ROGERS WADADA: Mailo Land tenure is a creation of the 1900 Buganda Agreement, is it ripe for abolition? – pmldaily.com

Mr. Roger Wadada Musaalo, a Lawyer, human rights activist, researcher, and politician (PHOTO/Courtesy).

MBALE For about three months, I have been following the debate on the mailo land tenure and almost kept my view private until my brother Ofwono Opondo came out with a dossier in his Sunday column that I believe was uncalled for.

With a very harsh headline titled- Kabaka Ronald Mutebi, Ugandans need no favours from you- Im still wondering whether these were Opondos personal sentiments or that of Government or the President.

A deeper analysis of Opondos article goes beyond the subject of the mailo system and makes personal attacks on the Kabaka and his throne. True the Kabaka raised his voice but what do you expect of a man whose Kingdom is under attack; you dont expect him to smile in the face of such an eminent threat.

Frankly, this subject has been long overdue and I think it is time to face it head on. The dictates of colonialism have kept Uganda lagging behind because of the fear to undo some of the unfair historical mistakes they left us in.

For instance, the British entered into agreements forcing Uganda to provide electricity to Kenya at a cheap price. They also signed agreements with Buganda, Ankole, Bunyoro, Toro and they ensured that these agreements remain in force forever.

Whereas other agreements are never heard of, the 1900 Buganda agreement has remained a thorn in the neck and the government believes now is the time to act.

As the debate of I-will-dismantle-you-will-not-dismantle the mailo system rages on, the Kabaka needs to be reminded that the 1900 Buganda agreement was signed between Buganda and the Queen on behalf of Uganda. The agreement is not like the religious books that are not subject to amendment.

Now if it is the same Uganda that wants to verify, modify and amend some provisions of the 1900 Buganda agreement, then so be it.Uganda cannot continue being held by unfair and draconian terms that no longer serve their purpose in the new age. I am not a Muganda and frankly I dont care whether the mailo system was abolished and replaced with something else but what I know is that to destroy the mailo system is an indirect way of destroying Buganda as a Kingdom, for land is the very foundation of their survival and the continued call for ebyaffe. Ebyaffe is land.

When Museveni went to war in the jungles, he invited some Baganda to help him with a promise that he would restore the Kingdom and all its belongings. He has since returned some of the properties but the Baganda have not stopped demanding for the rest which must have agitated him to reconsiderhis promise. Every coronation anniversary has been an opportunity to call upon the central government to honour its promise; the government must have been tired of this call hence setting up a commission of inquiry into land matters and I believe it was a plot to use their recommendation to launch a plan to abolish the mailo land system.

Ugandans should be reminded that on December 8, 2016, the President appointed a Commission of Inquiry into the Effectiveness of the Law, Policies and Processes of Land Acquisition, Land Administration, Land Management and Land Registration in Uganda, (the Commission) headed by Justice Catherine Bamugemereire and a panel of other 6 members.

This debate gained momentum during Heroes Day celebrations on 9th June, 2021 when President Museveni expressed dismay at the century long mailo land system saying it is really very bad and not fair but some people support it. Of course some people meant the Baganda under the leadership of His Royal Highness Ronald Muwenda Mutebi. The President said that land owners should be entitled to full ownership of their land like elsewhere in Uganda and gave an example of Ankole where you cannot mess with somebodys land.

On the other hand, Buganda Kingdom has insisted that the cause of land conflicts is not the Mailo tenure system, but failure by government agencies to respond to the wrangles appropriately. While addressing the Buganda Lukiiko, the Katikkiro Charles Peter Mayiga, said those pushing for the scrapping of the system are off the point, and instead outlined a seven-point strategy government must adopt to streamline land issues.

It is now on record that President Museveni has promised to dismantle the old and barbaric land laws that for long have hard-pressed Ugandans through rampant illegal evictions. With those remarks, it is apparent that any time soon, there will be serious amendments to the constitution and the land laws to implement the Justice Catherine Bamugemereire report on land matters in order to cure both current and historical land injustices in the country. He cited the Mailo Land tenure that the British colonialists handed to Buganda chiefs and their collaborators.

However, somebody needs to move in very quickly to remind the President that the Justice Catherine Bamugemereire report and recommendation was quashed by the Constitutional Court where the judges condemned the commission as having acted illegally when it convened itself as a court of law in handling land disputes. In a unanimous decision of the court, the five judges of the panel ordered that all disputes relating to ownership, use and/or access to land emanating from the Land Act, the Registration of Titles Act or any other law where such a dispute is not resolved amicably or administratively can only be determined by a court of law.

In the Seven-member commission report to the President, Justice Bamugemereire had proposed that all land in the country be registered to minimize land disputes, enhance tenure security and create avenues for optimal land use. Justice Bamugemereire has since denied having been used as a conduit to abolish Mailo Land but instead backed creation of a single land tenure for Uganda.

And for sure these days it is hard to just rush off to buy land without verifying what you are getting yourself into. To most people, acquiring land in Uganda comes with very serious expenses and risks during and after acquiring property.Land tenure refers to the systems that govern the ownership of land together with the corresponding laws. This notion may seem unhelpful before we understand the principle that underlies real property law in Uganda until one encounters a multiplicity of threats from government and those who own the land in the background.

