THE EFFECTIVENESS OF UGANDA’S PROPERTY LAWS WITH REGARD

TO PROTECTION OF WOMEN’S RIGHTS. (LAND OWNERSHIP)

BY

AKANDWANAHO TREVOR

BS14B11/307

A DISSERTATION SUBMMITTED TO THE FACULTY OF LAW AT

UGANDA CHRISTIAN UNIVERSITY MUKONO IN PARTIAL
FULFILLMENT FOR THE AWARD OF BACHELOR’S DEGREE OF LAWS.

SUPERVISOR:

REV. MALIISA SAMSON

…………………………………………………………………………..

MAY 2018

i
DECLARATION
I, AKANDWANAHO TREVOR do hereby declare to the best of my knowledge that this
particular study is original and as a result of my own efforts. It has not been presented in any
other institution for the award of a degree.

Signed:…………………………………………………………………..

Date:………………………………………………………………………….

CERTIFICATION.

This is to certify that this piece of work has been submitted to the faculty with my consent.

Supervisor:……………………………………………………………………

REV. MALIISA SAMSON

Date:……………………………………………………………………

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DEDICATION
I dedicate this research paper to my loving parents MR. MUTUMBA DOUGLAS, LATE MR
AYOREKIRE FRED, MRS KABATOORO JUILET and my siblings NOWAMANI WINNIE,
AND AKAMUTUHA AMBROSE.

I also dedicate this research paper to my beloved friends who have been there for me in the
struggles of law school from the first year up tothe final year and also who endeavored to help
me in achieving all my research findings , KUSHABA MARVIN, BAMPABURA JOSEPH,
KAKWIHIKIRE BORIS and my Beloved beautiful girlfriend MUTEBI SHARON KAGERE.

I also dedicate this research paper to my supervisor Rev. MALIISA SAMSON, who has been
there for me in the supervision of my work patiently corrected me where I went wrong and
advised me on how to make such wonder work.

Finally dedicate paper to the late NAKIMULI VICTORIA BS14B11/473who passed on

unexpectedly in very trial and challenge manner on 30th April 2018 as we were waiting for our
final conclusions of law school after the struggle of four year together discussing and seating
together in our lectures. “DEATH CREATES WOUNDS WHICH CAN BE HEALED AT ONE
MOMENT” MAY YOUR SOUL REST IN ETERNAL PEACE VICKIE.

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ACKNOWLEDGEMENT
I am grateful to God who has always been there for me, during the hardest times of my life. I am
also thankful for his providence and guidance and for not putting my efforts to shame.

Special thanks also goes to my wonderful parents MR MUTUMBA DOUGLAS AND MRS
KABATOORO JUILET for always believing in me, loving me and for making sure I attain a
good education. May the good Lord continue protecting and providing for you.

To my dear siblings and friends, thank you for loving me and being there for me. I am so grateful
for having you in my life.

Lastly, I would like to thank my supervisor Rev. MALIISA SAMSONfor his constant support
during my research. It is because of him that this research is fully completed.

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LIST OF ACRONYMS.
UDHR- Universal Declaration of Human Rights.

WHO - World Health Organisation.

ILO - International Labour Organisation.

UNICEF- United Nations Children’s Fund.

ANPPCAN - African Network for the Prevention and Protection

against Child abuse and Neglect.

CEDAW-Convention on the Elimination of All forms of

Discriminationagainst Women.

FIDA-Federation of International Women Lawyers.

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List of International and National legislation

1. Universal Declaration of Human Rights

2. The Declaration on the Elimination of All forms of

Discrimination Against Women 1967

3. Convention on the Elimination of All forms of

Discrimination Against Women 1979(CEDAW)

4. World Health Organisation

5. United Nation Children’s Fund

6. The Constitution of the Republic of Uganda ,1995

7. Children Act

8. Succession Act

9. Divorce Act

10. Land Act

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ABSTRACT.
This research examines how gender equality in the design and implementation of property rights
in Uganda can promote development as well as enhance the status of women. Women’s insecure
land tenure stems specifically from deficiencies in the constitutional order, institutional
arrangements, and social norms that govern property rights systems. Accordingly,
recommendations for reform in these three areas share the ultimate goal of making property
rights systems not only more equitable, but also more effective.

Much of the literature on women and property ownership in Africa has viewed the introduction
of land utilisation, registration and the privatisation of land under colonialism and after
independence as a setback for women, leaving women in a state of even greater insecurity with
poorer prospects for accessing land, hence obtaining a livelihood. Customs and beliefs of
different societies have made women’s land rights even more difficult to accomplish.

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Table of Contents
DECLARATION ........................................................................................................................................... ii
DEDICATION ............................................................................................................................................. iii
ACKNOWLEDGEMENT .............................................................................................................................. iv
LIST OF ACRONYMS. .................................................................................................................................. v
List of International and National legislation........................................................................................... vi
ABSTRACT................................................................................................................................................ vii
CHAPTER ONE ............................................................................................................................................... 1

1.0 INTRODUCTION. .................................................................................................................................. 1

1.1 BACKGROUND OF THE STUDY............................................................................................................. 1
1.2 STATEMENT OF THE PROBLEM. .......................................................................................................... 6
1.3 OBJECTIVES OF THE STUDY. ................................................................................................................ 6
1.3.1General objective. ............................................................................................................................. 6
1.4 RESEARCH QUESTIONS........................................................................................................................ 7
1.5 SIGNIFICANCE OF THE STUDY. ............................................................................................................ 7
1.6 SCOPE OF THE STUDY.......................................................................................................................... 7
1.7 HYPOTHESIS. ....................................................................................................................................... 8
1.8 RESEARCH METHODOLOGY ................................................................................................................ 8
1.8.1 Research Instruments ...................................................................................................................... 8
1.8.2 Interviews......................................................................................................................................... 8
1.8.3 Questionnaires ................................................................................................................................. 9
1.8.4 Focused group discussions............................................................................................................... 9
1.8.5 Data Analysis .................................................................................................................................... 9
1.8.6 Ethical considerations ...................................................................................................................... 9
1.9LITERATURE REVIEW ............................................................................................................................ 9
CHAPTER TWO ............................................................................................................................................ 13

2.0 Introduction. ..................................................................................................................................... 13

2.1 Culture and Traditions. ..................................................................................................................... 13
2.2Customary Framework for Women’s Land and Property Rights in Uganda ...................................... 13
2.4Legitimacy of Customary Tenure under the Formal Law ................................................................... 14
2.2 Economic factors. .............................................................................................................................. 21

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 2.3 Religious practices............................................................................................................................. 21
2.4 Poverty. ............................................................................................................................................. 21
2.5 Level of Education. ............................................................................................................................ 21
CHAPTER THREE.......................................................................................................................................... 23

LEGAL FRAMEWORK OF THE PROPERTY LAWS REGULATING WOMEN’S RIGHTS. ................................. 23

3.0 INTRODUCTION. ................................................................................................................................ 23
3.1 INTERNATIONAL LEGAL FRAMEWORK. ............................................................................................. 23
3.1.2 Universal Declaration on Human Rights (UDHR) ........................................................................... 24
3.1.4 Convention on Elimination and Discrimination against Women ................................................... 24
3.1.5 Common Market for Eastern and Southern Africa ........................................................................ 25
3.2 THE CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995. ............................................................. 25
3.3 THE SUCCESSION ACT CAP 162. ........................................................................................................ 27
3.4 LAND ACTS . ...................................................................................................................................... 28
3.5 REGISTRATION OF TITLE’S ACT.......................................................................................................... 31
3.6 MARRIAGE AND DIVORCE ACTS ........................................................................................................ 31
3.7 National Land Policy 2013 ................................................................................................................. 39
CHAPTER FOUR ........................................................................................................................................... 41

4.1 Analysing how to expose the change that have occurred as regards to women to own land? ....... 41
4.2 analysing factors that limit the full grant and exercise of the rights of women to own land .......... 44
4.3.Analysing women’s rights in the various property laws; .................................................................. 47
CHAPTER FIVE ............................................................................................................................................. 49

5.0 RECOMMENDATIONS AND CONCLUSIONS ....................................................................................... 49

5.1 RECOMMENDATIONS; ...................................................................................................................... 49
5.2 CONCLUSION. .................................................................................................................................... 52
BIBLIOGRAPHY. .......................................................................................................................................... 57

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 CHAPTER ONE
1.0 INTRODUCTION.
Rights refer to powers, privileges or immunities secured to a person by law. 1Property rights
include rights to acquire, own, sale and transfer property, collect and keep rents, keep one’s
wages, make contracts, bring law suits and if seeking divorce; maintain some of the marriage
assets and keep control guardianship of the children.2This chapter contains the background of
how laws have changed to create equality among men and women, the problem that has cause
such inequalities for instance, customs and beliefs of the different societies. It further goes ahead
to lay down objectives of the study as discussed in the research below.

1.1 BACKGROUND OF THE STUDY.

Land is a basic asset in all African communities, which all Africans attach a lot of value to and
willing to possess. However, this has been restricted to men alone, and it is due to cultural and
traditional beliefs which cut across the whole of Uganda.

From the Biblical perspective, the Bible has been used in violation of women’s rights. In Genesis
3:16, God cursed the women ‘………and your desire shall be to your husband, and shall rule
over you.’ It is from this that men consider themselves superior over women in different
societies.

Various International instruments also affirm women’s rights within the frame work of human
rights. The United Nations Charter of 1945 affirms fundamental rights in the dignity and worth
of the human person together with equal rights to both men and women.

Article 1 of the Universal Declaration of Human Rights of 1948 is to the effect that all human
beings are born free and equal in dignity and right. Article 2 also says that everyone is entitled to
freedoms set forth in the declaration without discrimination of any kind of sex.

The International Convention on Civil and Political Rights (ICCPR) recognizes the inherent
dignity, equal and inalienable rights to all members of the human family as the foundation of
freedom, justice and peace in the world.

1
Bryan A Garner: Black’s Law Dictionary, pg.1347.
2
www. Women in the world history. Com/class room series, pg. 1 as on 2 nd march 2011.

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Looking at pre-colonial Uganda, land was held customarily, regulated by customary law.
Women were excluded from owing or holding land as their role was to cultivate on it and
produce children. ‘ their dignity was achieved principally in marriage, the upbringing of children
and up keeping of the family.’3

In 1971, with the coming to power of Idi Amin, it can be described as the worst periodever
where human right violations were most witnessed. All independent women organisations were
suppressed and the president launched a national women’s organization in 1979 where he passed
a decree that established the National Council of Women (NCW), banning all other
organisations4

However, with the coming of the new government of 1986, it was a star of hope as human rights
seemed to take a complete shift as people witnessed fair observance of human rights especially
the women. This is enhanced by the 1995 constitution which entitles freedom and definitely does
not exclude women. As stated in Article 21, 26 and 33.

THE LAND ACT OF 1998

In 1998 Uganda enacted a Land Act pursuant to Article 237 (9) of the Constitution, which
required Parliament to have a Land Act in place by July of that year.5 The purpose of the Land
Act is to provide a system forthe tenure, ownership, and management of land, and to improve the
delivery of land services to the population by decentralizing land administration." During the

3
MiriaMatembe on women and politics in Uganda.
4
Henry Kyemba: a state of blood, the inside story of Idi Amin: foundation publishers, 1997. Pg. 28.
5
. The process of land reform leading to the enactment of the Land Act in 1998 began with the commissioning of a
study of land tenure and agricultural development in 1989. The study was recommended by the Agricultural Policy
Committee, which is comprised of four permanent secretaries from the Ministries of Agriculture, Finance, Trade
and Industry and Natural Resources, and undertaken by the Makerere Institute of Social Research in collaboration
with the Land Tenure Center of the University of Wisconsin under the auspices of the Ugandan Ministry of
Planning and Economic Development. The main purpose of the study was to analyze the land tenure system
operating in Uganda and make policy recommendations for improvement. In 1990, a technical committee
consisting of nine people was set up to convert the recommendations of the 1989 study into new legislation. The
technical committee carried out a survey to assess public opinion about the prevailing law. Following the study,
the committee drafted a Tenure and Control of Land Law and an accompanying memorandum explaining the need
for the proposed law. The proposed bill was presented to the National Executive Committee, which instructed the
technical committee to carry out further public consultations. After polling another 1,459 people from around the
country, a second Land Law was drafted in 1993. When the new Constitution established land ownership rights for
citizens of Uganda in 1995, the technicalcommittee reconvened to incorporate the constitutional changes into the
proposed law. By 1996, they had drafted the Land Tenure and Control of Land Bill of 1996. The 1996 bill then
underwent at least five drafts before it was passed in July 1998. Rose Mwebaze, Land Reform in Uganda (August,
1999) (unpublished manuscript, on file with the Uganda Land Alliance).

