CURRENT STATUS AND CHALLENGES IN THE LAND REFORM PROCESS IN UGANDA: AN NGO PERSPECTIVE

Transcription

1 CURRENT STATUS AND CHALLENGES IN THE LAND REFORM PROCESS IN UGANDA: AN NGO PERSPECTIVE By Margaret A. Rugadya Programme Officer Uganda Land Alliance 5 th 7 th MAY 2003, Cape town, South Africa 0

2 INTRODUCTION This paper will look at the reform process in Uganda in two parts and at two levels. In the first part, the paper will lay a brief background based on historical periods that are recognizable, notably:?? Before colonialism ?? ?? ?? to date. The second part of the paper will analyze the current situation as far as implementation of reforms is concerned and will touch on major challenges being experienced in the implementation process in the Land Sector. Broadly but briefly it will tackle the following areas:?? The Land Tenure Reform Project (MWLE 1 )?? The Land Sector strategic Plan (2001)?? Institutional reforms?? Policy and legislative reforms?? Redistributive reform for Marginalized Groups?? Land Information systems?? Land Markets?? Aspects of Agrarian reforms The paper will conclude by urging, lesson learning and sharing of reform experiences in the sub Saharan Africa region to avoid a duplication or repeat of mistakes committed else where. PART 1: HISTORICAL BACKGROUND TO THE REFORM PROCESS Before Colonialism Until 1900, the prevalent mode of land tenure in Uganda was customary tenure. This meant that customary rules of about 140 major ethnic groupings governed access to, utilization of and parting with land in a given ethnic area. Land relations in pre-colonial Uganda can be looked at in three ways:?? Feudalism, where access to land was controlled by an oligarchy in which political power in society was exclusively vested. Security of tenure for land users was based on continuous loyalty to that oligarchy. The payment of tribute in the form of produce and gifts was norm and a requirement as evidence of that loyalty, mainly in the kingdoms of Buganda, Bunyoro, Busoga and Toro.?? A complex network of reciprocal bonds within families, lineages and larger social units to protect governed territorial control in which access to land resources and guarantee individual and community rights as prescribed by custom. As long as such bonds remained, any individual or group of individuals could secure access to the resources of 1 MWLE: Ministry of Water, Land and Environment 1

3 that community. This system of land relations continues in operation in all of the arid and semi-arid regions of Uganda.?? Land relations were defined not only by the network of social relations prevalent in each community, but also by the specific uses to which parcels of land occupied by individual families, clans or lineages were put, this was common in the non-feudal sedentary communities. In this system, there was recognition of individual rights as well as community obligation by virtue of access to such rights. Period: During that period, reforms were limited to land administration and regularization of land holdings to increase tenure security. Four major tenure systems of Mailo, Freehold, Leasehold and Customary came into existence.?? A number of private estates called Mailo in Buganda and native freeholds in Toro and Ankole that were broadly equivalent to the English freehold were granted to traditional rulers and their functionaries, through agreements by the British authorities. This legitimizes the feudal system of land tenure in existence, and firmly conferred upon landlords absolute control of land, which they never had under customary law.?? For the rest of Uganda, all land was expressly declared to be crown land and all land users became, at the stroke of the pen, tenants of the British crown. The colonial government proceeded to grant a limited number of freehold estates to selected individuals and corporations. Period: A major land reform in Uganda was attempted in 1975, when the Government of President Idi Amin issued a decree called The Land Reform Decree which declared all land to be public land and vested the same in the State to be held in trust for the people of Uganda and to be administered by the Uganda Land Commission. The decree abolished all freehold interests in land except where these were vested in the State in which case these were transferred to the Land Commission. It also abolished the Mailo system of land tenure and converted them into leasehold of 99 years where these were vested in public bodies, and to 999 years where individuals held these. All laws that had been passed to regulate the relationships between landlords and tenants in Buganda, Ankole and Toro were also abolished. Elsewhere customary land users became tenants at sufferance of the state. The Decree, though not fully implemented on the ground, persisted until 1995 when a new Constitution was enacted and impacted on:?? Tenure systems and Tenure Security: the reform reduced the tenure systems from four major ones to two namely; leasehold and customary tenures; and caused land tenure insecurity to land owners, bibanja holders and customary tenants alike in the sense that: - mailo and freehold estates were reduced to leasehold and no compensation was paid for the reduction, customary tenants on public land were declared to be tenants at sufferance and the land they occupied could be allocated to other people. Tenants became liable to eviction by lessees on conversion after a notice of not less than six months.?? Contrary to the intended objective of facilitating use of land for economic and social development, the Decree aggravated the previous landlord and tenant impasse. There was 2

