Expropriation Procedure, Law and Practice

Abstract This paper reviews the legal rights of peasants and pastoralists in Ethiopia in general and the Oromia Regional State in particular; and examines the adequacy of compensation payable for expropriation of rural landholdings in Oromia. The study found that although the FDRE Constitution of 1995 and Oromia Revised Constitution of 2001 provide for secured and lifetime use rights over rural landholdings and also provide for payment of “commensurate” amount of compensation. There are great discontents in the research site of the study (in Eastern Industrial Zone) due to payment of low amount of compensation because of unscientific method of valuation.

The paper also described situations in which public purposes are not implemented in accordance with the time and manner agreed in peri-urban areas of the region. The rural citizens who have been affected by the expropriation are facing difficulties to restore their life because of low amount of compensation and due to lack of commitments from the part of expropriating authorities to help them rehabilitated and public purpose has become a looming crisis to the life the farmers.

The calculation formula provided by the law is unscientific and unjustifiable both in theory and in practice and it cannot be a basis for “commensurate” amount of compensation. The law is also not sufficiently clear regarding time of payment and this has resulted in delay of payment of compensation in some cases.

The paper recommends the policy makers and implementing agencies of the regional state to rethink about the citizens whose life have been getting worst because of taking of their landholding. Particularly, it advises the concerned government organs to monitor the implementation of public purposes for which land was expropriated and to take appropriate measures on illegal sale of lands in urban and peri urban areas of Oromia.

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CHAPTER ONE INTRODUCTION 1.1. Background of the Study In rural residents of most developing countries, including Ethiopia, land is the main economic, political, social and cultural asset. It is the crucial source of generating livelihood income for society. It remains an asset that farmers have to accumulate wealth and transfer the same to future generation.

Moreover, the issue of land has not simply remained to be an economic affair but also it is very much intertwined with the people‟s culture and identity. In a nutshell, land related issues in developing countries are the most sensitive part of overall development that government needs to consider. In present Ethiopia, land is the common property of „the state and the people‟, and, hence, is not subject to sale, exchange or mortgage.1 Rural farmers and pastoralists are guaranteed a plot of land free of charge while urban residents can secure the same through ground lease arrangements.

2 The state grants only a use right over land to peasants and pastoralists in rural areas in Ethiopia in general and Oromia regional state in particular, which is provided in both federal and regional rural land use and administration proclamations.3 To secure such rights, the Constitution prohibits eviction of holders of the land without just cause and payment of compensation.4 Due to rapid growing urbanization and modernization of infrastructures as well as expansion of foreign and national investment, a large tracts of rural land in the country in general and the regional state in particular, are being taken by way of expropriation.

Expropriation is a very intrusive power held by government. While potentially devastating to individuals, the power is also necessary in a functioning society. In a democratic system, the political process provides some degree of checks and balances against governments acting unreasonably, but the legal system also enforces certain rules and procedures for expropriation.

1 2

FDRE Constitution, 1995, Art.40(3) Ibid,Arts.40(4,5,6) 3 See also FDRE Constitution, Proclamation 455/2005, Proclamation 456/2005, Proclamation130/2007, 4 Supra Note 1 ,Art.40(4)

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The procedures and authority for direct expropriation are usually based on statutes. Each jurisdiction has laws that state how the government can expropriate property and when it has to compensate the owner. In most cases involving government expropriations, the applicable statute governs the rights of the land owner/ possessor to compensation.

Depending on the nature of the taking and the applicable legislation, the owner/possessor of the property can receive compensation in the form of market value of the property, injurious affection, disturbance, and special value. Interest and consultancy costs are also commonly awarded in the owner‟s compensation package. Parliamentary enactments and court decisions over time have refined and reduced the scope and application of the state power of expropriation. In respect of land, now, expropriation is exercised only in cases where designated land is used for a public purpose and accompanied by payment of fair compensation.

This study is conducted to describe the concept of expropriation and the valuation methods followed in Oromia regional state presently, and to assess the fairness of amount of compensation paid in the event of rural land expropriation. It also examines the issue of public purpose requirement for the cause of expropriation.

1.2. Statement of the Problem In Ethiopia in general and Oromia regional state in particular, presently urbanization and investments are expanding. This reality necessitates the expropriation of rural land for such more useful public purposes by the government. In relation to compensation to be paid for rural land expropriation, it is argued that there is `no uniform system of valuation of amount and mode of just compensation. This is partly related to public ownership of land in the country. Although the constitution has guaranteed the right against eviction of farmers from their use right without just cause and payment of commensurate compensation, other laws are criticized for lacking clear enforcement procedures regarding the payment of fair compensation to the farmers.

Still it is not clear whether legislations adopted by the government both at the federal and regional levels adequately address the issue of just compensation for rural land expropriation, and whether the practice is compatible with the law regarding the amount of compensation to be paid and mode of valuation in Oromia regional state. Another debatable issue is whether the cause for expropriation is genuine for in most cases lands expropriated under the guise of public purpose 2

are fenced by those investors without making any use of it for the purpose it was expropriated in accordance with the manner and the time of contract of lease. Therefore, it is imperative to critically examine the laws, the policies as well as the practices in Oromia with specific reference to issues of expropriation, i.e., the notion of public purpose and compensation paid during the termination of use rights over the rural and peri-urban landholdings.

