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A REBUTTAL OF THE MINISTERIAL STATEMENT TO PARLIAMENT ON THE 9,000 SQUARE MILES OF LAND IN BUGANDA [MAILO AKEENDA] DELIVERED BY HON. DR. E. KHIDDU-MAKUBUYA, M.P., ATTORNEY GENERAL/MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS.
1. Governments Position on Buganda’s 9000 Sq Miles:
On 11th March 2008 the Hon. Attorney General of Uganda made a Statement to Parliament in answer to questions raised by the Hon. B Kamya on the status of Buganda’s 9,000 sq. miles of land. The AG’s statement may be summarised as follows;
(i) The 9,000 sq miles of land derive their origin in the 1900 Buganda Agreement. This agreement amongst other matters, divided up the land in Buganda among various interests. The 9,000 sq miles were designated as Crown Land vested in H M the Queen of Great Britain.
(ii) Land in Buganda was surveyed in 1936 and it was found to be 16,138 sq. miles excluding water and swamps. Open water was 8,250 sq. miles and the swamps were 1714 sq. miles. [This means that the total area of Buganda was 26,120 sq. miles and not 19,600 sq. miles as was estimated in 1900] . As of 1962 of the 16,138 sq. Miles was less by 9005 sq. miles [allocated to the Kabaka, members of the royal family, the three regents, Mbogo, Kamuswaga, the twenty Ssaza chiefs and notables] it was also less by central forests reserves 446 Sq. miles; less by local forest reserves 281 Sq. miles; less by 21 sq miles being national parks, game reserves and animal sanctuaries; less by 76 sq. Miles for gazetted townships; less by 360 sq. miles alienated to non Africans. This totalled 10,198 sq. miles. The unalienated land (Crown Land) was 5,949 sq miles. When Buyaga and Bugangaizi reverted to Bunyoro, Crown Land in Buganda was further reduced by 667 Sq miles leaving a balance of 5,282 sq. miles.
When Ranching schemes were established in Buruli, Masaka and Singo, crown land was further reduced by 644 Square miles leaving a balance of 4,614 sq. miles.
Since 1962, various controlling authorities have alienated land to individuals and companies in form of leaseholds and free holds – the Attorney General did not elaborate to whom and how much land has been alienated in this way and what remains. If the AG’s statement were to be correct then what is left of the public land is far less than 4,614 sq. miles.
(iii) In 1962 the Crown Land Ordinance vested all Crown Land in Buganda in Buganda Land Board.
(iv) The 1967 Constitution, that abolished Kingdoms, vested all official estates and all land that was vested in the Buganda Land Board in the Uganda Land Commission.
(v) The 1975 Land Reform Decree declared that all land in Uganda was public land.
(vi) The 1995 Constitution provided that that all land belonged to the citizens of Uganda under four tenure systems namely customary, freehold, mailo and leasehold. The aspect of public land in Uganda disappeared at this point in time!
(vii) The 1995 Constitution created District Land Boards whose functions include holding and allocating land in districts which is not owned by any person or authority – therefore according to the AG, former Crown Land or public land, land which is not owned by any person or authority is now vested in the District Land Boards. Also the former public land is now owned by the people who are customarily living on it.
(viii) District Land Boards can facilitate people customarily living on former public land to acquire certificates of customary ownership or free hold titles. This is on going. [ According to a Commissioner in the Ministry of lands this is done for a paltry 22,000/=]
(ix) On the 1,500 sq. miles the AG states that these are managed by the Government and Local Government under S. 45 (10 of the Land Act …. for the common good of the people of Uganda.
(x) The practical route to revesting the 9,000 Sq miles of land in Buganda is through operationalisation of Regional Governments and the Regional Land Board.
(xi) On the return of Buganda’s confiscated assets under the 1993 Traditional Rulers (Restitution of Properties ) Act, the AG points out that negations for the return of these assets are on-going and he challenged Hon. Betty Kamya to produce evidence that Government is dragging its feet on this matter!
In sum, the AG is telling Buganda that the 9,000 sq miles is more-or-less no more. By 1962, only 4,614 Sq miles of land were left. Today this land has been further reduced by give-aways by the Government to company’s and individuals that have bought it from the districts, however that if any remains then it belongs to the people who customarily living on it. This has been legalised by the 1995 Constitution that abolished the notion of public land in Uganda. Leaving such land to be land owned by no body and giving Districts powers to alienate that land as it pleases. But, he advises, if Buganda is interested in having a right of the residue of that land then it should accept the regional government under he Constitution.