2
period leading up to the passing of the Land Act, women's rights activists lobbied Parliament for
the inclusion of women-friendly provisions in the Act.3' The impetus to raise women's concerns
arose in part from the Constitution itself, which is a progressive and gender-sensitive document
that recognizes women's rights generally and the rights of all Ugandan citizens to land ownership

The women- friendly provisions incorporated in the Land Act include the following:

0 Section 40 requires the prior written consent of both spouses in transactions involving family
holdings, defined as land on which the family ordinarily resides and from which they derive
sustenance. 6

* Section 28 prohibits decisions affecting customary land that deny women access to ownership,
occupation or use of any land, as well as decisions that impose conditions violating constitutional
provisions protecting women.

* The Act requires land management bodies and institutions to have female representation. The
Uganda Land Commission must include at least one female among its five members, one-third of
the membership of the District Land Boards must be female, and land committees at the parish
level must have at least one female among their four members.

Under Section 17 (4) (b) at least one-third of the members of the Communal Land Management
Association must be female. These Associations are corporate bodies which may be formed
under the Land Act by any group of persons on any land for any purpose connected with
communal land ownership and management of land.'

Progressive as these sections may seem in so far as they relate to women and land, the provision
that women's rights activists proposed- and which was passed by Parliament but was "missing"
in the final draft of the Act37-was the co-ownership clause. In order to address the problem of
women's lack of ownership of land, women's rights and human rights groups had proposed co-
ownership of land between spouses. The basic principle behind co-ownership is the equal
ownership by a husband and wife of the land on which the family's principle place of residence
rests, or from which the family derives its principle source of income or sustenance. This
conception in no way precludes either spouse from individually owning land. Rather, co-
ownership addresses the imbalance in property ownership between the sexes, and the resulting
6
The Land Act, Act 16, § 40 (July 2, 1998) (Uganda).

3
power imbalance of many marital relationships. Proponents believe that co-ownership would
increase women's decision-making power in the smallest unit of society (i.e., the family), and
that it would improve family livelihoods as women would be more willing to invest their labor,
time, and resources in land that they own.

Women form approximately 1/2 of the world's population, perform 2/3 of the world's working
hours, and generate 1/2 of the world's agricultural production! In Africa, women do 85% of the
agricultural production and processing. Yet women worldwide earn only 1/10 of the world's
income and possess only 1/100 of the world's property.' In the East African sub-region, as in
many other parts of Africa, women are the primary cultivators. In Uganda, women own only 7%
of the land, leaving 93% with access to land only through a male relation, usually a father,
husband or son.7 Most land in Uganda is held under customary tenure and is regulatedby
customary law. Though statutory law does not bar women from owning property, the reality
within which they live effectively denies them this right."° There are many socio-cultural
practices that discriminate against women, discouraging women from owning land or sanctioning
them for it. Foremost among these is the high value placed on marriage. Ugandan women are
socialized to perceive marriage as a principal life goal and their ownership of land as
incompatible with a happy marriage.1" Owning land brings power, and the fact of women having
power disturbs social order, stability, and tranquility.

Many Ugandans, mostly men, have argued that women who own land are "big headed" and the
only way to restore them to their proper size is to take away their land." Certain customary
practices, like the giving of bride wealth4 and polygamy, reduce women's security on land"
which is another way in which women are effectively denied their right to land. Bride wealth is
increasingly viewed as making a woman the husband's property, nullifying any claims she might
have to land and transferring her property rights to her husband." Even gifts to the wife and
property she acquires individually are viewed as belonging to the husband. Upon customary
divorce," wives are usually sent away from the home with no property atall.8 In polygamy, land
may be utilized jointly by several wives who therefore have difficulty claiming individual
contribution or ownership.

7
MINISTRY OF GENDER, LABOUR AND SOCIAL DEVELOPMENT, REPUBLIC OF UGANDA, THE NATIONAL ACTION
PLAN ON WOMEN 5 (1999)
8
MINISTRY OF FIN., PLANNING, AND ECoN. DEV

4
According to custom, females marry into the clans of their husband. In rural communities, the
clan will allocate customary land to the man upon his marriage.

The matrimonial home is usually built on customary land and is regarded as the husband's
property until he dies, at which time ownership reverts to the clan. Because customary rules
systematically exclude females from the clan or communal entity, they also exclude females
from ownership of land.' Moreover, since women are seen as belonging to neither their families
nor marital clans, they are denied by both sources the opportunity to own land. As a result, they
are alienated from land ownership from childhood to widowhood.9 Women's attempts to control,
transact, and own property, especially land, are resisted and sanctioned by the community and
the clan as misbehavior.10 In part, this is due to the society's intolerance for women who breach
social norms. A woman who purchases land is seen as having "sinister" intentions, using the land
to run away from her marital home or as a place to "entertain" other men. Gaining power through
land ownership is deemed deviant, because only "improper" women are not satisfied with what
their husbands or other male relatives can provide them. "Proper" women take whatever is given
to them with gratitude and teach their daughters to do the same. Land in Uganda is normally
passed on through inheritance, traditionally through the male line from father to son. Traditional
patrilineal descent remains especially dominant in the rural areas of Uganda, and is characterized
by male control of decision-making about who will inherit and administer the estate, and
preference for male over female heirs. Indeed, sons or other males (e.g., male clansmates)
normally inherit any substantial property.

This is true even though the customary heir of a female is another female.' Daughters inherit
land only in exceptional circumstances, when thereis no suitable male heir or when the father
dies intestate. Where women do inherit land, they typically receive only a fraction of their
brothers' shares and often have to share a single parcel with other female heirs. Women are
regarded as being unable to own property in their own right, and as mere trustees for male kin. 7
Because of this common perception, on the death of a wife there is usually no property
distributed as it is assumed to belong to the widower. There is conflict between statutory and
customary law.

9
Irene OvonjiOdida, Land Law Reform: Challenges and Opportunities for Securing Women's Land Rights in Uganda
(Feb. 18, 1999), at <http://bdsn.parallelweb.net/land/Ugirene.htm>.
10
id

5
Statutory law provides greater protection for women, allowing for female inheritance and land
ownership. Although it trumps customary law in theory, statutory law is less utilized in practice.
This is especially true in rural communities, where ignorance of statutory law is compounded by
high illiteracy rates and inaccessible courts. Thus even where widows may have the statutory
right to administer the estate, access to and control of customary land is severely limited. It is
against this backdrop that the women of Uganda have felt the need to advocate for women's
rights to land

1.2 STATEMENT OF THE PROBLEM.

Whereas there are various laws like the Constitution of the Republic of Uganda, 1995, Land
Act, Succession Act that provide for women ownership and purchase of property in Uganda, As
well as many authors that have written about women’s property rights in different forums,women
are still facing difficulty in that cause. This is because of culture that is, customs and beliefs that
have constantly failed to change the belief of equality of law.

Women rights to own land in Uganda are well protected by the Constitution and other statutory
laws. However, the challenge has always been the implementation of the existing legal regime to
enable the rural woman to realize her land rights. These challenges are manifested in the nature
of culture, customs, illiteracy, ignorance, and traditions which prefer men over women on issues
of land ownership.

This research therefore attempts to analyze the adequacy of legal regime relating to land
ownership in Uganda, the challenges or other factors affecting access, ownership and use of land
by women land ownership and recommendations on how access to land ownership can be
improved for women in Uganda.

1.3 OBJECTIVES OF THE STUDY.

1.3.1General objective.
This study critically analyses the effectiveness of the various property laws in regard to
protection of women’s rights.

1.3.2 SPECIFIC OBJECTIVES

6
1. To expose the changes that have occurred as regards land rights of women.

2. To look at the factors that limit the full grant and exercise of the rights of women to own land.

3. To identify women’s rights in the various property laws and show whether they have been
realised or not.

1.4 RESEARCH QUESTIONS

1 What changes have occurred as regards land rights of women?

2 What are the factors that have limited the full grant and exercise of women’s rights to own
land?

3 What are women’s rights in the various property law and how they can be realised?

1.5 SIGNIFICANCE OF THE STUDY.

This study is intended to be of significance to women and men and society as a whole. It focuses
on how the existing laws and the legal regime in Uganda has worked to realise and ensure
women’s property rights and how effective these laws have been.

It looks at instances when these rights have not been analysed or upheld.

The study also looks at the loopholes in the legislation and provides for solutions to them of
which if not dealt with could fail to live to the expectations of the 1995 Constitution of Uganda
which guarantees rights and equality for all.

1.6 SCOPE OF THE STUDY.

Geographical.

This study covers the scope of women’s property rights around central Uganda revealing
whether or not they have been realised.

The study includes provisions from the Constitution of Uganda and many other legislation that
pertains to women’s property rights including all relevant cases.

Time scope.

7
The research is concerned with various case studies within Uganda considering the period from
1995 to date.

1.7 HYPOTHESIS.
The inferiority status of women that has on many occasions led to the denial of their property
rights arises from the structure and traditional norms attributed to the cultures in our society.

Many laws have in the past been blind to women’s property rights and those that have gone
ahead to address the matter have been more theoretical than practical and even then not
exhaustive.

1.8 RESEARCH METHODOLOGY

Methodology describes the ways in which data was collected. This included research instruments
and the approach used by the researcher to collect and analyze data. Qualitative research
involved exploration, elaboration and systemization of the significance of an identified
phenomenon. These include procuring more in-depth and comprehensive information,
observations and interactions.

Interviewing method was used while in the field. Men and women were interviewed to find ratio
of women to men who possess, own, inherit or have access to land, reasons for the difference and
the obstacles that women have met in their attempts to obtain land ownership.

Various organizations such as police, NGO’s various government officials from Ministry of
Land and Rural Development, local leaders were also interviewed and availed me with the
necessary information as regards women’s land rights. This enabled me to understand the
attitudes of society about women and their land rights and why society feels that way about
women.

1.8.1 Research Instruments

For the purpose of this study, in-depth interviews, questionnaires and focused group discussions
were used.

1.8.2 Interviews.
These are guided conversations between the researcher and the informant. In-depth interviews
with people who know what is going on in the community was employed. The advantages of

8
using key informant interviews in this research was to collect data from a wide range of people
including government, officials, professionals who have knowledge about the community and
woman land rights problems. This allowed me to rapport with the respondent and provided an
opportunity to build relationships.

1.8.3 Questionnaires
These include a list of questions that are given to the interviewees to be filled in accordingly.
Because information was to be collected from a large number of people, questionnaires were
distributed for easy coverage and to enable respondents think before they can answer. They were
distributed to those who could understand English. Questionnaire marked as Appendix 1.

1.8.4 Focused group discussions

It is and interactive discussion between 6 to 8 participants focusing on a specific set of issues.
The aim was to make participants more comfortable to express their views.

1.8.5 Data Analysis

Process of data analysis involved structuring in logical order the data which had been recorded in
interviews and analyze it.

