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Land Dispute Settlement in Uganda: Exploring the Efficacy of the Mediation

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Article · June 2007

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LAND DISPUTE SETTLEMENT IN UGANDA: Exploring the efficacy of the
Mediation option.
By Anthony C. K. Kakooza*
Abstract

It is without doubt that land disputes are the order of the day in Uganda. From litigants
to mediators, cases involving hostilities ranging from strangers and neighbours to family
relations and friends keep surfacing up before all sorts of tribunals either mandated by
the government or not, nevertheless, recognised by the warring parties.

This paper seeks to explore the efficacy of alternative dispute resolutions, particularly
mediation, over land disputes in Uganda. It does not venture to a great length into the
merits and demerits of mediation per se but generally looks into the most effective way
of handling mediation so as to achieve its purpose in resolving land disputes. It taps
into the current law and practises on mediation and balances its effectiveness by
relating it with an appreciation of similar mediation activities in other jurisdictions.

The paper thus attempts to move for a greater focus on mediation as an alternative
strategy in resolving land disputes as opposed to protracted litigation before land
tribunals and as such proposes new perspectives geared towards the round table option
of mediation.

Introduction

This paper rests on the premise that mediation can provide more efficient, mutually
satisfactory and time saving strategies in resolving land disputes as opposed to court
litigation. Therefore the appreciation of mediation in this paper can, in the onset, be well
embraced as an alternative dispute resolution strategy, from the words of Sakora J. of
the National Court of Papua New Guinea:

"It should be no part of a lawyer's functions to raise high hopes in their clients with `legal
action' in the courts., create unreasonably high expectations about their legal rights and
remedies, etc. And when eventually the actual legal position is unravelled by the courts,
there is an understandable feeling of loss, let-down, and a sense of grievance against the
legal system. And as we all ought to know well, disputes over land in our village
communities invariably generate and heighten emotions that are capable of creating very
volatile situations"1.

A big percentage of litigation matters that end up in Uganda's various judicial tribunals,
that is, stretching from the Local Council Courts to the Supreme Court, are disputes
related to land. In exploring the efficacy of using alternative dispute resolution (ADR) in
handling such matters, an appreciation of ADR starts with its

ADR is a structured negotiation process under which the parties to a dispute negotiate
their own settlement with the help of an intermediary who is a neutral arson and trained

*
LL.B (Hons) (M.U), Dip. L.P (LDC), LL.M (Warwick), Advocate and Lecturer in Law. This article was published
in the Uganda Living Law Journal, Vol. 5, issue of June 2007; A Publication of the Uganda Law Reform Commission
1
Riri & Riri v Nusal [1995] PGNC 36;N1375 (9 October 1995) Un reported National Court Decision; taken from
h.ttp:/lwww.worldlii.ora/pa/cases/PGNC/1995/36.htm1 (visited on 2/26/2007)
1
in the techniques of ADR. The various strategies involved in ADR include negotiation,
conciliation, mediation, mini-trial/early neutral evaluation, court annexed ADR and
arbitration2.

Of the foregoing strategies, mediation is the most preferred option in resolving land
disputes simply because in most instances the warring parties can not even fathom
being in the same room at the same time and as such will initially not be able to come
together to negotiate terms of settlement.

What is Mediation?

Mediation is termed as "the interaction between two or more parties who may be
disputants, negotiators, or interacting parties whose relationship could be improved by
the mediator's intervention. Under various circumstances (determinants of mediation),
the parties/disputants decide to seek the assistance of a third party, and this party
decides whether to mediate. As the mediation gets underway, the third party selects from
a number of available approaches and is influenced by various factors, such as
environment, mediator's training, disputant's characteristics, and nature of their
conflict. Once applied, these approaches yield outcomes for the disputants, the mediator,
and third parties (other than the mediator)."3

The Mediator thus comes into the dispute as a neutral third party whose presence leads
to a guidance in the flow of negotiation and eventually a satisfaction from the disputants
in resolving the conflict.

