Children and Ugandan law

The 1995 Ugandan Constitution, its fourth, was the result of an extensive consultative process. While it is progressive in recognizing the special needs of children – and of orphans in particular – it raised uncertainties regarding the property rights of those holding their lands on a customary basis. Farmers with customary landholdings were guaranteed security of tenure by Article 237, but it was also stated that ‘land under customary tenure may be converted to freehold land ownership by registration’. While this was in keeping with progressive theories of property, the mechanisms for registering and converting land were not in place, nor were they articulated in the Constitution; they were developed later in the Land Act of 1998.

The Land Act brought about a transformation of the titling and dispute resolution systems and basic land law in Uganda. It created a mechanism for customary land to be formally recognized and then titled through certificates of customary ownership. The law captured contemporary economic thinking regarding property rights, in that there was a clear focus on creating security of customary tenure and titled freehold where it had not existed previously (Joireman Reference Joireman2007). The Land Act provided a legal path for transitioning from customary tenure to titled freehold. Mechanisms of land administration were decentralized to newly created district land boards and area land committees. Dispute resolution over land issues was to happen through land tribunals at the district level and through the Local Council (LC) Courts:

The intention of these legal changes was to make land administration and conflict adjudication accessible to citizens.

The 1998 Land Act also recognized children as holding an interest in customary land and prevented the transfer of family land without the approval of a land committee in order to protect the future rights of children. The same law also recognized the inheritance rights of customary land for orphaned minors.Footnote ² In Uganda, the state has led efforts to address children's property rights in customary systems. In this case, the goal was to protect children's property from those who might take advantage of their vulnerability. One person described the problem with regard to orphaned minors as follows:

Yet, attempts to provide legal recognition of children's property rights under statute law proved to be unworkable as they undermined the alienability of the land and therefore its use as collateral for loans, which was one of the goals of the Land Act.Footnote ⁴ The 2004 Amendments to the Land Act revoked recognized property rights for minors.Footnote ⁵

Uganda finalized a National Land Policy in February 2013, partly to clarify some of the issues left outstanding after the Constitution and Land Act. The land policy clarified the decentralization of land administration and the recognition of customary tenure. Land tribunals, which had ceased to function in the few places where they had been operative, were to be revived. The land policy restated that customary land held individually should be convertible to freehold tenure (Ministry of Lands 2013: 17). It also called for further legislation to protect the land rights of children (ibid.: 24). The 1995 Constitution, 1998 Land Act and 2013 National Land Policy all recognize customary tenure. The Land Act and land policy also acknowledge the role of customary leaders in resolving disputes. The land system in place is dual (customary and formal land rights) and convertible from customary to statutory, but not the other way. There is no recognition in Ugandan statute law or in the National Land Policy, of the unique challenges faced by northern Uganda as a post-conflict area. However, the policies noted above set the legal framework within which land issues arise.

Children and customary law

Customary law is a body of rules governing personal status, communal resources and local organization. In many parts of sub-Saharan Africa, including northern Uganda, customary law controls access to resources such as land, trees and water, and sometimes labour; it is extremely diverse and dependent on local context (Deng Reference Deng and Isser2011; Hinz Reference Hinz2010; Toulmin et al. Reference Toulmin, Delville and Traore2002; Woodman Reference Woodman2008).Footnote ⁶ Addressing customary law in sub-Saharan Africa, Gordon Woodman notes: ‘A customary law may be defined as a normative order observed by a population, having been formed by regular social behavior and the development of an accompanying sense of obligation’ (Reference Woodman, Fenrich, Galizzi and Higgins2011: 10). Unlike common and civil law, customary law is rarely ascertained or written down. In Uganda, there are nascent efforts to ascertain customary law (Ker Kwaro Acholi 2008; Kumam Elders’ Forum 2011); however, to date these have been fairly basic exercises that often leave out key elements. It is unclear whether these written documents provide their respective communities with guidance.

As members of a lineage or clan, children have a claim to nurture and protection as well as to the resources at the disposal of the group. For children, customary rights to property are distinctly different from those under statute law, as they are not automatically assumed when a child reaches his or her legal majority or on the death of a parent, but are contingent on marriage, the availability of land, and community standing.

In many, if not most, customary tenure systems in Uganda, a male member of a clan or lineage receives his own land at marriage.Footnote ⁷ Prior to marriage, young men are regarded as youth and not entitled to possess land. A discussion on a Ugandan land registration case illustrates both the legal principle and the recognition of customary practice in statutory law.

