Land and Natural Resources Tenure Security Learning Initiative for East and Southern Africa Country Report - Uganda

Transcription

1 Land and Natural Resources Tenure Security Learning Initiative for East and Southern Africa Country Report - Uganda SECURING LAND AND PROPERTY RIGHTS FOR ALL

2 ACRONYMS DLSP GEF GIS GLTN IFAD KM MLHUD NGO NR RCMRD STDM VODP TSLI-ESA District Livelihoods Support Programme Global Environmental Facility Geographic Information System Global Land Tool Network International Fund for Agricultural Development Knowledge Management Ministry of Lands, Housing and Urban Development Non-Governmental Organisation Natural Resources Regional Centre for Mapping of Resources for Development Social Tenure Domain Model Vegetable Oil Development Project Tenure Security Learning Initiative for East and Southern Africa i

3 CONTENTS ACRONYMS... i INTRODUCTION... 1 DESCRIPTION AND AIMS OF THE PROJECTS... 2 TENURE SECURITY CONTEXT IN UGANDA... 2 Mailo and Customary Land Tenure... 3 Freehold and Leaseholds... 4 The 1998 Land Act... 5 Tenants under the Act: Protection and Certification... 6 Customary Tenure under the Act: Certification and Conversion... 7 Communal Land and Community Land Associations... 8 SOME CURRENT LAND POLICY ISSUES... 9 MAPPING: Issues, Challenges, Tools and Strategies LAND AND WATER RIGHTS: Issues, Challenges, Tools and Strategies WOMEN S ACCESS TO LAND: Issues, Challenges, Tools and Strategies INCLUSIVE BUSINESS: Issues, Challenges, Tools and Strategies CONCLUSIONS AND WAY FORWARD ADDITIONAL READING Land and Natural Resources Tenure Security Learning Initiative for East and Sothern Africa Uganda Key contacts from IFAD-supported projects in Uganda ii

4 INTRODUCTION The aim of this report is to capture the lessons learned from a number of visits to Uganda by staff from IFAD and the Secretariat of the Global Land Tools Network (GLTN); it forms part of the Tenure Security Learning Initiative - Eastern & Southern Africa (TSLI-ESA). It is one of a number of reports on IFAD-supported projects in a number of countries, with the overall objective of developing a better understanding of the tenure issues faced by these projects and of examining some of the tools and strategies adopted to deal with these. The country reports form part of the overall strategy of the TSLI-ESA, which is to identify common issues and to enhance lesson sharing and knowledge management on land-related tools amongst the various projects and country partners. The process of lesson-sharing, and of developing a strategy for disseminating information on tools and strategies amongst the IFAD-supported projects, was initiated in May 2012 through a regional workshop held in Nairobi. 1 The country reports are designed to further this process, by providing the participants with further insights into potentially useful tools and strategies for dealing with land-related issues and challenges. They also provide contact points within the country, from which further details and assistance can be sought. In addition, the reports identify some further potential activities or initiatives that could be undertaken in order to assist the IFAD projects, either in the specific country, or through the further development of knowledge management processes within the broader framework of the TSLI-ESA. As an introduction, the report provides some description and context to the relevant IFAD projects in Uganda and describes, in general terms, some of the key national policy and legal issues that form the background to their implementation. The specific land and natural resource issues that are identified here are examined through the lens of the five thematic areas that form the framework for the approach of the TSLI-ESA, each of which forms a heading for the report. These thematic areas are: MAPPING: Using technically advanced geographic information technologies, such as aerial photography, remote sensing technology and Geographic Information Systems (GIS) for mapping land and natural resource rights, use and management. LAND & WATER RIGHTS: Recognizing and documenting small-scale farmers land and water rights in irrigation schemes. GROUP RIGHTS: Recognizing and documenting group rights, focusing on range/grazing lands, forests and artisanal fishing communities. WOMEN S ACCESS: Strengthening women s access to land. INCLUSIVE BUSINESS: Documenting best practices in securing land and natural resource rights through business partnerships between small-scale farmers and outside investors. The separate headings above capture both a description of the issues being faced within each thematic area, and identify the tools and strategies that the projects incorporate, or that have been adopted during implementation. Each section also contains some short comments in respect to knowledge management within the projects. The final part of the 1

