Enforcing new property rights in Sub-Saharan Africa: The Ugandan constitution and the 1998 Land Act

Comparative Politics

Volumn 39, Issue 4, 2007, Pages

  Joireman, Sandra F ^a  

^a NONE

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EID: 34548674696     PISSN: 00104159     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (74)

1. Prior to the new constitution, the impediments to women's owning property in their own names were such that it was necessary for a woman to form a corporation or make the purchase in the name of a son or a brother if she wanted to purchase a home, a business, or a piece of land.
2. Bruce Benson, The Enterprise of Law: Justice without the State (San Francisco: Pacific Research Institute for Public Policy, 1990), noted the large social costs of using legislation to solve problems.
3. Terry L. Anderson and Peter J. Hill, The Not So Wild, Wild West (Stanford: Stanford University Press, 2004);
4. Robert C. Ellickson, Order without Law: How Neighbors Settle Disputes (Cambridge, Mass.: Harvard University Press, 1991 );
5. Harold Demsetz, "Toward a Theory of Property Rights," American Economic Review, 57 (1967), 347-59.
6. Daron Acemoglu, Simon Johnson, and James A. Robinson, "Institutions as the Fundamental Cause of Long-Run Growth," in National Bureau of Economic Research Working Paper Series (Cambridge, Mass.: NBER, 2004);
7. Hernando De Soto, The Mystery of Capital (New York: Basic Books, 2000);
8. Gary Libecap, "Contracting for Property Rights," in Terry Anderson and Fred S. McChesney, eds., Property Rights: Cooperation, Conflict and Law (Princeton: Princeton University Press, 2003);
9. Seth W. Norton, "The Cost of Diversity: Endogenous Property Rights and Growth," Constitutional Political Economy, 11 (2000), 319-37.
10. Sara Berry, No Condition Is Permanent (Madison: University of Wisconsin Press, 1992);
11. Martin Chanock, "Paradigms, Policies and Property: A Review of the Customary Law of Land Tenure," in Katharine Mann and Richard Roberts, eds., Law in Colonial Africa (Portsmouth: Heinemann Educational Books, 1991);
12. Martin Chanock, "A Peculiar Sharpness: An Essay on Property in the History of Customary Law in Colonial Africa," Journal of African History, 32 (1991), 65-88;
13. Jean-Philippe Platteau, "The Evolutionary Theory of Land Rights as Applied to Sub-Saharan Africa: A Critical Assessment," Development and Change, 27 ( 1996), 29-85;
14. Francis Fukuyama, State-Building: Governance and World Order in the 21st Century (Ithaca: Cornell University Press, 2004);
15. David L. Weimer, The Political Economy of Property Rights (New York: Cambridge University Press, 1997).
16. O. E. G. Johnson, "Economic Analysis, the Legal Framework and Land Tenure Systems," Journal of Law andEconomics,\5 (1972), 259-76.
17. De Soto.
18. These same ideas are echoed in Harold Demsetz, "Toward a Theory of Property Rights II: The Competition between Private and Collective Ownership," Journal of Legal Studies, 31 (2002), S653-S672.
19. Klaus Deininger, Land Policies for Growth and Poverty Reduction (Washington, D.C.: World Bank and Oxford University Press, 2003), p. xxv.
20. Platteau; Demsetz; Libecap; Gershon Feder and Raymond Noronha, "Land Rights and Agricultural Development in Sub-Saharan Africa," The World Bank Research Observer, 2 (1987), 143-169.
21. Gershon Feder, Tongroj Onchan, Yongyuth Chalamwong, and Chira Hongladarom, Land Policies and Farm Productivity in Thailand (Baltimore: The Johns Hopkins University Press, 1988).
22. Sarah Gavian, "Land Tenure and Soil Fertility Management in Niger" (Ph.D. diss., Stanford University, 1993);
23. Thomas C. Pinckney and Peter K. Kimuyu, "Land Tenure Reform in East Africa: Good, Bad or Unimportant?" Journal of African Economies, 3 (1994), 1-28.
24. Deininger, p. 48.
25. Sarah Gavian and Marcel Fafchamps, "Land Tenure and Allocation Efficiency in Niger," American Journal of Agricultural Economics, 78(1996), 460-71.
26. Johnson.
27. Libecap, p. 155.
28. Douglass C. North, Understanding the Process of Economic Change (Princeton: Princeton University Press, 2005).
29. Sandra F. Joireman, Property Rights and Political Development in Ethiopia and Eritrea: The State and Land, 1941-1974 (Athens: Ohio University Press, 2000).
30. Catherine Boone, Political Topographies of the African State: Territorial Authority and Institutional Choice (New York: Cambridge University Press, 2003);
31. Jeffrey Herbst, States and Power in Africa: Comparative Lessons in Authority and Control (Princeton: Princeton University Press, 2000);
32. Dele Olowu and James S. Wunsch, Local Governance in Africa (Boulder: Lynne Rienner Publishers, 2004).
