UGANDA CHRISTIAN UNIVERSITY

NAME: WAISWA MOSES

COURSE: BACHELOR OF LAWS

REGISTRATION NUMBER: CKS21B11/ 115

ACCESS NUMBER: A94523

COURSE UNIT: FOUNDATIONS OF LAND LAW

LECTUER: MADAM NAKAMATTE FLAVIA MARY

TUTOR: MR. NSEREKO TIMOTHY

QUESTION:
YES, I agree with the true fact of the matter that land in Uganda belongs to the people as stipulated
under Article 237 and Article 26 of the constitution.

Land is defined under section 1(I) of the registration of title’s act as messuages, tenements and
hereditaments corporeal or incorporeal; and in every certificate of title, transfer and lease issued
or made under this Act, “land” also includes all easements and appurtenances appertaining to the
land described therein or reputed to be part of that land or appurtenant to it.
Article 237(3) of the constitution and Section 2 of the Land Act provides for the various ways in
which people can own land. Article 237 (3) states that land in Uganda shall be owned in accordance
with following land tenure system as customary, freehold, Mailo and leasehold tenure system.
Section 1(I)of the land act defines customary land as a system of land tenure regulated by
customary rules which are limited in their operation to a particular description or class of persons
the incidents of which are described in section 3 of the Land Act. Customary tenure system is
allowed in line with Section 14 and 15 of the judicature Act and section 46 of the Evidence act as
emphasized in the case of Kampala district land board V venensio Byamureyeba
Mailo tenure system is described under section 1(t) of the land act as the holding of registered
land in perpetuity and having roots in the allotment of land pursuant to the 1900 Uganda agreement
and subject to statutory qualifications, the incidents of which are described in section 3 of the land
Act.
Leasehold tenure is described in section 1(s) of the Land Act as the holding of land for a given
period from a specified date of commencement on such terms and conditions as maybe agreed
upon by the lessor and lessee, the incidents of which are described in section 3 and include a
sublease.
Freehold is defined in section 1(p)of the land Act as the holding of registered Land In perpetuity
subject to the statutory and common law qualification.
+++++
The legal frame work of Uganda therefore protects the individual ownership of land or right to
own land and property. Article 237(1) of the constitution provides that land in Uganda belongs to
the citizens of Uganda and shall vest in them in Accordance with the land tenure systems provided
for in this constitution. In the case of Good man international ltd v AG and Another emphasize
that Article 26 (1) of the constitution of the republic of Uganda provides that every person has a
right to own property either individually or in association with others.
It should be noted that the legal framework protects people’s rights to own land and property.
Article 26 (2) of the constitution prohibits the government from compulsorily depriving any person
of his or her property or rights to possession unless certain major conditions are satisfied as seen
in the case of Law Development center V Wasswa Civil suit 724 of 2003 where the court stated
that under Article 26(2) The taking of possession or acquisition deprived of property or any interest
in or right over property and the compulsory taking of possession of acquisition of property is
made under the law for prompt payment for fair and adequate compensation prior to the taking of
possession Acquisition of land.

However, Notwithstanding the above, Article 26(2) Empowers the government to acquire or
take private land for public use where it provides that the government may acquire land for public
use or interest of defense, public safety, “public order, public morality or public health. In the case
of Ross V Common wealth of Australia and Another (1985) LRC 202 court held that public
interest is the acquisition of land for public use and not to acquire land merely for purpose of
depriving owners of it. It must be made under a law which provides for prompt payment of a fair
and adequate compensation. The law must provide for a right to access the courts to interested
persons aggrieved by the decision. The power of the government to acquire private property
compulsorily is not against the people’s right to own property. In Bhatt & Another v Habib
Rajani [1958] EA public interest was defined to mean the same purpose or objective in which the
general interest of the community as opposed to the popular interest of individuals is directly and
virtually concerned.
Thus Article 26 and 273 of the Constitution only allows Government to use its coercive power
to force a transfer in public interest and upon fair and prompt and adequate compensation. Thus,
in UEB v Launde Stephen Sanya CACA No.1 of 2000, UEB which was a Government
Corporation entered on land, destroyed trees, crops and building materials and placed thereon
survey marks and high voltage power lines thereon without the consent of the land
owners. Twinomujuni JA held the UEB could not just enter on anybody’s land without first
acquiring it and paying compensation thereby contravening Article 26(1) (2) and Article 237 of
the Constitution. The Court further held that UEB should have first notified the persons affected
before taking over the land which they did not do.
Article 237 (2) of the constitution provides that the government subject to Article 26 of the
constitution may Acquire land in the public interest and the conditions governing such acquisition
shall be as prescribed by parliament.

In addition, the land Act also emphasizes that the government may acquire land by compulsory
process under section 43 of the Land Act which provides that the government or local government
may acquire land in accordance with the provisions of Article 26 and 237(2)

The power of government to acquire private property compulsorily is not unique. All governments
irrespective of their political persuasions reserve to themselves this power. It is based on the
philosophy that in certain circumstances individual rights may be sacrificed for the general good.

The requirements for the compulsory land acquisition are that Provided the individual is
compensated is adequately compensated and the power otherwise used fairly, Compulsory
acquisition of property is not objectionable on human rights grounds.

The land acquired by the government is vested in the Uganda Land commission which is
constituted under Article 238(1) of the constitution. Article 239 gives the commission mandate to
own Land where it is to hold and manage any Land in Uganda vested in or acquired by the
government of Uganda accordance with the provisions of the constitution.

