On February 26, 2013 President Museveni castigated what he called “bayaaye-minded, nouveau-rich, pseudo capitalists; corrupt local leaders, police and courts; and still unsensitized peasants” for the burgeoning problem. He then banned all evictions involving peasants and announced a special committee headed by Hon Rosemary Seninde to “go area by area returning people illegally evicted back to their bibanja.” Wheeew, what unenviable task!
Truth is, the Hon Rosemary Seninde Committee will ignominiously fail. It will fail not because it won’t be able to return as directed, those evicted to where they were evicted from. Indeed, the state’s organs of coercion must be mouth-watering at yet another ‘licensed’ bonanza to splash gun powder in support of Hon Seninde Committee. The forced return though will be doomed because it neither is backed by the law, nor can it be sustained. President Museveni has a right, just like any other Ugandan, to express his frustrations over the paralysis in land justice administration. However, he does not have a right to use his frustration as a basis to circumvent judicial procedures and the law regarding land administration in the country.
While I accept and stand to be corrected by legal minds, I put it to Hon Rosemary Seninde and committer members that neither is their mandate unconstitutional nor provided for under any other law. Any decisions made by this committee will therefore be subject to legal challenge to the individual chagrin of committee members.
But a bigger driver for failure of the Hon. Rosemary Seninde Committee is the unsustainability of the committees’ work arising from blatant policy and institutional failures in land administration. One needs to examine factors which have made “bayaaye-minded, nouveau-rich, pseudo capitalists; corrupt local leaders, police and courts; and unsensitized peasantry” thrive.
First, government is responsible for chaos arising from the creation of the “bona fide land occupant” concept – which is enshrouded in so much contextual and definitional confusion that most lawyers find it un litigable in the courts of law. No wonder Museveni thinks courts are incompetent and corrupt. Judicial decisions can only be rendered to the extent of flawed legislation. The onus is therefore on government to straighten up the law so that judicial officers can have a robust framework to litigate land cases.
In particular, the law as it currently stands provides for overlapping land ownership regimes. It also sets “bona fide land occupants” (squatters) on a confrontational path against “bona fide land owners” - both of whom have rights to land ownership. Of note, government was supposed to operationalize a National Land Fund to, inter alia, compensate “bona fide land owners” at market prices and in turn, guarantee full land ownership to tenants or squatters. The Land Fund is in total paralysis. Government remains impotent with regards to getting it fully operational save for a few erratic, political pledges devoid of practical sincerity. Unless dual, overlapping land ownership is resolved, Hon Seninde’s Committee can rest assured of perpetual work.
Secondly, it is to be recalled that Government established District Land Tribunals under section 74 (1) and (2) of the Land (Amendment) Act of 2004 to provide for a speedy resolution of land disputes. These tribunals were choked into extinction by government indecisiveness shortly after they had come into existence. All jurisprudence on land matters was returned to the Magistrates’ Courts and the High Courts, which by the way are shunned by land dispute litigants because of public perception that legalistic procedures therein are too tedious and that one cannot access justice without a lawyer.
In the wake of demise of District Land Tribunals, government provided for creation of Area Land Committees as land arbiters at the lowest level of government (Sub County and Division). Even though these have been appointed by nearly all the District Councils in Uganda, members of these committees have not been issued formal appointment letters because District Councils do not want to commit their resources to support the committees’ work. Without financing from government, Area Land Committees have resorted to charging fees for the services they offer – an unaffordable prospect to some land litigants. Crucially, without appointment letters from District Councils, these committees are illegal and any decisions they take, if at all, are open to legal challenge.
Although Sections 56, 57 and 58 of the Land Act CAP 227 require the establishment of District Land Boards to among other functions, create public awareness about land related matters, the operations of these Boards have been hamstrung by inadequate government funding. Why then complain about massive peasant ignorance over land administration issues?
So, before government blames anybody for land evictions, it needs to soberly audit whether it has delivered on all its policy and institutional obligations required to improve land administration. An honest introspection should reveal that government is actually to blame for most of the land evictions that have taken or will take place. Indeed, given the level of government’s failures, ongoing state ‘outcry’ on land evictions can be tantamount to shedding crocodile tears!
Yes, government systems are broken and paralyzed! But once again, no level of paralysis should justify any ad-hoc, extra judicial alternative to land dispute arbitration, such as the Hon Rosemary Seninde Committee. Government needs to do what is required of it whilst recognizing that land rights administration should be treated as a professional function, removed from the realm of politics, insulated from political pressures.
