In today’s world, it is almost expected that a truth commission will be introduced in the wake of conflict or a period of authoritarianism to try and consolidate a transition to democracy and peace. A truth commission generally understood – as per Priscilla Hayner – as a temporary state-sanctioned body that investigates a pattern of past abuse, engages ‘directly and broadly with the affected population, gathering information on their experiences’ and which aims to conclude with a public report.

The underlying idea is that societies need to confront and deal with unjust histories if they are to establish a qualitative break with that past. Proponents of modern truth commissions thus ‘look backwards’, not as interested historians, but as a way to ‘reach forwards.’ As Archbishop Desmond Tutu explained in his foreword to the South African Truth and Reconciliation Commission (TRC) report:

The other reason amnesia simply will not do is that the past refuses to lie down quietly. It has an uncanny habit of returning to haunt one … However painful the experience, the wounds of the past must not be allowed to fester. They must be opened. They must be cleansed. And balm must be poured on them, so they can heal. This is not to be obsessed with the past. It is to take care that the past is properly dealt with for the sake of the future.

Motivated by this desire to render the past ‘passed’ in the substantial sense of being ‘dead’ or ‘over and done with’, modern truth commissions dedicate most of their time to two activities: the holding of public hearings and production of a final report.

This is a relatively recent development. Early truth commissions did not hold public hearings and were largely fact-finding bodies. However, ever since the South African TRC of the 1990s, truth commissions have held hearings as a stage for various actors – victims, perpetrators, political parties, state institutions and so forth – to present their account of past wrongs. The underlying idea is that people will have a chance to speak and be heard, and thus regain their humanity; that a wider (and engaged) audience will bear witness to a new human rights-conscious regime; and the overview provided will feed into, and help legitimise, a final report. The latter in turn intended to record and acknowledge past wrongs and provide recommendations that can help to promote truth, justice and reconciliation.

However, while much hope is often placed, and much time and money expended, on truth commissions and their hearings and final reports, it is evident that these processes generally fall far short of ambitious goals and high expectations. But what explains this gap between aspiration and reality?

This is one of the questions that I address in a new book – Performances of Injustice: The politics of truth, justice and reconciliation in Kenya – which analyses several transitional justice mechanisms introduced following Kenya’s post-election violence of 2007/8 when over 1,000 people were killed and almost 700,000 were displaced.

This includes the establishment of the Truth, Justice and Reconciliation Commission (TJRC). Significantly, the Commission’s mandate recognised that, while the 2007/8 post-election violence was triggered by a disputed election, it was fuelled by more deep-rooted problems.  In turn, the Commission was tasked with investigating a wide array of injustices – from state repression and causes of political violence to perceptions of economic marginalisation and irregular land acquisition – between Kenya’s independence in 1963 and the end of the post-election violence in February 2008.

Established through an Act of Parliament in 2008, and operational from 2009 to 2013, the TJRC sought to meet its mandate, in large part, by collecting statements (with over 40,000 collected in total), holding public and women’s hearings in 35 locations across the country and adversely mentioned person (AMP) hearings in western and Nairobi, and publishing a substantial final report that runs to over 2,000 pages.

Despite such achievements, the Commission was soon mired in controversy with calls for the chairman – who was soon linked to three injustices that the Commission was meant to investigate – to resign, while the public hearings attracted little media attention, and the final report is yet to be discussed in parliament let alone implemented.

The Kenyan experience highlights a range of lessons and insights. This includes the fact – as recently outlined in a piece for The Conversation – that transitional justice mechanisms are not ‘tools’ that can be introduced in different contexts with the same effect. Instead, their success (or failure) rests on their design, approach and personnel – all of which are incredibly difficult to get right – but also on their evaluation and reception, and thus on their broader contexts, which commissions have little or no control over.

However, the lessons that can be drawn go beyond reception and context and extend to the inherent shortcomings of such an approach.

First, while victims appreciate a chance to speak and be heard, the majority clearly submitted statements or memoranda or provided testimony in the hope that they would be heard and that some action would be taken to redress the injustices described. As one woman explained after a women’s hearing in Nakuru, she was glad that she had spoken and how, having told her story, the Commission would ‘come in and help.’

