managed in such a way as to meet the development and environmental needs of present and
future generations of Ugandans; and, in particular, the State shall take all possible measures
to prevent or minimize damage and destruction to land. . . .
These constitutional principles provide a legitimate basis for critiquing the
Ugandan land tenure regime with a view to establishing whether or not it addresses
the tenets of sustainable development based on land and soil rights. A common
feature of the land tenure, and hence soil rights systems in Uganda is that they are
constituted by both registered and unregistered systems.
58
Apart from customary land tenure systems, which are the traditional forms of
African land tenure systems, the other forms of land tenure systems were introduced
in the Ugandan legal fabric by the British colonial Government under the colonial
agreements and laws. The latter land tenure systems remain foreign to the African
economies and their impact on the indigenous communities has been to distort the
whole idea of sustainable utilization of land and hence the soils on the continent.
They are commercially oriented, yet commercial interests are difficult to reconcile
with life sustenance concepts. It is probable that if the African system of development of the legal processes had not been hijacked by the forceful entrenchment of the
western ideology through law and colonization, the concept of sustainable development would find a fertile ground upon which to flourish. Unfortunately, that has not
been the case and merely providing for the concept of sustainable development in the
Ugandan and other African policy and legal frameworks in the mentioned circumstances does not guarantees that it will be successfully implemented. Worst of all,
land tenure laws in Uganda purport to provide for equity in matters of access to land,
and hence soil rights, by women and men, citizens and non-citizens, which has never
been the case either in fact or at law. For example, the Constitution of the Republic of
Uganda, 1995 in Article 26 (1) deceptively provides: [E]very person has a right to
own property either individually or in association with others. The phrase ‘every
person’ is used technically, but deceptively, and within the confines of the exclusionary ideology of patriarchy to portray that all persons in Uganda are equally
protected under the law and are able under the law to access the country’s land and
soil rights without any visible constraints. This is of course a fallacy. The reality is
known. Historical societal stratifications constraints grant more rights of access to
land and soil rights to men than to women.
59 Social stratification equally grants or
recognizes the rights of the economically powerful than the poor.
The dichotomy between men and women and rich and poor makes it difficult for
the various strata to work in unison and hence adhere to the principle of sustainable
development.
58 See Section 2 of the Land Act, Cap. 227, which restates the constitutional provisions: [S]ubject to
article 237 of the Constitution, all land in Uganda shall vest in the citizens of Uganda and shall be
owned in accordance with the following land tenure systems—(a) customary; (b) freehold;
(c) mailo; and (d) leasehold.
59 FIDH (2012).
148
G. Busingye
future generations of Ugandans; and, in particular, the State shall take all possible measures
to prevent or minimize damage and destruction to land. . . .
These constitutional principles provide a legitimate basis for critiquing the
Ugandan land tenure regime with a view to establishing whether or not it addresses
the tenets of sustainable development based on land and soil rights. A common
feature of the land tenure, and hence soil rights systems in Uganda is that they are
constituted by both registered and unregistered systems.
58
Apart from customary land tenure systems, which are the traditional forms of
African land tenure systems, the other forms of land tenure systems were introduced
in the Ugandan legal fabric by the British colonial Government under the colonial
agreements and laws. The latter land tenure systems remain foreign to the African
economies and their impact on the indigenous communities has been to distort the
whole idea of sustainable utilization of land and hence the soils on the continent.
They are commercially oriented, yet commercial interests are difficult to reconcile
with life sustenance concepts. It is probable that if the African system of development of the legal processes had not been hijacked by the forceful entrenchment of the
western ideology through law and colonization, the concept of sustainable development would find a fertile ground upon which to flourish. Unfortunately, that has not
been the case and merely providing for the concept of sustainable development in the
Ugandan and other African policy and legal frameworks in the mentioned circumstances does not guarantees that it will be successfully implemented. Worst of all,
land tenure laws in Uganda purport to provide for equity in matters of access to land,
and hence soil rights, by women and men, citizens and non-citizens, which has never
been the case either in fact or at law. For example, the Constitution of the Republic of
Uganda, 1995 in Article 26 (1) deceptively provides: [E]very person has a right to
own property either individually or in association with others. The phrase ‘every
person’ is used technically, but deceptively, and within the confines of the exclusionary ideology of patriarchy to portray that all persons in Uganda are equally
protected under the law and are able under the law to access the country’s land and
soil rights without any visible constraints. This is of course a fallacy. The reality is
known. Historical societal stratifications constraints grant more rights of access to
land and soil rights to men than to women.
59 Social stratification equally grants or
recognizes the rights of the economically powerful than the poor.
The dichotomy between men and women and rich and poor makes it difficult for
the various strata to work in unison and hence adhere to the principle of sustainable
development.
58 See Section 2 of the Land Act, Cap. 227, which restates the constitutional provisions: [S]ubject to
article 237 of the Constitution, all land in Uganda shall vest in the citizens of Uganda and shall be
owned in accordance with the following land tenure systems—(a) customary; (b) freehold;
(c) mailo; and (d) leasehold.
59 FIDH (2012).
148
G. Busingye