THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA AT I(AMPALA

Corqm: Buteera, DCJ, Mutangula Kibeedi, Mulgagonja, Kihika & Kozibute
Kautumi, JJCC
5 CONSTITUTIONAL PETITION NO. 10 OF 2O2O

BETWEEN

1. DR. ZAHARA NAMPEWO

2. BRIAN KIBIRANGO :::::::::::::::!:::::::::::::::::!::::!!::::!:::::!::::: PETITIONERS
AND

10 ATTORNEY GENERAL:::::::::!:::::::::::::::::::::!:::::!:::!:::::::::::::: RESPONDENT

JUDGMENT OF IRENE MULYAGONJA, JCC

Introduction

This petition was brought under Article 137(1) and (3) of the Constitution
of the Republic of Uganda and the Constitutional Court (Petitions and
15 References) Rules SI. No. 91 of 2005. The petitioners complained that
section 35 (1) (a) of the Land (Amendment) Act, 2OlO is inconsistent with
and in contravention of various provisions of the Constitution of the
Republic of Uganda.

Background

20 The petitioner is an Advocate of the Courts of Judicature and the

1st
Director of the Human Rights and Peace Centre (HURIPEC), at the School
of Law Makerere University, Kampala. The 2"d petitioner is also a lawyer
by profession and a Researcher at HURIPEC.

1 1-d' a
 The facts upon which the petition is based were summarised therein, with
the precursor that Article 237 (9) (a) of the Constitution of the Republic of
Uganda gave Parliament the power to enact a law regulating the
relationship between lawful and bona fide occupants and registered
5 owners of land. That consequently, in 1998, Parliament enacted the Land
Act, Cap 277 .

The petitioners contend that in the year 2OlO, Parliament enacted the
Land (Amendment) Act, 2OlO and the s€une is in force. That section 3 (a)
of the Land (Amendment) Act amended section 35 of the parent Act by
10 introducing section 35 (1) (a) thereof, the impugned provision, which
makes it an offence for a tenant by occupancy to assign his or her tenancy
without giving the first option of taking the assignment to the owner of the
land. They complained that the provision further provides that failure to
offer the first option to the land owner results in the assignment being
15 invalidated and the tenancy being forfeited to the registered owner.

The petitioners further state that in contrast, section 3 (b) of the Land
(Amendment) Act amended section 35 of the parent Act by introducing
section 35 (8) which provides that a change in ownership of title effected
by the sale, grant and succession or otherwise shall not in any way affect
20 the existing lawful interest or bona fide occupant and the new owner shall
be obliged to respect the existing interest. That whereas the impugned
provision imposes criminal liability on tenants by occupancy for failing to
give the registered owner the first option to acquire the tenancy, it does
not impose a similar or equivalent, or any penalty on the registered owners
25 of land who fail and or refuse to give the tenants by occupancy the first
option to purchase the reversionary interest. That section 3 of the Land
(Amendment) Act, 2Ol0 thus unjustifiably discriminates against lawful

2
 and bona fide occupants, the majority of whom are poor, less privileged
and vulnerable. It also has the effect of depriving them of their interest in
land without compensation.

Finally, the petitioners assert that Article 237 of the Constitution only
5 mandates Parliament to regulate the relationship between lawful and bona
fide occupants of land and the registered owner. And that therefore, when
Parliament enacted the impugned provision, it exceeded its mandate
because it has the effect of extinguishing the said relationship. The
petitioners then stated the grounds of the petition as challenging the
1.0 provisions of section 3 of the Land (Amendment) Act, 2OlO. However, due
to the fact that the impugned provision introduced a new clause under
subsection (1) of section 35 of the Land Act (hereinafter also referred to as
the "Parent Act"), which was named clause (1) (a), I deemed it useful to
state the grounds using the impugned provision in order to place it in its
15 proper context, thus:

a) Section 35 (1) (a) of the Land Act, as amended in 2OlO, is

inconsistent with and in contravention of Article 2l (Il and (21of the
Constitution of the Republic of Uganda, in as far as it criminalises
and punishes the acts of a tenant by occupancy who assigns his or
20 her tenancy without first giving the first option of taking up the
assignment of the tenancy to the owner of the land, without
providing a similar or equivalent penalty for the landowner who sells
his or her interest without giving the first option to purchase the
registered interest to the tenant by occupancy.
25 b) Section 35 (1) (a) of the Land Act, as amended in 2OlO, is
inconsistent with and in contravention of Articles 22 (l), 26 (1) and

3
 (2) and 45 of the Constitution of the Republic of Uganda in so far as
it deprives tenants by occupancy of their tenancy.
c) Section 35 (1) (a) of the Land Act, as amended in 20 10, contravenes
Articles 237 (8) and (9) (a) and 79 of the Constitution of the Republic
5 of Uganda in so far as it extinguishes or terminates tenancies on
registered land.

The petition was supported by the affidavits of both petitioners deposed on

10ti,July 2O2O, as well as that of Dr. Rose Nakayi, deposed on the same
date.

10 In their affidavits, the petitioners stated that HURIPEC conducted

extensive research on land rights, justice and governance in Uganda and
has published various articles on the subject. That between October 2016
and November 2017, HURIPEC, under the first petitioner's supervision
and the 2"a petitioner's coordination, conducted a project involving five
15 different studies on land justice and post-election governa.nce in various
districts of Uganda. That the project generated research based information
on land and natural resources governance, including trends of ownership
or access to land and other natural resources, as well as the processes
through which groups lose these resources while other individuals and
20 groups acquire them. That it was from this that they discovered that some
provisions of the Land Amendment Act, 2OlO are inconsistent with the
Constitution of the Republic of Uganda.

The petitioners related some of the history of the land ownership question
in Uganda, dating back to 1900 when the Buganda Land Agreement was
25 signed between the King of England and Buganda Kingdom. They state
that following the Buganda Agreement and similar agreements that were
signed in various parts of the country such as Ankole and Toro, a class of

6/vs"
 land owners was created and many people who were previously land
owners became tenants. That there were several unsuccessful efforts to
guarantee security of tenure to the tenants through the enactment of laws,
such as the Busuulu and Evujjo Law of 1928 and the Ankole and Toro
5 Land Lord and Tenant Laws, and others that were enacted after Uganda
gained its independence from Britain.

They further state that following the promulgation of the 1995

Constitution of the Republic of Uganda, Parliament, under Article 237 (9),
enacted a law to regulate the relationship between the lawful and bona
10 fide occupants of land and the registered owners thereof, the Land Act.
And that subsequently, Parliament enacted the Land (Amendment) Act
2OlO, which contains the impugned provision that is now challenged on
grounds stated above. They prayed that this court grants declarations in
the same terms as the grounds above and the costs of the petition.

15 The petition was opposed by the respondent in an answer thereto and an

affidavit in support thereof deposed by Geoffrey W. Madete, Senior State
Attorney in the Attorney General's Chambers, deposed on 22"d October
2020.

In his answer, the respondent specifically denied the contents of

20 paragraphs 4(a)-(c), 5 (f-1) and 6
(a-d) of the petition. The respondent
further stated that lawful and bonafide occupants are not land owners in
accordance with the Constitution but only tenants on mailo, freehold or
leasehold land, who enjoy security of occupancy thereon as opposed to
registered proprietors who are owners of the land. Further, that Parliament
25 under Article 79 (1) of the Constitution has power to enact laws and
prescribe prohibitive punishment as was done in section 35 (1) (a) of the
Land Act, for purposes of peace, order, development and good governa,nce

fr.^
5
 of Uganda. That the petitioners are therefore not entitled to any of the
declarations and orders sought in the petition. He prayed that it be
dismissed.

In his affidavit in support, Mr Godfrey Madete countered the facts in the

5 affidavits in support by stating that while the petitioners assert that the
majority of lawful or bona fide occupants are poor, less privileged and
'u-ulnerable, the Land Act confers economic rights of use and occupancy on
the land to them. That the said occupants have a right to enter into
transactions with respect to the land they occupy, with the consent of the
10 registered owner, for purposes of maintaining harmony; they are clearly
protected under section 35 (7) of the Land Act.

He went on to state the various protections that are accorded to lawful and
bona fide occupants under the Act, which I did not find useful to repeat
here for they are included in the respondent's submissions in reply. He
15 further asserted that the petitioners did not demonstrate that fundamental
rights and freedoms protected by the Constitution were infringed or
affected by the impugned provision.

Representation
When this petition came up for hearing on 28tt May 2024, the petitioners
zo were represented by Mr. Derrick Bazekuketta. Ms. Claire Kukunda, a
Senior State Attorney from the office of the Attorney General, represented
the respondent.

This petition had earlier come up for hearing on 2nd March 2023 but one
of the members of the panel was elevated to the Supreme Court. Upon
2s reconstitution, the written submissions filed earlier by counsel for all the

{
u xY..o*
 parties were adopted as their final arguments upon which this petition was
considered.

Preliminary Objection

Counsel for the petitioners raised a preliminary objection that the

5 respondent's affidavit in support of the answer is incurably defective for
having been commissioned by Mr. Augustine Semakula, an Advocate who
was barred from practicing law at the time he commissioned it. He relied
on rule 6 (5) of the Constitutional Court (Petitions and References) Rules,
and the decision in Uganda Journalists' Safety Committee & 2 Others
10 v. Attorney General, Constitutional Petition No. 7 of 1997 to support
the submission, and asserted that the failure to accompany the answer
with an affidavit is fatal. Counsel further referred to the decision of the
High Court in Hard Rock Quarry pf timited v. Commissioner Land
Registration & Another; HCMA No. 115 of 2015, where an affidavit
15 sworn before the same person was struck off the record after it was
discovered that he was barred from practicing as an Advocate. He then
invited court to consider section 56(1) (k) of the Evidence Act and
submitted that the respondent's affidavit was commissioned in
contravention of section 65 of the Advocates Act and section 6 of the
20 Commissioners for Oaths (Advocates) Act. He prayed that the said affidavit
be expunged from the court record. Counsel for the respondent did not
respond to the objection.

Resolution of Preliminary Objection

I carefully perused the answer to the petition and the affidavit in support
25 thereof deposed by Geoffrey W. Madete on 22"d October 2O2O.It was not
true that the affidavit was comrnissioned by Mr Augustine Semakula as it
was alleged by counsel for the petitioners. Instead, it was commissioned
7
 by Omony Stanley, Commissioner for Oaths of P. O. Box 12423, Kampala.
The objection thus fails and it is hereby overruled.

Analysis

Counsel for the petitioners raised 4 issues for determination by this court
5 in the petition, which I understood to be as follor,vs:

1. Whether section 35 (1) (a) of the Land Act, as amended in2010 is

inconsistent with andlor in contravention of Article 2l (ll and (2) of
the Constitution of the Republic of Uganda.
2. Whether section 35 (1) (a) of the Land Act, as amended in 2O1O is
10 inconsistent with andf or in contravention of Articles 22 (ll, 26 (l)
and (2) and 45 of the Constitution of the Republic of Uganda.
3. Whether section 35 (1) (a) of the Land Act, as amended in 2010, is
inconsistent with andlor in contravention of Articles 237 (8) and (9)
and 79 (l) of the Constitution of the Republic of Uganda.
(a)
L5 4. Whether the Petitioners are entitled to the reliefs sought.

