Land rights and displacement in northern Uganda

The long-running conflict in northern Uganda between the government and the Lord’s Resistance Army (LRA) is often considered one of Africa’s forgotten humanitarian catastrophes. During the past two years, the profile of the war has been raised, both politically – especially with the involvement of the International Criminal Court – and in humanitarian terms, with a (long overdue) increase in presence and commitment from the international community. Yet one aspect of the crisis continues to escape discussion and attention. One hears talk of ‘rights’, ‘the law’ and ‘justice’ in relation to the situation of internally displaced people in the north, but little on the fact of displacement itself. Displacement, being moved from one’s land and being forced to settle somewhere else, is an issue of legal land rights. While the impact of displacement is a humanitarian concern, land rights themselves are rarely considered.

The context: a decade of displacement in Uganda

Mass displacement in northern Uganda began in 1996, when the government ordered civilians into camps, in most cases without prior discussion with host communities. A second round of government-organised displacement took place in 2002, and people have also been displaced by the fear of rebel attack. The current camp population is estimated at around 1.5 million, including the existing inhabitants of the land where the camps are now situated. Since host populations live in the same camps, and may also have limited access to land, they are also generally considered to be IDPs.

Do IDPs have land rights?

Some look to international law and conventions to substantiate claims to rights on behalf of IDPs, and the Universal Convention on Human Rights, to which the Ugandan government is a signatory, recognises land rights. National law is often overlooked, but may be more practical:

• Specific legal rights are unambiguous.
• Rights are un-contestable within a country.
• All (including the state) are obliged to respect legal rights, and there are procedures (through courts of law) for sanction and redress.
• National law is the mechanism through which international conventions are supposed to be enforceable.

Several acts of parliament deal with land rights, but the two key documents are the 1998 Land Act and the Ugandan Constitution of 1995. These give landowners three clear sets of rights which are relevant to displacement:

• The right to be compensated if the state compulsorily removes them from their land.
• The right to protect their land from squatters, even if these are IDPs who are unwillingly forced upon their land – unless the state claims the right to temporarily take over their land, paying them full compensation.
• Rights over their land while displaced, including the right to cultivate land and the right to compensation if anyone, including the state or its organs, destroys crops or property on their land.

Recognition of land rights for IDPs (and ‘IDP-hosts’) has been complicated by the question of who is a landowner. Ugandan law recognises what is called ‘customary ownership’ of land, i.e. claims to ownership which are recognised locally, whether or not the claimant has any formal papers to ‘prove’ ownership (e.g. title deeds). Customary ownership is legally equal to having title, though land held under customary tenure is subject to any local ‘customary’ rules of ownership (e.g. rules on inheritance or various rights to use land which other members of the family may have). Many have tried to argue that land ownership is traditionally communal in northern Uganda. If land were owned communally ‘by the clan’, then individual families would not have land rights as owners. This would also mean that displacing them from one place to another within their clan territory would not violate their legal ‘ownership’ rights, as long as they could be found some land – any land – in the place to which they had been moved. (Most IDPs in northern Uganda are in camps within 5km of their homes.) In other words, hosts would have no more rights than the clan kin forced onto ‘their’ land.

The widespread belief that land ownership in northern Uganda is communal is in fact incorrect, and stems from a misunderstanding of the concept of ‘ownership’. Research commissioned in 2004 by the Civil Society Organisations for Peace in Northern Uganda, an advocacy coalition of around 40 local and international NGOs, conclusively showed that land is held as private property in the parts of Uganda where displacement has occurred. Land is owned either by families or by households: when people say that ‘land is owned by the clan’, they are referring to something quite different from private ownership. The clan traditionally has the right to make the rules about who owns land, and which rules owners must follow in managing their land. This is analogous to powers which states claim over land which citizens own (such as zoning, setting land law, establishing courts of law and planning permission), but is quite different from the right of ownership. The distinction may be difficult to follow, or seem unduly pedantic, but a simplification of the ideas of ‘clan ownership’ has made it much easier to ignore or downplay violations of IDPs’ rights.

Violations have included:

• Several hundred thousand people have been forcibly displaced by the state, with no compensation offered.
• Trees on IDP land have been burnt down, as security forces set fires to remove cover for rebels.
• IDP and army camps have been set up on private land without permission or compensation.
• Public facilities have been constructed on private land, without compensation being paid. Where camps have become market centres, local authorities are simply taking people’s land, for instance to build roads.

Are land rights a humanitarian issue?