1.8.6 Ethical considerations

The principles of voluntary participation and consent were implemented during the conduction of
interviews. The study required that participants expose private information because land issues
are quite noxious among family members that they have strained relations between widows, in-
laws as well as gate keepers of culture and tradition.

Consequences of non-observance could have led to acrimony and further strain the relationships.
To ensure no harm to the participants the study, the principles of confidentiality were observed.

1.9LITERATURE REVIEW
Introduction

It’s important to note that the available literature on the subject matter written by the Ugandan
authors do not address in deeper appreciation in current practise among the different
communities. It’s generally literature from other parts of the country. However the following
literature was useful for this research work.

9
Jennifer OkumuWengi, 11states that the family is a unit of production. It is therefore
structurally and functionally male dominated. The patriarchal nature of most ethnic groups
determines the pattern and rights of property ownership and ultimately directs the nature and
practice of inheritance. In all the ethnic groups, the Baganda, Banyankole, Bakyiga property is
culturally inherited following the patrilineal line. The most important items of property that are
highly valued are only inherited by the male that is land followed by cattle.

Women work on land but do not own it even after the death of their spouses, women remain
custodians of the land for their children. According to OkumuWengi, its only customary laws
that bars women from inheriting property. There is no other reason given to justify the denial of
women’s property rights. She also doesn’t show how the law is effective or the way forward.

In WengiOkumu’s book, weeding the millet field, women’s law and grass root justice in
Uganda,12 talks about the disposition and management of property in East Africa. She discusses
the inheritance regime in East Africa, its implementation to women and how it affects their
access to property. She also seeks to examine the process of inheritance and to describe how
various categories of women own, utilise, access and manage property. However, Wengi does
not talk much about the traditional practices of inheritance of property and customs.

In a publication of the Uganda Land Alliance entitled Co-ownership of land by spouses13, it

advocates for women ownership of land with their husbands under tenancy in common or joint
tenancy. It advocates for the co-ownership bill that is now being debated in parliament. The
argument for this is for the protection of rights of wives to land especially after death, separation
or unfair dealings with the land by her husband.

In the article, African Studies Quarterly Women’s movement, customary law and Land
rights in Africa. The case of Uganda,14provides that, in the period leading to the passage of the
2000 amendments to the Land Act. It is the struggle over this co-ownership clause that has
brought to a head conflict women activists who have been confronted with customary practices.

11
Jennifer OkumuWengi, women and the law East Africa; the law of succession in Uganda, women inheritance,
laws and practices, WLEA (U) Publications, 2, 2001. Pg. 6
12
Kampala. Uganda law watch Centre 1997.
13
An overview of the types of land disputes and the dispute settlement fora: access to land and other natural
resources in Uganda: Research and Policy Development Project, Makerere University, 1993.
14
African studies quarterly women’s movement, customary land rights in Africa.

10
In patrilineal societies, which are most prevalent in Uganda, women generally do not inherit land
from their fathers or husbands. The fathers do not often bequeath land to their daughters because
they marry outside the clan, thus will take land to another clan or sell it.

Under customary law, a woman might have spent her life time cultivating the land but she has no
rights to claim the property. This article is basing everything on customs and practices of the
traditional families. Regard is no paid to the present families in Uganda.

Tibatemwa-Ekirikubinza,15says that women’s inability to own property is largely due to

cultural and social practices but often culminates into law. Its only cultural law that hinder them
from acquiring property.

According to Margret Owen,16 the civil courts have further legitimized the status of the heir
through rigid clauses that whenever a man subject to customary law dies, his eldest son becomes
the heir thus discriminatory to women. The husband gains control over all freehold lands which
his wife held at the time of marriage or which she subsequently acquired during marriage. It
must be noted that this literature bases interest in land under common law, it doesn’t reveal the
position of women property rights in the current situation in Uganda.

Women and law in subsequent sub-Saharan Africa.17 Women rarely owns land outright, their
right to use it is tide to their status as wives and it terminates upon divorce or death of their
husbands. It gives no reason why women rights to property is terminated after divorce or death
or the way forward.

Gita Gopal and Maryam Salim, 2001 in their book, Gender and law East Africa,
speaks…they speak about customary laws and marriages and that Uganda has adopted a
different approach to customary laws and practices. The Ugandan constitution prohibits laws,
cultures, customs or traditions which against the dignity welfare or interest of women or which
undermines their status under Article 33 (6) OF THE 1995 Uganda constitution.

15
Lillian EkirikubinzaTibatemwa property rights, institutional credit and gender question in Uganda, East Africa.
Journal peace and Human Rights 1995. Mak vol. 2:1.
16
A world of widows, zed books London, 1996, pg. 56.
Women and law in subsequent sub-Saharan Africa (2003) Bowman and Akua pg. 128
17

11
Women’s property rights HIV/AIDs and domestic violence, research findings from two
districts in South Africa and Uganda, 2008. This book discusses the customary practises of
inheritance of different categories of property that women can own and have access to.18

Kigula John (1996)… states that the authority also tends to limit women assertion of their rights
outside the family forum. The patrilineal modes of land tenure relations works against women
assertion of their land rights in the public for the men are key actors, without any sympathy for
women cause. The author only focuses on customary practices that prevent women from
acquiring or owning property. Other factors are not put into consideration.

According John Kigula; women’s land rights in Uganda, Feb (2003) the traditional societies
land tenurewhich disenfranchised women by denying them fully pledged land rights, is the major
cause of land disputes in Uganda.

Nhapo, R.T19 stated that one of the common features of the African Laws is the subjection of
women to production and reproduction. Under African customary laws, women are generally
regarded as being inferior to men. Women are seen as objects of production and reproduction.
African societies are patriarch thus organisation society is based on gender, institutionalising he
inferiority of women to men. This does not provide the solution to the problem and challenges
faced by women in African societies, it only indicates how women are inferior to men.

In conclusion therefore even up to date, people in our communities prefer male heirs and leaving
their property in the hands of the male children. Women as already discussed still have inferior
rights over the family land and they cannot independently decide to sell it off.

18
South Africa. Human Science research council press 2008.
Nhapo, R.T indigenous law Gender in South Africa taking Human Rights and cultural diversity
19

12
 CHAPTER TWO
NON- LEGAL HINDRANCES TO THE RIGHT OF WOMEN TO OWN PROPERTY.

2.0 Introduction.
It is an inherent right to own property by women just by the virtue that they are human beings.
However, it is not the case because women are denied the ownership of property. This is
attributed to both legal and non-legal factors ranging from culture, economic factors, religious
practices to literacy levels as shall be discussed below.

2.1 Culture and Traditions.

Traditionally, elders were said to be men so they made decisions to their favour, thus neglecting
those of women and their rights. For example a custom associated with the Toro kingdom sought
to deny the widow from inheriting her late husband’s property. This custom was however
condemned by court in the case of Best Kemigisa vMable Komutaleand Another20, where
court observed that the custom must be subject to the repugnancy test and compatible with
written law. It was further held that she was the rightful owner and occupant of her husband’s
property. This shows that cultural beliefs in a way pull back women’s property rights.

2.2Customary Framework for Women’s Land and Property Rights in Uganda

Introduction

Protection of women’s land rights in the formal law currently has limited impact: traditional
norms and practices commonly work to impede women from realizing their formal rights to
property. The payment of bride price is frequently practiced, and women are often viewed as
purchased property and are not eligible to own property of their own.21 While there have been
many advances in formal protections for women’s land rights, implementation of these
provisions has been uneven at best, and many challenges remain for women’s land rights under
the formal laws to be realized in practice.

Customary tenure is the most common form of land tenure in Uganda, and is estimated to cover
80% of the total land area of the country. The Constitution recognizes customary tenure, which
the Land Act defines as land that is governed by customs, rules, and regulations of the

20
HCB (1998).
21
In Uganda, it is customary for the family of the prospective husband to provide payment to the family of the
prospective wife, or “bride price.” In one study, bride price was commonly cited by individuals as the reason why
women should not have property interests when married

13
community. The rules governing land vary among Uganda’s 56 customary groups, though
similar characteristics can be found among many of the contemporary tenure regimes today.
This section provides a brief introduction to customary tenure framework for women’s property
rights within the Acholi customary system of Northern Uganda. It is important to note that there
is often significant variation in how customary rules are conceived and applied even within the
same customary group; this overview does not aim to provide a definitive analysis of Acholi
custom, but outlines the Acholi framework for women’s land rights.

Customary tenure predominates in Northern Uganda, where an estimated 95% of all land is held
under custom.22 Prolonged civil conflict in the region weakened the infrastructure and capacity
of the administrative and judicial institutions under the formal systems, and seriously disrupted
the customary institutions in northern Uganda. The displacement of the majority of the
population of the region interfered with the implementation of the land administration provisions
of the Land Act and Constitution, which assigned a strong role to customary institutions in land
governance.23

2.4Legitimacy of Customary Tenure under the Formal Law

The Land Act 1998 officially recognizes customary tenure, and defines it as a system “providing
for communal ownership and use of land…in perpetuity,” but also recognizes that subdivisions
of customary land may be recognized as belonging to a person, a family, or a traditional
institution.24 Thus, customary tenure is defined in such a way to leave open the possibility of
individualized property. This characterization is in line with the Acholi concept of land
ownership, in which land is vested with the clan, and is held in trust for future generations. Use
rights, ownership, control, and transfers are all subject to the superior right of the family, group,
clan or community. The clan elders decide who should be allocated land and for what purposes,
and the clan leadership must approve any transfers of clan land (i.e. through sale or lease). Under
this system, both men and women have use rights to land, subject to the approval of and long-
term well-being of the clan.

22
Adoko, J. and S. Levine (2005), "A Land Market for Poverty Eradication?: A Case Study of the Impact of Uganda’s
Land Acts on Policy Hopes for Development and Poverty Eradication," LEMU, June 2005.
23
UN Habitat
24
Land Act 1998 section 3

14
The Land Act provides for the formalization of customary land rights, and in section 6 lays out
the procedures by which “any person, family or community holding land under customary tenure
on former public land may acquire a certificate of customary ownership in respect of that land.”

Under customary law, all land is vested in the clan and is held in trust for future generations.
Traditionally, clan leaders – elder members of the clan, and almost exclusively men – make
decisions about how, to whom, and for what purposes clan land is allocated. This stewardship
concept is gradually giving way to match a more western concept of ownership, with (male)
household heads increasingly conceiving of and disposing of household land as their own
individual property. This trend is reinforced by the growing commodification of land, perhaps
encouraged by the growing prominence of the formal tenure system across Uganda.25

This shift away from the traditional conception of customary land as being vested in the clan has
significant implications for the rights of women, formerly protected by the functioning of the
traditional system. This weakened custom will also likely impede the application and
enforcement of formal protections explicitly extended to women’s land rights in the customary
setting by the Land Act 1998 and Constitution 1995.

Acholi Land Tenure Structure

The Ker KwaroAcholi – the highest level of customary leaders among the Acholi people – are in
the process of recording their rules governing customary tenure in the form of the Principles,
Practices, Rights and Responsibilities (PPRR).26

Under Acholi tenure rules, Acholi clan land falls into three categories: (1) arable land, (2)
communal clan land, and (3) unallocated or unused land.

Arable land is apportioned, or “individualized” by the clan to a household head, normally at the
time of marriage. The head of the household is almost always male. The household head is
responsible for managing and protecting the land, while other family members have the right to
use and access the land by consent from the household head. Clan elders oversee the family clan
land and ensure that family heads manage the land well, protecting the rights of all users of the

25
In fact, some view this move towards privatization of customary tenure as a chief aim of the Land Act, which has
been criticized as being hostile to customary tenure. However, section 39 of the National Land Policy deals with
these criticisms directly, and lays out recommendations for strengthening customary tenure
26
Principles and Practices of Customary Tenure in Acholiland, Acholi and English version, June 2008.