33. There were other organized kingdoms in what is now Uganda, but the Baganda was the strongest.
34. There was an additional conflict over 9,000 square miles of land that had been appropriated by the colonial government as crown land with the intent of providing some land that could be allocated as freehold to settlers. This land was controlled by the colonial government on behalf of its occupants.
35. Makarere Institute of Social Research and Land Tenure Center of the University of Wisconsin, Land Tenure and Agricultural Development in Uganda (Madison: University of Wisconsin, 1989).
36. This issue is particularly sensitive in Uganda. In 1972, when Idi Amin was president of Uganda, he expelled the approximately 60,000 South Asians from the country and effectively nationalized all of their assets. For an overview of the Asian role in the Ugandan economy prior to the expulsion, see Vali Jamal, "Asians in Uganda, 1880-1972: Inequality and Expulsion," Economic History Review, 29 (1976), 602-16.
37. Article 33 goes even further, assuring women affirmative action. Article 33 reads as follows. "(1) Women shall be accorded full and equal dignity of the person with men. (2) The State shall provide the facilities and opportunities necessary to enhance the welfare of women to enable them to realise their full potential and advancement. (3) The State shall protect women and their rights, taking into account their unique status and natural maternal functions in society. (4) Women shall have the right to equal treatment with men and that right shall include equal opportunities in political, economic and social activities. (5) Without prejudice to article 32 of this Constitution, women shall have the right to affirmative action for the purpose of redressing the imbalances created by history, tradition or custom. (6) Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status are prohibited by this Constitution."
38. See Aili Mari Tripp, "Women's Movements, Customary Law, and Land Rights in Africa: The Case of Uganda," African Studies Quarterly, 7 (2004), 1-19.
39. Ibid.
40. John T. Mugambwa, Source Book of Uganda 's Land Law (Kampala: Fountain Publishers, 2002), p. 50.
41. In the northern part of Uganda where civil conflict has displaced people since the 1980s, this provision has given security of occupancy to those residing on and farming land in areas to which they fled, including land in or near internally displaced people (IDP) camps. This provision also has been problematic in the case of large corporate landowners, such as the Church of Uganda, which purchased land for potential future use on which squatters have established homes. The author also encountered one case in which this clause was being used by the family of the pastor of a church to try to maintain occupancy of the parsonage after the pastor had died.
42. Legal guarantees of co-ownership appear unlikely to be achieved via legislation. Versions of the Domestic Relations Bill have been in parliament for thirty years without passage.
43. Specifically, the interests that minor children had in their family land were eliminated. The reasoning behind the elimination of the protection of children's rights was twofold. First, it was very difficult to get a mortgage on any piece of land that children might have an interest in because the land itself could not then serve as collateral for the loan if it could not be possessed by the bank giving the loan in case of default. Second, it was felt that children's interests were adequately protected in other areas of law, such as the Inheritance Act.
44. Although in the case of Uganda it also illuminated problems with other areas of law that were also in need of revision, such as the Registration of Titles Act, which regulated mortgages.
45. For information on the problems of titling in Kenya, see Simon F. R. Coldham, "Land-Tenure Reform in Kenya: The Limits of Law," Journal of Modern African Studies, 17 (1979), 615-27.
46. Ugandan Bureau of Statistics, 2002 Census (Government of Uganda, 2002), cited May 30, 2006, available from http://www.ubos.org/ census%20tabulations/cenannextla.pdf.
47. Ibid.
48. One of the largest challenges with any institutional change that is initiated by the central government is effectively conveying information to the people affected by it. In Uganda effort at disseminating information to the public at large was undertaken by both the government and nongovernmental organizations in both English and Lugandan. As late as 2005 radio campaigns educated people about particular aspects of the Land Act, such as the need for men to get the consent of their spouses before transferring a title.
49. Patrick McAuslan, Bringing the Law Back In (Burlington: Ashgate, 2003), 330-36.