5 report provides some conclusions and proposed follow up actions in the context of ongoing work in this and potential subsequent phases of the TSLI. Various staff members visited Uganda from the 23 to 29 of September, Team members were Harold Liversage (IFAD) and Danilo Antonio (UN-Habitat/GLTN). The central focus of the visit was the District Livelihoods Support Programme (DLSP) and the Vegetable Oil Development Project (VODP). The team also met with the Ministry of Lands, Housing and Urban Settlement (MLHUS) and the Uganda Land Alliance (ULA). DESCRIPTION AND AIMS OF THE PROJECTS The projects supported in Uganda by IFAD and examined in this report are: DLSP (District Livelihoods Support Programme), which supports the objectives of the Local Government Sector Investment Plan. It has a land component, the principal objective of which is to pilot the implementation of the Land Act, 1998 at district and sub-county levels with the objective of facilitating households to register their land. The main activity areas are: - Disseminating information and training on land tenure rights, land adjudication and land administration of poor rural households - Strengthening District Land Boards, Area Land Committees and the District Natural Resources Departments in the registration of land and land-related activities VODP (Vegetable Oil Development Project), which is a project supporting the national production of edible oils. Under the project s Oil Palm Component, an innovative public-private partnership with a private-sector investor has supported the establishment of processing capacity and oil palm plantations. The goal of the project was to increase household cash income among smallholders by revitalizing and increasing domestic vegetable oil production. The objectives were to: - Develop a palm oil industry, which is well-integrated into the subsector, to the benefit of smallholder growers and private sector processors - Optimise yields and oil extraction technology for sunflower and other arable oil crops The plantations established through this project, including both small growers and estate operations, are designed to create employment and increase rural incomes in the target area. Through a trust that includes smallholder farmer representatives on its board, the project provides farmers with a guaranteed market at a value tied to the world price. The project s Oil Seeds Component supports the use of improved seed varieties and strengthens linkages between farmers and local millers. TENURE SECURITY CONTEXT IN UGANDA It is commonly agreed, and reflected in the regulatory framework on land, that Uganda is characterised by four major tenure regimes. 2 First, different systems of customary tenure prevail in the north and east of Uganda, where central authority was not historically held in the name of one individual, but government was by the consensus of clan elders as a whole. Land, too, could not be vested in one individual, but was held by the clan and for the clan, in what has come to be known (inaccurately) as communal ownership or (equally inaccurately) as customary tenure. Second, in the south and 2

6 west of the country, ethnic groups tended to develop more centralised systems of power and authority, in what came to be known as kingdoms (Adoko & Levine, 2005). The present tenure system of this central area finds its roots in the year 1900, when British colonial power imposed a new system of land tenure in Buganda the mailo system (see below). The third and fourth systems, leasehold and freehold land tenure, have a less clear spatial expression and occur in a dispersed manner under the other two major tenure systems (leasehold appears to be common under the mailo tenure system, mainly as a result of the transfer of former crown land into government land that could then be leased). In addition to the four main tenure categories above, public tenure applies to lands that are designated for public use. This includes not only land for public buildings and roads but also all designated wetlands, even if these fall within otherwise designated customary or mailo lands. These lands have restrictions on use, such as prohibitions against cultivation and other uses of wetlands. Unambiguous and up-to-date figures about the distribution of land by tenure types are hard to get. About 95% of landowners in Uganda do not have land titles and their rights remain unregistered (GoU 2010b: 161). Customary tenure is the predominant mode of access to land in Uganda. The existing literature also does not deliver any conclusive answers about the extent to which different forms of land tenure affect economic activities in different parts of Uganda. There is a glaring lack of empirical research that compares the relationship between the different tenure systems and economic activities. Mailo and Customary Land Tenure The Buganda kingdom, in particular, was to become very important in framing land tenure forms and relations in both colonial and independent Uganda. It is the locus of a specific type of tenure, known as mailo, on which a quasi-freehold tenure system prevails, unique to the Buganda kingdom. Mailo land is in fact land that was awarded in freehold to collaborating chiefs who made the conquest of the British in Buganda possible in the decade This land was, however, not free of occupation; on the contrary, the fertile land was cultivated by peasants whose rights were, as part of the Buganda Agreement, administered and protected by a Board of Trustees (Samwiri, 2007). The mailo system is thus unique in the sense that freehold rights over land allocated to chiefs are overlapped by tenant rights that were officially recognised in the Buganda Agreement. The land rights of these owners and tenants have, over the years, been the subject of riots and political tensions between the Buganda kingdom and the Ugandan state. The balance between these rights has been altered by statute on more than one occasion and remains a central part of the land tenure challenge faced by Ugandan policy-makers. 4 Outside of the mailo land areas, most people hold land on the basis of customary tenure; it is estimated that 80% of all land in Uganda is held customarily (90% in northern Uganda) although the actual situation is probably much more nuanced, with many purchases of customarily-held land taking place on an informal basis, a process which occurs through the dictates of custom, but also, at the same time, effectively removes the land from the ambit (and restrictions) of customary tenure (Norfolk & De Wit, 2011). In 1969, the GoU introduced the Public Lands Act, which reconfirmed customary rights in land; this Act essentially reversed the position of the 1903 Ordinance (see above) and prohibited the government from granting rights to any public land that was lawfully 3