4 social tension caused by actual or threatened land grabbing and evictions from land. This state of affairs did not encourage or facilitate economic activities. It should be noted, however, that in relative terms few cases of actual land grabbing and evictions from land were recorded. Cases of grabbing were few but the threat of losing the land caused enormous tension. What Sparked Off the Current Land Reforms? In 1983, Government recognized the need for having a sound agricultural policy to rehabilitate and develop the agricultural sector. The study on land tenure led to discovering that Government lacked sufficient information on the implications and impact of the 1975 Land Reform Decree on agricultural development in the Country. Makerere Institute of Social Research (MISR) and the Land Tenure Centre (LTC) of the University of Wisconsin Madison, USA, undertook studies. Consequently in 1993, a draft land bill was produced but it was overtaken by events as the Constitutional making processes was on going, at the time, therefore government felt it was prudent to delay legislating on land matters. Period: 1995 To-Date The current land tenure reforms were essentially introduced by the 1995 Constitution and operationalised by the Land Act, 1998.?? That Constitution abolished the Land Reform Decree and restored the systems of land tenure that was in existence at independence. These were re-stated as customary land tenure, freehold tenure, leasehold tenure and Mailo tenure.?? It made new and radical changes in the relationships between the State and the land in Uganda. It declared that land in Uganda would henceforth belong to the citizens of Uganda and vest in them in accordance with the land tenure systems outlined above.?? It set up a new system of land administration consisting of Land Boards in every district,?? Although the Uganda Land Commission was re-established, the Constitution made it clear that District Land Boards were to operate independently of that Commission and was not subject to the direction or control of any person or authority. They were, however, expected to take account of national and district council policy on land.?? The Constitution further provided that Parliament would provide for the establishment of land tribunals, the jurisdiction of which would be to determine disputes relating to the grant, lease, repossession, transfer or acquisition of land by individuals, the Uganda Land Commission or other authority with responsibility relating to land, and the determination of any disputes relating to the amount of compensation to be paid for land acquired.?? Finally, the Constitution reaffirmed the authority of the State to make laws regulating the use of land. It should be clear from what has been stated above that at least until 1995, the characteristics of the land question in Uganda were no different from what they were during the colonial period. First, the feudal system of land tenure remained a feature of land relations; secondly, customary land tenure systems remained unregulated and completely outside the statutory framework of land law of the country and, thirdly, the system of land administration was in no way integrated into the land tenure framework of the country. 3

5 The 1995 Constitution and a new law passed in 1998 did not entirely deal with the fundamental issues underlying these characteristics. The primary reason for this was not simply that the Constitution had set the parameters for the new land laws; it was also because no clear policy principles existed to inform legislators in the enactment of that law. PART 2: STATUS OF REFORMS AND CHALLENGES: The provisions of the Constitution and the Land Act, 1998 have led to tangible land reforms, which are being implemented today. The process has been an uphill task for government to carry out in totality. Little attention was paid to aspects of implementation and resources requirement at the time of drafting the reforms. There is therefore a need to re-think how to move forward, the fruit of this thinking has been, the Land Tenure Reform Project. 1. Land Tenure Reform Project The Project set out to accomplish three main outputs:?? Awareness of the provisions of the Law by the general population in order to reduce resistance to it.?? Set up of effective and least cost by institutions for implementing the law.?? Development of a medium and long-term strategic plan to guide the implementation process, with an investment programme to guide the allocation of resources for the implementation process. The project formed or composed steering Committees, an Implementation Advisory Panel, Various Working Groups (Land Regulations, Sensitisation, Land Fund) and a Coordination Unit to give coordination and secretarial support, to operationalise the reform project. These Committees and working groups are composed of technical staff from Ministry of Lands, stakeholders from other government departments and civil society organisations. The Uganda Land Alliance is part of the Sensitisation Focus group, the main steering Committee for the implementation process and the Land Policy working group. Current Status?? A number of achievements have been made on the part of sensitisation regarding abridging and simplifying the law, which has been translated into translated into various local languages. Media programmes were developed and 17 local NGO s have been facilitate to develop their own sensitisation programmes with support and supervision from the project, Sensitizers have been trained at district level and members of land tribunals have also been trained. Children s land rights are due to be advertised on exercise books.?? On setting effective and least costly institutions for implementing the Law, the project has nurtured 45 District Land Boards and 56 District Land Tribunals on a Circuit basis. It has drafted an Amendment Bill to reduce the number of Land Tribunals and Land Committees, and has made administrative changes for the smooth implementation of Land Reforms; these are currently under debate in Parliament. The project also facilitated the development of Land Regulations and the development of procedural tribunal rules. 4