1.3. Research Questions This research has sought to answer the following questions: i. What is the extent of the farmers‟ rights and tenure security over their landholdings in Ethiopia in general and Oromia in particular? ii. Does the expropriation of use right over rural and peri urban landholdings in Oromia constitute compensable interest? iii. Can the rural land users‟ claim just amount of Compensation for the expropriation of their landholdings? iv. Do laws and policies adopted in relation to expropriation of rural landholdings in Ethiopia in general and Oromia effectively address issues of expropriation and compensation? v. What constitutes “public purpose” under Ethiopian laws?

Is the expropriation power in fact exercised to achieve the public interests? vi. vii. Is the amount and mode of compensation being applied in Oromia adequate? Is there clearly defined right of appeal against the administrative decisions on the amount and mode of compensation in the regional state? viii. ix. Is there a requirement for a specific time for the payment of compensation? How far is the practice compatible with the law in the regional state?

1.4. Literature Review Those researchers who conducted research on land expropriation and compensation in Ethiopia in general and Oromia regional state in particular have indicated that there are many shortcomings regarding the legal frame work and practice.

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Daniel W/ Gabriel examined that the authority of the state to expropriate land held by farmers and other citizens is limited by public purpose and payment of “commensurate” compensation5. He argued that if the state takes a piece of land from a person without a public purpose that amounts to illegitimate expropriation or confiscation of land.6 He also added that the same is true if the state takes some body‟s plot of land without the payment of compensation. Furthermore, he stated that payment of compensation in the case of expropriation is founded, among others, upon the justification that the public should not enrich itself at the expense of its member and payment of compensation introduces disciplined taking.

He highlights the two common views about payment of compensation, i.e., indemnity principle and taker‟s gain principle. He also tried to determine the contents of the market value approach to compensation. Besides, he reviewed the three approaches to valuation of property in the course of expropriation: comparable sales approach, income capitalization approach and replacement cost approach.7

Based on the federal laws and practice in Amhara regional State, he reached conclusion that “there is no problem with the wordings of the FDRE constitution and the fact that land is owned by state by itself does not imply the nonpayment of compensation.”8 According to his findings, the implementing proclamations and regulations fail to implement the principle of “commensurate” Compensation enshrined in the constitution. He also found that the valuation method followed in Urban and a peri-urban area is the replacement cost approach due to underdeveloped real property market in Ethiopia.9 Accordingly, as per his findings, the market price of houses and buildings is greatly based on the price of construction materials, instead of the value and location of the land, where the building is situated, which might be partly attributable to the state ownership of land in the country. He further criticized that expropriation procedure has been adversely affecting the landholder‟s rights which is resulted because of ineffectiveness of the relevant laws to uphold the constitutional guarantee for commensurate compensations and non observance of the same in practice. Finally, he concluded that the value 5

Daniel W/Gebriel, Land Valuation for Expropriation in Ethiopia: Valuation Methods and Adequacy of Compensation, 7th FIG Regional Conference, Spatial Data Serving People: Land Governance and the Environment – Building the Capacity Hanoi, Vietnam, (October 2009) 6 Ibid 7 Ibid 8 Daniel W/Gabriel, Compensation during Expropriation, in Muradu Abdo‟s (Eds.) Land Law and Policy in Ethiopia since 1991: Continuities and Changes, Ethiopian Business Law Series, Vol. III (2010), 191-234 9 Ibid

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of the rural land expropriated that is calculated on the basis of the previous five year‟s average annual income of the farmer does not adequately compensate the farmer‟s loss.10

Gudeta Seifu also argued that law is an instrument to promote tenure security in Oromia Regional State11. He asserted that three factors affect tenure security: duration of the rights of holders, the assurance of rights for all land holders and robustness of rights of holders. He surveyed the Oromia regional state‟s rural land laws in light of duration of rights in land given to holders, guaranteed use and transfer, and guaranteed disposal right of property on the land.12

Likewise, Abebe Legese stated that law of compensation applicable in the case of expropriation of rural lands in Oromia is vague; particularly, in relation to the amount and mode of compensation and the practice is also incompatible with the laws.13 He argued that even the practice in the regional state is not similar14.

Bereket Bushura examined the law of compensation applicable up on expropriation of rural land holding rights in the regional state of SNNP.15 He found that provisions of law that provide for compensation for various interests such as permanent improvements to land, the right to get substitutable land, and things attached to the land as well as payment of compensation are vague and have to be replaced by a clear provisions. Some important property rights such as the right to claim compensation for immovable in the regional state are not clearly provided. 16 He also found that there are gaps and disparities between the laws of federal and regional rural land administration and use proclamation of the region of SNNP especially in relation to the right to

10

11

Ibid Gudeta Seifu, Rural Land Tenure Security in the Oromia National Regional State, In Muradu Abdo Eds., Land

Law and Policy in Ethiopia since 1991: Continuities and Changes, Ethiopian Business Law Series, Vol.III (2010) 12 13

Ibid Abebe Legese, The Law of Expropriation and Compensation in Oromia Regional State,[Unpublished, AAU, Law Library], (2004) 14 Ibid 15 Bereket Bashura, „The Law of Compensation Applicable upon Expropriation of Rural Land Holding Right in the Regional State of Southern Nations, Nationalities and Peoples‟, [Unpublished, Addis Ababa University, Law Faculty, 2006) 16

Ibid

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substitutable land compensation. Above all, he argued, there is a chronic contradiction between the law and practice in the regional state.17

