Historical <strong>and</strong> contemporary l<strong>and</strong> laws <strong>and</strong> their impact on indigenous peoples’ l<strong>and</strong> rights in Ug<strong>and</strong>a:The case of the BatwaFrom the onset of British rule, all communities could remain in possession of the l<strong>and</strong> theyoccupied only if they proved ‘cultivation <strong>and</strong> regular use’. The phrase ‘regular use’ is unlikley toinclude hunting <strong>and</strong> gathering, since cultivators had to be settled in one place for their l<strong>and</strong> tobe recognised as ‘cultivated <strong>and</strong>/or regularly used’ <strong>and</strong> therefore possibly owned.3.1.2 The 1900 Bug<strong>and</strong>a Agreement: the new regime of l<strong>and</strong> rightsThrough the 1900 Bug<strong>and</strong>a Agreement, the British aimed to entrench the agricultural economyby alienating l<strong>and</strong> <strong>and</strong> creating individual ownership tenure. 59 This system replaced customaryl<strong>and</strong> tenure <strong>and</strong> created security of tenure for individuals rather than communities, posing athreat to communal l<strong>and</strong> rights holders. It had the effect of redistributing l<strong>and</strong> <strong>and</strong>extinguishing existing rights to l<strong>and</strong> of a number of communities in Ug<strong>and</strong>a. Forests werevested in Britain’s Ug<strong>and</strong>a Administration, 60 <strong>and</strong> the agreement reiterated <strong>and</strong> entrenched theearlier concepts of ‘waste <strong>and</strong> uncultivated l<strong>and</strong>s’ which was also vested in the Ug<strong>and</strong>aAdministration. The rest of the l<strong>and</strong> in Ug<strong>and</strong>a was declared Crown l<strong>and</strong>. All personsoccupying such l<strong>and</strong>s were now customary tenants of Her Majesty’s Government representedby the Ug<strong>and</strong>a Administration. A l<strong>and</strong>holding system akin to the British system of tenures <strong>and</strong>estates was ushered into the legal regime in Ug<strong>and</strong>a. 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 <strong>and</strong> does not necessarily fit within the Englishconcepts of ‘tenure’ <strong>and</strong> ‘estates’. 62In other jurisdictions colonised by the British, such as Papua New Guinea, recognition ofcustomary l<strong>and</strong> rights was the general rule rather than the exception. 63 In East Africancountries, the reverse was true. 64 The allocation of l<strong>and</strong> under the 1900 Bug<strong>and</strong>a agreement isseen as vesting forest l<strong>and</strong> under the control of the Ug<strong>and</strong>a administration. However, BritishColonial Constitutional Law held, in effect, that rights to l<strong>and</strong>s in ceded territories were notaffected by a change in sovereignty <strong>and</strong> persisted until such time as the legislator acted to bringabout a change in the system. Arguably, this provision in the 1900 Bug<strong>and</strong>a Agreement did notaffect the status quo of the Batwa’s claim to their l<strong>and</strong> since they were not part of Ug<strong>and</strong>a 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 l<strong>and</strong>s forpublic purposes. The Privy Council upheld the appellant’s claim to compensation on the basisthat he had a mere right of control <strong>and</strong> management of the l<strong>and</strong> rather than ownership. Thisdecision could be celebrated as st<strong>and</strong>ard-setting on the claims to compensation for loss of l<strong>and</strong>rights to new governments of British colonies. Today, if this rule was replicated in Ug<strong>and</strong>a forthe benefit of the Batwa, the chances are high that it would deliver them justice.59 Morris <strong>and</strong> Read (1966), p 20.60 Article 21 of the agreement provided that throughout the agreement the phrase ‘Ug<strong>and</strong>a Administration’shall be taken to mean the general government of the Ug<strong>and</strong>a 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% ofl<strong>and</strong> 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 <strong>and</strong> contemporary l<strong>and</strong> laws <strong>and</strong> their impact on indigenous peoples’ l<strong>and</strong> rights in Ug<strong>and</strong>a:The case of the Batwa3.1.3 The 1900 Toro <strong>and</strong> 1901 Ankole Agreements: l<strong>and</strong> rights as dispensableprivileges?After the agreement with Bug<strong>and</strong>a, agreements were signed with the other centralisedkingdoms of Toro in 1900 <strong>and</strong> Ankole in 1901. As before, all ‘waste l<strong>and</strong>’, forests <strong>and</strong> mineralsbecome the property of Her Majesty’s Government. What were formally rights over l<strong>and</strong> werereduced to ‘privileges of accessing’, say, forest l<strong>and</strong>s for forest products. In both agreements theforests were taken over by the British.While the above groups that comprise Ug<strong>and</strong>a entered into treaties of cession with the British,the Batwa made no such treaties <strong>and</strong> 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 <strong>and</strong> otherrights to the British.3.1.4 Colonial administration of justice <strong>and</strong> sensitivity to indigenous peoples’rightsIn order to create redress mechanisms, in 1902 the Order in Council (OIC) vestedadministrative power <strong>and</strong> all right in Crown l<strong>and</strong>s in the Commissioner, <strong>and</strong> created a courtthat had jurisdiction over all persons <strong>and</strong> upon all issues in the Protectorate. 66 The OIC had a‘guidance’ clause that safeguarded native law <strong>and</strong> custom. It provided that:In all cases, civil <strong>and</strong> criminal, to which natives are parties, every court shall … be guidedby native law so far as it is applicable <strong>and</strong> is not repugnant to justice <strong>and</strong> 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 l<strong>and</strong> in particular, there seems to benothing in Batwa native law (in their unwritten culture <strong>and</strong> 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 l<strong>and</strong> rights. Moreover, the Supreme Court ofBelize in the Maya case says that extinguishment of rights or interests in l<strong>and</strong> is not to belightly inferred, but there must be clear <strong>and</strong> plain legislative intent <strong>and</strong> 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 <strong>and</strong> Echuya forests by the colonial government to create conservation zones.66 Morris <strong>and</strong> Read (1966), p 19. For details about the Order in Council, see Laws of Ug<strong>and</strong>a, Vol. VI, ‘Ug<strong>and</strong>aOrder in Council, 1902’.67 The three representatives were from Bug<strong>and</strong>a, the Eastern Province, <strong>and</strong> the Western Province.68 Morris <strong>and</strong> Read (1966), pp 25–27.Nakayi 13January 2009