6 ?? On the Medium and Long Term Strategic Plan, the Land Sector has developed the Land Sector Strategic Plan through a consultative process at National, District and Sub - county level, provides operational, institutional and financial framework for the implementation of the sector reforms, land management and the implementation of the Land Act. The plan is intended to guide Government, Civil Society and Private Sector in the management of Uganda s land resources.?? Sensitization of the people poses the biggest problem. Many people misunderstand the good intentions of the reforms by associating the exercise with higher taxes. Some even think that government wants to take their land. Landlords also fear that the tenants want to grab their land. 2. Land Sector Strategic Plan (LSSP) The Land Sector Strategic Plan (LSSP) was designed:?? To provide a framework for the contribution of the land sector to PEAP 2, PMA 3 and other key government policies and programmes.?? For successful implementation of Constitutional reforms and Land Act 98 using a sector wide approach and addressing sector wide issues, considering the fact that there is a wide range of actors in land sector.?? To create an enabling environment for the participation of all stakeholders in effective management of Uganda s land resources. Specifically, it was to increase land utilization and expand land services, strengthen land rights especially of the vulnerable groups and women, empower the local government and communities to make and implement their own policies and plans for their land and to provide a supportive framework for sound natural resource management: It is in two phases: Medium term ( ) which concentrates on establishing the basic policy, establishing institutional and technical frameworks, developing techniques and processes and test them, and the Long Term: ( ) consolidate and expand upon the processes and techniques developed during the first phase. 4 The LSSP prioritizes land sector activities and sorts out the challenges of delivering land services in a decentralized, liberalized environment and provides a framework for increasing participation in the land sector, empowering local governments, communities and individuals to make more effective use of their land. It is a framework for strengthening cross-sectoral links on land sector issues. Status?? The draft LSSP has been developed over the past year through research, analysis and consultation with stakeholders. 5 However, the scope and content of some of the activities to be undertaken is yet to be agreed, this means that changes should be expected. It is 2 Poverty Eradication Action Plan (Uganda s PRSP paper) 3 Plan for Modernisation of Agriculture, Richard Oput, Analysis of Economic Rationale and Investment Programme for LSSP, April, 2003, Jinja 5 Richard Oput, Analysis of Economic Rationale and Investment Programme for LSSP, April, 2003, Jinja 5

