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Lies about Uganda’s Customary Tenure Systems

 

Photo credit: Digging up the grass lawns at the CPAR Uganda Ltd Lira Base Camp, its headquarters, in order to establish urban agriculture for food. Photo was taken by Norah Owaraga.

The onslaught against Customary Land Tenure not only violates the Constitution of the Republic of Uganda, it is for the most part based on factoids. Take for instance the following statement:

“Customary land that we talk about, if am under my father, the land is in the names of my father, so if it is Okello that is Okello’s land. So based on my relationship with him, he may give me land he may not give me land. So rather the youth does not have land. The fathers can have the land, but based on the family relationship that land belongs to the father.” 

This statement was made by a Government of Uganda (GOU) employee. Let us call him Esaban for the purpose of this discussion herein. He made the statement during a major forum organised by the Ministry of Agriculture Animal Industry and Fisheries (MAAIF) - the Joint Agriculture Sector Review (JASAR) 2016. 

Esaban’s statement is typically in the tone of factoid filled statements that are used – intentionally or unintentionally - to promote falsehoods about Customary Tenure.  Factoids are lies presented as fact, which Esaban seemingly did in his statement.

The Constitution (Republic of Uganda 1995) clearly stipulates as follows:

“Chapter Fifteen: Land and Environment, 237, (3): Land in Uganda shall be owned in accordance with the following land tenure systems – customary; freehold; mailo; and leasehold.”

Of all the four types of land tenure in Uganda, perhaps the most misunderstood and most misrepresented is Customary Tenure. A common factoid that is pedalled about Customary Tenure in Uganda is that it is all communally ‘owned’. This is not exactly 100 percent true. The manner in which Customary Tenure is regulated and ‘owned’ in Uganda is as diverse as the different nations – over 56 first nations – which make up Uganda. 

“The rules of customary law vary in different parts of the country. The Land Act 1998 states that customary land tenure shall be governed by rules generally accepted as binding by the particular community, and anyone who acquires land in that community shall also be bound by the same rules.” Denis Obbo, the spokesperson at the Ministry of Lands, Housing and Urban Development, as quoted in the Daily Monitor 

So, firstly, Esaban clearly promotes a factoid which would make it appear that his father Okello is not governed by any rules and can do as he pleases - as in Esaban alleges that his father Okello has autonomy to decide not to allow access to land to his son on the basis of family relationships gone bad. Not exactly true, for according to the law Okello is answerable to and is governed by rules generally accepted as binding by his particular community under whose jurisdiction the land that is ‘owned’ by Okello is located.

The name Okello is common among the peoples of Uganda, the first nations, that are grouped under the category “The Nilotics” (Tumusiime 2011) and they include: The Acholi, the Alur, the Jopadhola, the Sabiny, the Langi, the Iteso, the Kumam, the Karimojong, the Kakwa and the Nubi. The Nilotics predominantly claim and occupy lands of the Greater Northern Uganda, where the current predominant land tenure system is Customary Tenure.

My experiential learning and expertise on Customary Tenure I have primarily derived from among my people, the Iteso, and being one who has built a home and is farming as a business on land that is ‘owned’ by my father, which he inherited from his father before him, and which he has accessed to me to be used within our community rules.

My experiential knowledge of Customary Tenure among the Nilotics is that ownership of land is not necessarily defined in the same way as ownership of land is defined under Leasehold. Under our community Customary Tenure rules, when one is designated ‘land owner’ it is not the same as when one is designated ‘land owner’ under Leasehold. 

The major difference is that under Customary Tenure it is mostly the case that the ‘land owner’ owns use rights, but does not have absolute rights over the land that give him/her the authority to sell the land. Therefore, to discuss land ownership under Customary Tenure within the paradigm of land ownership under Leasehold, as Esaban does, is misrepresentative and such discussions, as is often the case, as exemplified by Esaban, will more likely be based on factoids.

Under Customary Tenure, therefore, it is not so much about ownership in the Leasehold-sense of ownership it is much more about use-rights. If Customary Tenure systems are allowed to work properly, Okello does not have absolute authority to deny land use rights to his son, Esaban, over a flimsy relationship problem, because the community rules would likely not allow it. 

Esaban, and unfortunately many other elitist Ugandans, shamelessly peddle factoids about Customary Tenure as though it were a system without rules in which individuals do as they please without being governed by the law. 

Sadly, this pernicious attitude in many cases has made it into significant policies and reports now pedalled as facts that are used to persuade people of the need to ethnocide Customary Tenure rather than allow it to evolve. I pray that the onslaught against Customary Tenure is halted soon and that its planned ethnocide does not succeed.

This article is written by Norah Owaraga, CPAR Uganda Ltd Managing Director (April 2012 to date). Read more about her here. Please note that Norah’s views are not necessarily those of CPAR Uganda Ltd. 

Works Cited

Republic of Uganda. Consitution of the Republic of Uganda. Kampala: The Law Development Centre, 1995.

Tumusiime, James. Peoples and Cultures of Uganda - Fourth Edition. Kampala: Fountain Publishers, 2011.