It is in the same vein that Ugandan legislators realized the need for mediation of land
disputes while debating the bill that eventually became the Land Act of 1998. Hon.
Mutyaba stated: "A mediator is not a government agent; he is not a cohesive agent. He
is not going to force the two to agree. He is just there to guide them and to make sure
that they reach a good conclusion."4

Considerations under Mediation:

Statutory provision for Mediation vis-a-vis the traditional element
The Land Act5, enacted in 1998, with due consideration to the Parliamentary debates,
gave provision for mediation as an alternative dispute resolution. Sections 88 and 89 of
the Act provide for Customary Dispute settlement and mediation as well as the functions
of the mediator.

This is of great significance considering that the majority of land in Uganda is categorized
under the customary tenure system, the statutory law avoided creating a conflict with
the already established customary systems of settling land disputes by instead marrying
the concept with modern mediation strategies. Subsection (1) of section 88 provides:

Nothing in this part shall be taken to prevent or hinder or limit the exercise by traditional
authorities of the functions of determining disputes over customary tenure or acting as a
mediator between persons who are in dispute over any matters arising out of customary
tenure.

2
Hon. Justice G. W. M. Kiryabwire: Alternative Dispute Resolution - A catalyst in Commercial Development: A case
study from Uganda; in Uganda Living Law Journal , Vol. 3: No. 2 December 2005, at p. 145.
3
Wall, et al., 2001:370 in R. Ramirez: A conceptual map of land conflict management: Organizing the parts of two
puzzles (March 2002) in http://www.fao.org/sd/2002/IN0301a3 en.htm, visited February 26, 2007.
4
Parliament of Uganda, Parliamentary Debates (Hansard), 3rd Session, 1998, pp. 4299-4300, in J.T. Mugambwa:
Source Book of Uganda 's Land Law, Fountain Publishers (2006), at p.111
5
Cap. 227 of the Laws of Uganda, 2000 Ed. Originally Act No. 16 of 1998 as amended by Act No. 3 of 2001

2
This provision is reflective of the local communities' preferences of traditional elders
continuing to play the key role of mediators over land disputes as opposed to passing
the mantle over to land tribunals and the Court system which may not only be less
appreciative of the traditional modes of handling such disputes, but may also lead to
permanent enmity between the disputants as opposed to helping them come to an
understanding.

It has been noted that such traditional structures that offer assistance in mediating land
disputes are more prevalent, as well as more effective in small communal societies. In
effect therefore, what guarantees security of tenure amongst customary holdings, is the
"social recognition" of an individual's ownership over a plot of land by other settlers; local
or cultural leaders and relatives or friends, hence less disputes arising. Thus, where
people tend to skip relying on traditional mediators, this happens in areas of high
population margins, which naturally have a modern set up of land tribunals and a
mixture of settlers. Kigula argues- that the higher the population pressure on land the
less active the informal traditional structures with a shift towards the formal
institutions.6

Government cognizance of traditional methods of dispute resolution bears some

similarities in other African countries. In the case of Papua New Guinea, His Honour
McDermott J. stated in Augustine Olei v Provincial Land Court7:
"On 5 June 1975, new legislation, the Land Disputes Settlement Act (Ch No. 45) became
operative. This provided that disputes concerning customary land be settled or determined
in accordance with new machinery provisions and courts established under the Act. It
provided a system of mediation and agreement through land mediators, the hearing of
disputes as to interests in land by local land courts and an appeal jurisdiction in a
Provincial Land Court."

Papua New Guinea therefore also provides for mediation of land disputes through local
and formal courts.

In Tanzania where the initial misconception was that the traditional methods of
managing land matters were contrary to government regulations, a closer reflection on
the same revealed the contrary. Here, most land disputes are resolved by community
leaders namely the Ten Cell, Mtaa and Ward leaders 8. Where the Community leaders are
not able to resolve the disputes brought before them, they are referred to the higher state
organs including the Police and Courts of law. The higher government institutions also
recognize the traditional communities as mediators over land disputes. In resolving
cases referred to them, the Primary Courts make reference to the evidence tendered by
the traditional institutions and call the witnesses who were involved in the land
transactions, if at all. The Mtaa and Ward authorities are, as such, linked to the formal
judicial system in Tanzania.

