A HISTORICAL PERSPECTIVE
Once again some sections of the country are astir over the land issue.
This follows the publication by a group of experts of a report in which it was recommended that the mailo land system of tenure should be abolished on the ground that it retards economic development.
The system is almost exclusively practised in the central region of the country. Mailo land tenure has been contentious since 1956 when one of the country’s leading lights, Zakaria Mungonya as minister of lands in the colonial government suggested in a major policy initiative that the system should be extended throughout the country.
Mungonya’s initiative was roundly resisted by the rest of the country outside Buganda where the traditional systems of tenure subsisted then as of now and the idea was wisely dropped. All the African coffee curing factories were based in Buganda, thanks to the mailo land title deeds which enabled their owners to obtain operating capital from banks. Indeed, the mailo land system contributed to the country’s development as witnessed by the fact that by the 1960s, 45 percent of the country’s revenue came from the Mukono triangle comprising the former Mukono, Bulemezi and Bugerere counties.
By the time the military government decided to nationalise foreign farms there were not less than 45 large-scale coffee, sugar and tea estates in the Mukono area. Today, almost all these estates have gone to waste and the land occupied by squatters who are not productive in any way.
The returned estates such as Mehta’s sugar and tea estates have done a lot in contributing to the recovery of the country’s economy. All these estates are on mailo land whose owners leased their holdings to the Mehta for long periods of time. It cannot therefore be gainsaid that the mailo land system retards development. present-day scholars have moved away from Mungonya’s insight and instead bash mailo land as the cause of the country’s economic miseries.
The argument is always that mailo land leads to fragmentation of the land into uneconomical pieces due to the system of succession which requires subdivisions to be inherited by one’s progenies. The other reason commonly quoted is that most people live on land whose title deeds are registered in the names of absentee owners.
Accordingly, one study which was published in 1993 recommended that the mailo owner should get a title to only the piece of land remaining after taking into account the portions occupied by tenants. This means that if one owned 20 acres and the tenants occupied 19 of them, the owner would remain with only one acre on his title.
Apart from this proposal being nonsensical from a constitutional point of view, since the constitution does not allow expropriation of property without compensation, there is no evidence that the new class of belittled landowners would be more productive than the
original owners were. Even if the government was to find the resources to compensate the present mailo land owners, the questions would still remain to be answered. For example, who is going to pay for the survey and registration fees for the present tenants?
As a landowner, I know that most of the so-called tenants in the present context are squatters who hide behind the twelve-year prescriptive rule to snatch other people’s properties and have no capacity to pay for what it takes to get a title deed.
The total area of Uganda is 241,000 sq kms. This is divided into:197000 sq km dry land, 44,000 open water and swamps, 167,000 arable land, 16,000 sq km forest reserves, 15,00 sq km game reserves and 500 sq km urban centres. The point we want to make here is that mailo land comprises of less than 20 percent of the arable land and of this, only the southern part with tall grass is arable. The question which arises is why do the studies concentrate on an area comprising of about only 10percent of arable land and forget the rest of the land which is arable? The answer is that although in terms of interest in tenure, mailo land is the same as freehold tenure, mailo has a stigma that many people wrongly feel it was freely dished out in 1900 to chiefs at the expense of peasants.
The first mistake experts make is to assume that the peasant society in Buganda was disadvantaged in any way. Social stratification in the kingdom was based on the royal class abataka (clan heads), the bakungu (senior chiefs, abaami (chiefs) and abakopi or those who have not been appointed to office. Every member of the four classes was entitled to own estates in land. In other words, every one of mature age was entitled to a secure tenement whose interest and size depended on one’s status in society. According to A. B. Mukwaya who together with my father, the late E. M. K. Mulira were among the pioneers of the East African Institute of Social Research, the precursor of Makerere Institute of Social research, tells us in his seminal work that the framers of the 1900 agreement on allotting mailo land worked on the assumption that they were only conferring in a permanent form the ancient rights and privileges of the allottee of square miles. Originally, it was assumed that there were
1,000 people with such rights, a figure which must have been suggested by the number of chiefs as this was easy to ascertain.
However, by the time the registration was completed, over 3,700 people with estates of whatever nature had been recorded. This means in a way that there were four times more peasants with estates and therefore mailo land after 1900 than there were chiefs.
The stigma attached to mailo land accordingly simply does not wash. The rights attached to mailo system as distinct from freeholds were articulated in the Land Law Act of 1908. Accordingly, there were more incidences and rights attached to mailo land ownership than were common with freehold. It follows that if there were an automatic conversion to freehold from mailo, the owners of mailo would lose certain rights. Other than this, there would be very little difference if in the interests of uniformity, all land was switched to freeholds. But who would bear the cost involved in this?
The other suggestion of turning all landholding into leaseholds has even more problems because it would vest the land in government which does not have the ability or resources to police over a million titles. Lastly, Idi Amin turned all mailo land into leasehold under the Land Reform Decree of 1975 but there was no attempt to implement the Act until the 1995 constitution restored the old system.
The new attempt to abolish the mailo system means that we have learnt nothing from our past. The idea of group title from which leaseholds could emanate in areas which still use traditional systems could be studied.
Published by African Press in Norway, apn, email@example.com, tel +47 932 99 739 or +47 6300 2525