where public frustration with the president’s unwillingness to allow a succession is growing. Which way will Uganda go?

Agriculture still dominates Uganda’s economy, accounting for more than 40% of GDP, 85% of export earnings and 80% of employment. However, productivity in the sector is low, and while coffee, tea, cotton and tobacco are major exports, commercial agriculture remains highly underdeveloped. The UN’s Food and Agriculture Organization (FAO) estimates that 80% of the country’s land is arable, but only 35% is exploited. Investment in agriculture accounts for less than 10% of the country’s FDI.

Situated at the crossroads of east and central Africa, Uganda has the potential to export more agricultural products through trade routes into Kenya, Tanzania, Southern Sudan, Rwanda, the Democratic Republic of Congo and beyond, becoming a bread basket for the region. This aspiration has become more urgent over the last year as soaring food prices, drought and the recent maize scandal in Kenya have led to a deterioration of food supplies in East Africa. The Famine Early Warning Systems Network reported in January that 6m people are currently “highly food insecure” in Kenya and Somalia. Shortage-inspired cereal export bans remain in place in Kenya, Ethiopia and Tanzania. Throughout the region, agricultural productivity is dismal.

Uganda hopes to meet this demand by opening up large plots of rural land currently stagnating under subsistence farming for commercial investment. But to do so, extensive reform is needed.

Buganda Traditional Lands
However, if the current fight over Uganda’s pending Land Amendment Bill is any indication, achieving workable holistic reform in the near future is unlikely. The amendment, meant to address occupant security ahead of the national land policy, has met fierce resistance from virtually everyone involved. Of particular contention are the implications for tenant-landlord relations under Buganda’s mailo tenure system—a feudal arrangement set up in 1900 by the British under which the Baganda elite govern tenants living on their traditional land.

Outside of Buganda, tenant-landlord relationships also exist under freehold tenure. Freehold and mailo, along with land leased from the government, account for the 20% of Uganda’s land that is formally registered, most of which is in urban centers. The remaining 80% is managed informally in rural areas by various traditional systems referred to collectively as customary tenure.

In 1975, then President Idi Amin nationalised all land in Uganda, legally obscuring private rights. After President Museveni came to power in 1986, the 1995 Constitution and the 1998 Land Act attempted to re-legislate land rights. However, land evictions became a problem and eventually inspired the currently proposed amendment of the Land Act. The amendment provides that tenants who have lived unchallenged on registered land for 12 years or more, or who are settled on the land by the government, cannot be evicted for any reason other than non-payment of a nominal ground rent.

Buganda argues that the amendment paves the way for the government to settle ‘foreign tenants’ - foreseen as government-backed investors - on their land who the landowners would be powerless to evict. The amendment also grants increased power to the Lands Ministry to set the ground rent, which had previously been decentralised to district land boards. And in a section since removed following vociferous opposition in rural areas, the amendment had proposed customary land evictions be handled by official courts rather than traditional institutions.

In many ways, the amendment makes little sense: Its main provisions increase executive power while failing to address the real problems at hand. "There are too many land problems and the piecemeal approach is not going to solve them,” the Uganda Human Rights Commission commented last April. A study by the Busoga Kingdom concluded: “Legally, the amendment is unconstitutional and was not designed to answer the needs of the society.”

Improved tenant security simply exacerbates dual claims to land in Buganda where title owners are unable to sell their occupied land and tenants find it difficult to develop the land they occupy because they do not own the title to it. The attempt to abruptly transfer customary land adjudication from traditional leaders to official courts also signalled a lack of understanding or will for workable solutions by a government already suspected of mal intent. These are problems that a national policy must broach. But Museveni’s insistence on passing the amendment first has diminished hope for honest progress on the national policy to come next.

Development Planning and Investment
Indeed, the controversial issues presented by the land amendment are a meek preview to the stickiest points in the national policy, the third draft of which was released for public debate in 2007. In its comments on the draft, the Land Equity Movement of Uganda (LEMU) wrote: “The powers of the state to acquire land from private landowners where the owners do not want to relinquish their land rights is bound to be one of the most controversial aspects of land policy and land law.” The draft proposes expanding the state’s constitutional powers of eminent domain to include appropriation for “carefully defined investment”, and conversion of all urban land from mailo or freehold tenure to leaseholds.

On the surface, the government’s argument is strong, especially in urban areas. Much of the land around Kampala is caught in a deadlock between mailo landowners and tenants, with neither side able to develop the prime real estate. Informal settlements ‑ largely slums ‑ are home to 56% of the capital’s population. Policymakers say leaseholds are better suited than the outdated mailo system to manage investment in housing, infrastructure and recreation development for the urban market.

But conversion of mailo/freehold to leased land would strip landowners of their perpetual titles, and the draft does not clarify how they would be compensated. Buganda’s leaders are adamantly against the idea. And land appropriation for investment was already rejected by parliament in 2005. As in many African countries, popular scepticism remains whether the government will respect private land rights and “carefully define” investment (whether in urban or rural areas) for the good of the people. LEMU writes: “It has been generally recognised that this would be too dangerous in the context of Uganda. It would effectively undermine everyone’s security of tenure. Even in the absence of this legal provision, we have seen far too much illegal and unconstitutional expropriation of land for investors.”

