Gender and Land Rights Database

Uganda

Rights entrenched in the Constitution

  • The Constitution of the Republic of Uganda of 1995: (10)
    - Guarantees gender equality through Objective VI and Objective XI of the “National Objectives of State Policy” section (11). Objective XV recognises the significant role that women play in society.

    - Gender is mainstreamed throughout the Constitution and within chapters related to the Protection of Human Rights, Land and Environment, and Institution of Traditional or Cultural Leaders. These chapters contain provisions that are directly related to women’s equal right to land and that specifically outlaw customs that are against the dignity of women or that undermine their status (11).

    - Article 2(1) states that the Constitution is the supreme law of Uganda and shall have binding force on all authorities and persons throughout Uganda. 

    - In its second clause, it states that: “If any other law or any custom is inconsistent with any of the provisions of this Constitution, the Constitution shall prevail, and that other law or custom shall, to the extent of the inconsistency, be void” (11).

    - Article 21 confirms the equal status of all citizens under the law and prohibits discrimination on a number of grounds, including sex (11).

    - Article 26(1) provides for every person, including women, the right to own property (11).

    - Article 31(1) guarantees women’s equal rights upon, during and after marriage and provides for the protection of the rights of widows and widowers to inherit the property of their deceased spouses (11). It also sets the legal age for marriage at eighteen for both men and women.

    - Article 32(1) compels the State to take affirmative action in favour of groups marginalized on the basis of gender (11).

    - Article 33 specifically describes the status and rights of women and enshrines women’s right to equal treatment with men (11). Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status are prohibited.

    -  Article 78 stipulates that Parliament shall consist of, inter alia, one woman representative for every district (11).

    - Article 180(2)(b): one-third of the membership of each local government shall be women (11).

    - Chapter 15, which deals with Land and Environment, does not contain specific gender provisions, nor does it exclude them (11).

    - Article 246(4) safeguards the allegiance and privileges accorded to traditional and cultural leader which under the Constitution are not regarded as a discriminatory practice prohibited under Article 21; but only insofar as the custom or practice, usage or tradition relating to a traditional or cultural leader does not detract from the rights of any person as guaranteed by this Constitution (11). 
  • In March 2001, a Constitutional Review Commission of 18 members was appointed. Land issues were included in the agenda of the Commission (3).

Women's property and use rights in personal laws

  • Women’s land rights are dependent on their relationship to a male, usually a father, husband, brother or son. It is mainly through marriage that women acquire user’s rights on land as their husbands allocate plots of land for cultivation to produce mainly food for home consumption (3).
  • Five types of marriages are recognized: civil, Christian, Hindu, Muslim and customary. Different laws apply to marriage between persons of specific religions:
    - The Marriage Act, Cap. 251 (1904)
    - The Marriage of Africans Act, Cap. 253 (1904)
    - The Marriage and Divorce of Mohammedans Act, Cap. 252 (1906)
    - The Hindu Marriage and Divorce Act, Cap. 250 (1961)
  • Marriage must be monogamous if contracted under the Marriage Act of 1904, the African Marriage Act of 1904 or the Hindu Marriage and Divorce Act of 1961. Both the Customary Marriages Decree of 1972 and Islamic law allow polygamous marriages (11).
  • Customary marriages are most common and are based on the payment of a dowry or “bride price”, a tradition that contributes to the view held by many men that “women are their property” and which is often carried out without the consent of the girl. Since the girl’s parents receive the bride price, cases of girls being sold by the parents are frequent. If a woman under a customary marriage wants divorce, she will need to pay back the dowry (11).
  • While both men and women can apply for divorce, women may apply for divorce only if the husband is adulterous and abandons her for more than two years or commits other specified acts. Men, however, need only to accuse the woman of adultery in order to file for divorce. The ease with which a man can divorce his wife results in less tenure security. 
  • The Domestic Relations Bill – introduced more than 10 years ago – should rectify marital inequalities, but to date it has not been passed (3).
  • Ten percent of the population is Muslim. One of the provisions in the Marriage and Divorce of Mohammedans Act of 1964 states that the Sharia Law shall govern all marriages and divorces between Muslims (11).
  • The Marriage and Divorce Bill, 2009:
    - The main purpose of the Bill is to bring the legislation into compliance with Article 31(1) of the Constitution which provides that men and women are entitled to equal rights in matters relating to marriage and its dissolution, and with Uganda’s international obligations (20)
    - Article 12: the Act governs:
    - monogamous marriages, including: Christian, Civil, Hindu and Bahai marriages
    - polygamous marriages (customary marriages)
    - The Act does not apply to Muslim marriages.
    - Article 12: prohibits the customary practice of widow inheritance unless both the man and the widow give their free consent.
    - Article 15: the legal age for marriage is eighteen for both men and women.
    - Article 18: specifically prohibits same-sex marriage.
    - Article 123: recognises the capacity of a spouse to acquire his or her own separate property in any form of marriage under the Act.
    - Art 124: spouses have equal access to matrimonial property including the right to the use, to benefit from and to enter the property and, when both spouses agree, to dispose of the property.
    - Article 128: in polygamous marriages, matrimonial property acquired by the husband and the first wife are owned in common by the husband and the first wife but all subsequent wives take interest only in the husband’s share of property.
    - Article 140: spouses are not allowed to petition for divorce before the expiry of two years from the date of the marriage.
    - The Act aims to provide some legal protection to couples who cohabit without being married, which represent the majority of couples in Uganda.

