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The legal superstructure and agricultural development: Myths and realities in Uganda
J.A.S. Musisi
Department of Commercial Law. Faculty of Law. Makerere University
Kampala , Uganda
Introduction
Although under exceptional circumstances law per se can bring about social change, it is a truism that in so far as law is a superstructure rising out of the particular mode of production as a base, it cannot as a general rule bring about social change, let alone social development, on its own. Yet, a number of academicians and the majority of those who control the state machineries in the third world idealistically believe that the reverse is true.
About 90 per cent of Uganda's population lives in rural areas. The need to concentrate on rural areas is nowhere more emphasized than in government speeches. In the field of agriculture, the omnipresent call for land reform has been going on for almost 100 years (Obol-Ochola 1967). Agriculture contributes to about 80 per cent of Uganda's GNP, over 90 per cent of its exports, and employs directly or indirectly about 85 per cent of the population.
This paper attempts to analyse the various legislations in Uganda which were supposedly aimed at the development of agriculture. It is our thesis that, notwithstanding a near-century of legal reforms in this field, little, if any, development has taken place. We argue that more legal reforms to uplift the level of agriculture are doomed to fail unless serious work is done, not only to politicize the majority of those in rural areas, the peasants, but also to emancipate the country from the fetters placed upon it by both internal and external forces.
A Historical Review of Agricultural Policy in Uganda
Before the colonial period, the bulk of the land was held on a communal basis, apart from those areas where feudalism was beginning to emerge. With the coming of colonialism, this situation was altered. Land ownership began to be seen as an individual phenomenon.
This change in the land tenure systems was first facilitated by the 1900 Uganda Agreement. Article 15 thereof parcelled out the land in Buganda, which was estimated at 19,500 square miles. The Kabaka (king of Buganda), members of the royal family, and highranking chiefs were to receive about 960 square miles as either official and/or private estates. Under the same arrangement, about 1,000 chiefs and private land owners were each to receive 8 square miles, the missionary societies 92 square miles; the existing government obtained a grant of 50 square miles, while 1,500 square miles were designated as forest reserves. The remainder of the land, about 9,000 square miles, was retained by the British Crown as Crown lands.
This arbitrary parcelling out of land by the colonial state was confirmed by the Land Law of 1908. In Buganda, where the economy was relatively more developed, those recipients of mailo (as the land tenure system was now called) used the earlier tribute of rent (envujjo) and the free-labour (kasanuu) service to the chief for one month in the year to enrich themselves at the expense of the peasant. Under envujjo, the chiefs would give out cotton seeds to the peasants on their mailos and extract a tribute during the harvesting period. Forms of envujjo were present throughout Uganda, but notably in Busoga, Bunyoro, and Toro. Such parcelling of the land greatly affected the majority of the peasants. But the effective colonization of Uganda could not be accomplished without the chiefs being given incentives for their role therein, the interests of the peasants notwithstanding.
Before long, developments necessitated a reconsideration of the legislation. By the 1920s, it had become clear to the colonial interests that European settlement in the form of plantations, as in Kenya, was not going to be an easy feat to attain because of the economic conditions. Hence, the beneficiaries of colonialism had to rely increasingly on direct peasant labour for the production of cotton and coffee, which had been introduced in the early years of the century, and which were greatly required by British firms. Yet, by its having parcelled the most productive land in favour of the chiefs, the colonial state had deprived the peasants of the land necessary for this purpose.
Moreover, it also became apparent to the colonial state that the chiefs, instead of efficiently administering their areas, were merely growing rich as a result of the cheap peasant labour they employed on the land. Ehrlich (1965, 452) noted:
During the early years of cotton growing the Chiefs had played a dominant role and they enjoyed a liberal share of the new wealth. The Government had regarded them not merely as indispensable agents for the imposition of British rule, but as potential leaders in the process of social and economic change which stemmed from that rule. But whatever their success in their former role, the Chiefs proved to be sadly deficient in qualities of economic leadership. With a few exceptions they were content to enjoy the carefree life of country gentry, financed by illdefined but lucrative rents, taxes and tributes.
