Экзамен зачет учебный год 2023 / Dickerman, Land Registration in Africa

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the Busuulu and Envujjo Law in 1927. From an examination of 333 court cases from 1947 to 1952 and another 114 cases decided by the Katikiro's (Prime Minister's) office, he concludes that, if anything, the rights of peasant-tenants have actually increased beyond the intent of the original law, that it is virtually impossible to evict a peasant-tenant as long as he continues to cultivate the land and pay the annual busuulu fee to the owner. The law requires the landowner to obtain a court order for the eviction, and the courts have often declined to issue the necessary document.

Like West a decade later, Mukwaya concludes that the mailo system has helped to preserve a stable rural society in which the rights of both landlord and peasant tenant are guaranteed. It has not, however, provided an incentive

"vicious circle of subsistence agriculture." Again like Nest, Mukwaya does not favor abolition of the mailo system but rather recommends that it be adjusted to encourage farmers to adopt efficient and remunerative production strategies.

A summary of Mukwaya's findings in presented in:

U6 Mukwaya, A.B. "Some of the Problems of Land Tenure in Bu- ganda." Conference paper, no. 43. Kampala: East African Institute of Social Research, Makerere University, 195?.

Like Mukwaya's earlier, book-length study, this brief paper focuses on two aspects of the mailo system, subdivision of holdings and peasant rights, and presents much of the same data gathered in the early 1950s. Mukwaya continues to emphasize that while the mailo settlement was beneficial in its early stages and facilitated the introduction of coffee and cotton cultivation, it now serves to provide security for the subsistence cultivator rather than to encourage the owner or peasant-tenant who seeks to innovate and expand production.

The most recent study of mailo land is one done in 1972 which focuses on the interactions of absentee landowners and their tenants.

U7 Mugerwa, E.B. "The Position of the Mailo-Owners in the Peasantry Society in Buganda - A Case Study of Muge and Lukaya Villages." Political Science Paper 7(a): Disserta- tion. University of Dar es Salaam, Department of Political Science, March 1973.

Mugerwa's study looks at the relations between peasant-tenants and mailo landowners in order to find out what powers landowners exercise over their land and the extent to which they influence and control the peasant cultivators on it. Mugerwa worked in two selected villages in Buganda, both areas of mailo land held by absentee owners. Based on field observations and interviews, the study is especially valuable for its description of the ways in which mailo owners, their stewards, and tenants contravene the provisions of the Busuulu and Envujjo Law.

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Although the tenancies are supposed to be granted gratis, Mugerwa notes that mailo owners often ask (and receive) substantial fees at the time the initial contract is drawn up. For this reason, many landowners prefer to grant tenancies to foreigners (often Rwandans or Burunais) who are ignorant of the law's provisions and from whom money can be demanded. (West has made the same observation.) Nor is the tenant's tenure as secure as the law permits. Although a tenant cannot be evicted without a court hearing--and only then if he has clearly violated the terms of his,tenancy--landowners sometimes push tenants off their plots without a hearing and for very little pretext. Mugerwa writes that a tenant whose papers are not in order or who has neglected to pay one of the annual dues may find himself quickly evicted. In addition, tenants may find that they have to satisfy the demands of more than one mailo owner: although the tenants' lands cannot be divided among several heirs, mailo es- tates can. A tenant may therefore find his holding divided between two or more landowners, both of whom demand the full complement of annual rents from him.

The ability to contravene the provisions of the law lies not only with the landowner, however. Tenants too manage to get around the law's restrictions.

the cooperation of the estate manager, who must be persuaded to issue the new holder with the correct papers either because he has been convinced by the tenant's story or because he has received part of the proceeds of the sale.

Mugerwa also provides interesting calculations of the amounts of money mailo owners can expect to receive from their tenants, and his figures bear out West's contention that the fees are unrealistically low. Estimating the income tenants produce for the two absentee owners who are the focus of the study, Mugerwa calculates that they receive far less return from their holdings than do their most prosperous tenant farmers and even less than the average tenant earns from sales of cash crops.