7 occupied under customary tenure without the consent of the customary occupants. 5 Successive independent governments, like the colonial administration, have, however, also held the view that economic development was not achievable under customary land tenure. 6 This is highlighted by the inclusion in the 1969 legislation that provided that a holder of customary rights could apply to the Land Commission for a grant of leasehold. 7 The objective of the provision was to enable progressive farmers, who wished to use their land more productively or use it as security for a loan, to convert their customary title to leasehold, the inference being that they could not do so under customary tenure. Adoko & Levine (2005, p6) see this as a direct consequence of the EARC Report, stating that the attitude remains to this day that the customary form of tenure is a serious impediment to economic development, and that individual freehold title is desirable for progress. The 1995 Constitution, however, removed the prejudicial approach of the 1975 Land Reform Decree and provided for: a) customary owners acquiring certificates of customary ownership 8 and b) the conversion of customary tenure to freehold.9 This approach, which captures the contemporary attitude of the GoU towards customary tenure, was designed to facilitate the demise of customary land tenure, rather than abolish it. It was based on the findings of the 1992 Uganda Constitutional Commission, which found that customary land tenure was on the wane: in practice, many individuals and families holding land under customary tenure have something akin to freehold tenure ( Report of the Uganda Constitutional Commission: Analysis & Recommendations, 1993). This echoes research findings from the Wisconsin LTC that noted, in the late 1980s, that the system of customary tenure [has] evolved from the political and clan systems into a system of customary rights that are more individualized over generations of inheritances. A land market in customary holdings is well developed in some areas (Barrows & Kisamba-Mugerwa, 1989). The Commission went much further, though, and clearly stated what appears to be the official view to this day in respect to customary tenure: The great disadvantage of the customary tenure is that it tends to emphasise cultural values more than the economic and financial gains from the land. This retards development. Land users are not encouraged to make long-term investments in the land; nor can they take good care of the land as they would have done if they had clear titles to it. Land held under customary land tenure especially for communal use tends to suffer from neglect and consequent degradation. ( Report of the Uganda Constitutional Commission: Analysis & Recommendations, 1993, p62-63) Freehold and Leaseholds At the time that Uganda attained independence, three types of freeholds operated in the country (Mugambwa, 2002): Freeholds created under the Crown Lands Ordinance of Although this gave extensive powers to the Governor of the time to dispose of crown land through grants of freehold, very few freeholds in fact arose from this Act. By 1915, the Colonial Office in London had instructed the Governor to only dispose of crown land to non-natives through grants of leasehold. Native freeholds created under the Toro Agreement of 1900 and the Ankole Agreement of 1901 (creating freehold tenure in those kingdoms). Under these 4

8 agreements, approximately 255 square miles of land in each kingdom were allocated to the king and senior chiefs. Unlike mailo these freehold grants were made from crown land, but, as in Buganda, they were gradually sub-divided and fragmented into smallholdings. They were also, as with mailo land, subject to the rights of customary tenants. 10 Adjudicated freeholds, created under the Kigezi, Bugisu and Ankole land registration pilot schemes (see above). The current Land Act (1998) contains provisions that permit public land occupants and holders of customary rights to apply either for leaseholds (public land) or freeholds (public land and customary land). Leaseholds can be obtained from an individual, local authority or government for a period, usually 49 or 99 years, with agreed terms and conditions. The leasehold transactions, being essentially contractual, allow parties to define the terms and conditions of access in such a manner that suits their reciprocal land use needs. Most public land in urban areas is converting to state leaseholds, enabling local authorities to raise revenues. The 1998 Land Act The current 1998 Land Act is the latest legislative framework on land matters in Uganda, and it replaces all previous arrangements dating back to the 1900 Agreement. The Land Act identifies different forms of rights over land, how these can be ascertained and acquired, how they can be transferred and converted. A second part stipulates the institutional implementation of issues concerning rights, duties and transfers of land. Since its passing, the Act was subject to two major amendments. The first was adopted in 2004 and addresses, to some extent, the failure of the original Act to give women strong rights (co-ownership over land held with their husbands). It allows women to own land in their own right, and restricts the transfer of family land without the consent of the spouse. 11 The most recent 2010 Amendment strengthens the rights of tenants on mailo land. The Land Act was followed by the Land Regulations in 2004, which provide (i) practical guidance on the functions of land administration institutions at different levels, (ii) more technical issues of parcel identification and land demarcation, (iii) procedures for the registration of land rights, (iv) practical legal guidance on the establishment of Communal Land Associations and, (v) details on land dispute mediation. The Regulations are accompanied by an impressive set of administrative forms that cover most of the technical land administrative tools. The Act s progressive provisions, many of which are effective without any formal process or survey, have not been matched by GoU efforts to respond to the institutional design for implementation nor any apparent effort on the part of the GoU to enforce and extend its application (Norfolk & De Wit, 2011). Implementation has so far been slow and uneven. Some of the prescribed land administration institutions have been established at the local level, but most have not. Informal and customary practices persist and there are large differences in the level of implementation between the different parts of Uganda. Most often, formal and informal institutions coexist (Pedersen, Spichiger, Alobo, & Kidoido, 2012). Part of the problem with the lack of implementation appears to have been a gross underestimation of the costs of implementing some of the institutional arrangements. As Deininger et al point out: 5