Achieving majority does not always mean gaining access to property under customary law. Typically, land for a home and cultivation would come at the time it was needed to set up an independent household: that is, after marriage, at which point adulthood is established.Footnote ⁸

Children may have stronger potential or future rights to land than wives or mothers under customary law because children are part of the lineage while women marrying into the family are not (Hakansson Reference Hakansson1994). Customary law in Uganda rarely accords women autonomous rights to immovable property such as land and houses, although this is beginning to change (Joireman Reference Joireman2008). In Uganda, women have use rights to land. While use rights are defended by customary adjudicatory mechanisms, they are not as strong as the land claims of children who are part of the lineage by blood.Footnote ⁹ Of course, women can always purchase land in their own names, which they would then fully control and be able to dispose of in any way they chose. Children, however, have a direct claim to lineage resources, and therefore their rights are stronger, particularly if they are male children. Increasingly, there is a shift to invest female children with rights to land and resources from their natal lineage.Footnote ¹⁰

Conflict has a specific and discernible impact on children's property rights under customary law as a result of two interrelated issues: the potential lack of guardianship and displacement from the home area. Generally, any circumstance that robs children of a parent or a guardian, whether it be through death or displacement, challenges the ability of a child to claim their property rights. The malleability of customary tenure systems and the lack of a formal record of lineage membership and landholdings exacerbate this problem in customary settings. Writing about Southern and Eastern Africa in the early 2000s at the height of the AIDS pandemic, Scott Drimie noted that orphaned children were at risk of losing both the presently held property of the parents as well as future access rights to lineage land. He observed:

It is challenging for children to assert their right to customary land when they have no well-intentioned guardian. This finding is echoed by Laurel Rose, who noted evidence from Rwanda of land-grabbers taking children's customary land, selling it, and appropriating the proceeds (Reference Rose2005). Interviews in Uganda during the AIDS crisis documented the struggle of Family Protection Officers to ensure that orphans were provided for by their extended families who were reluctant to do so.Footnote ¹¹ In all of these crises, there was insufficient protection of children's customary land rights, a salient threat where farming is the principal form of livelihood.

Customary land tenure systems are dependent on the role and knowledge of customary leaders. When people are displaced, those leaders can change and/or die, and the knowledge they carried with them disappears. When a community is torn by conflict, leadership change and population displacement, the possibility for adult exploitation of the property rights of minors is magnified (Joireman Reference Joireman2014). The self-interested behaviour of an older family member can block the land claims of the next generation, because the displacement occurred when they were minors, when their property rights to customary land were still future rights. In northern Uganda, there were instances of older relatives taking advantage of children orphaned in the camps to subvert their land rights. These actions were considered aberrant and condemned as illegitimate by those familiar with the customary system and with the obligations of the clan to ensure the well-being of its children.Footnote ¹² Without altruistic guardians, children have difficulty accessing land in customary systems where there is no legally registered title or certification. With no legal records regarding land claims, the restoration of property rights is dependent on the recollection of family members, recognition by authority figures, and return to the community.

Intergenerational conflict and customary law

The narrative on children's property rights set out above accurately suggests a vulnerability to resource loss that attends displacement or the death of a guardian. Yet, this is only one part of a complex narrative of intergenerational change and resource access. Violent conflict changes the nature of societies. It shifts interests, incentives and loyalties in unpredictable ways. In a few notable instances in other parts of sub-Saharan Africa, youth have used conflict and the resulting disintegration of the social ties of customary law as an opportunity to reconstruct a customary tenure system that benefits themselves. We see evidence of this happening in Côte d'Ivoire, where the conclusion of the civil war led to the re-establishment of communities, some under the leadership of self-declared ‘customary leaders’ who were really no more than groups of young, former combatants attempting to control resources in a way that would grant them better land (McCallin and Montemurro Reference McCallin and Montemurro2009). Similarly, in Liberia, ex-combatants took land for themselves without waiting for the permission of elders or traditional leaders. ‘When the war ended, these young fighters used their physical presence and position as victorious, and capacity to rapidly organize in self-defence groups if necessary, to appropriate land’ (Rincon Reference Rincon2010: 16). Post-conflict situations present a disruption to the social order, a moment when the path-dependent institutions of authority and resource access can be altered or changed by powerful actors. In the cases noted above, youth would not have been able to control resource access under the previously functioning systems of customary law, but the fact that they were armed and the customary systems had not yet been re-established created a moment in which they could redefine the rules of the game and assert control over land.