15
land and the interests of future generations of the clan. Traditionally, transactions in land were
not permitted without sanction of the clan. However, as custodians of the land, today the clan
may be informed to witness the sale, and have the right to approve or object to a sale based on
the grounds for the sale.

Communal land is defined as “land over which more than one family has rights and which is
managed by elected people chosen by the clan, on behalf of the clans.” Authority over communal
clan land is vested in the clan or clans as an institution. Communal land is used as communal
hunting grounds, but also includes forest and grazing areas, as well areas used for cultural
practices and market places. Also, in times of need, parts of this communal clan land might be
used to supplement individualized land. Decisions about who may use this land, and for what
purposes, are made by the clan leadership.

Unallocated land is land that the head of the household keeps for his own personal use. When the
household head dies, the land is managed by the customary heir who is appointed by the clan.
The heir is in all cases a son, most often the eldest son who must have shown signs of
responsibility. The heir is installed in a cultural ceremony by the clan, and is responsible for the
management of this unallocated land. Unused land is land that cannot be used or inherited. This
might be the case if, for example, there are no male children born to the household head. If this
were to happen, the land is used by the relative with the next claim to the land, most often the
brothers of the household head.

Enforcement of Customary Tenure

The customary institutions parallel the formal system of Local Council (LC) courts, created in
1988 to deal with land disputes by drawing on both formal and customary law. People can
choose to bring their land disputes either to the LC courts or to the customary institutions (family
head, with appeal through the clan structure to the district Jago (sub-County Chief) and on to the
Rwot (Chief)), and can appeal from either forum to the District Land Tribunal. Currently,
however, the District Land Tribunals are not functioning. According to the Land Act, decisions
based on customary rules for each locality are to have the status of binding law as long as they
are decided fairly, and are in accordance with formal and constitutional law.

16
There are no restrictions as to women’s right to access these parallel systems under the formal
law. However, several barriers exist that can impede women’s access to these dispute resolution
bodies in practice. Access to the formal system is costly and can be intimidating to women, who
tend to be less educated than men. Additionally, cases before the formal system are costly to
pursue due to court fees and legal fees for lawyers. The venues themselves may not be physically
accessible to a woman if they are far away from her village and she lacks transport.

Decisions made by customary institutions are usually not upheld or used by the formal
institutions, and any agreements made with respect to such decisions are not currently considered
by the formal courts. The harmonization of the two systems would improve tenure security and
improve land dispute resolution. Formal institutions should recognize decisions from customary
institutions to assist in further court proceedings and improve the efficiency and fairness of land
dispute resolution.

Though generally more accessible in terms of their location, customary dispute resolution bodies
pose other challenges to women. Clan leaders often hear and settle disputes during regular clan
meetings, at which male clan members are commonly the only ones allowed to be present or
speak. To have her case heard, a woman may have to enlist the support of a male relative, who
can then carry her cause to the clan on her behalf. Additionally, women’s protections under the
formal law may not be realized at the local level if her customary leaders are unaware of or in
opposition to women’s rights.

Women’s Land Rights under Custom

Under Acholi customary rules, women’s rights to land are limited use rights that depend on their
relationships with male family members (usually the father or husband), while men tend to have
rights to land by birthright. Women’s rights are secondary to those of men, and can change
depending on the occurrence or non-occurrence of key events, such as marriage, separation, or
the death of a spouse or family member. Compared to their male relatives, women generally
have access to less land, have fewer rights to the land they can access, and their land rights are
less secure.

Marital Practices

17
Under the Acholi tenure system, everyone who is born or married into a family has land rights:
men typically acquire land from their family when they marry, or through inheritance upon the
death of their fathers or male relatives, while women gain access to land through their
relationship to men – typically a father or spouse. Thus, as in much of Uganda, a woman or girl’s
rights to property in Acholiland is determined by her relationship to a male. At different stages
in her life, or when life events occur, her property rights change. If that relationship is disrupted,
damaged, informal, or tenuous, her access to land is jeopardized.

Unmarried women

Acholi custom provides that an unmarried girl living with her natal family, can access land
through her father, who is normally the household head. Typically women will use such land to
assist with cultivation of subsistence food crops. Her right to use this land lasts as long as she
remains unmarried. However, whereas male family members are allocated land upon marriage, a
female loses her right to natal land when she marries. This is the basis for the Acholi assumption
that girls are “temporary” and are therefore not candidates for permanent rights to customary
land. Instead, her rights to land are considered impermanent, and her continued presence on

The individual family land can cause disputes with her brothers, who would otherwise be
allocated the land she is using. The longer a woman stays unmarried, the more pressure her
brothers are likely to exert on her to move off the land.

The continuing practice of men paying a bride price to a woman’s family in exchange for the
right to marry makes a girl child ‘valuable’ to the family to the extent that she will someday get
married and her family will receive a bride price. But because she will move away and settle on
her husband’s land, when land is allocated to other family members, the unmarried girl does not
receive any, or receives a smaller or inferior plot, as it is assumed she will eventually marry and
receive land rights from her husband.27

Widows

Normally a widow becomes the head of the household on the death of her husband. She then has
the responsibility of managing the land and allocating it to male children when they become
adults and get married. After her husband’s death, a widow may choose to continue to live in her
27
Adoko et al (2011) Understanding and Strengthening Women’s Land Rights Under Customary Tenure in Uganda.

18
marital home without remarrying, return to her maiden home, or pick an inheritor within her
husband’s family or from outside the family. Traditionally, Acholi custom protects widows
through the practice of widow inheritance, or levirate. The inheritor – usually a brother or uncle
of the deceased – is supposed to help the widow by providing work, protection, and support for
her children.

A widow will most often choose not to return to her maiden home. Acholi tenure rules provide
that her rights to land are in the marital home; they do not provide a right of return for widows,
who are expected to remain on their husbands’ land. Traditionally, it was assumed that men and
women would live to old age on the husband’s family land, and a upon her husband’s death, a
widow would remain on the land where she had spent her adult life. However, women’s rights to
remain on the marital property are increasingly challenged in practice. A key driver of this trend
may be the large number of young widows due to HIV and the conflict. The widow’s right to
remain on their husband’s land thus has vastly different implications for the future use of that
land. Family members of the deceased husband may not respect a woman’s right to remain on
the matrimonial land. This abuse of customary rules is today increasingly common, and the
traditional structures for enforcing customary rules are often ineffective to stop it. In addition,
where a woman’s husband died of HIV, or if the man interested in “inheriting her” has HIV, a
widow is vulnerable to being pushed off the land. Although customary laws allow a widow to
choose an inheritor from outside the clan, such a move may turn the clan against the widow and
weaken her land rights.

Divorced women

The practice of paying bride price contributes to women’s vulnerability upon divorce, since
women are regarded as part of the man’s acquired property. A divorced woman is expected to
return to her natal land, and in order to be able to remarry, she must repay the bride price to her
ex-husband’s family. Unlike widows, a divorced woman is instead expected to return home and
get land allocation from her father or mother if still alive, or from the brother if her parents are
deceased. Traditionally, this allocation would come from unallocated land set aside for such
events. Customary rules require that a divorced woman or her family repay the bride price to the
husband’s family in order to formalize the divorce. These factors contribute to the fact that many

19
women are not welcomed home in the event that they divorce, particularly if they bring their
children with them.

Cohabitating women

A cohabitating woman is especially vulnerable under customary rules, under which a

cohabitating woman is not allocated any rights to her partner’s land. If her relationship falls
apart, a cohabitating woman will be forced to return to her natal home with her children, where
she may find that her rights to natal land are denied (albeit wrongly) by her brothers or other
family members. Cohabitation is an increasingly common practice in Uganda, and presents a
serious challenge to women’s land tenure security.

Women in Polygamous Unions

A married woman may also become vulnerable if her husband takes a second wife. To provide
land for the new wife, a husband will generally take land from his first wife’s parcel.

Under Islamic law, widows are allocated one-eighth of their deceased husband’s property. In the
case of polygamous marriages, all widows will share this one-eighth allocation with their co-
wives. Thus, in a situation where there are two wives, each wife will be able to claim a right to
one-sixteenth of the property.

Similarly, under the Succession Amendment Decree 22/72, where a customary husband dies
intestate, all surviving wives are to divide amongst themselves the allocation for his surviving
spouses.28 Under section 27 of the Succession (Amendment) Act, upon the death of an intestate
husband, “each wife will inherit his share in the matrimonial home that they shared together, and
the household property therein, and the surrounding residential land.” The remaining property is
to be divided among the surviving wives according to when the property in question was
acquired, such that the first wife inherits the intestate’s share of any property that becomes
matrimonial property prior to the intestate’s second marriage, and so on for each subsequent
marriage.29

28
Succession (Amendment) Decree 22/72 (1972), section 28.
29
Succession (Amendment) Decree 22/72 (1972), section 28.

20
2.2 Economic factors.
Women are known for cultivating land only, pick food for the family but the land is owned by
the men. Hence rendering the women unable to own or purchase property.

Additionally, in land transactions, women are only witnesses to the sale of land.

2.3 Religious practices.

Submissiveness of women to me is highly commended. This is also supported by the biblical
teaching so, it is out of such teachings that men misconceive the idea of submissiveness and end
up treating women as property. Religious teachings may also be misinterpreted by women hence
denying themselves the right to own property.

2.4 Poverty.
Land is the main source of income. That is, through agriculture.

A small percentage of women own property, this is because of poverty. Because they do not have
defined source of income or employment for the fact that they are housewives. Most of them
have less money to own property.

Poverty has also attributed to violence against women. They cultivate the land, harvest the
produce whereas the men sell it and do not use the money for productive purposes but drinking
or marring other women who are supposed to share the little available.

2.5 Level of Education.

Women in the central part of Uganda are less educated than the men. Some have not gone to
school at all whereas others have stopped in lower levels of education. Which means they do not
have good paying jobs. They are mostly housewives and some are teachers or taking part in
leadership roles. Therefore low levels of education have led to low income which in turn avails
no means of acquiring property. In addition, they do not know that owning property is their right
as guaranteed under the Constitution.

21
It is not easy for women to contest against their oppressive husbands. It would therefore be of
great importance addressing the problem of illiteracy in an effort to address oppression of
women. That is, denial of property rights.

22
 CHAPTER THREE
LEGAL FRAMEWORK OF THE PROPERTY LAWS REGULATING WOMEN’S RIGHTS.
3.0 INTRODUCTION.
In order for women to enjoy their rights, various conferences, conventions, treaties have been
signed. With an aim of balancing the ownership and possession of property amongst women and
men. The laws are there but they need review and enforcement whereas some are scanty. The
legal frame work will therefore include both international and domestic.

3.1 INTERNATIONAL LEGAL FRAMEWORK.

The CEDAW was brought in play to protect women’s rights against any form of violation. It
imposes a duty on state parties to condemn any discrimination against women in all forms.
Equality of rights between men and women should be promoted. Therefore any obstacle limiting
women’s involvement in economic, social, political, cultural and civil rights should be repealed
by the state parties.

Article 16 (1) (b) of the CEDAW, provides that state parties should take all appropriate measures
to eliminate discrimination against women in all matters relating to marriage and family
relations. In this case, this includes property issues in marriage or families. That is, it applies to
both spouses in respect to the ownership, acquisition, management, administration and
disposition of property, whether free of charge or for a value consideration. Therefore, it shall
ensure equality among the men and women.