The Advocates for all parties addressed the issues in chronological order.
I will therefore also consider them in the sarne order. The submissions of
counsel on each of the issues are reviewed immediately before resolution
of each of them.

20 Issue 1: Whether section 35 (U (a) of the Land Act, as amended in

2OLO, is inconsistent with and/or in contravention of Article 21(1f
and (2) of the Constitution of the Republic of Uganda.

Submdssions of Counsel
Counsel for the petitioners stated that a tenant by occupancy who does
25 not comply with section 35 (1) (a) of the Land Act when assigning his
tenancy risks three consequences: he commits an offence; the transaction
8
 is invalidated; and he/she loses the tenancy. He contended that there is
no equivalent penalty for a registered owner who does not give the first
option to the tenant by occupancy to purchase his interest before he
d.isposes of it. He then asserted that this amounts to discrimination
5 against the tenant by occupancy.

Relying on the Hansard for the 12th November 2OO9, counsel submitted
that whilst debating the enactment of the Act in Parliament, the Speaker
pointed out that there was discrimination in that clause. Counsel further
submitted that after deliberations, the Committee agreed to amend the
10 clause by upholding the transaction of the landlord on the one hand and
on the other hand, not only nullified the transaction of the tenant but also
criminalised the act and extinguished the tenancy, and it is this
amendment that was enacted into law. The petitioners contend that
Parliament was aware that invalidating the landlord's transaction without
15 a similar penalty for a defaulting tenant was discriminatory. Further, that
whereas the clause was amended to avoid discrimination against
landlords, Parliament instead discriminated against tenants by occupancy
by invalidating their transactions, criminalising their acts and terminating
their tenancies.

20 The petitioner's Advocate referred court to the affidavit of Dr. Rose Nakayi
where she explained the evolution of land ownership dating back to the
period before the coming of the British, when land in Buganda was owned
communally under the guidance of clan leaders, until the signing of the
1900 Buganda Agreement. She stated that under the Agreement, the King
25 and Chiefs were granted exclusive rights to land as individuals, leaving the
rest of the community to occupy as tenants. That this led to the enactment
of the Busuulu and Envujjo Law of 1928 to govern the relationship
9
fr,r-^
 between land owners and their tenants. Counsel then referred to Prince
Kefa Wasswa & Anor v Joseph Kiyimba, HCCS No. 482 of ?OLL, where
the judge captured the history of the land question that is in issue in this
petition.

5 Counsel went on to submit that the gist of Article 2l (1) and (2) of the
Constitution, is to preserve the right to equality under the law and freedom
from discrimination on the basis of sex, race, colour, ethnic origin, tribe,
birth, creed or religion, social or economic standing, political opinion or
disability. Further to that, Article 7 of the Universal Declaration of Human
L0 Rights (UDHR), and Article 26 of the International Covenant on Civil and
political Rights (ICCPR) have similar provisions. That therefore, section 35
(1) (a) of the Land Act unjustifiably and unfairly imposes penalties on the
tenant by occupancy without providing for similar or equivalent penalties
on the registered owner for non-compliance. That the penalty for non-
15 compliance is harsher for the tenant than it is for the land owner which
results in a lack of equilibrium, since the acts of the tenant are
criminalised.

It was further submitted for the petitioners that in many instances, low
levels of literacy, dire economic status and the feelings of powerlessness
20 render tenants by occupancy vulnerable and susceptible to dispossession
of land, as it was stated in the petitioners' affidavits in support of the
petition. Further, that during the Parliamentary debate on the Bill on 12th
November 2OOg, the then Minister of Lands, Housing and Urban
Development informed Parliament that at the time, there were 20 million
25 tenants and customar5r owners of land. Further, that nearly 9oo/o of
Ugandans did not have Certificates of Title to the land they occupied for
their interests therein are not registered.
10
 Counsel then asserted that this petition was intended to cure a legislative
injustice; tenants by occupancy should be treated fairly and equally with
the registered owners of land. Further, that rather than enhancing the
tenant's security of tenure, the impugned provision puts tenants by
5 occupancy in a more disadvantageous position by granting the landlords
an avenue to take their property away in case they make mistakes in
attempting to transfer their bibanja holdings; yet the land owners face no
similar consequences when they do not give the first option to purchase to
the tenant by occupancy, thereby contravening Article 2l(l) and (2) of the
10 Constitution.

In reply, Ms. Kukunda for the respondent stated that the Land
(Amendment) Act, 2OlO was enacted to address the historical injustices
and distortions in land relations and ownership that governments had
been grappling with since colonialism. That the amendment was also to
15 enhance the protection of tenants by occupancy as required by Article
237(81 of the Constitution. She referred to the long title of the Land
(Amendment) Act, 2OIO to support her submission.

She further submitted that section 35(1)(a) of the Land Act does not
contravene Article 2l(l) and (21 of the Constitution as alleged. Citing
20 Caroline Turyatemba &, 4 Others v. Attorney General & Another;
Constitutional Petition No. 15 of 2010,6, she submitted that Article 2I(41
allows discrimination in laws enacted by Parliament for purposes of
implementing policies and programs for affirmative action in social,
economic, educational and other imbalances in society. That the right
25 against discrimination is not absolute because in the activ,it(es of human
beings, not all differences in treatment are in themselves offensive to
human dignity.
(
1.1.
 Counsel then submitted that the rule on statutory interpretation is to the
effect that the law must be read as a whole and that therefore, the Land
Act ought to be read in its entirety. She contended that according to
section 3 (4ll,31 and 32A of the Act, tenants and their landlords do not
5 have the same rights on land. She opined that this explains the differential
treatment in section 35(1) (a) and section 35(8) of the Act. She also referred
to the decision of the Supreme Court in Christopher Martin Madrama
lzama v. Attorney General, Constitutional Appeal No. O1 of 2OL6, in
which that court cited the decision in Attorney General v. Salvatori
10 Abuki, Constitutional Appeal No. I of 1998, that it is a general rule in
constitutional interpretation that when considering the constitutionality
of any legislation, its purpose and effect must be taken into account.

Counsel went on to submit that section 92(l), (e), (5a) and (5b) of the Land
Act actually criminalise the actions of anyone, including the registered
L5 proprietor, who undermines the security of occupancy of a bona fide or
lawful occupant, in line with the intention of the framers of the
Constitution. She submitted that their intention was to make it easy for
lawful and bona fide occupants to acquire registrable interest as opposed
to continuing to create and pass on unregistered interests. Further, that
20 section 35(1)(a) seems prohibitive for a purpose which qualifies as positive
discrimination to achieve a legitimate end in Article 237(91(b) of the
Constitution. That the petitioner's allegation that the impugned section
discriminates against lawful and bona fide occupants, the majority of
whom are poor and vulnerable, is unfounded and not backed by evidence.

25 In rejoinder, counsel for the petitioners submitted that the Constitution

clearly recognizes lawful and bona fide occupants under the different
tenures of land ownership in Uganda. Further, that the Land (Amendment)

1.2
 Act 2OlO was enacted in accordance with Article 237(91 of the
Constitution. That a tenant by occupancy has an interest in land and is
therefore entitled to equal treatment with the land owner under the law.

In response to the respondent's argument that not all differences in

5 treatment are offensive to human dignity, Counsel for the petitioners
submitted that the discrimination under the impugned section of the Land
Act does not achieve justice for the tenants by occupancy as their rights
remain unprotected contrar5r to the intention of the framers of the
provision. It was also his submission that the rights guaranteed under the
10 Constitution should be protected and upheld except in circumstances
provided for under Article 43 thereof. In this regard, counsel referred to
Charles Onyango Obbo & Andrew Mwenda v. Attorney Generall
Constitutional Appeal No. 2 of 2012.

He further contended that the authorities on discrimination cited by the

15 respondent were cited out of context. Citing Turyatemba Carol & Others
v Attorney General (supra) he submitted that the weak and vulnerable
are the tenants by occupancy who in most cases do not possess a legal
title.

In further response to the respondent's submission that section 92 of the

20 Land Act criminalizes the actions of a registered proprietor who
undermines the security of occupancy of a lawful or bona fide occupant,
counsel for the petitioners stated that this section relates to an eviction
and not a transaction undertaken by a landlord without the consent of the
tenant. That the issue before court does not concern eviction of a tenant
25 by a registered owner and that therefore, section 92 of the Land Act was
cited out of context. He concluded that the discrimination under section
35(1Xa) of the Land Act is contrary to Article 2I(I) and (21 of the
13

{iq^
 Constitution of the Republic of Uganda and invited this court to declare it
unconstitutional.

Resolution of Issue 1

I observed that in his submissions, counsel for the petitioners, in some

5 instances, referred to tenants by occupancy and bibanja holders together
or interchangeably as though they hold the sarne interests in land. I

therefore deemed it necessary to first and foremost point out that it is now
settled that one who holds a kibanjo orL registered land does so under
customary law. Further, that while the interest and rights of a person who
10 holds a customary holding on registered land are specifically recognised
as those of a landowner by Article 237 (3) (a) of the Constitution, clause B
of Articl e 237 only confers security of tenure on lawful and bona fide
occupants of land. This petition shall therefore be disposed of from that
perspective.

15 The petitioners contend that section 35 (1) (a) of the Land Act is
inconsistent with andlor in contravention of Article 2l (I) and (2) of the
Constitution in so far as it criminalises and punishes the acts of a tenant
by occupancy who assigns his or her tenancy, without first giving the
option of taking the assignment to the land owner/registered proprietor.
20 Further, that the Act does not have a similar or equivalent penalty for the
landowner who sells his or her interest without giving the first option to
purchase to the tenant by occupancy.

It is a cardinal principle of constitutional interpretation that the entire

Constitution has to be read together as an integral whole, with no
25 particular provision destroying the other but each sustaining the other.
This is the rule of harmony, the rule of completeness and exhaustiveness
14
1*,
 (see P.K. Ssemwogere & Another v. Attorney General, Constitutional
Appeal No. 1 of 2OO2 (SC) and Attorney General of Tanzania v. Rev
Christopher Mtikita (2O1O) EA 13). This rule or principle also applies to
the interpretation of statutes.

