Decriminalize Land Conflicts to Enhance Access to Justice

Standard

The assurance that one’s land rights are protected lays a resilient footing for an orderly and prosperous society. However, the numerous mishandled and unresolved land conflicts pose an unprecedented threat to the relative social cohesion which most parts of Uganda are enjoying.

Throughout my experience in legal aid service provision, one of the factors that has complicated access to land justice in Uganda is the legally-created dual nature of land conflicts—attracting both civil and criminal liability—coupled with the symbiotic relationship between the two mutually-reinforcing but dissimilar bodies of law when it comes to land conflicts.

Criminal Offences Relating to Land

Section 92 of the Land Act creates four offences of criminal nature relating to land and they include; a non-citizen acquiring land in freehold using fraudulent means, making false declarations on matters relating to land, occupation of land without the consent of the owner, and soliciting money unlawfully by a member of any land administration structure.

The Penal Code Act, which establishes a code of criminal law in Uganda, creates a number of offences relating to land or that are commonly committed when there is a land dispute. These include Section 79 (Affray – fighting in public), Section 81 (Threatening Violence), Section 83 (Incitement to Violence), Sections 235 and 236 (Common Assault and Assault Occasioning Actual Bodily Harm), Section 302 (Criminal Trespass), Section 338 (Removing Boundary marks), Section 339 (Wilful Damage, etc. to Survey and Boundary Marks) among others.

Land Conflict

Property destroyed resulting from a land conflict. In most cases, Police will prefer criminal charges against perpetrators of such acts with offences. (Internet Photo)

The Uganda Police Force and Directorate of Public Prosecutions, pursuant to their mandate, have over zealously preferred these charges against the perpetrators and have many a time successfully prosecuted them in the courts of law. The Uganda Police Force even established a Land Protection Unit mandated to handle the criminal aspects of land conflicts.

Implications on Land Rights

In Uganda where about 80% of the land is held customarily with very little, if any documentation, prosecuting land grabbing becomes tricky since it is hard to easily prove ‘real’ ownership of the land. This creates room for the actual owners of the land to be prosecuted.

Secondly, criminal charges are in most cases symptoms of a bigger problem—land ownership—which is unfortunately disregarded by the criminal justice system in the country. For example, the offence of affray punishes fighting in a public place—plain and simple! It does not go deeper to establish why the parties fought. So a land matter, the root cause of the fight, is not investigated but the symptom (in this case the fight) carries the day. This is not surprising because the focus of criminal law is to punish offenders with the aim of reforming them. So once the suspect is arrested, charged, prosecuted and convicted or acquitted, the Police and DPP do the biblical–wash their hands–from that conflict. They have done their part! But at the same time, the land conflict remains untouched.

Because of this, some ‘connected’ and unscrupulous people have exploited this deficiency in the law to dispossess their opponents of their land. They connive (yes, in some cases they do!) with Police and are able to cause the malicious arrest of their opponents. Police Bond may even be denied. If they are further “unlucky”, the suspect is arraigned before court and immediately remanded in prison. Attempts to get bail may be foiled since the judicial officer handling the case may have had their hands “oiled” by the same connected opponent—elongating the detention further.

As the relatives of the detained person, who ordinarily would protect his/her interests in the land, get taken up trying to process the detainee’s release from custody, the  opponents immediately commence development on the disputed land or even process its registration. By the time the accused is released (that is if they are), a lot of water has crossed the bridge. So for a vulnerable/ignorant person, the case gets even more complex.

Lastly, the symbiotic relationship between civil and criminal law in land conflicts additionally complicates matters for vulnerable persons. To prove ownership of land, one ideally ought to go through the civil process for a declaratory order to that effect. This means that upon successful civil prosecution, then the criminal prosecution may commence for any offences committed. This has dire resource implications on especially the vulnerable in society since the civil process is lengthy, bureaucratic, costly and very technical in nature and thus for the indigent, access to land justice becomes nothing but a mere dream.

Recommendations

Land, especially that held customarily, should preferably be handled through mediation conducted by the traditional governance structures because they know the history of most land in their communities. However, the challenge with this is that the enforcement mechanisms are very weak since most of it is done by elders, clan members and now more commonly, civil society organizations. This is exacerbated by the fact that mediation largely depends on the willingness of the parties to ‘talk’. So, there is need for a deliberate strategy for judicial officers to supervise and support the mediation processes when land conflicts are filed. In 2013, the government passed the Judicature (Mediation) Rules No 14 of 2013, see http://judicature.go.ug/files/downloads/Judicature%20Mediation%20Rules%20S.I.%20No.%2010%20of%202013[2].pdf which command courts to refer ANY civil action for mediation before proceeding for trial. However, this also applies strictly where a case has been filed in court as a civil matter—a rare scenario with customarily held land!