To be fair, the TJRC’s founders were aware of the inadequacies of speaking, which is why they included ‘justice’ in the title and gave the Commission powers to recommend further investigations, prosecutions, lustration (or a ban from holding public office), reparations and institutional and constitutional reforms.

However, on the question of whether recommendations would be implemented, the Commission rather naively relied on the TJRC Act (2008), which stipulated that ‘recommendations shall be implemented.’ However, such legal provisions proved insufficient. Amidst general scepticism about the Commission’s work, parliament amended the TJRC Act in December 2013 to ensure that the report needed to be considered by the National Assembly – something that is yet to happen.

Moreover, to document and acknowledge the truth requires that one hears from both victims and perpetrators. However, the latter often have little motivation, and much to lose, from telling the truth. This was evident in Kenya where, during the AMP hearings I attended, where I heard little that was new and not a single admission of personal responsibility or guilt. Instead, testimonies were characterised by five discursive strands of responsibility denied: denial through a transfer of responsibility, denial through a questioning of sources, denial through amnesia, denial through a reinterpretation of events and an assertion of victimhood, and denial that events constituted a wrongdoing. However, while AMPs denied responsibility, none denied that injustices had occurred. As a result, while the hearings provided little clarity on how and why a series of reported events may have occurred, they simultaneously drew attention to, and recognised, past injustice. In this way, they provided a public enactment of impunity: Kenya’s history was replete with injustice, but AMPs were unwilling to shoulder any responsibility for it.

This ongoing culture of impunity points to another issue, which is that – for most victims – injustices clearly do not belong to the past but to the present and future. The loss of a person or income, for example, often constitutes a course that now seems beyond reach – from the hardship that accompanies the loss of a wage earner to the diminished opportunities that stem from a child’s extended absence from school. However, the past also persists in other ways, from the injustices that never ended, such as gross inequalities or corruption, to fears of repetition and experiences of new injustice.

Unfortunately, the idea that one can ‘look backwards to reach forwards’ downplays the complex ways in which the past actually persists, and possible futures infringe on the present. This is problematic since it can encourage a situation where small changes dampen demands for more substantive reform. At the same time, it can facilitate a politicised assertion of closure that excludes those who do not buy into the absence of the past, the newness of the present, or the desirability of imagined futures and provides a resource to those who seek to present such ‘difficult people’ as untrusting, unreasonable and unpatriotic.

This is not to say that truth commissions are useless and should never be considered. On the contrary, many view speaking as better than silence, while the commission’s report provides a historical overview of injustice in Kenya and a range of recommendations that activists and politicians are using to lobby for justice and reform.

However, when introduced, truth commissions should be more aware of the importance of persuasive performances and how their initial reception and longer-term impact is shaped by broader socio-economic, political and historic contexts. Truth commissions also need to adopt a more complex understanding of the ways in which the past persists, and possible futures infringe on the present and avoid easy assertions of closure.

Ultimately, such ambitious goals as truth, justice and reconciliation require not Freudian ‘talk therapy’, although catharsis and psycho-social support are often appreciated, but an ongoing political struggle, and substantive socio-economic and political change, which something like a truth commission can recommend, and sometimes contribute to, but cannot be expected to achieve.

–

This article was first published in the Review of African political Economy (ROAPE).

During the five-year-long proceedings at the International Criminal Court (ICC) against former Ugandan rebel commander Dominic Ongwen, there was not a peep from the Ugandan government about the ICC’s bias against Africans.

Uganda’s President Yoweri Museveni did not show any such restraint towards the ICC when he was the chief guest at the April 2013 inauguration of then newly elected Kenyan President Uhuru Kenyatta.

“I was one of those that supported the ICC because I abhor impunity. However, the usual opinionated and arrogant actors using their careless analysis have distorted the purpose of that institution,” Museveni said in his 9 April 2013 speech. The actors he made indirect reference to were unnamed Western countries.

Museveni accused those actors of using the ICC, “to install leaders of their choice in Africa and eliminate the ones they do not like.”

At the time Museveni spoke, Kenyatta and his deputy William Samoei Ruto were due to face trial at the ICC. The case against Kenyatta was terminated in March 2015 before trial hearings began. Ruto’s case was terminated in April 2016 after the prosecution had called its witnesses. In a majority decision, the judges said the case against Ruto and former journalist Joshua arap Sang had deteriorated so much that they could not determine Ruto’s and Sang’s innocence or guilt. The judges said the case deteriorated because of a campaign to intimidate and bribe witnesses.