By 1921, peasant agitation against the abovementioned land parcelling had broken out in Bugand under the umbrella of the Bataka Movement. The peasants were joined by some clan leaders whose economic base had been swept away by the 1900 agreement, which abolished the clan-land system (the Butaka). In 1922, this movement submitted a joint complaint to the Kabaka. Among other demands, the movement appealed to him to redistribute the Butaka estates to the original proprietors in accordance with native customs; and to preserve and see that each one gets his original Butaka estate and that the British Government ratifies and preserves the same (Apter 1967, 143). With such developments, the myth that the 1900 agreement would lead to the "development" of Uganda was exploded: no "development" for either the colonial interests or the peasants could take place. The colonial state was therefore forced to come out with a "revolutionary" policy to "free" the peasants from the fetters imposed on them by the chiefs and hence release their productive capacity directly for the benefit of colonialism.
A new policy of "transferring land rights from the landowners to the masses of the people'' led to the 1927 Busuulu and Envujjo Law (also known as the Busuulu and Envujjo Law 1928). Under this law, rent (envujio) was restricted to Shs4/- per annum per acre or part thereof, while dues (busuulu) were restricted to Shs10/- for each holding. Shs8/50 of this was to go to the land owner and Shs1/50 to the Government. Commenting on this law, West (1972, 723) says:
The intention of the law was to create and preserve a class of smallholders, the official ideal at the time... [It] put a stop to the more undesirable practices to which mailo owners were resorting at the time.... It also supplied the security of tenure necessary to encourage the smallholder to plant coffee which is a high priced, slow maturing and long surviving crop
Outside Buganda the same policy of trying to "free" the peasant from "primitive exploitation" was being introduced (for instance the Law of Landlords and Tenants for Ankolo and Toro, 1937). Tribute was reduced from Shs4/- to 12 days' labour; poll tax rebates were forbidden and the chiefs were paid a fixed salary and pension. By 1936, all tributes had been forbidden. The story was the same in Bunyoro. The Report on Land Policy and the Kibanja System in Buyoro (Uganda Protectorate 1930) recommended that the Shs7/-busaulu be paid to those who lost tribute. The report had concluded that "if as an outcome there is evolved a nation of small farmers we shall be content." In eastern and northern Uganda, all lands were regarded as Crown lands, but customary law assured the peasant the same security as a smallholder engaged in cash crop and subsistence agriculture. Wrigley (1970) summed up this nationwide policy thus:
So during the interwar period there took shape a new pattern of agrarian society. At the bottom was an undifferentiated mass of free peasant cultivators, the de facto proprietors of small holdings which yielded them both food and modest money income. Above them there was an administrative hierarchy of salaried Chiefs who, apart from the residual busuulu and envujjo in Buganda, no longer derived direct profits from the land or its products. They were still expected to stimulate and in some degree supervise the cultivation of cotton, but this was now simply part of their function as government officials, and no longer a function of landownership or feudal dominion.
But, once again, the myth that the 1927 law would bring about the development of agriculture in respect of the peasants was soon exploded. The colonial interests rather than those of the Ugandan peasants were being served. Cotton production rose from 203,000 bales in 1929 to 424,000 bales in 1938.
But to the poor peasants of Uganda the story was certainly different. Wrigley informs us that, although the 1928-1929 period was a season of high yields and good prices, the cotton crop yielded only seven pounds sterling to every taxpayer in Busogo and six pounds sterling in Buganda and other parts of Eastern province. The rest of the revenues was taken up by government taxation. The policy of the colonial government to encourage peasant smallholders as opposed to plantation farms or African semi-feudal landowners soon brought to the fore a contradiction. In so far as the precolonial relations on land had given way to "market" ones, the official policy (Uganda 1955) now began to emphasize the big farmer, who would utilize tractors and fertilizers, rather than the peasants. By the end of the Second World War, the lowcost producer had lost his special advantage, resulting in a general revulsion against the ignorant man with the hoe (Wrigley 1953).
By 1950, therefore, private land ownership, especially in Buganda, had already made its impact. Mukwaya (1953) quoted the registrar of titles as having an opinion that in place of the 1,000 or so mailo titles isued under the 1900 agreement, there were by 1950 approximately 58,000 separate titles. Such land titles now became a superstructure for acquisition of credit. Since peasants had no such titles, that privilege was out for them. The beneficiaries of these credit facilities were the middle classes who had been leaders of the national movement and in whose favour the Government had conceded the creation of the Uganda Credit and Savings Bank.
