Customary tenure is the most common tenure system in Uganda whereby access to land is “governed by the customs, rules, and regulations of the community.” Holders of land under the customary system do not need to have a formal title to the land they use, but generally have secure tenure. The 1995 Constitution provided a great opportunity for customary tenants in Uganda. By vesting all land in the citizens of Uganda and recognising customary tenure rights to land, it raised the status of the customary tenure system. Tenants on former public land now enjoy security, and may no longer be evicted as before.

This provision dramatically changed the relationship between the individual and the state. The state no longer held absolute title to land in Uganda. The government could only acquire land in the public interest under Article 237(2)(a). Therefore, in the Ugandan context, much has been achieved both at the constitutional and legislative level to integrate customary tenure, including communal ownership and statutory tenure, notwithstanding the lack of a policy in this regard. The important question that remains to be answered however, is to what extent this integration is realistic. Does it offer any meaningful opportunities for the customary tenant? What are the constraints that it presents? Customary tenure involves several practices which place traditional authorities and leaders at the centre of most activities relating to land. It is imperative note that that most of such land in Uganda is not yet registered under the freehold, mailo or leasehold tenures

Why the petitioners went to court?

Constitutional Court decision on Customary Tenure and powers of District Land Boards: Hon (Rtd.) Justice Galdino Okello in Omoro & 4 Others v. Attorney General & 8 Others, Constitutional Petition No 28/2019. The petitioners grounded with concern for the Public interest of the people of the Acholi Sub Region went to the Constitutional Court of Uganda to challenge the constitutionality of Land Boards. A major concern was raised on how the Land board is administering de-gazetted Land and former “public land”  Customary land, despite the proprietary rights that are guaranteed in the Constitution of Uganda under Articles Articles 26 (1) & (2) and 237 (1), (3) (a) & (A).

The Petitioners Further point out the contravention of specific sections in the 1998 Land Act that are inconsistent with Article 237 (1) which gives dominion to citizens of Uganda over all land in accordance with the land tenure systems provided for in the Constitution. They submitted that this provision was transformative in that it grounded for the first time land ownership to Ugandan citizens.

They evidently expressed their dissatisfaction with how customary land in the Acholi sub region was being treated such as if Public Land that the Land Board can without permission proceed to lease. This Act alone makes Customary land tenure to be less recognized without the absolute practice of the law embedded in the 1995 Constitution that all Land is vested in the people. Thus the Authority of the Land Board to make decision on Customary Land is unconstitutional

That the making of ownership of customary land contingent upon occupation of Land is inconsistent with customary land tenure and the proprietary rights thereof as guaranteed under of the Constitution of Uganda.

However, the Respondents to this petition submitted that whereas use and occupation of Land can be used as an incident of forms of customary ownership, there are other incidents used in determining customary land tenure and that t principally, District Land Boards, facilitate the registration and transfer of interests in land.

Decision of Court.

The petition yielded positively as most of the declarations sought by the Petitioners were granted. The Court made very profound declarations that strengthen customary tenure as a form of land ownership in Uganda. These include:

• Following the promulgation of Article 237 of the Constitution of the Republic of Uganda 1995, there is no public and in Uganda except the Land held by the Government and local government in the public interest
• The Constitution empowers District Land Boards to allocate land not owned by any person or authority.
• The District Land Board cannot grant teases out of the Land which is not vested in them and the leases may be granted by the customary owners of the land and the lease grant facilitated by the District Land Board under Article 241 (1) (b) of the Constitution of the Republic of Uganda 1995.
• The practice of administering and leasing de-gazetted lands and former “public lands” by the District Land Boards, except for land that arises in terms of reversion from leases formerly granted to noncitizens or land which is proved by evidence to be land not owned by anybody or authority, contravenes (sic) is inconsistent with Article 237(1) and (3) of the Constitution.
• De-gazetted land which used to be owned by any customary owners, clan or community in the Acholi sub-region reverted back to the original customary owners under customary tenure where such ownership is proved.
• Article 237 (1) of the Constitution of the Republic of Uganda vested Land in the citizens and where it is held under customary law, such and reverted to the position it had in terms of its status prior to the Land being vested in the government under the relevant Legislations subject to Legitimate transactions having occurred on the Land over the years.

Effects of the Decision.

• The decision streamlines the role of District Land Boards as far as dealing with customary land ownership. The District Land Boards are supposed to manage such land for and on behalf of the customary land owners, and can only issue Certificates of Customary Ownership (CCOs) or freeholds as per the law now.
• The District Land Boards can no longer issue leases over (de-gazetted) customary land on the basis that the same is treated as former public land. The land in these areas as properly interpreted by the Constitutional Court reverted to the owners by virtue of Article 237 (1) of the Constitution. This ownership must be traced to the period prior to colonisation.
• The period prior to colonisation up to the present day can best be articulated by the traditional institutions. The decision provides for traditional institutions to play a greater role in confirming the ownership of land before the land is brought under the provisions of both the Land Act and Registration of Titles Act (RTA).

Conclusion.

This decision has further helped to streamline and confirm the laws relating to Customary Land Tenure and its Propriety Rights. However it does not conclude the problem question on customary Land but can be used as a reference in customary land matters.

By Alinda .S. Rachel
CEPIL Legal Assistant