Despite the contributions these studies made to the understanding of the concept of compensation for expropriation of rural lands in Ethiopia in general and regional states in particular, certain questions still remain unanswered. For instance, Daniel W/Gabriel conducted his research on the basis of the federal laws and Amhara Regional State only. Hence, his findings cannot represent the reality of entire country in general and the situation of Oromia regional state in particular. Gudeta Seifu didn‟t analyze the laws of the Oromia regional state in light of adequacy and fairness of compensation since his focus was on the tenure security. Thus, the issue as to the fairness and adequacy of amount and mode of compensation in Oromia regional state demands further research that will describe the practice and analyze the provisions of laws related to the issue. Moreover, the studies conducted by Abebe and Bereket got limitations due to passage of time and there have been improvements in relation to adoption of laws on the issue of rural land expropriation and fairness of compensation. Because they conducted these studies in 2004 and 2006 respectively; and their findings of the time cannot reflect the current situation in Ethiopia in general and Oromia regional state in particular. Besides, the findings of the above researches failed to address whether there are really public purposes and just causes behind expropriation of the land.

Therefore, this research is believed to be unique in that it is sought to fill the gaps in the aforementioned and other previous researches due to their inability to reflect the current reality and their weak focus to the issue of examining the laws applicable to compensation for rural land expropriation in the Oromia regional state by backing the theoretical frameworks with application of laws in their actual spirit. More over, it will be significant in bridging the gap existed in relation to the lack of understanding on the effectiveness of laws adopted in relation to payment of just compensation for expropriation of rural lands and their practical implementation in Oromia regional state.

17

Ibid

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1.5. Objectives of the study 1.5.1. General Objectives The basic objective of this research is to examine the laws applicable to compensation of rural land expropriation in Oromia regional state in one hand, and the adequacy and fairness of the amount of compensation both theoretically and practically, on the other. In a nutshell, it is sought to determine whether the right to compensation for expropriated rural lands in the region is clearly and adequately provided by the law, and to examine whether there is a discrepancy between the law and the practice and the existence of similar practices of valuation and amount of compensation in the region. It is also aimed at examining the existence of public interest for the cause of the expropriation of the land. 1.5.2 Specific Objectives This research is aimed to:  Determine the extent of tenure security on landholdings in Oromia and the legitimacy of claiming of adequate amount of compensation;  Analyze the pertinent provisions of laws adopted in relation to compensation for expropriation of rural lands at the federal level and Oromia regional state;  Assess the amount, mode and adequacy of compensation being applicable in the region;  Assess whether there are clear guidelines of law on how to pay uniform amount of compensation;  See whether there is specified time of payment of compensation;  Critically assess the availability of the right of appeal against the administrative decision on the amount of compensation on the use right of rural lands in the regional state;  Critically examine whether the practice regarding public purpose is going in line with the law; and  Suggest possible recommendations for the problems which could be revealed as research findings.

1.6. Significance of the Study It is believed that this study will contribute to the effort of strengthening the legal framework and practical performance of government organs concerned with rural land administration and payment of compensation for rural land expropriation in the Oromia regional state. Moreover, it will also be a base for potential researchers to conduct further studies on the issue. 7

1.7. Methodology of the Study In conducting this research, both qualitative primary and secondary data have been employed to be collected in the following methods. 7.1 Methods 7.1.1 Primary Data: 7.1.1.1 Interview: The method employed to obtain primary data is face to face interview with different people including farmers whose landholdings have been expropriated for the purposes of investment and urbanization mainly around Dukem-Bushoftu Industrial Zone (The Eastern Industry Zone). The interviewees have been selected purposely for they are those whose situations are devastating due to expropriation of their landholdings. The concerned officials from the Bureau of Investment, Bureau of Rural and Agricultural Development Legal Department, Bureau of Land Administration as well as judges and lawyers were also used as input for the study.

The Dukem town and the Research Site is one of the industrial zones selected by the federal government. A number of hectares of the rural lands have been expropriated due to the expansion of urbanization, investment activities, construction of public services such as Addis Ababa-Adama high way road construction, Eastern Industry Zone and other activities. It has been observed that rural land is extensively expropriated around the Dukem Town (Peri-urban areas) mainly for establishment of Eastern Industry Zone. The Industry Zone, which is under construction by the Chinese Company, has caused the expropriation of 500 hectares of land from the possession of farmers. It is believed to plant 80 different kinds of industries including manufacturing, garment, agro-processing and different factories for production of various goods. This area has also been affected by Addis Ababa-Adama road construction by the Chinese company called EIZ construction (which has affected 33.1 hectares of land).18 Moreover, the Ethiopian Railway Authority has also expropriating rural land for the construction of EthioDjibouti Railway.

18

The 33.1 hectares of land has affected 25 farmers land and 2, 257,386.30 Birr has been paid in the form of compensation. Interview With Ato Chala Bekele Dukem Municipality Land And Administration Office, August 8, 2011, Zaraay Surafel, Finfinne Surrounding Special Zone, Akaki Woreda Agricultural Office Agronomy Department Head And Chair Person Of Land Valuation And Compensation Committee Of The Woreda, July 12, 2011

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Due to the importance of Dukem Town for construction of dwelling houses, private investments and public service utilities, the rural land has also been urbanized and added to the master plan of the town. For these and other activities which could constitute “public interest”, the public authorities believe that anything that might be needed by investors (domestic and foreign), cooperatives, government agencies NGOs, religious institutions and so forth will justify the expropriation of rural land upon payment in advance of compensation. 19 According to the data organized by the Akakai woreda in 2009, 440 hectares of rural land has been taken for investment activities on the public purpose justification. Thus, the concern of this study is to review the law applicable on the expropriation and adequacy of compensation in Oromia Regional State Finfinne Surrounding Special Zone Akaki Woreda (Dukem and its vicinity).