Kampala residents often talk of land haphazardly given away by the Museveni administration to developers. One dispute arose in October between the government and local hotelier Sudhir Ruparelia when President Museveni agreed to give land previously allocated to Ruparelia away to the Kenyan government instead. Ruparelia was originally given the disputed land to make up for another 15 acres in central Kampala he had been promised but which were instead gifted under unclear circumstances to Prince Al Waweed, a Saudi Arabian investor. Uganda has consistently drawn some of the highest levels of FDI in East Africa since liberalising its investment regime. However, lack of formal policy and the uncertainty surrounding these kinds of land arrangements continue to make potential urban investors nervous.

The draft national policy recognises these issues. Exactly how policymakers intend to address them remains open for debate. LEMU proposes that the state helps investors to lease land directly from current landlords. Rather than become a landlord itself, the state should offer administrative support and regulate urban planning, taxing undeveloped land where needed to deter neglect. Officials are considering resurrecting (i.e. actually funding) the Land Fund created 10 years ago to help mailo tenants buy out full title from their landlords. There is also a need to fund the district land boards and land tribunals that were established in 1995, but which have yet to function properly, and to continue with simplification and cleaning out of the corrupt land registry system.

Customary Land and Commercial Agriculture
The national policy draft has been praised for is its support for customary tenure and a gradual harmonisation of modern administration with traditional systems. What is not clear is how land disputes will be managed in the interim, given the recognition that this transformation will take some time.

Customary land arrangements in Uganda’s rural districts vary based on family, clan and tribal systems. Traditional elders are usually responsible for administration. In many areas, individual family rights are recognised based on lineage, as in the northern Acholiland where a family’s plot is passed down from father to son and demarcated by traditional boundaries such as rivers and trees. Through the district land boards, the government has been pushing to officially survey more of this land and issue certificates of ownership. This is seen as the first step toward commercial expansion.

But going from informal subsistence farming to bread basket production will not be easy. The Madhvani Group recently solicited 40,000 hectares of land in northern Uganda on which the company planned to build a sugar plantation. The request was backed by President Museveni and met immediately by accusations of land grabbing from northern politicians. The case is now languishing in court, while Madhvani has said it is looking for a new plot in neighboring countries. Rural landowners in the same region have also accused military officers of manipulating the district land board to obtain illegal titles on large plots of customary land that had been abandoned by internally displaced people during the LRA war. Despite being chased by the Ugandan military into neighboring Congo, rebel leader Joseph Kony’s failure to sign a peace deal remains a peripheral threat to stability, although redevelopment has already begun in the north.

Many in rural areas believe the surveying and certification of land could dissolve into widespread corruption and lead to more land insecurity. At the same time, traditional authority to adjudicate land disputes is waning, especially for the younger generation, in the war-torn north and in regions where oil and minerals are at stake. In the west, where Tullow Oil has drilled several successful wells and plans to begin an early production scheme soon, skirmishes over customary land between farmers and pastoralists are common and often unresolved. Mistrust of government intentions for the use of natural resources is high throughout the country.

Workable middle ground is desperately needed: Commercial investment in rural areas will require enough involvement from official adjudication systems to give investors confidence in contracts signed. It is unclear how this can be achieved through traditional institutions. LEMU has also said that landowners in rural areas are unwilling to use their land as collateral for loans on rain-fed agriculture. Credit facilities need to be more accessible and irrigation introduced. Soil maps and land potential data are also scarce and unreliable.

Uganda’s dual authorities
Still, the greatest political threat to Museveni’s reform agenda comes from Buganda. “The great political riddle of Uganda politics is that the largest nationality in the country is gripped by a minority psychology,” said prominent Ugandan scholar, Mahmood Mamdani at a Buganda land reform conference last year. His message was that Buganda’s leaders are irrationally fearful of modernisation because they associate it with foreigners, whether international investors or non-Baganda Ugandans. Buganda sees itself as a separate political entity, which means its leaders may continue to resist any kind of uniform national policy on land.

Museveni himself is seen as an ethnic outsider in the kingdom and relations are growing colder by the day. Confrontation over the land amendment led to the highly publicized arrest of three Buganda officials last year. But overall, the president has tread lightly on land reform because Buganda remains an essential pillar of his political support base. A poll conducted by the Steadman Research Group in Uganda last fall showed that Museveni retains less than half of the country’s support. Many predict the 2011 election will be hard fought, if not mired in violence and fraud – and land will be an issue that can mobilise large numbers of citizens disgruntled with Uganda’s endemic corruption and Museveni’s refusal to relinquish power.

Analysts have warned that the land question threatens to destabilize the country if not answered effectively. Nkabahona wrote last February: “The fighting slogan in Buganda is ‘Ettaka Ligenda,’ meaning, government is hiding behind the proposed amendments to grab Buganda land. In the South, land issues are especially ‘hot’ in the districts of Kasese, Kabarole, Hoima, Kibaale, Kiboga and others. Some of the contentious issues in this region are tribal and ethnic based while others have to do with illegal immigrants and more recently the scramble to buy land in the oil rich and other vital mineral areas of the region. If this is not a time bomb for Uganda then what is it?

Uganda’s new land policy aims to modernise land rights and streamline the land administration to support investment, both in agriculture and other sectors. However, inconsistencies in the proposed regime, corrupt land handouts and a distrust of the intentions of the central government make this a potentially explosive initiative.

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