9 Although the Act mandates the establishment of land committees at the lowest administrative level, financing to establish these was unavailable; Even though local courts were replaced in the Act by specialised local land tribunals, the former have continued to dispense justice; 12 Not adopting low-cost survey techniques has curtailed the extension of land administration to many areas and largely prevented the issuance of certificates of customary ownership as envisaged in the legislation; The government has failed to widely disseminate the Act, despite the fact that no behavioural changes could be expected unless households are aware of its provisions (Deininger, Ayalew, & Yamano, 2006). 13 There has therefore been very little implementation of the Act generally in the 13 years since it was passed, and specifically, there have been no instances in that time of individuals or communities being issued with formal certificates that assert and prove their customarily acquired rights to land (Norfolk & De Wit, 2011). Tenants under the Act: Protection and Certification Tenants under the 1998 Land Act are afforded a considerable degree of protection, particularly since the most recent amendment made in A summary of the provisions relating to tenants is as follows: Mailo owners are given all the powers of a freehold owner and hold land in perpetuity 14 BUT, on other hand, tenure is subject to the customary and statutory rights of those in lawful or bona fide occupation; Lawful is defined to include customary tenants, as well as any other who has entered onto land with consent; 15 Bona fide includes adverse possession for at least 12 years before the coming into force of the 1995 Constitution; 16 Both lawful and bona fide occupants enjoy a tenancy by occupancy ; 17 All tenants enjoy security of tenure 18 and are entitled to apply for a Certificate of Occupancy; 19 Tenants are required to pay an annual nominal ground rent; 20 A tenancy by occupancy may be inherited and, with consent of the owner, may also be assigned, sub-let, pledged or sub-divided; 21 Where a tenant wishes to assign his tenancy (or the owner wishes to sell his reversion) he/she must give first refusal to the owner or tenant, as the case may be; 22 Although tenancy by occupancy is similar to a common law tenancy its existence is conditional on the continued occupation of the land by tenant or agent if the land is left unattended for three years or more, the tenancy lapses 23 (and the law is not clear on what unattended means); The Land (Amendment) Act 2010 further grants statutory protection to the kibanja 24 holder and his or her successor s against any arbitrary eviction as long as the prescribed nominal ground rent is paid. This all adds up to strong statutory protection for the rights of tenants. 6

10 Customary Tenure under the Act: Certification and Conversion There are two notable issues from the Act in respect to customary tenure that illustrate well (i) the present situation and reality of customary tenure in rural Uganda and (ii) how the GoU sees the evolution of customary tenure as part of a future society. The Act recognizes that customary tenure is not necessarily narrowly confined to communal ownership and use of land. From the onset of the Act, incidents of customary tenure refer to individual and household ownership, as well as communal ownership. It is also recognised that under communal ownership, a bundle of other, more individual and family level rights exist. Secondly, as we have already noted above, it is clear that public policy still regards freehold as the property regime of the future, to the extent that the Act provides for the conversion of customary tenure to freehold rights. The Act does also provide a method through which customary rights holders - individuals, families and communities - can apply for a certificate of customary ownership, but this is also conceptualised as an intermediary step between unregistered customary rights and those underpinned by the formal registration of freehold tenure: the certification of customary ownership is meant to serve the purposes of a transition to freehold titling, to facilitate a land market (by providing security) and to serve as a collateral for loans for investment in agriculture (Adoko & Levine, 2005). To summarise the provisions of the Act in this regard: The definition of customary tenure in article 3(1) states that it is a form of tenure applying to individual and household ownership (art 3.1(e)) as well as providing for communal ownership and use of land (art 3.1.(f)) in which parcels of land may be recognised as subdivisions to a person, a family or a traditional institution (art 3.1(g)); Article 4 accordingly provides that any person, family or community holding land under customary tenure may apply for a Certificate of Customary Ownership (CCO) of that land; Application is to be determined by the Parish Land Committee (later amended to Area Land Committee), a body whose establishment, 25 composition, functions and procedures 26 are set out in some detail in the Act; 27 The Committee s recommendation has to be forwarded to a District Land Board (DLB), which has broad powers to confirm, reject or vary it; (see below for more on the DLBs) 28 The Committee is required to record third party rights not amounting to ownership 29 and specifically to safeguard the interests and rights in the land of women, absent persons, minors, and persons with a disability ; 30 Where the committee records a third party right, the certificate must carry a note of it; 31 The holder of a certificate is given broad powers to deal with the land (including leasing, mortgaging, selling, subdividing and leaving by will) but these powers are subject to any restrictions noted on the certificate; A Recorder to be appointed for each Sub-County is responsible for keeping certificates and records and registering transactions, which are ineffective unless so registered. 32 7

