Land reform and customary rights: The case of Uganda

Journal of African Law

Volumn 44, Issue 1, 2000, Pages 65-77

  Coldham, Simon ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85007262999     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S0021855300012043     Document Type: Article

References (18)

1. Patrick McAuslan has argued forcefully in favour of “more” rather than “less” law in the context of land law reform in Tanzania. See Patrick McAuslan, “Making law work: restructuring land relations in Africa” (1998) 29 Development and Change 525 at 534ff. The Land Act of Tanzania, for which he was in large part responsible, runs to 186 sections. He applied the same principles in assisting with the drafting of the Ugandan Act; the original Bill was much shorter.
2. Given the emphasis on furthering social justice in land matters contained in Directive IX (iii) of the Constitution, this was hardly surprising.
3. Customary Leaseholds (Enfranchisement) Act, 1968. The enfranchisement process was beset with difficulties. The Ugandan Land Act s. 29 does provide for the enfranchisement of leases of public land; however, enfranchisement is not automatic, as it was under the original Bill, nor, where the area of land exceeds 100 hectares, is it free.
4. MISR/University of Wisconsin, Land Tenure and Agricultural Development, University of Wisconsin Land Tenure Center, Madison, 1990. The Study was funded by the World Bank and USAID.
5. Interestingly, in Tanzania there has recently been some debate about the recommendation of the Presidential Commission of Inquiry into Land Matters to give certain responsibilities to a panel of elders (Baraza la Wazee la Ardhi). See P. McAuslan, Land Tenure and Agricultural Development, at 548.
6. See, for example, S. Coldham, “The effect of registration of title upon customary land rights in Kenva”. [1978] J.A.L. 91
7. and F. Mackenzie, “Gender and land rights in Muranga District, Kenya”, (1990) Journal of Peasant Studies, 17(4), 609.
8. See John Bruce and others, “Land and natural resource tenure on the Horn of Africa: synthesis of African trends and issues raised by land tenure country profiles of East Africa countries, 1996”, in Workshop Report on Land Tenure Issues in Natural Resources Management in the Anglophone East Africa with a focus on the IGAD Region, Addis Ababa, 11–15 March, 1996, unpublished.
9. M. Marquardt, “Access to land and other natural resources: Research and Policy Development Project Uganda”, Workshop Report on Land Tenure Issues in Natural Resources Management in the Anglophone East Africa with a focus on the IGAD Region. He argues that registration should be related to the commercialization of agriculture and the need to secure investment.
10. The well-known Swynnerton Plan proposed that “the African farmer … be provided with such security of tenure through an indefeasible title as will encourage him to invest his labour and profits into the development of his farm and as will enable him to offer it as security against financial credits.” R.J.M. Swynnerton, A Plan to Intensify the Development of African Agriculture in Kenya. 1954, s. 13.
11. As mentioned above, the government of Uganda embraced the freehold option in the 1995 Constitution. So the question hardly arose in the debates on the Land Bill. It has been argued, however, that Ugandan farmers do not need freehold tides as long as they have security of tenure. See Nyangabyaki Bazaara, “Land reforms and agrarian structure in Uganda; retrospect and prospect”, (1995) 34/35 Nomadic Peoples 37.
12. It has also been argued that government attempts (e.g. in Kenya and Tanzania) to intervene in indigenous land tenure arrangements are generallv misguided. “Governments can best devote their resources to other uses, while standing ready to intervene to the minimum extent possible … where some tenure reform is required.” T. C. Pinckney and P. K. Kimuyu. “Land tenure reform in Africa: good, bad or unimportant?”, (1994) 3(1) Journal of African Economies 1 at 26.
13. M. Marquardt, Journal of African Economies At the same workshop Professor Nsibambi also argued in favour of an open land market.
14. A. R. Nsibambi, “Land tenure relations in Uganda 1900–1995”, Journal of African Economies.
15. Ambreena Manji also argues that women are likely to benefit from individual titling. “In Tanzania individualisation, registration and titling on the Kenyan model is more likely to be the means by which the State provides women with land rights.” Ambreena Manji, “Gender and the politics of the land reform process in Tanzania”, (1998) 36(4) Journal of Modern African Studies 645 at 666. Government policy in Tanzania has, of course, been based on the premise that marketability of land increases insecurity’ of tenure.
16. However, there is some evidence that land control boards have been concerned to consult the owner's family where the effect of the transaction would be to leave them with insufficient or no land. See S. F. R. Coldham, “Land control in Kenya”, [1978] J.A.L. 63.
17. For a discussion of the free market approach versus public law regulatory approach see P. McAuslan, J.A.L., at 537ff.
18. One writer has identified corruption as a major source of conflict in land matters in Uganda. See A. Nsibambi, “The land question and conflict”, in K. Rupesinghe (ed.), Conflict Resolution in Uganda (International Peace Research Institute), Oslo, 1989, at 239.