7 acknowledged that the Plan is not yet finalized and learning from the first phase, will be important here.?? Aspects of monitoring the wider impact of LSSP on the Poverty Eradication Action Plan (PRSP) had not be fully tackled in the process of drafting the LSSP, therefore steps are being made to accomplish this task.?? As a framework, the LSSP has been essential in re-establishing the land sector as a priority for funding from the national treasury. Previously the costing for implementation of reforms had not been done thus making the sector reforms almost un-fundable?? The LSSP division in the Ministry is not fully staffed yet. It is critical to strengthen its capacity for coordination and communication?? There is still a need to increase private sector participation to achieve common goals (accessible land services) 3. Institutional reforms Democratization of land administration through a process of decentralization is at the core of reforms in land institutions in Uganda. 45 District have established Land Boards, while 56 Land tribunals on circuit basis have started operations. Reforms in law introduced local level dispute resolution mechanisms in a situation where there is an increasingly high incidence of land disputes. Land administration was decentralized to every district to have a District Land Board and District Land Office 6 When the government initiated the land reform process it was envisioned that the Districts would bear the responsibility of operationalising the great bulk of the Act, although most of them do not have the resources both financial and human to put in place all the necessary institutions proposed especially at the scale needed to provide technical and professional services. There is therefore a need for training and capacity building of officials to acquaint them with the provisions of the Act. Status The LSSP introduced a number of administrative changes for the smooth implementation of reforms such as:?? Banding of District Land Offices where by one technical office supports a number of Land Boards.?? The Land Act has been amendment to move Land Committees from the parish to Sub- County level.?? Local Council Courts instead of Sub-County Tribunals have been introduced as Courts of first instance in dispute resolution. Guidelines for LC courts are being developed to strengthen institutions.?? Circuited tribunals have been recruited and are operational. The process of recruiting staff is continuing and their facilitation is being improved.?? Strengthening of land management institutions in terms of equipment and training of new land board members is underway. 6 The Land Office has 5 professional land service providers: Valuer, Physical Planner, Land Officer, Registrar of titles and a Surveyor 6

8 ?? Draft regulations for the management of the land fund were developed and acquisition of land in Kibaale District for redistribution to tenants in the Lost Counties on willing buyer-willing seller basis is on going.?? Training facilities for some of the required professional disciplines not available in the Country as yet (Valuation Surveyors, Land Management, Masters Programme in most disciplines).?? Transfer of funds to districts for land functions and improvement in generation of land related revenue at local government level. 4. Policy and Legislative reforms Uganda commenced its reform process without a National Land and Land use policy, the reforms were based on underlying principle and guidelines stated in the Constitution, therefore a number of issues remained unclear as the implementation of reforms began. Status?? National Land policy: an issues paper has been developed and consultations are to be made.?? National land use policy: a draft national land use policy has been developed and is being considered by the national land use policy working group and consultations are also planned, this process will lead to the development of land use plans.?? Government land; documentation of government land is on going. The data is being received from institutions utilizing government land and Uganda Land Commission is developing an inventory.?? Systematic demarcation: the Land Act originally provided for sporadic demarcation but it was found to be uneconomical and cumbersome on the part of the Area Land Committees. Besides, there was fear that the rights of the poor and under privileged would not be secured. In phase one of LSSP, 9 pilots are planned to be carried out in 9 districts, 3 have already begin identified (Masaka, Soroti, Ntungamo). A sensitization booklet has been developed: actual piloting is envisaged to start early July Thereafter 6 pilots will be selected. Systematic demarcation being piloted is judged more equitable than the demand-led or opportunistic demarcation 7. The proposed land demarcation and recording does not constitute titling.?? Legislative reforms are reflected in Land Act Amendments (2003) Bill designed to address administrative issues. It has been debated and a number of amendments already passed, although the co-ownership clause has still held until it s disposed off.?? Land regulations for operationalisation of the Land Act have been developed and passed by Parliament and procedural tribunal rules have also been developed.?? Strengthening capacity for Coordination: LSSP Division with 5 professional has been created in the Department of Lands and Surveys of the Ministry of Water, Lands and Environment. 7 MWLE, 2000 and