To concretize further individualization of land ownership, the 1955 Royal Commission recommended the registration of individual ownership throughout Uganda; this view was endorsed by the International Bank for Reconstruction and Development (IBRD) and the Munster Commission (1961). According to the IBRD, the creation of the concept of private ownership of land in Buganda had aided it in its development (IBRD 1961). The report also pointed out that security of tenure had facilitated investment and the right to own land, and the conversion of such land into a negotiable asset had assisted in the emergence of groups of producers who were commercially oriented and were beginning to specialize in production for market. For its part the Munster Commission was in favour of the introduction of mailo land tenure, since it broke the grip of tribal customs and laid the foundations of a "sound policy" (Munster Commission 1961, 81). These missions and, therefore, the policymakers did not realize at the time that what was seen as "development" in Buganda was a highly skewed process. It was a minute portion of the Buganda who had benefitted from that land policy. The majority, the poor peasants, were left landless or only open to barren and/or inaccessible land. These "ignorant men with a hoe" were now seen as a barrier to increased productivity of land per capita. This was because their holdings were too small to permit productivity to increase, and the mailo owners had mere ownership with no control of investment over their lands. West (1972, 84) noted:
In the development of tenanted land, the present position is one of "stalemate". No constructive move may be made by either mailo owner or tenant. The mailo owner has ownership without inducement to invest and the tenant is in occupation without the power to progress.
The early years of post-independent Uganda from 1962 saw very little governmental action over the land issue. This was understandable in so far as the impact of any new system would be felt more in Buganda, where private land ownership was most concentrated yet conditions were quite volatile in the political field as a result of its entrenched rights under the Independence Constitution. In the meantime, however, the hostile attitude against the peasant was intensifying. In 1964, the Buganda Planning Commission was blaming the peasant for the underdevelopment of the country. It declared the barrier to economic progress to be the land system generally and the Kibanja tenancy system in particular. This was no doubt the view of those who were registered proprietors of land wanting to push out the peasant and turn him into a wage labourer on their lands.
To be sure, this hostility was part of a contradiction which faced the policymakers. On the one hand there was the need to see "progress" by dispossessing the peasants and in turn encouraging more production for the market away from subsistence. But, on the other hand, the production which was being agitated for, directed as it was towards interests outside Uganda, needed to be profitable. This profitability was based upon the payment of low prices to small peasants who lived from the land.
This contradiction was resolved in a negative way for the peasant. From the late 1960s, government policy was clearly to advance the capitalist farmer and to attract European and Asian capital as well as managerial skill towards agriculture. The 1966 "revolution" which abolished the Independence Constitution was the first official step towards concretizing this policy in the post-independent era. Under Article 108(5)(b) of the 1967 constitution, ownership of public lands and powers of control over them were vested in the Uganda Land Commission. In 1969, the Public Lands Act (No. 13 of 1969) was passed whereupon all former official estates in mailo tenure were made freehold. Under this law, people could acquire and register up to 500 acres of land (or more with the consent of the minister).
This move benefitted the better-off Ugandans, who, with credit from foreign donor agencies, could evict peasants and obtain the more fertile and easily accessible lands for their ranches and commercial farming. Therefore, although at the official policy level this step was seen as being beneficial to the country in so far as it was intended to develop agriculture, only a minute portion of the population was likely to benefit. The majority, that is, the peasants, were left out.
This policy of supporting or encouraging a "largescale" farmer, which had been pursued since the 1940s, continued even during the Amin regime. In 1975, a new law, the Land Reform Decree, was passed (Ssempebwa 1977). From a populist point of view, this law was designed, inter a/ia, to end and prevent unreasonable areas of land being left undeveloped by their owners or occupiers, especially individuals without justification for so doing, as well as to facilitate, promote, and maintain better development and use of land and the national resources for the economic and social well-being of the people of Uganda.
Thus, under the decree, all land in Uganda became public land, with the Public Lands Commission as the administrative authority. All mailo lands, free-holds, and any absolute ownership of land hitherto existing were abolished. Such tenures were converted into leaseholds granted by the commission without payment of any premium. It further abolished the payment of busuulu and envujjo, which had been modified by the 1928 law. Nobody henceforth had any right to transfer customary title on any public land. Only improvements could be transferred. Any occupation of public land under customary tenure without the commission's authority was also prohibited. The decree introduced a "zoning scheme" system where lands in particular localities were not to be used unless they complied with such a scheme. Noncompliance with such requirement rendered the land concerned subject to a "period of unuse" and it could, therefore, be taken over by others willing to follow the law.
