Implications of land tenure laws for

ensuring the sustainable management

of forested landscapes alongside
planned oil palm expansion in Buvuma

Ronald Kakungulu‑Mayambala
Summary
Senior lecturer, Human Rights and Peace
Centre, Makerere University School of Law, This paper examines land tenure, are mailo, freehold and leasehold,
PO Box 7062, Kampala, Uganda
laws and regulations, acquisition with almost no customary tenure.
[email protected]
and management, implications for However, historical injustices
sustainable management of forested created by mailo land tenure need
landscapes amidst expanding to be streamlined, along with lawful
commercial agriculture. The study and bona fide occupancy needs
draws lessons from the experience of for tenants to avoid unnecessary
large-scale oil palm development in land conflicts amidst expanding
Bugala island, Kalangala district, and commercial agriculture.
uses these to highlight issues related
to land use changes and land use
planning that should be considered
or applied in Buvuma island, where
large scale oil palm development
is foreseen. The predominant land
tenure systems in Buvuma island

Oil palm plantations in forest landscapes: impacts, aspirations and ways forward in Uganda  —  51
Land tenure on land on the basis of a license from the registered owner
shall not be taken to be a lawful or bona fide occupant
Uganda’s land tenure has been provided for by the under this section.” Similarly, “any person who has
Constitution and other laws. Article 237(3) states that purchased or otherwise acquired the interest of the person
“Land in Uganda shall be owned in accordance with the qualified to be a bona fide occupant under this section
following land tenure systems: customary; freehold; mailo; shall be taken to be a bona fide occupant for the purposes
and leasehold”, buttressed in Section 2 of the Land Act of this Act.” Just like lawful and bona fide occupants, a
(Cap. 227) which states that “Subject to Article 237 of the tenant by occupancy on a registered land shall enjoy
constitution, all land in Uganda shall vest in the citizens security of occupancy on the land, may be issued with
of Uganda and shall be owned in accordance with the a certificate of occupancy, and also has the option of
following land tenure system: (a) customary; (b) freehold; purchase. This is the common land tenure arrangement in
(c) mailo; and (d) leasehold.”, and the Land Act goes on Buvuma district where large scale oil palm development is
to explain the meaning of each. foreseen.

• Customary tenure – a system of land tenure

regulated by customary rules, which are limited in Laws and regulations
their operation to a particular description or class of
persons… Several laws and regulations govern land tenures in
Uganda, mainly determined by the land tenure itself, the
• Freehold land tenure –holding of registered land in
nature of the land, and the land use. Natural resource
perpetuity subject to statutory and common law…
law is another relevant branch that primarily concerns
• Mailo land tenure – the holding of registered land in the planning, rational exploitation, use, control and
perpetuity and having roots in the allotment of land protection of various natural resources, focusing on
pursuant to the 1900 Uganda Agreement and subject the regulation of forestry, wildlife, mineral, oil and gas,
to statutory qualifications… marine and fisheries resources. In the context of Buvuma
• Leasehold land tenure – the holding of land for a island and oil palm, natural resource management play
given period from a specified date of commencement, a crucial role, and related law also handle contemporary
on such terms and conditions as may be agreed upon legal issues in ownership, trusteeship, sustainable use
by the lessor and lessee… and regulation of natural resources. Legal and policy
frameworks for managing natural resources such as
Most land in Buvuma is under mailo tenure, followed by forests, wetlands, water, fisheries are largely regulated by
freehold from public lands, and leasehold, with customary law, and the Constitution and Land Act offer guidance.
land almost non-existent (Oloka-Onyango, 2017). In Parliament shall, by law, provide for measures intended
Buvuma and Buganda islands, the 1900 Agreement that (a) to protect and preserve the environment from abuse,
created mailo created a landless class of squatters on pollution and degradation; (b) to manage the environment
what was originally their land, referred to as “lawful and for sustainable development; and (c) to promote
bona fide occupants” of mailo, freehold or leasehold environmental awareness.
land who shall enjoy security of occupancy. In a bid to
harmonize relationships between lawful and bona fide The above follows constitutional requirements which state
occupants and landlords of mailo, freehold and leasehold that the “government may, under laws made by Parliament
land on which the former enjoyed security of tenure, the and policies made from time to time, regulate the use of
government was required to enact a law to “regulate the land.” In a bid to operationalize national law, Parliament
relationship between the lawful and bona fide occupants passed the National Environment Act in 1995. Laws
of land referred to in clause (8) of this article and the since passed under this include Environmental Impact
registered owners of that land”; and to “provide for Assessment Regulations (1998), National Environment
the acquisition of registrable interest in the land by the (Standards for Discharge of Effluent into Water or on
occupant.”. Land) Regulations (1999), National Environment (Waste
Management) Regulations (1999), and National
In July 1998, parliament passed the Land Act, “…to Environment Regulations Wetlands, Riverbanks and
provide for the tenure, ownership and management of Lakeshores Management, (2000). All of the above were
land; to amend and consolidate the law relating to tenure, intended to balance competing interests on land use
ownership and management of land; and to provide for (Kasimbazi, 2012). Lastly, the Land Act states that “a
other related or incidental matters.” As mandated under person who owns or occupies land shall manage and
Article 237 of the Constitution, the Land Act has defined utilize the land in accordance with the Forests Act, the
lawful and bona fide occupants as a “lawful occupant”, Mining Act, the National Environment Act, the Water Act,
or “bona fide occupant”. It is key to note, that “a person the Uganda Wildlife Act and any other law.” Land use in