Under section 3 (1) of the Land acquisition Act, the minster has power to take land required for
public purpose. This provision makes provision for compensation to any person whose estate or
interest in the land is extinguished as a result.

Another Act which is section 72 of the Electricity Act provides that where the minster is satisfied
that certain Land is required for providing or, maintaining electricity service to the public, the land
maybe acquired under the land acquisition Act and the Land Act. The section declares that the
acquisition of such land maybe deemed to be in the public interest whether the beneficiary is a
public entity or private person. It submitted therefore that the unless there is proof ulterior motive,
the minster’s decision to acquire Land compulsorily for any purpose mentioned in the water statue
and Electricity Act, cannot be over turned by the Land tribunal on any allegation that it’s not for
public purpose.
The Land Acquisition Act lays down the procedure that government has to follow in order
to acquire land for public use.

Pursuant to Section 3 (3) the Minister should then cause a copy of the declaration served on the registered
proprietor of the land specified in the declaration or the occupier or controlling authority. Section 4 requires
the land to be marked out by an assessment officer and measured and a plan of the land be made if the plan
of the land has not already been made. Section 5 requires persons having an interest in the land to be given
notice. The section requires the Assessment Officer to publish the notice in the Gazette and exhibit it at
convenient places on or near the land stating that the Government intends to take possession of the land and
that claims to compensation for all interest in the land be made to him or her.

As per Section 6, the Assessment Officer upon publication of the notice then proceeds to hold an inquiry
into claims and rejections made in respect of the land and then make an award specifying the true area of
the land and compensation to be allowed for the land. The Assessment Officer should then serve a copy
of the award on the Minister and on those persons having an interest in the land and the Government then
pays and compensate in accordance with the award (Section 6 (4)). Under Section 7 the Assessment
Officer shall take possession as soon as he has made the award. However, the officer may take
possession at any time after the publication of the declaration if the Minister certifies that it is in the
public interest for him to do so.

Compensation is mandatory as per section 42 of the Land Act which provides that government
or local government may Acquire Land in accordance with Article 26 and 237(2)

Section 77 of the Land Act explains the Computation of the compensation by the Government
during the compulsory Land Acquisition where is provides that they shall put in account the value
of Land which shall be the open market value of the unimproved land, the value of buildings on
the land and the value of crops on the Land excluding annual crops which could be harvested
during the period of notice given to the tenant. Under section 60(1) (e), The district Land boards
must compile and maintain a list of rates of compensation payable in respect of crops and buildings
of a non-permanent nature.

In the case of UNRA V Irumba Asuman & Peter Magala, The Constitutional Court found section
7 of Land Acquisition Act unconstitutional to the extent of its inconsistency with Article 26(2) of
the Constitution in so far as it did not provide for the prompt payment of fair and adequate
compensation prior to the taking of possession or acquisition of any property by the State. Later
The Supreme Court upheld the Constitutional Court decision that the Land Acquisition Act was
inconsistent with Article 26 of the Constitution and therefore unconstitutional. The Supreme Court
held further that whereas Article 26 was not among the non-derogable rights, this does not give
powers to Government to compulsorily acquire people’s land without prior payment, and that such
planned Government projects do not fall under the exceptions of disasters and emergences
A person who is aggrieved by any decision made by the minster under the Land Acquisition Act
has a right to appeal the high court against a minster’s decision. The right is exercisable within 30
days from the date of communication of the decision. However, the minster’s decision cannot be
challenged in an ordinary suit since there is no statutory provision for appeal. This was evidenced
in the case of Advocates for National Resources Governance and development and 2 others V
Attorney General where the petitioners challenged the compulsory acquisition of land for the
purpose of constructing a road to facilitate oil exploration and development activities in the Hoima
District of Uganda. The primary claim was that land was expropriated without prior, prompt
payment of compensation (no claims were made regarding land valuation). In addition, the
petitioners alleged that provisions in the Land Acquisition Act violated Article 26 of the Ugandan
Constitution, which protects the right to property and guarantees prior, prompt payment of
adequate compensation when land is compulsorily acquired.

However, there are some ways in which the government has failed to protect people’s Land Rights
in Uganda and these may include;

In conclusion, the above notwithstanding, government has deprived people of their Land as it is
trite law that compulsory Acquisition of Land is a prerogative of the state but doesn’t take away
the fact that people own Land. “Land is not a mere commodity but an essential element for the
realization of many other human rights. For many people, land is a source of livelihood and
is central to economic rights. Land is also often linked to people’s identities, and so is tied to
social and cultural rights” UN OHCHR.
BIBILIOGRAPHY

STATUTES

The 1995 constitution of Uganda (as amended)

The Registration of Titles Act, Cap 77

The 1900 Buganda Agreement

The 1945 Land law Decree

The Land Act Chapter 227

The water Act

The Electricity Act, 1995

The Road Act

Case law

UNRA V Irumba Asumani & Peter magela, supreme court Appeal No.2 of 2014

Advocates for National Resources Governance and Development and 2 others V AG

contstitutional petition NO.40 of 2013

The Law Development Centre V Wasswa Dan Serufuse, Civil suit No. 724 of 2003

Sheema cooperative Research V A.G Civil suit No. 103 of 2010

TEXTBOOKS

Principles of Land law in Uganda (John. T. Mugambwa, 2002, &2006) Fountain Publisher,
Kampala Uganda.