No sense of irony

During the April 2013 inauguration of Kenyatta, Museveni exhibited no sense of irony when he accused unnamed actors of using the ICC to eliminate leaders they did not like. By the time Museveni was making his speech, his government had already debated and agreed to use the ICC as one way of “eliminating” its problems with the Lord’s Resistance Army (LRA) rebel group in northern Uganda. In December 2003 Uganda formally asked the ICC to investigate the atrocities committed in northern Uganda.

Following that formal request, Uganda shared with the ICC’s Office of the Prosecutor (OTP) several years’ worth of recordings of the government’s intercepts of LRA radio communications. Together with those recordings, the government also gave the OTP the contemporaneous notes made of the intercepts. On top of that, the government also gave the OTP a list of 15 LRA leaders it believed were responsible for the atrocities committed in northern Uganda.

All this emerged during the course of Ongwen’s trial at the ICC for his role in atrocities committed between 2002 and 2005 in northern Uganda. Ongwen, a former LRA commander, was convicted of 61 counts of war crimes and crimes against humanity in February this year and was sentenced to 25 years in prison in May. Ongwen is in the process of appealing against his conviction and sentence.

In his April 2013 speech, Museveni acknowledged that his government had cooperated with the ICC. “We only referred Joseph Kony of LRA to the ICC because he was operating outside Uganda. Otherwise, we would have handled him ourselves,” said Museveni. This statement is only partly true.

When in December 2003 Uganda formally requested the ICC to investigate the atrocities committed in northern Uganda, Kony was based in what is today South Sudan. But he was there with a small group of senior LRA commanders and other LRA members. During Ongwen’s trial, the court heard that by the time Uganda made its referral to the ICC, most of the LRA’s commanders and members had left the group’s rear bases in then southern Sudan and crossed the border back into northern Uganda. This is because Uganda had reached a deal with Sudan that allowed it to cross the border and attack the LRA’s rear bases. Uganda called this military offensive Operation Iron Fist.

African leaders protecting each other

The Ugandan government’s actions may seem contradictory but they fall well within the pattern African leaders have adopted when it comes to the ICC. Whenever there has been a case against an African president or deputy president at the ICC, this has been discussed at the African Union. As for ICC cases against other Africans, the African Union has not discussed them or passed resolutions on them, even if those cases involved former presidents or vice presidents. Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

Ever since, in July 2008, the OTP applied for an arrest warrant against then Sudanese President Omar al-Bashir in connection with the atrocities committed in Sudan’s western region of Darfur, the ICC has been on the agenda of the regular African Union meetings of presidents and prime ministers. ICC pre-trial judges eventually issued two arrest warrants against al-Bashir in March 2009 and July 2010.

African heads of state and government usually meet twice a year as the summit of the AU. Between 2009 and 2020, at each of those summits, they passed resolutions on the ICC or they reaffirmed past resolutions on the matter and directed a ministerial committee to follow up on those resolutions. The resolutions African leaders have passed at these summits have called for the termination or deferral of cases at the ICC implicating serving heads of state or their deputies.

Despite its contradictory approach towards ICC matters, the African Union has not shied away from accusing the ICC of having an Africa bias.

None of the resolutions has mentioned any of the other cases that have come before the ICC such as the one against Laurent Gbagbo, Ivory Coast’s former president, or the one against Jean-Pierre Bemba, a former vice-president and senator of the Democratic Republic of Congo. The ICC has concluded the cases against Gbagbo and Bemba, acquitting both of them.

The African Union has not been the only critic of the Africa-bias in case selection at the ICC. Academics, lawyers and members of civil society have all criticised or highlighted this bias. But the African Union has been the loudest critic. And what the African Union has said on the issue has often been summarised to mean Africa is against the ICC.

Presidents have immunity, ok?