Humanitarian agencies seem uncomfortable with the idea of land rights. There are several possible reasons for this:

• The issue is seen as too complicated – the restricted domain of lawyers. Few agencies have this expertise.
• Land rights have not become part of the humanitarian discourse, so few agencies even realise there is a problem.
• In humanitarian crises we tend to fall back on generic responses. Land rights are very context-specific.
• The desire of some agencies to support and remain friendly with the authorities seems to make them reluctant to acknowledge that citizens have rights, and that the authorities may be violating those rights.

We would argue that understanding land rights is vital in responding to displacement in northern Uganda (and, we expect, in other crises involving displacement) on two main grounds:

• Respect for rights is an integral part of all humanitarian action.
• An understanding of land rights will affect many of our interventions. This is partly because humanitarian catastrophes are not the self-contained ‘case’ to which agencies respond, but are also the context within which other tragedies occur, for which attention is needed but is often absent. The ongoing violation of land rights in many different ways is a key current and future cause of destitution.

The obligation to respect rights in humanitarian response

Humanitarian actors have a duty to obey the law (even where the state itself does not). Humanitarian agencies have no right to use people’s land for building schools, roads or wells without permission from the landowners, and without paying compensation where appropriate. (Agencies have no right to take advantage of landowners by soliciting their permission instead of paying compensation.) Some have done so, and their only protection from legal action is people’s ignorance of their rights.

Many grievances underlie the conflict in northern Uganda, including a belief among many IDPs that the government displaced them in order to deprive them of their land. If agencies also fail to respect IDPs’ land rights, this only fuels anger; conversely, respecting their land rights would support a belief that displacement is temporary. Giving people land rights also gives them ‘agency’. When we treat people as powerless victims, we reinforce their sense of powerlessness, fuelling violence and despair. Land rights are almost the only area where IDPs have the power to oblige us to show them respect.

Finally, the whole humanitarian raison d’être rests on a belief in the value of human rights, including land rights. We should not discriminate. The international community demands respect for the land rights of white farmers in Zimbabwe, but ignores the same rights of black farmers in Uganda.

Land rights and humanitarian interventions

A more detailed understanding of land rights and how claims to land are actually made can make interventions far more responsive to the actual problems that people face. In displacement, people still lose land rights in the usual ways – disputes with neighbours, widows being evicted by in-laws, orphans having land grabbed by relatives, local authorities illegally seizing land. The poverty of displacement intensifies the difficulties faced by these victims. Most agencies limit themselves to seeking to understand how people use land (farming techniques), but more poverty is caused by losing land than by farming it badly. In Gulu, an estimated 15% of IDPs in 2004 had entered into contracts to rent land from landowners, who then threw them off the land mid-season. Had more attention been paid to their legal rights as tenants, thousands of people could have been saved from near-destitution. Land cases are the most common disputes brought to legal assistance projects in Acholiland, but dispute-resolution mechanisms are lacking. Helping to re-establish customary law courts and linking them to the state judicial system would make justice accessible, restore a sense of normality amid displacement and promote a system that will be essential on return.

Most IDPs and others believe that, on their return, the potential for land conflicts will be high, and will be a leading cause of destitution. This is not inevitable. Attention to the issues now could help address the problem. Agencies risk confining themselves to marginal relevance on resettlement if they choose to ignore the real problems which people are almost certain to face. In this respect, it is welcome that the 2006 UNHCR-led strategy for the protection of IDPs has for the first time recognised land issues as a priority. The state could show respect and recognise people as land-owners, without actually paying much more than symbolic compensation: this could be enough to reduce the political repercussions of displacement. The impact of this could be immense, in both the direct benefit to IDPs (by reducing stress and fear) and in contributing to a stable peace.

Finally, legal ‘land rights’ provide external actors with an avenue to pursue the government to ensure that the rights of IDPs are respected and protected. Talk about ‘human rights’ is often seen as ‘political interference’ and can be confrontational, but legal rights can be de-politicised. The place for settling these questions (where agreement fails) is in the country’s own courts. All governments protect their people best when the cost of not doing so will be higher. The fear of law suits is a powerful motive for governments in the West: why not in Uganda?

Humanitarian work is never easy, particularly in politically sensitive conflict situations. The humanitarian mandate obliges us to acquire the skills and knowledge necessary to respond most effectively and appropriately to relieve and prevent humanitarian suffering. If that means understanding the law, as well as water engineering and malaria control, then so be it.

Simon Levineis a consultant living in Uganda, who has worked extensively on land, conflict and food security-related issues in the Great Lakes region. Judy Adoko is a lawyer and the Programme Coordinator of the Land and Equity Movement in Uganda (LEMU). The authors can be contacted on slc@utlonline.co.ug, or LEMU@utlonline.co.ug.