7.1.1.2 Documents: In addition, primary documentary sources including the FDRE constitution, federal land administration proclamation No. 89/1997, Federal Land Administration proclamation No. 455/2005, Federal Rural Land Administration and Use Proclamation No.456/2005,Oromia Rural land use and Administration proclamation No. 56/2002, proc No.70/2003, proclamation No.103/2005, a proclamation to amend proc. No.56/2002; proc No.130/2007 have been analyzed in relation to compensation for rural land expropriation in Oromia regional state. 7.1.2 Secondary data: The study also has used the relevant literature materials as secondary sources.

1.8. Limitation of the Study Undertaking the study was not an easy task; particularly, obtaining information for the purpose of the study has been a demanding and burdensome task owing to the tedious bureaucracy in the government organizations concerned with the land expropriation. Worst of all, it was difficult to get relevant data to be used as input to the study due to the absence of organized information on the issue in the research site. For instance, there is no organized data that show the total size of land expropriated and the number of family affected by expropriation proceedings in Akaki Woreda.

19

Ibid

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1.9. Structure of the Study The study is organized into four chapters as follows. The first chapter introduces the reader with the study. It highlights the reasons that necessitated the research and the objectives that are intended to be achieved. It presents the statement of the problem, research questions, general as well as specific objectives of the research, literature review, significance and the research methodology briefly.

The second chapter deals with issues related to rural land tenure security and use rights those farmers and pastoralists have over their landholding. A discussion on land tenure systems highlights the laws, policies and practices from pre-1974 period up to the current government regime. The current land policy issues in Ethiopia in general and Oromia in particular have been given concerns under this part. The effects of rural land certification and registration on tenure security in the Oromia as well as limitations of the existing pertinent law have been covered.

The third chapter deals with the conceptual framework of expropriation and compensation in general and in light of relevant laws of Ethiopia. An attempt has also been made to raise and discuss the public purpose requirement as a limitation on the power of state to take property rights of private individuals. Furthermore, whether the expropriation of the farmers‟ landholdings has achieved its very purpose is the other issue to be discussed in detail. It ends by discussing the concept of just compensation in the context of Ethiopian law.

In the last chapter, but not certainly the least, the laws and the practices regarding the adequacy of compensation for taking of landholding rights over rural lands in Oromia have been critically assessed. The valuation method and systems; the compensation schemes and compensable interests in Ethiopia in general and Oromia in particular have been critically analyzed. The provisions of laws, including the FDRE constitution, the 2001 Revised Oromia Constitution, the implementing proclamations and regulations which are adopted in relation to the issue at hand both at federal and the Oromia as well as practices around the Eastern Industry Zone have been examined. Finally, the study closes with conclusions and possible recommendations.

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CHAPTER TWO 2. Land Tenure Security and Rights of Land Users in Oromia Regional State In agrarian country like Ethiopia, land tenure system is not only an economic affair but also it is highly interconnected with the people‟s culture and identity. This partly explains why land related issues usually generate deep emotional reactions. For rural residents of most developing countries, land is the primary means of production used to generate a livelihood for a family. It is also the main asset that farmers have to accumulate wealth.20

Land tenure, as an institution, not only governs access to and control over land and land based resources and the flow of the benefits thereof. It is also a source of expectations, a basis for actors to simulate and predict each other‟s behavior in the sphere of activity to which the regime applies and thus the fundamental role it plays in a society should not be overstated. 21 The kind of tenure system and security of landholding in a country is one of the most important issues to be examined, particularly, in developing countries. This is because; it is a tenure system of a country that defines and regulates basic elements in any right to land like access to rural land, tenure security and rights and obligations of the land holders.

In Ethiopia, tenure security is one of the controversial issues particularly in relation to the extent of rights of farmers over their landholding in general and the adequacy and fairness of the amount of compensation paid during rural land expropriation that may emanate partly from state ownership of land in the country.22 In this chapter, tenure security of rural landholding in the current Ethiopian situation and rights of landholders will be reviewed on the basis of Federal and Oromia Regional State rural land administration and land use laws.

20

P. Groppo, Land Reform, Land Settlement and Cooperatives, (Editoria Group, FAO Information Division, 2003), p.103 21 Bereket Bashura, „The Law of Compensation Applicable upon Expropriation of Rural Land Holding Right in the Regional State of Southern Nations, Nationalities and Peoples‟, [Unpublished, Addis Ababa University, Law Faculty, 2006), p.27 22 Klaus Deininger, et al, “Land rental in Ethiopia: Marshallian Inefficiency or Factor Market Imperfections and Tenure Insecurity as Binding Constraints?” Selected Paper Prepared For Presentation At The American Agricultural Economics Association Annual Meeting, Portland, (July 29-August 1, 2007), p.5

