SECURING FAMILY AND COMMUNITY LAND RIGHTS FOR EQUITY AND SUSTAINABILITY THROUGH RESILIENT, TRADITIONAL LAND MANAGEMENT INSTITUTIONS Presentation to World Bank Conference on Land and Poverty March 20 – 24, 2017 Judy Adoko and Liz Neate

2. Evolution of tenure systems PRESENTATION OUTLINE 1. Introduction 2. Evolution of tenure systems 3. Legal recognition of customary land tenure 4. Overview of customary land 5. Implications of legal recognition 6. Uganda National Land Policy 2013 7. The opportunity for customary tenure to contribute to economic development 8. Conclusions 9. Recommendations

Shaped by colonial period Customary tenure remains dominant type 1. INTRODUCTION (A) Evolution over time Shaped by colonial period Customary tenure remains dominant type Recognized in law since 1995

Different approaches by geography: 1. INTRODUCTION (B) Different approaches by geography: Clan-system (north and east) Kingdoms (south and west)

2. EVOLUTION OF TENURE SYSTEMS (A) Pre-colonial Colonial Post independence Period Amin regime NRA Government CONSTITUTION LAND ACT Period Date 1894 1962 1971 1979 1995 1998 Applicable tenures Clan-based Kingdom-based Freehold Mailo [Customary] Leasehold Freehold Mailo [Customary] Leasehold [Customary] Customary Leasehold Freehold Mailo

2. EVOLUTION OF TENURE SYSTEMS (B) PRESENT DAY LAND GOVERNANCE 1995 Constitution 1998 Land Act 4 legal tenure systems: Freehold Leasehold Mailo Customary

3. LEGAL RECOGNITION OF CUSTOMARY TENURE (A) WHY DID IT TAKE SO LONG? Customary system not legally recognised until 1995. Individual title preferred because: Individual title preferred for security of tenure, security to buyer, and to banks To make land market efficient so large acreage of land can be bought for commercial farming However – approx. 80% of land in Uganda is customary Land Act sought to move towards individualisation in line with international policy. It recognised existing rights but sought to convert them to individual rights in the long run.

3. LEGAL RECOGNITION OF CUSTOMARY TENURE (B) INITIAL IMPLICATIONS Customary tenure is brought into the framework of state law It is possible to transfer land from customary law to state law (but not vice versa) Appears to be ‘backwards looking’ recognition only: part of process of conversion to individualisation

4. OVERVIEW OF CUSTOMARY LAND (A) Individually owned (about 5% of land) Family owned (about 85%) Community owned (about 10%) Figures based on LEMU research in 2004-5

4. OVERVIEW OF CUSTOMARY LAND (B) Rights by recognition Means of acquisition: By clearing virgin bush (largely historic) By birth (most common) By marriage (mostly by women) Through gifts By purchase By use and allocation (as in the case of community land for communal use)

4. OVERVIEW OF CUSTOMARY LAND (C) GOVERNANCE AND MANAGEMENT Local recognition Regulated by governance institutions: Apex bodies Clans Clan committees Managed by family institutions: Heads of family (male or female) Heir and protectors Allocators of land Family members

4. OVERVIEW OF CUSTOMARY LAND (D) GOVERNANCE AND MANAGEMENT ctd. Clan “government” Set rules for use of clan land Protected rights Held head of family to account Head of family “administration” Holds land in trust Allocates family land to members Protects land and members’ rights Individual Rights holder Has secure rights to use clan land

5. IMPLICATIONS OF LEGAL RECOGNITION (A) The Constitution: Vests land in Citizens of Uganda Recognizes 4 tenure systems (including customary land tenure). The Land Act states that customary tenure: will be governed by rules “generally accepted as binding and authoritative by the class of persons to which it applies”; may be converted to Freehold; disputes can be subject to determination by traditional institutions or Local Council Courts. There is no other support given to customary land tenure.

5. IMPLICATIONS OF LEGAL RECOGNITION (B) “government” “administration” Holds land in trust Allocates family land to members Protects land and members’ rights Individual Rights holder Has secure rights to use clan land Clan Set rules for use of clan land Protected rights Held head of family to account Head of family Personal Property!

State retains monopoly on coercion 5. IMPLICATIONS OF LEGAL RECOGNITION (C) AUTHORITY OF CUSTOMARY INSTITUTIONS State retains monopoly on coercion Clans reliant on social pressure (fines not enforceable) Decreasing strength of clans leads to decreased ability to offer social protection Preferred means of dispute resolution becomes courts – not accessible to all. Becomes self-fulfilling

Increase in land conflicts Sales of land without consent 5. IMPLICATIONS OF LEGAL RECOGNITION (D) EFFECTS OF REDUCED CLAN INFLUENCE Increase in land conflicts Sales of land without consent Land grabbing by: - exploiting physical/social weakness - exploiting the oral nature of customary tenure - exploiting the differences between state and customary law No support of customary land system by the state makes the tenure more insecure Problems identified undermine the system and lead to increased conversion Parallel systems

6. UGANDA NATIONAL LAND POLICY 2013 (A) NLP provisions: Appropriate titles for customary land Land registry Traditional governance and laws for customary land tenure Likelihood of implementation?

6. UGANDA NATIONAL LAND POLICY 2013 (B) WILL THE NLP BE IMPLEMENTED? Implementation framework (2013) Implementation action plan (2015) …?

7. THE OPPORTUNITY FOR CUSTOMARY TENURE TO CONTRIBUTE TO GROWTH Current limitations of customary land preventing land an efficient land market are: No appropriate titles guaranteed by the state No registry No effective traditional governance. Despite these, the system persists; land transactions take place. Government therefore misses opportunities: to support land market to collect revenue high risks of land disputes (due to poor governance) inability to protect land rights of women and children.

8. CONCLUSIONS (A) CAN TWO SYSTEMS WORK IN PARALLEL? LEMU’s work shows not! clans cannot enforce their judgments land grabbers choose laws that suit them forum shopping occurs hybrid laws are created such as “women do not own land” Greed, impunity and corruption seems to be the order of the day with the vulnerable people suffering land grabbing the most.

8. CONCLUSIONS (B) THE FUTURE OF CUSTOMARY TENURE Conversion of customary tenure to ‘formal’ systems has been widely pursued because it is considered to lead to development through creation of a land market. Conversion is not straightforward – the principles of customary land are based on communities and families, not individual interests. Individualization may accelerate development, but: It is not foolproof (e.g. levels of land fraud) It cannot easily reflect current rights Stakeholders (e.g World Bank) continue to support conversion. Evolution is preferable to conversion.

Support for land administration should include: 9. RECOMMENDATIONS (A) Self determination doesn’t mean abandoning customary tenure to it’s own devices. A proper understanding of customary land rights could support the state system in land administration matters. Government should take time to understand the differences in customary tenure and work towards harmonising it with other state laws. Support for land administration should include: Rules and leadership Dispute resolution BTP sketch map drawing local registries for land transaction documents enact laws for customary land governance.

9. RECOMMENDATIONS (B) Inform traditional institutions of the provisions of the NLP so that they may demand and participate in its implementation in favour of customary land tenure evolution, and not conversion. The World Bank and other donor partners need to support evolution of customary land tenure for it to happen since they provide funds and influence government policies, almost more than citizens do.