Contested Land Ownership in Ugandan North
Court case exposes shortcomings of legislation as property disputes threaten now-peaceful northern region.
By Arthur Okot, Gillian Lamunu, Bill Oketch - International Justice - ICC ACR Issue 316, 26 Mar 12
Ugandan lawyers have criticised a recent ruling in a controversial land dispute in the north of the country, warning that it highlights a gap in the legal provisions that underpin customary land ownership.
The ruling comes as rights groups warn that widespread land disputes in northern Uganda are threatening the region’s fragile peace at a time when communities are trying to rebuild their lives after years of conflict.
This week’s ruling at the high court in Gulu concerned a case brought in November 2008 by community members in Amuru against the district land board, which had awarded 40,000 hectares of land to the Madhvani Group conglomerate and another 1,700 hectares to two other individuals earlier that year.
On February 2, high court judge Wilson Masalu Musene found against the community, ruling that it did not hold the land in customary ownership, and that the Amuru district land board had therefore acted within the law in allocating it to the company and individuals.
Referring to Uganda’s Land Act of 1998, the judge found that the contested territory was unoccupied public land and hence fell under the control of the district land board.
The community plans to appeal against the ruling.
Land disputes have become widespread in northern Uganda following the 20-year war with the rebel Lord’s Resistance Army, LRA, which uprooted nearly two million people in the region.
Over the last five years, people have steadily been returning home from the north’s 250-odd displacement camps. On arriving home, however, many find that their land has been settled by others in their absence, or that boundaries have been moved. As the region seeks investment and redevelopment funds, incoming businesses have purchased land, further complicating local efforts to assert ownership.
LAND ACT DIVERGES FROM CONSTITUTION
Some lawyers have criticised the court decision, arguing that it exposes an inconsistency between the Land Act and the 1995 Ugandan constitution which enshrines rights of customary land ownership.
Customary ownership as a category is accorded a status equal to that of leasehold, freehold and “mailo” (landholdings by chiefs and rulers) in the constitution, although the document does not provide legal definitions of any of these types of tenure.
However, the Land Act 1998 presents an altered legal reading of the position by creating with disparities between different kinds of ownership. What this means in practice is that a freehold owner will have a land title showing ownership in perpetuity, whereas customary ownership does not entail such a title. This makes traditional ownership rights more susceptible to conflicting claims.
The high court judge in Gulu ruled that the land in question was deregistered as a game reserve in 1972 and then reclassified as “public land” under the auspices of the Uganda Land Commission, before being passed to the local land board.
“The decision in this matter was the first of its kind in Uganda,” Francis Gimara, a lawyer and the executive director of the Centre for Public Interest Law in Kampala, said. He noted that the 1995 constitution placed all land in four equally lawful categories of ownership – but this did not include any mention of “public land”.
“You cannot say the notion of public land in northern Uganda can be sustained under the 1995 constitution,” he said. “That is the problem I have with the judgement – that it did not [take into account] the 1995 constitution.”
Under customary land tenure rules upheld in the constitution, it is community leaders and traditional institutions that adjudicate on matters of use and ownership.
The applicants in the Amuru case therefore argued that the Madhvani group and other parties seeking to buy the land should have applied to the community rather than to the local land board.
The community felt it should either have been called on to decide the land dispute, or should have at least been consulted and some compensation agreed on.
As Judge Musene wrote in his ruling, however, the 1998 land law does not provide a legal mechanism for this to happen.
According to some legal experts, this lack of a legal framework for consultation runs counter to the right of communal ownership set out in the constitution.
As Gimara put it, “As much as the constitution provides that there is customary land ownership, the enabling law, the Land Act, does not…. provide key roles to the community – key organs like traditional institutions – to adjudicate over land matters and provide leadership. That is the weakness of the Land Act, in that it does not put into action the intention of the 1995 constitution.”
The court ruling now means the Amuru community cannot expect any remuneration.
“You have a dual process, one that works with the people but [is] not backed up by law, and… a formal process that is not working at all,” Gimara said. “That is why you see there is an escalation of land disputes in northern Uganda because the law is framed wrongly, and if something is framed wrongly you don’t expect the judge who is implementing the law to do any better.”
BIG IMPLICATIONS FOR DISPUTES IN NORTH
Legal experts warn that given this disparity in law, the Gulu court’s ruling – if upheld on appeal – could set an important precedent for other customary land ownership cases.
Charles Toolit, a lawyer in Gulu, called for a constitutional review of the decision. There was, he said, “a huge need to seek constitutional interpretation.
“For those holding customary land, what more guarantees or protection do they have, particularly now that they can’t have it in the law?” he asked.
The case is of particular concern in northern Uganda, given the legacy of mass population displacement there.
In his ruling on the Amuru case, the judge stated that large swathes of the contested land were unoccupied. Other communities could be harder hit by the loss of communal lands.
“The implication is social displacement,” Paul Manzi, a land lawyer in the town of Arua in the far northwest of Uganda, said. “People are going to be displaced, they are also most likely going to be rendered landless and it can also disrupt the livelihood of households,”.
In some parts of the north, land ownership cases now account for more than 50 per cent of complaints coming before the courts. Often these disputes descend into violence as communities feel disenfranchised or whole clans come together to face a rival claimant.
“The sentiments we hear expressed by community members – people saying [they] will die for this land or that you will have another LRA – I mean, all of these are early warning signals,” said Moses Okello of the Kampala-based Refugee Law Project, which monitors the post-conflict situation in northern Uganda. “The [approach to these cases] ought to be re-examined with a view to nipping in the bud any violence that will emerge in the future.”
In Nwoya district, which neighbours Amuru, 200 huts were burnt in the Koch Goma area on March 6 as a result of a land conflict. A dispute between two individuals claiming ownership escalated into violence when clan members from surrounding areas got involved.
“In terms of post-conflict stability, I think you do have a challenge here,” Okello said. “There are a lot of emotions involved, even when the [land] conflict has now been settled. New emotions have been whipped up and people are up in arms, and this creates an extremely fragile situation in which anything could happen.”
Observers are calling for the government to step in and ensure that the application of the law considers the natural rights of citizens.
“A perfect legal decision can also cause social hardship, and the government has overall responsibility to make sure society does not disintegrate,” Manzi noted.
In the Madhvani case, the government says it will liaise with the local community in an effort to get them to accept with the court decision and make them aware of the potential investment the company’s presence would bring.
Amuru sub-county council chairman Kilara James also called for engagement.
“I would advise the community to be calm. Let the Madhvani case be completed, then we will call for Madhvani to come and meet us so that we benefit from that development,” he said.
Such dialogue will be crucial if tensions are to be defused.
“Some of these communities feel like they have lost so much from the conflict and their land is all that they really have left,” said Lindsay McClain of the Justice and Reconciliation Project in Gulu. “I don’t think the communities are against investment, but the method by which the thing is being handled isn’t involving them, [or] even allowing them to really have a say on whether or not they want these investors to come into their communities.”
Arthur Okot, Gillian Lamunu and Bill Oketch are IWPR reporters based in Gulu. They report for IWPR’s Facing Justice radio programme, which is broadcast across the region in partnership with the Northern Uganda Media Club. Moses Odokonyero, head of the Northern Uganda Media Club and IWPR’s Africa Editor, Simon Jennings, also contributed to this report.