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2.1 Conceptual Framework for Rural Land Tenure and Tenure Security So as to understand the meaning of key terms in this chapter, it is vital to define what constitutes land tenure and come up with workable definition for the sake of convenience. While land tenure is broadly understood as property relations in land and their administration 23, FAO has defined the term “land tenure” as: “the relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land… [It] is an institution, i.e., rules invented by societies to regulate behavior regarding on how land is accessed and used.”24 There are three things to be noted regarding land tenure in this definition. Firstly, it refers to people‟s relationship to land. Secondly, land tenure is an institution through which individuals‟ access to land and use right is determined. Thirdly, it denotes rules of the game through which the content of rights and duties of individuals with respect to land are defined. 25 The relationships are usually defined by customary rules or formal laws. In both cases, tenure rules define land property rights regarding access, control and transfer of rights with corresponding duties and restraints.26 Similarly, Middleton has defined land tenure as “a system of relations between people and groups expressed in terms of their mutual rights and obligations with regard to land.”27 This definition signifies that rules of land tenure define how property rights to land are to be allocated within society. In a nutshell, according to FAO‟s definition, land tenure systems determine who can use what land for how long, and under what conditions. Ogolla and Mugabe, on the other hand, maintained that land tenure defines “the methods by which individuals or groups acquire, hold, transfer or transmit property rights in land.”28 There are varieties of property rights in land such as the right to use, transfer and improve, to appropriate returns and the like.29 This bundle of rights may be transferred or transmitted either individually or together at the discretion of the 23

Gudeta Seifu, “Rural Land Tenure Security in the Oromia National Regional State”, In Muradu Abdo Eds., Land Law and Policy in Ethiopia Since 1991: Continuities and Changes, Ethiopian Business Law Series , Vol.III (2010), p.112 24 FAO Corporate Document Repository, Land Tenure and Rural Development, Rome (2002), p.7 25 Gudeta Seifu, supra note 4 26 Abebe Mulatu, compatibility between rural land tenure and administration policies and Implementing laws in Ethiopia, In Muradu Abdo‟s Eds., Land Law and Policy in Ethiopia Since 1991: Continuities and Changes, Ethiopian Business Law Series , Vol.III (2010), p.2 27 Yegremew Adal, Some Queries about the Debate on Land Tenure in Ethiopia, Institute of Development Research, Addis Ababa University, p.52 as cited in Ibid 28 Gudeta Seifu, supra note 4 29 Ibid

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holder with or without limitations depending on the system of tenure. Accordingly, the rules of tenure determine the nature and content of property rights and the conditions under which these rights are to be held and enjoyed.30 In this manner, different authorities define the term “tenure security” from different perspectives. For the sake of convenience and consistency, it seems important to draw a working definition that should be used in this paper. Therefore, tenure security refers to “the degree of the reasonable confidence not to be arbitrarily deprived of the land rights enjoyed or of the economic benefits deriving from them and including both the objective elements (clarity, duration, and enforceability of the rights) and subjective elements (landholder‟s perception of the security of their rights).”31

As far as the important features of tenure security, for instance, that denote the existence of better land tenure system in a country are concerned, it has been argued that:

tenure security implies the ability of a farmer to cultivate a piece of land on a continuous basis free from imposition, dispute or appropriation from outside sources, as well as the ability to claim returns from input or land improvements while the farmer operates the land and when it is transferred to another holder.32

Therefore, as can be discerned from the foregoing proposition, tenure security refers to the situation in which farmers practically enjoy full rights of use and appropriation of the returns from the land through being protected from different impositions and interferences from others. It is state of affairs in which farmers are guaranteed to exercise their holding rights freely without any hindrance from any quarter. Thus, tenure security requires guaranteeing use rights, which include permanent, exclusive enjoyment as well as free transferability.

30 31

Ibid Ibid 32 Ibid

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In addition to actual security of the rights of the holder, it has been asserted that perception of the farmer that his holding rights are secure is crucial. In this regard, it has been quoted that:

when an individual perceives that he or she has rights to a piece of land on a continuous basis, free from imposition or interference from outside forces, as well as the ability to reap the benefits of labor and capital invested in that land either in use or upon transfer to another holder.33

Hence, this assertion purports that unless the actual security is coupled with the reasonable perception that the rights in land are secure and free from external interferences, even in the

existence of actual security, it is not an easy task to conclude that tenure security exists objectively.34 At this juncture, one may ask what causes tenure insecurity, if any. Tenure insecurity maybe caused as a result of four factors: inadequate number of absolute rights, inadequate duration in one or more rights, lack of assurance in existing rights and costs of enforcing rights.35 Hence, to ensure sustainable growth, it can be argued that these issues should be central to the land tenure policies and land laws by providing proper tenure arrangement.

2.2 Overview of Land Tenure Policy in Ethiopia Land is the basic socio-economic asset in Ethiopia in general and Oromia Regional State in particular. It has been emphasized that the way land rights are defined influences how land resources are used and economic growth.36 Historically, in Ethiopia, the north-south regional distinction was reflected in land tenure differences.37 The pattern of land tenure policy and property rights farmers have are dependent mainly on policy exercised by three different political 33 34

Gudeta, supra note 4, p.114 Ibid 35 Ibid 36 Melkamu Belachew and Shewakena Aytenfisu, Facing the challenges in building Sustainable Land Administration Capacity in Ethiopia, (FIG Congress, Facing the Challenges – Building the Capacity Sydney, Australia, 11-16 April 2010), p.3 37 Shimelles Tenaw et al, “Effects of land tenure and property rights on agricultural productivity in Ethiopia, Namibia and Bangladesh”, University of Helsinki Department of Economics and Management Discussion Papers No.33, Helsinki, (2009), p.4

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regimes since the beginning of the 20th century namely: the imperial, the Derg and the current regimes.38

