TOP LAWYER OFFERS WAY FORWARD ON LUSANJA

By Our Reporters

In his interaction with scribes, top city lawyer Sam Mayanja offered an insight that could provide way out for Lusanja eviction victims. He says Kibanja holders’ eviction (which MPs/Judiciary have since condemned) is total violation of constitutionally-guaranteed rights like was saw in Lusanja. The legal historian with a bias on land matters gives a historical perspective showing such holders are guaranteed to hold onto land in perpetuity. He refers to the Constitution providing several land tenure systems including Mailo off which tenants have lately been evicted. That Mailo is creature of law viz The 1908 Land Law which created official & private Mailo. He says this began with 1900 Agreement using Mailo to strengthen indirect rule. And close to 1000 private Mailo owners existed at inception of 1900 agreement. Majority of the people lived on land at their mercy without adequate protection of the law. Mailo owners had political powers to levy taxes like Busuulu, a fraction of crops tenants harvested on the Mailo on which they live as Kibanja holders. That Lukiiko full of private Mailo owners increased Busuulu to 20% off the tenants’ total harvest. Official Mailo (public land) comprised public institutions like Masaza and Gombolola. Tenants because aggrieved with nowhere to complain and Mayanja says the Bataka Association derived popularity off their grievances. BA articulated their cause and grew to politically threaten colonial government (especially after Kabaka Chwa’s reforms efforts were thwarted by Lukiiko) which enacted 1928 Busuulu and Nvujo law relaxing on the oppressive status quo. The 1928 law for the first time conferred legal protection to bibanja holders (tenants) and Mayanja says “peasants were given legal protection to remain in quiet possession of their Kibanja without being evicted without court eviction order.” It also guaranteed hereditary security of tenure giving tenants equal status with Mailo landlords. Mayanja says earlier scores made BA agitators complacent delaying quest for Kibanja holders to evolve into titled land owners on land they occupied. Mayanja regrettably notes that the anomaly wasn’t addressed even in the 1962 Independence Constitution and that of 1967. “The exception was under 1967 Constitution with tenants on official Mailo [already transferred to the administration of the Public Land Commission] being allowed to apply to ULC through their DLBs to convert Kibanja to leasehold.” Consequently ex-Bibanja holders (on former official Mailo of Masazas and Gombololas) became lease title holders. The 1995 Constitution Article 237(5) permits Ugandans (leaseholders on public land) to convert to freehold.  The Land Act lays procedure by which this conversion occurs. So prior Kibanja tenants on official Mailo now enjoy perpetual constitutional security following a 100 years struggle. Mayanja refers to S2 of Administration of Land under the Land Act; making enjoyment of that conversion right automatic even for leaseholder who haven’t yet exercised that. “The effect of this provision read together with Article 237(1), (3), (4) and (5) of the Constitution is that constitutionally all citizens are guaranteed the possibility of holding land in perpetuity,” he argues. Mayanja, who has always bashed Mengo’s BLB, says avers enjoyment of this right excludes single member companies (in possession of official Mailo titles) because they are at variance with rights of individual Ugandans who converted their Kibanja into leasehold under Article 237(5). Mayanja says: “The public invitation by this private company to Ugandans, who obtained leaseholds under the 1967 Constitutional dispensation, to have their leasehold revalidated is an affront to the constitution.” He says only tenants on private Mailo are legally can’t enjoy that benefit (Kibanja-leasehold-freehold) until Parliament enacts appropriate laws. “But since Mailo was created by law, Parliament ought to enact appropriate laws for citizens to enjoy equal security of tenure-and even before this happens, these remaining bibanja holders remain protected by provisions of the Busuulu and Nvujjo law of 1926, the archaic provisions therein having been weeded out…as lawful occupants under S29(1)(a)(i) of Land Act,” Mayanja says adding “within this scheme of things, all ongoing land evictions touching on bibanja holders are a nullity and inconsistent with all citizens’ constitutionally guaranteed security of tenure.” Story picked from Red Pepper. For comments, call, text or whatsapp us on 0703164755.