11 A CCO is deemed by the Act to be conclusive evidence of the customary rights and interests endorsed on the certificate. 33 It does not, however, change the system under which the land is owned; it remains under the control of customary law. Customary land tenure is therefore not registrable: the CCOs are instead recorded by a Recorder at Sub-County level. Owners of land under customary tenure who wish to bring their land under the Registration of Titles Act must first convert their tenure to freehold, as provided under the Land Act. In respect to conversion, the Land Act states as follows: Individuals, households, families or communities that own land under customary tenure may apply for freehold title to their lands: Any person, family, community or association holding land under customary tenure on former public land may convert the customary tenure into freehold tenure in accordance with this Act ; The Area Land Committee is responsible for adjudication and investigation; 34 Area Land Committee must consider whether the customary law in effect recognizes or provides for individual ownership of land and must record whether the individual or group requesting freehold title is prima facie entitled to convert their customary tenure to freehold tenure; 35 In these respects, there are similarities between this process and the issuance of the CCOs. The crucial difference is that it is the Registrar of Titles that issues the freehold certificates and that the land is now subject to the Registration of Titles Act; general, rather than customary law, will therefore now apply to this land. Both forms of land holding (under CCO and under freehold certificate) will, once recorded or registered, require that dispositions of the land be recorded. They will also both be subject to any duly recorded third party rights. At this stage of implementation, i.e. 13 years after the Land Act was approved, it remains very difficult, if not impossible, to assess whether the provisions to recognise, record and certify customary tenure at different levels are easily implementable and may be considered as a tool to strengthen the land rights of a majority of rural dwellers and producers. The sole fact that so far not one CCO has been officially issued is a strong sign that this is not necessarily the case (Norfolk & De Wit, 2011). To promote official recognition of customary ownership that is on par with the documentation provided for other tenure categories, such as titles and leases on freehold or mailo land, the Ministry of Lands, Housing and Urban Development has recently introduced a customary title. Although this new document does not differ appreciably from the CCO envisaged under the Land Act, it is hoped that the customary title will increase the security of customary tenure and facilitate investment by making customary titles commensurate with freehold titles (Stickler, 2012). Communal Land and Community Land Associations The Act makes provision for the establishment of Communal Land Associations (CLAs), which can be formed for the express purpose of holding land on a communal basis. The formation of these CLAs is guided by the following legislative provisions from the Land Act: Any group of people may form a Communal Land Association (CLA) for the purpose of communally owning, holding and managing land, whether under customary or statutory law: 36 to begin the process, the group must lodge an application with the District Registrar of Title; 37 8

12 The Registrar then convenes a meeting of the group, ensuring that all members are provided with proper notice of the place, date, time and purpose of the meeting: 38 at the meeting, 60% of the group must agree to incorporate and elect between three to nine officers for the CLA, a third of which must be women. 39 The Registrar must satisfy him/herself that the constitution which the CLA wishes to adopt provides for a transparent and democratic process of management 40 and then is responsible for issuing a certificate of incorporation to the elected officers 41 ; At the point of incorporation, the persons named as officers become a body corporate and the CLA can sue and be sued, and enter into binding contracts; 42 The named officers hold the land for and on behalf of all members of the association : 43 where land is held under a CCO or on formal leasehold/freehold, any transactions must be approved by a majority convened for the purpose and if they have not been duly approved they are considered null and void. 44 There are further articles in the legislation that govern the use and management of common use lands, the dismemberment and individual secession from the CLA and the resolution of disputes and conflicts. In addition, the Regulations to the Land Act of 2004 contain a number of further stipulations regarding processes to be followed in establishing the CLAs. SOME CURRENT LAND POLICY ISSUES A new Land Policy was approved in February 2013, but has yet to be published. There are a number of land and land policy issues currently confronting Uganda: Land conflicts are common: trans-state boundary disputes, boundary disputes or conflicts between districts, ethnic land conflicts, conflicts between pastoralists and agriculturalists and conflicts within families all occur and most of these are on the rise (GOU, 2011). Interfamilial land conflicts (between husbands and spouses, between sisters and brothers, between generations), are increasing notably as result of land scarcity and contribute also to land fragmentation. Land cases are the most common disputes brought to local courts or legal assistance projects in many parts of the country (Adoko & Levine, 2005). Land grabbing by domestic actors is a growing policy concern. In particular community land and public land are subject to elite land grabs and illegal land deals. There have been well-documented illegal appropriations of public land by the elite from the 1960s to the present day. The government is increasingly eyeing public land for economic development purposes. Land grabbing and land speculation are on the rise in some parts of the country, including in the oil regions in western Uganda, in the mining areas in Karamoja and in Northern Uganda. The land administration system is performing below expected standards, with incidences of fraud, corruption and political interference hindering progress in service delivery. Decentralized services have as yet lacked presence and capacity (GOU, 2011). Priority issues with respect to land governance institutions are the need: to improve consultation mechanisms over the use of customary land; to increase the capacity of decentralized institutions, including customary institutions; 9

