Article 237 (1) of the Constitution vests land in Uganda in its citizens. Land may be owned by a "person" as provided for under Article 237 (3), which states that land shall be owned in accordance with a number of land tenure systems, namely Customary, Freehold, Mailo and Leasehold. Article 237 (2) (b) provides for land held in trust for the people and protected by government or a LG as determined by Parliament by law. Section 45(1) of the Land Act refers to these categories of land as “environmentally sensitive areas". These areas include national parks, forest reserves "and any other land reserved for ecological and tourist purposes for the common good of the citizens of Uganda."
Apart from the systems of land ownership listed above, the Constitution recognizes and secures the right and security of occupancy by a specific category of individuals on land legally owned by another. Article 237(8) of the Constitution refers to them as lawful or bona fide occupants. Lawful or bona fide occupants under clause 237(8) are occupants on mailo land, freehold or leasehold land i.e. land owned in accordance with the land tenure systems under Article 237 (3)(b), (c) and (d). They are not provided for on land reserved for ecological and tourist purposes. Section 30 of the Land Act, 1998 defines a lawful occupant and a bona fide occupant. Under section 30 (1) of the Land Act a "lawful occupant" is a person:
(i) Occupying land by virtue of the repealed¬ Busuulu and Envujjo Law of 1928 and Toro Landlord and Tenant Law of 1937; or
(ii) Who entered the land with the consent of the registered owner, and includes a purchaser; or
(iii) Who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of Title.
Under section 30 (2) of the Land Act, a "bona fide occupant" is a person who before the coming into force of the Constitution had:
(i) Occupied and utilised or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more; or
(ii) Been settled on land by government or agent of the government which may include a local authority.
The Land Act recognizes the uniqueness of land reserved for ecological and tourist purposes for the common good of the citizens of Uganda. As is the case in the Constitution, the Land Act treats them separately from other forms of land holding. Section 44 of the Land Act provides that “a person who owns or occupies land shall manage and utilize the land in accordance with the Forest Act, the Mining Act, the National Environment Act, the Water Act and the Uganda Wildlife Act.”
Section 45(1) of the Land Act creates an obligation on Government and a LG to “hold in trust for the people and protect natural lakes, rivers, ground water, natural ponds, natural streams, wetlands, forest reserves, national parks and any other land reserved for ecological and tourist purposes for the common good of the citizens of Uganda.” Section 45(4) prohibits Government or a LG from leasing out or otherwise alienating any natural resource referred to above. All that Government or LG could do is grant concessions or licenses or permits in respect of these natural resources.
(i) The Land Act does not operate in a FR. It would be unconstitutional. The Forestry Act provides for the management of FRs. Article 237(8) of the Constitution limits lawful and bona fide occupants to mailo land, freehold or leasehold land NOT to land reserved for ecological and tourist purposes. The Land Act, under Sections 30 and 44, further limits these occupants on areas in which their presence is recognized.
(ii) It should be noted that all FRs were declared before independence. If there were registered or customary occupants of such land, they were always left out as “enclaves”. Thus, the chances of finding a bona fide occupant are non-existent given that the term bona fide connotes lack of notice.
Instruction 511: A lawful occupant should be determined according to the Forestry Act and not the Land Act. The statutory Order declaring FRs is published in the Government Gazette, and this provides adequate notice to any FR occupant. A lawful occupant under section 29 of the Land Act cannot be found in a FR.