But this paring-down a complicated issue has blurred the African Union’s two-track approach in its relationship with the ICC. Whenever a head of state such as Sudan’s Omar al Bashir is the target of an arrest warrant, the African Union is strident in its criticism of the court. After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

Instead, the AU has now turned its focus on the issue of the immunity of heads of state and other senior government officials. Under the Rome Statute, head of state does not have immunity if that person is charged with a crime under that Statute. What’s more, the ICC regularly communicates with member states when the court has been informed that a person for whom there is an outstanding arrest warrant is traveling to those member states.

This was the case with al-Bashir when he was Sudan’s president. Some countries chose to ignore the ICC’s communication. Others advised al-Bashir not to travel to their country and risk arrest. And some have argued they could not arrest al-Bashir because he was in their country to attend an international meeting they were hosting and that, under international customary law, al-Bashir enjoyed immunity for the purpose of the meeting. This is what South Africa and Jordan argued when the issue of immunity for heads of state was litigated before the ICC.

The most recent AU summit resolution on the ICC was issued in February 2020. In it, AU member states are called on to “oppose” the ICC Appeals Chamber judgement in a case Jordan had filed. The resolution said the decision by the ICC Appeals Chamber was, “at variance with the Rome Statute of the International Criminal Court, customary international law and the AU Common Position.”

The judgement referred to in the AU resolution dealt with the question of whether Jordan, as an ICC member, should have arrested al-Bashir when he went to Jordan in March 2017 to attend a regular summit of the League of Arab States. The ICC Appeals Chambers was unanimous that Jordan should have arrested al-Bashir when he visited that country.

After al-Bashir was toppled from power in April 2019, his arrest warrants ceased to be the subject of AU resolutions.

The five-judge panel also agreed that customary international law gave heads of state immunity in certain circumstances such as immunity from another country’s jurisdiction. But the Appeals Chamber concluded that such immunity did not extend to executing ICC arrest warrants.

The AU’s call to oppose the ICC Appeals Chamber’s May 2019 judgement on Jordan ignores one thing: the AU made submissions to the Appeals Chamber before it reached its judgement. The AU made its submissions at the invitation of the Appeals Chamber. The AU’s chief lawyer, Namira Negm, led the team that argued its submission during the hearings on the Jordan case that were held between 10 and 14 September 2018.

In the February 2020 resolution, the AU also asked African members of the ICC to raise before the court’s membership issues that concern African states such as “the rights of the accused and the immunities of Heads of State and Government and other senior officials.” The resolution further asked African members to “propose necessary amendments to the Rome Statute within the ambit of the ongoing discussions on the reform of the ICC,” by its membership.

Making peace without al Bashir

One reason the AU gave against effecting the arrest warrants against al Bashir was that he was key to bringing peace to Sudan’s western region of Darfur. The AU was involved in negotiations for peace in Darfur, a process that has been on and off over the years. Ironically, once al-Bashir was removed from power in April 2019, the transitional authorities who replaced him were able to initiate and conclude peace deals on the Darfur conflict last year.

In August this year, the Cabinet in Sudan resolved to hand over al Bashir to the ICC in execution of the two arrest warrants against him. This is a significant step since the transitional government took office in 2019 and indicated that Sudanese authorities were considering reversing the previous position that al Bashir would not be handed over to the ICC. The next step is for the overall transitional authority in Sudan, the Sovereignty Council, to discuss the Cabinet decision and decide whether to endorse it.

Ignoring victims

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent. When a conflict is at its peak, victims will receive emergency aid. The more prolonged a conflict becomes, the less aid victims receive. Rarely will such aid be from the victims’ government. And often that foreign-donated aid is all that victims of conflict can expect.

The perpetrators of the conflict that made them victims are rarely held to account for the atrocities they committed. Yet, victims live with the consequences of those atrocities for the rest of their lives. This was the constant refrain of the victims of the northern Uganda conflict who testified during the Ongwen trial.

The criticism levelled at the ICC that it is biased against Africa often ignores a key issue: the victims of conflict on the continent.

Women testified about their families rejecting them because they returned home with children they gave birth to while with the LRA. One person testified about having to change schools several times because teachers and students abused him when they found out he had been in the LRA. Another person testified about wanting to resume his education that was interrupted when he was abducted by the LRA but he did not earn enough to do that and also educate his children. So he has focused on educating his children.

These and other victim stories are rarely spoken about whenever the ICC is criticised of having an African bias.