Similarly, where the Land tribunal adjudicating over a land dispute in Uganda has
reason to believe, on the basis of the nature of the case, that it would be more appropriate
for the matter to be handled through a mediator, whether traditional authorities or not,
may advice the disputant parties as such and adjourn the case accordingly9. The formal

6
J. Kigula: Land disputes in Uganda: An overview of the types of land disputes and the dispute settlement form
Research Paper3, prepared for the Makerere Institute of Social Research and the Land Tenure Centre, University
of Wisconsin, March 1993; in J. Mugambwa, see f.n.3, p. 2 above, on p. 110
7
[1984]PNGLR 295, cited in Riri & Riri v Nusai, see fn 1 above, pg. 1
8
W. J. Kombe (University College of Lands and Architectural Studies, Dar es Salaam, Tz) and Volker Kreibich
(Universitat Dortmund, Germany): Informal Land Management in Tanzania and the Misconception about its
illegality; A paper presented at the ESF/N-Aerus Annual Workshop "Coping with informality and illegality in
Human Settlements in Developing Countries" in Leuven and Brussels, May 23 -26,2001.
9
Sec. 88(2) Land Act, Cap. 227, Laws of Uganda, 2000 Ed.
3
judicial system in Uganda therefore also recognizes the significance of traditional
authorities in the resolving of land disputes.

The Mediator should be acceptable by all parties

The importance of Mediation is further emphasized by section 89 of the Land Act10 which
provides for the functions of a Mediator. Suffice to note that the Mediator has to be
someone agreed upon by the Parties11, otherwise, the aspect of negotiation and mediation
loses meaning. The option of exploring mediation where a case is before a land tribunal,
rests on a number of factors, but is mainly on the premise that there is a possibility of
having the matter settled by the disputing parties through mediation. Even where
mediation cannot provide for a settlement on all four corners of a dispute, if it can
contribute to settlement of some of the elements of the dispute, it may be a worthwhile
cause12.

All parties must be involved in the mediation process

It is also important for all warring parties under a land dispute to be involved in the
mediation process. Eventual agreements brought about through mediation may be easily
refuted by a party who has not been given an opportunity to express his or their view.

One South African case study that addresses this pertinent issue is that of the Makuleke
land claim13, the background of which concerned the establishment of the Kruger
National Park in 1926, and the forceful eviction of persons thereon following the
provision of boundaries. A small group of Venda-speaking families were removed from
the Pafuri to the Venda homeland. There they fell under the authority of a one Chief
Mutale. The Chief refused to allow members of his community to participate directly in
any settlement discussions during the mediation process that run from December 1996
to May 1998, involving as many as 13 parties. He insisted that he must represent the
community. The Regional Land Claims Commissioner dismissed this view on the basis
that the Restitution Act empowers a community to claim, not a Chief.

There followed a deadlock in the mediation process for many months as the Mutale
Community refused to participate, threatening a breakdown in the whole process. A
scheme was therefore designed, after consultations with the Land Claims Court, to give
the right to become members of the land holding entity to people who could show that
they or their ancestors were removed forcibly from the Pafuri area around 1969. This
enabled the final conclusion of the mediation process and the eventual transfer of the
restored land in 1999, 30 years after the Makuleke community had been dispossessed.

Achieving compromise in Mediation

The most important aspect of all alternative dispute resolution strategies, most especially
mediation, is the aim at achieving a compromise between the parties, as opposed to the
more adversarial system of litigation within the Court system. In most land disputes, the
conflict may date back so many years, involving so many communities. Political and
socio-economic developments and upheavals always stir up land disputes. For instance,
the return of formerly displaced persons in Acholi to their ancestral homes is already
giving rise to disputes with persons who have long since encroached on their land; new
land regulations and reformist policies are giving rise to disputes between registered land
owners and the squatters on their land, and so on and so forth.

10
Ibid
11
Ibid, sec. 89(6)
12
D. Bosch: Land Conflict management in South Africa: Lessons learned from a land rights approach; in
http://www.fao.org;/docrep/006/jo415toa.htm (visited February 26, 2007)
13
Ibid

4
Such instances make mediation a complex avenue. The aim should therefore always be
to establish a compromise that both parties can adhere to comfortably; always bearing
in mind that the mediator is not an interested party and therefore, it is not his or her
wishes that count. Section 89 (4) of the Land Act emphasizes this principle. It provides
that the Mediator should exercise his function with impartiality and should not be
subject to the direction or control of any other person. The Mediator should therefore
come up with an agreement that respects and gives consideration to the differences
between the parties.