5 I therefore posit that in the interpretation of the impugned provision of the

Land Act uls-a-uls Articles 21 (1) and (21 of the Constitution, the Land Act
has also got to be read or construed as a whole in order to bring about
harmony in its provisions. But what is the basis of the interpretation of
section 35 (1) (a) in this petition? The Supreme Court in Attorney General
L0 v. David Tinyefuza, Constitutional Appeal No. 1 of 1997 (Mulenga, JSC
at page 20 of his opinion) explained the depth of Article 137 of the
Constitution and the jurisdiction of this court while interpreting the
Constitution when he opined that:

"(Jnd.er clause (3)the Constitutional Court is empowered to do more than

15 "interpret" in the sense of "giuing meaning to words" of prouisions of the
Constitution. lJnd.er paragraph (a) of Clause (3) the Constitutional Court is
empowered. to, and" mag "interpret" proulsions of an Act of Parliament or anA
other lata in ord"er to determine uhether suchAct or other law is inconsistent
ytith some prouision of the Constitution euenif the latter is so clear that there
20 is "no question" as to its interpretation. Similarly, under paragraph (b) the
Court is empoytered. and. maA assess, analgse, eualuate the import of an act
or omission by ana person in order to determirue uthether such act or
omission is in contrauention of a prouision of the Constitution uithout hauing
to interpret or giue meaning to that prouision."

25 This empowers us to interpret section 35 (1) (a) of the Land Act to bring

v
about harmony in the provisions of the Act before it is determined whether
the impugned provision is indeed inconsistent with or in contravention of

15
 the stated provisions of the Constitution. To that end, Dewrath Anandi
states that there are five rules for the harmonious interpretation of
statutes as follows:

1. The courts must avoid a head-on clash of seemingly contradicting

5 provisions and they must construe the contradictory provisions to
harmonize them.
2. provision of one section cannot be used to defeat the provision
T16e
contained in another unless the court, despite all its effort, is unable to
find a way to reconcile their differences.
L0 3. When it is impossible to completely reconcile the differences in
contradictory provisions, the courts must interpret them in such a way so
that effect is given to both the provisions as much as possible.
4. Courts must also keep in mind that interpretation that reduces one
provision to a useless number or dead is not harmonious construction.
15 5. To harmonize is not to destroy any statutory provision or to render it
fruitless.

The rules above were instructive in my interpretation of the impugned

provision within its context.

It is my view that the relationship between the tenant by occupancy and

20 the landowner, who is in fact a landlord is not regulated by section 35 (1)
(a) of the Land Act alone. Instead, it is first and foremost regulated by
sections 31 and 34 of the Act, as amended by the various land statutes
enacted after 1998. For a better understanding of my analysis here, I will
lay down the amalgam of section 31 of the Land Act, as it has been
25 variously amended since 1998, and it now provides for the tenant by
occupancy as follows:

1 ,,lnterpretation of Statutes Harmonious Construction- A Critical Analysis" Devvrath Anand Guest Faculty, Faculty of
Law, Delhi University, Delhi, Volume 26, June 2023 ISSN 2581-5504; retrieved on 2102/2024 from
http://www.penacclaims.com/wp-conte nt/uploadsl2023/06lDewrath-Anand.pdf

16
 31. Tenant by occupancy.
(11 A tenant by occupancy on registered land shall enlou securitu of
occupancu on the land.
5 (2) The tenant by occupancy referred to in subsection (1) shall be
deemed to be a tenant of the realstered ouuner to be knoaun as a
teno:nt bu occupancu, subject to such terms and conditions as are
set out in this Act or as may be prescribed.
"l3l The tenant bU occuPancr sha,ll PaU to the reqistered ouner an
1.0 o;nnuo;l nomlna.l ground. rent as shall, with the approval of the
Minister, be determined by the Board.
(3a) The Minister shall, within sixty days after receipt of a request
for approval under subsection (3), communicate his or her decision
in writing to the Board.
15 (3bf Where the Minister makes no communication of his or her
decision after the expiration of the period prescribed in subsection
(3a1, it shall be deemed that the approval has been given.
(3c) For purposes of this section, nominal ground rent shall mean
reasonable ground rent-
20 (if taking into consideration the circumstances of each case;
and
liil ln anu case, of a non'commerclal nature":2
B(d) Ulhere the board has not determined the annual nominal ground
rent payable by a tenant by occupancy within six months after the
25 commencement of the Land (Amendmentl Act, 2OtO, the rent may
be determined by the Minister.s
(3ef The rent payable under this section shall be paid within one
year after the Minister has approved the rent payable under
subsection (3) or determined the rent p[payable under subsection
30 (3dl.o
(a) The tenant and the registered owner if aggrieved by the decision
of the board Eay appeal against the decision to the land tribunal;

2
The text in quotation marks was inserted by section 14 of the Land (Amendment) Act of 2004
3
This clause 1 of the Land (Amendment) Act, 2010
a
This clause was also repealed by section 1 of the Land (Amendment) Act 2010
17
 and the tribunal may confirm, reverse, vary or modify the decision
or make such other orders as it is empowered to make by this Act.
(Sf The approved rent determined under subsection (3) shall not
exceed one thousand shillings per year irrespective of the area or
5 location of the land.s
(61 If a tenant by occupancy fails to pay the approved ground rent
for a period exceeding one uear. the registered owner mau give a
notice in the prescribed form to the tenant requiring him or her to
show cause why the tenancy should not be terminated for non-
10 payment of rent and shall send a coPy of the notice to the
committee.6
(Zl If the ground rent is not paid within one year from the date of
senrice of notice or the tenant by occupancy has not taken any
steps within six months after the date of service of the notice to
15 challenge the notice by referring to the land tribunal, the registered
owner may apply to the land tribunal for an order terminating the
tenancy for non-payment of the rent.
(81 The maximum annual ground rent referred to in subsection (5f
may be revised every five years by regulations made under section
20 93
(9). For the avoidance of doubt, the security of tenure of a lawful or
bona fide occupant shall not be prejudiced by reason of the fact that
he or she does not possess a certificate of occupancy'7
{Emphasis added}

25 It is clear from the provisions of subsection (2) of section 3 1 above that the
tenant by occupancy is "a tenqnt" for rent. It was envisaged, and it is still
the position und.er the law, that a tenant by occupancy is supposed to pay
an annual ground rent. As wilt be shown later on in this opinion, the right
that is guaranteed by section 31 (1) of the Act is therefore that he/she has
30 security of tenure for as long as he/she pays ground rent. This was also

6
This clause was repealed by section 14 of the Land (Amendment) Act 2004
This clause was amended by the Land (Amendment) Act, 2004
ful' ,

7
Clause 9 was repealed by the Land (Amendment) Act, 2004
18
 the case before the enactment of the Land Act because Article 237 (8) and
(9) of the Constitution guaranteed it.

When Parliament enacted the law that was envisaged under the provisions
Article 237 (8;1and (9) of the Constitution, the Land Act, it stipulated the
5 terms and conditions of the relationship between the tenant by occupancy
and his/her landlord. The terms have evolved for they were impacted upon
by the amend.ments in the Land (Amendment) Acts of 2OO4 and 20 10, as
it is reflected in the amalgamation of the said amendments in the original
section 31 of the parent Act that is shown above.

10 Further terms and conditions of the relationship between the tenant by

occupancy and the registered owner of the land that he/she occupies are
contained in section 34 of the Land Act, as arnended. This provision
specifically lays down what is required by law in transactions with the
tenant by occupancy as follows:

15 34. Transactions with the tenant by occuPancy.

111 A tenant bu occupancu
mau ln accord.ance uith the provisions of
this assian. sublet or the tenqncu the
co of the land wner.8
l2l A tenancy by occupancy may be inherited.
20 (31 Prior to undertaking any transaction to which subsection (lf
refers, the tenant by occupancy shall submit an application in the
prescribed form to the owner of the land for his or her consent to the
transaction.
(4) The registered owner shall, within six weeks from the date of
25 receipt of the application or such longer time as may be prescribed,
either grant a consent to the transaction in the prescribed form, with
or without conditions, or refuse consent to the transaction.

8
This clause replaced that in the parent Act when it was amended by section 16 of the
Land (Amendment) Act, 2004'
party rights" on the land
Section 34 (1) ofthe parent Act provided that the tenant by occupancy "may create third
but it was deleted in the 2004 amendment.
19

tu
 (51 trIhere the registered owner refuses to grant consent to the
transaction or grants consent subject to conditions which the tenant
by occupancy objects to or fails within the prescribed time to give
any decision on the application, the tenant by occupancy may appeal
5 to the land tribunale against the refusal or the conditions, as the ccse
mag be.lo
(6f For the purposes of appealing under this section, the failure to
give a decision referred to in subsection (5) shall be taken to be a
refusal. rr
10 (7f The land tribunal shall, in the exercise of its functions under this
section, grant the consent, with or without conditions which may
include or depart from conditions imposed by the owner, or refuse
consent to the transaction or may adjourn the proceedings to enable
the parties to reach an agreement on the matter.
15 (81A copy of every consent, signed by the owner or, where the consent
has been granted by the land tribunal, by the secretary of the tribunal,
shall be delivered or sent to the recorder who shall keep a record in
the prescribed form of all such consents.
l9l No transaction to uthlch this sectlon applies sho,ll be aalid and
20 effectlae to pass anu lnterest in land lf lt is underAaken ulthout a
consent as provided for in this n. and the recorder shall not
ma,ke anu entnt on the record. of u such transaction in resoect of
uthich there is no consent.
{Dmphasis added}
25 Pursuant to section 34 (1) of the Act, any assignment, sublease and sub-
division of the land occupied by the tenant by occupancy shall be with the
consent of the landlord, and the provision is mandatory. The process that
the tenant has to go through to secure the landlord's consent is very well
detailed in this provision. The only transaction that does not require the
30 landlord's consent is passing on the tenancy by inheritance which is
secured by subsection (3) of section 34. There is also no doubt that the

e
Section 32A of the Act, inserted by section 32A(4), provides that reference to the Land Tribunal in the Act shall be
interpreted to mean Magistrate Grade one or a Chief Magistrates Court.
10
As amended by section 15 of the Land (Amendment) Act, 2004
11
As amended by section 16 of Land (Amendmentl2004.
20 {^l*
 failure to obtain the consent of the landlord before effecting any of the
transactions that are set out in subsection (1) of section 34 automaf-ically
results in a transaction that is invalid and therefore void, ab initio.

It is therefore clear that the provisions of section 35 of the Land Act are
5 premised upon the terms and conditions that are provided for in sections
31 and 34 of the Act, as it was arnended in 2OO4 and 2010. This then
brings me to the inevitable conclusion that the propriety or
constitutionality of section 35 (t) (a) of the Land Act, which is challenged
by the petitioners, cannot be established or determined without
10 considering its context within the Act. This is based on the principle that
was stated in Attorney General v. Salvatori Abuki, Supreme Court
constitutional Appeal No. 1988, that in determining the
constitutionality of legislation, its purpose and effect must be taken into
consideration. Both purpose and effect are relevant in determining the
1s constitutionality of either effect animated by the object the legislation
intends to achieve. I am also of the view that this cannot be established
unless the whole scheme of legislation related to a particular provision or
statute is interrogated.

