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This Chapter endeavors to answer the question as to which parties can actually take action in the courts of law to enforce land rights. It also seeks to explain what grants one the power to take such legal action. Lastly, the chapter highlights and explains the many challenges that some groups of people are likely to experience in their quest to enforce their land rights.
It is important to note that one can lawfully have rights in land. These are also regarded as interests in land and they include aspects like ownership, occupancy, leasehold, tenancies, mortgages, easements and other kinds of interests. An owner or occupier of land is entitled to enjoyment of these rights. Therefore when such rights are infringed upon, the owner or the occupier of the land can take legal action.
Before one can attempt or endeavor to take legal action to enforce a right, he/she is required to first prove that he/she is entitled to that right and that the right in question was infringed upon. This is in technical terms referred to as locus*. Such person needs to have a sufficient close connection with the land in question for him or her to say that their right or interest in the land has been infringed. Such connection should not just be emotional but should have a legal basis. For instance for one to claim an interest in land, they should prove that they are lawfully either owners or occupants of the land. If by law such person is neither an occupant nor an owner of the land, chances are that their legal action will not be successful. The main question therefore becomes; who can sue and under what circumstances will that suit be successful?
As regards the question at hand, only a person with locus or a close legal connection to the land in question can take legal action to enforce rights in a land matter. The following are therefore the groups of people that can lawfully take legal action to enforce a land right:*****
Generally, the law states that all land in Uganda shall be in the hands in the citizens of Uganda. This therefore grants land rights to all Ugandans and it is upon this that one can own or legally occupy land in Uganda. Additionally, an owner or occupier of land in Uganda has the power to use that land in any manner. However such land use should be within the confines of the law. Therefore, whereas one has power to use his land, such land use should not infringe on other people’s rights in the process. On infringing on another land user’s land rights, the latter has power to go to court to enforce his rights.
Additionally, it is worth noting that land grabbing in Uganda is a common problem especially where the rich in society plus investors try to fraudulently and forcefully acquire other people’s land. Such forceful and fraudulent acquisition of land can be deemed to be a form of infringement on one’s land rights. In case land is acquired in such a manner, the owner or occupant can claim infringement of his/her land rights. Such occupier/owner can therefore seek legal remedies from court due to that infringement. For instance if John owns one acre of customary land in Luwero district, he can go to court to seek legal remedy in case Singh, an investor claims the land with no genuine legal basis.
The law governing ownership and occupancy of land puts in place customary tenure as one of the land tenure systems through which land in Uganda can be owned and managed. Additionally, this tenure system puts in place communal ownership of land whereby land is jointly owned by a particular community. Such practice of communal ownership of land is common across all parts of Uganda especially Teso sub-region and Karamoja.
Under communal ownership of land, every member of the community is deemed to have interests in that particular land. It is upon this basis that such community members can jointly farm, graze and do any other such activity on the land. Therefore in case of any land rights infringement, where land is communally owned or where the community has an interest in land, such community can take legal action to enforce such right. This can be done through the communal land association.
As previously stated, one can only enforce a land right if such person in actual sense possesses such right. Therefore since NGOs and other groups can own land, they too are empowered to enforce such land rights.
Additionally, it should be noted that some organisations are formed with the primary purpose of protecting the environment. In case an individual or group of individuals encroach on the environment, such body can take legal action against the encroacher. An example of such organizations is the National Environmental Management Authority (NEMA) which is charged with the duty to protect the environment. It can take legal action against anyone who encroaches on the environment.
Therefore, whereas it is usually individuals or groups of individuals with the ability to take legal action to enforce land rights, an organization charged with the duty to enforce other people’s land rights or to protect the environment can also take such legal action.
Generally, every person is presumed to have the capacity to enforce his/her land rights. This however is not always the case. Certain groups that are marginalized in society find it difficult to assert their rights and in particular their land rights. These groups include the following;
Women:
All persons are by law generally deemed equal in Uganda. The law also demands full respect and equal dignity to all women in society. Therefore one can confidently say that both men and women in Uganda have equal rights including land rights.
However, whereas the law states that there should be freedom from discrimination, women are still discriminated against by the opposite sex in Uganda. In the average Ugandan society men usually have a birth right to land while women are deemed not to have such birth right. For instance in a traditional Ugandan family with 8 boys and 1 girl child, when it comes to inheritance of land, there is a high likelihood of the girl not getting any land which is against the law.
Therefore several women find difficulty in enforcing their land rights since according to custom, the issue of patriarchy* does not permit them to hold property.
Forest people:
Forest peoples are groups of people who prefer to live in forests and mountainous undeveloped areas. Forest peoples in Uganda include groups like the Batwa in Western Uganda whose land rights have been infringed upon by the Ugandan government which set up game parks and forest reserves where these people lived. Therefore, they were left landless with no option but to resort to doing petty jobs and begging.
These people are illiterate and discriminated against hence they find it difficult to institute a legal action
Mobile communities.
There are several mobile communities in Uganda and these, just like many across the world find difficulty in enforcing their land rights. The Karamojong, for instance, who depend on nomadic pastoralism for survival face several difficulties in enforcing land rights as seen when they were pushed away from their land into other areas to clear way for gold mining. There was no compensation done.