50. McAuslan describes the struggle of the director of lands and environment to resist the changes of the Land Act in Chapter 13, aptly entitled "Men Behaving Badly: A Narrative of Land Reform. A Story of How the Best Intentions of Ministers and Parliament can be Corrupted by Bureaucrats."
51. North, p. 117.
52. McAuslan, p. 307.
53. Ibid., pp. 337-38.
54. Interview with JM, September 2005.
55. Interview with DM, May 2006.
56. "Ministry of Lands Needs to Do More," New Vision, Oct. 11, 2005.
57. "Has Govt Stopped Recognizing KCC?," Daily Monitor, Sept. 17, 2005, p. 6.
58. Women by custom are the cultivators in Uganda; but also by custom men take the produce to market and thereby gain control of the income from farming. The author inquired of women in Tororo whether there were any opportunities for shirking or "weapons of the weak" that women could use to exert control over the marketing of their crops. Two such responses were to resort to farmstand sales at which women would sell their produce by the road near their farms-an option that would be open only to some women with strategically located fields-and simply to eat more of it (or feed more of it to their children) than they would if they could market it themselves.
59. See Chanock; Terence Ranger, "The Invention of Tradition in Colonial Africa," in Terence Ranger and Eric Hobsbawm eds., The Invention of Tradition (New York: Cambridge University Press, 1983).
60. World Bank, Gender, Growth, and Poverty Reduction, no. 129 (Washington, D.C: The World Bank, 1999), cited Nov. 8, 2005, available from http://www.worldbank.org/afr/findings/english/findl29.htm.
61. Jacqueline Asiimwe, "Making Women's Land Rights a Reality in Uganda: Advocacy for Co-Ownership by Spouses," Yale Human Rights and Development Law Journal, 4 (2001), 175.
62. For those who choose to do so, often the negative social repercussions are strong, from denial of access to farmland through the husband's customary rights to spousal abuse and in some cases murder. In 2005 many Ugandans followed the murder of Robinah Kayingi, a Ugandan woman lawyer who had lived some years in Australia. She was sued for divorce by her husband, a Ugandan cardiologist also living in Australia. She wanted the case heard in Australia so that she would retain some of the marital property. Shortly after she succeeded in having the case transferred there, she was murdered. Sydney Cardiologist Charged in Uganda (Melbourne: The Age Company Ltd., 2005).
63. Interview with Atuki Turner, September 2005.
64. The Land (Amendment) Act, 2004. Cap. 227. 18 March 2004.
65. Interview with Carol Bunga Idembe, September 2005.
66. According to Ugandan case law, John Eduku v. Uganda, customary marriage is not recognized unless the bride price has been paid. In the many instances where an agreement is made to pay the bride price at a later time, the marriage is not considered legal.
67. Associates for Development and Centre for Basic Research, Gender Monitoring Baseline Survey for the Land Sector Strategic Plan in 20 Districts (Kampala: Ministry of Water, Lands and Environment, 2006), pp. 77-78.
68. Interview with JB, February 2006.
69. Winnie Bikaako and John Ssenkumba, "Gender, Land and Rights: Contemporary Contestations in Law, Policy and Practice in Uganda," L. M. Wanyeki, ed., Women and Land in Africa (New York: Zed Books, 2003).
70. De Soto.
71. Interview with Oscar Okech, September 2005.
72. North, p. 64.
73. Unfortunately, it is not just women's rights to land that are described in this aphorism, but also their right to own any household property, such as a car or a television set.
74. A fact that is acknowledged by the payment of the bride price for a woman to her father on her marriage. The bride price recognizes and is a payment for the loss of labor to her family of origin. In eastern Uganda, if a woman wants to leave her husband for any reason and return to her family of origin, her father must pay back the bride price. In impoverished areas the practice of bride price leads to numerous problems for women. If a woman's family of origin is unable to pay back the bride price, it is very difficult for her to leave a marriage under any circumstances. It is also sometimes the practice that a woman will be given to a man in marriage with the understanding that he will pay the bride price over a period of several years. If he does not do so, the woman's family can demand that she return home with any children from that marriage. They can then try to make another marriage for her in which bride price will be paid. This practice is potentially dangerous in a country where HIV infection rates are high.