Mailo Land is a form of freehold predominant in Buganda and some parts of the eastern, with some peculiar historical characteristics. The constitution recognizes this type of land tenure and other forms of freehold available in Buganda and other parts of Uganda. However, the President says this land tenure system sits at the epicentre of the wrangles between the landlords and bibanja owners.

And to him as the head of state, in order to achieve the planned fusion of the parallel freehold systems in the country, it would be necessary for Cabinet and Parliament to address the contradictions caused by occupancy rights that frequently affect Mailo tenure. These contradictions according to him include separation of rights of ownership from occupancy that has led to difficulties in the smooth operation of the Mailo Tenure System.

Musevenis claim that the public will be given an opportunity to air their views on the proposed amendments before implementation means that we will have a referendum on the matter by all Ugandans and not the Baganda alone. That being the case, it is obvious that many Ugandans will vote against the mailo system even when many dont understand it. It is clear that the referendum will be intended for the public to rubber stamp Musevenis wishes and I see him succeeding. The President, who spoke after Justice Bamugemereire presented her paper on land conflicts, asked the MPs to help him find a permanent solution to the land question. Museveni told the lawmakers that the planned amendments to the Land Act would stabilise the situation.

Mengo says it made its stand clear when Katikkiro Charles Peter Mayiga appeared before the Bamugemereire Commission on April 25, 2018 maintaining that the current conflicts are not triggered by Mailo Land system but other factors. They insist that their views were derived from what Mr Mayiga called historical and contemporary context of land allocation, land tenure and management in Buganda before and after Ugandas Independence.

As far as Mengo is concerned, the planned abolition of the Mailo Land tenure and introduction of a new regime for the compulsory acquisition of land to suit the interests of some people within government is contrary to Article 26 and 237 of the Constitution in a manner that mostly de-enfranchises land owners in Buganda, which constitutes the most sought-after land for commercial and public interests because it lies at the heart of the countrys transport system, public administration, business and commerce.

In a recent cosmetic show of solidarity Kabaka Ronald Mutebi met President Yoweri Museveni at state Lodge Nakasero. It is claimed that they discussed matters of mutual interest for the development of Buganda and Uganda. However, what the Kabaka said while in Masaka that the Baganda were being hospitable and accommodative to allow other Ugandans to settle in Buganda, is what raised eye brows. Many concluded that the Kabakas remarks portrayed Ugandans as aliens or refugees in their own country.

Ofwono Opondos article which is clearly well researched but misplaced said Mengo is mistaken and will never bring the rest of Uganda to its knees through arrogance. He also implores the Kabaka and his subjects to realize that nobody is being favoured by being permitted to live, work or even own land or any other property in Buganda because this is an integral part of Uganda and the law permits any Ugandan to live where they want without fear of being evicted.

It is a fact that what is called Buganda today is a result of wars of subjugation and annexation which expanded the kingdom beyond its borders. True, by annexing these areas, its people, its wealth, resources and land were also given to Buganda as a gift by the colonialists. That explains why there are so many ethnic groups within Buganda who refused to be assimilated into the ways of life of the Baganda but were held in Buganda as a result of the 1900 Buganda agreement between Buganda and Uganda. By implication, Uganda wants the 1900 Buganda agreement to which it was a party amended to reflect the current wishes of the people using the land.

There is one ethnic group in this country that I fear for, that is the Baganda. They have always packaged themselves in such a way that they use them against each other, they are also used by those who want power and later dumped, an act that they have not learnt from. When Arabs first set foot in Uganda, their first collaboration was with Buganda. These were closely followed by the Protestant missionaries and later the catholic white fathers who also found reason to begin their dubious missions in Buganda and they were all welcomed with open arms.

Having studied the Buganda, the missionaries plotted a move which saw the deportation of Mwanga to Seychelles Island and replaced him with a small boy Dawudi Chwa. No one knows where Chwa came from and the last time I checked, the name Chwa does not belong to Baganda but that is a subject for another day.

After the missionaries had successfully used the Baganda to colonise Uganda in exchange for favours such as helping them fight off enemies and annexing other areas including their land that was later called mailo land to Buganda, they dumped them and moved on with life. The colonialists themselves were aware what it meant to deal with a Muganda, that is why when they were handing over power in 1962, they made sure that the then Prime Minister Obote had more powers than the President Edward Mutesa who was also the reigning Kabaka.

Obote himself had a good time manipulating the Baganda until they fell out with the deportation of the Kabaka. Where he stopped is where Amin Dada picked up. He brought back the remains of Mutesa and became a darling of the Buganda for some time. Infact all the subsequent Presidents before Museveni found it had to rule Uganda without the support of Buganda. When Museveni went to the bush, he again used the Baganda to push through his plans and eventually succeed. He has already forgotten the input of the Baganda and is now working tooth and nail to deprive them of their most important treasure, mailo land.

As the mailo land tenure debate rages on, at the forefront in Sam Mayanja- a Muganda for that matter the new minister of state for Lands whose boss is Nabakooba- also a Muganda. These two ministers have been used to do a dirty job and will be very instrumental in causing the abolition of the mailo land system. Whether they succeed or not, these two will never win a political seat in Buganda forever.

The author, Roger Wadada Musaalo is a Lawyer, human rights activist, researcher, and politician

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ROGERS WADADA: Mailo Land tenure is a creation of the 1900 Buganda Agreement, is it ripe for abolition? - pmldaily.com