Similarly, the return of refugees from Tanzania and the Democratic Republic of Congo
into Burundi has led to the emergence of land disputes between the returnees and the
current occupies of the land. Burundi also employs a mixture of customary law and
legislation provisions in resolving land disputes14.

In July 2006, the Burundi government established the Commission Nationale des Terres
et Autre Bien (CNTB) to deal with land and property issues. It has since then been
meeting with the refugees, the occupiers of the land and other refugees in Tanzania with
a view of ironing out all the grievances and coming to an agreement through mediation15.
There are still challenges from all angles, but the Commission is determined to stay the
course and is convinced that mediation is the only viable option.

Considerations for effective mediation:

Achieving compromise with a view of succeeding in mediation may be a total waste of

time where there are deep rooted ideological differences; an imbalance in negotiating
power between the disputing parties; as well as a likelihood of rubbing old wounds or
threatening historical antagonisms, amongst a variety of other reasons as the
circumstances may dictate.

A mediator over a land dispute needs to ascertain the nature of the conflict as to whether
it allows for round table talks or not. The intensity of a dispute may mean that the parties
are not even ready to hear each other out. This inevitably leads to litigation for court
direction in resolving the impasse. In the same vein, a dispute involving a number of
complex issues as opposed to a few general issues, may render mediation difficult. A
land dispute mediator is not only a person well versed in the field, but should be able to
draw from experience and precedents in order to assist in arriving at a solution. The
complexity and variance of issues in any given dispute may therefore make this a
pointless venture.

The parties must also display desire to reach settlement as well as a commitment
towards mediation. Instances such as failure to agree as to who will be mediator, venue
of meetings with the mediator as well as dates for such meetings, can frustrate the whole
process and render it a time wasting venture. Whereas on the contrary, if the parties
display tendencies of being positive minded in all proposals brought forward through the
mediator, agreement can be reached at an early stage.

Non Governmental Organisations (NGOs) advocating for land policies should also play a
key part in resolution of land disputes, particularly by mediation. The extensive research
already covered by such Non-governmental Organizations and the exposure they have
to the legal regimes and the problems facing the local communities, gives them the ability
of understanding and relating well with the local communities to such an extent that

14
Source: United Nations Office for the Coordination of Humanitarian Affairs - Integrated Regional
Information Networks (IRIN) (23/Nov/06) - Burundi: Huge challenges in solving land crisis;
http://www.reliefweb.int/rw/rwb.../ (visited February 26, 2007)
15
Ibid
5
they can easily come in to play a mediatory role in the event that a dispute arises. In
South Africa, for instance, Non-governmental organizations are involved in four main
capacities of land reform mediation16: (a) providing legal advice and representation
regarding land disputes with others, such as land owners, and within communities; (b)
facilitating community processes and providing training and advice; (c) mediating
disputes with other interested parties; and (d) engaging in broader policy formulation,
including lobbying government.

Suffice to state that Government is also a very active player in the mediation of disputes,
particularly with regard to Land matters and should continue playing its role effectively,
though cautiously as seen below. The regulation of mediation activities under the Land
Act as mentioned herein above is part of the basis for this observation. Government
organs have also been directly involved in reform policies involving mediation. In 2003,
for instance, the Uganda Judiciary, as part of a judicial reform process, made two pieces
of regulations that were applied over a two year pilot project, namely:

(a) The Constitutional Commercial Division (Mediation Pilot Project Rules) Practice
Direction, Legal Notice No. 7 of 2003. This effectively introduced the use of Court
annexed Alternative Dispute Resolution (ADR) Mechanisms, including Mediation,
with a view of reducing costs of adjudicating disputes and the provision of an
efficient and speedy means of handling such disputes. This effectively curtailed
the backlog of disputes related to land matters that were hitherto piling up in the
courts.

(b) The Commercial Court Division (Mediation Pilot Project) Rules, 200317. The effect of
these rules was, inter alia, to coerce disputant parties into mediation before
considering court litigation. The latter was therefore only explored once the former
failed in toto.

