Indigenous Peoples Land Rights in Uganda: A Comment on United Organisation for Batwa Development in Uganda v Attorney General

By Marvin Ahereza*

1. An Introduction: The Right to Property

Indigenous land rights are not a totally isolated concept; they emerge and are closely linked to the right to property provided for in the Constitution of Uganda under Article 26. The Supreme Court in Uganda National Roads Authority vs. Irumba upheld the right to property and, specifically, the right to land. Under international law, the Universal Declaration of Human Rights recognizes the right to property under Article 17 and highlights that no one shall be arbitrarily deprived of property. In addition, the  Convention on the Elimination of All Forms of Discrimination Against Women under Article 16 requires member states to “ensure, on a basis of equality of men and women…the same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.”

Furthermore, the International Convention on the Elimination of All Forms of Racial Discrimination, obligates member states “to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the exercise of the following rights:….the right to own property alone as well as in association with others.” The Convention on the Rights of Persons with Disabilities, under Article 12(5), also requires member states to take appropriate and effective measures to ensure the equal rights of persons with disabilities to own or inherit property. The right to property is also provided under Article 15 of the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, which provides that no migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others.

It is important to note that the right to property can be interpreted as a guarantee of the right to land. The right to land is a universally recognized human right. This right is closely related to other human rights, such as the right to adequate housing, food, health, self-determination, participation in cultural life, water, work, and most importantly, property.

The property rights of indigenous people are protected by these legal instruments. However, specialized international law treaties also recognize the rights of indigenous people to land.

2. The Right to Land for Indigenous Peoples

Importantly, Article 13 of the International Labour Organisation’s Convention 169 on Indigenous and Tribal Peoples requires that governments recognize and respect the special spiritual, cultural, and economic relationship that Indigenous peoples have with their lands and territories, especially the collective aspects of this relationship. Article 14 of the Convention further recognizes that indigenous peoples’ collective ‘rights of ownership and possession over the lands that they traditionally occupy shall be recognized’ and that states shall take steps as necessary to identify these lands and to guarantee effective protection of [indigenous peoples’] rights of ownership and possession. According to the International Labour Organisation, the language ‘lands which they traditionally occupy’ includes lands where Indigenous and tribal peoples have lived over time, and which they have used and managed according to their traditional practices (Kinley et al., 2014). These are the lands of their ancestors, which they hope to pass on to the future generations. In some cases, this might include land that has recently been lost. Importantly, according to Article 15(1)) of the Convention, Indigenous peoples have the right to participate in the use, management, and conservation of natural resources pertaining to their lands, and the right to have these resources specially safeguarded.

Specifically, the U.N. Declaration on the Rights of Indigenous Peoples codifies the right to land of indigenous people and article 10 provides that “Indigenous peoples shall not be forcibly removed from their lands or territories.” No relocation shall take place without the free, prior, and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return. The practical application of this principle mainly concerns lands that indigenous peoples currently possess or have recently been deprived of.

Under the regional framework, The African Charter on Human and People’s Rights (ACHPR) provides under Article 14 that “the right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws.” 

Property rights have become an increasingly significant issue for indigenous peoples. As noted, on the continent, the rights to land and natural resources are the most fiercely contested aspects of property (Oei and Shepherd, 2010). It is not surprising that cases primarily based on the property rights of indigenous people were brought before the African Commission and the African Court.

The African Court in the African Commission on Human and Peoples’ Rights v. Republic of Kenya held, while relying on article 14 of the ACHPR, that the Kenyan Government had violated the Ojiek people’s right to land and property. The court drew its jurisprudence from principles of the United Nations, such as the Declaration 61/295 on the Rights of Indigenous Peoples adopted by the General Assembly on September 13, 2007, which guarantees Indigenous people the right to the lands, territories, and resources that they have traditionally owned, occupied, or otherwise used or acquired. For its part, the African Commission in Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v Kenya relied on article 14 to draw a nexus between the right to property and the right to land of the Endorois people to their traditional lands

Under Uganda’s domestic legal framework, the legal regime for land ownership that emanates from Article 26 of the Constitution constitutes the Land Act, Registration of Titles Act, Land Acquisition Act, and all other enabling regulations. It envisages a system of land ownership built on the land tenure system recognized under Article 237 of the Constitution, which includes freehold, leasehold, mailo, and customary land tenure.