13 to improve recognition of customary institutions and strengthen capacity to deal with land-related court cases (USAID, 2010); to encourage and acknowledge local demarcation and administration practices, to prevent disputes over land. The provisions in the Land Act of 1998 were not effective in resolving the land use deadlock on mailo land, resulting in mass evictions of occupants by registered owners. The Amendment of 2007 strengthened the position of tenants, but sparked off new controversies (Rugadya et al., 2008). The amendment adversely affected the land and credit market as owners refuse to rent out land, and financial institutions are not keen on taking tenanted land as collateral. Another source of tension is the position of pastoralists and the conversion of grazing lands into fields (Hetz & Myers, 2007). Conflicts over pasture and water access have occurred in central and Northern Uganda. Some landowners have fenced their holdings and excluded herders who had access rights under customary agreements. Expropriation by the State of customary grazing areas is another point of contention and conflict with pastoralists communities (USAID, 2010). The problem of refugees and Internally Displaced Peoples originates from the conflict in northern Uganda when the government ordered civilians into camps for many years. Now that security has improved, people have been trying to leave them camps and return to their homelands, this has created new conflicts. The customary lands of many of these displaced peoples are occupied and claimed by others. Almost 13 years after the enactment of the 1998 Land Act, the Ugandan Government finally adopted a National Land Policy in March Continued reforms of laws and policies regarding land rights are likely to ensue as issues inevitably arise, particularly as urban areas expand, population densities in productive agricultural regions increase and populations displaced during the years of conflict in northern Uganda attempt to return to their home lands. Investors in Uganda can lease land held by various government agencies, including the District Land Boards, which are authorized to hold land on behalf of local governments, and the Uganda Land Commission (ULC), which, according to Section 49(a) of the Land Act, is authorized to hold and manage any land in Uganda which is vested in or acquired by the government in accordance with the Constitution. A limited number of investors have also acquired lands directly held by the Uganda Investment Authority. However, there is currently no enabling legislation that specifies the procedures for any of these agencies to allocate land to investors. There is also no legal definition of public, government, and local government land, which makes it difficult to determine which agency has authority over a given parcel of land. There are also important on-going debates about the authority of the government to compulsorily acquire land for the purpose of allocating it to investors. The Constitution (Section 26(2)(a)), the Land Act of 1998 and the Land Acquisition Act Cap. 226 of 1965 prohibit the government from using compulsory acquisition to promote investment. The government has tried to overturn these provisions, including most recently through the Draft National Land Policy, but its attempts to include the authority to use compulsory acquisition for investment promotion in the 10

14 Draft National Land Policy were rebuffed by stiff opposition from civil society and communities consulted on the draft document. As a result, the final National Land Policy (March 2011) prohibits compulsory acquisition for private investment. However, the government can still purchase or lease privately held land for the purpose of allocating it to an investor (Stickler, 2012). MAPPING: Issues, Challenges, Tools and Strategies Both of the projects in Uganda have some experience of using mapping as a tool for planning and implementing activities. During the visits made in 2012, both the VODP and DLSP teams expressed further interest in obtaining and using satellite imagery and GIS for mapping land and tenure rights, infrastructure development, monitoring changes in land use and environmental impacts, looking at changes in settlement patterns and, more generally, for overall project monitoring and evaluation. It was agreed that VODP PMU will follow up with the MLHUS regarding support for accessing satellite imagery and other existing maps and land information and will consider options for integrating GIS into their project implementation particularly in their M&E system. Further consideration could also be given to linking up with DLSP in pooling resources for accessing satellite imagery and using GIS (Liversage, 2012). The GLTN representatives briefly showed the team the Social Tenure Domain Model (STDM) software which is free and open source GIS software that is able to capture overlapping tenure rights and other information. Interest was shown in using the software which could be particularly useful to KOPGT, given its simplicity and that it is affordable to use. Follow-ups need to be undertaken on this also in regards to potential requirements of VODP implementation in general. Discussions were also held with the management and M&E. A meeting was held between the VODP PM and M&E Officer and the MLHUD s Land Tenure Reform Project Manager to discuss GIS specifications and options for accessing satellite imagery through the Ministry, including from the Regional Centre for Mapping Resources for Development 45. The MLHUS representative suggested that VODP makes a formal request for accessing satellite imagery to MLHUD and agreed to follow up with RCMRD if necessary. He also gave advice on the type of support the VODP PMU may need for building a GIS capability and provided some indicative specifications with costs on the software, equipment and training requirements. It was agreed that VODP PMU will follow up with the MLHUS regarding support for accessing satellite imagery and will consider options for integrating GIS into their programme implementation including into their M&E system. ESA s land tenure programme desk will continue to provide support in this. Further consideration could also be given to linking up with DLSP in pooling resources for accessing satellite imagery and using GIS (Liversage, 2012). LAND AND WATER RIGHTS: Issues, Challenges, Tools and Strategies According to a Progress Report from 2012, land rights issues within the DSLP project include the following: 11