It is also crucial to blend criminal and civil law when it comes to land matters.  The Police, in the execution of their tasks, should be guided by the customary land rights of the warring parties.

Police Land
A  Police Officer witnesses a disputed boundary demarcation in Nwoya District, Northern Uganda.

It would be better to concurrently investigate the criminal and civil aspects of a land case to mainly save the most vulnerable parties from pursuing two distinct but connected suits. To me, the mere fact that the Land Act (a civil law) creates some criminal offences as stated above, is a direct acknowledgement of the need for land cases to be handled wholesomely. Of course, this may have resource and other implications on government in terms of training the Police on land rights and related investigations but, through proper budgeting and prioritization, it is achievable.

Conclusion

Land conflicts, which are purely civil, usually manifest themselves in a criminal nature. My reading of various reports by different Legal Aid Service Providers shows that most of the cases they handle–both civil and criminal–emanate from land. Therefore the failure to strike a delicate balance between these two divergent legal outlooks, me thinks, is a recipe for disaster in this country. There is need for all stakeholders, especially the government, at all levels and in all sectors to prioritize land management and adminstration in Uganda instead of hiding its head in the proverbial sand. As the former Supreme Court Judge and a prominent legal scholar, Prof George Wilson Kanyeihamba warned; “One day, it will not be political disputes but grievances about land grabbing and the negligence of the public authorities’ failure to act that will politically rock Uganda.

I rest my case!

 

Wildlife Conservation Vs Land Rights in Karamoja: What is the Way Forward?

Standard

Introduction

In October, 2005, the Government of Uganda launched the “Gifted by Nature” Campaign to highlight Uganda’s positive qualities.  Besides the River Nile and other water bodies, the beautiful hills, etc., the other positive thing that this campaign highlighted was the country’s national parks—the home of various species of plants, birds and animals.

National Parks are an important source of revenue for government through tourism–highest foreign exchange earner for the “Pearl of Africa” as Sir Winston Churchill described the land-locked East African state many years ago.

However, for people living around these protected areas, conservation often translates into problems–loss of access to resources in the park, crop damage caused by wild animals, death etc. and these are sources of conflict between the National Park authorities and the people neighboring them.

Karamoja Experience

Any attempt at defining the land question in Karamoja will be incomplete  if it excludes the issue of wildlife in the region. For the near two years I worked in six out of the seven districts that constitute  this semi-arid part of Uganda located in the North Eastern region, this was (and still is) a recurring issue. In one meeting in Panyangara Sub-County, Kotido District, an irritated woman remarked thus, …wild animals should all be transported to Kidepo National Park because after all they do not use zebras or abtellopes for marrying us…

This line of thinking is less surprising because with 40.2% of Karamoja’s total land under  protection of Uganda Wildlife Authority (UWA), the Karamojong have all reasons to be at loggerheads with the statutory body. This is due to the desire for more pasture for grazing and land for crop farming, an alternative livelihood source which is slowly gaining ground in the hitherto largely animal-dependant communities. The sentiment in the community is that there seems to be more priority given to wild animals as opposed to them—the rights-holding citizens. The situation is excerbated by the previous violent clashes between the two parties during past eviction exercises by the government agency, some of which led to loss of human life and destruction of property.

The acrimony that has principally characterized the relationship between UWA and the community therefore creates a need to pursue an amicable solution that can not only end or at least mitigate the bad blood (literally) flowing from this animosity but also enable the parties to embrace the various opportunities that can be tapped from wildlife.  This answer lies in the legal framework governing the sector in the country.

From the onset, it is note worthy that the Constitution of Uganda (Art 377 (1) (a)) vests land in Uganda to citizens of Uganda. However, the same Constitution (Art 237 (2) (b)) creates a trusteeship over game reserves, national parks and any land to be be reserved for ecological and touristic purposes.

mark-jordahl-20-jpg

A vast chunk of land in Kidepo Park. Such land is a source of conflict between the government and communities around the park because in Karamoja, this land is ideal for animal grazing (Internet Photo)

This means that this land is vested in the government of Uganda to hold and manage on behalf and for the benefit of the people of Uganda. Consequently, Parliament enacted the Uganda Wildlife Authority Act, Cap 200 (hereinafter the Act) which creates the Uganda Wildlife Authority (Sec 4) (hereinafter the Authority) and provides for its functions  as well which principally includes management of wildlife

However,  the Act creates a window for the community to participate in wildlife management. There is a provision for pursuing the development, implementation and monitoring of collaborative arrangements for the management of wildlife under Sec 5 (e). It also roots for the establishment of policies and procedures for the sustainable utilization of wildlife by and for the benefit of the communities living in proximity to wildlife. The Act also, under Sec 14(1) empowers the Executive Director of UWA to enter into any suitable collaborative arrangements with any person for the management of any protected area or a portion of it.

