Customary Land Tenure System
The Customary Land Tenure System is an arrangement under which land is owned by Indigenous communities and administered in line with their customs and norms. This system is opposed to statutory tenure brought up during the colonial periods.
Customary Land Tenure applies to a specific land areas and are governed by customary laws. Land under this tenure system is communally or jointly owned by particular groups of people. Land use under this tenure is commonly controlled by elders, clan heads or a group in its own well-defined administrative structure and authority. In Uganda, this land tenure is found in the north, south and western Uganda.
Over 60% 0f land in Uganda is held on customary tenure system. In this case, people own their land, have their rights to it, but most of the times don’t have land titles. Some tenants on such land allocate specific areas to themselves with known and defined boundaries usually marked by ridges, trenches, trees and provisional mark stones.
In Uganda, Customary tenure embodies the main part of landholdings that is between 70% & 80% of the land in the country. There is a sizable collection of customary tenure structures among Uganda’s more than 60 indigenous clusters, that is, from powerfully distinctive tenure configurations to exceedingly communal structures. Customary systems also differ in how members acquire, use, manage and transfer land.
The Uganda Land Act identifies the fact that customary land occupancy conveys legitimate rights minus documented evidence and offers what is known as a “Certificate of Customary Ownership.” In the laws of Uganda, customary tenure is defined as “A system of land tenure regulated by customary rules which are limited in their operation to a particular description or class of persons.”
In Uganda, there are diverse systems in which customary land tenure occurs in various parts. In some areas, customary land is owned communally, in some parts; the land belongs to a certain clan whereas in other sections, it is held by individual persons.
Similarly, the rules of customary arrangement as well differ in various areas of Uganda. The 1998 Land Act states that the customary land tenure shall be governed by rules largely acknowledged as obligatory by a given community and anybody that attains land in that community shall be legally bound by the same rules. With customary tenure, attaining of a private certificate of title is probable for individuals, whereby they modestly have to agree with the community in charge of that land (clan or tribal heads).
Certificate of customary ownership.
Any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land in accordance with this Act.
A certificate for customary ownership shall be in the prescribed form and shall be issued by the board.
An application for a certificate of customary ownership shall be in the prescribed form and shall be submitted, together with the prescribed fee, to the committee of the parish in which the land the subject of the application is situated.
5. Functions of committee on application for certificate of customary
(1) On receipt of an application for a certificate of customary
ownership, the committee shall—
determine, verify and mark the boundaries of all interests in the land which is the subject of the application;
demarcate rights of way and other easements over the land the subject of the application and any adjacent land which benefit or burden or are reputed to benefit or burden any such land or which it considers will be necessary for the more beneficial occupation of any such land in respect of which an application may be granted or any adjacent land;
adjudicate upon and decide in accordance with and applying customary law any question or matter concerning the land referred to it by any person with an interest in land which is the subject of an application or any land adjacent to it, including the question of whether the customary law applicable to the land the subject of the application recognises individual rights to the occupation and use of land and, if so, subject to what conditions and limitations;
record that if any person has, or two or more persons have, exercised rights under customary law over the land the subject of the application that should be recognised as ownership of that land, that person or those persons, as the case may be, shall, prima facie, be entitled to be issued with a certificate of customary ownership and in the case of two or more persons, the shares of each person and the nature of their ownership;
if any persons have exercised any right over the land or any part of it or are entitled to any interest in the land or part of it not amounting to ownership, including any lease, right of occupation or use, charge, pledge or other encumbrance whether by virtue of customary law or otherwise, hereafter in this Act referred to as a third party right, record the nature, incidents and extent of that third party right and the persons entitled to the benefit of it;
advise the board upon any question of customary law;
safeguard the interests and rights in the land which is the subject of the application of women, absent persons, minors and persons with or under a disability;
(h) take account of any interest in land in respect of which, for any
reason, no claim has been made; (i) exercise such other functions as may be prescribed.
(2) The committee shall, in the exercise of any of its powers under this section which involve a hearing, comply with the rules of natural justice
and, subject to that duty, may—
hear evidence which would otherwise not be admissible in a court of law;
call evidence of its own motion;
use evidence contained in any official record or adduced in any other claim;
refer any matters to any customary institution habitually accepted within the parish as an institution with functions over land for its advice and, where relevant, use, with or without adaptations and additions, customary procedures relating to the settlement of disputes over land recognised and in general use within the community where the land is situated; and
generally, determine its own procedures.
(3) In order to discharge the functions referred to in subsection (1), the chairperson of a committee shall have power to administer oaths and to issue summonses, notices and orders requiring the attendance of such persons and the production of such documents as he or she may consider necessary for carrying out the functions of the committee.
6. Procedures for application for certificate of customary ownership.
The chairperson of a committee shall be responsible for ensuring that the procedures to be followed by the committee as set out in this section and any other procedures that may be prescribed are complied with.
Where an application has been submitted to the committee, a notice in the prescribed form shall be published and posted in a prominent place in the parish and on the land which is the subject of the application—
specifying the location and approximate area of the land;
requiring all persons who claim any interest in the land or in any adjacent land which may be affected by the application, including in respect of any adjacent land claims as to the boundaries of that land, to attend a meeting of the committee at a specified time and put forward their claims; and the time specified shall be not less than two weeks from the date on which the notice is published and posted as required by this subsection.
(3) On the date specified under subsection (2), the committee shall hear and determine all claims made under that subsection.