The Attorney General’s statement was followed by the now famous remarks of Lt Gen. Tinyefunza in Parliament that “ the current talk of the Mengo Clique of Buganda being only for Baganda and the mailo akeenda of being ettakka lyaffe lya Buganda. It is rubbish and nonsense and it must stop” also that “in 1964, ranching schemes were created in areas of Kabula, Mawogola and Singo and people were displaced. Therefore what the Movement Government is trying to do is to right the wrongs which have been perpetuated by bankrupt post independence governments” . the LT Gen concluded his submission thus “ the land question will not derail this country; that is thuggery will not be allowed to continue and the security services are looking and will deal with them”.
Need-less to say, the Governments’ statement on the status of the 9,000 Sq miles is alarming, but also begs a million questions! These include –
(i) Given that Buganda’s communal land was illegally confiscated by the state in 1962 can the Government explain to the rightful owners i.e the people of Buganda – how it has alienated this land including on a free hold basis?
(ii) Can the Government explain how it converted former public land into – either customary land and /or private free hold land without the consent of the people concerned or without due compensation?
(iii) If former public land is now customary land how then can the districts be able to alienate the same land on the basis that it does not belong to any body under Art. 241 of the Constitution? Also, what is the legal basis for the districts leasing or issuing free hold titles on customary land??
(iv) What is the relevancy, if any, of the “on going negotiations” for the return of all assets confiscated by Obote regime under the Traditional Rulers (Restitution of Properties ) Act – which undertook to return all such assets – if in fact they are already.
(v) Assuming Buganda accepted the Regional Government, how will it be able to own and/or control land which is now customary land owned by the people customarily living on it?
(vi) What is the status of the people who are staying on Buganda’s customary land who migrated or have been resettled on this land – does it belong to them and can they be said to be customarily living on the said land??
2. The Facts on the 9,000 Sq. Miles:
As we search answers to the above questions from the AG, we wish to re affirm our understanding on the status of the land in issue. In our considered opinion, the following constitute the UNDENIABLE FACTS about Buganda’s Communal Land popularly referred to as the 9,000 square miles or Mailo Akeenda:
Fact 1: Before 1900 all land in Buganda belonged to the Baganda and was administered by the Kabaka, assisted by the Bataka and the Bakungu, Batongole in accordance with the customs, traditions and practices (customary law) of the Baganda.
Fact 2: In 1897 the British ousted Kabaka Mwanga II, as Kabaka of Buganda because he was resisting their imperialist efforts and installed his infant son Kabaka Daudi Chwa II with three Regents, Apollo Kaggwa, Stansilus Mugwanya and Zakaria Kizito. In 1900 the British Crown, represented by Her Majesty’s Special Commissioner, Sir Henry Hamilton Johnston, coerced the Kingdom of Buganda, represented by the said Regents and some Chiefs, into the 1900 Buganda Agreement.
Fact 3: Under the said Agreement, the British Crown took control of: 1,500 square miles of forests; 9,000 square miles of waste and uncultivated land; and 50 square miles taken up in Kampala, Entebbe, Masaka and elsewhere for Government stations (This land totalling 10,550 square miles came to be known as “Crown Land”). These figures were approximations based on an estimation of Buganda’s land mass, inclusive of Buyaga, Bugangazi and swamps, at 19,600 square miles.
Fact 4: No where in the 1900 Agreement did the British Crown buy or the Kingdom of Buganda sell any land. Therefore whilst clause 15 of the Agreement spoke of one thousand chiefs and land owners “receiving the estates” i.e. ultimate ownership in perpetuity of the 8,000 square miles (which came to be known as Mailo Land) clauses 15 and 18 of the same agreement only talk about “vesting” or “cession” of “the right to control” over the Crown Land.
Fact 5: In the premises the British Crown took control of the Crown Land NOT as beneficial owner but to hold it in trust for the use and the benefit of the Baganda, born and yet to be born, who had not benefited from grants of private Mailo Estates[1]. This was Buganda’s surviving communal land.
