Uganda: Tragedy of the commons

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Nov 30th, 2012
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The lawyer Caesar Achellam says he should benefit from Uganda’s amnesty law

From victims of Lord’s Resistance Army conflict to lictims of Land conflicts

Otim Denis Barnabas

INTRODUCTION

Oral narratives and empirical documentation indicate that there are increasing land disputes in post conflict northern Uganda. These disputes range between families, clans, to district levels. This has not been coincidental, but rather a continuum and a product of historical legacy that continues to shape development discourses in northern Uganda. There is a strong nexus between land disputes and the Lord’s Resistance Army (LRA) conflict and consequential displacement of the people in northern Uganda in to internally displaced peoples camp, return and resettlement. Though, the LRA war presents a good start point for analysis, pre-colonial land administration and post independence era are also key in diagnosing land disputes in northern Uganda. This makes the poor more vulnerable and as the most affected and vulnerable victims of land conflicts and its changing dynamics. Yet the quest for development still play at large, the lingering question is which development model best suit post conflict environment.

THE IMPORTANCE OF LAND TENURE

Since the end of the Lord’s Resistance Army (LRA) conflict in 2008, land related disputes have increasingly become common in Uganda, but with huge prevalence’s in northern Uganda. This has been due to increasing shifts to meet the increasing demand for food production, investment needs, as well as the need to engage in commercialized agriculture with improved technological advancement-that requires massive land for operationalisation of such projects.

For long, post independent Uganda has been described as food basket in the great lakes region, but disadvantage to exploit the agricultural comparative advantage. Relaying to endogenous growth model, it is lamented that poor countries fail to achieve higher rates of growth because they fail to generate or use new technological ideas to reap greater economic opportunities (Edward, B.; Thomas, H. Dixon, 1999). This is true of northern Uganda, and yet the drive to employ technology to increase productivity has come with increased demand for huge chunks of land. Given the importance and value attached to land, land disputes and conflicts have become inevitable in northern Uganda. Individuals have taken up initiatives to privatize and develop land, something which cannot be undertaken communally due to the complexity and dynamics involved in land rights, management, usage and access.

Not only to the rural poor, land is known and understood as the most valuable asset, where the majority of the population largely derives their income and survival from tilting the land. A study conducted by Jaap et.al (2012), indicates that about 80 per cent of the population in Uganda still live in rural setting as they derive their income directly from land. Implying that any deprivation of such categories of individuals their land rights would lead to a tragedy and dispossession, and in fact decimation in food production and hunger resulting into a circle of disenfranchisement and continued poverty.

Understanding land related disputes in post conflict northern Uganda requires a proper understanding of how land is used, accessed and managed. Land use directly relates to tenure and tenure in Uganda geographically varies, thus making land disputes unique. In the north clan heritage and customs have and still determine land ownerships and transfers from one generation to another. While acknowledging this diversity, it has become a key source of controversies and conflicts. Land in Northern Uganda is very essential to rural and urban livelihoods, but most importantly to the rural individuals who are barely able to meet their basic and daily needs except through cultivating land. In other words, land as a resource is a key determinant of social, political and economic relationships between individuals and the state.

COLONIALISM AND LAND REFORM IN UGANDA

Available narratives and analysis of African history indicates that customary or communal law of tenure was a creation of the colonial administrators and African leaders by the then situation. Rather, the making of customary was a transformation of the previous modes of land access, use and tenure (Berry, 2002; & Spear, 2003). Under the colonial administration, the multiple claims over land were customary and this translated into the formation of what became known as customary law. Likely, the long standing historical perception on communal land ownership is deeply enshrined in the cultural preconditioning of the communities in Africa (Pauline, 2009).

Land related developments in Uganda are traced far back to 1902 when the British Crown and colonial administration passed the first laws to govern Uganda. This law – the Order in Council described the principles of governance premised on common law and principles of equity. The law also permitted the continued application of African customary law so long as it was not repugnant to morality and natural justice. As such, during colonialism land in Acholi sub –region was held according to customary land practices, which still exist up to date though with a lot of challenges. To other proponents, they believe that it is this form of ownership and practice that is responsible for the increasing land disputes in the region. This is discussed later in the paper.

From 1960s to 1980s land reforms in Africa were premised on grounds that there were no necessitated security to ensure improved and increasing agricultural productivity and security of tenure. The lack of security was seen to be a factor of lack of property rights, and thus the appropriate task taken was to ensure that the state promote and provides for such rights. Inefficient land use is wide spread in developing countries and lack of land ownership is one major cause of poverty in prominently agricultural economy and it should be recognized that land reform may be beneficial in the fight against poverty (Ravallion & Sen, 1994).