It is important to note that the security of tenure of the tenant by

20 occupancy is not absolute. He/she can still be evicted by the landlord for
non-payment of rent, as it is provided for in section 32A of the Act, inserted
by section 2 of the Land (Amendment) Act 2OlO. This makes provision for
the convoluted procedure for eviction through the courts of law as follows:

32A. Lawful or bona fide occupants to be evicted only for non-

25 payment of ground rent.
(U A lawful or bona fide occupant shall not be evicted from registered
land except upon an order of eviction issued by a court and only for
non-payment of the annual nominal ground rent.
2L

["*
 (2) A court shall, before making an order of eviction under this
section, take into consideration the matters specified in section
32(1).
(3) trIhen making an order for eviction, the court shall state in the
5 order, the date, being not less than six months after the date of the
order, by which the person to be evicted shall vacate the land and
may grant any other order as to expenses, damagesr compensation or
any other matter as the court thinks fit.
(4f For purposes of this section, the word "court" shall mean a court
10 presided over by a Magistrate Grade 1 or a Chief Magistrater2 as the
case may be, and reference to the Land Tribunal in this Act and
amendments thereto shall be interpreted accordingly.

Given the fact that the tenant by occupancy is by law supposed to be a

paying tenant, it cannot be gainsaid that his or her interest in the land,
15 even where it is supported by a 'certificate of occupancy' issued under
section 31 (8) of the Act, is subordinate to that of the registered land owner
or his or her landlord. The tenant by occupancy remains a tenant, not a
registered land owner as is the case with a person with a freehold title or
mailo title and the holder of a leasehold from a freeholder or a designated
20 authority. His/her tenancy is protected where he/she complies with the
terms provided for in sections 31 and 34 of the Land Act. It is therefore
also my opinion that the fact that the landlord does not take action against
him/her for non-payment of rent, for whatever reason, does not make the
interest of the tenant by occupancy equal to that of the registered owner
25 of the land that he/she occupies.

I will now consider whether section 35 (1) (a) of the Land Act, contravenes
or is inconsistent with Article 2l(I) and (2) of the Constitution.

')*
12
The courts replaced the Land Tribunals which ceased to operate by virtue of Practice Direction No. 1 of 2006

22
 Article 2l (l) and (2) of the Constitution provides for equality and freedom
from discrimination in the following terms:

2l.Equalityandfreedomfromdiscrimination
(1) All persons are equal before and under the law in all spheres
of
5 political, economic, social and cultural life and in every other
respect and shall enjoy equal protection of the law.
(2) Without prejudice to clause (1) of this article, a person
shall not
be discriminated against on the ground of sex, race' colour,
ethnic
origin, tribe, birth, creed or religion, social or economic standing,
10 political oPinion or disabilitY'

But perhaps, before I analyse the import of section 35 (1) (a) of the
impugned Act, it is important that I place it within its context
in section
of it'
35 of the principle Act in order to facilitate a better understanding
Section 35 of the Land Act, as amended, now provides for the
option to

15 purchase as follows:

35. Option to Purchase.

(u A tenant by occupancy who wishes to dsslqn the tenancg shall'
sublect to thls sectlon, give the first option of taking the
assignment
of the tenancy to the owner of the land'
(1a) subject to subsection (7}, a tenant by occupancy who
purporasto
20
assign the tenancy by occuPancy without giving the first
option of
taking the assignment of the tenancy to the ouner of the land
commits an offence and is liable on conviction to a fine not exceeding
years
ninety-six currency points or imprisonment not exceeding four
25 or both; and the transaction shall be invalid and the tenant shall
forfeit the right over the land and the land shall revert to the
registered owner.
I
12
to
30 that interest to the teno;nt bu occupancu'
be a
willino seller basis.

23

fu*
 (4f where an option to buy is offered to any party under subsection
(1) or (2f, the party who makes the offer must set out the
terms of the
offer with sufficient detail and clarity for the party to whom
the offer
to
is made to understand the offer and make an aPpropriate response
5 it.
(1) or
(51 A party to whom an olfer to buy is made under subsection
of the offer, either
izi "nL1, within three months after the receipt
refuse the offer or make such a response as will enable meaningful
negotiations to take place between the parties'
(6) Either party to the negotiations to which subsection
(5| refers
10
Eay, at any time after three months have elapsed since the
him or
negotiations commenced, refer the matter to the mediator for
her to assist the parties to reach an agreement'
(7) Where the mediator is unable, after three months of
negotiations'
to assist the parties to reach an agreement on the option to buy'
he
15
or she shall make a declaration to that effect; and the
party who made
assign the
the offer of the option to buy shall thereupon be enabled to
tenancy by occupancy or, as the case may be, sell the reversionary
or she
interest free of the option to buy, to such other person as he
20 thinks fit.
(81 o title
not

be the
25 interest.
{Mg emphasisrt

Itis crucial to the determination of this issue to note that section 35 (1) (a)
that were
of the impugned Act does not cover all of the transactions
(Amendment)
provided for in section 34 (1) as it was alnended by the Land
of the right
30 Act of 2oo4.It singles out only one transaction, the assignment
viz: assign'
of occupancy, yet section 34 (1) refers to three (3) transactions,
sublet and sub-divide. To my mind therefore, the first question that needs
to be answered before the import of the impugned
provision is understood
to be
is: Why should the registered owner of the land have the first option
assigned the interest of the tenant by occupancy? It is
my view that the
35
24
 given to lawful
answer to that question is to be found in the descriptions
provides in
and bona fide occupants in section 29 of the Land Act, which
part as follows:
t'bona fide occupant"'
29. Meaning of t'lawful OccuPant" and
5 (1) "Lawful occuPalfrt Ps4113-
(a|apersonoccupyinglandbyvirtueoftherepealed-
(i) Busuulu and Envuiio Law of L92a;
(iif Toro Landlord and Tenant Law of L937;
(iii) Ankole Landlord and Tenant Law of L937;
1.0 (b)apersonwhoenteredthelandwiththeconsentofthe
registeredownerrandincludesapurchaser;or
(clapersonwhohadoccupiedlandasacustomarytenantbut
whose tenancy was not disclosed or compensated for by
the
registered owner at the time of acquiring the leasehold
L5 certificate of title'
coming into
(2) ,,Bona fide occupant,, means a person who before the
force of the Constitution-
(a)hadoccupiedandutilisedordevelopedanyland
unchallenged by the registered owner or agent of the
registered
20 owner for twelve Years or more; or
of
b| had been settled on land by the Government or an agent
the Government, which may include a local authority.
(3) ...
from
It is observed that both categories of occupants derive their interest
clearly distinct
25 the registered owner, and from nowhere else. They are also
from those of
from customary owners whose rights are also distinguished
bona fide and lawful occupants. The persons in the
first category' in
subsection (1), derived their interest in the land by
force of law' either

customary or by contract. The second category derived

their interest by
protected by
30 possession that was averse to that of the registered owner'
the l2-year period of limitation of actions for recovery of land'
These
25

5.r.-* a
 diverse interests had to be protected by the 1gg5 constitution because
they were interrupted by the Land Reform Decree which was promulgated
in 1975 and abolished customary tenure. It also repealed the Busulu and
Toro'
Envujjo Law, as well as the Landlord and Tenant Laws of Ankole and
5 In order to achieve a balance and make restitution to the persons whose
interests were interrupted or destroyed, Article 237 (81 made an effort
to

preserve their interests.

It is also pertinent to note that the rights of the registered owner of land,
unlike those of the tenant by occupancy, are protected by the Registration
are paramount
10 of Title Act (RTA). The rights of the registered owner of land
and cannot be reasonably placed at the same level as those of a
tenant by

occupancy because section 64 (1) of the RTA provides as follows:

54. Estate of registered proprietor paramount'

(1f Notwithstanding the existence in any other person of any estate
or interest, whether derived by grant or otherwise, which but
for this
15
Act might be held to be paramount or to have priority, the proprietor
of this
of land or of any estate or interest in land under the operation
Act shall, except in the case of fraud, hold the land or estate or
the
interest in land subject to such incumbrances as are notified on
but
20 folium of the Register Book constituted by the certificate of title,
absolutely free from all other incumbrances, except the estate
or
interest of a proprietor claiming the same land under a
prior
registered certificate of title, and except as regards any
portion of
in
land that by wrong description of parcels or boundaries is included
25 the certificate of title or instrument evidencing the title of such
proprietor not being a purchaser for valuable consideration or
deriving from or through such a purchaser'
owner
The Land Act takes cognisance of this and defines the registered
undertheActinsectionlthereofasfollows:
registered
30 (zf ,.registered owner,, means the owner of registered land
in accordance with the Registration of Titles Act;
26
 (aaf ,,registrable interest" means an interest registrable under the
Registration of Titles Act, namely, mailo, freehold, leasehold and
subleasehold, but includ.es a certificate of customattt tenure and a
cerAificate of occuPancu :
5 (bb) ..registrar,, means the registrar of titles appointed under the
Registration of Titles Act;
{EmPhasis added}

Much as the tenant by occupancy may register his right of occupancy'

certificates of occupancy are not independent in themselves because they
10 are derived from the certificate of the registered owner of a freehold,
leasehold or mail0 interest in the land. The interest is therefore

subordinate in rank to the owner's interest and subject to the conditions

imposed by the owner as it is provided in section 33 of the Land Act'
as

follows:

15 33. Certificate of occuPancy.

( U A tenant bY occuPancy mdu applu to
the reoistered outner for and
tn
r
section.
20 application, the registered owner shall notify the
(2) On receipt of the
committeel and the committee shall appoint a day, being not less
than three weeks and not more than three months from the date of
the receipt of the application, when it will meet at the place where
the land is situated to determine, verify and adjudicate on the
and
25 boundaries to the land and shall inform the tenant by occupancy
the owner of that date.
(41 ...
A in ll be
or t
30 ha,s
of the

j,*
the matter ho,s been cl
are
land. tribunal under section 32'

27
 (6f Subject to subsection (5f, on receipt of the determination of the
committee, the owner shall, without undue delay, give a consent in
the prescribed form to the tenant.
(7) Where the registered owner has not, within six months after the
5 receipt of the determination of the committee, granted a consent to
a certificate of occupancy to the tenant by occupancy' the tenant
may appeal to the land tribunal;l3 and the land tribunal shall proceed
as provided for in this Act to grant a consent to the certificate of
occupancy.
t0 (8) A grant of consent shall entitle the tenant by occupancy to be
issued with a certificate of occupancy by the recorder, and the
recorder shall, on being satisfied with the grant of consent, issue a
certificate of occupancy to the tenant by occupancy who presented
the grant ofconsent to the recorder'
L5 (9) The recorder shall notify the registrar of the issue of a certificate
of occupancy, and an encumbrance to that effect shall be endorsed
on the certificate of title by the Registrar'
{Emphasis added}

The rights and interests of the tenant by occupancy also remain

20 subordinate because the owner's title is paramount, according to section
64 of the RTA. In my opinion, this difference in the ranking of the status
of interests is d.rawn from the provisions of Article 237 (3) of the
Constitution which provides for the different land tenure systems or modes
of ownershiP thereof as follows:

25 (3t Land in uganda shall be owned in accordance with the following

land tenure sYstems-
(a) customary;
(b) freehold;
(cf mailo; and

Land Tribunal in section 33 (7) is interpreted to mean the Magistrate

13 Grade I or the Chief
Magistrates Court as it is stated in section 32A of the Act

28
 (d) leasehold.