52 —  Oil palm plantations in forest landscapes: impacts, aspirations and ways forward in Uganda
Uganda is regulated by a number of laws and regulations, to insert a new clause in Article 26 to allow national or
some of which are analysed in more detail below. local government to forcefully take possession, via court
compensation (Uganda Law Society, 2017). The proposed
amendment was criticized as being unconstitutional by
Acquisition and management constitutional law experts (Oloka-Onyango, 2017),
though it remains clear that any land acquisition by
The Constitution, the Land Act and other laws and government or private entities must meet requirements of
regulations, regulate acquisition and management of Article 26 of the Constitution. But in the case of Advocates
land. The 1965 Land Acquisition Act makes “provision for for Natural Resources Governance and Development
the compulsory acquisition of land for public purposes & Anor v. Attorney General, the Constitutional Court
and for matters incidental thereto and connected.” declared Section 7 of the Land Acquisition Act
The Constitution states that land in Uganda belongs unconstitutional and inconsistent with Article 26(2) of the
to the citizens of Uganda, and shall vest in them in Constitution.
accordance with the land tenure systems provided for in
the Constitution. Then, notwithstanding clause (1) of this In Sheema Cooperative Ranching Society and 31
article, the government may, subject to Article 26, acquire Others v. Attorney General, the High Court held that
land in the public interest; though conditions governing the government did not follow the (proper) procedure
such acquisition shall be as prescribed by Parliament, and of compulsory acquisition of the suit land laid down
(b) government as determined by Parliament shall hold it in the law and, as such, the acquisition was unlawful.
in trust for the people and to protect natural lakes, rivers, In Bataringaya v. Attorney General, the defendant’s
wetlands, forest and game reserves, national parks, and compulsory acquisition of the plantiff’s land was found
any land reserved for ecological and touristic purposes for to be inherently unlawful insofar as it was done without
the common good of all citizens (Constitution of Uganda, prior adequate compensation as required by Article 26
1995, Article 237). The acquisition of land in Buvuma of the Constitution. And lastly, in Onegi Obel & Anor
has also been distorted by land dealers and brokers who vs. Attorney General & Gulu District Land Board, the
tend to work for profit (Serunkuma and Batte Lule, 2017). High Court emphasised the importance of following
Land injustice remains not only a challenge in Buvuma due process as given in the Constitution and the Land
with the introduction of oil palm but is also a nationwide Act before government can take over land for public
challenge (Ojok and Ameny, 2017). Land grabbing and works. The courts of law have played a pivotal role in
injustice usually pits the poor against the rich individuals or ensuring there is adequate compensation for compulsory
companies (Kabura and Tuhaise, 2017). acquisition of law in Uganda at least by way of redress
(Nakayi and Twesiime-Kirya, 2017).
Land in Uganda belongs to its citizens, thus, any
acquisition whether by the government or a private entity The Land Acquisition Act does not provide for prior
must comply with the requirements of Article 26. (1) Every payment of compensation before government
person has a right to own property either individually compulsorily acquires or takes possession of any person’s
or in association with others. (2) No person shall be property (Resty, 2015), and must be seen in conjunction
compulsorily deprived of property or any interest in or with Article 2(2) of the Constitution which states that “If
right over property of any description except where the any other law or any custom is inconsistent with any of the
following conditions are satisfied, by (a) the taking of provisions of this constitution, the Constitution shall prevail,
possession or acquisition is necessary for public use or in and that other law or custom shall, to the extent of the
the interest of defence, public safety, public order, public inconsistency, be void.”
morality or public health; and (b) the compulsory taking of
possession or acquisition of property is made under a law Similarly, in interpreting laws such as the 1965 Land
which makes provision for (i) prompt payment of fair and Acquisition Act which pre-date the 1995 Constitution, they
adequate compensation, prior to the taking of possession must follow Article 2(2) and Article 274, which stated that
or acquisition of the property; and (ii) a right of access to existing law shall be construed with such modifications,
a court of law by any person who has an interest or right adaptations, qualification and exceptions as necessary
over the property. to bring it into conformity with the Constitution. Second,
‘existing law’ means that written and unwritten law existed
Article 26 of the Constitution is buttressed by Section before the Constitution, including enacted Acts, Statutes
42 of the Land Act that states that “Government or local or statutory instruments made before that date, and all
government may acquire land in accordance with article entities in charge of acquiring land for oil palm plantations
26 and 237(2) of the Constitution”. But this has been the in Buvuma must heed the above laws. In addition,
subject of intense media debate after the introduction of understanding the effects of oil palm expansion on Bugala
the Constitution (Amendment) Bill, 2017 that proposes for land use planning is very relevant for Buvuma island