Debates about land reform in Uganda are not new. In 1955, the East African Royal Commission Report (EARC) highlighted two features about the evolution of customary land tenure: the role of customary land tenure in a subsistence economy, and the social relationship entailed by such an economy. The report criticized the communal nature of customary land tenure, denying that individuals had the rights and commitments to develop such lands. Lastly, the report recommended the individualization of land ownership and the availability of land transfers, but cautioned reforming customary tenure (Mugambwa, 2005). In 1969, the Public Land Act [Cap 21] improved the legal status of customary land tenure and ownership. Under the act, the government was prohibited from granting freehold and leasehold on any public land that was lawfully occupied under customary tenure without prior consent from the customary occupants.

During Idi Amin’s regime in 1975 through a land reform decree, all land became public, including leases and freehold—lease became sub lease; and freehold became sub lease. The Decree cancelled the protection customary landowners had enjoyed under the Public Land Act of 1969.

In 1995, the Constitution gave Ugandan citizens the right to own land, allowing Ugandans to settle anywhere if due procedures were followed. Accordingly, the customary land tenure system was elevated to the level of freehold tenure; which to certain extent, guaranteed land security. The Constitution privileged customary landowners giving them stronger land rights and security as compared to individuals holding land as freehold. The constitution acknowledged that land belongs to the people who possess it according to customary law. This in other words and for those who knew of the provision it meant an increased sense of tenure security (Deninger, Klaus; Ayalew, Daniel; and Yamano, Takash, 2006). The only downside for customary land ownership, as outlined by the Constitution, was that customary land was easily contestable and lacked legal documentation; whereas leasehold and freehold tenure were defined by discrete boundaries and adequate legal documentation such as certificates of ownership.

LAND TENURE, DEVELPOMENT AND POVERTY REDUCTION

Contemporary debates have been whether land reforms can engineer sustainable growth in developing countries or help reduce poverty. In essence, this implied the importance of land reform as critical in human capital development. Unfortunately, this shift in paradigm has not been easy to implement due to conflict between individualizing land ownership and communal ownership (collectivism) – in places where customs still preside over land management such as in post conflict northern Uganda.

According to social capital theory (collectivism) as popularized by James Coleman (1988), it is stated that tenure based on custom is the most effective way to ensure tenure security. Collectivism also known as communitarians, further argue that tenure insecurity is a result of state led policies, which ignore traditional values and individualized property rights which marginalized rather than empower. For instance, the Poverty Eradication Action Plan (PEAP) was introduced by the government of Uganda in 1998 as a national framework for recovery and development. PEAP established the pillars for economic growth through private sector-led development, improvement of business environment, and global competitiveness. The complex nature of these programs did not however take into consideration due processes involved in land acquisition (Denis, 2012).

Accordingly, this reason is counterproductive and lacks the pristine African culture of equitable land tenure (Amanor, 2001). According to Katz (2000), the existence of social capital advances defined property rights and enshrined respect for customary law and viable local institutions. Based on sustained interaction amongst resource users it can over time enforce respect for private property and regulate exploitation of common property resources. Implying that the form of tenure or customary practice of land ownership does not necessarily devour development, rather it is the commitment to use the land resources effectively to realise desired productivity that can result into increased earnings and poverty reduction.

However, neo classical economist and proponents of individualized land ownership differ to communitarians. These theorists have conflicting ideas, but yet relevant to inform the current understanding associated not only with land ownership and tenure, but also land as a property. Individualism connotes that it should be possible for property rights to be privately appropriated and sold (Balibar, 2002). This relates to the principality of capitalism that dates back to the era that common lands were fenced off to become private lands. The proponents of individualism argue that unless there is individual ownership of land –and property rights, communities would have little incentives to develop land, or little interest to ensure that land is used sustainably.

Accordingly, this view presents that communal property rights are inefficient, because not having any private or individual interest in a resource, people are likely to become irresponsible and act in ways that injure the common good or what economist refer to as a ‘tragedy of the common’. The first Acholi District Commissioner, J. R. P. Postlethwaite, wrote that individual land tenure and cotton growing would create ‘a more stable society’ and promote ‘the intellectual, moral and economic progress of the people’. However, this was interest driven by the British – the British perceived that this would enable the Acholi to earn money to pay taxes and money to purchase the imported European consumer goods increasing penetrating the colonial economy (Postlethwaite, 1947 In: Ronald, R. Atkinson, 2010).