Impliedly, unlike the customary tenant, the tenant by occupancy was not
meant to be an owner of land under the Constitution of 1995. This is
because the conditions that relate or related to obtaining title to land
s under customary tenure are contractual and defined by section 3 of the
Land Act. This, to my mind, confirms that the interests of tenants by
occupancy are subordinate to those of the land owners stipulated in
Article

237 (31of the constitution. The registration of a certificate of occupancy

under the RTA therefore does not confer rights of ownership to the tenant
10 by occupancy as does the registration of a certificate of customary
ownershiP.

Act
Tfrrning back to the question whether section 35 (1) (a) of the Land
contravenes Article 2l (1) and (2) of the Constitution by giving
disparate
land on
treatment to the tenant by occupancy and the registered owner of
the disposal of his/her interest therein, at the risk of repetition but
for
1s
clarity, I will set down the impugned provision again.
(1af Subject to subsection l7l, atenant by occupancy utho Purportsto

the of to outner of the land

commits an offence and is liable on conviction to a Iine not
exceeding
20
ninety-six currency points or impriso nment not exceeding four Years
or both; and the transaction shall be invalid and the tenant
shall
forfeit the right over the land and the land shall revert to the
registered owner.
25 {Emphasis added}

who wishes to
On the other hand, the obligations of the registered owner
dispose of their interest in their land, vis-a-vis the rights
of the tenant by
as follows:
occupancy are provided for by section 35 (2) of the Land Act

29
 (2) The owner of land who wishes to sell the reversionary interest in
the land shall, subject to this section, give the first option of buying
that interest to the tenant by occupancy.

The landlord or registered owner who wishes to dispose of the reversionary

5 interest in their land is therefore under the same obligation as the tenant
by occupancy to give such tenant the first option to purchase it from
him/her. The tenant and the landlord are, in tandem with Article 21 (1) of
the Constitution, under equal obligations under the law.

The process that the tenant by occupancy and the registered owner have
10 to go through to achieve their intent in subsection 1(a) and (2) of the Act
is very detailed and laid down step-by-step in sub-sections (3) to (71 ot
section 35. Not only must the tenant by occupancy and the registered land
owner give priority to the other before they dispose of their interest but in
addition, both are bound by the provisions of subsection (3). The offer shall
j.s be on a willing buyer willing seller basis; meaning that where the tenant
by occupancy offers to assign his interest in the land to the registered
owner, the latter must be willing to bry, and the salne applies to a
registered owner who wishes to sell his reversionary interest to the tenant
by occupancy. To that end, the provision complies with Article 21 (l) of the
20 Constitution.

It is also pertinent to note that under subsection (4) of section 35 the party
who offers to dispose of his interest must set down the terms of the offer
with sufficient detail and clarity for the party to whom the offer is made to
understand it and make an appropriate response. However, it cannot be
25 said that there can be equality under the law in respect of this provision,
however much we may wish that it be present. I say so because what is
being disposed of by the tenant by occupancy and the registered owner is
,as different qs chatk and. cheese.'The registered owner will be offering to

6r*
30
 while
dispose of a portion of his/her titled land to the tenant by occupancy'
the best that the tenant by occupancy can offer is his/her developments
on the piece land he/she occupies. He has nothing else to dispose of'
except that and his right to security of tenure on the registered owner's
5 land, based on the developments thereon. The latter, as it has been
strenuously asserted by the petitioners, which submission I accept,
will be

commensurate to a paltry sum compared to the intrinsic value

that the
registered owner has in the land.

under section 35 (5) of the Act, the party to whom the offer is made,
whether land owner or tenant by occupancy, must respond within
3
10

months, either accepting the offer or making such response as will

enable

meaningful negotiations to take place between the parties. of course,

the

negotiations, if inspired by the need of the land owner to dispose

of his
to the
reversionary interest will be based on the market value, according
15 forces of demand and supply at play in the area at the time'
It therefore
Neither can
cannot be said that there will be equality in such negotiations'
attached
equality be forced upon them by the law given the different values
to the interest held by each of the two parties'

If the parties fail to reach an agreement on their own within 3 months'

them to
20 under section 35 (6) the matter is referred to a mediator to assist
do so. should the mediator fail to assist them reach such
an agreement on
Pursuant to
the option to buy , he lshe makes a declaration to that effect'
the declaration, under section 35 (7) the party who made the
offer or

presented the option to the other to buy shall thereupon be

enabled to

assign the tenancy by occupancy or sell the reversionary

interest, free of
25

the option to buy, to such other person as he or she thinks

fit'

31
 of
From the provisions analysed above that follow sections 35 (1) (a) and 2
the Act, and which enable the parties to dispose of their interests, the
crucial point to take home in this whole process, in my opinion, is that
rightfrom the start, the value given to the interests held by the tenant by
price
5 occupancy and the land owner are without a doubt unequal' The
assigned to the interest by each of them will therefore be disproportionate
than
or unequal; the value assigned by the registered owner being higher
that assigned by the tenant by occupancy to their interest' The law as
it
stands therefore ranks the interests of tenants by occupancy and
land

owners, the rights of the tenant by occupancy being subordinate

to those
L0

of the land owner or registered proprietor, as is the case with any

landlord / tenant relationshiP.

The analysis of the provisions above in the salne Act shows that
the
in the
inequality between the two different rights in the salne piece of land
law was intentional. It arose from the provisions of Article 237 of
the
1.5

Constitution, as it has been shown above; it was not ordained

by

Parliament in section 35 (1) (a) of the Act'

it must be emphasised here that should the tenant by

Most importantly,
occupancy purport to assign his tenancy without comptying
with the
so without
20 provisions of section 35 (1) of the Act, he/she will also be doing
3a (1) of
the consent of the land owner that is mandatory under section
section 34
the Act. The transaction will be illegal and thus invalid under
(9) of the Act, as well.

The first conclusion that I draw from the provisions of

the Land Act
of land or
25 discussed above is that inequality between the registered owner
about by
the landlord and his/her tenant occupying the land was brought
framers of
the system of land holding in uganda. It was approved by the
32
 the Constitution and included therein as well as in the provisions of the
Land Act and other statutes in pari materiq..

Going on to what appears to be discrimination against the tenant by

occupancy, Article 43 of the Constitution provides for the limitation to the
5 enjoyment of the rights that are protected by the Constitution as follows:

48. General limitation on fundamental and other human rights and

freedoms.
(U In the enjoyment of the rights and freedoms prescribed in this
Chapter, no person shall prejudice the fundamental or other human
10 rights and freedoms of others or the public interest.
(2) Public interest under this article shall not permit-
(af political Persecution;
(bf detention without trial;
(cl anu llmltatlon of the enloument of the rlahts and freedons
15 prescrlbed bu thls Chapter beuond uthat is accePtable and
demonstrablu lustlfiable ln a free and d.emocratic socletu, or
uthat ls Provlded ln thls Constitrttlon'

The limitation of enjoyment of protected rights in the public interest

though provided for is also limited. Mulenga, JSC in Charles Onyango
20 Obbo & Another v Attorney General, SC Constitutional Petition No. 2
of 2OO2 referred to clause 2(cl of Article 43 as the yardstick by which
limitations may be measured, or "the limitation upon the limitation."

The petitioners here seek to protect the right to non-discrimination whose

parameters are given in Articl e 2l (21 of the Constitution. A11 rights that
25 are protected by the Constitution may be limited if they fall within the
ambit of Article 43 (21(c), that is. if the limitation to the right is acceptable
and demonstrably justifiable in a free and democratic society, or where the
limitation is provided for by the Constitution'
-5
33
 It is emphasised that the limitation in section 35 (t) (a) of the Land Act

was brought about by the fact that the Constitution of Uganda created a
land tenure system that entrenched the tiers of land rights that existed
before it carne into force in 1995, in Article 237 thereof. The same
s constitution ordained that "lawful or bonafide occupants of mailo, freehold
or leasehold land shall enjoy securitg of occapanca on land." However, the
Constitution did not make lawful and bona fide occupants owners of land
within the meaning of Article 237 (3|thereof, they were to be tenants of
the land owner. It is therefore also my opinion that the constitution
10 entrenched the classes of land ownership that existed prior to the
promulgation of the Land Reform Decree. For that reason, lauful and bona
under the Land
fide ocanpants of land became the tenants bg occupancy
Act, enacted pursuant to Article 2g7 (9) of the constitution' Their
subservience to the title or interest of the registered land owner was
thus

1s sealed by law, as is demonstrated in the provisions of sections 34

and 35

of the Land Act.

Moreover, unfortunately or fortunately, depending on where one

is placed

in the general scheme of things, the creation of the tenancy by occupancy

was superimposed on land rights that were provided for under the
of
20 Registration of Tittes Act. The result is that because they are assured
their occupancy on registered land, efforts are constantly made to dispose
of the tenancy as though it were an absolute right over the
land occupied,

without the consent of the registered owner in uncanny ways that are
aimed at defeating his or her title. It is apparent that the clash
between

25 tenants by occupancy and registered land owners is inevitable;

it will
continue to bog down land relations in some parts of Uganda until
the
by
apparent contradictions in land legislation are successfully resolved
Parliament
I

34
 The enactment of section 35 (t) (a) of the Land Act was an effort to bring
about some semblance of order by forcing tenants by occupancy to respect
the position of the land owners to whom they are tenants, by not
purporting to dispose of their tenancies contrary to mandatory
5 requirements of the Land Act. On the other hand, in as far as the rights of
disposal by the land owners were concerned, the security of tenure of
tenants by occupancy was still protected by section 35 (8) of the Land Act,
as it is required by the Constitution and the other provision of the Act.

The petitioners complained that there are no penalties for the land owner
10 who sets out to dispose of his or her land without first offering the
reversion to the tenant by occupancy. However, that is not correct because
just as the tenant by occupancy who assigns his interest without obtaining
the consent of the land owner will be subjected to criminal process and
fined or imprisoned if found guilty, section 92 (el brought about by section
1s 5 of the Land (Amendment) Act, 2OlO, created a new offence when it
provided that:
..A person who attempts to evict, evicts, or participates in the
eviction of a lawful or bonafide occupant from registered land without
an order of eviction commits an offence"'

20 To my mind, that would be a tand owner or registered proprietor or other

persons acting as his agent or successor in title. It is clear that the penalty
for one who does not respect the security of occupancy that is protected
by the Constitution and the Land Act gets is higher than that imposed on
the tenant by occupancy whose punishment for contravening section 34
2s (1) is stated in section 35 (1) (a) as "a .fine not exceeding ninetg-six currencg
points or imprisonment not exceeding four Aears or both'" On the other
hand, the penalty to be imposed on a land owner who does not respect the
right of occupancy, or who attempts to evict or evicts a lawful or bona fide
35

fir'"*
 occupant, who is actually a tenant by occupancy is provided for in section
92 (5e), brought about by the insertion of the provision by section 5 of the
Land (Amendment) Act, 2OlO, as follows:

(Sa) a person convicted of an offence specified in subsection (1f (ef is

5 liable on conviction to imprisonment not exceeding seven years'
(5b) Where a person is convicted under subsection (5a)' the court
may-

(a) order that person to pay compensation or damages to

the
Person who was evicted; or
(b)make an order for restitution in favour of the person who was
10 evicted.