However, it would seem that were coercion towards mediation is employed as under such
regulations, then failure of resolving the disputes amicably would always be a higher
probability simply because the likelihood of the parties mediating their dispute should
always be more of an obvious state as mentioned herein above. Where the circumstances
hint otherwise, or in other words, where the parties are not prepared to talk, then the
venture is a futile attempt, regardless of coercion through regulation.

Indeed the Judiciary has always exhibited a high regard for exploring the option of
having matters settled amicably where the environment provides so. For instance, in the
case of Shell (U) Limited vs. Agip (U) Limited18 Tsekooko JSC., stated to the effect that:
"It is now trite law that where parties have voluntarily chosen by agreement, the forum for
resolution of their disputes, one party can only resile for a good reason. " The Judiciary,
as an arm of government, thus encourages warring parties to continue exploring the
possibilities of having their matters resolved out of Court where such indications arise,
especially without coercion.

Where the Mediator is chosen by the Land Tribunal or any other organ of government 19,
he should be provided with all the necessary information pertaining to the dispute
brought before him. Having a full knowledge of the facts and the issues before him, as
well as knowledge of all the parties involved, enables the Mediator to effectively work out
strategies of guiding the parties towards finding a resolution without running the risk of
leaving out essential issues that also need to be addressed.

Government also needs to come out more strongly and take a firm and consistent stand

16
See note 12 supra, on p.5
17
Statutory Instrument No. 71 of 2005
18
Supreme Court Miscellaneous Appln. No. 203 of 1995
19
Sec. 89, Land Act, see fn 11 supra at p. 4
6
on the avenues available to parties to seek recourse to in case of a land dispute.
Regardless of Government's support for mediation as an out of court option, there is a
confusion created by the up and down removal and re-establishment of Land Tribunals
by Government. It creates a back log of cases as the judicial and quasi-judicial tribunals
in place to hear the cases, are always being established, closed and then re-opened by
Government now and then. The consequences on the social fabric are, as such, severe.
Different bodies of law and different institutions emerge and co-exist, such as the
Magistrate Courts and Land Tribunals, both with jurisdiction to hear land cases on the
basis of hierarchy. Society thus ends up losing confidence in the system. As has been
opined before (Hendrickson, 1997)20: "it can be argued that bottom-up approaches to
managing conflicts over natural resources will remain ineffective as long as the broader
institutions which govern the management of natural resources are not reformed."

However, yet another perspective to the government discrepancies, is that, as much as

this may help foster mediation as the most viable option in the midst of the confusion,
on the other hand, it contributes to the undermining of the legitimacy of the Judicial
system which in turn negatively affects the consideration of taking a matter further
where mediation turns out as ineffective in solving a land dispute.

Conclusion

As has been argued above, mediation should only be exercised if a successive outcome
is envisaged. The mechanisms employed in mediation as well as an appreciation of the
parties concerned, in terms of balancing their power and interests, are very important
considerations for success, not to mention the expertise and neutrality of the mediator.

There is a need to integrate theory and practise in the building of a more effective
mediation alternative to land dispute resolution. Hardly any mediation cases are
recorded and analysed neither can one easily relate to any precedent situation simply
on the basis that each case is unique in its own way. Close articulation of the facts
pertaining to each case as well as analysing the outcome of every conceived option out
of a dispute, are some of the challenging tasks up ahead for a skilful mediator of a land
dispute. This article has shown through a comparative analysis of various other
jurisdictions that much as mediation is embraced as a simpler option to court litigation,
it too should not be taken for granted due to the concerns raised above.

The article has thus drawn from the experiences from these other countries and
transformed them into lessons that can be learnt in Uganda in building an effective
mediation mechanism of dealing with land disputes.

20
Cited in Ricardo Ramirez: A conceptual map of land conflict management: Organizing the parts of two puzzles;
see f.n 3, pg 2

7
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Furthermore, land, being one of the most valued assets anyone can have, can, in most
cases, divide parties in a dispute and the spill over effect brings about a division of
communities, or worse still, nations. The rising heat leading to a dispute should be
picked up at an early stage and resolved amicably so as to avoid any eventual
complexities that may frustrate mediation. This article has shown that a close evaluation
of the various factors favouring effective mediation as well as those that would hinder its
success as mentioned above, are definite steps worthy of consideration.