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Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the BatwaII Pre-colonial era: survival of the fittest or land rights for all?2.1 The pre-colonial era and communal land ownershipPre-colonial Uganda was inhabited by a number of tribes who mostly belonged to four mainethnic language groups. The different ethnic groups had their own traditions and culturalnorms relating to land, but they had one feature in common: land was communally held undercustomary land tenure. Radical title to land was always vested in the community as a corporateentity rather than in the political organs through which control of the territory or the resourceswas exercised. 44Present-day Uganda:The northern Nilotic groups occupy theareas around Gulu and Lira, Nilo-Hamites around Moroto and Soroti,Sudanic groups around Arua, and theBantu around Masaka and Jinja. TheBatwa areas are in the south west, tothe south of Lake Edward, and onlybecame part of Uganda in 1912.Map source: Central Intelligence AgencyBeyond its political significance, land is regarded by these tribes not merely as a factor ofproduction but first and foremost as the medium that defines and binds together social andspiritual relations within and across generations. Issues about ownership and control aretherefore as much about the structure of social and cultural relations as they are about accessto material livelihoods, and this may explain why the debate on land revolves round thedynamics of lineages and cultural communities. 45Given the above, there is no doubt that control over land and its resources not only constitutedsovereignty over the very spirituality of society but also placed land at the centre of the strugglefor identity and survival. It is clear from these land-use and management patterns that landand livelihoods were closely intertwined; and this relationship determined whether a44 Akinyi (2006), p 212.45 Ibid., p 213.Nakayi 8January 2009
Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the Batwacommunity farmed, tended livestock, fished, hunted, or pursued a combination of these. 46Land also served an important social function in connecting people with their spirits. 47 Theland was communally owned and available to anyone, who was expected, in turn, to use it withcare and to protect it from being grabbed by strangers.In the pre-colonial era, the Batwa held their forest land communally. Each clan within theBatwa collectively owned an area of the forest. Although free movement from one area toanother was common, different clans always stayed in their own clan area. 48 The communitywas more important than the individual. The forest lands they occupied provided all theyneeded to survive as a community, from food to sacred places. Despite living in differentsettlements, the Batwa have strong social relations and recognise themselves as a community.They share close attachments to certain areas, with concomitant social formations that appearto derive directly from the ancient past. 49 They still practise social norms and customsnormally associated with clanship similar to other tribes in east and central Africa. The conceptof individualisation of land rights was and remains undesirable to the Batwa. 50Such was the arrangement of land relations on the eve of colonisation. The colonialists decidednot to maintain such systems and the rights to land inherent in them. They disregarded themand established a system alien to Ugandan communities.An important criticism influencing the decision of the colonialists was the mistakenassumption that land held commonly is prone to irresponsible use by the members of thecommunity holding it. This explains the biases in later colonial policies and legislation relatingto customary tenure, policies that had a direct impact on the Batwa’s land rights.46 Kenya Human Rights Commission (2000), p 1.47 The forests contained sacred sites, where the Batwa worshipped. They were mountains or streams where theBatwa felt connected to their gods.48 Lewis (2000), p 9.49 Tumushabe and Musiime (2006), p 7.50 Ibid., p 17.Nakayi 9January 2009
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