Fact 6: Under the Buganda Agreement of 1961, the freehold of all Crown Land in Buganda actually occupied by the Uganda Government for its own purposes was vested in the Uganda Land Commission to hold on behalf of the Uganda Government for the benefit of all of the people of Uganda[2]. Further the agreement vested the freehold of Crown Land in Buganda occupied by the East African Common Services Organisation, the Uganda Electricity Board, the University College of East Africa (Makerere), the Kampala and District Water Board and the Empire Cotton Growing Association in those respective organisations but only for so long as the land was used for the purposes of those organisations[3].
Fact 7: Other than those two minor exceptions where ownership of Crown Land was actually vested in the Central Government and some parastatal organisations, all Crown Land in Buganda was agreed to be vested in the Buganda Land Board which was enjoined to “hold such land in the name of the Kabaka on behalf of and for the benefit of the people of Buganda”[4]. .
Fact 8: Pursuant to Article 19 of the Buganda Agreement 1961, on the 1st March 962, Governor W.F. Coutts assented to the Public Lands Ordinance No. 22 of 1962 under which the freehold of all Crown Lands in Buganda, which had not been demised by way of lease under the Crown Lands Ordinance or which were not occupied by the Government of Uganda for public purposes at that time was vested in the Buganda Land Board[5]. It is important to note that the functions of the Buganda Land Board were expressed in the Ordinance to be “on behalf of the Kabaka and for the benefit of the people of Buganda, to hold and manage any land or estate or interest in land which is vested in it under the provisions of this Ordinance or may after the commencement of this Ordinance be purchased or otherwise acquired by the Kabaka’s Government”[6]. In time this was also reflected in the 1962 Constitution wherein land was effectively provided that the Buganda Land Board would be appointed by the Kabaka[7] and hold land for the benefit of the people hold land for the people of the Kingdom of Buganda[8].
Fact 9: It is therefore very clear from Facts 7 and 8 above that at the time of Independence it was recognised that the radical title to all of the former Crown Land in Buganda vested in the Kabaka of Buganda for the benefit of the people of Buganda and that the departing British intended to and actually did return all Crown Land in Buganda to its rightful owners: the Kabaka of Buganda for the benefit of the people of Buganda. The Buganda Land Board was only a holding and management device established for the Kabaka and the people of Buganda.
Fact 10: After the violent abrogation of the Constitution of Uganda 1962 in 1966 the Government of Uganda stole or expropriated the former Crown Land in Buganda and other land including the 1500 Sq. miles, the 160 Sq. miles Masaaza headquarters and all Buganda’s official estates and vested it in the Uganda Land Commission to purportedly hold for the benefit of the people of Uganda.
Fact 11: The Government of Uganda HAS NEVER returned a single square inch of the former Crown Land, irrespective of its actual size, to the Kabaka of Buganda to hold, whether by himself or through any other organ under his control, for the benefit of the people of Buganda.
Fact 12: The Uganda Land Commission, District Land Boards and any Regional Land Board established under the Constitution of the Republic of Uganda 1995 CANNOT legally hold on to the former Crown Land in Buganda because they do not have the constitutional powers so to do. The Uganda Land Commission is only empowered to “hold or manage any land in Uganda vested in or acquired by the Government of Uganda in accordance with the provisions of the 1995 Constitution[9]”. Clearly the former Crown Land in Buganda was not acquired by or vested in the Government of Uganda in accordance with the provisions of the 1995 Constitution. It was acquired by force of arms in 1966! District Land Boards are only empowered to “hold and allocate land in the district which is not owned by any person or authority[10]”. But as clearly shown in Facts 5, 7, 8, 9 and 10 above the former Crown Land in Buganda has an owner – the Kabaka of Buganda for the benefit of the people of Buganda. So even though it was violently expropriated by the Government of Uganda in 1966, it cannot be said to have had no owner in 1995 because the institution of the Kabaka of Buganda and the people of Buganda existed in 1995 and still exist today! Lastly, a regional land board if ever established in respect of Buganda, will only have the power to co-ordinate and monitor land use as well as plan land use in Buganda[11]. Clearly this cannot be stretched to include holding or managing of land.
