By Steve Nsita, Havilah Company Limited, Kampala, Uganda
In Uganda, legislative reforms ushered in by the 1995 Constitution have strengthened community forest tenure rights and privileges in the law books, but the communities who are meant to benefit from these legal provisions are largely incapable of demanding and defending those rights and privileges. The Global Comparative Study on Design and Implementation of Tenure Reform led by the Center for International Forestry Research (CIFOR) has found that in Uganda, local communities often have little understanding of their tenure rights enshrined in the law. On the other hand the study also found that although it was the duty of central and local government officials to build the capacity of community institutions to demand and defend these rights, the officials were focusing on the technical aspects of tree growing and forest management. Even collaborative forest management (CFM) around government forests was focusing on building community arrangements that would foster good forest management, but doing little to build the capacity of communities to demand and secure their rights and privileges. Community forests, where communities can exercise the full forest tenure rights, the law requires that they are gazetted first before the communities can exercise those rights. For some community forests, all arrangements necessary for gazetting have been put in place, none of the forests have been gazetted so far, and the communities are not sure how to proceed.
To help communities learn what their rights are and how to protect them, the author worked with CIFOR, Association of Uganda Professional Women in Agriculture and Environment (AUPWAE), and the Makerere University School of Forestry, Environmental and Geographical Sciences to conduct a series of training workshops. The goal was to equip local community leaders and local government officials with the knowledge they needed to enable local communities to understand and exercise their forest tenure rights.
The Training Workshops
The training workshops were held in the districts of Kakumiro, Kibale, Masindi and Lamwo, where the study sites of the Global Comparative Tenure Project in Uganda were located. The study had brought to light a number of key rights-related issues that had proved challenging to forest tenure reform implementation, and especially to appropriating and defending local forest tenure rights, including the finding that local communities were hardly aware of their rights and privileges under the law. The workshops were conducted at the district, subcounty and local community levels.
Thus, the training events focused on building local community legal literacy, increasing awareness of collective community forest tenure rights and privileges, and promoting forest tenure security. The training content was based on the findings of the study, and included a wide range of topics, such as the bundle of forest tenure rights, community-related rights enshrined in the various laws and the extent to which they are being implemented, and building durable community institutions.
The methods included PowerPoint presentations and participant discussions in groups and in plenary. In addition, relevant sections of the key laws were summarized, simplified, and issued as a handout for future reference. The handout was accompanied by full copies of the relevant laws. This was expected to enable the participants to extend what they had learned to the people they represented in the training.
HIGHLIGHTS OF THE WORKSHOP DISCUSSIONS
Key rights-related issues that generated a lot of discussion during the training events, and thus led to learning by participants have been distilled out in the sections below.
1. In The Eyes of the Law
The training helped the local government officials (especially those who are not foresters) and community leaders to see the local community forest tenure rights the way the law sees them. The 1995 constitutional reform placed ownership of all land in the hands of the citizens, giving them the right to own it either individually or in association with others. On this basis, the Land Act (1998) allows citizens to own land through customary, leasehold, freehold and mailo1 land tenure systems. But it was the subsequent National Forestry and Tree Planting Act (2003) that most strengthened local community forest tenure rights. The Act differentiates between central and local forest reserves, community forests, and private forests. The Act also empowers government institutions managing forest reserves to enter into CFM arrangements with local community institutions. To this end, the Act allows communities to negotiate entitlements and obligations with the relevant government agencies, and to draw up formal CFM agreements based on these arrangements. However, the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, which have been globally endorsed, recommend that all legitimate customary rights should be recognized by statutory law. This would thus call for legislation for the rights under CFM in the National Forestry and Tree Planting Act when it comes up for review.
The National Forestry and Tree Planting Act (2003) also provides for community forests which include forests on family land holdings, community-owned forests that have been declared by the minister, and forests owned by virtue of licenses issued to communities in protected areas. In these cases, community forest owners can manage, exclude others who are not part of the legally recognized community from utilising the forest, and generate revenue from the forest which they can invest in the sustainable management of the forest and/ or use it to enhance local welfare. The law has guaranteed the community rights, but communities must take steps to appropriate and defend those rights.
In one of the Global Comparative Study Sites in Northern Uganda2 (Lamwo District), participants pointed out that their customary rights on access and use of communal land have been undergoing erosion as modern administrative governance models tend to ignore customary institutions. In terms of land ownership and control, customary rights were encoded in the Constitution and the Land Act, and therefore supervision was gradually shifting from customary/ traditional authorities to the government controlled land authorities.