2.2.1 Pre-1974 Period Until the l974 revolution, Ethiopia had a complex land tenure system. 39 The nature of the land tenure arrangement comprises private, state, church land, kinship and other forms. 40 During the imperial regime the land tenure types refer mainly to the imperial administrative classification which is commonly distinguished between communal (rist), grant land (gult), freehold, or sometimes referred to as private (gebbar tenures), Church (Samon), and state (maderia, mengist) tenure regimes.41 Emperor Haile selassie I, like Emperor Menelik the II (his predecessor), made extensive land grants to members of the royal family, the loyal members of the nobility, members of the armed forces and the police, top government officials and civil servants and notable businessmen.42 This type of land tenure system adopted by the Ethiopian Empire is described as one of the most complex compilations of different land use systems in Africa. 43 It was a time when more than 70% of the fertile land was owned only by 1% of the property owner of the entire population in Ethiopia.44 The then immediate three most important consequences of land privatization were the eviction of a large number of peasants, the spread of tenancy, emergence of absentee landlordism and the displacement of pastoralists.45 The major problems of the Pre-1974 land tenure in Ethiopia include exploitative tenancy, land concentration and utilization, tenure insecurity and diminution and fragmentation of holdings.46 Tenure insecurity that was considered as one of the main limitations of pre-revolution reform land tenure system is manifested in various forms ranging from endless litigation over land

38 39

Id, p.13 R. S. Bhalla, “Property Rights, Public Interest and Environment” in Calestous Juma and J.B. Ojwang (eds.), In Land We Trust, Initiative Publishers, Nairobi (1996), p.61 40 Melkamu and Shewakena, supra note 17 41 Shimelles Tenaw et al, supra note 18 42 Ibid 43 Ibid 44 Ibid 45 Melkamu and Shewakena, supra note 17 46 John W.Bruce et al, „After the Derg an Assessment of Rural Land Tenure Issues in Ethiopia (1994), (Unpblished, A Collaborative Project of Land Tenure Centre, University of Wiscosin Medison and The Institute of Development Research, Addis Ababa University), p.107

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rights to complete eviction from holdings.47 Besides, there were problems of institutional inadequacy and the land owned by the absentee land lords was underutilized.48 These were the most important obstacles to the country‟s development in general. The privatization of land in the south which was continued at renewed great speed and force in the period of three-and-half decades made important cause of political grievances and leading to the 1974 revolution that resulted in the overthrow of the regime once and for all.49

2.2.2 The Derg Period

The Derg, in its land reform in 1975, appropriated all land and abolished the diverse tenure arrangements in the imperial regime.50 The land reform destroyed the feudal order; changed landowning patterns, particularly in the south, in favor of peasants and small landowners; and provided the opportunity for peasants to participate in local matters by permitting them to form associations.51 Landlords lost their land rights and land was distributed to individual households, with household system size being the main criterion for land allocation.52 Under Proclamation No.31/1975, all rural lands were nationalized and private ownership of rural lands was totally abolished to realize the following policy objectives:53  to quit the feudal land-lord tenant agrarian relations and to do away with the exploitation of the masses by the few;  to increase agricultural production by enabling the tiller the owner of the fruits of his labor and increase rural income; and

47 48

Ibid Dassalegn Rahmato, Access to Resources and Livelihood Insecurity, Forum for Social Studies, (Addis Ababa, Ethiopia. (2003) , p.8 49 Ibid 50 D. Rahmato, (1994) Land Tenure and Land policy in Ethiopia after the Derg, Proceedings of the Second Workshop of the Land Project, Working paper on Ethiopian Development No. 8. The Centre for Environment and Development, University of Trondheim, Norway and Institute of Development Research, Addis Ababa University, Ethiopia, Alemu, T. (1999) “Land Tenure and Soil Conservation: Evidence from Ethiopia.” Ekonomiska Studier, Göteborgs Universitet (Kompendiet Göteborg), Sweden, Melkamu Belachew and Shewakena Aytenfisu, Facing the challenges in building Sustainable Land Administration Capacity in Ethiopia, (FIG Congress 2010, Facing the Challenges – Building the Capacity Sydney, Australia, 2010), p.4 51 Melkamu and Shewakena ,supra note 17, p.4 52 Ibid 53 Proclamation to Provide for the Public Ownership of Rural Lands, 1975, the Preamble, Proc No.31/1975

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 to release for industry the human labor suppressed under the feudal system.

The "Public Ownership of Rural Land Proclamation" nationalized all rural land and set out to redistribute it to its tillers and to organize farmers in cooperatives, thereby abolishing exploitative landlord-tenant relations so pertinent under the imperial regime.54 The provisions of the Proclamation (No. 31/ 1975) include: public ownership of all rural lands; distribution of private land to the tiller; prohibitions on transfer-of-use rights by sale, exchange, succession, mortgage or lease, except upon death and only then to a wife, husband or children of the deceased; and in the case of communal lands, possession rights over the land for those working on the land at the time of the reform. The power of administering land was vested in the Ministry of Land Reform and Administration (MLRA) through Peasant Associations at the grassroots level.55 The law also provided the maximum land a family can possess.56

Although no able adult person was allowed to use hired labour to cultivate their holdings, problems associated with declining agricultural productivity and poor farming techniques were prevalent.57 Government attempts to implement land reform also created problems related to land fragmentation, insecurity of tenure, and shortages of farm inputs and tools.58 In general, diminution and land fragmentation of holdings, tenure insecurity, land degradation and inefficient allocation of land by the way of restrictions on land transfer and to some extent lack of appropriate land use and administration were among commonly cited problems in relation to the land policy of the Derg Regime.59

2.2.3 Land Tenure System Since 1991 The existing government announced the continuation of the land policy of the Derg Regime under the Constitution of 1995 that approved and confirmed the state ownership of land in 54 55