Like West, Mugerwa calls for the repeal of the 1927 Busuulu and Envujjo Law, but his rationale for doing so is different. He is less concerned with economic development and agricultural production than with the fact that own- ership of mailo land and the provisions of the law allow the landholder to exercise undue political and social power over the tenant.

Other studies of the mailo system are less specific in their focus, treating it either as one of a number of factors in the eco- nomic development of Buganda or in the context of Uganda as a whole. One such study surveys land fragmentation throughout Uganda and discusses the mailo system in light of the broader problem.

U8 Lawrance, J.C.D. "Fragmentation of Agricultural Land in

Uganda." Entebbe: Government Printer, 1963.

can be seen to facilitate subdivision of holdings by its lack of restriction of land transfers. Lawrance believes that where excessive fragmentation exists it

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public opinion to the dangers of fragmentation, implementing legal controls to prevent harmful subdivisions, ana encouraging the establishment of alternative sources of livelihood. Lawrance holds up the land consolidation and registration of Central Province in Kenya as a model, asserting tnat the legislated controls against excessive subdivision will prove effective against the recurrence of fragmentation. (Unfortunately, recent studies of landholding pat-terns in Central Province do not support Lawrance's view, and instead show that subdivisions continue despite the fact that they have little legal force and cannot be registered. These and other studies are discussed in the section on Kenya.)

Another assessment of the effects of the mailo system is found in Wrigley's chapter in The King's Men, a study of economic and political change in Buganda during the colonial period. Although discussion of the system is somewhat brief, the author makes an assertion about the 1927 Busuulu and Envujjo Law that is worth noting.

U9 C.C. Wrigley. "The Changing Economic Structure of Buganda." In The King's Men; Leadership and Status in Buganda on the

Eve of Independence, edited by L.A. Fallers, pp. 16-63. London: Oxford University Press, 1964.

Wrigley writes that the effect of the 1927 Busuulu and Envujjo Law has been to reverse the intent of the original land settlement. Legal ownership, he points out, did not change, but "the proprietor's rights were now so restricted as to become almost valueless. In return for a small fixed payment the occupier enjoys absolute security of tenure . . . and the holding passes automatically and without entry fine to nis heir . . . .Thus, once a landowner has allowed a peasant to occupy land he has lost all effective control over it for ever . . .

as well as all chance of making it yield more than a very limited income. . . .

There is no way of gaining a substantial and continuing income from the land except by farming it, and it is to the cultivator, not the proprietor, that the proceeds of agriculture go" (pp. 43-44.)

Southwold's study deals with land inheritance patterns in midcentury Buganda and looks at them in the light of both religious and economic change.

U10 Southwold, Martin. "The Inheritance of Land in Buganda."

Uganda Journal 20 (1956): 88-96.

Based on a survey of 105 successions recorded at the Lukiiko in a single year, Southwold shows that customary patterns of land inheritance among the Baganda have changed in the twentieth century. Whereas in pre-colonial times the principal heir was most likely to be a brother's son, now it is most often the deceased's eldest son who receives the largest portion of the land (40 per-cent on the average). Southwold attributes this change to Moslem and Christian influences rather than to the introduction of the mailo system itself. An-other recent innovation is that daughters now receive shares of land on almost equal terms with sons, a practice which did not exist in the past and which is

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not in accord with the nonbinding provisions of the 1926 order concerning suc- cessions. Southwold believes that the system of succession is now relatively stabilized and that the only change that is likely to occur in the future is with regara to provisions for widows, who do not receive land when their husbands die but rather are provided for by their children; as more and more Baganda migrate to towns, widows are likely to require some formal settlement.

Another series of articles, written in the 1920s and 1930s, are interesting as historical background. Several of these deal with the implementation of the mailo system and are written by colonial officials associated with the project.

Ull Thomas, H.B. "An Experiment in African Native Land Set- tlement." Uganda Journal 27 (1928): 234-248.