Inheritance legal mechanisms

  • The Succession Act, Cap. 162 (1964) as amended by the Succession (Amendment) Decree (1972):
    - The Act is rooted in a tradition of patrilinealism, customary practices and Islamic law. Although the Act recognizes women’s right to inherit from their husbands, inequalities in inheritance rights have not been addressed in the 1972 amending decree and still restrict women’s rights to land.

    - Article 1(7)(n): the definition of “legal heir” effectively legitimizes the devolution of the residential holding to the oldest male descendant.

    - Section 27: identifies four classes of heir: the customary heir, the wives, the dependent relatives, and the lineal descendants. Upon death, lineal descendants receive 75 percent of the male intestate while the wife or the wives (in polygamous marriages) receive only 15 percent of the estate.

    - 2nd Schedule, Section 7-8: the right to occupy the residential holding terminates upon the widow’s remarriage, but not the widower’s. By extension, this also terminates her right to cultivate, farm or till any land adjoining a residential holding, depriving her and her dependent children of a means of subsistence (21).
  • Under customary law, it is assumed that the welfare of the widow and the children will be taken care of by the deceased’s kin. In practice, this is usually not the case because the widow and her children are dispossessed of the family’s assets and usually forced to move back to the widow’s parents’ home, where she becomes dependent on her male relatives.
  • There is an overlap between customary practices and Sharia law; as a consequence, women inherit even less. Women inherit less also because of the phenomenon of polygamy since the co-wives have to share.
  • According to the Quran, only one-third of a deceased’s estate can be included in a will. The remaining two-thirds are distributed under intestacy rules laid down in the Quran, which have fixed the shares allocated to heirs. Persons recognized as heirs include the widow or widower, father, mother and children. Grandparents will only inherit when the heirs in the nuclear family cannot inherit. In general, a male under the Quran takes double the share of the female.
  • When a man dies leaving a wife and children, the wife receives one-eighth of the net estate. When there are no children, the wife receives one-fourth of the estate. In polygamous marriages, the wives share the one-eighth, if there are children, or the one-fourth, if there are no children (11).

Land Legislation

  • In 1988, a Land Committee was established under the Ministry of Agriculture to look into possible reform of the 1975 Land Reform Decree. Research on land reform started in 1989, and was carried out by the Makerere Institute of Social Research of the University of Kampala, together with the Land Tenure Centre of the University of Wisconsin. The 1995 Constitution set a policy framework with a strong orientation towards the democratization of property relations (11).
  • The Land Act No. 16 of 1998, amended in 2004 and 2010:
    - Reformed the 1975 Land Reform Decree. The main objectives of the Act are:

    a) To provide security of tenure to all land users, mainly customary landholders, referred to as customary tenants on public land, and the lawful or bona fide occupants on registered land;

    b) to resolve the land use impasse between the registered owners − mailo, freehold and leasehold − and the lawful and bona fide occupants of this land. Prior to the passing of the new land law, substantial areas of potentially productive rural land remained idle or underutilized because of lack of incentives to invest on the part of either registered owners or tenants. Registered owners had difficulty evicting tenants in order to develop the land, while tenants lacked sufficient security. This has also inhibited land markets in urban areas where purchasers could not acquire secure property holdings;

    c) To recognize customary tenure as legal tenure equal to other tenures;

    d) To provide an institutional framework for the control and management of land under a decentralized system;

    e)To ensure proper planning and well-coordinated development of urban areas;

    f) To ensure sustainable land use and development throughout the country to conserve the environment;

    g) To redress historical imbalances and injustices in the ownership and control of land;

    h) To provide for Government and local government to acquire land compulsorily in the public interest and for the public use, public safety, public order, public morality or public health (12).

