A HISTORICAL PERSPECTIVE OF THE MAILO SYSTEM OF LAND HOLDING IN

REGARD TO SECURITY OF TENURE; ITS WEAKNESS, STRENGTH AND

NECESSARY REFORMS.

HISTORICAL BACKGROUND OF MAILO LAND TENURE SYSTEM.

The Mailo land tenure system is one of the most complex systems of land ownership within Uganda
today. The Mailo land tenure system is where land is registered and owned in perpetuity with its holder
having the land title. This land tenure system in Uganda has its basis from the 1900 Buganda
Agreement which was signed between the regents of Buganda, acting on behalf of the then young king
sir Daudi Chwa and Sir Harry Johnson on behalf of the Queen of England. The Mailo land Tenure
system conferred freehold granted by the colonial government in exchange for political corporation
under the 1900 Buganda Agreement.

This agreement divided the 19,600 square miles that form Buganda Kingdom among different entities
and individuals. The basic unit of the Mailo system is square miles, hence the derivation of the term
“mailo.” However, it is pertinent to note that the Mailo system is predominantly in Buganda region and
in some parts of Mbale, Bunyoro, and Tooro. Upon division of the land in Buganda, two tracts were
formed; mailo land and crown land. Crown land referred to the 9,000 square miles locally known as
the “milo akenda” which comprised of lakes, rivers and hills which was left untouched and vested in
the crown of England being the queen as “custodian” hence the name; Crown Land. The colonial
government instituted a statutory body where called Buganda Land Board, where this land was vested
as would be handed over to Buganda upon independence. Furthermore, two categories of mailo were
introduced; official milo and private mailo. The official mailo referred to land that was owned by the
kabaka, katikkiro, Ssaza and Omulamuzi. The official mailo was supposed to benefit specific offices
such as the Kabaka’s office, Katikkiro, Ssaza and Gombolola chiefs as such it was not supposed to be
sold but could be leased. The Kabaka was given 350 square miles, which is currently administered by
the Buganda Land Board. On the other hand, the private mailo was land owned by private individuals,
including the Kabaka as a person, royals, individual chiefs and some noteables. These were given
8,000 square miles.

This agreement led to the first major displacement of Ugandan people from the land they had occupied
for periods long before the British set foot into Uganda. The mailo land tenure system created a
situation where both Baganda peasants and immigrants on large tracts of undeveloped land were
legally rendered landless. Their traditional customary unwritten right to use the land for farming was
terminated, instead if they wished to use the land they were supposed to pay “Busuulu” and “Envujjo”
rent to the holders of the certificates. Notwithstanding in order to avoid landlessness of the natives,
especially in Buganda a law was created stopping a non-native from acquiring land in perpetuity save
for lease hold which law still stands today.1 The colonial masters levied taxes on the land and had to be
paid by the land owners, that had certificates to the land. This forced the land owners to interest people
to occupy their land so that they could collect rent (Obusuulu) to pay taxes, and the peasants would
also get to occupy the land with the permission of the owner. The land owners would also collect a
percentage of commercial commodities on the land (Envujjo). Unfortunately rent collections were
determined by each land owner according to his mood at the time, this in turn resulted into a revolt
against the land owners who had hiked the rent at the time. This revolt forced the colonial masters to
regulate the relationship between the land owners and occupants by putting into force the Busuulu and
Envujjo law of 1927, Busuulu meant ground rent and Envujjo; a percentage levied on the cash crops
grown on the land (these interests were limited to the type of cash crops grown on the land)

In this law the kibanja owner (peasant) was entitled to a domestic kibanja where his home was in
perpetual/eternal ownership. This kibanja was however never to exceed one acre that would be
inherited by the heir or widow at the demise of the owner. Beyond an acre the peasant occupant
(kibanja holder) would cultivate economic crops on up to three acres of the mailo owner’s land. There
was also a contractual kibanja which would base on the terms agreed upon by the land owner and the
occupant/tenant (kibanja holder). The law existed for quite a number of years and people lived
peacefully on the land up to 1975 when President Idi Amin repealed it and made the “Land Reform
Decree of 1975” where all land was declared public land and land owned in freehold was converted to
leasehold on the condition that any land that was developed within 5 years would be given back to the
government. The title to the land would be vested in the Uganda Land Commission (ULC). The
Busuulu and Envujjo tenants were turned into customary holders without the condition of rent
payment. The 1975 Land Reform Decree reversed whatever security the peasants had acquired by the
1969 Public Lands Act by declaring all land in Uganda Public.

MAILO; THE CURRENT LANDLORD- TENANT RELATIONSHIP.