Northern Uganda

The conflict between the government and the LRA was one in which civilians were both victims of collateral violence and specific targets. The LRA gained notoriety for its extraordinarily malevolent practice of abducting children to serve as soldiers, servants and sex slaves. In addition to direct violence, local populations suffered from the trauma of displacement, and with it the burden of disease and the lack of food and shelter. By 2005, approximately 1.8 million people, including 1.2 million Acholi (90 per cent), were displaced by the conflict (Pham et al. Reference Pham, Vinck, Wierda, Stover and di Giovanni2005). There were two main causes of internal displacement: first, people spontaneously fled violence as it began to affect their communities, moving to towns and trading centres close to their homes or outside Acholi, swelling the urban population. Second, beginning in 1996, the government enacted a policy to move people into camps, ostensibly for their own protection and to ensure that they did not provide support to the LRA (Roberts et al. Reference Roberts, Ocaka, Browne, Oyok and Sondorp2008).Footnote ¹³ Indeed, the government forcibly displaced civilians, telling people in some areas that if they did not move to the camps, they would be considered rebels and killed (Branch Reference Branch2011: 76).

The statistic of 1.8 million displaced people encompassed only those who resided in IDP (internally displaced persons) camps and were officially counted, not those who moved to major cities and trading centres for safety. Life in the camps was horrific and did not protect people from the LRA. At the height of forced displacement in 2005, the World Health Organization reported 1,000 excess deaths per week in the camps (Uganda Ministry of Health and World Health Organization 2005). Poor protection and miserable camp conditions inflicted damage on social relationships. Exposure to violence fostered a generation disconnected from traditional norms of living, as roles and expectations shifted dramatically when people were removed from their normal livelihoods and contexts (Dolan Reference Dolan2009; Nannyonjo Reference Nannyonjo2005; Vorhölter Reference Vorhölter2014). While people were displaced for the longest periods of time in Gulu (as long as two decades), a 2006 survey of approximately 900 households in neighbouring Pader and Lira found that the average length of displacement there was four years and four months (Adelman and Peterman Reference Adelman and Peterman2014: 587).

Although no formal agreement has been concluded, a tentative peace has existed in northern Uganda since 2006. The LRA remains active, if severely weakened, in neighbouring countries, where they have been pursued by the Ugandan People's Defence Force as well as by US forces. From 2006, people began returning to their communities. Encouraged, sometimes pressured, by the government to return home, the vast majority had left the camps by the end of 2010.

When people returned, there was a host of anecdotal accounts of conflicts as new actors laid claim to resources; communities engaged in struggles over the boundaries of collective landholdings; and some reports indicated that those who returned first to an area claimed the best land, rather than that which they had previously occupied (Onegi Reference Onegi2012).Footnote ¹⁴ Ronald Atkinson has noted that: ‘Numerous concerns have arisen about regaining access to such land after many years of forced displacement, including the death of many knowledgeable elders during those long years of war, and the unprecedented number of widows and orphans produced by the conflict’ (Reference Atkinson2010: 333). It became apparent upon return that the contours of the land conflicts were often intergenerational in nature. Below, I identify four specific types of intergenerational land issues.

The first and most obvious issue was that children orphaned in the camps did not know their land or its boundaries. One of the problems in the reconstruction of communities in northern Uganda has been that the traditional leaders were displaced for so long that there was no longer local knowledge of land claims. ‘As people return to their villages, they are confronted with the realization that over a period of 20 years, clan leaders, heads of households and the elderly who would have knowledge of the previous set-up in the villages are no more.’Footnote ¹⁵ Older relatives, particularly uncles, could assist with this problem if they chose to do so, but not all did. The absence of a guardian with knowledge of the rightful claims of young people and willing to defend their interests, combined with the death of some customary leaders in the camps, caused difficulty for orphans in accessing lineage land to farm.Footnote ¹⁶ One chief noted that this was personally his experience; he could not properly remember the land boundaries and no longer had a parent to assist him.Footnote ¹⁷

The second issue was that of young people claiming customary land only to sell it rather than use it for farming.Footnote ¹⁸ While land sales are not unheard of in this area, nor is it just young people who sell land, historically sales have been rare. Some view sales as undesirable because selling land effectively moves it out of the customary system, thereby reducing the amount of land available to future generations.Footnote ¹⁹ As noted above, while both customary and formal land rights are recognized in Ugandan land law, movement between the two is unidirectional – towards formalization and out of the customary system. Blame was consistently placed on young people for claiming clan land – to which they have a right if their fathers belong to the lineage – and then selling that land. Their actions were seen as reprehensible because they were not using the land for its intended purpose of providing themselves with a livelihood while keeping the land under the control of the clan for future generations. Adults also sell customary land, but this was not consistently noted as a problem.

