Unfair kibanja owners’ crimes: Insights into Constitutional Petition no.10 of 2020, Dr. Zahara Nampewo & Anor v. Attorney General

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Land comprises a major source of livelihood for many Ugandans on account of the agrarian nature of our society. As such, any threats to the continuity of ownership or access to that very important resource directly impacts the life of Ugandans.

Sadly, the country is faced with a land crisis that has reportedly not only escalated to “epidemic proportions” but “also assumed tragic dimensions” (Oloka-Onyango, 2017). One of the spectacular features of this crisis is the way in which land injustices have ceased to be a concern of only the landless and unregistered tenants on land.

For long, it used to be tenants on registered land who were exclusively at the receiving end of injustices in the enjoyment of land rights. However, lately incidents of registered proprietors losing their resource for instance through fraud and brute force are also becoming rampant, implying that mere possession of documentation may not necessarily guarantee immunity from land injustices.

Absurd as it maybe, the awareness that nobody is safe could turn into a blessing in disguise in the long search for justice and equity in land distribution and rights. But that is only to the extent that we harness the crisis to reflect upon and push for the necessary reforms in all possible ways.

In the Ugandan society, stratification along the lines of land ownership is enormously attributable to the start of the 20th century and is highlighted by, among others, the 1900 Buganda Agreement.

That settlement introduced a class of landlords owning square miles of land and leaving the majority as tenants who had to work hard to raise the busuulu and envujjo for the landlord and, resultantly, ensure production of cash crops for the colonial government.

The same arrangement has since replicated itself on other tenures namely leasehold and freehold.
Enslavement of unregistered land owners on mailo land and now other forms of tenure such as leasehold and freehold endures to date. Such unfairness is not only existing as a matter of practice, but is also brutally written on our law books.

Illustratively, this article focuses on the legal restrictions imposed on tenants by occupancy who desire to dispose of their tenancies. Notably, this matter is currently before the Constitutional court in a case (Constitutional Petition no. 10 of 2010) which I recently (Monday July 13, 2020) co-filed with Dr. Zahara Nampewo.

In order to immunise myself against the rule of sub judice, this article only provides a brief of why we went to court and, therefore, does not delve into the merits of the case.

Briefly, the Petition seeks an interpretation from the Constitutional Court, of the Constitutionality of Section 3 of the Land Amendment Act 2010 in view of several provisions of the 1995 Constitution including Article 21 providing for equality, 22 on the right to life, 26 on the right to property, 45, 237(8) & (9) as well as Article 79 (1).

Section 3 of the Land Amendment Act 2010 amended Section 35 of the Land Act, Cap. 227, by introducing section 35(1) (a) which makes it an offence for a tenant by occupancy to assign his or her tenancy by occupancy without giving the first option of taking the assignment to the owner of the land and further provides for invalidation of the assignment and forfeiture of the tenant’s right over the land to the registered owner.

Furthermore, it introduced section 35(8), by which it provided only that a change of ownership of title effected by the owner by sale, grant and succession or otherwise shall not in any way affect the existing lawful interest or bona fide occupant and the new owner shall be obliged to respect the existing interest.

The case of the Petitioners is that by imposing criminal liability on tenants by occupancy for failing to give the registered owner the first option to acquire the tenancy, without imposing a similar, equivalent or any penalty on registered owners of land who fail and/or refuse to give the tenants the first option to purchase the reversionary interest, Section 3 of the Land Amendment Act 2010 thereby unjustifiably discriminates against lawful and bona fide occupants in addition to depriving tenants by occupancy of their interest in land without compensation.

The case is supported by 3 Affidavits from the two petitioners, as well as one of the country’s leading land law experts, Dr. Rose Nakayi.

The outcome of this case will inform subsequent policies and legislation on land in Uganda and to use the jurisprudence to contribute towards resolving matters involving bibanja holders and their landlords. More fundamentally, we hope to see strengthened protection of land rights of Ugandans and thereby, a stronger guarantee of the right to life.


 

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