Fact 13: Whilst the Uganda Land Commission, District Land Boards and regional land boards lack constitutional power to hold on to the former Crown Land in Buganda, the institution of the Kabaka of Buganda is constitutionally recognised as a corporation sole with the capacity to “hold assets and properties in trust for itself and the people of Buganda[12]”. In fact the institution of the Kabaka of Buganda, which is the personification of the culture, customs, traditions, wishes and aspirations of the Baganda, is the only institution constitutionally empowered to hold property in trust for the people of Buganda. District Land Boards and any regional land board established under Article 178 of the Constitution are merely devolved organs of the Central Government and therefore cannot be said to represent or embody the culture, norms and aspirations of the people of Buganda.
Before turning to the controversial issue of the actual size and location of the former Crown Land in Buganda, it is fair to say that the 13 facts stated above can be succinctly summarised in the chorus of the popular Kiganda song: “Ettaka lya Buganda lya dda! Ettaka lirikko nnanyini lyo!” (Buganda’s land is ancient and it is owned by the Baganda). No amount of sophistry and dissembling will ever get us way from that simple fact.
The actual size and location of the 9,000 sq. miles of land.
Regarding the size of the former Crown Land in Buganda it is accepted that the figure of 9,000 square miles was based on Sir Henry Hamilton Johnston’s estimation of Buganda consisting of 19,600 square miles. It is also correct that a survey conducted between 1913 and 1936 placed the total area of the Kingdom of Buganda at 16,138 square miles excluding swamps and open water, with swamps taking 1,714 square miles and open water 8,250 square miles. However, that is where the consensus on this matter ends.
According to the Attorney General, after the survey of 1913 to 1936, there was only 5,949 square miles of unalienated Crown Land in Buganda, including Buyaga and Bugangazi. He stated, without giving any sources, that as of December 1962, a further 360 square miles had been alienated to non-Africans leaving 5,949 square miles inclusive of Buyaga and Bugangaizi and that when Buyaga and Bugangaizi were restored to the Kingdom of Bunyoro the size was reduced to 5,282 square miles (meaning that there were 667 square miles of former Crown Land in Buyaga and Bugangaizi). With much confidence, the Attorney General further asserted that the 5,282 square miles were reduced by 644 square miles upon the establishment of the Masaka, Ssingo and Buruli Ranching Schemes and ominously concluded with a statement that “Since 1962 various controlling Authorities have alienated this land to individuals and companies in form of leaseholds and freeholds.” In short the Attorney General was pleased to say that there may be nothing left of the original 9,000 square miles.
However the Attorney General’s statement was either under researched, intended to confuse and disappoint the Baganda or both. In light of the fact that all of the documentary evidence regarding this land is with the Government, the Attorney General should look into the following issues and come back with a concrete and believable explanation:
(i) The Attorney General talks of the former Crown Land being reduced by “alienation”. However he does not make it clear by whom or to whom this land was alienated and on what basis. Alienation by way of leases cannot be taken to mean that the land has been permanently lost to its owners the, the Kabaka of Buganda on trust or for the benefit of the people of Buganda. We need to know, with precise figures, to whom and by whom the various chunks of land were alienated and on what basis.
(ii) According to the authors of a book entitled A History of Uganda Land and Surveys the settlement survey of 1913 to 1936 ascertained that the former Crown Land in Buganda actually comprised of 8,307 square miles inclusive of Buyaga and Bugangaizi, and was reduced to 6,804 square miles with the return of the said counties to the Kingdom of Bunyoro[13]. These figures are rendered suspect because they suggest that there were 1,503 square miles of former Crown Land in Buyaga and Bugangaizi, yet according to the Uganda Land Commission the actual land mass of Buyaga and Bugangaizi is about 1,631.8 square miles of which 964.8 square miles is private Mailo Land, leaving 667 square miles of former Crown Land[14]. But be that as it may, if you make an adjustment for the clearly wrong Buyaga and Bugangaizi figures, you would be left with 6,137 square miles of former Crown Land in Buganda. However, the task of settling the correct figures is made more complicated by the fact that in 1970, the Electoral Commission (comprising of Ateker Ejalu – Chairman, Bidandi Ssali, Eric Kyoya and Akena p’Ojok with the assistance of I.K. Kabanda – Government Statistician, G.W. Bakibinga – Commissioner Lands and Surveys and Jjagwe – Land Office Entebbe) issued detailed maps and tables stating Buganda’s land mass, excluding Buyaga and Bugangaizi to be 50,075 square kilometres or 19,334.065 square miles. So in 1970, at a time when the Central Government was openly hostile to Buganda and had every reason to underplay its land mass, a key Government organ was suggesting that Buganda’s size was actually bigger than the figures given in the settlement survey of 1913 to 1936 and we must assume that surveying and mapping technology had improved between 1936 and 1970. We need to know the precise land mass of Buganda using modern and the most up-to-date surveying and mapping technology. From this mass we should subtract the definite area of land held under private, Kabakaship and Official. Mailo to get the true area of the former Crown Land, which constitutes the communal land of the Baganda. Until such time all figures are and will always be suspect and the Baganda will be justified in sticking with use of the upper estimate of 9,000 square miles as a description of their expropriated communal land.