In Uganda, evictions of the poor from land by the dominant economic class have been common in the last two decades. They have mainly been classified under the broader rubric of land grabbing.  Land evictions are a microcosm of Uganda’s political economy and offshoots of lapses in land governance and the unending land reform processes.

Eviction scenes are usually characterised by the following: a group of  people (most often hired goons) destroying crops; a grader destroying structures or debris from already destroyed structures; victims trying to salvage their belongings from the debris (usually basic household items such as overused mattresses, plastic plates, cups, and clothing); stick-wielding victims voicing their frustration in front of media microphones/cameras, affirming their claim to the land and calling on a powerful agency or a politician to intervene (at times these calls to intervene are directed at the government using the popular Luganda phrase, “tusaba gavumenti etuyambe” (we are begging for the government’s intervention/help); women crying profusely, pacing around the scene, asking rhetorical questions (usually concerning their dire helplessness as widows/sole providers for their families and  wondering how they will pay off that loan or feed the children now that the food is destroyed); and people in uniform wielding guns and court papers purportedly authorising the eviction.

This description of evictions is a metaphorical representation of the actors, powers, agendas, and interests at play in land contestations. It is usually the face of other invisible forces deeply rooted in the letter of the law, power play, and asserted by a court of law through interpretation or misinterpretation. The scene can be appropriately captioned “noise verses uniforms, guns and court papers”. The poor can only amplify their voices of dissent by wielding sticks, while the instruments of state authority (uniforms, guns and court papers) remain in the hands of their tormentors.

The scene also presents a number of dichotomies: a class struggle between the underclass/poor and the dominant economic class, between the powerful and the subordinated/oppressed, citizens and subjects. The constitutional notion of citizenship bestows upon all Ugandans the right to state protection. Land conflicts have however presented a dynamic where the rich and powerful are more of citizens than others, for they can use the law and state institutions to assert their “entitlement” against the underclass/poor. Those who lose their land in this context become “subjects” whose claims are dismissed as merely an annoyance rather than “rights” worth defending. The “subjects” can only cry out for help as a privilege rather than a right. This is evidence that the most recent land law reforms of 1995, 1998 and 2010 have not yet benefited the majority of victims of land evictions. Their social-economic existence is destabilised. To them, the law is a powerful tool in the hands of the economically and politically dominant group.

The Constitution of Uganda recognises four tenure systems: mailo, freehold, customary and leasehold. Evictions have taken place on land held under all four tenure systems across the country. Not every eviction is unlawful, but unlawful evictions abound in Uganda’s history, and have intensified in recent times. They cause land conflicts, destabilise society, retard land-based production and curtail free marketability of land. Debates on land reform are frequent and the country is currently debating another range of reforms on the mailo system of land tenure.

There is need to understand the dialectic views about the need for reforms in this area, and I offer some discussion here. I take a teleological approach, avoiding the polemic debates on how we got here and focussing instead on what we could learn from and do about the sticking issues in the land reform processes in Uganda. I also explore the pro-commercialisation and other efforts aimed at land restitution in other countries, as well as the politics of the “entangled” interests on mailo land in Uganda, and how this shapes the efforts and politics of disentanglement. Land law has been used as a tool in the politics of entanglement and disentanglement. I argue that the law is not the magic bullet; it rarely addresses the underlying intersectional quandaries of a social, economic and political nature that normally converge in the spaces of the poor/underprivileged. Law should be coupled with other legitimate efforts aimed at disentangling the convergence of the issues referred to above and understanding the roles played by the various actors in land conflicts and their resolution. 

Land reforms elsewhere

Land reforms elsewhere are characterised by scenes where (just like in Uganda) voices  of protest confront forces wielding state authority sanctioned through law reforms, the poor pitted against the economically empowered in the struggle over land. A number of African countries have undertaken land reforms in the recent past, achieving—according to official supporting discourses—a constellation of gains ranging from correcting historical flaws, improving tenure security, promoting the capital value of land, and protecting indigenous communities, among others. South Africa and Zimbabwe stand out in the Southern Africa region. South African reforms have included a broader agenda to annihilate the dangers associated with the land dispossessions perpetrated against the black population during the apartheid era. Debates about racial inequalities, and restitution and/or compensation have been current in addition to communal land tenure policy initiatives aimed at vesting land in tribal authorities and streamlining its use and access within that traditional body politic. Expropriation without compensation is another hot debate in the South African context.

