The Constitutional Court has ordered that de-gazetted land that used to be owned by any customary owner or clan in the Acholi-sub-region be reverted to Acholi communities. The court ruled on February 20 that the lands and proprietary interests be held in perpetuity under customary tenure guaranteed under Artic1e 237(1), (3)(a) of the Constitution of Uganda, 1995. DERRICK KIYONGA highlights the ruling that touches on the following key issues.
- Status of de-gazetted land that used to be owned by customary owner or clan
- Roles of customary institutions in land matters under customary tenure
- Roles of District Land Boards on doling out leases on customary land
- Roles of Area Land Committee, District Land Board under customary tenure
- Is there any vacant land in Acholi?
- Who holds vacant land that is not owned by any person or authority?
- Role of customary institutions in applications for certificates of customary ownership
- What happens to leases granted on customary land?
- Who administers or leases degazetted lands and former public lands?
- Roles of High Court on determining grievances relating to grant of any lease
The declaration by the Constitutional Court followed a petition filed by five individuals from the Acholi sub-region led by retired Supreme Court Judge Galdino Okello, retired Anglican Bishop Macleord Baker Ochola, former Chua County MP Livingstone Okello-Okello, Rosalba Oyaa and Centre for Public Interest Law, a civil society organization.
The petition attached the Attorney General and District Land Boards of Agago, Amuru, Gulu, Kitgum, Lamwo, Nwoya, Omoro, and Pader as respondents.
The petitioners asserted that when the current Constitution of Uganda came into force on October 8, 1995, it returned all land to the citizens of Uganda and were to be owned in accordance with the tenure systems provided for in the very Constitution.
The petitioner’s legal team led by Francis Gimara contended Article 237(1) was transformative and grounded for the first time in Uganda, citizens’ land ownership.
Gimara said Article 26(1) anchored this further by providing for the doctrine of eminent domain, which essentially means “inherent power of a government entity to take privately owned property especially and convert it to public use, subject to reasonable compensation.”
To make his case, Gimara further relied on the Constituent Assembly (CA) sitting of May 3, 1995, where different members of the CA demonstrated the history of land ownership and the mischief intended to be cured. The conclusion, he said, was that land be vested back to the citizens from whom it was taken and this included those occupying land under customary tenure to own the land they occupy.
Gimara also cited the legacy of colonial history where land was taken from the people and made or turned into public land and should be remedied. The petitioners, who attacked Section 5 of the Land Act, said it does not provide a role for the customary leaders who are best informed and well-equipped to handle matters of customary land.
The petitioners said, instead, the section vests authority in the area Land Committee, which may or may not refer matters to customary institutions. Further, they said that Section 5(2)(d) of the Land Act gives the Area Land Committee discretion to either involve or exclude customary institutions and leaders, and yet these are critical in matters of customary land.
The petitioners relied on the affidavit of one Ojere, who stated that he undertook research into customary land tenure as understood and practiced in post-conflict Acholi as part of the advisory panel by the Joint Acholi Sub-Region Leaders Forum, touching on the seven chiefdoms in Acholi.
He said almost all the land in the research sample were customary land that belongs to clans and is managed for the benefit of those native and those persons yet to be born into the clan.
Ojere said the land may be allocated to different families and households within the clan. Individuals in the Acholi sub-region, Ojere said in his affidavit, have rights to occupy and use communal land which pass to succeeding generations but the rights are not directly analogous or comparable to those under freehold or leasehold tenure.
Justice Christopher Madrama, who wrote the lead judgment for the rest of the four judges, said that having carefully considered the contention of the petitioners, he found that the assertion that land reverts to the people under Article 237(1) of the Constitution after it had been taken by government implies that it carries with the institutions which used to handle land matters under customary law.
“Therefore, these institutions, where land is held under customary tenure should be meaningfully engaged and allowed a say in matters related to land tenure,” Justice Madrama said.
“Secondly, I find that the petitioners assert that the rules relating to customary tenure ought to be upheld together with the material institutions customarily invested with handling such matters rather than investing all powers in the Area committee and the District Land Board,” Justice Madrama said.
Although the petitioners had insisted that several Sections 2, 3, 4(3), 5, and 7 of the Land Act contravene Article 237 of the Constitution, Justice Madrama didn’t agree. “Sections 3, 4 (3),5, and 7 of the Land Act when read together do not infringe Article 237(1), (3), and (4) of the constitution,” Justice Madrama said.
The petitioners, Justice Madrama clarified, only sought to have a greater role for customary institutions in applications for certificates of customary ownership, something that the judge said is best left for Parliament to answer.
The judge said the contested sections don’t impede customary institutions from exercising any customary roles they may have in customary land tenure under customary laws, customs, and practices before any person apply for a customary certificate or apply to convert land held under customary ownership to freehold tenure by registration in the ordinary course of a system of customary tenure.
“Such roles of the of customary institutions may be in the acquisition by individuals, communities or entities of land under customary laws,” Justice Madrama said.
“In short, Sections 2, 3, 4(3), 5 and 7 of Land Act recognizes and permits land held under the customary land tenure system to be governed by the applicable customary law except for customary laws and practices that are forbidden by the Constitution,” he added.
District Land Boards
The petitioners also argued that it was wrong to the listed District Land Boards to administer de-gazetted former public land as land owned by the government. The petitioners said the Land Boards are administering this land on the premise that it’s “vacant” land; something they say simply doesn’t exist as no land is not owned as vacant land may be customarily considered grazing lands or hunting lands while the other options may be designated for farming.
In their defense, the listed District Land Boards said Aswa, Lolim, Kilak, were the only degazetted land reserves in Nwoya and Amuru districts. The District Land Boards also said there was no evidence at the time of colonization that the communities affected at the time of degazetting of the area were Acholi.
In determining this issue, Justice Madrama said Article 241(1), which gives functions to the District Land Boards is significant because it caters to holding of land that is not owned by any person or authority. The flipside, Justice Madrama said, is the land owned by any person or authority is excluded. Secondly, the judge said the Article doesn’t state that land is vested in District Land Boards.
Thirdly, Justice Madrama said one of the roles of the District Land Boards is to allocate land which is not owned by anybody. Though the judge agreed that the constitution empowers District Land Boards to allocate land not owned by any person or authority there is more to it.
“The District Land Boards can’t grant leases out of lands which are not vested in them and the leases may be granted by the customary owners of the land and the lease grant facilitated by the District Land Board under Article 241(1)(b) of the Constitution of the Republic of Uganda 1995,” he said.
The Judge further ruled that the practice of administering and leasing degazetted lands and former public lands by the District Land Boards except for land that arises in terms or reversion from leases formerly granted to non-citizens or land which is proved by evidence to be land not owned by anybody or authority is inconsistent with Article 237(1) and (3) of the Constitution.
Justice Madrama was, however, quick to clarify that he wouldn’t nullify any leases which have been granted since he hasn’t heard from the beneficiaries of the lease. “And any grievances relating to grant of any lease shall be handled by the High Court which will consider all relevant factors,” the Judge said.
Asked what this land means, Gimara said the District Land Boards can no longer dole out leases on customary land in Acholi. “While the judge wouldn’t cancel the leases, they [District Land Boards], going forward, can’t issue them because it’s unconstitutional,” he said.