Shemellis et al, supra note 18 Proc No.31/19975, Art.8 56 Id, Art.4 (3) 57 Yigremew Adal, Review of Landholding Systems and Policies in Ethiopia under the Different Regimes, Addis Ababa, Ethiopian Economic Association/Ethiopian Economic Policy Research Institute (2002), p.56 58 Ibid 59 Bruce et al, supra note 27

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Ethiopia. The present government‟s land policy, unlike that of the “Derg”, is enshrined in the Constitution. Accordingly, the government effectively eliminated land policy as a variable instrument that could be used to address the changing circumstances that affect the rural economy. Article 40 of the 1995 constitution (which provides for property rights) states that the right to ownership of rural and urban land as well as of all natural resources is exclusively vested in the state and in the people of Ethiopia. Pursuant to the Constitution “Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or other means of exchange.”60 In addition, the Constitution states that “Ethiopian peasants and pastoralists have the right to obtain land without payment and are guaranteed the protection against eviction from their possession.”61 The Constitution guarantees the rights of peasants and pastoralists of free access to land and the right of individuals to claim compensation for improvements they make on land including the right to bequeath, transfer or remove such improvements when the right to use the land expires.62 Now, farmers have the right to use the land indefinitely, lease it out temporarily to other farmers and transfer it to their children but cannot sell it permanently or mortgage it. Another important provision regarding property rights states that “Every Ethiopian shall have the full right to the immovable property he builds and to the permanent improvements he brings about on the land by his labor or capital. This right shall include the right to alienate, to bequeath and where the right of use expires, to remove his property, transfer his title or claim compensation for it.63

The present Ethiopian government continues to advocate state ownership of land whereby only usufruct rights are bestowed upon landholders.64 The users‟ rights exclude the right to sell or mortgage the land.65 This was to protect the rural peasants from selling off their land to wealthy individuals leaving them landless and without source of livelihoods.66 The government builds its argument on the premises of social and historical justice that is based on two principles: (i) Justice Understood as Egalitarianism: guaranteeing every farmer in need of agricultural land equal rights of access to such land, and (ii) Historical Justice: granting tenure security to the 60 61

FDRE Constitution, 1995, Art. 40 (3) Id, Art. 40 (4) and (5) 62 Id, Art. 40 (7) and (8) 63 Id, Art. 40 (7) 64 Shimalles et al, supra note 18, p.13 65 FDRE Constitution, 1995, Art.40 (3) 66 Shimalles et al, supra note 45

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Ethiopian farmers who had experienced land deprivation and land expropriation through different mechanisms during the imperial era.67

The Constitution also states that the Federal Government shall enact laws for the utilization and conservation of land and other natural resources.68 Moreover, it states that Regional Governments have the duty to administer land and other natural resources according to federal laws.69

The first Federal Land Administration and Use Law was enacted in July 1997 which is referred to as “Rural Land Administration and Use Proclamation No. 89/1997.” This law vested Regional Governments with the power of land administration which is defined as “the assignment of holding rights and the execution of distribution of holdings. 70 Further more, holding rights were also defined as “the right any peasant shall have to use rural land for agricultural purposes as well as to lease and, while the right remains in effect, bequeath it to his family member; and includes the right to acquire property thereon, by his labor or capital and to sell, exchange and bequeath same.”71

This Proclamation has laid down the fundamental principle uphold by the Constitution of the Federal Democratic Republic of Ethiopia that land is a common property of the Nations, Nationalities and Peoples of Ethiopia which shall not be subject to sale or to other means of exchange.72 It empowers Regional States to enact their own laws to administer rural lands within the framework of the general principles provided in the federal law.73 It further obliges regions to observe the federal environmental laws in the event of making their own land use laws.74 On the basis of this Proclamation, Regional States can either issue their own rural land administration

67 68

Ibid FDRE Constitution, 1995, Art.51 69 Id, Art. 52 70 “Federal Rural Land Administration Proclamation No. 89/1997”, Art.2 (6), Fed.Neg.Gaz, 3rd Year No. 54 71 Id, Art. 2 (3) 72 Id, Art. 4 73 Id, Art. 5 (2) 74 Id, Art. 5 (3)

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laws or adopt the general principles of the federal proclamation and come up with their own land use regulations. Accordingly, regions had issued such laws in the past.75 In July 2005, the Federal government enacted the “Federal Rural Land Administration and Use Proclamation No.456/2005”, which reaffirms state ownership of rural land but confers indefinite tenure rights,76 rights to „property produced on the land‟, rights to intergenerational tenure transfer,77 rights to rent out land, and lease rights to land users for commercial investments.78 The law makes provision for the registration and certification of tenure rights.79 The proclamation also specifically addresses degradation of rural land, including defining the obligations of tenure holders to sustain the land, with specific requirements depending on slope, requirements for gully rehabilitation, restrictions on free grazing and protection of wetland biodiversity.80 This Proclamation also has provisions indicating that there will be no further land redistribution, except under special circumstances.81 It is worth noting that this proclamation applies to any rural land in Ethiopia including the Oromia regional state, the subject of this Study.82

Since 1991 some policy changes have been introduced. For instance, the frequency of land redistribution which is considered as cause of tenure insecurity is reduced. 83 Some regions declared that they would not make any more administrative land redistribution while others restricted redistribution to irrigated land.84 Other land policy improvements comprise land transfer through (with some restriction) rental arrangements including mortgaging the use right