The UDHR affirms the principle of inadmissibility of discrimination and proclaims that all
humans are born free and equal in dignity and everyone is entitled to all rights set forth therein,
without distinction of any kind including that based on sex.30

The UDHRprovides that everyone has the right to own property alone as well as in the
association with others. No one shall be arbitrary deprived of his or her property. 31 According to
this convention, all human beings are born free and equal in dignity and rights set forth there in
without any discrimination of any kind. Property is essential to the economic empowerment of
women in Uganda. Therefore it should not be overlooked that women have since time

30
Article 1, UDHR. 1948 pg. 82.
31
Article 17, UDHR, 1948 pg. 84.

23
immemorial been discriminated against as far as property ownership is concerned but since all
human beings are equal this practice needs to stop.

Land is a property right for women just as it is for men. It therefore has far reaching policy,
political, cultural and socio-economic implication which if not addressed shall defeat the
purposes for which laws, regulations and policies are enacted to ensure these rights.

3.1.2 Universal Declaration on Human Rights (UDHR)

The UDHR is the foundation upon which the international system for protection and promotion
of human rights has been built and was adopted in 1948. The UDHR stipulates that everyone is
entitled to the rights and freedoms laid down in the declaration, without discrimination, such as
on grounds of sex. Women and men are entitled to equal rights before and during marriage and at
its dissolution. It also recognizes every person’s right to own property or shall be done in
association with other and that no one shall be arbitrarily deprived of his property.32
3.1.3 International Convention on Civil and Political Rights
The ICCPR was adopted in 1966 and enjoins state parties to remove obstacles that prevent the
equal enjoyment of the rights to educate the population and state officials, to adjust legislation
and to adopt positive measures “so as to achieve effective and equal empowerment.” It
emphasizes that State parties should ensure that traditional, historical, regions or cultural
attitudes are not used to justify violations of women’s rights to equality before the law and to
equal enjoyment of all covenant rights. It also recognizes the right of every party to own
property.

3.1.4 Convention on Elimination and Discrimination against Women

The CEDAW tackles discrimination against women. Article 2 (f) of the convention requires that
states abolish practices that discriminate women. Article 14 requires states to pay particular
attention to rural women since discrimination is at a higher level in the rural areas. They should
ensure rural women are accorded equal rights in development planning, access to agricultural
credit and loans and equal treatment in land resettlement. Article 15 puts a duty on states to
eliminate discrimination against women in marriage and family life, in particular. States must
ensure that men and women enjoy same rights in areas among others: entry into marriage,
responsibilities during marriage, dissolution of marriage and property ownership.

32
Articles 2 & 6 UDHR

24
3.1.5 Common Market for Eastern and Southern Africa
Article 154 of COMESA Treaty emphasizes the fact that women make a significant contribution
towards the process of socio-economic transformation and sustainable economic growth and it is
impossible to implement effective programs for rural transformation and improvements in the
informal sector without the participation of women. It is therefore incumbent on the government
to respect the treaty obligations since it is a signatory

THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS.

The optional protocol on the African Charter on Human and People’s Rights pays particular
attention to the right of women to own land and other properties.

3.2 THE CONSTITUTION OF THE REPUBLIC OF UGANDA, 1995.

Introduction

Uganda has a dual framework for land governance: the Constitution (1995)33 and the 1998 Land
Act34 formalized legal pluralism by explicitly recognizing customary rights to property, while
also strengthening formal protections for women’s land rights. The Land Act 1998 defines
customary tenure rights and lays out a process for registration and administration of customary
rights. With an estimated 80% of all land in Uganda held under customary tenure, customary
rules for land governance play a major role in determining women’s land and property rights.

Constitution 1995

Uganda’s Constitution 1995 provides that all land in Uganda is owned by the people of Uganda
(art 237), and vests attendant rights in the people in accordance with the four formally
recognized land tenure systems (customary, freehold, leasehold, and mailo) (art. 237(3)).35 The
state retains the right to acquire land in the public interest, subject to Constitutional protections.

33
The Constitution of the Republic of Uganda 1995, Art 237(3).
34
Land Act (No. 16 of 1998), Part II
35
Mailo tenure is a quasi-freehold tenure system established in 1900 by the British colonial government to reward
colonial agents and remains a relatively secure system of tenure, particularly in the Central region. The Land Act
1998 treats mailo almost identically to freehold tenure, except that mailo tenants cannot use their rights to the
detriment of customary tenants, bona fide or lawful occupants on that land (UN-Habitat (2007) A Guide to
Property Law in Uganda, United Nations Human Settlements Programme: Nairobi)

25
Article 26 restricts the taking of personal property to those “necessary for public use or in the
interest of defense, public safety, public order, public morality or public health,” and requires the
payment of prompt and fair compensation and a right of redress to rights holders.36 Public tenure
comprises a fifth category of land, and applies to all lands that are designated for public use. In
some cases, public lands overlap with mailo and customary lands.

The Constitution 1995 was the first step in ongoing reforms that have significantly strengthened
protections for women’s rights under the formal framework. Uganda’s Constitution prohibits
discrimination based on gender and accords men and women the same status and rights (art 21);
provides for the right of every person to own property (26(1)); guarantees women equal rights
with men (art 33); provides special help/protection for mothers and women because of previous
historical discrimination against women (art 33); and prohibits any customary laws, traditions, or
customs that discriminate against women (art 33).

Article 32 of the Constitution also provides for ‘affirmative action in favor of groups
marginalized on the basis of gender, age, disability or any other reason created by history,
tradition or custom, for the purpose of redressing imbalances which exist against them.’

The Constitution stipulates that formal law prevails where it is in contradiction with customary
law, a provision that seeks to ensure that statutory and constitutional protections for women’s
rights override traditional norms that inhibit women’s rights to land. While these provisions
under the Constitution form a strong normative basis for women’s rights, Ugandan women are
still struggling to achieve the equality and non-discrimination promised in Article 33 as a result
of the continued application of pre-1995 Ugandan statutory law; conflicting norms under
customary law; and the lack of political will to confront institutional discrimination. However,
certain cases in the Ugandan Constitutional Court have resulted in some discriminatory
provisions being ruled null and void for failing to uphold the principles of equality and non-
discrimination. Accordingly, many of the legal issues discussed below have the potential to
change significantly through legislative reforms, though it is unclear when.

36
Constitution, Art. 26(2)(b).

26
Chapter four of the Constitution provides for the protection and promotion of fundamental and
other Human Rights and freedoms. These rights are inherent and not granted by the state.37

Everyone is entitledand has a right to own property either individually or in association with
others. No person shall also be compulsorily deprived of property or any interest in or right over
property of any description.38

The Constitution further states that women shall be accorded full and equal dignity of the person
with men39. Which so much clear that all people are equal irrespective of their sex. Women
should therefore be entitled to all opportunities such as owning land as one of the priorities they
are entitled to.

BEST KEMIGISA V MABLE KOMUNTALE40 case, was to the effect that a wife cannot
inherit property of her husband. This was considered inconsistent with Article 26 of the
Constitution of Uganda, 1995 that provides for the right to property which every citizen is
entitled to.

In addition, laws, cultures, customs and traditions which are against the dignity, welfare or
interest of women and tend to undermine their status are prohibited.41

3.3 THE SUCCESSION ACT CAP 162.

The Succession Act Cap 162 governs Succession law in Uganda. It is the law that determines
how a person’s belongings are to be shared after the person dies.

The law has specific rules for;

 How a person’s property should be distributed if the person dies without a written will.
 Creating a valid, written will so the person can leave instructions about the distribution of
his or her property after death.
 Who has the right to divide and distribute property after a person’s death.

37
Article 20(1) of the Constitution of the Republic of Uganda, 1995 pg. 39
38
Article 26, ibid pg. 43.
39
Article 33, ibid pg. 48
40
HCB (1998).
41
Article 32(2) ibid pg. 48

27
Under the Succession Act, where the husband dies without leaving a will, his widow and minor
children have a right to stay in the home that the family shared during the man’s life.42

The widow and the children have a right to cultivate any land right next to the home, which they
had been cultivating before the death of the husband.43

In instances of polygamous marriages and the deceased had more than one legal wife, each legal
wife has a right to stay in the home where she lived with her children and to continue cultivating
and land right next to the home. The property in the estate is divided.

The division of the estate must provide for the deceased man’s widow or widows, his children
and dependent relatives.44 They must get a portion of the estate to help them survive after the
deceased’s death. However the law in this area has for years been changing.

The law required the estate to be distributed with 15% of the total to the widows and it was
divided equally. However the Constitutional Court ruled that those percentages are not fair. The
Constitution of Uganda stated that all people are equal before the law and that women are to be
treated the same as men. In the case of Law and Advocacy for women in Uganda v Attorney
General45, the Court declared that a number of provisions of the Succession Act, including the
above percentages were null and void. Therefore Parliament will need to review such laws and
enforce new ones on how property should be divided when one dies intestate.

3.4 LAND ACTS .

Land Act 1998

42
Section 29(1) of the Succession Act, 162.
43
Para 2 of 2nd schedule of the Succession Act, 162.
44
Section 27 of the Succession Act 162.
45
Constitutional Petition No. 13 of 2005.

28
Uganda’s principle land law is the Land Act (1998).46 Since its passage in 1998, the Land Act
has been amended three times: in 2001,47 2004,48 and most recently in 2010.49 The Land Act
restates the recognized forms of land tenure found in the Constitution, affirming customary land
tenure as an officially recognized form of land tenure.50 Under the Act, communities, families, or
individuals holding customary tenure may apply for a certificate of formal customary ownership
with the government. General procedures are provided under section 6 for how to register
customary title, and under sections 9-14 for converting customary tenure to freehold. Communal
land associations, which are tasked with the administration of disputes that arise within
communally owned customary land, are governed by sections 15-21.

Section 22 allows communally held customary land to be formally parceled out to families or
individuals by the operation of a communal land commission. This section generally conceives
of the “head of the family”—most typically a man in Ugandan society51—as the recipient of title.
Section 27 forbids the application of

customary law where it denies women the right to own and/or occupy land.

Only two sections of the Land Act directly address gender, land and property rights. Section 38A
of the Land (Amendment) Act 2004 provides for a spouse’s security of occupancy on family
land, and section 39 requires spousal consent prior to entering into any land transaction
concerning land on which the spouse resides on and uses for sustenance. Section 28 of the Act
specifically states that any decision that provides women, children, or persons with a “disability
access to ownership, occupation, or use of any land or that violates Constitutional principles,”
shall be invalid.

46
Land Act, Cap.227 (1998) (Uganda).
47
The Land (Amendment) Act (2001) (Uganda). This amendment made minor changes to section 98 to allow an
extended time limit for courts to dispose of land disputes pending before them prior to the entry into force of the
1998 act.
48
The Land (Amendment) Act (2004) (Uganda). This amendment introduced extensive changes to certain provisions
of the Land Act (1998). Where relevant to this legal analysis, these changes are referenced in footnotes. The 2004
amendment changed, repealed, or added the following sections: 1, 3-9, 14, 28, 30-34, 37- 41, 52, 57, 59, 63, 64, 68,
74-87, 89, 91, 93, 95, miscellaneous amendments, and amendments to the Registration of Titles Act (1924).
49
The Land (Amendment) Act (2010) (Uganda). This amendment introduced extensive changes to certain provisions
of the Land Act (1998). Where relevant to this legal analysis, these changes are referenced in footnotes. The 2010
amendment changed, repealed, or added the following sections: 31, 32A, 35, 59, and 92.
50
The Land (Amendment) Act (2004) sections 2 and 3.
51
15 Giovarelli, R. (2006), "Customary Law, Household Distribution of Wealth, and Women’s Rights to Land and
Property," 4 Seattle J. for Soc. Jus. 801.

29
The 2004 and 2010 amendments to the Land Act provide further protection for spouses by giving
them the right to security of occupancy on family land. Security of occupancy means a right to
have access to and live on family land and give or withhold his or her consent to any transaction,
which may affect his or her rights. “Family land” includes” land on which is situated the
ordinary residence of a family” and” on which is situated the ordinary residence of the family
and from which the family derives sustenance.” The right extends to the residence, whether or
not there is also land from which (s)he derives sustenance. Additional rules relevant to tenants by
occupancy including spousal rights to occupy under section 38A of the Land Act—are covered
in sections 29-37 of the Land Act.