There was nothing progressive about this law despite its alleged abolition of semi-feudal land ownership; it just transferred security from the old owners to new hands. With its prohibition of loans from banks for purposes of buying land or developing it, the new policy made it clear that only those with money could now acquire land or develop it.
As expected, this new law has had a very serious negative impact on the peasants. insofar as they now occupied their small plots on sufferance with only a right to compensation for their meagre improvements thereon, the peasants were in a very unenviable position. As indeed later events showed, the middle classes with money were able to push the peasants off their plots with very low compensation considering the hyperinflation prevailing in Uganda. The only alternative method of survival left to them was to turn into wage labourers for the new landlords who pushed them off the land. This situation has continued unabated.
Towards a Better Understanding of the Agricultural Policy
In discussing agricultural development, the importance of the land tenure system is often overemphasized. The tenure system certainly has an influence on agricultural production, but we feel that other factors normally operate to a greater degree. Hence, a discussion of land tenure per se is likely to present a one-sided view of the problem, especially when it is seen solely in a legalistic perspective.
We have in the preceding section briefly analysed the successive tenure systems which have prevailed in Uganda. Prior to colonialism, the tenure system was by and large that of communal land ownership. With colonialism, a tenure system was introduced whereby private land ownership was legalized to the detriment of the majority of Ugandans. Lastly, we have seen the enactment of the Land Reform Decree in 1975, which, from a legal point of view, tried to abolish the land tenure system bequeathed to the politically independent Uganda by colonialism.
But, again, as we have argued, these changes in the tenurial system did not of themselves result in the required level of agricultural development. Similar experiences in other third world countries indeed expose the myth that mere changes in tenure necessarily bring about agricultural development. Therefore, an appreciation of the factors restricting development in general and agriculture in particular necessitates a broader look at the problem: from a global as well as a dialectical perspective. With respect to Uganda, its development in general and agriculture in particular have been tied to foreign interests which have prevented Ugandans from making their own plans and actually implementing them meaningfully.
The colonization of Uganda was prompted by the objective and material conditions which faced the British colonialists. Among these conditions was the need for agricultural raw material necessary for British industries. The encouragement of peasant production, especially of cotton and coffee in the early years of this century, suited these foreign interests very well, since production costs for such crops could be kept at a low level. Indeed, when the chiefs stood in the way of such peasant production in the 1920s, legislation was enacted to defeat their opposition. When the national movement for Uganda's liberation began to gain momentum, culminating in the 1945-1949 nationwide strikes, the foreign interests acted through the colonial state, which was their objective representative, to stem the tide. Incentives were given to the middle class leaders of the liberation movement in the form of credit facilities in order to develop "largescale farming". This is by and large the trend which has continued up to the present day.
One may, of course, legitimately wonder why, with the achievement of political independence in 1962, the new rulers did not qualitatively change this situation. The answer lies in the fact that insofar as such rulers had been groomed by the colonial state and insofar as political indendence did not mean complete control by Ugandans over their economy, Uganda continued with its umbilical cord firmly tied to these foreign interests. The granting of political independence was made after the colonialists had carefully laid a sound base upon which they were to continue to control the economy. Indeed, the nature of the "development projects" entered into after political independence, the consistent follow-up of the colonial policy by post-independent governments, the teams of experts from the former colonial power to advise on how to run the economy, as well as the strings attached to the aid donated to Uganda, are, among others, all indicative of this continued dependence on foreign interests. Therefore, notwithstanding the populist talk by post-independence governments about agricultural development and their attempt to encourage "large-scale faming" at the expense of the peasants, Uganda has remained agriculturally backward. This is because it still lacks national manufacturing industries to absorb such agricultural produce and, therefore, act as a stimulant to further development.
For the peasants, of course, the situation is more serious, as they have been increasingly pushed off their small plots out of which they eked a living. This reached alarming proportions with the passing of the Land Reform Decree. The rate of impoverishment has been quite marked. The economic crisis in the country increasingly forced those who had managed to hold on to their plots to abandon cash crop farming and instead resort to subsistence farming.
