His Lordship Kazibwe is out of step on Kabaka land

By Sam Mayanja

To Justice Kazibwe there is something called Kabaka land.

The Judge in his Mubende High Court Ruling as reported in the New Vision of 17th September 2024, the judge noted that the suit land originally belonged to Buganda Kingdom by virtue of the 1900 Agreement and therefore returned to the Kabaka under the Traditional Rulers (Restitution of Assets and Properties) Act 1993, and was incorporated into the return of assets to Buganda Kingdom by clause 1(b) of the August 1st , 2013 agreement which came into effect immediately it was executed between the President and the Head of the Buganda Cultural Institution.

The judge omitted analysing, the 1900 agreement, the 1908 Land Law, the 1919 official estates ordinance within the proprietary claims of Kabaka within the context of the Restitution Act of 1993 and Articles 246 and 274 (1) of the constitution.

The Kabaka under the agreement was no different from other chiefs.

The administration of these Official Estates was under the Official Estate Ordinance of 1919 and defined in section 2 as “any estate held by virtue of any office whether under the provisions of the Uganda Agreement, 1900, the Toro Agreement, 1900 of the Ankole Agreement, 1901, or
otherwise”.

The chiefs under section 3 held the official estate in the capacity a corporate sole by the name of the office.

After the successful revolution of 1966 which was accorded judicial notice in the case of Ex-parte Matovu, all chieftain positions ceased to be administrative units in Uganda and federal units gave way to Districts which became the successors in title of federal units and chieftain administration units therein.

The saza land and “every official estate held by a corporation sole by virtue of the provisions of the Official Estates Act” were under Article 108 (5) (a) vested into the Uganda Land Commission.

The Public Land Act of 1969 which operationalized the above 1967 constitutional order, provided for the vesting, control and management of public land so vested and prescribed in section 1 that such land was to continue to be “so vested for the same estate or interest and to the same extent as they were previously vested”.

So the estate vested continued to be public land now under Uganda Land Commission.

The Traditional Rulers (Restitution of Assets and Properties) Act prescribed in section 2 (2) that “a traditional ruler to whom any asset or property is transferred under this section shall, in the case of land, have the same estate or interest as was previously held by the Uganda Land
Commission in respect of that land”.

Clearly the interest and estate continued to be public land.

The 1995 constitution decentralised land administration from Uganda Land Commission to District Land Boards by virtue of Article 240 and 241.

Accordingly, the public land previously under chieftain 1919 Official Estate chieftainship is now under the management of District Land Boards. The successors in title of those chieftaincies are Districts.

The Traditional Rulers (Restitution of Assets and Properties) Act did not take away the Public Land but had to have a structure in place to administer that land in “same estate or interest as was previously held by the Uganda Land Commission”, and not to be held by a private person, he be human or juridical.

Moreover the Kingdom of Buganda as defined in Article 2 (1) and (2) of the 1962 with its constitution annexure 1 is very different from the Traditional Ruler defined in Article 246 (1) (3) (a) (b) and 6 of the current 1995 constitution.

The memorandum of Understanding between the President and the Kabaka of Buganda, which Justice Kazibwe referred to require the MOU to be governed by the laws of Uganda. Article 2 (1) stipulates that the constitution “is the supreme law of Uganda”.

That constitution requires in Article 274 (1) that the operation of any law like the 1993 Traditional Ruler (Restitution of Assets and Properties) Act must be “construed with such modifications, adaptations, qualifications and exceptions as maybe necessary to bring it into conformity with this constitution”.

Accordingly the Act is not yet in a legally existing legislation.

The other important clause in the MOU was that the President shall appoint a committee to oversee the implementation.

That appointment can only be made after the Act has been amended to bring it in conformity with the constitution. So in either way the Restitution of (Assets and Properties) Act is currently of no legal consequence.

The same legal and historical sequences as given herein above applies to all public land currently claimed and illegally being managed by the Baganda cultural institution by whatever name called.

The narrative include the Crown Lands Ordinance of 1903, 1962 Public Land Ordinance, 1962 constitution Article 118 (1) (a), (b) and 4, the 1966 constitution Article 113 (1) (2) and (3), the 1967 constitution Article 108 (4) (5) which, are all by deductive logic show that the successor in title of public land in Buganda under current constitutional dispensation are Districts.

Dr. Sam Mayanja
Minister of State for Lands
Smayanja@kaa.co.ug