By John V Sserwaniko
On Thursday, Justice Remy Kasule appeared before Justice Catherine Bamugemereire-led Land Commission of Inquiry for an encounter that lasted several hours. He was here to ride on his vast experience (as a land owner, practicing lawyer, judge & scholar) to give his personal/expert views on how land ownership, use and management in Uganda can be improved. And he did exceptionally well as all Commissioners were unanimous in saying his submissions would greatly enrich their report when it’s finally written. Justice Bamugemereire, who is his Court of Appeal colleague, said “My Lord you have referred to it as a humble submission but my view is it was tremendous.” From the very beginning, the Inquiry’s lead Counsel Ebert Byenkya made general introductory remarks and invited Justice Kasule to read his out his prepared statement. He submitted on so many things including the need to codify customary law and practices as it greatly impacts on land relations. He commended countries like Rwanda for going very far in making use of customary law and practices to define rights accruing under the different land tenure systems. He argued it’s not too late for Uganda to catch up with the rest of the EAC region.
There are credible reports that President Museveni is pushing for the establishment of a Land Authority which will become a one stop center having the last word on all matters land-related. As we previously reported on this website, Museveni is looking forward to use the Inquiry’s final report to derive justification to implement that Land Authority creation. The Authority will be the most powerful entity in Uganda as it’s intended to swallow and integrate the mandate currently held by Uganda Land Commission, NEMA, NFA and partly KCCA as well as District Land Boards. The Uganda Land Commission (ULC), whose leadership continues to be discredited by inefficiency and corruption allegations, will metamorphose into the Uganda Land Authority which reliable sources say Museveni has designated a powerful lawyer to head as pioneer CEO. Indeed, as if to prepare for that day, ULC recently relocated from the dilapidated building near Parliament to more corporate and suitable premises at UAP/Wavamunno-owned Nakawa Business Park. Located next to Mubs, this place is already home to a number of serious entities like URA and UNRA which are renowned for their strong adherence to corporate governance values. Mzee Baguma Isoke continues serving as the ULC Executive Chairman though strong doubts remain whether Museveni will finally okay his fresh contract renewal. He is leading with lots of difficulties not only because of credibility problems but also because of the intrigue in the organization whereby some Commissioners don’t believe in or like his leadership anymore. And yet that isn’t all. Even the Commission Secretary (who is like the CEO) lawyer Robert Nyombi isn’t exactly very enthusiastic about Mr. Isoke’s leadership style and interference in his work as the accounting officer. The Lands Minister Betty Amongin previously told Mulengera news that the proposed Land Authority will become a reality when the new ULC Bill currently being worked on becomes law upon passage by Parliament and assent by the President.
BACK TO KASULE
Renowned for his strong DP background, Justice Kasule (who is soon retiring on grounds of age) endorsed Museveni’s plan to establish the Land Authority. During his interface with the Commission, Kasule justified its need on the fact that even when there are many laws, policies, regulations and directives, they have remained just on paper without majority Ugandans being aware of them. “Even district LC5 Chairpersons and other leaders don’t know much about these laws and policies,” Kasule said. He added these are important to adequately regulate ownership, use and general management of land resources. In his view the Authority can overcome weaknesses NEMA and NFA have endured in enforcing these laws, policies and regulations by ensuring efficient coordination of all these frameworks. Kasule also said the Authority would strengthen the uniform implementation of relevant laws including the National Planning Act, National Land Policy and Physical planning act. Commissioner Rose Nakayi prompted Kasule to discuss land owners’ unwillingness to issue Bibanja holders with certificate of occupancy even when it’s a requirement of the law. And Justice Kasule said these are some of the things the Land Authority could strictly enforce to ensure adequate protection for the Bibanja holders. He added that by initially hearing disputes such as those arising from the doctrine of adverse possession and that of Bonafide Purchaser of Value without notice (one buys without being aware of defect in title), the Land Authority would decongest the conventional judicial system that continues to grapple with case backlog. He suggested that on being dissatisfied with the Authority decision while determining the dispute, an aggrieved party can then proceed to court. Kasule commended S59 of the Registration of Titles Act and said that can be strengthened by having all the other interests (besides the titled owners) indicated on the title so that potential 3rd party purchased coming onto the land have the opportunity to know the other existing interests on the same land besides those of the title registered owner. These could be Bibanja holders or even customary owners. Justice Kasule also suggested that, to overcome speculative tycoons claiming huge sums of money from government as compensation to leave for large projects, the planned land use of the respective areas too can be indicated in the title so that those with developments contrary to what is stated in the title forfeit their right to be compensated. He added that all these things could be overseen and administratively enforced by the Land Authority whose decisions can be challenged in court by dissatisfied parties.
Responding to questions by Commissioner Mary Oduka Ochan, Kasule also discussed the perceived contradiction between Article 237 (on govt taking over land) and Article 26 which makes adequate, prompt and prior compensation mandatory. Specifically discussing the doctrine of eminent domain, Kasule said there is no contradiction as the two provisions complement each other. He said whereas land collectively belongs to citizens, government can (upon compensation under Article 26) take it for use to ideally serve a larger public interest. “Whereas Article 236/237 empowers government to take land, Article 26 comes in to ensure this is done without being unfair to the land owner,” Kasule explained. He agreed with Bamugemereire’s proposal to intensify Continuing Legal Education (CLE) for judicial officers so that anomalous decisions like the one by a judge who blocked cancellation of wetland titles as ordered by NEMA can be gradually overcome. The two judges concurred that CLE would in this case deepen the judicial officers’ understanding of reasons why NEMA cancels such titles. This deepened understanding serves the larger public good better. Kasule also agreed with Commissioner Joyce Habasa’s proposal to increase jurisdiction of the Chief Magistrate’s courts beyond just Shs50m in order to decongest case backlog in higher courts. He also agreed with lead counsel’s proposals to deepen court involvement in supervising administration of the deceased persons’ estates to tame administrators and executors who fraudulently deal with the estate to total exclusion of the intended beneficiaries in whose interest administrators are supposed to act. His own brother Commissioner Robert Sebunya complained about judges taking forever to conclude land cases and prompted Kasule to also give his views on the “12 year regime” which makes whoever stays on another person’s land unconfronted for 12 years a lawful co-owner. Kasule defended the judiciary on the essentiality of the rampant eviction orders whose execution he said is unavoidable because ideally courts can’t decide in vain. But to improve that area, he recommended establishment of the judiciary police whose personnel can execute eviction orders issued by court as opposed to bailiffs who act with a lot of impunity and unjustified violence and unreasonableness all aimed at cowing those they are sent to evict. Commissioners agreed with him there is need to execute eviction orders more humanely. He advised Bamugemereire to minimize areas of possible conflict with fellow judges by organizing a session for top judiciary officials. She enthusiastically accepted this proposal and said that session would be held soon. On Kasule’s advice, Bamugemereire also agreed to have sessions for clan heads (custodians of customary law), academia, bibanja owners and land lords who have become experts because of their daily lived experiences in dealing with land. For comments, call, text or whatsapp us on 0703164755.