II. Formal Legal Framework for Women’s Land and Property Rights

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Introduction

Uganda has a dual framework for land governance: the Constitution (1995)[6] and the 1998 Land Act[7] 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)).[8]  The state retains the right to acquire land in the public interest, subject to Constitutional protections. 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.[9]  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.

Land Act 1998

Uganda’s principle land law is the Land Act (1998).[10]  Since its passage in 1998, the Land Act has been amended three times: in 2001,[11]  2004,[12]  and most recently in 2010.[13]  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.[14]  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 society[15] —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.


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.[16]

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.[17]  The 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.”[18]  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 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.

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.[19]  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. 

Individual and Household Rights to Land

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.[20]  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.[21]  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).[22]  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). 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.[23]  Both 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.[24]


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 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.[25]


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.


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.[26]


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.[27]  In 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.[28]  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.[29]


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 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.[30]


Finally, under the Succession Act, widows’ maintenance and occupancy rights terminate in the event that she remarries.[31]


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.[32]  Even 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


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.[33]


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.


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.[34]

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.[35]  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.[36]


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. 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.