Oil palm plantations in forest landscapes: impacts, aspirations and ways forward in Uganda  —  53
where a similar project is soon to be rolled out. Oil palm Conclusions
has replaced tropical forests leading to deforestation
and a reduction to biodiversity (Vijay et al., 2016). And Based on experiences in Kalangala, the introduction
in Buvuma where large-scale oil palm development is and expansion of oil palm growing in Buvuma district
foreseen, land-use change is one of the greatest threats to is likely to lead to widespread evictions. Furthermore,
biodiversity. research findings point to the fact that oil palm expansion
on Bugala has already had an effect on Buvuma district
A summary of legal instruments, subsidiary legislation and where large-scale oil palm development is foreseen but
cases not yet initiated. The question of tenure security on land
in Buvuma and Buganda under the mailo tenure system
Legal instruments is largely historical and a creation of the colonial era
(West, 1964), and there is an urgent need to harmonize
• Ankole Landlord and Tenant Law of 1937
Uganda’s land laws with investment needs, and the
• Busuulu and Envujjo Law of 1928 government’s own Vision 2020 (Mugambwa, 2002).
• Constitution of the Republic of Uganda, 1995 Uganda’s land tenure, laws and regulations regarding
(Amended) land acquisition and management have multiple
• Forests Act, Cap 147 implications for the sustainable management of forested
• Land Acquisition Act 1965, Cap 226 landscapes amidst expanding commercial agriculture.
Uganda has the laws and regulations to address the key
• Land Act, Cap 227
issues, but implementation in Bugala appears to have
• Mining Act, No. 9 of 2003 failed thus far, but the lesson learnt should be used to
• National Environment Act, 1995, Cap 153 help Buvuma. Land owners and land users in Buvuma
• National Forestry and Tree Planting Act, No. 8, 2003 must be made aware of the national laws and regulations
• Toro Landlord and Tenant Law of 1937 relating to land use and access in Uganda, and seemingly
unconstitutional land laws such as the Land Acquisition Act
• Uganda Wildlife Act, 1996 Cap 2000 need to be re-interpreted in line with the Constitution, and
• Water Act, Cap 152 ultimately, may require amending.

Subsidiary legislation
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