It is noteworthy that within the constructs of the Judicature Act, it would be
difficult for an African custom to pass the repugnancy test, and hence its operation is
limited to very few circumstances.
What the High Court of Uganda and other courts of Judicature apply is not the
African customary law alone; they apply an amalgam of western legal principles as
well as the African customary principles, all of which do not favour entrenched
rights of women and to some extent non-citizens rights to land and hence soil rights.
The problematique in the Ugandan land tenurial systems and their regulation of soil
rights, therefore, partly lies in the simultaneous application of the English common
law or doctrines of equity and the traditional norms and values of the traditional
Ugandan society. Moreover, upon its introduction in the African legal regime,
British law sought to subdue and annihilate African customary law, which cannot
be distinguished with the way of life of Africans. In this regard, Mugambwa asserts:
[T]here, recognition of customary land rights was the exception rather than the rule. For
example, in Uganda, the British protectorate administration declared most land in the
territory Crown land by virtue of the protectorate. Customary land tenure was recognized
but within limits. Under the Crown Lands Ordinance 1903, indigenous Ugandans had a right
to occupy any land (outside the Buganda kingdom and urban areas) not granted in freehold
or leasehold without prior license or consent in accordance with their customary law.
However, the Governor had the power to sell or lease such land to any other person without
reference to the customary occupants of the land.
51
Simultaneous application of the hitherto unknown British law in Uganda together
with the customary land tenure systems contemporaneously complicate the position
of Ugandan women and men, citizens, and non-citizens, in regard to access to soil
rights.
Indeed, land, which broadly embodies the soil, is one economically viable
resource that all Ugandans, women and men, citizens and non-citizens, have an
inherent right to in their individual capacities. That has, however, historically not
been the case. For example, in 1845, Marx wrote:
[W]e do not set out from what men say, imagine, conceive nor from men as narrated, thought
of, imagined, conceived, in order to arrive at men in the flesh. We set out from real, active men,
and on the basis of their real life process we demonstrate the development of the ideological
reflexes and echoes of this life process. Morality, religion, metaphysics, all the rest of ideology
and their corresponding forms of consciousness, thus no longer retain the semblance of
independence. They have no history, no development: but men, developing their material
production and their material intercourse alter, along with their real existence, their thinking
and the products of their thinking. Life is not determined by consciousness, but consciousness
by life.
52
It is noteworthy that within the materialistic paradigm purview, men in Africa
have historically had better access rights to land. Parpart asserts:
51 Mugambwa (2007).
52 German (1981).
144
G. Busingye
difficult for an African custom to pass the repugnancy test, and hence its operation is
limited to very few circumstances.
What the High Court of Uganda and other courts of Judicature apply is not the
African customary law alone; they apply an amalgam of western legal principles as
well as the African customary principles, all of which do not favour entrenched
rights of women and to some extent non-citizens rights to land and hence soil rights.
The problematique in the Ugandan land tenurial systems and their regulation of soil
rights, therefore, partly lies in the simultaneous application of the English common
law or doctrines of equity and the traditional norms and values of the traditional
Ugandan society. Moreover, upon its introduction in the African legal regime,
British law sought to subdue and annihilate African customary law, which cannot
be distinguished with the way of life of Africans. In this regard, Mugambwa asserts:
[T]here, recognition of customary land rights was the exception rather than the rule. For
example, in Uganda, the British protectorate administration declared most land in the
territory Crown land by virtue of the protectorate. Customary land tenure was recognized
but within limits. Under the Crown Lands Ordinance 1903, indigenous Ugandans had a right
to occupy any land (outside the Buganda kingdom and urban areas) not granted in freehold
or leasehold without prior license or consent in accordance with their customary law.
However, the Governor had the power to sell or lease such land to any other person without
reference to the customary occupants of the land.
51
Simultaneous application of the hitherto unknown British law in Uganda together
with the customary land tenure systems contemporaneously complicate the position
of Ugandan women and men, citizens, and non-citizens, in regard to access to soil
rights.
Indeed, land, which broadly embodies the soil, is one economically viable
resource that all Ugandans, women and men, citizens and non-citizens, have an
inherent right to in their individual capacities. That has, however, historically not
been the case. For example, in 1845, Marx wrote:
[W]e do not set out from what men say, imagine, conceive nor from men as narrated, thought
of, imagined, conceived, in order to arrive at men in the flesh. We set out from real, active men,
and on the basis of their real life process we demonstrate the development of the ideological
reflexes and echoes of this life process. Morality, religion, metaphysics, all the rest of ideology
and their corresponding forms of consciousness, thus no longer retain the semblance of
independence. They have no history, no development: but men, developing their material
production and their material intercourse alter, along with their real existence, their thinking
and the products of their thinking. Life is not determined by consciousness, but consciousness
by life.
52
It is noteworthy that within the materialistic paradigm purview, men in Africa
have historically had better access rights to land. Parpart asserts:
51 Mugambwa (2007).
52 German (1981).
144
G. Busingye