Decriminalize Land Conflicts to Enhance Access to Justice

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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!

 

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