3. The Batwa Community in Uganda

In Uganda, while the right to property is closely linked to the right to access land, the Batwa community is at the narrow end of this right. The Batwa, a self-identified indigenous group, has faced immense challenges in accessing land for  food, shelter, water, and other socioeconomic rights loosely tied to the right to land (Mukasa, 2012). The decision of the constitutional court in United Organisation for Batwa Development in Uganda and 11 Others v Attorney General and 2 Others brought the much attention to the plight of the Batwa but the judicial restraint exercised by the learned judges inevitably didn’t provide immediate and long lasting relieve to the Batwa community

The origin of the case cannot be divorced from the long plight of the Batwa in seeking justice and their constitutionally guaranteed human rights. The Batwa of Uganda belong to the larger group of indigenous peoples known as the ‘pygmies’ of the Great Lakes region of Central Africa. Widely recognized as the original inhabitants of the area, they have historically lived as forest-dwelling hunter-gatherers (Zaninka, 2001). However, since colonization, they have faced systematic eviction from their ancestral lands, particularly because of the establishment of national parks. Although colonial forest protection policies began in the 1930s, many Batwa continued to live in and rely on these forests until the 1990s when they were forcibly removed without consultation, adequate compensation, or alternative land. This dispossession had devastating consequences, as the Batwa systematically lost the foundation of their culture, traditions, and livelihoods, forcing them into extreme poverty, malnutrition, and poor health as squatters on other people’s lands. Additionally, they endure severe societal discrimination, often being perceived as inferior and denied equal rights (Mukasa 2012). Documented violations against them include forced labour, political exclusion, and lack of access to education, health care, housing, and social services. At the local level, neighbouring communities frequently exploit and exclude them by subjecting them to degrading treatment. Batwa women face heightened risks of sexual and gender-based violence.

In response, the Batwa mobilized through the United Organisations for Batwa Development in Uganda (UOBDU), a membership-based group representing communities in Kisoro, Kabale, and Kanungu districts. The UOBDU has played a crucial role in advocating for compensation and remedies for forced expulsion, engaging with local councils, government agencies, and Uganda’s Parliament. Despite these efforts, their demands have been largely ignored. Worse, increased government restrictions on forest access have further deprived them of vital sources of livelihood. With no progress through political channels, the Batwa turned to legal action by filing a landmark constitutional petition seeking redress for their dispossession, recognition of their cultural rights, and acknowledgment as indigenous peoples (Paterson 2022).

4. Commentary

The Batwa’s constitutional claims were unique, as there had been no previous legal challenge to the lack of constitutional protection of indigenous peoples’ cultural rights. Furthermore, the case was quite novel, as it sought a proper positive interpretation of the 1995 Constitution for the protection of marginalized hunter-gathering communities. In that sense, the Batwa’s legal challenge was an attempt to open a new space in the Ugandan constitutional fabric by introducing the notion of specific indigenous peoples’ rights to land and cultural integrity.

In the Batwa case, the Constitutional Court was tasked with addressing several critical issues. First, it needed to determine whether it possessed the jurisdiction to adjudicate the matter. Second, if jurisdiction was established, the court had to ascertain whether the case necessitated the interpretation of constitutional provisions. This included evaluating whether the Batwa's customary land rights were encompassed under Article 26(2) of the Constitution, which safeguards the right to own property, including land. Additionally, the Court had to examine whether the Batwa's eviction contravened Article 29(1)(c), which pertains to the freedom of religion, given the spiritual significance of land for the Batwa. Furthermore, the Court had to consider whether Uganda was obligated to recognize the Batwa as indigenous peoples under international law, as referenced in Articles 20, 36, and 45 of the Constitution.

The Constitutional Court of Uganda was first required to address a preliminary objection raised by the respondents, who argued that the court lacked jurisdiction to hear the Batwa petition. The dispute centered on whether the matter involved constitutional interpretation, a prerequisite for the Constitutional Court’s jurisdiction under Article 137, or merely the enforcement of fundamental rights, which falls under the purview and jurisdiction of the High Court and the Human Rights Enforcement Act that gives effect to Article 50 of the Constitution. The Batwa alleged violations of their constitutional rights due to displacement from their ancestral lands without consent or adequate redress, and any adequate, prior, and prompt compensation, as mandated by Article 26 of the Constitution.

The Court, relying on Charles Kabagambe v Uganda Electricity Board, held that its jurisdiction under Article 137 requires both a constitutional violation and a need for interpretation. It dismissed the Batwa’s claims, reasoning that the claims of human rights violations were primarily enforcement matters and not interpretation. The Court did not engage deeply with the Batwa’s proposed interpretive questions despite their relevance. Second, the court, on the question of reading International Law into the Constitution, distinguished between using international law to clarify constitutional text, which is permissible, and adding rights not explicitly mentioned, which is impermissible. It rejected the Batwa’s argument that indigenous peoples could be read into the Constitution, fearing a judicial overreach into the legislative role.

The court exercised juridical restraint by creating artificial distinctions. The line between interpretation and enforcement is nebulous, and at times, interpretation through declarations can serve to enforce fundamental human rights under the Constitution. As such, the Court overlooked its duty to clarify the constitutional ambiguities.