Up to date there has been a registered mixture of tenure systems in Acholi, with the most being customary tenure, which of late has become an issue of discontent and conflict point. The failure to strike a win-win agreement between the locals of Amuru and the Madhva Group of companies over land usage can best explain this contentious argument as emphasized by Ms Abia Bako, Woman Member of Parliament Arua District ‘If the Madhvani Group indeed wants to invest in northern Uganda, why doesn’t the group accept lease conditions? The company wants to produce sugar, the raw material is sugarcane, and people of the north are willing to grow and supply his factory while retaining their land ownership, why is this unacceptable?’ (2012) This presents a strong critique of individualizing land, on grounds that it has the potentials of disempowering the right to access, use and ownership of land in Amuru district.

Crucial cause of insecure land rights is the nature of traditional land ownership, particularly its communal nature and lack of documented information (De Soto, 2000). These are also impediments to local and national developments-because land as a property cannot be traded or used as collateral for credits. Advocates of individual property rights argue that individual title rights can be used to access credit through which the poor can escape from poverty. In essence individual property rights make land tenure secure, valuable, tradable and credible. Though this is feasible and the right way to, to many disenfranchised locals in northern Uganda are not able to afford the cost involved in individualizing land use, access and ownership, due to the complexity of the tenure system which does not allow individual rights and ownership over customary land.

TENURE SECURITY AND LAND DISPUTES IN NORTHERN UGANDA

Land tenure refers to the systems of institutions or rules of land ownership, use, and management, obligations, responsibilities and constraints on how land is owned and used. It is commonly said to be ‘secure’ if it assures owners that their rights will be free from expropriation, encroachment or forced eviction (food and agricultural organization, 2002). Tenure security – in other words the perceived risks of evictions such as in Lakang and Apaa have affected the degree of confidence that land users will not be arbitrarily deprived to enjoy their land and expected economic benefits that should accrue out it (Cornes, 2011).

In other words, insecurity about land titles and rights can easily affect business climate (Jaap, et.al, 2012). Similarly, this has been true in Lakang and Apaa villages of Amuru district where the locals have resisted large scale investment that would deprive and shift land ownerships from the customary owners to individuals (Denis, 2012). At the communal level, tenure security have been enforced by local land administration structures, and conflicts arising at this levels can easily be managed and resolved, but this has been contrary to disputes involving the locals and investments companies grabbing land of bigger parcels. For instance, the Amida Investment Company together with some US –Texas based company is alleged to have fenced 3000 hectares of land in Purongo Sub –County – Nwoya District, and also the Madhvani Group of Companies is said to have dubiously together with some money minters, politicians and local government officials of Amuru acquired 40,000 hectares of land in Lakang for sugarcane plantation (Denis, 2012; Denis, .et.al, 2012). All these conflicts involving Amida Investment Company and Amuru Sugarworks – Madhvani Group of Companies still largely remain unresolved due to the complexity involved.

OWNERSHIP, DECENTRALISATION, DISTRICTISATION, RESETTLEMENT

Various causation factors account for increasing land conflicts in northern Uganda at large. The land conflicts have manifested in various forms to include land grabbing. While land scarcity and alienation of customary land has led to land disputes at the micro – level; the tensions around such local and intra community land conflicts have been manageable in Northern Uganda through various local structures. The unresolved disputes have been with cases involving massive/huge accusation of land for investments purpose without following due process (Denis, Ina & Emily, 2012). The issue of land is complex in post conflict situations (Chris. H, 2010) unfortunately, they are not attended to unless they turn violent. The dynamics of land conflicts in Northern Uganda is linked to the historical legacy of the Lord’s Resistance Army (LRA) rebellion and the consequential displacement, return and resettlement and population settlement, weak land administration and governance, politics and investment, mineral wealth and curses, creation of new districts and individual greed to mention but a few.

OWNERSHIP QUESTION

Ownership over land remains a key sustainable conflict factor due to dispute and misunderstanding of rightful owners. The land dispute between the Madhvani Group of Companies and the locals of Lakang purely remains unresolved due to disputed land ownership (Denis, 2012). A World Bank Report (2009) indicated that land disputes in post conflict northern Uganda occurred majorly on land which were left unoccupied during the LRA war. On return these land had a dispute prevalence rate of 65 per cent. This was complicated by the increasing value of land. Upon return and resettlement, various individuals moved to individualise land which were previously customarily owned. During the eve of return, the overall disputes were communal boundary related disputes comprising of about 23 per cent prevalence. In Acholi sub –region it is still confirmed that – absence from land especially for a long period of time is one of the contributory factors of land dispute, a leading cause that accounted for 28 per cent. However, with time this has changed with individualization, capitalism, investment and mineral resources being pointed at as key conflict triggers.