Land law has been used as a tool in the politics of entanglement and disentanglement.

In Zimbabwe, a number of land reforms took place in turbulent fashion in the early 2000s (of course there were efforts at land reform in the 1980s). Like in South Africa, reforms involved reversion of land from white to black farmers (put simply). The views about these reforms have been divergent with some believing that they have helped the small-scale farmer to gain ground in the agricultural market economy, while others see the initiatives as disastrous and unsustainable in economic and human rights terms (if all, both black and white, are considered citizens).

Next door in Kenya, the most recent reforms were heralded by the inauguration of the 2010 Constitution followed by the new land law of 2012 and the Community Land Act of 2016, among others. As elsewhere, the reforms were justified on a number of bases including inequitable distribution of land, historical injustices, landlessness among the poor, increasing trends of land grabbing, and the need to streamline communal land use. In her recent book, The Struggle for Land and Justice in Kenya, Ambreena Manji argues that one of the problems with reform in Kenya is the parochial view of “land reform” as reform of land law that leads to focus being placed on reforms within the land management and administration institutions that are pivotal to the exercise of bureaucratic power.

This approach diverts attention from the broader questions of access, land justice for the poor and unequal distribution. Manji further believes, “We must attend to insurgent knowledge and ideas of change.” In essence, any reform programme should aim at deeper and broader change beyond legal reforms in order to address the plight of the subaltern poor caught up in contestations over land. Such an approach questions the dominant but rather rhetorical narratives of the state as the protector of rights and people, to address situations where symbols of state power (uniforms, guns and court papers) are ironically applied to entrench a skewed power position to intimidate and dispossess victims in land conflicts/evictions.

The Uganda case 

Public debate in Uganda has recently been dominated by discussions on the reform of the mailo land tenure system, with views varying from those that believe it needs to be reformed (and may be abolished) to those that believe that the mailo system does not need to be reviewed. Uganda has gone through a series of land reforms over the course of the country’s history, with each reform influenced by the political, social and economic factors prevailing at the time. In 1975, President Idi Amin abolished all perpetual land ownership tenure systems and vested all land in the state, which granted periodic leases to land users. The post-1995 land law reforms re-vested land back in the citizens to hold by virtue of the revived tenure systems (mailo, freehold, customary, in addition to leasehold). Unlike in the past, the post-1995 period saw heightened contestations over land and witnessed classic evictions.

The 1900 Agreement is often seen as the precursor of mega-reforms in the mailo system of land holding. The Land Law of 1908 introduced reforms to address the lack of clarity identified in the findings of the Carter Committee of 1907. Among the issues raised was whether the 1900 agreement introduced a new system which changed the reciprocal obligations that existed between landlords and tenants (embedded in custom and tradition) prior to its signing. The 1908 law defined and drew the boundaries of the mailo system introduced under the 1900 agreement. Mailo land could be transferred to anyone in the Protectorate (outside the clan system of Buganda) and it was no longer land exclusively governed based on Ganda customary law. In 1928, the Busulu and Envujjo law attempted to reorganize the landlord-tenant relationship by, among others, stipulating the rent payable and other terms of use. This was following tenants’ complaints of exploitation by landlords who were charging exorbitant rents. In 1975, mailo interests were by law commuted to leaseholds when land was nationalised, a position that was reformed through the Constitution of Uganda in 1995 and operationalised through the Land Act of 1998.

Any reform programme should aim at deeper and broader change beyond legal reforms in order to address the plight of the subaltern poor.

Reforms are not new. The question is why haven’t they delivered on their agenda to address the so-called “land question”?  Can reforms focusing on the mailo land tenure (mainly in central Uganda) address all the problematic land issues at a national level or those associated with  other tenure systems such as  the vast customary tenure predominant in the north? Are we asking the right questions to guide reform processes? Are we addressing the right problems? Does the operating environment allow for clear and focused reforms? Can focus on “law reform” (to refer to Manji’s conceptualisation) without addressing the underlying social-political issues resolve the multifaceted nature of challenges encountered in the mailo system?

