Land as Collateral for Loans in Uganda is Tricky

The land, which measures 580.43 acres, is situated at Nakalasa-Kyaggwe in Buikwe District. It is alleged that Namayiba Tea Estates acquired the said land from Kyaggwe Coffee Curing (estates) at $5.855m, which in turn mortgaged it to the bank. In the March 1 letter to Dfcu, the administrators of the estate, Mr Joseph Mulindwa and Mr Moses Muluya, alleged the land was illegally and fraudulently utilised in the application for the loan because the freehold title that was tendered to the bank was fake and was made without consent of the original proprietor, Yusuf Mulindwa (deceased). “The freehold title that was created onto our clients land despite the fact that a Mailo land title was in existence is a forged land title as a freehold title cannot be created on land whose tenure system is Mailo,” documents before court read in part… To know that the said sale to Namayiba Tea Estates was fraudulent, and the subsequent mortgaging of our clients’ land was tainted with fraud probably with internal collusion in the bank (Dfcu), a mortgage deed where our clients’ land was number one on top of the list of the properties Namayiba Tea Estates staked in your bank, was signed before the sale agreement and transfer forms between Kyaggwe Coffee Curing Estates and Namayiba Tea Estates were executed.

This is an extract from “Bank in Shs 58b loan row over land title”, a story published in the Daily Monitor.

Conflicting use rights or ownership rights such as described in the extract are not atypical for Uganda, they are the norm. Primarily because of the in-built conflicts within Uganda’s land tenure. Uganda’s current land tenure system consists of dual meanings of land ownership as follows:

Uganda’s Constitution stipulates that “all land in Uganda shall vest in the citizens of Uganda and shall be owned in accordance with the following land tenure systems: customary, freehold, mailo and leasehold” (ROU, 1998:4985).

A significant proportion, 81,122 sq km – 40.6 percent, of Uganda’s land is under customary tenure – except in Uganda’s central region where 99.6 percent of the land is individually owned – customary tenure is the predominant system – 76.1 percent of land in the north, 53.7 percent in the east, and 46.6 percent in the west is under customary tenure (ROU 2010:173).

Uganda’s customary tenure, in its ideal form, fits Pottier’s (2007) description of land ownership in the ‘traditional African sense’ – land is a resource to which people have use-rights; combining elements of land tenure as prescribed in Macpherson’s (1964:49-51) ‘customary’ and ‘simple market’ societies – disallowing unconditional individual ownership, while, by allocation or by rent, but not by sale, accessing land use to individuals, in accord with a community authority (Ault and Rutman 1979; Plattaeu, 2002; Atwood, 1990).

The bulk of Uganda’s individually owned land, 71,331 sq km, is under unregistered freehold mailo; 15,585 sq km is under registered freehold mailo; and 31,769 sq km is under leasehold (ROU, 2010:173).

Mailo is a system started in Uganda in 1900 in which land in Buganda in central Uganda was divided between the King of Buganda, chiefs, other notables and the Protectorate (British) Government of Uganda (GOU); and in which land ownership is held in perpetuity (Nyamugasira, 1996).

Uganda’s freehold, mailo and leasehold systems are based on individual ownership similar to that prescribed in Macpherson’s (1964:53-54) ‘possessive market society’ and, ideally, fitting Pottier’s (2007) description of land ownership in the ‘global-western sense’ – land is individually owned, with exclusive rights in exchange for cash, and is acquired through formal contractual arrangements between seller and buyer (Ault and Rutman 1979).

It is no wonder conflicting opinions of ownership over a single piece of land, such as described in the extract above, are common in the context of Uganda. One has to be careful to trace the history of land ownership of a piece of land. One has to investigate change of ownership – from whom the land change hands – and also from which tenure systems the land ownership originated and changed.

If it changed from one tenure system to another was it done legally? And by the way, there are changes that are not allowed. For example, freehold to leasehold is reportedly not allowed; and lately, also from customary tenure to leasehold is reportedly not allowed.

Sadly, as can be deduced from the extract above, Uganda’s dualist land tenure system foments land conflicts, which paralyse and negatively impact economic activity for long periods of time.

For more analysis on how Uganda’s dualist land tenure system facilitates conflict over land, read “Conflict in Uganda’s Land Tenure”, a backgrounder that I authored and is published on the Africa Portal.

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2 comments

  1. Stan Burkey · · Reply

    The land ownership question in Uganda is truly frightening. “Buying” a piece of land in central Uganda is extremely risky.

    Like

  2. Barnabas Ndawula · · Reply

    It is true that our multi faceted land tenure system is problematic, but this is in terms of definitions.
    That said uganda ‘ land fraud is mostly a case of moral decadence that is accelerated by the lack of efficient record keeping and the complete failure of the land registry In curering this cancer!!

    Like

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