The third intergenerational land issue is gender-related. Under customary tenure systems in northern Uganda, women have secondary rights to land use and men have primary claims as members of the clan or lineage. Unmarried women can obtain land to farm from their natal clan, but women who have children are in a different category as the presence of a child makes it more difficult for them to claim land from their family. The clan of the child's father is supposed to provide the child's mother with land so that she can raise the children of his family on his clan land. There have been many cases in which young mothers have returned from captivity with the LRA or from the camps and their natal clan is not willing to give them land because under customary law they should receive land from the clan of the father of their child.Footnote ²⁰ Their children are pejoratively called ‘bush children’. In a 2015 study of children born of war (CBW), the Justice and Reconciliation Project (JRP) reported on a consultation they conducted with 447 people in northern Uganda, including 380 members of the Women's Advocacy Network (WAN). Women involved in WAN reported caring for 1,609 children, of whom 493 (31 per cent) were CBW, with the overwhelming majority of these children conceived as a result of sexual violence while the women were held in captivity (Opiyo Reference Opiyo2015: 3). When children are born as a result of sexual violence, the mothers often do not know the identity of the father. When the father is unknown, women face a double challenge: (1) they are unable to make a land claim for the child; and (2) they face difficulty in getting land themselves from their natal clan.Footnote ²¹ Women surveyed by the JRP were asked about their concerns for the future and 51 per cent of them identified land access for their children (Opiyo Reference Opiyo2015: 6). The JRP is involved in trying to identify the fathers of these ‘bush children’ so that they will be able to make land claims.Footnote ²² It is certainly not the case that all women who have CBW are excluded from their family land claims. Some natal families have accommodated the women – as they would have done in the past when land was abundant – but this is becoming less likely to happen because of the rising value of land, which makes clan elders more reluctant to give it to someone without a strong claim.Footnote ²³ Whyte et al. label this phenomenon as a kind of ‘patrilineal fundamentalism’, noting that ‘Acholi tradition is invoked to exclude people who, by all accounts, were traditionally made welcome’ (Reference Whyte, Babiiha, Mukyala and Meinert2012: 295). Acholi land allocation institutions are changing in response to rising land values, as economic theory would suggest (North Reference North1990).

Youth are widely perceived to be the cause of land disputes and are often the perpetrators of violence if conflicts escalate.Footnote ²⁴ Koro elders report instances of youth threatening their older relatives, to force them to give the youth land that they can then sell.Footnote ²⁵ Others report children encouraging their parents to engage in conflicts over land.Footnote ²⁶ One respondent noted:

The narratives people use to describe the role of the youth in claiming and selling land, and thereby expressing agency, describe it as a violation of the traditional ways; they claim that ties of obligation between generations were stronger in the past when young men needed their fathers in order to pay bride price when they got married. Julia Vorhölter identified this as a familiar discourse after conflict: ‘According to common belief, due to fundamental changes in socialization practices the young generation never learned societal rules and norms and therefore no longer knows Acholi culture’ (Vorhölter Reference Vorhölter2014: 155). Traditionally, fathers gave the money for bride price and provided the land for a new household to farm. Indeed, Frank Girling, in his study of the Acholi, noted the importance of both the consent of the father and his provision of bride price for sons to marry. In the absence of the father, this obligation falls to the agnatic kin. Men who were brought up in the homes of their mothers were to be pitied, as there would be no one to pay their bride price (Girling Reference Girling1960: 70).Footnote ²⁸ When people were living in the camps, fathers were unable to pay bride price and lost a key mechanism through which they were able to exert control over sons (Vorhölter Reference Vorhölter2014).Footnote ²⁹

Lastly, many people raised the issue of the increasing population and the fact that more young people have a claim to customary land than in previous generations.Footnote ³⁰ The population of northern Uganda increased significantly during the period of displacement, well above the rest of Uganda. In northern Uganda, the overall growth rate from 1991 to 2002 was 4.6 per cent, compared with 3.2 per cent for Uganda as a whole (Uganda Bureau of Statistics 2009). Half the population is under the age of fifteen (Hopwood and Atkinson Reference Hopwood and Atkinson2013: 18). Thus, the feeling that there are more young people to accommodate is accurate and problematic. It may also explain the perception that the land sale issue is a problem that originates with the youth rather than a generalized problem. A growing population makes intergenerational conflict more obvious and increases demand on customary land, and therefore its value.