1
Section 40(4) of the Land Act
The 1995 Constitution repealed the Land Reform Decree of 1975 and restored land ownership with
four tenure systems; mailo, customary, leasehold, and freehold system of land ownership. The first
one is customary land tenure system, where land is held basing on particular customs, traditions and
norms of the people. It is often communal and prevalent among the indigenous communities of Uganda
such as the Northern and Eastern parts of the country. Freehold tenure system involves ownership of
land for eternity. The owner is entitled to a certificate of ownership and it is the most favored tenure.
Leasehold Tenure is associated with a lessee who has exclusive possession of the land through an
agreement with the land lord. The agreement between the lessee and the land owner is for a specific
period of time subject to premium and ground rent. The last tenure system created under the 1995
Constitution of Uganda is the Mailo land tenure system which is the most complex of all and deals
with the following;

The mailo land tenure system created dual ownership over the same piece of land. Mailo land owners
have the same rights as freehold land owners, but they must respect the rights of the lawful and
bonafide occupants and bibanja holders to occupy and live on the land.2 Kibanja holders are further
describes as; persons who had settled on the land in Buganda as customary tenants with the consent of
the mailo land owner under the Busuulu and Envujjo law, 1928. A kibanja holder holds an equitable
interest in mailo land which can be transferred with consent of a registered owner. The same
constitution went ahead to describe who a lawful and Bonafide occupant on land is; A Bonafide
occupant is one who, before the coming into force of the 1995 constitution

a) Had occupied and utilized or developed any land unchallenged by the registered owner or agent
of the registered owner or agent of the registered owner for 12 years or more; or
b) Had been settled on land by government or an agent of government, which may include a local
authority.

A lawful occupant on the other hand meant a person who entered the land with the consent of the
registered owner, and includes a purchaser3. or this was formally a person who occupied land by virtue
of the repealed Busuulu and Envujjo Law of 19284.

Consequently, Bonafide and lawful tenants formed what is known as “tenants by occupancy.” The
tenants of occupancy are considered tenants of the registered owner of land which they occupy and are
2
Section 3(4) of The Land Act
3
Section 29 (1) (b) of The Land Act
4
Section 29 (1) (a) (i-iii)
required to pay annual ground rent (1000 Ugandan shillings) regardless of the size of the land.5 The
tenants of occupancy also have a right to enter transactions with respect to the land they occupy with
the consent of the registered land owner, which should not be denied on reasonable ground.6 The law
strictly requires tenants by occupancy to give the landlord the first option where they wish to sell their
interest and vice versa where a land owner wants to sell the land. This must be on a willing seller –
willing buyer basis. Failure to do as stated above can be a lawful ground for a bonafide or lawful
occupant to be evicted by the land owner.7 A person who buys registered land which has tenants by
occupancy must respect and observe their rights. This therefore provides security of tenure for the
occupants against that of the registered land owner. He or she must not evict them except if he or she
obtains a court order of eviction for non-payment of the annual nominal ground rent of 1000 Ugandan
shillings8- a peanut in the eyes of the land owner. Similarly, any person who buys registered land in
Buganda must observe the rights of the kibanja holders on the land. Tenants by occupancy and Kibanja
holders can also register a caveat at the Registry of Lands where they have reason to suspect that the
registered landowner intends to enter a land transaction which will affect their rights and interests.9

STRENGTH OF MAILO.

The mailo system guarantees and strengthens the tenants (kibanja holders) stay upon the land, hence
offering them security of tenure. Because the mailo land tenure system is subject to customary and
statutory rights of the lawful and bonafide occupants upon the land as compared to freehold tenure
system, it puts the interests of the tenants before those of the land owner10. This is a step away from the
1975 Land Decree which empowered the mailo land owner to evict the customary tenants from their
land if the land owner required the land for any form of economic development. The land owner had
all rights to evict the tenants upon the land at any time he wished, potentially quite a number of people
were at a risk of possible eviction. The security of tenure in as far as tenants are concerned is cemented
through the ground rent of approximately 1000 Ugandan shillings to be paid to the land owner. The
rent is of a non-commercial nature and quite payable by the tenants irrespective of the size and location
of the land.11 This ground rate fee is also most arguably aimed at preventing exploitation of the tenants
5
Section 1 and 31 of The Land Act
6
Section 34 of The Land Act
7
Section 35 of The Land Act
8
Section 32 A of The Land Act as amended in 2010
9
Section 139 of The Registration of Titles Act
10
See John T. Mugambwa “principles of Land Law in Uganda” Fountain Publishers, 2002
11
Section 31 (5) of the Land Act
by the land owner, by setting a fixed price leaving no room for the land owners to set their own ground
rent. It averts the historical problems of the Busuulu and Envujjo before the 1928 laws were passed,
where the land owners exploited the tenants upon their land hiking rent prices. Despite the unrealistic
price of the ground rent, which gives no morale for the land owners to collect that rent, it in turn favors
the poor to have land to their name, promotes equity and upholds the constitutional requirement that
every citizen is empowered to own land.12

WEAKNESS OF MAILO LAND TENURE SYSTEM.