Suggestions and Concluding Remarks
The importance of agriculture cannot be emphasized too much since (1) it provides goods to both peasants and other strata of society involved in non-agricultural productive activities, and (2) it provides a flow of raw materials and hence a possible basis for industries.
In order to increase agricultural production, first the mangement of agricultural policies must certainly be improved. This goes beyond legal reformism in the tenure system to cover planning and administration of production as well as organization of those involved therein. Second, there must be an effort to greatly improve farming techniques and increase the means of production. Both observations are certainly not new. Yet the desired results have not been forthcoming. It is in light of this that we advance the following suggestions: (a) the Government should investigate the forces which have kept agriculture lagging behind. Among these are the nature of landholding, lack of access to implements, the failure by Uganda to create a horizontally integrated economy, and the apathy with which peasants have viewed government policies; and (b) the Government should combat the identified constraints on increased agricultural production. Since past governments failed to create a firm industrial base, agriculture will continue to be the mainstay of the economy for a long time.
The first identified constraint is the absence of a horizontally integrated economy. The Government should face the reality that so long as the country is dependent on foreign interests no such economy can develop. Industries should be set up which can absorb the agricultural produce and hence act as a stimulant to further agricultural development. Mere agitation for more quotas for cotton and/or coffee on the world market does not improve the situation.
Second, the nature of landholding itself is identified as a constraint. The policy of depriving peasants of their lands or an adequate source of living must be abandoned. Such a policy brings about, inter alia, migration to urban areas. This may deprive agriculture of the labour necessary to realize the desired increase in production. The present situation of land parcelling impedes efficient utilization of resources for rural development. This situation may be improved by the formation of agricultural groups or co-operatives. Since peasants form about 90 per cent of the population, neglecting them cannot ensure the desired development in agriculture.
The apathy of peasants to the Government's policy is seen as a third constraint. This apathy is explained by the aforementioned neglect of the peasants by the Government. It is not surprising that peasants have deliberately shunned Government directives to grow cotton and coffee and, instead, shifted to subsistence agriculture or smuggled their produce to neighbouring countries in search of better prices. The Government should clearly spell out the problems of agriculture and try to involve peasants in policy formulation directed against these problems.
To overcome the fourth constraint, the Government should actively aid the peasants in improving their farming techniques. This aid (fertilizers, machinery, loans, etc.) should not, as previously, be confined to a group of "large-scale farmers" but focus on the peasants.
The Government should provide an improved extension service. Extension staff should try to restore the confidence of the peasants in the Government, reminding them of their national responsibilities as well as ensuring equitable and appropriate distribution of any farm inputs provided by the Government.
Many of these strategies need to be combined in an integrated rural development programme, aimed at uplifting the standards of living of the poor peasantry and at the same time contributing to overall national development. Such a programme must initially be centred around agricultural activities, preferably though not exclusively at a sub-country level. It is through, inter alia, such a programme that the peasants would realize their full potential and hence unleash all their energies not only for the development of agriculture but also for the country as a whole.
References
Apter, D.E. 1967. The Political Kingdom in Uganda. Princeton.
Ehrlich, C. 1965. "The Uganda Economy 1903-05. " In V. Harlow and E. H. Chilver, eds., A History of East Africa. London.
IBRD. 1961. The Economic Development of Uganda. Princeton.
James, R.W. 1976. "Land Tenure in Developing Countries: From Westernisation to Indigenisation." Eastern Africa Law Review, 9(21:1-26.
Mukwaya, A.B. 1953. Land Tenure in Buganda. East African Institute of Social Research, Kampala.
Munster Commission. 1961. Report of the Uganda Relationship Committee. Government Printer, Entebbe.
Obol-Ochola, J., ed. 1967. Land Reform in East Africa. Milton Obote Foundation, Kampala.
Ssempebwa, E.F. 1977. "Recent Land Reforms in Uganda." Makerere Law Journal, 1 :1-28.
Uganda Protectorate. 1930. Report on Land Policy and the Kibanja System in Bunyoro. Government Printer, Entebbe.
__________. 1955. Land Tenure Proposals. Government Printer, Entebbe.
West, H.W. 1972. Land Policy in Buganda. Cambridge University Press, Cambridge.
Wrigley, C.C. 1953. African Farming in Buganda. Mimeo, Kampala.
__________. 1970. Crops and Wealth in Uganda. London.