These intergenerational issues are inconsistent across northern Uganda, with the customary systems working well in terms of land distribution and allocation in some places and poorly in others. For example, a number of people interviewed reported that there were more problems around land and intergenerational land conflicts in Amuru than in Gulu.Footnote ³¹ This is not surprising as there was wide differentiation between areas of northern Uganda in terms of the distribution of violence during the conflict, the percentage of the population displaced, and the length of displacement. We should not expect consistency in the aftermath of a conflict that was experienced unevenly. Beyond variances in displacement and violence, additional explanations for differences in land conflicts might be found in the effectiveness of customary conflict resolution mechanisms and variables that influence the value of land, such as soil fertility and population density.

Violent conflict and displacement in northern Uganda have accelerated the commercialization of land. Government policy envisions a gradual transition from customary to formalized landholding and provides a mechanism through which this can happen. Yet, government land policy has not been sensitive to the unique aspects of post-conflict return migration in Acholi. It is clear that the land conflicts in northern Uganda are not exclusively about the mechanisms of making the customary system work well, but include the negotiation of a transition to a land market.

In other post-conflict settings in Uganda we see a similar pattern of displacement, resettlement and then privatization of land via sales of plots held under customary tenure (Kandel Reference Kandel2016). Youth are embracing the changing options created by the Land Act and National Land Policy. The consequences of youth agency in selling land include the increasing speed of the transition from customary to formal landholding.

Forums to shop

A fascinating aspect of land conflicts in northern Uganda is the way in which the mediation of land disputes has become a means to make authority claims in the region. Many groups and individuals see the benefits of being perceived as trusted mediators of land conflicts. Control over land defines power in a place where the government presence is thin. LC1 officials in northern Uganda, the lowest level of elected representatives in Uganda, have not been replaced in over fifteen years because of a lack of funding for elections.Footnote ³² Moreover, the full implementation of the 1998 Land Act has not occurred. Land governance bodies at parish, sub-county and district levels are lacking (Hopwood and Atkinson Reference Hopwood and Atkinson2013: 9). Land tribunals, which were required by the 1998 Land Act, are also not operating: they were eliminated in 2010 in the few places in which they did exist because of a lack of funding. In spite of a renewed government commitment to land tribunals in the 2013 National Land Policy, they were still not present in Acholi at the time of writing this article. The absence of these institutions, and the questionable authority of existing LC1 officials, has led to an ambiguous institutional environment that enables a diversity of rule interpretations. It has also posed challenges to the resolution of conflicts over land. LC1 courts have limited legal purview over land matters. After serving for some time as a court of first instance, the Ministry of Justice and Constitutional Affairs stated that ‘land issues should no longer be dealt with by LC1 and LC2 Courts but should directly proceed to Magistrate Courts’ (van Leeuwen Reference van Leeuwen2014: 297). Interviews suggested that this directive was being followed, and although LC courts might become involved in land disputes, they could only mediate rather than make an authoritative decision.Footnote ³³

Without functioning land tribunals, the court of first instance for land disputes is the magistrate's court, which is unaffordable and inaccessible for most people with disputes over customary land.Footnote ³⁴ Moreover, land disputes that do come before the magistrate are often kicked out of court and the plaintiffs are told to go back to the clan and resolve the problem there.Footnote ³⁵ A person could try to take a land dispute to the LC1 courts, and some do, but any decision made there would not hold up to challenges. Another option would be to pursue customary sources of dispute resolution, and here again there are two options. One could pursue a complaint with clan leaders responsible for land governance; this is an extremely effective route to take for boundary disputes and minor land issues. In Acholi, there is also the option of going through the traditional institution, the Ker Kwaro Acholi.Footnote ³⁶ However, the Ker Kwaro is not widely respected, nor would its decision be final or enforceable. In addition to the government and customary conflict resolution routes there are further alternatives. NGOs and religious leaders have been active in resolving land disputes in northern Uganda through alternative dispute resolution (ADR).Footnote ³⁷ Groups such as the Uganda Land Alliance, the Acholi Religious Leaders Peace Initiative, the Justice and Reconciliation Project and the Centre for Reparation and Rehabilitation assist people with land disputes through legal education and mediation.

This is a wide array of conflict resolution forums. What we see represented in these forums are different sources of political power in Acholi: the local customary leaders, the government-recognized customary leaders, local government representatives, legal authorities, religious leaders and NGOs. All want their authority to be recognized. Clan leaders and those from the traditional institutions would like the customary tenure system to be strengthened and their own roles to grow. Calls upon them to mediate land conflicts justify their claims to a broader societal role. Similarly, NGOs or religious leaders engaged in resolving land disputes through ADR can also claim success in their mission and an important role in the local community should they be called upon to mediate land disputes. In this post-war context in which the government institutions are under-resourced and not fully functional, mediation of land disputes legitimizes claims of authority, and anyone choosing one of these forums, whatever their age, increases the power of that institution.