From these legal provisions, it is clear that Collaborative Management between UWA and the communities is an option that can be pursued to solve this issue. The idea behind collaborative management is to regulate and control the use of land by people living within wildlife areas for conservation purposes and peaceful co-existence.

Kidepo_Valley_National_Park_025

Wild animals at Kidepo Valley National Park, one of the largest in Uganda found in Karenga Sub-County, Dodoth County, Kaabong District in Northern Karamoja. (Internet Photo)

The arrangement should inter alia aim at furthering  reconcilliation between UWA and the communities in the spirit of shared decision making with respect to wildlife, enhance the role of the communities in wildlife management, establish a mechanism to facilitate positive working relations between the parties and provide a framework within which natural resources and access to wildlife management areas will be regulated.

As an implemetation strategy, the arrangement should provide for the constitution of District Wildlife Committes (Sec 12) to facilitate community-UWA discussions on any issues that may arise. It should also provide for the identification and development of training and employment opportunities in the area of wildlife conservation. Most importantly, it must have an elaborate clause on consultation which clearly spells out how the two parties can engage in the decision making process in all matters related to wildlife.

Suffice to note is the fact that Karamoja is not the only part of Uganda where wildlife is present. How are other regions in Uganda handling this issue? I will share two examples;

Kibale National Park is a tropical rainforest in western Uganda located at the foot of the Rwenzori Mountains. It is conserved largely for its biodiversity including its rare chimpanzee and forest elephant populations.

The second one is Mt Elgon, in eastern Uganda on the border with Kenya, is the fifth highest mountain in Africa (4,321 m) and is conserved partly for its afro-alpine ecology and its rare endemic species, but also for its valuable forests and its water catchment functions.

Very rich agricultural lands surround both Parks and by necessary implication, they host a high number of people from the neighboring communities.  In Kibale, the population ranges from 96-133 persons/km2 and from 120-700 in Mt Elgon. These communities depend on the parks for herbs, fruits, wild game, cultivation etc. There is a strong nexus between their welfare and these parks—a relationship built since time immemorial.

So, when the government in the 1990s set out to restore the national parks, “war” was an expected consequence. In fact during the subsequent evictions, there was loss of property—crops and dwellings, and even some lives.

But to save the bad situation, a number of strategies were laid down. However, for purposes of this post, I will focus on one i.e. Use of collaborative resource management arrangements to allow the communities to jointly manage selected wildlife resources. The notion, as earlier on stated is that the benefits, responsibilities and decision-making powers are shared, to a varying extent and context by the stakeholders.

In both Parks, a number of formal Agreements were entered into. In Kibale, the agreements included those on harvesting wild coffee, establishment of bee hives, access to Lake Mburo for fishing and extraction of papyrus, medicinal plants etc.  In Mt Elgon, the agreements signed focused on access to firewood, herbs, among others.

Old Woman

An elderly woman collects firewood from Mt Elgon National Park (Photo: Sean White)

I have argued before that land conflicts are primarily fights for resources on the land. In the two cases, by regulating how the communities can access the much-need resources for their survival in return for them (communities) also protecting the resources in protected areas, conflict has been averted, or at least their consequences mitigated. One may say that Karamoja is a pastoralist community and such initiatives are out-of-context. Well, there is a good example in Masaai Mara where similar projects have been implemented, successfully at that.

Besides the peaceful co-existence, the economic benefits that accrue from wildlife also directly spill over to the communities hence improving on their livelihoods. This in terms expanded grazing areas, access to herbs, shrines, water points, fruits, gum arabic and other resources that are found in protected areas. In Karamoja for example, I was informed by an Officer from UWA that one of the hills that falls in a protected area is the best place in the whole country for Ostrich farming. But until now, such initiative has never been explored because the stakeholders are spending more time whining and fighting each other yet this could generate income for the local people.

Conclusion

Collaborative management is therefore  one of the  best ways of resolving the conflicts that arise from conservation because it is pro-people, even-handed, cost effective and tries to strike a delicate balance between the competing interests—conservation and land rights.