As explained above the nature of the ground rent is not practical. Section 31 (5) sets the ground rent at
a maximum of 1000 Ugandan shillings per year irrespective of size and location of the land. This
ground rent is quite demoralizing for the land owner as there is barely any economic benefit derived
from the tenants settled upon the land. Most of this private mailo land is situated within Kampala with
social services such as water and electricity which should be fetching a reasonable and considerable
amount of rent. However, in a bid to please the tenants the landowner is subjected to the interests of
the land owner before his own. He is only left with the title to the land but technically no rights upon it.

Within the mailo land tenure system it is close to impossible to evict the tenants upon the land by the
land owner. This is because the rights and interests of the tenants are perpetual and even hereditary in
nature. The land owner finds himself in a position where he lacks control over the land he or she owns
as the law binds them in circumstances to respect and recognize the rights of the tenants above their
own.13 In the instance that the land owner would like to sell their land they must give the tenants the
first opportunity to purchase the land, before selling it to any other person. This means that the land
owner cannot sell the land to the developer or actually set up proper generating income structures upon
the land as this would lead to a conflict between himself and the tenants, since it would be viewed as
an attempt to try and evict them off the land. The law rather shields the tenants of occupancy as their
interests are to be respected by the land owner.

The only lawful way that a land owner would be able to evict the tenants upon the land is on the
premise that they have defaulted on paying the annual ground rent and attaining a court order of
eviction, however this is all after the land owner has followed the proper procedure of bringing the
matter before a land tribunal. Comical enough the land tribunal is no longer in existence, on grounds of

12
Article 237 Constitution of the Republic of Uganda.
13
See Section 64 of the Registration of Titles Act.
insufficient funds to keep it running.14 The land owner is therefore between a rock and a hard place
with the tenants, he cannot get a reasonable amount of ground rent annually neither can he seek to evict
them on the grounds that the tenants may not have a certificate of occupancy.15 Hence it is on the face
of it that the tenants seem to have absolute security of tenure over the true owners of the land.

The mailo land tenure system has been synonymous with a lot of land eviction wrangles as the land
owners resort to the men in uniform carrying guns and court orders to evict the tenant (kibanja holder).
It is quite unfair for the laws of Uganda to talk about occupancy on land without declaring the size of
the kibanja. Formally with the 1928 Busuulu and Envujjo laws the kibanja holders were restricted to
one acre of land where their homestead was situated and owned in perpetuity and inheritable upon the
death of the tenant, however today tenants claim bibanja of even 50 acres and above which is
ridiculous. These eviction attempts by the land owners have proved futile even when they have
allowed the occupants to settle their temporarily, the law protects them from eviction unless they’ve
been compensated. The collapse of institutional bodies that are mandated to handle land issues such as
the Uganda Land Commission have also intensified these land wrangles. This is quite unjust because
originally it was solely the consent of the land owner to settle on the land which made them lawful
occupants, as such it should be at his own accord that he evicts them and use the land as he or she
pleases. To top it all off the evictions are made impossible by the politicians and district authorities like
the RDC’s that continuously assure the tenants in bulk upon the mailo land that no one has a right to
evict them. This leaves the land owners quite incapable of any further action and they resort to selling
the land to wealthy people that are willing to compensate the kibanja holders or use gun power to have
them evicted forcefully.

REFORMS TO REMEDY THE CHAOUS AROUND THE MAILO LAND TENURE SYSTEM.

Though it is true that when Uganda became a British protectorate at the end of the 19th century, the
land tenure and management system was profoundly changed creating the “haves” and “have- notes”
in the land tenure system especially after the division of land in the 1900 Buganda Agreement it is our
duty as a sovereign nation to remedy the grossly unequal land system through various reforms before
the topic becomes a basis for division of the nation16. Therefore, necessary steps must be taken to
correct the current land owner- tenant situation of the mailo tenure system in order to ease and bring a
14
Under Practice Direction No 1 of 2006, the Chief Justice Suspended the Land Tribunals
15
Section 31(9) of the Land Act
16
Edward Mwebaza “A Historical Perspective of the Land Problem in Uganda”
conclusive stop to the unrest it has caused. These reforms will be aimed at creating tenure security
even for the land owners and solving the land conundrum.