I would therefore find that section 35 (1) (a) of the Land Act is not
inconsistent with or in contraventions of Article 2l (1) and (21 of the
by
Constitution, for it d.oes not discriminate against tenants by occuparrcy
treating them differently than it does registered land owners. The two
are
that
15 treated equally under the law as it is demonstrated in the parameters
Land
guide the relationship between them under the constitution and the
Act.

Issue 2: Whether section 35 (U (a) of the Land Act is inconsistent

with
or in contravention of Articles 22lLl, 2611.l & l2l and 45 of the
20 Constitution.
Submissions of Counsel

Counsel for the petitioners submitted that section 35 (1) (a)

of the Land

Act, as amended in 2o1o contravenes Articles 22 (l), 26 (l) and

(2) and a5

of the constitution. with regard to Article 22(1) on the right

to a livelihood'
Council
25 counsel referred to Olga Tellis & Others v. Bombay Municipal
[19851 2 Supp scR 51 and Attorney General v' salvatori Abuki;
of
constitutional Appeal No. 1 of 1998. It was contended that the effect
the impugned section is to render a tenant homeless.
35

fusw
,

with regard to Article 26 (1) on the right to own property, counsel

submitted that section 35 (1) (a) of the Land Act has the effect of voiding a
purported illegal land transaction by a tenant while at the same time
extinguishing his or her previously existing kibanja interests thereby
s depriving the tenant of his or her lawful kibanja. Counsel then referred to
the decision of the Supreme Court in Uganda National Roads Authority
v. Irumba and Another; Constitutional Appeal No' 2 of 2OL4, and
submitted that section 35 (1) (a) of the impugned Act deprives a lawful or
bona fide occupant of his or her tenancy without prompt, fair and adequate
10 compensation. It was further contended that the amendment sought to
increase the levels of poverty while preventing social development by
depriving the tenants by occupancy of their right to own land under the
law. Counsel then prayed that section 35 (1) (a) of the Land Amendment
Act,2O1O be declared unconstitutional by this court.

1s In reply, Ms. Kukunda for the respond.ent relied on Attorney General v'
salvatori Abuki (supra) and Katikiro of Buganda v. Attorney General
of uganda [19591 EA g82, for the submission that where words in a
provision are clear and unambiguous, they should be given their natural
(a) of
or ordinary meaning. She contended that the words in section 35 (1)
provision,
20 the Land Act are clear and unambiguous. That pursuant to that
a tenant by occupancy who purports to assign their tenancy without
first
offering it to the registered owner of the land commits an offence,
the

transaction shall be invalid, the tenant shall forfeit the right over the land
and the land shall revert to the registered owner. She proceeded to define
2s the word "forfeit" according to its natural meaning in the oxford English
Dictionary given as: "lose or be depriued of (property or a right or
piuilege)
which
as a penalty for wrong d.oing;" and the meaning of the word "reuert"
means, ,,rettrrtt to (a preuious state, practice, topic, etc.)"
37
5,r*
 she then submitted that the impugned provision clearly indicates the
circumstances under which a tenant will lose his/her interest in the land.
She explained what happens when he/she commits the wrong of assigning
the tenancy to another person without giving the land owner the first
5 option of taking the assignment.

She went on to submit that the deprivation of land under the impugned
provision does not violate or infringe Article 26 of the Constitution because
the conditions for compulsory acquisition provided for under Article 26
(2)

are not fulfilled under section 35 (1)(a) of the Land Act. That Article
26 (2)
deprived
10 of the constitution provides that no person shall compulsorily be
of property or any interest in or right over property except where the taking
of possession or acquisition is necessary for public use or in the interest
of defence, public safety, public order, public morality or public
health and

adequate compensation has been made prior to the acquisition,

which is

15 not the case under section 35(1)(a) of the Land Act.

of
counsel further submitted that the deprivation under section 35(1)(a)
the Land Act is a punishment to the tenant who refuses or fails to
follow
the land
the law. That in addition, the landlord does not acquire/purchase
land
but the equitable interest of the tenant by occupancy reverts to the
owner/landlord. The impugned provision therefore has no effect
of
20
lawful
depriving tenants by occupancy of their land as alleged but rather'
and bona fide occupants' interests are protected under section
35 (B) of
does not
the Land Act. She further submitted that the impugned provision
property
automatically deprive lawful and bona fide occupants of their
25 since there are procedures provided for in that provision' It was her
has the
submission that on the basis of the facts of each case, court
only
discretion to grant or not to grant a forfeiture order. That Parliament
33
 laid down guidance that in case of a forfeiture order, the land in issue
reverts to the owner as the aggrieved person

Counsel for the respondent then asserted that Article 26 (2) of the
Constitution cannot condone an illegality and because the impugned
5 provision prescribes a prohibitive punishment it cannot be regarded as
unconstitutional for violating ones right to own property after that person
has been fully tried in court, with the result that an order for forfeiture is
issued. She went on to submit that under section 32A of the Land Act, a
registered owner cannot evict a lawful and or a bona fide occupant except
10 if helshe has obtained a court order for eviction, only for non-payment of
the annual nominal ground rent.

Counsel went on to contend that Article 22 (l) of the Constitution and the
ratio in Salvatori Abuki about the right to a livelihood referred to by the
petitioners are not applicable in the circumstances of this case. She thus
15 prayed that this court ignores them and finds that the impugned provision
d,oes not contravene Article 26 (1) and (21 and 45 of the Constitution, as
it
is atleged by the Petitioners.

In rejoinder, counsel for the petitioners reiterated his submissions above

and added that the forfeiture of the interest in land under section 35 (1)
20 (a) of the Land Act is automatic and any attempts to defend it in the courts
of law is bound to fail. That the provision does not envisage compulsory
acquisition by the state as it is envisaged by Article 26 (21 of the
Constitution. Rather, the provision aims at depriving the tenant by
occupancy of his or her right to own property by the registered owner. That
25 therefore, the impugned provision contravenes Articles 22 (ll, 26 (2) and
45 of the Constitution of the Republic of Uganda'

39
 Resolution of Issue 2

The petitioners assert that the implementation of section 35 (1) (a) by

extinguishing the occupancy of the tenant by forfeiture and its reversion
to the registered, owner is in contravention of Article s 22 (1) and (2)', 26 and
5 45 of the Constitution. It is their argument that the necessary implication
of extinguishing the occupancy on its being assigned to another by the
tenant deprives him or her of a livelihood that is dependent on their
occupation. The argument was premised on a decision of the Supreme
Court of India that the right to life includes the right to livelihood, which
L0 was affirmed by this court in Salvatori Abuki & Abiga v. Attorney
General (supra).

Article 22 of the Constitution provides as follows:

22. Protection of right to life.
(U No person shall be deprived of life intentionally except in
15 execution of a sentence passed in a fair trial by a court of competent
jurisdiction in respect of a criminal offence under the laws of Uganda
and the conviction and sentence have been confirmed by the highest
appellate court.
(2f No person has the right to terminate the life of an unborn child
20 except as may be authorised bY law.

The Supreme court in Attorney General v. salvatori Abuki (supra)

affirmed the decision of this court in that case and held that:

,,The exclusion order mad.e under section 7 of the Witchcraft Act amounted
to a threat to the respond.ent's liuelihood contrary to Article 22 (1) of the
25 Constitution."

My understanding of that decision is that such exclusion resulted from the

finding in that case that excluding the petitioner lappellant from his home
for the acts of witchcraft alleged against him meant that he had to leave

40

ft* a
 his home, and therefore his source of livelihood. It is therefore my view
that the dictum in that case with regard to Article 22 (ll of the Constitution
cannot directly be applied, or may be distinguished from the
circumstances in this petition for the following reasons:

5 i) The assumption that the tenant by occupancy who assigns his

tenancy to another intends to continue his occupancy is not borne
out by any evid.ence or supported by any facts adduced by the
petitioners in this matter.
ii) By its very nature, an assignment of property or the assignment of
1.0 an interest in property infers that such property or right is transferred
to another.

It is important to emphasise here that section 34 (1) of the Land Act

provides that the tenant by occupancy may in accordance with the
provisions of that section "assign, sublet or sub-diuide the tenancg utiththe
i.5 consent of the land owner." There are three actions that are provided for in
the provision: assignment, sub-letting and sub dividing. However, section
35 (1) (a) does not relate to sub-letting and sub-dividing which, in my view,
could result in the tenant remaining in occupation of the land. For the
avoidance of doubt, it provides that, "o tenant bg occapanca who purports
zo to_gSSlgq the tenancg uittnut giuing the first option to the ou)ner of the land
commits an offence."

Black,s Law Dictionary, 9tn Edition by West Distributors, defines the word
oassign" to mean "To conueA; to transfer rights or propertA." An "assignee"
,
is defined as "one to uthom property ights or pouers are transferred." The
zs sarne source defines the "assignment of ights" as "The transfer of rights,
especiallg contractual rights from one person to anotheL"

41. 9.* a
 In other words, the action targeted by the impugned provision is the
transfer of the rights to occupy a registered piece of land to another person,
excluding the necessary transfer by inheritance of the rights which is
sanctioned by subsecti on 2 of section 34 of the Land Act. There is therefore
5 no doubt that where a tenant by occupancy assigns his interest to occupy
the land to another, it is meant to transfer those rights to that other. And
because the right is to occupy the land, that right cannot be transferred
and retained at the sarne time. If that were the intention, then the
transaction can only amount to sub-letting or sub-division of the land that
10 is occupied by the tenant, which is not the subject of the impugned
provision, and is allowed by section 34 (1) of the Land Act.

It is therefore my carefully considered opinion that a tenant by occupancy

who assigns his occupancy to another causes his own exit from the land
for he lshe will not stay after the assignment, unless he subdivides it and
15 sublets only part to another person and retains occupancy of the other. It
has not been proved in this case that such assignments are without
consideration. The natural assumption, and what was in fact targeted for
prohibition by the Land (Amendment) Act of 20 10, was the sale of the right
to occupancy as though it were property or a legal title, whereas it is not.

20 It is important to reiterate at this point that the tenant by occupancy does

not own property. He is a tenant allowed to occupy the property of the
registered owner by law, at a fee - annual ground rent. That does not
confer upon him or her the right to dispose of the right to occupy or
transfer the tenancy by assignment, sale or transfer, or whatever he/she
25 chooses to call it.

