Subject versus King

BY ATUHAIRWE AGRACE

Male Mabirizi, a lawyer and a muganda by tribe is suing his king (that if he still pledges allegiance to the royal). The learned fellow filed an application at the High Court of Uganda in Kampala on 08th August, seeking declaratory orders that the King (a.k.a Kabaka) through the kingdom’s Buganda Land Board wrongly forces the subjects and other tenants on ‘Kabaka’s land’ to pay fines and fees for their legal rights to property.

Some of the issues the applicant addresses include:

• The Buganda Land Board is wrong to impose compulsory registration processes, at a fee. He further says that the Board threatens the tenants living on the land registered in the name of the Kabaka with cancellation of their legal rights to the land.

• The applicant opposes the legitimacy of the Traditional Rulers (Restitution of Assets and Properties) Act 247 which reinstates kingdoms and defines land registered under the Kabaka’ name, claiming the Kabaka is a trustee and not the owner of the land.

• He also opposes the Kabaka’s/Board’s requirement for leaseholders who secured their title from the former Uganda Land Commission to reapply for fresh leasehold titles with the Board.

• Mabirizi contests the collection of 10% charge on the purchase price/value of land registered under the Kabaka’s name.

• He seeks a court declaratory order that the money collected as ground rent from non-lease Buganda tenants on the land registered under the Kabaka’s name is collected illegally. In addition, the applicant wants court to order a permanent injunction restraining the Kabaka through his agents from threatening tenants with sanctions and deprivation of property; and, that the collection of 10% charge be stopped.

Uganda is a multi-cultural country with four major land tenure systems. These include the freehold, leasehold, communal/customary and mailo land tenures. The mailo land tenure system is common under regions where kingdoms existed. Under this tenure, like among the Baganda, the king is regarded as the custodian of his people’s land/property. Many land owners under the mailo tenure were issued with and also issued leasehold titles unlike freehold titles which were issued to owners of land under designated public land.

In 1993, the Act establishing legality of kingdoms and traditional institutions was passed and therein are listed properties returned to Buganda, which regained its full vigor then. Whereas many land owners within the kingdom that houses the country’s city purchased land from the central government’s Uganda Land Commission, few had knowledge of what lands had been returned to the kingdom. The landowners also acquired land titles, developed the properties and in the current real estate market, expect huge returns on sale of each decimal of land.

The ‘kingdom system’ in Uganda divided peoples along social class systems and status, the royals and the commoners. Among the commoners were the ‘landless’. It has been recorded that previous kings received and also gifted chunks of land to loyal subjects. Most of the lands gifted belonged to the lower class. History also tells the enthusiasts that the British Colonial government gifted most of other kingdoms’ lands to the loyal kings, chiefs, collaborators and sympathizers.

It is these and some other historic injustices that keep crawling back to haunt the present governments, especially the injustices committed by the colonial government and the loyal royals that gained at the expense of resistant royals and tribes.

Article 26 of the Constitution of Uganda provides for protection from deprivation of property. It gives every citizen the right to own property either individually or in association with others. The only exceptions granted under this provision are for: public use, interest of defence, public safety, public order, public morality or public health.

Article 27 also provides for the right to privacy of person, home and other property.

In case of compulsory possession, the law dictates that it must be done by an authority created by law and acting within the law. The acquisition must be made after prompt payment of adequate compensation and a right of access to court for any interested party to contest the compulsory acquisition be allowed.

NB: The minister for land tabled a proposal to acquire land for government’s development policies from citizens and discuss compensation in due process. This issue is stirring mixed reactions from legislators and the general public. The debate is yet to intensify but hopefully, both parties agree that articles 26 and 27 were established by sane legislators.

About Counsel Mabirizi’s application, a custodian is not an owner. If the applicant’s argument finds audience in court, this application could be the first of many suits for unjust enrichment. Articles 26 and 27 will perhaps be given a fair use in the corridors of justice.

Without proper opening of boundaries to establish which land is leasehold, public land or under the mailo tenure, land wrangles in the region are likely to escalate. Counsel Male Mabirizi’s application is the first voice for the thousands still living in this confusion.

This article was originally written for Bitala & Co. Advocates’ weekly law newsletter, The Deuteronomy

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