The Constitutional Court's dismissal of all four components of the Batwa's petition for lack of jurisdiction contained a surprising element. Despite rejecting the grounds of the petition, the Court determined that the petition implicitly raised questions concerning affirmative action under Article 32(1) of Uganda's Constitution. This reasoning appeared inconsistent, given that the Batwa had directly referenced Article 32 in their submissions. Nevertheless, the Court proceeded to examine three fundamental interpretive questions: the precise meaning of affirmative action under Article 32(1); whether such provisions applied to the Batwa's circumstances; and what form of redress, if any, should be granted to the Batwa.

The Court's interpretation of affirmative action established an important precedent. Since the Constitution itself provides no definition of affirmative action, the court relied on dictionary meanings, concluding that affirmative action constitutes remedial action required to rectify past discrimination or historical injustice. The ruling outlined two threshold requirements under Article 32(1). The first was that the group must demonstrate that they had been relegated to an unimportant or powerless position due to factors such as gender, age, disability, or other reasons rooted in history, tradition, or custom, according to Article 32 of the Constitution. Second, the proposed measures must genuinely aim to correct existing inequalities against such marginalized groups. The Court emphasized a plain-meaning approach to constitutional interpretation, maintaining that the provision's wording was sufficiently clear and unambiguous.

This judicial interpretation creates significant strategic opportunities for future rights litigation in Uganda. The Court's willingness to consider affirmative action arguments mero motu suggests that marginalized groups may successfully frame human rights violations as instances of structural marginalization requiring constitutional clarification and interpretation of whether Article 32 applies to them. This approach could potentially expand the Constitutional Court's jurisdictional reach beyond pure enforcement claims. However, the ruling also establishes that affirmative action applications will depend heavily on case-specific facts, meaning future courts will have to become independent in their analyses of the facts of each case.

However, the Court demonstrated notable judicial restraint regarding land rights issues. While acknowledging the Batwa's historical occupation and cultural connection to the contested forest lands, the ruling carefully avoided making definitive determinations about customary land tenure or indigenous property rights, specifically whether the doctrine of native title applies to the Batwa people. The Court recognized that the Batwa's forced eviction without prior, prompt, and adequate compensation had relegated them to a disadvantaged position in society as second-class citizens, thus requiring affirmative action. In conclusion, the Constitutional Court deferred the case back to the High Court to structure appropriate affirmative action remedies for the Batwa people.

The case's procedural outcome revealed the limitations of Uganda's constitutional framework in addressing historical injustices. By referring the matter of appropriate remedies to the High Court, the Constitutional Court deferred difficult questions about concrete redress measures to the High Court. This created uncertainty about whether the Batwa might eventually regain access to their land or receive only symbolic compensation and acknowledgement of historical injustices. Furthermore, the decision laid down affirmative action as a potential pathway for marginalized groups while demonstrating the judiciary's hesitancy to order sweeping restitution measures.

It is important to note that the question of whether the Batwa are an indigenous people was not brought to the attention of the court; instead, the Court relied on the affidavit evidence to determine whether the Batwa were the original inhabitants of the forests. However, it is important to acknowledge the definition of indigenous people. To this end, international law provides multiple frameworks for identifying indigenous peoples, each emphasizing contextual flexibility. ILO Convention No. 169 (1989) delineates two key categories: tribal peoples with distinct social and cultural institutions and peoples descended from pre-colonial populations who retain ancestral ties to their land. The 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP) mirrors this, affirming self-identification and land-based identity as the core criteria. The African Commission, through its Working Group of Experts on Indigenous Populations/Communities, has established four criteria for identifying indigenous peoples. These are the occupation and use of a specific territory; the voluntary perpetuation of cultural distinctiveness; self-identification as a distinct collectivity, as well as recognition by other groups; and an experience of subjugation, marginalization, dispossession, exclusion, or discrimination. The Working Group further demarcated some of the shared characteristics of African indigenous groups:

“… first and foremost (but not exclusively) different groups of hunter-gatherers or former hunter-gatherers and certain groups of pastoralists … A key characteristic for most of them is that the survival of their particular way of life depends on access and rights to their traditional land and the natural resources thereon.”

It is important to note that the court’s decision tactfully avoided the question of native title regarding the Batwa people. The recognition of aboriginal title (or native title) in Africa represents a critical legal mechanism for addressing the historical land dispossession suffered by Indigenous communities under colonial rule. Unlike in traditional common law jurisdictions such as Canada and Australia, where the doctrine is well-developed, Africa’s engagement with aboriginal titles has been shaped by a combination of post-colonial constitutional frameworks, regional human rights instruments, and evolving customary land tenure systems. The African Charter on Human and Peoples’ Rights (ACHPR) has played a pivotal role in advancing indigenous land claims, particularly through its Article 14, which provides for the right to property, and Article 21, which provides for the right to natural resources.