9 5. Redistributive reforms targeting marginalized groups: It had been assumed that the Land Market would enhance agricultural productivity by shifting land towards its most productive use, whether through sales or through rentals and would take place in a manner which would reduce inequality in land holding. It is unclear whether this is in fact the case. Information on distribution of land holdings in Uganda is very difficult to obtain and assumptions about the effects of the market-based land redistribution must be considered provisional for the time being 8. There was an assumption that the Land Act 1998 would not undermine the position of majority of small-scale farmers namely women. In this regard, evidence is not conclusive; indeed there are indications that it could have negative impacts unless the co-ownership amendment is accepted by Parliament to be part of the law. Co-ownership is currently being debated. There is evidence that if the situation of women s rights being inferior to men s rights on land persists, then the farmers who are women, will be un-willing to support diversification of cropping and modernization of farming that is called for in Uganda s PRSP, they will prefer to stick to subsistence production 9. There is widespread evidence from other parts of Africa, that landlessness very often increases markedly because of natural disasters, particularly drought. Similarly for Uganda the likeness of increased landlessness due to the HIV/AID crisis is evident. When people are sick resources are usually depleted or sold off to pay medical care, funerals and labour. When such incidents emerge, women are the most vulnerable both to infections and to loss of land rights and destitution as local elite or clan members grab property of widows, this situation is a reality in Uganda 10. This is not to overlook the possibility lose of women s land rights during conversion of customary tenure to statutory tenure as proposed by the Land Act Land Information System Land records in Uganda are in considerable disarray 11 this stems from the political disorder in the 1970 and the 1980 s and the subsequent scarcity of financial resources for qualified staff, buildings and equipment. It is now very difficult to implement a land policy in support of a land market, economic growth and structural transformation because it is unclear who owns or controls land, what, where and what is worth. The development of the land information system is a means to an end, namely providing a basis for reforms that will ensure tenure security for the poor, improving access to land and encouraging the sustainable use of natural resources. Status?? Studies are on going to review the existing land information in the Country and to prepare a detailed plan for the design, development and implementation of a Land Information System for Uganda. 8 Page 37, World Bank, Uganda Land Alliance, 2000; Included Yet Excluded. 10 Adoko, 2001 on contribution to the World Bank e-conference on land policy in March Rational for Investments in LSSP, Page 7 8

10 ?? Rehabilitation of existing Records: This activity has started for the districts of Kampala, Mpigi and Wakiso. A study for scanning and digitizing of land title records is starting in June Rehabilitation and revision of other land records e.g. (Maps) is planned for 2003/04 financial years.?? Strengthening land management institutions: Equipment are being procured for some land offices (18 to start with) i.e. Computers, Survey and office equipments, improvement of existing office space, facilitation of District Land Boards.?? Rehabilitation of existing Geodetic Networks: A report has been produced and the fieldwork is due to start in May 2003.?? Survey of International borders: Survey of the remaining parts of Uganda Kenya and Uganda Tanzania are due to start before end of July. Talks are on going for the survey of Uganda Rwanda border. 7. Land Market One of the objectives of land tenure reform in the Land Act 1998 was the formalization of Uganda s land market. In Uganda, the land market is informal and weakly developed; this is because conditions conducive to formal transactions have been inadequate despite the enactment of the law and the various reform efforts that are taking sharp from the LSSP. The response has been slow, basically because most land transactions are informal or extralegal, in so far as buyers and sellers do not have recourse to the law. If one fails to meet the agreed conditions as in per-urban informal settlements, where the weak are preyed upon by shack landlords disputes remain unresolved for years 12. Status Under the LSSP a number of actions are proposed to facilitate the operations of the land market and these largely embody the implementation of reforms in the Land Act 1998; to do with dispute resolution, land registry, district institutions, review and update of land related legislation to ascertain rights of ownership and occupancy, and a set of other reforms that are yet to be implemented, the outcomes therefore remain to be seen at a future date. 8. Some Aspects of Agrarian Reform At the time of formulating land reforms in Uganda, agrarian reform was not intended, although the studies that informed the drafting of the Bill 13 were concerned with tenure issues with regard to agricultural development. Later the Constitutional review process overtook events related to agricultural reforms targeting productivity. Agrarian reform therefore was never a priority for legislators nor was it intended at the time. However, the PRSP and PMA processes capture most of the issues on agrarian reform, indeed the land sector has been forced to integrate aspects of agrarian nature through the LSSP process, where the sector is obliged to distinctly show its contribution to poverty eradication in the PEAP/PRSP and PMA. Issues to so with transformation of agricultural sector, and development are tackled. The LSSP has absorbed most of the concerns that are now goals for the Land Sector. 12 LSSP Economic Analysis and Investment Plan Final report, January 2002 page 8 13 Land Bill 1993, before the constitutional reforms took over the process 9

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