2. Effective Community Institutions
In Uganda, community institutions that are instrumental to local community forest tenure may be structured as community-based organizations, cooperative societies, and communal land associations. In addition, communities like families, clans, and traditional institutions often chose to constitute themselves into companies, especially for purposes of doing business with their community lands and resources.
Today, many communities are largely dependent on short-lived projects initiated by non-governmental organizations (local and external), which negotiate community benefits from forests with government institutions on their behalf, with peripheral involvement of the community institutions themselves. And yet, projects that strengthen community institutions to advocate for their own rights would yield longer-lasting impact. To this end, the training helped the participants to realize that robust community-based organization (CBO) governance instruments are essential for the community to exercise their rights effectively. Consequently, it is crucial that the instruments are very clear on what is required of the organization’s leaders, and that the instruments include clear statements on who takes the major decisions within the CBO. It is also important that all decisions are made via processes that give adequate time and information to the members, and that the members have the right to rescind their decisions if undisclosed information comes to light after decisions were made.
It is vital that resilient and effective community institutions provide in their organization’s instruments for clear procedures for representation on executive committees to ensure the rights of women, minorities and people with disabilities are upheld, as well as guard against unfair influence from the rich and politically privileged.
3. The Threat of Hijacking Community Rights by the Wealthy and Politically Privileged
Discussions in groups and in plenary showed that even when communities understood their rights, it was often difficult for them to stop wealthy and powerful individuals who would want to highjack their rights. Now that the training had opened their eyes on their rights, the participants said that the hijackers would not find it easy to manipulate the local communities. However it was also noted that should it be necessary to defend their rights through the courts of law, they would need additional legal aid to exhaust the onerous legal processes in courts of law.
4. Reconciliation of Differing Community Interests
Again discussions in groups and in plenary showed that in some cases, the interests of different sections of the communities are difficult to reconcile and enforce. For example, if a land holder in a water catchment area clears a natural forest on their land without mitigating the negative impacts of this action, downstream communities could suffer as a result of water drying or being polluted and thus be deprived of their right to clean water enshrined in the Constitution. The participants recognized the legal right of the downstream communities to require an environmental and social impact assessment before the forest was cleared. This would require robust community institutions to pursue the rights for each of the sides in the contest. When these institutions are unable to resolve the conflicts, there should be higher level institutions for this. An example is the Uganda Collaborative Forest Resource Users Association (UNETCOFA) which for now champions the interests of CFM communities.
5. The Tenure Rights and Livelihood Nexus
The participants realized that until they can perceive possibilities for improved livelihoods, communities will have little motivation to press for their forest tenure rights enshrined in the law. To this end, the participants understood that registration of community forests placed the community’s forest management institution at the level of a Responsible Body, just like the National Forestry Authority (with respect to central forest reserves), or the local governments (with respect to local forest reserves). This would give the local community institution the right to issue licenses for harvesting in line with their own management plans, and to market the forest products the way they see fit. Accordingly, the participants noted the link between a registered community forest and community livelihoods. Therefore, it was seen as important that the forest management plans were prepared with community livelihood actions in mind so that the communities could realize the comparative advantages of exercising their rights, and thus demand and defend them.
These training workshops opened local community leaders to the reality of their rights entrenched in the law, but at the same time, it also revealed that defending one’s rights takes more than just understanding them. It also requires strong community institutions that have the resources necessary to pursue their cases through all available legal processes, should such eventualities arise
On the other hand, the Voluntary Guidelines on the Responsible Governance of Tenure referred to above indicate that as a matter of principle, it is the responsibility of the relevant government organs to safeguard legitimate tenure rights against threats and infringements. To this end, it is incumbent upon central and local government institutions to provide for dispute and grievance redress mechanisms that can be easily accessed by local communities. Local councils are already mandated by law to deal with such matters, but Section 88 of the Land Act (1998) also provides for traditional authorities to “…exercise the functions of determining disputes over customary tenure or acting as a mediator between persons who are in dispute over any matters arising out of customary tenure.” On the strength of this, local governments can put in place ordinances and bylaws that give legal effect to customary mechanisms such as clan and extended family mechanisms in dealing with land and forest tenure.
1 This is a colonial legacy in which collaborators were often rewarded with land. The land is owned in perpetuity (permanently). The owner has the right to exercise all the powers of ownership as those exercised by the owner of land held under a freehold title. It refers only to land owned as such under the colonial land laws.
2 Northern Uganda still has strong traditional institutions which exercise strong customary land law.
This research was supported by the European Commission, Global Environmental Facility (GEF), International Fund for Agricultural Development (IFAD), Food and Agriculture Organization of the U.N. (FAO) and CGIAR.