(iii) There must be records indicating the specific land, in terms of location and area, that was transferred from the British Crown to the Buganda Land Board in 1962. Further there must also be records indicating the specific land, in terms of location and area, that was expropriated by the Government of Uganda in 1966 and vested in the Uganda Land Commission. Furthermore, there must be records indicating the specific land, in terms of location and area, that has been devolved by the Uganda Land Commission to various District Land Board’s across Buganda. Lastly, there must be records showing the all dealings in land in Buganda by the Uganda Land Commission and the various District Land Boards. All of these records are in the hands of the Government of Uganda. The Government of Uganda should give a full account of the dealing in the former Crown Land in Buganda. We must be shown the documents that show the location and the size of the land that was vested in the Buganda Land Board in 1962. We must be shown the documents that show the location and size of the land that was grabbed by the Uganda Land Commission from the Buganda Land Board in 1966. We must have a full blow-by-blow account of all of the dealings that have taken place on that land since it was taken over by the Uganda land Commission in 1966, up to and including all dealings after the land management was devolved to District Land Boards.
So whilst there is no dispute about the fact that the original label of 9,000 square miles of Mailo Akeenda was based on an estimate, there is no reliable figure for the actual size of the former Crown Land in Buganda, which comprises the communal land of the Baganda. Different figures have been given at different times by the Government, which stands to gain from its own wrongful violent expropriation of this land. It must also be stated, that even if it is found to have been 1 square inch in 1900 – that square inch belongs to the Kabaka in trust for the people of Buganda. Ettaka lirikko nnanyini lyo! It will certainly be no defence to the Government to say that it has given away or alienated the land since violently expropriating it in 1966 in the same way as the alienation of the properties expropriated from the Asians by the Government in 1972 did not defeat the ownership of the same by the Asians.
Special Appeal to the Peoples of Uganda : At this juncture it is necessary to make a special appeal to the Peoples of the indigenous communities that live in and make up this country called Uganda. In seeking to reclaim what is rightfully theirs, the Baganda are not seeking some kind of special status or hegemony over the other Peoples of Uganda. The Baganda like all the other Peoples of Uganda cherish and value their land. The land that we are talking about was and still is the communal land of the Baganda. It was the land which was to be used for the benefit of the people of Buganda, born and yet to be born. Where they were not in actual physical occupation or user of it, the fruits from it were supposed to benefit the Baganda. All the Peoples of Uganda have land which in one way or another they can call their own. However, if the Government has its way with Buganda’s communal land, all the Peoples of Uganda MUST STAND WARNED!
The Government’s claims that Baganda’s communal land can be given away on a freehold basis to all and sundry for a measly Ug. Shs. 22,000/= and that this applies to all communal land held on customary tenure in the rest of Uganda. Today it looks as if the Government is only targeting Buganda’s land. But if it has its way then no communal land held under customary tenure will be safe. People will come “claiming an interest” in that communal land and under the new section 32B of the Land Act, if the (Land Amendment) Bill is passed they will be impossible to evict. Then those very people will go to the District Land Boards or the Uganda Land Commission with Ug. Shs. 22,000/= and get freehold certificates of title to that land. Then having obtained the freehold title to the communal land for free, they will quickly sell it to big investors from outside for peanuts. Nobody will be able to complain or if they complain they will not be entitled to any help because the Government will simply point to the precedent of Buganda!!