Aboriginal title, also referred to as native title, can be defined as a legal doctrine recognizing the proprietary interests of Indigenous communities in land based on their customary laws and historical occupation, predominantly within common law jurisdictions such as Canada, the United States, Australia, and New Zealand (Kingsbury, 1990).

This doctrine acknowledges that Indigenous peoples, as the original inhabitants of colonized territories, possessed land rights prior to colonial settlement, which may persist unless explicitly extinguished by post-colonial governments. In certain jurisdictions, such as Canada, a distinction is drawn between Aboriginal rights, which encompass specific cultural practices integral to Indigenous traditions (e.g., hunting or fishing), and Aboriginal title, which denotes a broader proprietary right to the exclusive use and occupation of land, including subsurface resources and water not subject to the Crown prerogative (Delgamuukw v British Columbia [1997] 3 SCR 1010)). In contrast, in Australia, the native title serves as a collective term for various legal rights to land, reflecting jurisdictional differences in conceptualizing the Aboriginal title (Mabo v Queensland (No 2) [1992] HCA 23). The doctrine primarily applies to former British colonies where colonial settlement was significant and Indigenous identities remain intact, facilitating claims to ancestral lands or assertions of cultural rights and self-determination.

It is important to note that to establish a claim for Aboriginal title, Indigenous communities must satisfy specific legal requirements, which vary by jurisdiction but generally include historical occupation, continuity, identity, and customary laws. First, claimants must demonstrate historical occupation of the land prior to colonization, evidenced by use according to Indigenous customs, exclusion of others, and a period of occupation, with courts recognizing non-Western land use patterns. Second, the claimants must show continuity, which requires a substantial connection to the land from pre-colonial times to the present, with flexibility to account for colonial disruptions. Third, the claimant must establish their identity as a distinct community existing at the time of colonization and continuing to the present, with courts adopting lenient standards for group cohesion. Finally, the claim should be supported by evidence of customary laws governing land use, reinforcing the community’s connection to the land and its continuity.

The decision of the African Commission on Human and Peoples’ Rights in Centre for Minority Rights Development and Another v. Kenya  remains the most authoritative African regional precedent, establishing that indigenous communities retain protected property rights over ancestral lands, irrespective of formal state recognition. The concept of aboriginal title in Africa diverges from its common law origins by emphasizing customary land tenure systems rather than strict Eurocentric property doctrines. The Alexkor Ltd and Another v Richtersveld Community and Others decision in South Africa did not provide an influential model by recognizing that indigenous land rights could exist independently of colonial or statutory law. The court held that the Richtersveld people’s customary law interests in land constituted a form of indigenous ownership, even where formal title deeds were absent. This reasoning was later echoed in the Endorois case, where the African Commission ruled that Kenya’s displacement of the Endorois people from their ancestral lands around Lake Bogoria without consent or adequate compensation violated their right to property under Article 14 ACHPR. The Commission explicitly rejected the argument that Indigenous land rights required formal state recognition, instead affirming that historical occupation and cultural attachment were sufficient to establish legal entitlement.

The Endorois decision represents the most comprehensive application of Aboriginal title principles in East Africa. The African Commission found that the Kenyan government’s creation of a wildlife reserve on Endorois land without consultation or compensation constituted an unlawful deprivation of property. The Commission drew parallels with international standards, particularly Article 26 of the United Nations Declaration of Rights of Indigenous Peoples, which guarantees Indigenous peoples’ rights to own, use, and control ancestral lands. Crucially, the ruling emphasized that Indigenous land rights are not extinguished by conservation or development projects unless there is free, prior, and informed consent. This aligns with Article 6 of the ILO Convention No. 169 (1989), which obligates states to consult Indigenous communities before approving projects affecting their territories.

5. Conclusion

The decision of the Constitutional Court in United Organisation for Batwa Development in Uganda and 11 Others v Attorney General and 2 Others exposes Uganda's failure to protect indigenous land rights despite constitutional human rights guarantees. While the Constitutional Court recognized affirmative action under Article 32(1), it avoided substantive engagement with ancestral land claims. This contrasts with progressive regional precedents, such as the Endorois case, which affirmed Indigenous rights based on historical occupation and cultural ties. Uganda must align its laws with international standards, codify the Aboriginal title, and prioritize land restitution for Indigenous people over symbolic remedies. The Batwa's unresolved plight reveals the necessity of transformative legal reforms that reconcile constitutionally guaranteed rights with indigenous lived realities, thus ensuring justice for historically marginalized communities in Uganda.

*The writer is a Director of Research and Publications at Lex Amica