  • Customary ownership:
    - Article 237(4)(a) of the Constitution recognizes customary tenure as one of the forms of land holding in Uganda. The majority of Ugandans hold land under customary tenure.

    - Under the Land Act, these tenants can now acquire a certificate of customary ownership on the land they occupy and they can convert this certificate to a freehold title. This certificate can be transferred, mortgaged or otherwise pledged. Holders of a certificate of customary ownership can thus have access to credit. Financial institutions, bodies and authorities are obliged to recognize a certificate of customary ownership as a valid certificate for purposes of evidence of title (12).
  • Communal land ownership:
    - The Act recognizes the right of people to hold communal land. Any group of persons may form a Communal Land Association for any purpose connected with communal ownership and management of land, whether under customary law or otherwise. The Communal Land Association may also form a common land management scheme by which the members agree to manage the communal land and to set out their rights and duties.

    - Section 17 stipulates that one-third of the officers of such an Association need to be women.

    - If an individual or a family belonging to such Association wishes to own land in their own capacity, they may apply for a certificate of customary ownership or a freehold title. Any person, family, community or Association holding land under customary tenure on former public land may convert the customary tenure into freehold tenure (12).
  • Tenants by occupancy:
    - To protect the security of tenure of occupants of land, the Act provides for a subtenure of occupancy for three types of occupants on registered land: lawful occupants, bona fide or good faith occupants and unlawful occupants. Lawful and bona fide occupants are also called tenants by occupancy.
  • A tenant by occupancy on registered land:
    - shall enjoy security of occupancy on the land by paying an annual nominal ground rent of maximum 1 000 shillings per year irrespective of the area or location of the land;

    - may apply to the registered owner for and be issued with a certificate of occupancy, but lack of such a certificate does not take away his/her security of tenure;

    - may be inherited;

    - may assign, sublet, pledge, create third party rights in, subdivide and undertake any other lawful transaction in respect of the occupancy, but prior consent of the owner is required.

    - may also apply for a freehold, mailo, lease or sublease title to the registered owner.

    - A Land Fund will be established, among others, to help tenants by occupancy in acquiring titles.

    - Where a person has occupied any land under the same conditions as listed for lawful or bona fide occupants but for less than 12 years, s/he is obliged to negotiate with the registered owner concerning his/her occupation of that land. Compensation to the registered owner whose land has been occupied by persons resettled by the Government under the resettlement scheme is provided for in Section 30(3) (11).
  • The Land (Amendment) Act, 2010:
    - Article 32A: seeks to enhance the protection of lawful and bona fide occupants who shall not be evicted from registered land except upon an order of eviction issued by a court and only for non payment of the annual nominal ground rent
  • Women and other vulnerable groups:
    - Section 40 of Land Act (1998) requires that before any transaction can be carried out on land on which a family resides or from which it derives a sustenance, the spouse, dependent children of majority age and the Land Committee, in case of children under the age of majority, must provide written consent. The Land Committees have the duty of ensuring that the rights of vulnerable groups are protected.
    - Section 40 was amended in 2004 by broadening the definition of spousal land and preventing a spouse’s objection to its sale from lapsing.
    Spouses have the right to use, access and live on their husband’s land and they may withhold their consent to stop land transactions. Women are granted more control in household land decisions although the clause of co-ownership has not been included (16).
    - Upon enactment of the Land Act, implementation costs were estimated to be USD 400 million. The Implementation Study Report of September 1999 concluded that “the implementation of the Uganda Land Act of 1998 is beyond the current capacity of the government budget”. Lack of funds has greatly delayed or even blocked the establishment of the several thousand institutions proposed under the Act. Those Land Committees and District Land Boards that were established have lacked capacity, logistical support, funds and clear regulations to guide their operation. District Land Tribunals were finally established November 2001 (11).
  • The Land Sector Strategic Plan (LSSP) 2001–2011, final draft issued in November 2001:
    - Developed by a task force comprising the Ministry of Water, Land and Environment, the Ministry of Finance, the Law Reform Commission, the Uganda Land Alliance and the Makerere University, in consultation with national, district and subcounty stakeholders.

    - Follows an integrated approach to the land sector and is linked, among others, to the Poverty Eradication Action Plan, the Plan for the Modernization of Agriculture and the National Gender Policy. The main objective of the LSSP is “to create an enabling environment for the participation of all stakeholders in effective use and management of Uganda’s land resources” (11).