a) Increasing the ground rent

As earlier discussed the ground rent paid by the tenants to the land owner is of a non- commercial
nature and quite low. This demoralizes the land owner from collecting it and in turn persuades him to
evict the occupants upon the land so as to use the land for commercial or more beneficial purposes. By
increasing the annual ground rent from a maximum of 1000 Ugandan shillings to a more reasonable
amount depending on the size and location of the land, will avert the efforts of land owners selling
their land to wealthy people and “big dogs” who can use force to evict the tenants. By allowing the
land owners to collect a reasonable amount of rent from the tenants, the threat of the eviction will be
averted and this will in turn force the tenants to use the land more productively so as to be able to
afford rent of the land upon which they are settled17. The land owners can be prevented from exploiting
the tenants it would be advisable to facilitate the District Land Boards to carry out the role of
overseeing that reasonable rent is asked of the tenants and paid to the land owner.

b) Stipulating the amount of acres that a Kibanja holder can occupy.

It would also be necessary Stipulating the amount for the government to stipulate the size of the
kibanja to be held by the tenant, just as it was stipulated in the Busuulu and Envujjo laws of 1928,
where a tenant could occupy an acre for their perpetual homestead and cultivate or rear their animals
on not more than 3 acres of land. It would also be impertinent to establish which tenants are lawful
occupants, by establishing if they are on the land with the consent of the land owner, so as to eradicate
those that are merely squatters on the land without consent of the land owner. Furthermore, the original
settlors upon the land before it was awarded to the chiefs should be identified and given more acres of
the suggested 4 acres and be charged a fairly lower ground rent. This is because they can be considered
to have more rights and consent from the land owner than those who settled on the land after the 1975
Land Reform Decree. By stipulating the amount of land to be held by kibanja holders this will stop the
absurdity of them claiming more than a reasonable amount of land. This will also accord the land
owner a part of his land that is not occupied by tenants which he can use as he pleases, this will strike a

17
Julia Schwarz “What Should Be Done to Enhance Tenure Security in Uganda and Further Development? – The Land
(Amendment) bill 2007, its Shortcomings and Alternative Policy Suggestions” p24 April 2008.
balance between the rights and interests of both the land owner and the tenant. Henceforth both parties
will have exclusive control over the land.

c) The Uganda Land Commission should conduct the affairs of land fraud transparently and avoid
any mystery surrounding solving of land issues and be accountable for the funds allocated to it
in order to avoid mismanagement of the funds. This will enable the resources be used to attain
the objectives of the fund and also enable the genuinely marginalized bona fide occupants it
was designed to help benefit from its existence and proper functioning.18
d) Illegal institutions that have assumed a mandate over land governance such as the Police,
the office of the president and state house19 should be dismantled or made subjects of the
overall supervision of a better organized Uganda Land commission so as to put a stop to
conflicting institutions of land and reduce on the bulk of land institutions that handle the
mailo land issue which will in turn prevent overlapping and conflicting functions.
e) Furthermore, the laws governing the institutions of land governance particularly the Uganda
Land Commission and District Land Boards need to be streamlined and revamped in order
to provide enhanced independence, freedom of operation and improved accountability.

Conclusively, having given a backdrop of the mailo land tenure system and its current operation within
society, highlighting its weaknesses and strengths in addition suggesting some correctives that may be
undertaken to avert the conflict between the mailo land owner and tenant of occupancy (kibanja
holder) in order to promote security of tenure for both parties, it a positive step that we acknowledge
the gross and unequal mailo land tenure system as this means we are willing to find a way around it.

BIBLIOGRAPHY:

Books, Articles, Papers and Laws

The 1995 Constitution of Uganda

Mwebaza Edward “A Historical Perspective of the Land Problem in Uganda”

18
Joe Oloka-Onyango “Land Injustices, Impunity and State Collapse in Uganda; Causes, Consequences and Correctives”
page 11
19
New Vision “Museveni Stops Land Evictions” available at https://www.newvision.co.ug
J. Oloka-Onyango: “Land Injustice, impunity and State Collapse in Uganda” Fountain Publishers,
2020

Julia Schwarz “What Should Be Done to Enhance Tenure Security in Uganda and Further
Development? – The Land(Amendment) Bill 2007, Its Shortcomings, and Alternative Policy
Suggestions” April 2008

John T Mugambwa “Principles of Land Law in Uganda” Fountain Publishers, 2002

New Vision “Museveni Stops Land Evictions”

Registration of Titles Act Cap 230

The Land Act 227