The Act also requires land management bodies and institutions to have female representation.
The Uganda Land Commission must include at least two females among its five members, one-
third of the membership of the District Land Boards must be female, and Area Land Committees
at the parish level must have at least one female among their four members. Under Section 17 (4)
(b) at least one-third of the members of the Communal Land Association must be female. These
Associations are corporate bodies which may be formed under the Land Act by any group of
persons on any land for any purpose connected with communal land ownership and management
of land.

Though the Land Act is fairly progressive in establishing protections for women’s land rights, it
stops short of establishing co-ownership rights among spouses, a provision that was passed by
Parliament but omitted from the final draft of the Act, reportedly due to an administrative
oversight.52

The new amendments to the Land Act provides for the consent of women in relation to family
land. Women have to give their permission in any matters regarding the family property. The
consent has to be freely and wilfully given. That is, without threats or coercion.

Section 39 of the Act provides for the restrictions on the transfer of family land.

52
Asiimwe, J. (2001), "Making Women's Land Rights a Reality in Uganda: Advocacy for Co-Ownership by Spouses,"
4(1) Yale Human Rights and Development Journal Article 8. Available at:
http://digitalcommons.law.yale.edu/yhrdlj/vol4/iss1/8.

30
Section 39(1) (c) provides that no person shall give away any family land or enter into any other
transaction in respect of family land except with the prior consent of his or her spouse.

3.5 REGISTRATION OF TITLE’S ACT53.

The Registration of Title’s Act empowers every Ugandan citizen to freely purchase and own
land.

Registration of Titles Act 1924

Uganda uses the Torrens system of titles registration, which was introduced through the
Registration of Titles Act 1924. This act applies to all freehold, leasehold, and mailo land, but
does not recognize customary tenure rights, which must first be converted to freehold tenure in
order to be registered.54 Under the Act, a certificate is conclusive evidence of title (barring proof
of fraud). The Act recognizes any person’s right to own property as long as it is lawfully in his or
her name. Section 3 specifically disclaims any intentions to limit the application of laws
providing for the property of married women, though because the Act only explicitly lists fraud
as a means for rebutting the strong evidentiary weight of the certificate, it is unclear how a
married woman’s rights to marital property would be protected if her name is not on a certificate.
In some instances where the certificate of title is in the names of the husband and wife, it is not
clear how at the dissolution of marriage the property is shared. This often leaves the wife
vulnerable to dispossession in the face of strong societal pressures and presumptions that men are
the true owners of property. Many Ugandan women face significant challenges accessing justice
when their rights are violated. The high costs of pursuing claims in the formal legal system,
combined with institutional discrimination and a high level of inefficiency in the court system,
create additional barriers to women’s ability to exercise their property rights.

3.6 MARRIAGE AND DIVORCE ACTS

Individual and Household Rights to Land

53
CAP 230, Laws of Uganda.
54
Registration of Titles Act 1924, sec. 9. Article 237(4)(a) of the Constitution provides all customary rights holder
with the right to obtain a Certificate of Customary Ownership. Procedures for the issuance of such certificates for
communal, individual, and family applicants are provided in the Land Act 1998, section 27. See also UN-Habita.

31
A significant barrier to realizing women’s land rights is that current marriage laws do not clearly
spell out the property rights of married men and women. Common law, carried over from the
British system, provides some guidance for marital property in Uganda, but there remains a
lacuna in the existing law relating to marital property. In the absence of clear legislation defining
women’s property rights, courts continue to apply outdated laws that impede women’s rights.
For example, in 1993, the High Court established as legal precedent the subordination of
women’s property rights to those of a male head of household.55 However, in a 2007 landmark
case, the High Court ruled that women’s non-monetary contribution should be considered when
computing settlements in divorce matters.

Marriage Regimes

Ugandan law recognizes five types of marriages: civil, Christian, Hindu, Muslim, and
customary.56 Hindu, Muslim, and customary marriages are each covered by a specific law. The
Marriage and Divorce Bill, pending in various iterations for approximately 40 years, aims to give
effect to article 31 of the Constitution, and if passed, would apply to all marriages in Uganda
except Muslim marriages. (Muslim marriage and divorce laws apply in those cases, and are
codified in The Administration of Muslim Personal Law 2008, which has not yet been enacted
into law).57 The Marriage and Divorce Bill contains detailed provisions about the property rights
of married men and women.

Marriage must be monogamous if contracted under the Marriage Act of 1904, the African
Marriage Act of 1904 or the Hindu Marriage and Divorce Act of 1961. Polygamy is legal for
customary marriages under section 4(2) of the Customary Marriages (Registration) Act and
under the Marriage and Divorce of Mohammedans Act of 1906 (invoking Islamic law).

55
Khadiagala, L. (2002), "Negotiating Law and Custom: Judicial Doctrine and Women’s Property Rights in Uganda,"
46 Journal of African Law 1–13.
56
Various laws apply to each type of marriage. These include: The Marriage Act 1904 (Cap. 211, Laws of Uganda);
the Divorce Act 1904 (Cap. 249, Laws of Uganda). The Hindu Marriage and Divorce Act 1961 (Cap. 250, Laws of
Uganda); the Marriage and Divorce of Mohammedans Act 1906 (Cap. 252, Laws of Uganda) governing all marriages
and divorces between Muslims. The Customary Marriages (Cap. 248, Laws of Uganda) Act of 1973 recognizes
customary marriage as a legal type of marriage, including polygamous marriages, and establishes a uniform system
of registration of customary marriage
57
FIDH (2012), "Women’s rights in Uganda: gaps between policy and practice," available at
http://www.fidh.org/IMG/pdf/uganda582afinal.

32
Polygamous marriages are restricted by law in the event that a man married under custom seeks
to enter into a civil marriage with another woman

Islamic Marriages

Islamic marriages in Uganda follow Islamic law. The Administration of Muslim Personal Law
2008 is a bill that has been proposed to regulate family and inheritance law for Ugandan
Muslims based on principles of Islamic Law as laid down in the Qur’an and Sunnah. The bill is
also based on Article 129(1)(d) of the Constitution, which provides for the administration of
judicial power by qadhi courts “for marriage, divorce, inheritance of property and guardianship.”
As of April 2014, the bill had yet to pass.

The proposed bill spells out the property rights of women in Islamic marriages. Under the bill, a
married woman would have the right to the property she got before the marriage as well as the
right to get her own property during marriage. A married woman’s salary or income belongs to
her as separate property.

In Islam, a married woman has the absolute right to own, sell, give away or manage her property.
This property includes the gift (mahr) given to her by her husband at the time of marriage. The
husband has no rights over the mahr at all and cannot take it away from his wife. A husband and
wife can, however, acquire property together during the marriage.

Shared Tenure

The Land Act provides that land may be held individually, jointly, or in common, though it does
not provide a clear definition of each form of ownership. This may include family land, defined
as land where the family home is situated, that helps sustain the family (through income or
crops), or land that is called family land according to the family’s norms, customs or
traditions.58Both spouses—husbands and wives— have the right to use and live on family land,
and each must seek the approval of the other spouse before carrying out any transaction on
family land.59

58
The Land (Amendment) Act (2004)(Uganda). Section 38A
59
Id. section 38A(3)

33
There is no clear presumption of co-ownership of land by husbands and wives in either the Land
Act or elsewhere; the Marriage Act 2000 and the Succession Amendment Decree 22/72 of 1972
are silent as to the disposition of property acquired during a marriage.

Inheritance Under the Formal Legal Structure

Inheritance in Ugandan law is governed by the Succession Act (Amendment) Decree 22/72 of
1972, which restricts the application of customary law in inheritance cases, and explicitly
recognizes women’s right to inherit from their husbands. While these provisions, along with
Constitutional guarantees of widow’s right to inherit matrimonial property, would seem to
provide ample protection, women’s inheritance rights under the formal law remain tenuous due
to incomplete legislation. Significantly, the Constitutional Court ruled in 2007 that parts of the
Succession Act and Penal code are unconstitutional due to discrimination based on sex, and are
therefore void.60

In that case, two laws were challenged on the basis of discrimination against women. Under
Section 154(2) of the Penal code, a married woman – but not married men –having sex with
someone outside of marriage were guilty of adultery. The Succession Act was challenged on the
basis of discrimination against females and female heirs. The Constitutional Court found that
section 154 of the penal code was unconstitutional because the provision constituted
discrimination based on sex. The Court also declared that sections 2(n)(i) and (ii), 15, 16, 27, 43,
and 44 of the Succession Act were unconstitutional and therefore null and void on the grounds
that they were also discriminatory contrary to the Constitution. Significantly, provisions allowing
fathers and not mothers to appoint guardians (sec. 43), and only male relatives were permitted to
be guardians (sec. 44) were struck down. Additionally, sec. 27, “Distribution on the death of a
male intestate,” was deemed unconstitutional on the grounds that it contained no provision for
female intestate, and should apply to properties of both females and males.

Corrective legislation is currently under review by the Law Reform Commission in the form of
the Domestic Relations Bill, which has been stalled for some time due to political and public
opposition to the bill. Currently, the unconstitutional provisions of the Succession Act remain on
the books.

60
Law Advocacy for Women in Uganda vs. Attorney General of Uganda, Constitutional Petitions Nos. 13 /05 /& 05
/06, [2007] UGCC 1, April 4, 2007.

34
The Succession Act defines the manner of apportioning a deceased man’s property in the
absence of a will among various categories of heirs. In so doing, the Act curtails women’s rights
to marital property in several ways.

First, because it contains no provision for distributing property of a wife who dies intestate, the
law presumes that marital property belongs solely to the husband, who automatically acquires the
marital home upon the death of his wife.61

Second, the Succession Act provides that the matrimonial home goes to the legal heir, which the
Act defines as the nearest living male relative in patrilineal descent to a person who dies
intestate. Lineal descent refers to a person who is a direct line of ancestry such as a son and his
father, grandfather, and great-grandfather.62In the event that there is no living son, a daughter
will be appointed the legal heir. Only in the event that there are no living children will the senior
wife be named the legal heir.63 The provisions for intestacy in the Succession Act prefer the male
child in the appointment of a legal heir, promoting patriarchal, and potentially discriminatory,
inheritance customs.

Third, a widow is disadvantaged by the portion of her husband’s estate allocated to her under the
Succession Act, which provides that lineal heirs receive 75% of the estate, while only 15% is left
to his surviving spouse or spouses. In the event of polygamous marriage, all surviving spouses
must share the 15% allocated to widows. Sections 27 and 30 of the Succession Act excludes the
residential holding occupied by a wife or child from the property taken into account in assessing
the share of an estate to which the wife or child may be entitled. This section conveys to the
widow an entitlement to her deceased husband’s residence. However, according to Bennett et al,
because the Act conveys the residential home, chattel, and surrounding land to the intestate’s
legal heir, the Act extends only a limited right to occupy the marital home, a tenancy that

61
Succession (Amendment) Decree 22/72, sec. 28.; see also Asiimwe, J. and O. Crankshaw (2011), "The impact of
customary laws on inheritance: A case study of widows in Urban Uganda," 3(1) Journal of Law and Conflict
Resolution 7-13.
62
27 Asiimwe, F. (2009) Statutory Law, Patriarchy and Inheritance: Home ownership among widows in Uganda,
African Sociological Review 12(1):124-142.
63
Succession (Amendment) Decree 22/72, sec. 2(1).

35
depends on the wishes of the legal heir. Thus, a widow’s rights to remain in the marital home
under the Succession Act are limited in scope and enforceability.64

Finally, under the Succession Act, widows’ maintenance and occupancy rights terminate in the
event that she remarries.65

As discussed above, these should be remedied through the passage of the pending Domestic
Relations Bill.

