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Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the Batwathe Batwa in 2000. 94 Even then, not all evicted Batwa got part of this land, since a total of only326 acres was bought. The farmers who destroyed the forest lands in the 1930s to establishfarms received recognition of their ‘land rights’, and many of them received compensation. 95The Land Acquisition Act requires involvement in the acquisition process of the communitylikely to be affected by compulsory acquisition. No such forum has been provided to the Batwato organise and present their objections. Their interests have not been considered, despite theexpress and instructive provision calling for compensation of the deprived interest throughcompulsory acquisition.The Government’s actions through its agents have thus contravened the Constitution and theLand Acquisition Act and have been prejudicial to the Batwa. Fortunately, Article 26 (2) (b) (ii)provides for the right of access to a court of law by any person who has an interest in or right toproperty. This gives the Batwa a forum for redress. The Batwa, however, have lacked thecapacity or legal representation to access the courts to claim their rights.4.1.1.5 The Land Act 1998 96The Act was intended to implement the provisions under the 1995 Constitution.Land tenure systems and the BatwaFollowing the Constitution, section 2 of the Land Act recognises three land tenure systems andprovides for their incidents (rights accruing to a particular tenure system). However, thenotions underlying the freehold, mailo and leasehold tenure systems leave the Batwa in aprecarious situation. First, the pre-requisite of owning land under the freehold and mailotenures is registration, and the presupposition here is individual land ownership, a practice nottraditional to the Batwa, whose tenure on land has always been customary. After their evictionand without evidence of title, the Batwa can only be squatters on the land owned by othersunder any of the above tenure systems.Customary tenure – section 3 (1) of the Act – is governed and regulated by a group’s customaryrules and norms. In essence, customary law regulates the use of such land which is mainlycommunal, based on clans, with individual usufruct rights over some specific parcels of theland. The Act provides that such customary land is owned in perpetuity. The Batwacommunally held their land, governed by their customary law. Lewis puts it succinctly: ‘ManyBatwa communities conceive of their rights over land in terms of collective rights, often clanrights rather than individual title. This is especially true of forest dwelling Batwa.’ 97Following Article 237 (4) (a) of the Constitution, Section 4 (1) of the Land Act provides that:‘Any person, families or community holding land under customary tenure on former public94 Penninah and Kenrick (2002), pp 1–2.95 Lewis (2000), p 20. The author notes that some Batwa were turned away because the compensation fund hadbeen used up by payments to non-Batwa affected parties.96 At the time of writing, the Land Act had been amended twice, in 2002 and 2004. There was yet anothercontroversial Land Amendment Bill in 2008, which was shelved owing to lack of consensus on its contentfrom various sections of the public.97 Lewis (2000), p 17.Nakayi 20January 2009
Historical and contemporary land laws and their impact on indigenous peoples’ land rights in Uganda:The case of the Batwaland, may acquire a certificate of customary Ownership in respect of that land …’ 98 UnderSection 8 (1) of the Land Act, this certificate is deemed to be conclusive evidence of thecustomary rights and interest endorsed on the certificate. This provision cannot help theBatwa, however, since they no longer hold their customary land, and the committees that aresupposed to issue the certificates of customary ownership under the Act have never been put inplace.4.1.1.6 The right to participate in environmental decision-making and naturalresources management: shutting out the Batwa?The public’s right to participate in decision-making is central to good governance and theprotection of human rights. In executing its role of protecting the environment and naturalresources, the government of Uganda has flouted this principle.The National Environment Management Policy of 1995 was drawn up to carry out theobligation to conserve and promote the rational use of natural resources. 99 The policy includesthe statement that the participation of the people in managing resources is intended not onlyto enlist their support but also to influence change in behaviour and attitudes and act as anincentive to use resources sustainably. Section 3 (2) (b) of the Statute provides for its guidingprinciple to encourage maximum participation by the people of Uganda in the development ofpolicies, plans and processes for the management of the environment.Candidates for local environmental committees are drawn from the Parish Local CouncilCommittees, but the Batwa are left out and thus are not represented. 100 Apparently, Ugandangovernment officials cite low education and literacy levels as the obstacles to the Batwa’sparticipation. 101Those whose livelihood is affected directly by natural resources should be involved throughoutthe development process and not just as and when it suits bureaucrats and policy makers, ashas been the case in the Batwa’s land struggle. 102 Mike Dombeck notes that most ‘resourceissues today are less dependent on technical matters than they are on social and economicfactors.’ 103 Gazetting without public participation is the process that has prevailed in Uganda.4.1.2 Land administration, control and dispute resolution mechanisms: do theyaccommodate the Batwa’s land rights?Following the Land Act 1998, the Uganda Land Commission manages all natural resources andreserved lands vested in the Central government. Section 56 – following Article 240 (1) of the98 Former public land means land previously administered under the Public Lands Act of 1969, prior to the LandReform Decree of 1975.99 National Environment Management Policy for Uganda 1995, chapters 2–3.100 FPP, UOBDU and CARE (2008), p 7.101 Ibid., p 8.102 Mwebaza (2006), p 12.103 Michael Dombeck, Former Chief of the USDA –The Forest Service (1997–2001), athttp://74.125.95.132/search?q=cache:SojjquyfYYJ:www.fs.fed.us/aboutus/history/chiefs/dombeck.shtml+Mike+Dombeck+resource+issues+economic+social+factors&cd=1&hl=en&ct=clnk&gl=us . Accessed on 19 April 2009.Nakayi 21January 2009
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