All these questions have one answer. Land is a part of the political repertoire and therefore efforts to bring about land reforms involve managing politics, society, and the economy, yet the balance is not easy to strike. Although cumbersome for some, the unresolved land issues are exploitable “stock”’ for others.  Beneficiaries of the “stock” would therefore not opt for approaches that resolve the problem once and for all, since that would not be just a trifling inconvenience but a big loss.

The “miles” of “entangled” land

Any attempt at reforming the mailo system requires a broader approach using multiple lenses to disentangle the various legal and social-political issues that characterise its structure and practice. Broadly, the mailo system is entangled in class, religion, culture, politics, etc. Specifically, it is first entangled in history, conjuring historical rationales and claims that are also embedded in culture/traditions whose contemporary relevance may come into question. Who was who and who is who in terms of control of the centres of power. Does the new generation embrace the shifts (if at all) in the power centres? Second, the mailo system is entangled in the argument about the fairness of land distribution under the 1900 agreement and its contemporary relevance in debates about the classes of “victims” and “beneficiaries” in the mailo land tenure system.

Third, mailo system is entangled in the geopolitical imperative to promote registration and free marketability of land as a part of the broader goal of promoting a neoliberal model of development. In Uganda – The Dynamics of Neoliberal Transformation, the country is described as an exemplar of African countries that have fully embraced neoliberal restructuring that has resulted in significant economic growth, but also in inequality, concentration of wealth, corruption, and privileging production paradigms (as opposed to others of social value). Neoliberalism has also influenced land reforms by commodifying land and placing it in the markets, by increasing the relationship between land and commerce, and by changing the exchange value of land.

Fourth, mailo land is also entangled in the national political agenda on land reform, officially presented as a pro-poor logic; reform the land laws to strengthen protection of land occupants against land title holders. Fifth is the cultural issue where talk of mailo land evokes debate about the monarchy of Buganda and its power over land (mainly the official mailo land), considered trust land held by the King in trust for the people of Buganda. Crucially, land in Buganda is currently occupied by people/social groups from all over the country, including the powerful, and “foreign investors”.

Land is a part of the political repertoire and therefore efforts to bring about land reforms involve managing politics, society, and the economy.

Understanding these entanglements is invaluable in debates on mailo land reforms. One should take a microscopic view of them all in order to decipher them; use them as a guide to identify the actors to engage with; transcend blemished determinist economic views in the rationalisation of the purpose of reforms; promote debate and constructive engagement; avoid ideational and discursive hegemonic approaches shaped by subjectivities in perspective.

With the above, the law may indeed not be the silver bullet. It contains positive initiatives that would go a long way to solving the problem, but at the same time, it has contributed to the stalemate thereby further entangling the mailo tenure system. The reforms have largely not delivered emancipation for the oppressed, or corrected the power imbalances and the resulting injustices.

Beyond the law 

The Constitution and the Land Act aim to “streamline” the “relationship” between the landlord and the tenant. This presupposes continuation of the dual/conflicting rights on the same piece of land for title holders and tenants/occupants, with some changes in the reciprocal rights and obligations for both, and amicable social co-existence. The land by implication remains entangled in the dual claims of the landlord and the tenant, albeit in a regulated manner. There are a number of initiatives in the Land Act aimed at regulating the landlord/tenant relationship, a few of which are highlighted here.

First, the tenant is guaranteed security of occupancy and protected against eviction on condition that s/he pays rent to the landlord. The rent is “nominal”/“non-commercial”, fixed through government bureaucracies with the resulting “coercive security of occupancy” for the tenants. The landlords are obliged to receive the rent (even against their will) and refrain from evicting the tenants.

This has elements of imposing “edifice” since market forces are locked out in the determination of rent and the social good of the tenant is considered to be of paramount importance. It is believed that such approaches of regulating rent entrench the social aspects of the landlord/tenant relationship in recognition of the historical dimension of the mailo system of land holding. The tenants can occupy the land as long as they pay the nominal rent to the landlords, which sustains the existence of dual rights on the same piece of land.

Second, the tenant can apply for certificate as evidence of his/her occupancy with the consent of the landlord. This is then registered as an encumbrance on the landlord’s title. It is ironical to expect that the landlord will accept to further entangle the land, and limit its application in the market.