This is nothing short of NATIONALISATION OF COMMUNAL LAND BY THE BACK DOOR or LAND GRABBING. Today it is the Baganda because that is the community that is easy to hate and because their land was already expropriated. But if Government succeeds, tomorrow it will be land of other Ugandans.
3. Conclusion:
We strongly disagree with the statement and the account of the Attorney General on Buganda’s communal land. We demand that the government answers the several questions we raise herein we invite the Lukiiko to resolve that;
(i) All land that was confiscated by the Government of Uganda should be returned to the Kingdom of Buganda through Ssaabasajja Kabaka of Buganda pursuant to Art. 246 of the Constitution in trust for all the people of Buganda. Buganda should not be intimidated out of, or silenced on its rights. The suggestion that Buganda can only get back its land if it accepts the Regional Government amounts to nothing but BLACK MAIL and should be rejected. Buganda tejja kuva kunsoga eno kubanga by’ebanja byayo bya bwebange ebyanyagibwa ku muddumu gwe mundu – nga buli omu bwakimanyi.
(ii) Buganda recognises cultural diversity within the Kingdom and accepts that people of other ethnic groups can own and use land in Buganda, this should however be based on lawful and agreeable terms to the people of Buganda. communal land in Buganda is for people of Buganda and not necessarily for all the people of Uganda just like communal land in Acholi, Lango, Teso, Karamoja and Ankole is land for the people in those place. If the Balaalo can not buy or stay on the Bagungu’s communal land in Bullisa, why should they be resettled on Buganda’s communal land? And why should Buganda be expected to be quiet or accused of inciting genocide?
Accordingly, it is our view that any acquisitions and resettlements made in Buganda based on forceful and illegal means should be challenged. In this regard, we have a duty and must warn all those who have dubiously acquired or about to acquire Buganda’s communal land that was illegally confiscated that their title is VOIDABLE and that the people of Buganda have a legal and legitimate claim over that land now and for as long as that land wrongly remains in the hands of the state. CAVEAT EMPTOR. Kimanyiddwa bulungi nti Buganda okuva edda nedda tesosola mu bantu ba Ssaabasajja wabula tejja kukkiriza abantu okuva Ebule n’e bweya okutwala obutwazi ettaka lyayo awatali ntegereganna yonna.
(iii) To reject the account and legal interpretation given by the Government of Uganda on the status of Buganda’s communal land and to demand that the Government of Uganda should account to the people of Buganda for all land that it has alienated to private companies and individuals. Twagala okumanya baani abagabanye ettaka era abafunye epyapa ku ttaka lya bantu ba Buganda erya Mailo akeenda era bali funa mu mitendera ki?
(iv) To demand that the law be amended to provide for public land that was taken away by the 1995 Constitution without the consent of the people of Buganda or compensation to them.
AWANGALE SSAABASAJJA KABAKA
Apollo N. Makubuya
ATTORNEY GENERAL, BUGANDA KINGDOM.
[1] See paragraph 220(1) Report of the Uganda Relationships Commission, 1961 at page 80.
[2] Article 19(1) of the Buganda Agreement 1961
[3] Article 19(2) of the Buganda Agreement 1961
[4] Article 19(3) of the Buganda Agreement 1961
[5] Section 12(a) Public Lands Ordinance No. 22 of 1962.
[6] Section 9(2) of the Public Lands Ordinance No. 22 of 1962
[7] Article 113(3)(a) of the Constitution of Uganda 1962
[8] Article 113(7) of the Constitution of Uganda 1962.
[9] Article 239 of the Constitution of the Republic of Uganda 1995.
[10] Article 241(1)(a) of the Constitution of the Republic of Uganda 1995 and section 56(1)(a) of the Land Act cap. 227.
[11] Article 178 and paragraph 10(1)(a) &(b) of the Fifth Schedule of the Constitution of the Republic of Uganda 1995.
[12] Article 246(3)(a) of the Constitution of the Republic of Uganda 1995.
[13] Thomas and Spencer, A History of Uganda Land and Surveys p. 32 and 63.
[14] General Information on Registered Mailo Land In Kibaale District – the Uganda Land Commission, Department of Land Registration Western Region, Ref: LR. 30, April 1998.
Ekitibwa Kya Buganda 