By Denis Bugaya
The New Vision of 29/09/2021 published an opinion article by the state Minister for lands Sam Mayanja in which he stated that the assumption that Kabaka can own public land is irregular. The Minister’s opinion seems to be a result of dismal failure to appreciate basic principles that govern land registration and land rights.
First, we need to understand what amounts to public land under the current legal regime. Public land in Uganda is land under the jurisdiction of public bodies – Uganda Land Commission and District Land Boards. The mandate of these bodies is well enshrined under Article 239 and Article 241 of the Constitution of Uganda.
Under the law, Uganda Land Commission is responsible for managing land vested in the Government of Uganda. Therefore, all land registered in the names of the Kabaka of Buganda (distinct from His Majesty Ronald Muwenda Mutebi II as a person) is Buganda kingdom land and it is not public land. However, the Minister seems to be either under the stress of the republican hangover or he cannot read the current laws and understand them.
The other notable error in the Minister’s argument is that he is only quoting the Public Land Ordinance of 1962 and the 1967 Constitution, both of which are obsolete and can’t be quoted amongst laws that govern this country anymore. Conveniently, the Minister does not quote the relevant laws that govern land as of today.
First, the Traditional Rulers (Restitution of Assets and Properties) Act cap 247 restored properties of all Traditional rulers in Uganda, not only for the Traditional Ruler of Buganda as he wants people to believe. Secondly, the law restored these properties to the Traditional Rulers as institutions and not in their private capacities.
This therefore means that the person of the traditional ruler is distinct from the office of the traditional ruler. This is an important element that the Minister has failed to understand. The Institution of the Traditional Ruler is a Corporation Sole under Article 246 of the Constitution with rights to sue, be sued, hold property in whichever capacity and also to have the rights that accrue from holding property.
This distinction has been well drawn by the High Court of Uganda in the case of Private Sector Development And Consultancy Center Limited v Omukama of Tooro HCT-01-CV-CA-002 OF 2015 where the issue of the legal personality of the leader of a Cultural institution was exhaustively discussed by Justice Oyuko Anthony Ojok. In this case, the learned judge stated that “The traditional leader is in nature a corporation sole which refers to a legal personality and in this case a King. The Traditional Leaders’ Act makes it clear that Kings are legal personnel for their Kingdoms in which kingdoms in their own capacity lack legal capacity. That is why in Buganda, the Kabaka of Buganda gives powers of Attorney to the land board, the Katikkiro, etc, to act on his behalf. Perhaps to make this understandable, we need to borrow a definition of a corporation sole as it has been defined in Osbon’s concise law dictionary as ‘a Corporation consisting of a certain office e.g Bishop which continues as a legal entity regardless of human holder of that office.”
Therefore, the legal capacity of the Kabaka of Buganda is a settled matter as far as the laws of the land are concerned such as Constitution, the Traditional Rulers (Restitution of Assets and Properties) Act, The Institution of Traditional or Cultural Leader’s Act 2011 and even the opinions of the Solicitor General about the same matter.
This therefore means that whatever the Minister thinks is just mere opinion that has no place under the laws governing Uganda.
Once the properties are vested in the Kabaka of Buganda as the registered proprietor, then all the legal rights that accrue to a registered proprietor flow naturally/automatically. These rights include the right to issue subsidiary rights such as leases and licenses. Even the right to determine who helps the registered proprietors to administer their estates is a preserve of the registered proprietor.
Therefore, if the Kabaka of Buganda chose to establish a legal entity called Buganda Land Board to administer the Kingdom estate, then the Minister cannot come around and allege that he will legislate upon who manages the Kabaka’s Estate on Kabaka’s behalf as this would amount to overreach on the running of the internal affairs of the Kingdom. This is so because Kabaka’s land or Buganda Kingdom land is not part of the Public Land as it has been argued.
Similarly, if such an approach is to be adopted, it would mean that every registered proprietor of every piece of land including the church, the Muslim faith and individuals would await Mr. Mayanja’s guidance on how they should run their estates. This would definitely be a precursor for derogation of rights as enshrined in Article 26 of the Constitution of Uganda and various international conventions.
Besides, if we start unnecessary interferences in proprietary rights, then even the levels of investments in the economy go down.
The author is the Public Relations Officer of Buganda Land Board.