Third, the landlord and tenant can jointly hold the land or equally agree to share it such that each can exclusively hold and occupy a portion. The skewed power patterns between landlord and tenant most times hinder the possibility of an amicable and fair agreement/outcome.

Fourth, under the Land Act, the tenant may request the landlord for a mailo title, freehold (resulting in subdivision of land and grant of exclusive ownership to the tenant on agreed terms), or a lease. Considering the fact that the majority of tenants are financially constrained, yet land is of high value and in high demand on the open market, it is unlikely that such negotiations would yield in the interest of the tenant. Offering the land on the competitive market is normally a more viable option. In some instances, the lack of assistance from a third party to participate in the negotiations exposes the tenant to exploitation by the landlord. In essence, unless the Land Fund provided for in the law is capitalised and applied to facilitate land acquisitions by tenants on mailo land, land will remain unaffordable to many.

The reforms have largely not delivered emancipation for the oppressed, or corrected the power imbalances and the resulting injustices.

Fifth, the law allows either landlord or tenant to sell their interest to the other or in case of a sale on the market, to consider the other as the one with priority to purchase. A 2016 study that I conducted for the Public interest Law Clinic of Makerere University finds that realities on the ground render many of the initiatives above mere perceptions of protection that fall short of the lived experience of people in a landlord/tenant relationship on private mailo land.

A 2010 amendment to the Land Law allows the landlord to sell the encumbered land to a new person who steps into the landlord/tenant relationship with the tenant(s), yet the tenant who sells in violation of the law (offering first to the landlord) commits a criminal offence punishable by law. This change (in favour of the landlord) perpetuates the entangled situation of the mailo system, which at times leads to evictions by new landlords.

The big question remains: how can the layers of entanglement be disentangled?  To eradicate the dual and overlapping rights (of landlords and tenants) on the same land, the best two options are, first, mutual agreements to share land such that both landlord and tenant get (exclusive) registered title and, second, grant of leaseholds by landlords to tenants. The law makes provision for government support to acquire registered interest in land through the land fund. The law is to some extent confirming Manji’s argument, since it has not yet delivered on its promise. A lot more needs to be done in order to achieve the promises set out.

The dangers associated with the unintended consequences of going too far back in history outweigh the benefits.

Addressing the issues using the already existing initiatives is advantageous in many ways, and the assumption is that they are a product of consensus. This is more a from–now–onwards approach to the problem, conveniently avoiding peeling the discursive frames rooted in history to establish right and wrong. Remedying historical wrongs can be important, but some scholars (such as Jenna Thompson in Taking responsibility for the past: Reparations and Historical Injustice commenting about the choice between restitution and compensation) have argued that at times the dangers associated with the unintended consequences of going too far back in history outweigh the benefits.

For Uganda, the dual and overlapping rights to mailo land—with landlords holding registered title and tenants claiming occupancy rights—is a product of historical events heralded by the 1900 agreement. This situation perpetuates land conflicts and evictions. To resolve it, it will be necessary to ensure the active involvement/agreement of all those who are affected (landlords and tenants, and other actors). Also needed is government support to ensure that such agreements do not overly burden the weaker party (the tenant with occupancy). This will be facilitated by the gathering of information on the amount of land that is currently under the mailo system, how many landlords and tenants there are, how many are absentee, the location of the land, how much mailo land is without tenants, etc. This will fill the information gap and facilitate the reform process. Reform processes should provide a platform to discuss the problematic land issues in the whole country beyond the central region, by all citizens beyond the Kabakaship and the presidency.

In the meantime, rampant evictions are an indicator of the law’s and the system’s failure to address the sticky issues regarding mailo land. Yet land remains an arena for the entrenchment of class differentiation, portrayal of power and fear of the pro-commercialisation reforms that may lead to loss of land. The fact that mailo land is entangled has not stopped the rich and investors from evicting the poor. The entangled nature of the tenure is a “mess” that is exploited by the evicting class with impunity. Disentangling the tenure through provision of clear interests/proprietary rights (leases or mailo titles) could equip the disenfranchised tenants with the tools to assert their rights. If not, the metaphorical scene described here will remain the hallmark of land relations in Uganda.