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The types of remedies one may be able to seek have been discussed in the previous chapter. However, it should be noted that for one to be able to successfully get the remedies they are seeking, they ought to have a claim or right related to the land therefore this Chapter seeks to discuss the sources of those claims or rights.
Sources of rights For one to enjoy the benefits from land, such a person is required to have some form of interests in the land. Generally, land rights depend on the sort of interest one has with the land in question. Land rights can for instance depend on land tenure, the form of land acquisition, the laws of the area where the land is located and how that person relates with the land in question.
For one to understand another person’s rights, one has to understand key players in land transactions. The key players include; land, the beneficiaries of that land, and the law. Land rights are thus created when these three interact.
The Constitution puts in place the right to protection from deprivation of property. Every person has a right to own property either individually or in association with others. Land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems provided for by the Constitution
Land rights can generally be divided into the following categories
Land rights are generally acquired through purchase, occupation, inheritance or grant from government. Acquiring land rights through purchase means buying the land from someone.
Land rights can also be acquired through occupation. This is in a way that the law puts in place bona fide occupancy as one of the ways through which one can acquire an interest in land. A bona fide occupant is one who has occupied and utilized land unchallenged by the registered owner of the land for 12 years or more before the coming into force of the Constitution. A bona fide occupant cannot be arbitrarily evicted from the land in question as he/she is protected by the law. Therefore bona fide occupancy is one of the ways through which one can acquire an interest in land.
Inheritance is one of the ways through which interest in land can be acquired. This is in a way that upon inheritance of land, the person who inherits the land in question acquires the same rights or interests of the previous owner or occupier.
As regards tenure rights, it is worth noting that the sort of rights depend on the tenure system governing the land in question. Under leasehold tenure for example, a lessee does not own land as such but has rights under the lease agreement for a stipulated period of time. These rights usually include the right to occupy and use the land for a period usually determined and on expiry of that period the lessee loses such rights and gives up the land to the original owner known as the lessor.
There are two kinds of rights under this and they include the rights of the occupant of the land as well as the owner of the land. This brings about the issue of lawful and bona fide occupant of land. A lawful occupant of land is one who entered the land with the consent of the registered owner and this includes a purchaser. A bona fide occupant on the other hand is one who has occupied and utilized land unchallenged by the registered owner of the land for 12 years or more before the coming into force of the Constitution. For instance if Mary has occupied Joseph’s land from 1983 to 1995 (12 years) without Joseph challenging Mary’s occupation or showing any interest in the land, Mary can claim to be a bona fide occupant. It should be noted that both the lawful and bona fide occupants have rights over the land.
It is worth noting that generally land rights can either be regarded as occupation rights or ownership rights. However there are rights that are neither occupation nor ownership rights. An example of this is usage/enjoyment rights. Usage rights are those that entitle one to carry out certain activities on the land in question without any sort of disturbance from other parties. Usage rights enable to carry out activities like grazing, gathering of firewood or obtain water from the land even though one is actually not an owner of the land. An easement which basically allows one the right of passage can also be regarded as a usage or enjoyment right since one is allowed to pass through land which he/she does not own.
This is in reference to how rights arise and vary from one community to another. In Acholi for instance elders, by practice manage community land and determine in case the owner wants to sell, who to sell to. This is the case in majority of communities where land is communally owned.
Access and Passage
Access to one’s land is very key as owning or occupying land would be useless if one could not access it easily. There are instances however where an owner or occupier of land cannot access that land without going through another person’s land. In such case an easement is required to enable such person access his/her land. An easement is a right to cross or otherwise use someone’s land in order to access an adjacent piece of land. Therefore a land owner or occupier can have an interest in land through an easement.
Customary law is the established pattern of behaviour that can be objectively verified within a particular social setting. It exists where a certain legal practice is observed and the relevant actors consider it to be law. Customary law remains a relevant law in adjudicating land matters in Uganda. The High Court and Magistrates’ Courts can apply customary law so long as it is not repugnant to natural justice. A number of communities also apply customary law while settling land disputes. For example among the Acholi community in Northern Uganda, customary law is used in the structures that handle land disputes for example Rwodi Kweri (Chief of the hoe) that handles land disputes at village level, the Rwodi Moo (Council of Chiefs) to mediate land disputes at clan level and the Ker Kwaro P’Acholi at the regional level which is headed by the Paramount Chief.
These are the domestic laws and the main source of land rights in Uganda is the Constitution which is the Supreme Law of the land. Other applicable laws include the Land Act 1998 and all its Amendments in 2004 and 2010, the Land Act provides for tenure, ownership and management of land. The Registration of Titles Act that provides for the transfer of land and registration of titles. The Physical Planning Act the Forests Act, the Mining Act, the national Environment management Act, the Condominiums and other Properties Act, among others.
International law is the set of rules generally regarded and accepted as binding in relations between states. International Conventions that provide for land rights include; The Convention on Elimination of all forms of Discrimination Against Women (CEDAW), the International Covenant on Economic Social and Economic Rights (ICESCR), the Declaration on the Rights of the Indigenous Peoples, among others.
The African Charter on Human and Peoples Rights and The Protocol to the African Charter on the Rights of Women commonly known as The Maputo Protocol.
Soft law does not have any legally binding force but can be persuasive. These include the Universal Declaration on Human Rights, General Comment No 7 of 1997 (United Nations Guidelines on Forced Evictions), General Comment No 4 of 1991 (Right to Adequate Housing), Convention 169 on Indigenous and Tribal peoples, Uganda National Land Policy of 2013.
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