The committee may adjourn any hearing into any claim and request an officer from the district land office, any other person or a group of persons recognised within the parish as having knowledge about land and its incidents of tenure within the parish to conduct further investigations into that claim.
In hearing and determining any claim, the committee shall use its best endeavours to mediate between and reconcile parties having conflicting claims to the land.
The committee shall—
prepare a report on the application, recording all claims to interests and rights in the land or to the occupation and use of the land and its opinion on whether those claims have been proved to exist, setting out its findings and recommendations with reasons on the application, including in all cases whether the application should be approved with or without conditions, restrictions or limitations endorsed on the certificate and forming part of the incidents of customary ownership evidenced by the certificate or refused, and all claims made in relation to the application;
give or send a copy of the report to the applicant;
submit the report to the board;
make a copy of the report available within the parish for inspection by all persons who submitted claims to or who were heard by the committee.
7. Functions and procedure of board on application for certificate of customary ownership.
(1) The board shall, upon receipt of the report and recommendations of the committee referred to in section 6(6), consider the application in the light of that report and those recommendations and may—
confirm the recommendations of the committee and where those recommendations are to issue a certificate of customary ownership with or without conditions, restrictions or limitations, issue that certificate of customary ownership accordingly and where the recommendations are to refuse to issue a certificate of customary ownership, confirm that refusal;
where the recommendation of the committee is to issue a certificate subject to conditions, restrictions or limitations, vary the recommendation of the committee and issue a certificate of
customary ownership, with or without conditions, restrictions or limitations in accordance with any such variations as it may make;
return the report to the committee with directions as to what action, including further investigations or hearings, the committee is to undertake on the application; or
reject the report of the committee and where the recommendation of the committee is to issue a certificate, refuse to issue a certificate and where the recommendation of the committee is to refuse to issue a certificate, issue a certificate.
Where the board rejects or varies a recommendation of the committee, it shall give reasons for its decision.
Where the committee has recorded under section 5(1)(e) that a person is entitled to the benefit of a third party right, a certificate of customary ownership may only be issued by the board subject to that third party right, a record of which shall be endorsed on the certificate.
The board shall communicate its decision in writing to the recorder.
Where the decision of the board is to issue a certificate of customary ownership with or without conditions, restrictions or limitations, the recorder shall issue a certificate in the terms of the decision of the board to the applicant.
Any person aggrieved by a decision of the board under this section may appeal to the land tribunal against that decision; and the land tribunal may confirm, vary, reverse or modify the decision of the board and make such other order in respect of that decision or as it is empowered to make by this Act.
8. Incidents of certificate of customary ownership.
(1) A certificate of customary ownership shall be taken to confirm and is conclusive evidence of the customary rights and interests specified in it, and the land to which the certificate refers shall continue to be occupied, used, regulated and any transactions in respect of the land undertaken and any third party rights over the land exercised in accordance with customary law.
(2) A certificate of customary ownership shall confer on the holder
of the certificate the right of the holder to undertake, subject to the
conditions, restrictions and limitations contained in the certificate and subject
to subsection (1), any transactions in respect of that land which may include,
but shall not be limited to—
leasing the land or a part of it;
permitting a person usufructuary rights over the land or a part of it for a limited period which may include a period for the life of the person granting or the person granted the usufructuary right;
mortgaging or pledging the land or a part of it, where a certificate of customary ownership does not restrict it;
subdividing the land or a part of it, where a certificate of customary ownership does not restrict it;
creating, or with the consent of the person entitled to the benefit, altering or discharging any easement, right in the nature of an easement or third party right applicable to the land or a part of it;
selling the land or a part of it, where a customary certificate of customary ownership does not restrict it;
transferring the land or a part of it to any other person in response to an order of a court or a land tribunal;
(h) disposing of the land by will.
The holder of a certificate of customary ownership who undertakes any transaction in respect of the land to which the certificate relates shall provide the recorder with a copy or other accurate record of the transaction, and the recorder shall keep all such records in the prescribed manner.
No transaction referred to in subsection (3)(a), (c) or (f) shall have the effect of passing any interest in the land to which the transaction relates unless it is registered by the recorder under subsection (3).
For the avoidance of doubt, where a mortgage of land to which this section applies has been made under the Mortgage Act, the mortgagee has the power to sell and execute a transfer of that land to a purchaser in case of default by the mortgagor.
In this section, “usufructuary right” means the right to use and derive profit from a piece of property belonging to another while the property itself remains undiminished and uninjured in any way.
(7) A certificate of customary ownership shall be recognised by financial institutions, bodies and authorities as a valid certificate for purposes of evidence of title.
9. Conversion of customary tenure to freehold tenure.
Any person, family, community or association holding land under customary tenure on former public land may convert the customary tenure into freehold tenure in accordance with this Act.
The decision of the board approving the conversion to freehold tenure shall be in the prescribed form.
An application for conversion from customary tenure to freehold tenure shall be in the prescribed form and shall be submitted, together with the prescribed fee, to the committee of the parish in which the land the subject of the application is situated.
On receipt of the report and recommendations of the committee, the board shall cause the land in respect of which the application is made to be surveyed before approving the application.
When the board approves an application for conversion, the board may attach conditions to the conversion.
Any party aggrieved by the decision of the board may appeal to the land tribunal; and the tribunal may confirm, reverse, vary or modify the decision and make such orders as it is empowered to make by this Act.