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Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the Batwaprotections due to indigenous peoples in International Law. The Batwa are not accorded theseprotections. In fact, the Constitution defines indigenous communities in Uganda in a way thatmakes every community in Uganda indigenous. Wiessener argues that it is imperative todelimit what exactly constitutes an ‘indigenous people’. 90 Now that there seems to be no suchdelimitation in the Constitution, the Batwa, who are in reality more indigenous than othergroups, are not given the special protection they deserve.Article 32 provides that ‘the State shall take affirmative action in favour of groups marginalisedon the basis of gender, age, disability or any other reason created by history, tradition orcustom, for the purpose of redressing imbalances which exist against them.’ This provision isbroad based, not conclusive or exhaustive. It follows that the Batwa can be read into theprovision as marginalised, and therefore entitled to affirmative action. Of course the best wayforward would be their recognition as indigenous people. Indeed, the Batwa define themselvesas indigenous and are recognised (including in language) by others as the first inhabitants, aconcept that the Constitution does not address. The Batwa certainly are marginalised andentitled to the protections afforded by the Constitution, and Batwa rights to lands andresources should be recognised in a manner that is broadly consistent with the internationalnorms pertaining to indigenous peoples.Parliament is enjoined to make relevant laws to give full effect to clause (1) of the Article 32. Allin all, despite the existence of some general provisions in the Constitution, the Batwa remainmarginalised and discriminated against with no access to land resources. The politics ofnumbers operates against them. They have not yet sought recourse in relation to the abovementionedconstitutional provisions, nor have they sought to invoke persuasive aboriginal titlejurisprudence norms in the court system.4.1.1.2 Vesting land in the citizens: land rights for all?Article 237 of the Constitution vests land in the citizens of Uganda to be held in accordancewith customary, freehold, mailo and leasehold land tenure systems. With the exception ofleasehold, all the other systems had been abolished by the 1975 Land Reform Decree, and werereinstated by the 1995 Constitution.The Article explicitly states that ‘land in Uganda belongs to the citizens of Uganda’; the claim toownership, however, must be on the basis of one of the tenure systems mentioned above. Thisreplaces the earlier draconian paradigm of the state owning all land as public land. Had it notbeen for the 1947 and 1952 legislations that extinguished their customary ownership rights, theBatwa would be in a better position to assert them under the 1995 Constitution.The framers of the Constitution placed great importance on the protection of customary landowners. According to Article 237 (4), all Ugandan citizens owning land under customary tenuremay acquire a certificate of ownership of their land, and land under customary tenure may beconverted to freehold landownership by registration. Clearly this ought to have afforded theBatwa protection against eviction as customary tenants. However, the Batwa had customarilyowned land that is of special interest to the government – forest land. This leads to a conflictbetween the Constitution and other environmental laws that prohibit habitation in forests. The90 Wiessener (1999), p 3.Nakayi 18January 2009
Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the BatwaConstitution, as the supreme law of the land, should prevail in this matter, and lead to theconclusion that the Batwa were illegally evicted from their forests.4.1.1.3 Compulsory acquisition of land and its effect on the Batwa’s land rightsArticle 26 91 of the 1995 Constitution of Uganda provides for the right to own property eitherindividually or in association with others, but elsewhere the Constitution envisagescircumstances under which the government may want to take over private land compulsorilyfor various reasons. The provisions for compulsory acquisition of land by the government havebeen cited as justification for the government’s deprivation of indigenous peoples such as theBatwa of their ancestral land. However, this requires a formal procedure, which involves all thestakeholders: that is, the government and the people who own or occupy the land that thegovernment seeks compulsorily to acquire.The National Forestry Authority, uses Article 26 (2) (a) of the Constitution to justify theeviction of the Batwa by asserting that the forests are needed for public use, in the name ofenvironmental safety and public health. Contrary to the well-established, internationallyacknowledged norms of Constitutional interpretation, however, the government is not readingArticle 26 (2) (a) as a whole, and uses ‘partial provisions’ of the Constitution to justify andcover up some of its actions that violate human rights. The same Article states that thecompulsory taking possession or acquisition of property has to be made under a law whichmakes provision ‘for prompt payment of fair and adequate compensation, prior to the taking oracquisition of the property’. In the absence of this, the eviction of the Batwa (although initiatedlong before the Constitution was promulgated) is unconstitutional. The Benet case discussedlater in this paper sets a precedent on this matter.4.1.1.4 The Land Acquisition Act 2000 92Article 237 (2) (a) of the Constitution provides that the Government or local government may,subject to Article 26 of the Constitution, acquire land in the public interest. To make thisArticle operational, the Land Acquisition Act states that any compulsory acquisition that doesnot abide by the law is null and void. The law requires that the Minister must declare whichland is to be purchased compulsorily for a public purpose, and, if a plan of the land has beenmade, declare a place and time at which the plan may be inspected. 93 The Minister must causea copy of every declaration to be served on the registered proprietor of the land or on thecontrolling authority and on the occupier. The notice must be served to persons having aninterest in the land, and the assessment officer decides whether and how much compensationmust be paid.The Batwa were evicted by government agencies without prompt payment of fair and adequatecompensation, without due process, and in violation of the provisions of the National Park Lawthat safeguarded occupancy rights. The Mgahinga and Bwindi Impenetrable ForestConservation Trust (MBIFCT) started buying parcels of land as some sort of compensation for91 The provision is a replica of Article 13 of the 1967 Constitution of the Republic of Uganda.92 Laws of Uganda, Cap 226. The Act is, with a few amendments, a replica of the Land Acquisition Act 1965,which commenced on 2 July that year – three years after independence – as Act 14 of 1965.93 Land Acquisition Act 2000, Section 3 (2).Nakayi 19January 2009
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