I would therefore find that having chosen to illegally assign his/her right
or interest, which automatically results in his/her exit from the land, it
42
I
 cannot be said that his right to earn a livelihood from it is brought about
by section 35 (1) (a). I am also of the view that where the provision is
brought to bear, it is against the assignee in that the transaction is invalid
and therefore void as against the person from whom he derived the rights
5 to occupy the land. The land assigned is to be recovered from the assignee,
not the assignor, the tenant by occupancy who gave up his right by
transferring it to another.

I would therefore find that section 35 (1) (a) of the Land Act is neither
inconsistent with nor in contravention of Article 22 (l) of the Constitution'

10 Itwas further contended that section 35 (1) (a) of the Land Act, as
amended, contravenes or is inconsistent with Article 26 (l) and (2) of the
constitution. Article 26 of the constitution provides as follows:
26. Protection from deprivation of property
(lf Eyery person has a right to own property either individually or in
L5 association with others.
(21 No person shall be compulsorily deprived of property or any
interest in or right over property of any description except where
the following conditions are satisfied-
(af the taking of possession or acquisition is necessary for
20 public use or in the interest of defence, public safety, public
order, public morality or public health; and
(bf the compulsory taking of possession or acquisition of
property is made under a law which makes provision for -
(i) prompt payment of fair and adequate compensation,
25 prior to the taking of possession or acquisition of the
property; and
(iif a right of access to a court of law by any person who
has an interest or right over the property'

The rights of the tenant by occupa.ncy are controversial in that it is not

30 clear to the myriad occupiers of land in that category whether their rights
43
5^* I
 amount to tenancies where they are beholden to the landowner or whether
they amount to bibanja which are holdings under customary law that
confer ownership to the holder. The nature of the tenancy by occupancy is
also controversial because it defies the notion of the supremacy of title that
5 is provided for by section 64 of the RTA. I say so because the registered
proprietor cannot evict the tenant by occupa.ncy unless he/she takes legal
action in a court of law under section 32A (1) of the Land Act.

The process is tedious and therefore unattractive to registered land

owners. The tenancy by occupancy therefore appears to be perpetual and
L0 is then construed as a form of tenure though not provided for by the
Constitution. I it is for that reason that the petitioners here
believe
perceived it to be the equivalent of a kibanja and so challenged the
provisions of section 35 (1) (a) as inconsistent with Articles 26 (I) and (2)
of the Constitution. They did so because the impugned provision seeks to
15 emphasise the fact that under the Land Act, the tenant by occupancy is
merely a paying tenant whose interest is subject to the overriding
registered interest of the land owner.

However, the question needs to be addressed conclusively and I will lay

down the provision again for clarity emphasising the relevant part of it for
20 the analysis here, and it is as foilows:

(1al Subject to subsection l7l, a tenant by occupancy utho

ouroorts to asslon the tenancu bu occuoancu without aiulno the
rst the to
ou)ner of the lqnd amo ffence and is liable on conviction
25 to a fine not exceeding ninety-six currency points or
imprisonment not exceeding four years or both; and the
shall inaalid the tenant shall t the
rioht the and the s hall to the
ou)ner.
44
4 t
 {Emphasis added}
The petitioners likened the forfeiture that is brought about by the
enforcement or application of the provision to that which was considered
by this court and the Supreme Court in Uganda National Roads
5 Authority v. Irumba and Another (supra). This court in Constitutional
petition No. 4O of 2O12, Asuman Irumba & Others v Attorney General
& Uganda National Roads Authority, found and held that:

"Inthis case it is common ground that the gouernment indeed has taken ouer
the second" respond.ent's propertg under Statutory Instrument Number 5 of
10 2013, The Land Acquisition (Hoima-Kaiso-Tonga Road) Instrument issued
under Section 3 of the Land Acquisition Act Cap 226, and dated Bth February
2013. The issue in this petition is uthether Section 7(1) of the Land
Acquisition Act Cap 226 is a lana that is in conformity tttith Article 26(2) of
the Constitution. We haue already set out the prouisions of Section 7(1) of
15 the Land Acquisition Act aboue. Clearly that Section does not prouide
angwhere for prior payment of compensation before gouerrlment takes
possession or before it acquires anA person's property.
To that extent therefore we find that Section 7(1) of (the) Land Acquisition
Act Cap 226 is inconsistent utith and contrauenes Article 26(2) (b) of the
20 Constitution."

The Land Acquisition Act is stated to be an Act to make provision for the
compulsory acquisition of land for public purposes and for matters
incidental thereto and connected therewith. Acquisition of the land is by
government, not individuals. Section 7 thereof provided for taking
25 possession of land by the government as follows:

7. Taking possession.
(1f Where e declaration has been published in respect of any
land, the assessment officer shall take possession of the land as
soon as he or she has made his or her award under section 6;
30 except that he or she may take possession at any time after the

45
,
 publication of the declaration if the Minister certifies that it is
in the public interest for him or her to do so.
The taking of possession under section 7 of the Land Acquisition Act
follows a declaration made under section 3 of the Act that the land that is
5 the subject of acquisition is needed for a public purpose by the
Government. This is clearly distinguishable from the forfeiture that results
from the enforcement of section 35 (t) (a) of the Land Act in that land is
not forfeited for a public purpose; rather it is taken back by the owner who
had the reversionary interest upon which the tenant's occupancy was
10 based.

Clearly, the registered owner cannot compensate the tenant by occupancy

for taking back his land on breach by the tenant of the provisions of section
3l (21wherein it is declared that he/she is a tenant of the land owner. The

tenant by occupancy who assigns his interest contrary to section 35 (1) (a)
15 of the Act also d.oes so in contravention of section 34 (1) of the Act which
allows him/her to assign, sublet or subdivide the land only with the
consent of the land owner first had and obtained. Since the tenant by
occupancy is not a land owner but only has the right to occupy the land
with an obligation to pay rent, he/she has no property upon which
20 compensation should be Paid.

I would therefore find that section 35 (1) (a) of the Land Act, as amended,
is not inconsistent with or in contravention of Article 26 (l) and (2) of the
Constitution. Neither is it in contravention of Article 45 of the Constitution.

25

46
 Issue 3: lVhether section 35 (1) (al of the Land Act, as amended in
2OLO, is inconsistent with and/or in contravention of Articles 237(8)
& (91(a) and 79(1) of the Constitution of the Republic of Uganda.

Submissions of Counsel

5 Counsel for the petitioners submitted that Article 237 (9) (a) of the
Constitution mandated Parliament to enact a law to regulate the
relationship between lawful and bona fide occupants and the registered
owners of land. He contended that according to the decision in Davis
Wesley Tusingwire v. The Attorney General, Constitutional Appeal No.
10 4 of 2o16, clear and unambiguous words and phrases should be given
their primary, plain, ordinary and natural meaning. He went ahead to
define the word "regulate" arrd submitted that it is not synonymous with
"terminate," "extinguish" or "forfeit'It was thus his submission that power
to regulate does not include the power to prohibit, terminate or extinguish
15 a right.

Counsel for the petitioners further submitted that although Parliament

enacted the Land Act which guarantees the security of occupancy of lawful
and bona fide occupants, it exceeded its mandate when it enacted section
35 (1) (a) which has the effect of extinguishing the relationship to the extent
20 that it provides for the reversion of the tenancy to the registered owner. He
contended that the impugned section does not reflect the intention of the
Constitution in recognizing tenants by occupancy. That it instead
terminates such interests. It was thus his submission that the impugned
provision contravenes Articles 237 (8), (9) (a) and 79 (1) of the Constitution.

25 In reply, Counsel for the respondent reiterated her earlier submissions

with regard to issues 1 and 2. She further submitted that Parliament acted
within its mandate to enact the law and was within its powers to address
47

fu,*
 the relationship between lawful and bona fide occupants and registered
owners for purposes of ensuring peace, order, development and good
governance in Uganda. She concluded that therefore, section 35 (1) (a) of
the Land Act, as amended, does not contravene Articles 237 (8l., (9) (a) and
5 79(l) of the Constitution.

Resolution of Issue 3

The mandate to enact the Land Act was specifically given to Parliament
under Article 237 (B) and (9) of the Constitution which provide as follows:

(81 Upon the coming into force of this Constitution and until
L0 Parliament enacts an appropriate law under clause (9) of this article,
the lawful or bonafide occupants of mailo land, freehold or leasehold
land shall enjoy security of occupancy on the land.
(91Within two years after the first sitting of Parliament elected under
this Constitution, Parliament shall enact a law-
15 (a) regulating the relationship between the lawful or bonafide
occupants of land referred to in clause (8f of this article and the
registered owners of that land;
(b) providing for the acquisition of registrable interest in the
land by the occupant.

20 Article 79 of the Constitution, on the other hand provides for the functions
of Parliament as follows:

79. Functions of Parliament.

(1| Subject to the provisions of this Constitution, Parliament shall
have power to make laws on any matter for the peace' order,
25 development and good governance of Uganda.
(2f Except as provided in this Constitution, no person or body other
than Parliament shall have power to make provisions having the force
of law in Uganda except under authority conferred by an Act of
Parliament.

48
 (31 Parliament shall protect this Constitution and promote the
democratic governance of Uganda.

The petitioners contend that section 35 (1) (a) of the Land Act, as amended
in 2010, contravenes the provisions above in as far as it provides that the
5 right of occupancy is extinguished where the tenant by occupancy assigns
his/her occupancy without first offering it to the registered owner of land.

With regard to the contention that section 35 (1) (a) of the land Act
contravenes Article 273 (8) of the Constitution, in as far as it extinguishes
or terminates the tenancies on registered land, the rights of the tenant by
10 occupancy to enjoy security of tenure is not absolute. Tenants by
occupancy still enjoy security of tenure on registered land under the
provisions of section 31 (1) of the Land Act but pursuant to section 3I (21
they are paying tenants of the registered owner. Their rights are therefore
limited by that fact.

15 It has also already been established above that section 35 (1) (a) of the
Land Act, is a limitation to the rights that were guaranteed in Atticle 237
Constitution. The tenant by occupancy is guaranteed security of
(8) of the
tenure as long as he/she complies with the parameters that are set in
sections 31, 34 and 35 of the Land Act. Otherwise, the provisions of section
20 35 (1) (a) of the Act kick in and may result in the termination or
extinguishing of the tenancy. It has also been established that the
limitation is within the ambit of Article 43 (21 (c) of the Constitution
because it is demonstrably justiliable in a free and democratic society.

As to whether section 35 (1) (a) of the Land Act, regulates the relationship
25 between the land owner and the tenant by occupancy, as it was envisaged
by Articl e 237 (9) (a) of the Constitution when it extinguishes the tenancy,
it is opined that section 35 (1) (a) cannot be construed on its own. It is part
49
rl

of the legislative scheme that is embodied in the various provisions that

have been analysed above, as well as the rest of the provisions of section
35 itself.

Black's Law Dictionar5r, 9th Edition, defines the word "regulatiorl" as "The
5 q.ct or process of controtting by rule or restriction." The Land Act, 1998 is

stated to be:

An Act to provide for the tenure, ownership and management of land;

to amend and consolidate the law relating to tenure, ownership and
management of land; and to provide for other related or incidental
10 matters.

