Orders of eviction against Kibanja citizens are constitutionally null

The rights of a Kibanja holder are defined under Article 237 (8) of the Constitution to enjoy “security of occupancy”.

The Constitution gave orders to provide that the land on which the Kibanja holders enjoys that security sits on tenancies of “mailo land, freehold or leasehold land”.

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This security of occupancy is to persist until Parliament fulfils its obligation under article 237 (9) (b) to enact a law that allows the Kibanja holders to acquire a registrable interest in the land over which they are in occupancy or possession.

According to Article 237 (1), the land belongs to the citizens and vests in them following the constitutionally-provided tenure systems.

Article 237 (3) provides four tenures: customary, freehold, mailo, and leasehold.

Under Article 237 (8), Kibanja holders have the security of occupancy on; mailo, freehold or leasehold.

The two tenures, namely, mailo and freehold, are all ownership forever.

According to Customary tenure under 237 (4), (b) is constitutionally responsible for being restored to freehold and therefore has ownership in perpetuity. Under Article 237 (5), the leasehold term is also constitutionally liable to be converted into a freehold.

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According to Article 21, all Ugandans are equal before and under the law in all spheres of political, economic, social, and cultural life, as well as in all other respects, and are entitled to equal legal protection.

The registrable right thus envisaged under Article 237 (9) (b) to be acquired by the kibanja holder is a tenancy interest under Article 237 (1) and (3) of the Constitution and must be a freehold tenancy created from the land on which they are occupying or in possession and to which the Constitution provides them with the security of occupancy under Article 237. (8).

This constitutional scheme means that Ugandans should have one tenure system- the freehold.

Article 237 requires Kibanja holders to obtain their freehold titles through a legal surgery curving the freehold title they are in occupation or possession of (8).

Article 2 of the Constitution delivers that the Constitution is the supreme law of Uganda and has binding force on all authorities and persons throughout Uganda.

The Constitution wins against any law or custom inconsistent with it, and any such business or law is declared null and void to the extent of the inconsistency.

Constitutionally, therefore, any court order evicting a kibanja holder who by Article 237 (8) is guaranteed security of occupancy is null and void as it is inconsistent with the safety of the kibanja occupancy provisions.

Such court order would also render nugatory the provisions of Article 237 (9) (b) for a kibanja holder to acquire registrable interest.