15 Most people find the titling process costly and cumbersome and in most cases abandon the process before obtaining their titles. Districts continue to face challenges in the issuance of land titles, including the high cost of processing, the lengthy procedures involved and limited staffing in the Lands Department. To counter this last constraint, provision has been made for the use of private surveyors and/or staff from neighbouring districts. In other districts, the processing of titles has been curtailed by the fact that much land is owned communally, especially in northern Uganda. In some of the districts, the process is being delayed due to land disputes over boundaries and family disagreements. In other districts, large areas of land are owned by absentee landlords, with a large number of squatters. In Nakaseke and Luwero districts, for example, most of the land is owned by landlords who are unwilling to offer leases. Though there is still continued sensitization by the project, to encourage landlords to transfer ownership, there is a need for government to institute a policy on land tenure matters owned by landlords who are unwilling to transfer ownership to squatters (IFAD, 2012). The high cost of processing has been addressed by supporting the process up to the production of a Certificate of Ownership or of the deed plans, whereby the beneficiary still has certified ownership and can use the certificate of ownership or deed plan as collateral in the negotiation of a loan from a bank. The land issues in the VODP have been contentious, particularly in respect to the acquisition of land for the nucleus estate: Under one component of the VODP, a nucleus estate of 1,000 ha of oil palm was initially planned on Bugala Island, Kalangala District, together with 3,500 ha of smallholder development, for a total planted area of 4,500 ha. After the failure of negotiations with the original private-sector investor, this component of the project was redesigned in There were major changes made to the design, with significant implications in respect to land issues; these were made following negotiations with the new private investor (BIDCO/OPUL). The main changes were (Brubaker & Scott, 2010): that the nucleus estate was to be expanded from 1,000 ha to 6,500 ha, which together with the 3,500 ha intended for smallholders and out growers, would give 10,000 ha of oil palm on the island instead of 4,500 ha; that the intention to use de-gazetted public land for the nucleus estate was dropped, so land had to be purchased from private owners; that the pace of project development was accelerated, so that targets would be reached within four rather than eight years. Under the agreement with BIDCO, the GoU committed itself to handing over 6,500 ha of plantable land, free of encumbrance and suitable for agricultural use, for the nucleus estate under a 99-year lease. To address this, the GoU set up an inter- Ministerial Land Acquisition Task Force, which included representatives from Treasury, MAAIF, MWLE (later MLHUD), Solicitor General, NEMA, Uganda Investment Authority, Bugala Local Council, District Agricultural Officer and the VODP s PMU. The ToR included: identifying suitable land, identifying land owners/occupants and other 12

16 encumbrances, obtaining copies of titles and title reference numbers, formulating MoUs and other relevant documents necessary for land acquisition, establishing the cost of lease or outright purchase, facilitating consultations and any other activities necessary for land acquisition. Through sensitisation and regular consultation the project appears to have successfully addressed the concerns raised. About 3,200 ha of public land has been allocated for the nuclear estate and about 3,300 ha of privately owned mailo land has been purchased by government. Ninety-nine year leases were granted by government to OPUL for this land. About 3,500 ha of mailo land has also been brought under smallholder production. About 44% of the 1,355 members in the Kalangala Oil Palm Growers Association (KOPGA) are women and about 80% are tenants, mostly on mailo land, either as bona fide occupants or more recent settlers. It would seem that most tenants/occupants on mailo land do not have documented rights. Most of the remaining members who are land owners appear to have acquired land from the original mailo land owners. It is estimated that only about 5% of members are the original mailo land owners. It would seem that over the past decade land values have increased significantly 46. The main issue regarding land tenure security now being faced is strengthening the tenure security of tenants/occupants. Plans are underway to grant members who are tenants on public land with either lease or freehold title deeds. Options for strengthening tenure security of members who are occupants on mailo land are also being explored but are perhaps less developed. Certain KOPGA members who are occupants on mailo land intend selling their use rights because they are concerned about their lack of tenure security, although there may be other reasons for them wanting to sell. It would appear that many mailo land owners are reluctant for Certificates of Occupancy to be granted to tenants/occupants but at least some owners have or are willing to sell the land to tenants/occupants and the latter are now better able to buy the land they are using given their increased income from oil palm production. In some cases occupants have already purchased or are planning to approach owners to buy the land they are using. In some cases KOPGA members have used the production loans provided by Kalangala Oil Palm Growers Trust (KOPGT) to buy land. This seems to have particularly enabled women and youth to purchase land. Another issue of concern that perhaps does not directly affect smallholder farmers but may have some relevance for the project are reports that there appear to be competing claims being made for land that has been granted to the OPUL for the nuclear estate. In one case it was reported that a parcel set aside by the company for a woodlot has been exploited by someone who also claims to have a title to the land. In another case someone received in 2012 a title for a land parcel from the Kalangala District Land Office and is suing the plantation manager for the company s use of the land. It would appear that in both cases the claims could be fraudulent and in any event are the responsibility of the government to resolve. While the cases are being dealt with by the company and the district administration, it highlights the importance of having oversight on land adjudication issues by the national task force that includes representation by key national ministries and district government and 13