Enforcement of Inheritance Rights

Women face significant obstacles in realizing their rights to marital property due to traditional
norms and practices. One study found that in the face of these obstacles, a widow was only able
to inherit the marital home in practice if she was the joint owner of the home; or her husband
stipulated in his will that the widow was to inherit his share. However, unless the wife is
appointed sole executor of the will, she is likely to face challenges to take possession of her
inherited property due to interference from her husband’s family. 66Even where the wife was
appointed the sole executor of the will, she is likely to face obstacles in taking sole responsibility
of the estate.

Separation and Divorce

The Divorce Act 1904 outlines rules for separation and divorce applicable to civil and church
marriages. Separation can last up to two years, and can be by mutual agreement (Separation by
Agreement) or by court order (Judicial Separation). Separation does not end a marriage, but only
suspends certain rights of the husband and the wife, who remain formally married.

Divorce is the permanent ending of a marriage, and only applies to legally recognized marriages.
The procedure for divorce depends on the type of marriage.

Divorce: Civil or Church Marriages

64
Bennett, V., G. Faulk, A. Kovina, and T. Eres. (2006), "Inheritance Law in Uganda: the Plight of Widows and
Children," 7 Georgetown Journal of Gender and the Law 451.
65
Succession (Amendment) Decree 22/72, sec. 46(B)(2) and 2(8)(a).

36
The Divorce Act 1904, which only applies to civil, Christian, and Hindu marriages, touches on
marital property rights, including land rights. Section 27 provides that “When a decree of
dissolution of marriage or of judicial separation is pronounced on account of adultery by the
wife… the court may…order the whole or any part of such property to be settled for the benefit
of the husband or of the children of the marriage, or of both.”

This section gives the court discretion to deny women – but not men – their right to property in
case of a divorce or judicial separation as a result of her adultery (or alleged adultery).

The section of the Divorce Act that describes the grounds for divorce has been declared
unconstitutional on the grounds that it made it easier for men to obtain a divorce than women.
Parliament has not yet amended the Divorce Act in accordance with this ruling, and to date
women remain disadvantaged in terms of the requirements for obtaining a divorce. As a result,
official divorce is very rare in Uganda. Instead, spouses simply separate; typically it is the
woman who leaves without any property.

The court decides how to deal with the distribution of property upon divorce in civil marriages,
as well as who should retain or stay in the matrimonial home.

The Marriage and Divorce Bill and the Administration of Muslim Personal Law Bill are two
important pending bills that, if passed, would significantly change the family law of Uganda.
These bills remain pending, and it is uncertain at what point, if ever, they will be adopted into
law.

Divorce: Customary Marriages

There are no uniform rules for the disposition of property or grounds for separation and divorce
of customary marriage, which follow the customs of the particular tribe or community to which
the husband or wife belongs. However, constitutional standards of equality between men and
women apply to customary marriages, giving women and men equal rights upon the termination
of a marriage. A customary marriage can also be terminated by court of law following the
procedure used for church and civil marriages.

37
A customary separation or divorce is usually brought before a clan or family court where
evidence is presented. The clan or family court decides whether to grant the separation or
divorce, as well as the terms and conditions

to be followed by both the husband and the wife. Where bride wealth has been paid to a
woman’s family, customary divorce is also completed through the return of the bride wealth by
the woman's family to that of the man. Divorce: Islamic Marriages

Ugandan law does not address separation within Islamic marriages, which follow Islamic law.
Islamic law, based on the Quran and the Sunnah, is applied in Uganda in both Islamic court, or
qadhi, and secular courts. All divorces have to be registered by the Registrar of the Qadhi court.

Under Islamic marriage rules, a groom or his father must pay a mahr, a mandatory payment in
the form of money or possessions, to the bride at the time of marriage. This payment becomes
the bride’s separate property, and she retains the right to this property upon divorce. 67 A divorced
woman is free to stay in the matrimonial home if her husband is unable to provide her other
suitable accommodation. The woman loses her right to the matrimonial home when her children
have reached the age of 18, when she remarries, or if she is guilty of open lewdness.

Both the Qadhi and secular courts have the power to determine the disposition of marital
property upon divorce. In making the decision about division of property, the court considers: (1)
the extent of the contribution of both the husband and the wife toward acquiring the property; (2)
any debts either the wife or the husband incurred that were for their joint benefit; and (3) the
needs of the minor children.68

A divorced wife can apply to the court for Mut’ah, a gift given as compensation to a divorced
wife. After hearing the case, the court may ask the husband either to pay the wife in money or
property. Islamic law prohibits a married woman from obtaining a divorce while she is pregnant
or menstruating.

Pending Legislation: The Marriage and Divorce Bill

The Marriage and Divorce Bill applies to all marriages in Uganda except Muslim marriages, as
the Muslim community has obtained permission to have their own marriage and divorce law.

67
ICRW and ULA (2010) Property Rights and Gender A Training Toolkit: Property Rights in Marriage and Family.
68
Id.

38
The Marriage and Divorce Bill is supposed to give effect to Article 31 of the Constitution, which
gives men and women equal rights in getting married, during marriage, and if and when they
decide to end the marriage.

Among other things, the Marriage and Divorce Bill would: (1) Make widow inheritance illegal.
Widow inheritance is when a male family member of a deceased man marries a widow without
her consent. (2) Make asking for the return of bride price a crime. Bride price would remain legal
under the bill but is not required. (3) Make sex with a wife or husband without her/his consent a
crime. The first two issues lie at the heart of the controversy over the bill, as bride price and
widow inheritance are strongly rooted in the cultural practices in much of Uganda.

A new and important aspect of the Marriage and Divorce Bill is that it defines property rights for
cohabitating couples. Current law is silent on property rights of cohabiting couples (not formally
married) and only applies to married couples, leaving cohabiting couples who comprise the
majority of the population vulnerable.

3.7 National Land Policy 2013

Uganda’s National Land Policy was adopted by Parliament in 2013, and is an attempt to provide
a comprehensive framework to direct needed legal, regulatory, and administrative changes in the
land governance system.69The National Land Policy provides for the protection by government
of natural land and water resources, which are held in trust for the people and are “reserved for
ecological and touristic purposes for the common good of all citizens.” These resources may not
be leased out or alienated except by concession, license, or permit.

The policy expressly acknowledges the failure of Uganda’s formal law to overcome
discriminatory practices concerning women’s land and inheritance, particularly in section 4.10,
titled “Land Rights of Women and Children.” 70
In that section, the Ministry calls on the
Ugandan government to overhaul the statutory regime in place in order to confront
discrimination in land and inheritance. The policy does not, however, advocate for concrete legal
changes, but instead provides a basis upon which government can take steps to redress
discrimination and disparate impact and makes a case for law reform and practice change at the

17 Uganda Ministry of Lands, Housing and Urban Development, National Land Policy, Approved Draft February
2013.69
70
Id., sec. 1.2.3, p.7; sec. 3.8, paras. 112 & 113, p.31; Sec. 4.2, para. 122, p.33; Sec. 4.9, p.41. Section 4.9 is the
major section confronting discrimination toward women in Ugandan land and succession law.

39
policy implementation level. Inheritance rights of women are among the issues the policy
addresses, with a view to ensuring that there is a framework to guide the needed reforms. This
policy is in the early stages of

Implementation planning by the Ministry of Lands, Housing, and Urban Development. It

remains to be seen whether this National Land Policy will have a significant impact on women’s
land rights in Uganda.

40
 CHAPTER FOUR
DATA ANALYSIS

4.1 Analysing how to expose the change that have occurred as regards to women to own
land?
Interview method;

The interviews was applied in the collection of qualitative data with the different women in the
villages. That is in order to access women who have been denied property ownership. I moved
around the villages of mukono ,mbararawakiso and kampalainteracting with different women
where I menaced to interview some about their rights on land ownership where avery few
number of women were aware of their rights to own land and that land ownership has no sex but
instead its right to avery one , among these few they are able to own land and property on their
own and to claim their rights in case they being infringed on .

However during my interview I realised that most of the women aren’t aware of their right to
their property ownership more land where they claim that land belongs to men and the7y have no
right to own land since they are women.

A moderate number of was ignorant about the law of property ownership as women due to
various reason discussed above.

My statistics showed that 20% is aware of theirs laws and rights abut land and property
ownership, 70% are not aware of their rights and laws and 10% they don’t care about their laws
and rights about property ownership.

41
 per%

10%

20% not aware

aware
not caring
70%

Questionnaire guide;

This was applied where I compose questions that were close ended, standardized and detailed in
order to give a vital assistance to the study. The questionnaires were printed covering different
areas of interest in order for me to attain relevant information about the ownership of property by
women and their awareness about the various property laws.

However the response was quit poor due to the biggest number of women face the problem of
lack of education and also the fear to talk about the issues of property since they believe that
such issues are to be held by men not them.

The statics of those who responded to the questions positive was very low to 15% and 75%was
not understanding what the questions were about , 10% of women completely refused to answer
the questions due that they weren’t educated or due to fear to talk about such issues.

Chat of statistics to the research

42
 per%

700%
600%
500%
400%
Axis Title

300% 4.4
200%
2.4 Series 2
100% 1.8
0% 15% 75% per%
5%
-100%
AWARE NOT AWARE FIALURE
Series 2 2.4 4.4 1.8
per% 15% 75% 5%
Axis Title

Observation;

This was employed where I was to observe and study the livelihood of different women in the
rural areas concerning ownership of property. For example where questions were asked but there
was a hesitant look on the face of the respondent evidence of uncertainty and fear was adduced
by me.

Secondary sources.

These sources included text books, journals, websites, and works from different authors as the
research will portray. The research tended to employ the review of resources during library
research on various written texts on the subject of property rights. These involve reports,
journals, articles, seminar papers and law reports for the legal opinion. These were carried out in
various libraries which include, the Uganda Christian University library, the Law Development
Centre. Where secondary source comprised 30% and other sources comprised 70%.

43
 per%

30%

secondary sources
other sources

70%

4.2 analysing factors that limit the full grant and exercise of the rights of women to own
land
Interview method;

The interview was applied in the collection of qualitative data with the different women in the
villages. That is in order to access women who have been denied property ownership. I moved
around the villages of mukono ,mbararawakiso and kampala interacting with different women
where I menaced to interview some about their rights on land ownership where a very few
number of women were aware of their rights to own land and that land ownership has no sex but
instead its right to a very one , among these few they are able to own land and property on their
own and to claim their rights in case they being infringed on .

However during my interview I realised that most of the women are aware of the factors
affecting their full grant of property ownership to their property ownership more land.

A small percentage was ignorant about factors limiting the full grant of their rights .My statistics
showed that 80% is aware of the factors which limit the women from enjoying laws and rights
abut land and property ownership, 10% are not aware of factors affecting their rights and lawson
property ownership and 10% they don’t care about their laws and rights about property
ownership.

44
 per%

10% 10%

not aware
aware
not caring

80%

Questionnaire guide;

This was applied where I compose questions that were close ended, standardized and detailed in
order to give a vital assistance to the study. The questionnaires were printed covering different
areas of interest in order for me to attain relevant information about the ownership of property by
women and their awareness about the various property laws.

However the response was very poor due to the biggest number of women face the problem of
lack of emotions and also the fear to talk about the issues of property since they believe that such
issues are to be held by men not them.

The statics of those who responded to the questions positive was very low to 05% and 85%was
not willing to respond to the questions were about , 10% of women completely refused to
answer the questions due that they weren’t educated or due to fear to talk about such issues.

Chat of statistics to the research

45
 per%
000
5% 5%

postive response
not willing
FIALURE

90%

Observation;

This was employed where I was to observe and study the livelihood of different women in the
rural areas concerning ownership of property. For example where questions were asked but there
was a hesitant look on the face of the respondent evidence of uncertainty and fear was adduced
by me.

