The role of local council courts and traditional institutions in resolving land disputes in post-conflict northern Uganda

• Author: Rose Nakayi
• Published date: 01 January 2013
• Date: 01 January 2013
• DOI: 10.10520/EJC161847
• Pages: 119-137

THE ROLE OF LOCAL COUNCIL COURTS

AND TRADITIONAL INSTITUTIONS IN

RESOLVING LAND DISPUTES IN

POST-CONFLICT NORTHERN UGANDA

Rose Nakayi*

ABSTRACT

As a result of factors related to over two decades of armed conflict in northern

Uganda, land disputes in the region have sky-rocketed since 2010. Due to the

questionable legitimacy and inaccessibility of state courts, many people often re-

sort to lower level institutions – Local Council Courts (LCCs) and Traditional

Institutions (TIs) – for land dispute resolution. Using interview data and exam-

ples from the field, this article highlights the human rights shortfalls in the

operation of LCCs and TIs and draws attention to the imperfect environment in

which they operate. Despite the important role they purport to play in facilitating

access to justice, they receive insufficient support from the state and are not prop-

erly regulated. For initiatives that seek to enhance access to justice by using

informal justice mechanisms to succeed, they need to be accompanied by efforts to

improve the environment in which they operate.

I INTRODUCTION

Land disputes in Uganda can be resolved by a number of courts in the

hierarchy right from the Magistrate Courts up to the Supreme Court.1For a

number of reasons including inaccessibility, these courts have not been the

firstchoiceforthemajorityofpeopleinnorthernUganda.

2Lower level insti-

tutions such as TIs and LCCs have served as a convenient (although not

RESOLVING LAND DISPUTES IN POST-CONFLICT NORTHERN UGANDA 119

Lecturer, School of Law, Makerere University. Much of the research for this article was done as

part of the activities of the Research Partnership Program of the Danish Institute for Human

Rights-Denmark.

*

1 See the Magistrates Court Act, Cap 16 of the Laws of Uganda; Judicature Act, Cap 13 of the Laws

of Uganda.

2 Interview with (OBO) in Gulu, 15 October 2010.

better) alternative for peoples’ land dispute resolution needs.

Land disputes pertain to the human right to property protected under

various human rights instruments to which Uganda is a party.3Uganda’s rat-

ification of these treaties implies an intention to be bound by the stipulated

human rights. The act of ratification generates the responsibility to respect,

protect and fulfill the rights that are contained in human rights instruments.4

The establishment of the appropriate institutions and effective remedies in

cases of breach are important prerequisites for the protection and fulfilment

of all human rights.5

The traditional view is that private property is best protected through

public or state institutions.6However, Uganda’s case presents a conundrum;

it has a wide space regulated by African customary law within which a num-

berofpropertyorlandrightsareclaimed and regulated by non-state entities

such as TIs (and to some extent LCCs). That notwithstanding, land dispute

resolution by TIs and LCCs is to some extent sanctioned by law. Section 88 of

the Land Act Cap 227 provides: ‘Nothing in this Part shall be taken to pre-

vent or hinder or limit the exercise by traditional authorities of the functions

of determining disputes over customary tenure or acting as a mediator be-

tween persons who are in dispute over any matters arising out of customary

tenure’. From this provision, TIs can ‘determine disputes’ or act as ‘media-

tors’. This provision therefore gives the TIs a dual role in dispute resolution.

Plainly, mediation would involve the application of conciliation methods

that do not result in winners and losers. What is not clear is whether the ‘de-

termination of disputes’ empowers these institutions to employ procedures

that lead to judgments or decisions pronouncing winners and losers in any

given case and capable of enforcement against the loser.

LCCs are established under Local Council Court Act, 2006, which regu-

lates their jurisdiction and mode of operation. The intention of the

legislator, as can be deduced from thatAct,isthatLCCsshouldoperateatvil

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120 (2013) MLJ VOLUME 7

3 See art 17 of Universal Declaration of Human Rights, GA Res 217A (III) UN Doc A/810 at 71

(1948) (UDHR); art 14 of the African Charter on Human and Peoples’ Rights, adopted 27 June

1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986

(African Charter).

4Velasquez Rodriguez v Honduras Inter Am Ct HR (Ser C) No 4 (1988); Social and Economic Action

Center and the Center for Economic and Social Rights v Nigeria African Commission on Human

and Peoples’ Rights, Communication No 155/96 (2001).

5 F Francioni‘The rightof access to justice under customary international law’ in F Francioni (eds)

Access to justice as a human right (Oxford: Oxford University Press, 2007) 23.

6SFJoiremanWhere there is no government enforcing property rights in common law Africa (Oxford:

Oxford University Press, 2011).