17 the importance of strengthening the capacity and oversight of the district government in land administration. Land acquisition turned out to be a slow process because of the complexity of land tenure arrangements on the island: much of the land was held under mailo arrangements, inherited by non-resident owners without formal land titles and occupied by bibanja tenants whose usufruct rights are recognized under the 1998 Land Act. Some landowners could not be located or were deceased, did not know where their land was, or had lost their titles. In other cases there were family wrangles over ownership, once it was realised there was a market. Further difficulties and delays were caused by the high proportion of absentee owners and the GoU s commitment to purchasing the land on a willing-buyer/willing-seller basis. Some landowners were reluctant to sell because of negative publicity about the project, and the process was also slowed down by government land purchase procedures, including land surveys and price authorization by the Government Valuer (land prices soared during this period). The Government hired lawyers and surveyors to speed up the acquisition process and engaged in a variety of public relations activities. The problems over land also affected the speed of registration by smallholders and out growers. Both groups needed evidence of a right of tenure as a condition of participation (land title or letters from local chiefs assuring that they had lived on the land for more than 12 years), but there were similar problems of ambiguous ownership and tenancy rights, lack of consent by landowners, and disputes over rights and boundaries. Time was needed for their land to be surveyed, landlord permissions to be obtained, conflicts to be resolved and legal processes completed. The project provided the district land committees with extra resources, but these were still insufficient for the heavy caseload. In addition, the proposed grants of land to returning islanders from the mainland, which would have been a major incentive for smallholder participation, could not proceed because of the lack of public land. These problems resulted in a highly fragmented pattern of land utilization, which has lowered efficiencies for the investor because of the higher costs of transport and mobilization of labour (Brubaker & Scott, 2010). The project has therefore faced some significant challenges in accessing land and securing tenure for smallholder farmers and has come up with creative and sustainable solutions for addressing these challenges. WOMEN S ACCESS: Issues, Challenges, Tools and Strategies The context for women s access to land in Uganda, within which both the DSLP and VODP operate, can be described briefly as follows: Uganda s 1995 constitution has been hailed as being particularly gender sensitive and progressive and among the most female friendly in the world. It stipulates that women and men are equal and have equal rights and specifically prohibits laws, cultures, customs, or traditions that violate the dignity, welfare, or interest of women (Khadiagala, 2001: 62). The Land Act also contains provisions reinforcing the land rights of women, children and orphans (Walker, 2002: 57). 14

18 Uganda s different tenure systems are regulated by different legal systems. Areas near urban centres tend to be governed by the more gender-sensitive state law, whereas land in rural areas tends to be regulated by customary law. There are a number of clauses designed to prevent discriminatory practices, however; for instance, even though it stipulates that any decision taken in respect to customary land should follow customary law, it declares that a decision will be null and void if it discriminates against women s or children s access to ownership, occupation or use of any land (GoU 1998: section 27; and Mugambwa 2002: 82). A consent clause in the 2004 Land Amendment Act, requiring the consent of spouses for land transactions, seeks to further protect women s rights. The weak implementation of state law, as well as customary practices, may pose problems for women in all tenure systems, however. Women are certainly more likely to experience land conflicts than men (Rugadya & Kamusiime, 2008: 102); statistics indicate that while 83% of women in Uganda are engaged in agricultural production and over 90% in food production and processing, only 25.5% own or control the land they cultivate (ULA 2010). Their ownership of registered land is even lower at 7% (Bikaako & Ssenkumba, 2003). Housing, often considered a combined asset with land, particularly in rural areas, is also overwhelmingly owned by men (Rugadya, 2010). One study (Bomuhangi, Doss, & Meinzen-Dick, 2011) highlights the fact that, whilst many households report that husbands and wives jointly own the household land, women are less likely to be listed on any ownership documents, especially titles, and women have fewer land rights. The authors caution that a simplistic focus on title to land misses much of the reality regarding land tenure and could especially have an adverse impact on women s land rights. The same study noted that the danger of women being marginalized in land deals was particularly acute. Although they found (surprisingly) high reported rates of landownership by women, either independently or more commonly with their spouse, these rates decreased dramatically if only documented land rights were considered. Both the welfare and the social legitimacy of large-scale land deals are likely to be undermined, if the complex forms of local land rights for women and men are not taken into account (Bomuhangi et al., 2011). The new National Land Policy pays particular attention to the land rights of women and children, stating that government shall by legislation, protect the rights to inheritance and ownership of land for women and children and ensure that both men and women enjoy equal rights to land before marriage, in marriage, after marriage, and at succession, without discrimination (MLHUD 2011: 27). In order for this to be achieved customary practices regarding access to and ownership of land shall be reviewed and regulated to avoid discrimination against women and children (Gärber, 2012). The DSLP has noted the following issues in respect to women s access to land: Since most women in poor rural communities do not have the financial capacity to purchase land, there is still a low proportion of women who have benefitted from the land tenure security intervention. However, the DSLP reports that process has 15