Secondary sources.

These sources included text books, journals, websites, and works from different authors as the
research will portray. The research tended to employ the review of resources during library
research on various written texts on the subject of property rights. These involve reports,
journals, articles, seminar papers and law reports for the legal opinion. These were carried out in
various libraries which include, the Uganda Christian University library, the Law Development

46
Centre. Where secondary source comprised 30% and other sources comprised 70%

per%
80%

70%

60%

50%

40%

30%

20%

10%

0%
secondary source other sources

per%

4.3.Analysing women’s rights in the various property laws;

Secondary sources.

These sources included text books, journals, websites, and works from different authors as the
research will portray. The research tended to employ the review of resources during library
research on various written texts on the subject of property rights. These involve reports,
journals, articles, seminar papers and law reports for the legal opinion. These were carried out in
various libraries which include, the Uganda Christian University library, the Law Development
Centre. Where secondary source comprised 10% and other sources comprised 90%

47
 per%
100%
90%
80%
70%
60%
Axis Title

50%
90%
40%
30%
20%
10%
10%
0%
secondary source other sources
Axis Title

per%
4.3

48
 CHAPTER FIVE
5.0 RECOMMENDATIONS AND CONCLUSIONS
With the above discussion in regard to the effectiveness of property laws with regard to
protection of women’s rights, women still face challenges in trying to own property. I have come
up with various recommendations that can be adopted to enable women realize their rights to
access and own property in Uganda.

5.1 RECOMMENDATIONS;
Women in Uganda should adopt both collective and individual strategies to assert their claims in
property. For instance from participation in the struggles around the Land Act, Succession Act to
taking their claims to court and purchasing property of their own.

One way of realizing rights is by encouraging the use of courts. For example in areas where land
pressure is great, women tend to prefer Magistrate courts that are stationed at county and sub
county levels.Evidence has been shown that they are most preferred because they are cheaper.

There is also a need to codify customary law. There is need for a thorough and detailed study of
the norms and customs of the ethnic groups in Uganda. Until this is done then women can realize
their right to own and purchase property. In Uganda, there is need for codifying customary law
as long as it is nondiscriminatory71. The law on property laws also should be redefined as it
affects the rural people who may not be in a position to translate and practice what it says. In a
sense, by translating in a language they understand, because most of them are illiterate and do
not understand English.

Furthermore, appropriate measures should be used in order to implement the law regarding
women’s ownership of property. For example, sensitization through holding seminars and
conferences in different areas. Due to the fact that most women are illiterate and ignorant about
their rights. Therefore men take advantage of that hence the continued oppression.

Enlightenment of women of what the law actually says about their rights to inheritance of
property, for instance under the Succession Act which grants women rights to inherit property.

71
Mulumba Deborah. Property Rights and Marginalised Groups in Uganda. A paper presented at the National
Consultation Conference. Legal Empowerment of the poor Speke Resort Munyonyo 24 th_ 25th Nov. 2006 pg. 24.

49
Also stated in the case of Re- Kibiego72, where it was held that a widow of whatever race is the
proper person to obtain representation to her husband state particularly where the children are
under age. The widow’s rights over property however, are realized only where the children are
below the age.

Amendment of the existing laws. Some of the laws in Uganda that pertain to women’s property
rights should be amended and made more specific on what they provide, for in order to prevent
confusion in the future. For instance, Article 33 (6) of the Constitution of Uganda 1995 states
that laws, cultures, customs or traditions which are against the dignity and welfare or interest of
women which undermine their status, are prohibited by this Constitution. This Article has
occasionally created controversy when it comes to determining which custom in particular is
prohibited. This leaves open the possibility that certain laws or customs although unequal, may
not be against the dignity and welfare of women. Therefore such provisions should be amended.

The rights of women under customary law tenure are largely unknown and misinterpreted. I
therefore recommend that the women members of parliament and civil society groups should
research about their different customary land tenures in the country and document their findings.
Once written down, they can be used to educate women in different areas.

Mandatory acquisition of land titles

Although the statutory laws recognize the rights of women to own and manage property, this is
only true normative level where gender neutrality of law offers such phantom rights. The
customary law and people’s local cultural norms are both backward and discriminatory and have
greatly contributed to the treatment of women as possessions and denying them rights. 20% of
women in the questionnaires noted that they own land. Therefore all land should be brought
under the state and everyone should get land titles. If practicable, married women should be
allowed to register their interests and the land owner husbands.

Right to co-ownership

The law should give husbands and wives automatic co-ownership of any land the family lives on.
80% of married women in the questionnaires answered that they’re given user rights and thus
they should be allowed to co-own this land. The co-ownership clause should be incorporated into
72
[1972] E.A 179.

50
the Land Act. Women should be educated about these land rights so as to enforce them through
courts. The laws limiting the realization of women’s rights should be repealed. All stakeholders
should contribute towards the struggle for equality in land rights, laws makers should take a huge
step to implement this law.

Implementation and enforcement of the law.

The National Land Policy should fully reflect and embrace women’s right to equality in access,
ownership and control of land and when finalized should be used as a basis to amend and
reconcile other relevant laws so that the concerns and interest of marginalized and vulnerable
people particularly women are fully comprehensively addressed by legal framework in Uganda.

The Land Act and Succession Act should be harmonized to provide adequate power to widows
and women whose marriages have come to an end. They should also provide for joint co-
ownership to guarantee ownership or title to land if they lose their husbands. This is because
contradicting laws is an obstacle to full realization of women land rights.

The State in full collaboration with the civil society organizations and community leaders should
translate the law and communicate it in a way that is clear, easy and accessible for grass root
women to understand.

Sensitization

Government, NGO’s, religious institutions and members of parliament should through mass
sensitization educate people especially urban and rural, poor and illiterate women about their
rights and the existing laws with their implications on equality. The public should also be
sensitized on the need to disregard socio-cultural prejudices and allow women to own land.
Grass root women must be involved and adequately consulted and educated on the ongoing land
and constitutional reform processes. This should be done through media, campaigns, organizing
workshops and encouraging community support groups such as single mothers association in
Uganda.

Traditional leaders should be involved to help in identifying cultural practices that support the
rights of women and question ones that do not provide adequate protection to women. Thiscould

51
be done by organizing community trainings for leaders showing best practices and peer
exchanges.

Although there are many obstacles to the realization of women land rights, the vision should not
be lost. Women should build their own confidence by getting involved in activities in the public
sphere. They should not confine themselves or be confined to the public/ domestic sphere.
Uganda is often too characterized by entrenched patterns of exclusion, women must be able to
uphold their target.73

5.2 CONCLUSION.
Many women in Uganda do not possess or own land but rather possess user rights they obtained
from their husbands ever since the 1900 Buganda Agreement. However, some women have
managed to own land much as there are still obstacles that are being faced in this regard by
women.

Women’s ability to improve their position has been seriously hampered by entrenched
inequalities and the distribution of property by cultural construct that is the patriarchal system of
property ownership and inheritance common to all societies in Uganda and by the exclusion of
women from public decision- making. In the post conflict areas, it was also disturbed the war
which led to displacement and loss of property.

The women’s access to land is not by the right of control or ownership and also extends to lack
of control of what is produced on the land. The decision to give land to a girl is not automatic as
compared to the boy. For a girl there will always be some considerations like marriage and age
etc.

An extreme imbalance also still extends in work performance and distribution of men and
women in Uganda as regarding land development. Women’s labor and contribution to
agricultural development is always undermined and yet they contribute 70-80% of all labor in
agriculture and over 90% in food crop production and processing. Their labor is not paid and
their rights do not reflect in the contribution and the world at large.74

Esther Obaikol; Women’s Land Rights and Land in Ugandawww.landnet.ug

73

Jennifer OkumuWengi. Weeding the Millet: Women’s land rights and Grassroots, Justice in Uganda (1997)
74

www.amazon.com

52
Women therefore need an interest in land as this will ensure that they have control over land and
what is used for. The kind of transactions that take place on land and the purpose for which the
income derived from the produce is used. Strengthening of women’s bargaining power within the
household will secure access to land, control over it and the products ensured.

Financial institutions in Uganda only give credit with security and land evidenced by a certificate
of title is one of the most recognized and accepted forms of security therefore women should
have their names written on the title. This will protect them from land grabbing from in-laws.

Control of land is essential for women to live with dignity. Change is therefore needed and will
require simultaneous struggles over property in the norms governing gender roles and behavior
and over public decision making authority.

Land rights are a critical point of entry for challenging inequality. Achieving land rights for
women will not only require removing existing inequalities in law but also ensuring that new
laws are implemented. It will mean strengthening women’s ability to claim and retain their rights
to land as well as their ability to exercise control over it. Although the position of women has
been bettered in some areas like education, parliamentary and cabinet posts, the women are still
below the men when it comes to land ownership in Uganda. Bader75 pointed out that the
betterment of the position of women is dependent on the ownership of land which is still largely
owned by men.

75
Bader 2.K. Women in Private Property and Production in Bukobi District (University of Dares-Salaam), 1975

53
UGANDA CHRISTIAN UNIVERSITY- MUKONO.

RESEARCH ON THE RIGHTS OF WOMEN IN KAYUNGA DISTRICT.

INTERVIEW GUIDE

1. What is your name?

……………………………………………………………………….

2. Are you married or unmarried?

……………………………………………………………………….

3. What is your conception about women in your society?

……………………………………………………………………….

4. What do you think about women inheriting property?

……………………………………………………………………….

5. Do women have rights to inherit property in the society?

………………………………………………………………………..

6. What can a women inherit of all the household property and wealth?

………………………………………………………………………

7. If no then why?

…………………………………………………………………….....

8. Can women buy land and own it in this community? If no then why?

……………………………………………………………………….

9. Are there instances where a widow’s property is grabbed by the relatives of the
deceased?

………………………………………………………………………….

10. If yes, then where does the widow go for redress?

54
………………………………………………………………………….

11. What share of the property is given to the women or a widow and the girls?

…………………………………………………………………………...

12. What was the customary and present perception of women’s rights to inherit property
in this community?

………………………………………………………………………….

55
TO THE LAW IMPLEMENTERS

1. Are you aware of the law that governs women inheritance of property?

……………………………………………………………………………..

2. What are the challenges that you have faced in the process of implementing these
rights of women?

………………………………………………………………………………

3. What was the customary and present perception of women’s rights to inherit property
in this community?

………………………………………………………………………………..

56
BIBLIOGRAPHY.
BOOKS.

1. BLACK’S LAW DICTIONARY BRYN A. GARNER THOMPSON 8T EDITION

2. BROMLEY’S FAMILY LAW-P.M BROMLEY, 6TH EDITION
3. GENDER AND PROPERTY RELATIONS IN UGANDA- TUHAISE PIERCY NIGHT,
UGANDA LAW FOCUS
4. WEEDING THE MILLET FIELD, WOMEN’S LAW AND GRASS ROOT JUSTICE IN
UGANDA, ESSAYS IN WOMEN’S LAW- OKUMU WENGI JENNIFER, UGANDA
LAW WATCH CENTER (1991).
5. WOMEN AND LAW IN EAST AFRICA. THE LAW ON SUCCESSION IN UGANDA:
WOMEN IN INHERITANCE LAW AND PRACTICES, ESSAYS AND CASES,
UGANDA LAW WATCH CENTER (1994)

ARTICLES.

1. PROPERTY RIGHTS AND MARGINALIZED GROUPS IN UGANDA, PRESENTED

AT THE CONSULTATION CONFERENCE AT MUNYONYO SPEKE RESORT,
24TH- 25TH NOVEMBER (2005).

INTERNET SOURCES.

1. www. Women in the World History.com/ class room series as on the 2nd of March 2011

57