Writing in the early years after the Uganda Agreement of the negotiations between the British and the Baganda chiefs, Thomas claims that the mailo set- tlement "perpetrated a grave injustice upon the overwhelming majority of the Baganda people." Nevertheless, he sees individual ownership as an inevitable goal and upon it will be "built the true prosperity and contentment of every people" (p. 248).

U12 Thomas, H.B. "The Surveyor and the Politician: An African Object-Lesson." Empire Survey Review 2 (1933): 28-32.

In this brief article about the mailo system and its effects on Buganda written before the conclusion of the survey, Thomas observes that fragmentation has been occurring since 1920 and that because of it, the survey "is being subjected to an ordeal for which it was never designed" (p. 30). His opinions are much the same as in his later, more extensive articles, and Thomas writes that although Johnston's Uganda Agreement of 1900 will ultimately result in a country of small farmer proprietors, the process will be both costly and inequitable.

U13 Thomas, H.B., and A.E. Spencer. A History of Uganda Lands Settlements and of the Uganda Lands and Surveys Department. Entebbe: Government Press, 1938.

The most pertinent sections in this history of the Uganda Lands and Surveys Department are those concerned with the actual surveying program for the mailo settlement. In Chapter 14, Thomas and Spencer discuss the techniques, personnel, and instrumentation employed during the almost thirty years that the survey took to complete and give estimates of the costs per acre. For the early years, from aoout 1908 to 1917, they estimate a cost of £5-8 per square

mile, while in the later years (1920-36) costs rose to £8-30 per square mile. They emphasize, however, that these are only average figures and vary greatly depending on local conditions and time requirements.. Overall, they calculate that expenses for the entire survey of 9,003 mi2 came to £200,000, or

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approximately £22 per square mile. Further, more detailed information concerning surveying techniques and procedures is contained in the appendices

(pp. 114-200).

U14 Strickland, J.G. "The Uganda Mailo System." Empire Survey Review, no. 21 (July 1936), pp. 422-427, 460-469.

This two-part article contains many of the same features as Thomas and Spencer's history of the Uganda Department of Lands and Surveys. The first part is a general description of the mailo settlement, while the second section discusses surveying instruments and techniques, procedures and logistical matters. Strickland's estimates of the costs of the survey are almost identical to those of Thomas and Spencer.

Several other reports are unobtainable in the United States but appear to present useful evaluations of the mailo system in its earliest years.

G. Place. "The Torrens System of Registration of Title as Applied to the Uganda Protectorate by the Registration of Titles Ordinance, 1922." Entebbe: Government Printer, 1923.

V.L.O. Sheppard. "Report on the Cadastral Survey and Regis- tration of Title to Land in Buganda." Unpublished memorandum, 1938.

J.G. Strickland. "An Indexed Memorandum on the Buganda Mailo

System." Unpublished memorandum, 1936.

Another article of historical interest is that of Lucy Mair which surveys customary Baganda tenure practices from an anthropologist's perspective and discusses the impact of the mailo system at a rela- tively early date.

U15 Mair, L.P. "Baganda Land Tenure." Africa 6 (1933) : 187-

205.

In this article devoted largely to traditional tenure practices of the Baganda, Mair briefly describes the mailo system. Basing her conclusions on fieldwork done in 1931 and 1932, she writes that the system has "so far... not been accompanied by the disadvantages that the introduction of freehold tenure has brought with it elsewhere" (p. 200). The mailo system affords greater security to the peasant tenant than in the past, but at the same time she notes that the difference in material conditions between rich and poor in Buganda has increased enormously in recent years, the establishment of the mailo being the single most important contributing factor.

Several studies done in the 1960s focus on overall economic de- velopment in Uganda and the role of Buganda in this evolution. In

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this research the mailo system is considered along with other factors contributing to economic change.

U16 Richards, Audrey I. Some Effects of the Introduction of Individual Freehold into Buganda." In African Agrarian Systems; Studies Presented and Discussed at the Second International African Seminar, edited by Daniel Biebuyck, pp. 267-280. London: International African Institute, 1963.