It provides the much needed middle ground in this gridlock that has eluded some parts of Uganda like Karamoja. A lot of sensitization needs to be done to the local authorities and communities to help them come out of this problem that has endured for decades.

Land Tenure Mystery: A Threat to EAC Integration. Uganda and Tanzania Juxtaposed

Standard

Throughout Sub-Saharan Africa, land is a fundamental issue for economic development, food security and poverty reduction. Land tenure is the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land. It is governed by rules which define access, use, control and transfer of land.

Land tenure is very crucial for development. One of the lessons learned from a recent research on land tenure was that; “The countries that have invested in the technical and institutional infrastructure required for efficient and equitable land tenure administration, and that have been in the forefront of ensuring property rights for both men and women, have developed much faster with a much higher level of food security, health and welfare.” This statement shows how instrumental land tenure is in development.

There is no express International framework on land tenure. According to Thilo Marauhn, this “…is less surprising if one takes into account that, as a matter of customary International Law, States enjoy sovereignty over natural resources within their territory, which obviously includes the land within their boarders.”

At the continental level, land tenure is portrayed as either customary or statutory. The former is largely unwritten and based norms and practices of the given country or society. The latter is documented and founded on written laws and is usually vested in government agencies.

In the East African context, Partner States have dissimilar land policies and laws, and land management systems designed by traditional and colonial systems at independence. This is tricky because “…Without a harmonised system, is difficult to operate,”

Uganda and Tanzania Compared

In Uganda, all land belongs to the people and shall vest in them according to the land tenure systems provided for in this Constitution. Article 237 (3) thereof and Section 2 of the Land Act, Cap 227 provide for the different tenure systems in Uganda.
In Tanzania, the Constitution is silent on the issue of land. However, Section 3 (1) (b) of the Land Act, 1998 declares all land to be public land vested in the President as a trustee on behalf of all citizens. The land is categorized as general land, village land and reserved land.
A quick glance at the legal positions on land tenure in the two countries of East Africa clearly portrays discrepancies in the manner in which land is held.

The EAC Context

Objective 1 of the Community is to develop policies and programs aimed at widening and deepening cooperation among Partner States in political, economic and social fields. The rationale behind the strategies of achieving these Objective as stated in Article 5 (3) (a, b,e and f) inter alia appears to be the need to harmoniously improve the standard of living of people in member states, protect the environment, promote peace and security in the region. Under Article 6 of the Treaty, some of the Fundamental Principles of the Community include; peaceful co-existence and good friendliness, good governance which entails the promotion of human rights (land rights inclusive) and equitable distribution of benefits. Chapter 17 of the Treaty provides for free movement of persons and labour.

The East African Common Market Protocol states that the “Partner States agree that access to and use of land and premises shall be governed by the national policies and laws of the Partner States.” To me, this can only offer a short-term and a face value solution to this looming threat because it falls short of fitting into the wider context of integration and completely disregards the harsh reality that land is central to all the stages of integration.

EAC Photo

Presidents Yoweri Museveni (Uganda), Paul Kagame (Rwanda), Jakaya Kikwete (Tanzania), Mwai Kibaki (Kenya) and Pierre Nkurunziza (Burundi) at the 11th Ordinary Summit of Heads of State during which the EAC Presidents signed the Common Market Protocol (20 November 2009)

Land is a complex issue across all sub-Saharan Africa. In fact, as negotiations for the EAC Federation gather steam, citizens within the bloc remain worried for their land. According to a report, “concerns were raised about differences in land tenure systems of partner states and loss of land due to free movement and rights of establishment within the EAC partner states.”

The different positions in Uganda and Tanzania coupled with “silence” of the EAC laws on this area therefore raise a concern as to whether the member States are committed to advancing the stated Objectives and Principles of the Treaty.
Land tenure determines who can use what resources for how long, and under what conditions.
The Objectives and Principles of the East African Community are geared towards peaceful co-existence and improvement of the standard of life. Resources being one of the sources of conflict world over, it is thus crucial to analyse the preparedness of member States to avert such potential conflicts which relate to land—a crucial resource for economic development worldwide.

To wrap it up, a good land tenure system should be uniform. I opine that for the East Africa Community to advance especially in the economic sphere, then the member states, in compliance with the Treaty, must establish a land tenure system that cuts across the region. This will boost investment and increase agricultural production. It will also ascertain the land rights of the various stakeholders hence minimizing conflicts. It is the harmonious development and peaceful co-existence which accrue from a uniform land tenure system that will result in economic development and unity and subsequently lay a strong foundation for a sustainable Political Federation.