On the other hand, the long title of the Land (Amendment) Act, 2OlO states
that it is,

An Land Act to enho:nce the securitu of occupo,nca

Act to amend the of
lautful and bona fide occupqnts on reqistered land
15 with le 237 of the and for related matters.

{Dmphasis added}

It is implied in this long title that before the amendment of the Land Act
in 2010, it was the position of the movers of the Bill that there was
insufficient legislative protection for the security of occupancy of lawful
20 and bona fide occupants on registered land, contrary to what was
guaranteed by Article 237 (Bl of the Constitution. The Memorandum to the
Land (Amendment) Bitl 2OO7 thus stated that:

"In accordance uith article 237 (B) and (9) of the Constittttion, Parliament in
1gg8 enacted the Land Act, which is nota Cap. 227 of the Laws of Uganda
25 to further regulate and define the relationship between the lawful and bona
fide ocanpants and the registered" outners of the land. Whereas section 31
of the Land. Act prouides that the latuful and bona fide occupants enjoy
security of ocanpancA on the land", there haue been uide spread euictions of
50
(

these categories of tenants in utter d.isregard. of their interest in the land as

prouid.ed" by article 237 of the Constitution and section 31 of the Land Act.

The purpose of the amendment is to further enho;nce the Protection of

the lauful and bona fide occuoants and the occuPants of anstomary
5 land from wid"e spread. euictions from land" taithout due regard to their land
ights conferred by the Constitution and the Land Act'"
{EmPhasis added}

The insertion of section 35 (1) (a) in the 2OtO amendment of the Land Act
does not stand on its own. The Amendment also introduced a new section
10 32A, and subsection (1) thereof whose heading is "Lawful or bona fide
occupants to be euicted onlg for non'paAment of ground rent'" Subsection
(1) then goes on to providethat such eviction shall only be upon an order
issued by court and only for non-payment of the annual nominal ground
rent. The parameters for consideration by the court provided for in section
15 32 (t) were rend.ered mandatory by section 32A (2) of the Act.

Moreover, because tenants by occupancy are tenants like any other

tenants on registered land, such as lessees and sub lessees, the powers of
the lessor that are stipulated in section 103 (b) of the Registration of Titles
Act had to be brought to bear upon them as well. section 103 (b) of the
20 RTA provides as follows:

1O3. Powers to be implied in lessor.

In every lease made under this Act there shall be implied in the lessor
and his or her transferees the following powers-
(al ...
25 (blthat in case the rent or any part of it is in arrear for the space of
thirty days, although no legal or formal demand has been made for
payment of that rent, or in case of anu breach or non'obserl'ance of
or
the or
30

51

{,',r^
(

of thirta daus, the lessor or his or her transferees mau re-ente!

slr,r:,ce
upon and take possession of the leased ProPertu.
{Emphasis added}

It has been postulated elsewhere that the right of occupancy of a tenant

5 by occupancy surpasses that of a lessee on registered land under the
RTA.t+ This is because while the length of a lease on registered land must
be specified in the agreement between the parties under section 1O 1 of the
RTA, the right of occupancy of a tenant by occupancy is perpetual and
may be passed on as an inheritance to the successors of the tenant. It may
10 also outlive a lease on public land which has the duration of 99 years,
unless renewed by the parties. Since it may also be registered as an
encumbrance on the land by the issuance of a certificate of occupancy
under section 33 of the Land Act, it is my view that the powers implied in
the lessor under section 103 (b) RTA must, of necessity, apply to the rights
15 of the tenant by occupancy.

Moreover, it is the norm that where there are rights conferred by law, there
are obligations attendant to those rights. The rights of the tenant by
occupancy have attendant obtigations in that he/she must pay rent, and
just as it is in any relationship between a landlord and tenant, he/she is
20 prohibited from assigning the right without the consent of the landlord.
According to the Land Act, this is ensured by requiring the tenant to give
the landlord the first option to take back the reversionary interest before
he/she assigns such interest, as it is provided for in section34 (1) and 35
(1) (a) of the Act. Failure to do so amounts to breach of these provisions,
25 which then entitles the land owner to re-enter upon the land; except that

1a
Sarah Banenya Mugalu, Tenancy by occupancy: ls it a tenancy or a tenure? KIUU Vol 1, lssue L, )anuary 2017,
retrieved fromhnos:llit.kiu.ac.uslitems/c4ae5ad2-04}8-4324-9e7f-9ce3247t8282,on9/4/2024

52
"i

in this particular situation, the re-entry is automatically brought about by

force of law: "... the transq"ction shall be inuq"lid and the tenant shall forfeit
the right ouer the land and the land shatt reuert to the registered ou)ner."

I would therefore find that Parliament did not contravene Article 237 (81
5 and (9) of the Constitution when it enacted section 35 (t) (a) of the Land
Act in 2OlO. The impugned provision was enacted pursuant to the said
provisions of the Constitution and it falls within the regulatory scheme of
the rights of landlords and tenants. I would also find that it is neither
inconsistent with nor in contravention of Article 79 of the Constitution.

10 In conclusion therefore, I find that this petition fails on all grounds and I

would. dismiss it with the following declarations and orders:

i) Section 35 (1) (a) of the Land Act, as amended in 2OlO, is not

inconsistent with and or in contravention of Article 2l(L) & (2) of the
Constitution in as far as it criminalises and punishes the acts of a
15 tenant by occupancy who assigns his or her tenancy without giving
the first option of taking up the assignment of the tenancy to the
owner of the land.
ii) Section 35(1) (a) of the Land Act, as amended in 2OIO is not
inconsistent with and in contravention of Articles 22 (ll, 26 (1) & (2),
20 and 45 of the Constitution.
iii) Section 35 (1) (a) of the Land Act, as amended in 2OlO, is not
inconsistent with and in contravention of Articles 237(8), (9)(a) and
Tg(l) of the Constitution in as far as it extinguishes or terminates
tenancies by occupancy on registered land for failure to comply with
25 it
I

53
a

There shall be no order as to costs since the petition was brought in the
public interest.
+1^
Dated at Kampala this C9Ld _ Day of o24.

Irene Mulyagonja
JUSTICE OF THE CONSTITUTIONAL COURT

10

54
 THE REPUBLIC OF UGANDA

tN THE CONSTITUTIONAL COURT OF UGANDA AT KAMPALA

(Coram: Buteera; DCJ, Kbeedi, Mulyagonia, Khika & Kazibwe; JJCC)

CONSTITUTIONAL PETITION No. 10 of 2020

1. DR ZAHARA NAMPEWO
2. BRIAN KIBIRANGO PETITIONERS
VERSUS

ATTORNEY GENERAL RESPONDENT

JUDGMENT OF MUZAMIRU MUTANGULA KIBEEDI. JCC

I have had the benefit of reading in draft the judgment prepared by Hon. Lady Justice lrene

Mulyagonja, JCC. I agree with the reasoning and the Orders she has proposed.

oirhrvot aJa 20,{

MUZAMIRU MUTANGULA KIBEEDI

JUSTICE OF THE CONSTITUTIONAL COURT
 THE REPUBLIC OF UGANDA
IN THE CONSTITUTIONAL COURT OF UGAI{DA
HOLDEN AT KAIVIPALA
CONSTITUTIONAL PETITION No. 1O of 2O2O

{ Cor am : B ute er a, D CI, Mut an gula Kibee di, Muly agonj a, Kihika, E Kazibut e
ilCC}

l.DR ZAHARA NAIVIPEWO

2.BRIAN KIBIRANGO :::::::::PETITIONERS

TTIERSUS

ATTORNEY GENERAL :::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT OF OSCAR JOHN KIHII(A JCC

I had the benefit of reading in draft, the lead judgment prepared by
my sister Hon. Lady Justice Irene Mulyagonja,JSC.
I agree with the reasoning and conclusion that;
i) Section 35 (1a) of the Land Act, as arnended in 2OlO, is not
inconsistent with and in contravention of Article 2l (1) & (2)

of the Constitution in as far as it criminalizes and punishes

the acts of a tenant by occupancy who assigns his or her
tenancy without giving the first option of taking up the
assignment of the tenancy to the owner of the land.
ii) Section 35(1a) of the Land Act, as amended in 2OLO is not
inconsistent with and in contravention of Articles 22 (l), 26
(1) & (21, aad 45 of the Constitution.
iii) Section 35 (1a) of the Land Act, as arnended in 2OIO, is not
inconsistent with and in contravention of Articles 237 (81

Page I of2
o

(9)(a) and79(1) of the Constitution in as far as it extinguishes

or terminates tenancies by occupancy on registered land for
failure to comply with it.

I have nothing more useful to add.

Dated at Kampala this D of ..... 2024

I
OS KA
IUSTI o NSTITUTIONAL COURT

Page2 of?
 THE REPUBTIC OF UGANDA

IN THE CONSTITUTIONAL COURT OF UGANDA

CORAM: Buteera, DCJ, Kibeedi, Mulyagonja, Kihika, Kazibwe, JJCC.

CONSTITUTIONAL PETITION NO. 10 OF 2O2O

BETWEEN

1. DR. ZAHARA NAMPEWO

. PETITIONERS
2. BRIAN KIBIRANGO

AND

THE ATTORNEY GENERAL RESPONDENT

JUDGMENT OF MOSES IBWE KAWUMI, JCC

! have had the benefit of reading in draft the Judgment prepared my

sister the Hon. Lady Justice lrene Mulyagonja, JCC. I agree with the

reasoning and orders she has proposed. I have nothing useful to add.

Da ted at Ka m p a I a t h i s... -o. .H fo r, ....:.1 ::*... . .2024.

"f

q
Moses Kazibwe Kawumi
Justice of the Constitutional Court
 THE REPUBLIC OF UGANDA

IN THE CONSTITUTIONAL COUR.T OF UGANDA AT KAMPALA

(Corarn: R. Butccra-Dc.J, M. Kibccdi, I. MulSiagonja, O. Kihika & Kazibwe Kawumi
.I.JCC)

CONSTITUTIONAL PETITION NO. 10 OF 2O2O

1. DR. ZAHARA NAMPEWO

2 . BRIAN KIBIRANGO PETITIONERS

VERSUS

ATTORI{EY GE1VERAL RESPONDENT

JUDGMENT OF RICHARD BUTEERA, DC.T

I have had the opportu,nity of reading in draft the Judgment of my

leai:neci sister Lady Justice Irene Mulyagonja, JCC.

I agree with the reasoning, decision and declaratiorrs she proposed. I

have nothing useful to add.

As Kibcedi, Kihika 8x Kazibwe I{awumi, JJCC members of this Coram

also agree, tiris Pel.ition accordingly fails on all grounds and is
dismissed with no orders as to costs since 1.tre Petil.ion was hrorrght
in pubiic intei-est.
H^
Dated this ...... O.:r{1.:.. day or... .Akk ..2024.

lRichard Buteera
DEPUTY CHIEF JUSITIC.E