In this brief outline of the mailo system of Buganda, Richards describes both the land tenure system and other contributing factors in agricultural

who tend to view the mailo system from the inside out. She notes that Buganda is one of the most fertile areas in East Africa, that cotton and later coffee have been grown very successfully there, that significant numbers of migrant laborers have come to work on the farms since the 1920s, and that the kingdom has been well served by the rail connection from Kampala to Nairobi and the coast. Although she agrees with other researchers that the mailo settlement has produced a wealthy class of landowners and that agriculture is Buganda is very productive, she is less willing than others to attribute the success to the land tenure system alone. Other factors, including those mentioned above, bear consideration. She points out that although the Nyoro and other neighboring groups have asked the government to introduce the mailo system in their areas, they are attracted not by the security provided by the other system--their own systems give cultivators quite adequate security--but rather by the ability of Ganda landholders to raise large sums of money from sale and mortgage of their

the implementation of schemes for 4- or 5-acre holdings will ultimately lead to their consolidation in the hands of a few interested in commercial production-- or even if this is desirable.

A particularly interesting and extensive survey is one done by Richards and otners in Buganda in the mid-1960s with both anthropol- ogists and economists interviewing large-scale commercial farmers. Here the mailo system is considered as one of a number of possible factors contributing to farmers' prosperity.

U17 Richards, Audrey I., Ford Sturrock, and Jean M. Fortt, eds. Subsistence to Commercial Farming in Present-Day Buganda; An Economic and Anthropological Survey. Cambridge: Cambridge University Press, 1973.

Defining large-scale tarmers as those who farm 20 acres or more, the au- thors designed a survey to answer the questions of what differentiates largescale commercial farmers from subsistence cultivators, what conditions are conducive to an individual's making the change to large-scale production, and what characteristics distinguish him from small-scale farmers.

Most interesting in the context of this survey of the literature are those segments of the nook that discuss the extent to which the mailo system has

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affected the emergence of large-scale commercial farming. Chapter 3, "Land Tenure and the Emergence of Large Scale Farming," by J.M. Fortt, focuses on the evolution of the mailo system, drawing heavily on West's research, and on its effects on the emergence of progressive farmers. Fortt makes the very important point that the original land allocation procedure ensured that the best land became mailo land and it was on this land that cotton and later coffee cultivation was most successful. (The allocation procedure also perpetuated a system of plural holdings, with landowners often having several estates in different counties of Buganda and with the inevitable result of a certain amount of absentee ownership. See also Mugerwa, U7, above.) Fortt emphasizes the

importance of land sale's• in the evolution of the mailo system and in the emergence of large-scale farmers, almost all of whom purchased significant amounts of land at an early point in their farming careers. Land sales became increasingly numerous from the 1920s onward as cotton and later coffee production profits enabled individuals to purchase farm land. Because of the provisions of the Busuulu and Envujjo Law, which guaranteed a certain security of occupation to bibanja tenants, it was most often these tenants who were in a position to purchase mailo land. The Busuulu and Envujjo Law is obviously the most troublesome aspect of the mailo system, but attempts to introduce reform have come to nothing. (In 1964 the Buganda Planning Commission recommended the establishment of a semi-freehold system of bibanja tenancies which would have given the tenant legal title to occupy the land in return for payment of an annual fee to the landlord; the proposal was rejected by the Buganda government.)

