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Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the BatwaFrom the onset of British rule, all communities could remain in possession of the land theyoccupied only if they proved ‘cultivation and regular use’. The phrase ‘regular use’ is unlikley toinclude hunting and gathering, since cultivators had to be settled in one place for their land tobe recognised as ‘cultivated and/or regularly used’ and therefore possibly owned.3.1.2 The 1900 Buganda Agreement: the new regime of land rightsThrough the 1900 Buganda Agreement, the British aimed to entrench the agricultural economyby alienating land and creating individual ownership tenure. 59 This system replaced customaryland tenure and created security of tenure for individuals rather than communities, posing athreat to communal land rights holders. It had the effect of redistributing land andextinguishing existing rights to land of a number of communities in Uganda. Forests werevested in Britain’s Uganda Administration, 60 and the agreement reiterated and entrenched theearlier concepts of ‘waste and uncultivated lands’ which was also vested in the UgandaAdministration. The rest of the land in Uganda was declared Crown land. All personsoccupying such lands were now customary tenants of Her Majesty’s Government representedby the Uganda Administration. A landholding system akin to the British system of tenures andestates was ushered into the legal regime in Uganda. 61 However, their Lordships in the Nigeriancase of Amodu Tijan vs The Secretary, Southern Nigeria admit that in most parts of the BritishEmpire, native title is conceptually unique and does not necessarily fit within the Englishconcepts of ‘tenure’ and ‘estates’. 62In other jurisdictions colonised by the British, such as Papua New Guinea, recognition ofcustomary land rights was the general rule rather than the exception. 63 In East Africancountries, the reverse was true. 64 The allocation of land under the 1900 Buganda agreement isseen as vesting forest land under the control of the Uganda administration. However, BritishColonial Constitutional Law held, in effect, that rights to lands in ceded territories were notaffected by a change in sovereignty and persisted until such time as the legislator acted to bringabout a change in the system. Arguably, this provision in the 1900 Buganda Agreement did notaffect the status quo of the Batwa’s claim to their land since they were not part of Uganda until1912. The case cited above of Amodu Tijan vs The Secretary, Southern Nigeria 65 offers apersuasive precedent. In this case, the Government of the Colony acquired certain lands forpublic purposes. The Privy Council upheld the appellant’s claim to compensation on the basisthat he had a mere right of control and management of the land rather than ownership. Thisdecision could be celebrated as standard-setting on the claims to compensation for loss of landrights to new governments of British colonies. Today, if this rule was replicated in Uganda forthe benefit of the Batwa, the chances are high that it would deliver them justice.59 Morris and Read (1966), p 20.60 Article 21 of the agreement provided that throughout the agreement the phrase ‘Uganda Administration’shall be taken to mean the general government of the Uganda Protectorate.61 See Milsom (1976), p 39.62 UK Government, 2 Appeal Cases 399, Privy Council decision of 11 July 1921.63 Mugambwa (2007), p 40. Note that successive governments maintained the status quo ante. To date, 97% ofland in Papua New Guinea is held under customary tenure.64 Ibid.65 UK Government, 2 Appeal Cases 399, Privy Council decision of 11 July 1921.Nakayi 12January 2009
Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the Batwa3.1.3 The 1900 Toro and 1901 Ankole Agreements: land rights as dispensableprivileges?After the agreement with Buganda, agreements were signed with the other centralisedkingdoms of Toro in 1900 and Ankole in 1901. As before, all ‘waste land’, forests and mineralsbecome the property of Her Majesty’s Government. What were formally rights over land werereduced to ‘privileges of accessing’, say, forest lands for forest products. In both agreements theforests were taken over by the British.While the above groups that comprise Uganda entered into treaties of cession with the British,the Batwa made no such treaties and the cessions did not apply to them. The Batwa have theunique position of being one of the few known groups that did not cede ownership and otherrights to the British.3.1.4 Colonial administration of justice and sensitivity to indigenous peoples’rightsIn order to create redress mechanisms, in 1902 the Order in Council (OIC) vestedadministrative power and all right in Crown lands in the Commissioner, and created a courtthat had jurisdiction over all persons and upon all issues in the Protectorate. 66 The OIC had a‘guidance’ clause that safeguarded native law and custom. It provided that:In all cases, civil and criminal, to which natives are parties, every court shall … be guidedby native law so far as it is applicable and is not repugnant to justice and morality orinconsistent with any Order in Council …The introduction of the ‘repugnance’ clause by the British was used to test which rules of nativelaw would be reserved. In relation to Batwa rights to land in particular, there seems to benothing in Batwa native law (in their unwritten culture and customs) that is inconsistent orrepugnant to the OIC to warrant erosion or extinction as a custom. In this case the OIC doesnot extinguish such laws governing the Batwa’s land rights. Moreover, the Supreme Court ofBelize in the Maya case says that extinguishment of rights or interests in land is not to belightly inferred, but there must be clear and plain legislative intent and action to that effect.3.1.5 Sowing seeds of exclusionary politics: relegating the BatwaDecisions concerning particular policies were reached unilaterally with minimal or noparticipation or influence by the natives. It was not until 1945 that three Africans wereappointed to the Legislative Council. 67 In 1950, due to increased agitation, Africanrepresentation was increased to eight. 68 During the period that Africans were not represented,laws such as that of 1930 gazetting Mgahinga Forest as a gorilla sanctuary were passed. Undersuch laws, the Batwa were – in written law, if not in actual practice – evicted from Bwindi,Mgahinga and Echuya forests by the colonial government to create conservation zones.66 Morris and Read (1966), p 19. For details about the Order in Council, see Laws of Uganda, Vol. VI, ‘UgandaOrder in Council, 1902’.67 The three representatives were from Buganda, the Eastern Province, and the Western Province.68 Morris and Read (1966), pp 25–27.Nakayi 13January 2009
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