DECENTRALISATION AND DISTRICTISATION

Decentralisation and creation of new districts – is rather what can be known as districtisation. The creation new districts have been due to the need to create effective institutions to manage natural resources in Uganda through what became popularly known as decentralization under Museveni’s leadership. The term decentralization can capture varying phenomena including political actors, stakeholders and multilateral institutions all believing in decentralization as a solution to problems particularly in post conflict settings (Markus, B, 2011). Through decentralization it was realised that local governance would become effective – this was a new development paradigm that empowered community participation and development. With decentralization came decentralized land administration structures and creation of new districts. Which of date are characterised by numerous challenges to include few human and financial resources?

The creation of new districts have resulted into boundary disputes – it has also weakened land administration and in theory made them irrelevant to handle post conflict land disputes due to inadequate funding, human resource capacity and weak institutions (World Bank, 2009). Decentralisation has come with a rapid increase in the creation of new districts in Uganda. In 1986 when the National Resistance Movement (NRM) took power, Uganda had 33 districts which increased to 81 districts by 2008. The districts increased to 112 by 2011 and as of July 2012, the Government announced the creation of 25 more new districts in guise that this would promote effective administration and improves on the quality of service delivery (John, Odyek; Mary, Karugaba; & Moses, Walubiri, 2012). This claim has been disputed by a number of economist and political analysts.

The creation of new districts has regional divergence, in that, in the north the steady and speedy creation of new and more districts have been responsible for creating land related disputes. It has become a true fact that the more districts you create the more land conflict you witness. A case in point has been the disintegration of Kilak and Nwoya County from Gulu district to form Amuru and Nwoya district respectively. The newly created districts of Agago and Abim are entangled in boundary dispute. In fact, the newly created districts have become distinctively conflict hot spots because of unclear boundary and boundary maps, secretive resource exploitation without informing the locals, and land grabbing. The new districts are rivaling over boarders and boundary demarcation with the mother districts, a case in point is Lamwo where all the Sub Counties have land related disputes, with the highest number of cases in Paluga Sub County (Denis, 2012).

POST CONFLICT RESETTLEMENT AND LAND DISPUTES

Since the nineteen century, population settlement has attributed to development and productive capacity of northern Uganda. In his book, Ronald R. Atkinson stated that the Acholi were perceived to have little to contribute to the development of the colonial economy partly due the physical remoteness and sparse population (2010). To enhance easier monitoring and administration, the British forced the people in the North to move near roads built throughout the district (Ronald, 2010). At this point in time land was vast and land disputes were minimal. Similar argument of sparse population, lack of tenancy and occupation is being advanced to deny locals in northern Uganda their customary land rights.

Some proponents have continuously reflected to the alleged “protected camps” that were coerced on the Acholi people by President Museveni’s government during the violent LRA conflict as a move which was intended to grab land and deny the Acholi population their land rights. Consequential displacement into Internally Displaced Camps affected tenure security that existed before pre- displacement. Tenure insecurity increased with delay in achieving peace, as individuals became insecure and uncertain about their land rights, a lot of suspicion emerged. A number of individuals from Acholi and Lango sub – region perceived that the Government, the army and rich individuals had interest in their land and could use any mean to claim ownership. These threats were and still remain prominent in Acholi sub –region. For instance, 23 per cent of respondents in a study conducted by World Bank expressed uncertainty on Government’s intentions in introducing both systematic demarcation and land titling (World Bank, 2009).

CONCLUSION

Land disputes in post conflict northern Uganda is real. Unfortunately, the severity of these disputes is not recognized unless the conflicts turn violent. Land related dispute in post conflict Uganda, per-say is unique and more so the process and systems involved in responding to land disputes have been weakened by the LRA war. I would rather say the problem is not in the people, but in the paradigm of land administration, acquisition and property rights. Present problems are a problem of current paradigm that has failed to balance the local needs and investment interest. Implying that there is a great need to figure out how best the current paradigms should work in order to abate the increasing land disputes. Though each system is vulnerable to abuses it should not be the case with post conflict environment to avoid reversion to conflicts. To say shifting conflict styles and the way it is manifested. Rather, there should not be any quick fix approaches to resolving land disputes or acquiring huge chunks of land for investment purposes without due process. It is commendable that, development partners and those in need of land for investment follow suit due or rightful approaches in pursuit of their goals. A win – win approach would be best situated in winning the minds and the hearts of the locals in any land dealings.

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Otim Denis Barnabas is a Project Officer with Refugee Law Project, School of Law – Makerere University

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