A chapter on the origins and growth of the commercial farms (Chap. 6, by D.A. Hougham) also emphasizes the importance of land purchases. Although he is careful to point out that no single pattern of land accumulation is dominant, he also shows that only 25 percent of the farmers in the survey had acquired their land through inheritance and that therefore their relationship to the original beneficiaries of the 1900 Agreement was very limited. Land sales have had an increasing importance in the emergence of large-scale commercial farming, although since the 1950s the area of land obtained in individual sales has declined. Evidence from the survey shows that two factors are paramount in the transition from subsistence to commercial farming: the ability of a farmer or prospective farmer to acquire land through purcnase and the accumulation of capital. Some two-thirds of the estates included in the survey had been purchased; in some cases purchased acres were added to inherited estates, but for most of the large-scale commercial farmers, ownership had come solely tnrough purchase. Moreover, additional acres were seldom acquired in a slow process of accretion; rather, farmers had been given the opportunity to acquire substantial traces of land and presented with the prospect of a dramatic rise in income. To the extent, then, that the mailo system has facilitated the functioning of the land market it has proved beneficial to the emergence of large-scale commercial farming. The second necessary ingredient, as mentioned above, is capital, and most of the farmers in the survey had accumulated capital either outside agriculture altogether (e.g., from jobs in Kampala) or from the sales of cash crops such as coffee and cotton. An alter-

native source of capital was bank loans, and here again the possession of mailo land, against wnich loans might be taken out, was an advantage. None of the farmers in the survey raised capital through sales of land. Another characteristic of these farmers was that they had far fewer tenants on their land than most cultivators, a fact which leads the authors to concur with Henry

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West and others that the Busuulu and Envujjo Law has outlived its usefulness and must be revised.

Audrey Richards points out in the conclusion that the mailo system alone has not been responsible for this evolution--after all, for almost fifty years traditional attitudes toward land as a source of social and political power continued in force and only a small percentage of large landowners are also successful large-scale commercial farmers. Moreover, a comparison with Bugisu, where coffee production was achieved on peasant plots rather than on largescale farms as in Buganda, points to the limited role of the mailo system, with its right to dispose of land freely, in the emergence of commercial production.

Other researchers who have investigated the mailo system, however, have made broader claims for its importance than Richards et al. One such group is the World Bank, which evaluated the economy of Uganda as a whole shortly before independence.

U18 International Bank for Reconstruction and Development. Economic Survey Mission. The Economic Development of Uganda. Baltimore: John Hopkins University Press, 1962.

Several pages are devoted to the mailo system in Buganda in this report of the 1960-61 mission, and the authors state that the introduction of the concept of private ownership of land in Buganda has aided the development of that province. The two most important results of the system are security of tenure and the development of a land market, which have facilitated investment and commercial production. The mailo system has also led to the rise of a group of commercially oriented producers. On the negative side, however, are subdivisions and mutations of ownership as well as tenancy laws which militate against the mobility of land resources. The World Bank mission agrees with the recommendation of the Royal Commission of 1953-55 (see the section on East Africa above) that the present laws and obligations between landlord and tenant be replaced with contractual arrangements (pp. 235-37).

A similar survey was undertaken at about the same time for Bu- ganda alone and it undoubtedly discusses the mailo system. Unfor- tunately, it does not appear to be available in the United States.

U19 Buganda Planning Commission. The Economic Development of the Kingdom of Buganda, Part I. 1965.

The most recently published description of the mailo system is that of Francis Butagira. His recommendations are not at odds with those of West and others, although his perspective, as someone with a legal rather than an administrative or technical background, is somewhat different.

U20 Butagira, Francis K. "The Mailo Tenure in Buganda." In Land Law Reform in East Africa, edited by James ObolOchola, pp. 44-58. Kampala: Milton Obote Foundation,

1969.

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One of a number of papers on land law and tenure in East Africa presented at a conference in Kampala in 1968, this chapter outlines the land tenure system in Buganda as it existed before the 1900 Uganda Agreement and as it evolved in the years after the settlement and suggests ways in which the system should be reformed. Butagira is an advocate and lecturer in law in Kampala, and his emphasis is on structural rather than agricultural change over the years. As for reform measures, he recommends that the mailo system be made more egalitarian in its distribution of land and more conducive to agricultural innovation. To

redistribution and small holdings consolidated into estates with common ownership; those displaced by these changes should be compensated with land else-where in the country. He also recommends that the Busuulu and Envujjo Law be repealed and that new, economic rents be set and peasants given thirty-year leases. A comprehensive survey and revision of the land register will be required to effect these changes.