Policies/Institutional mechanisms enforcing or preventing women’s land rights

  • The National Action Plan on Women of 1999: 
  • The obligation to eliminate discrimination against women set out under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is reinforced under the Beijing Platform for Action and the African Regional Platform for Action. On these bases, the Government designed and adopted a National Action Plan on Women in December 1999. The goal of this plan is to achieve equal opportunities for women by empowering them to participate in and benefit from social, economic and political development (11).
  • The process of negotiations on the Land Act ensured that the debate on women’s land rights moved into the public domain and achieved concrete gains in the Act. As a result, in 2005, Article 40 of the Act – which requires spouses to give consent before any transactions on land – was amended by broadening the definition of spousal land and preventing a spouse’s objection to its sale from lapsing.
  • However, the lack of a clause regarding co-ownership/joint titling between husband and wife in the text of the Law is considered a missed opportunity to guarantee women’s equal access to land. A large civil society movement, which included Action Aid International Uganda (AAIU) and Uganda Land Alliance (ULA), negotiated for its installation in the text of the Law before it was passed. This became known as the lost clause (16).
  • The Land Act partly incorporates the affirmative action provisions that are laid down in the Constitution. The Uganda Land Commission, which holds and manages land in Uganda vested in or acquired by the Government, must have a female member among the four provided for by the Land Act. The District Land Board, established in each district to hold and allocate land in the district, must have one-third of its members be women. For each parish, division or town, a Land Committee is established with a chairperson and three other members. Land Committees assist the District Land Boards in an advisory and facilitating capacity. In addition, they safeguard the rights in land of women, children and persons with disabilities. At least one of the members of a Land Committee must be a woman (11).
  • While affirmative action for women’s representation in Parliament and local government is in place and is included in the Land Act with regard to most of the land bodies, no such provision has been included for the District Land Tribunals (11).
  • The National Gender Policy of 1997, revised in 2007:
    - The government launched the National Gender Policy (NGP) in 1997, which introduced gender mainstreaming into national development policy. Within this policy, the Land Sector Strategic Plan (LSSP) recognized women’s unequal status throughout the country regarding land rights and reinforced NGP policy direction (11).
    - The 2007 policy aims to reduce gender inequalities, to increase knowledge and understanding of human rights among men and women, to improve women’s participation in decision-making in administrative and political processes (22)  
  • Land Sector Strategic Plan 2001–2011, final draft issued in November 2001:
  • - Developed by a task force comprising the Ministry of Water, Land and Environment, the Ministry of
    -Finance, the Law Reform Commission, the Uganda Land Alliance and the Makerere University, in consultation with national, district and subcounty stakeholders.
    - Recognizes the role of women in agriculture since Uganda primarily relies on agricultural production and women form a core labour force in agriculture.
  • - One action area, among the Priority Action Areas is Women and Vulnerable Groups. 
  • - As to common ownership and inheritance, it states that “further legal amendment is desired to provide for joint/common ownership of family land by spouses, as has been recommended through domestic relations legislation and amendment of the Land Act. There is also need to amend the law on inheritance to eliminate discrimination. The land sector recognizes that strengthening women’s land rights in law and in practice is a key strategy for achieving the objectives and purpose of the LSSP, and will work to mainstream gender in its activities as well as making targeted interventions to improve women’s land rights” (11).
  • The National Land Policy, 2011:
    - The objectives of the new land policy include:
    a) enhancing the contribution of the land sector to overall socio- economic development, wealth creation and poverty reduction in Uganda;
    b) harmonizing and streamline the complex tenure regimes in Uganda for equitable access to land and security of tenure;
    c) clarifying the complex and ambiguous constitutional and legal framework for sustainable management and stewardship of land resources;
    d) to redress historical injustice to protect land rights of groups and communities marginalized by history or on the basis of gender, religion, ethnicity and other forms of vulnerability to achieve balanced growth and social equity;
    e) reforming and streamline land rights administration to ensure efficient, effective and equitable delivery of land services;
    f) ensuring sustainable utilization, protection and management of environmental, natural and cultural resources on land for national socioeconomic development;
    g) ensuring planned, environmentally-friendly, affordable and orderly development of human settlements for both rural and urban areas, including infrastructure development; and
    h) harmonizing all land-related policies and laws, and strengthen institutional capacity at all levels of Government and cultural institutions for sustainable management of land resources (23).

Sources: numbers in brackets (*) refer to sources displayed in the Bibliography