Two smaller areas of land registration established in the early part of the century were in the kingdoms of Ankole and Toro. As with Buganda, the land settlements were attempts to shore up local authority and allow for the peaceful imposition of colonial rule. In

these systems were subject to similar laws regulating landlord-tenant contracts as existed in Buganda and appear to have evolved in much the same way as did the mailo system, they have never been systematically studied in the way the mailo system has. As in Buganda, official freehold was abolished in 1967 and the holdings designated as Public Land.

of the Crown Lands (Adjudication) Rules in 1958 made it possible for individuals to obtain freehold title to Crown Land. In some schemes the process involved adjudication, surveying, and actual registra- tion, while in other areas consolidation of fragmented plots was also done. An overview of these schemes is provided by S. ukec, Commissioner for Lands and Surveys in Uganda in the late 1960s.

U21 Okec, S. "Pilot Schemes for the Registration of Land Titles in Uganda." In Land Law Reform in East Africa, edited by James Obol-Ochola, pp. 255-264. Kampala: Uganda Trust Press, 1969.

Okec's survey is a valuable one, for it provides a description of the procedures employed in the registration projects and provides evidence of the ways in which these projects can be said to be have achieved (or fallen short of) their goals. He notes that a disproportionately heavy burden of the process fell on the shoulders of the local adjudication committees. Membership on

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these committees was voluntary and unpaid, and yet success of the registration schemes depended on local participation and knowledge. In addition to describ- ing the regulations and procedures, he gives figures of numbers of plots adju- dicated, titles issued, and cost per acre estimates.

In the Ruzhumbura Pilot Scheme in Kigezi District, in the extreme southwest corner of the country (see also Lawrance and Obol-Ochola, U22 and U23, below), some 6,600 plots were adjudicated between 1958 and 1962; of these, 6,400 were demarcated and surveyed during the period. Only in 3 percent of the cases did the applicants elect to appeal the decision of the adjudication committee (half were successful, half not). Adjudication and demarcation were done without cost to landowners, and expenses averaged between £25 and £35 (in Uganda shillings) per acre (higher than the figures Lawrance gives). Once these stages were complete, landowners might apply for title and only at this point were they charged fees (£8 per acre). This last step has been the least wellreceived, and of the 6,400 plots surveyed, only 1,800 have had titles is-sued for them. Okec attributes this failure to a number of factors: a lack of knowledge of the advantages of title, acceptance of adjudication and demarca- tion combined with indifference to registration, inaccessibility of the office where titles are held, and inability to pay the necessary fees--especially on the part of small landholders, who in any case are unlikely to be able to mort- gage their holdings.

plots adjudicated. In addition, Okec briefly refers to the consolidation scheme carried out in Bufumbira in Kigezi District, noting that the 1,300 plots in the project were owned by 412 individuals and that most holdings averaged 10 plots of approximately 1/4 acre each.

Okec concludes his survey with figures demonstrating that despite the fact that succession procedures are far less cumbersome than in Buganda, titleholders are failing to register successions or even transfers of land. In Kigezi, for example, where 1,800 titles were issued, there have been an esti- mated 300 deaths, but only for 30 have successions been registered. These figures are alarming, for they indicate that despite streamlined procedures and the establishment of up-to-date land registers, even those landholders who have taken the steps and paid the fees for the title itself are likely to ne-

glect to see that changes in ownership are recorded. To remedy this situation, Okec believes that education of the public and adequate publicity are needed.

A more detailed discussion of the Kigezi District project is pro- vided by J.C.D. Lawrance :

U22 Lawrance, J.C.D. "A Pilot Scheme for Grant of Land Titles in Uganda." Journal of African Administration 12 (1960) : 135-143.

Lawrance describes the conversion of customary titles to freehold in Kigezi District. Under this pilot project, some 5,50U customary holdings in an area of 70 mil were adjudicated, surveyed, and registered. One of the