Regional States have also enacted legislations to strengthen tenure security, modeled after the federal law. For instance, Oromia, Proclamation No.56/2002, Proclamation No.70/2003, Proclamation No.103/2005, Proclamation No.130/2007, Tigray Region has enacted proc No.97/98 and proclamation 136/2008 76 Proc No.456/2005, Art.7 (1) 77 Id, Art.5 (2) 78 Id, Art.8 (1) 79 Id, Art.6 80 Id, Art.10 81 Id, Art. 9 82 Id, Art.4 83 M.M. Ahmed, S.K. Ehui, Berhanu Gebremedhin, S. Benin and Amare Teklu, “Evolution And Technical Efficiency Of Land Tenure Systems In Ethiopia,” International –ILRI- International Livutock Muarch Institute Socio-economic and Policy Research Working Paper 39, (2002), p. 10-11 84 For instance, Tigay and Amhara Regional states have banned administrative redistribution of land while the Oromia and SNNP regions restricted the possibility of redistribution to irrigable land.

75

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by private commercial farms.85 After 1997 some policy initiatives are also made towards establishing sound land administration system through rural land registration and certification. 86

Despite the existing policy and legal measures, land related problems such as tenure insecurity, restrictions on transfer and lack of adequate land administration system still prevail. 87 Although the existing legal framework has resolved some issues, it seems to create other ambiguities and does not address some important issues88 .For example, given the scarcity of land, it is not clear how peasants' rights of free access to land can be assured in practice, and how much land peasants are entitled to. Particularly in the rural areas, scarcity and landlessness of young peasants, women and re-settlers characterize the country‟s land resource administration.89

2.3 Rural Land Tenure Security and Rights of Land Users in the Oromia Regional State A number of laws relevant to the administration and rural land use have been adopted in the Oromia Regional State in light of the federal rural land laws since 2002. These laws have been amended with a view to accommodate changing circumstances. In the discussions that follow, the Oromia rural land Use and Administration laws will be reviewed in light of land tenure security and land users‟ rights and obligations over their landholdings.

2.3.1 Proclamation No.56/2002 In 2002 the State of Oromia issued Proclamation No. 56/2002 of “Oromia Rural land Use and Administration” which was amended by Proclamation No. 70/2003. The original rural land proclamation laid down the principles of landholding right of the State in light of the federal land use and administration law. It extends a lifelong use right of agricultural land and provides for expropriation of such land under the exigencies of a need to use the land for a more 85 86

Proc No.456/2005, Art.8 (4) Action Aid Ethiopia, 2006, P.11 87 Ibid. Dassalegn Rahmato, (2003), P.7 88 Melkamu and Shewakena, supra note 17 89 Ibid

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important public purpose.90 The main objectives of this proclamation were to bring about proper management of land and land resources in an efficient and sustainable manner without compromising the development endeavor of the future generations and to determine the scope of rights, security and obligations of land users in accordance with the land policy of the nation.91 The guiding principles of this very legislation are outlined concisely under Article 4 of the proclamation. Firstly, land is the common property of the state and the people, and therefore, it cannot be subject to sale or other means of exchange. Second, the law expressly provides that women must have equal rights with men as far as rights to land and access to rural land is concerned.

The proclamation determines the minimum plot size as 0.5 hectares for cereals and 0.25 hectares for perennials. Consolidation of fragmented plots belonging to a farmer could be done on voluntary basis.92 This kind of consolidation should be encouraged on all counts since it will facilitate proper use of agricultural land.

Article 5 of the Proclamation stipulates that any adult resident of the region who is aged 18 or above and who wishes to base his livelihood primarily on agriculture is entitled to get rural land free of payment. Article 14 (1) states that redistribution shall not be carried out on the holdings of either peasants or pastoralists in the region except on irrigation land. It is only unoccupied or vacant land and land with no heirs that is at the disposal of the state for future redistribution to landless poor or land deficit peasants pursuant to Articles 14 (2) and 10 (3) of this Proclamation respectively. In light of the objectives of strengthening tenure security set out in the preamble of the proclamation, Article 6 (1) reaffirms that rights to holdings are for life and accordingly peasants and pastoralists have the right to use land under their possession during their life time and bequeath same to members of their family. Nevertheless, the right to transfer one‟s holding to an heir at law is limited by later law which amended some of the provision of this proclamation as inheritance of use right over one‟s holding is restricted to natural or adopted

90

Oromia Rural Land Use and Administration Proclamation, 2002, Art.4(6), Proclamation No.56/2002, Magaleta Orormia, 9th Year, No.2 91 Proc No.56/2002, the Preamble 92 Ibid. Art.9

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children of the land holder.93 The use right of any holder cannot be terminated during the life of that very holder unless and otherwise the land in question is required by the state for “more important public uses” after payment of prompt and adequate compensation for all investments and improvements on the land.94 The expropriation of land for public uses should not only be determined by the state and the latter has to do it in consultation with the local community. The law seems to be progressive in restraining the power of the state to expropriate holdings of farmers or pastoralists as it specifically declares that the state can only decide to expropriate land for public use through participation of local community only for investment in public goods.

In line with the principles enshrined in the Federal and Regional Constitutions, Article 6(1) of the Proclamation provides that landholders will have the right to acquire property on the land under their possession and are also entitled to sale, exchange or bequeath property they have produced through their labor or capital without any restriction. In addition, the use right of holders is not tied to continuous residence in a locality where one‟s parcel of land is situated and, in effect, the rights to land will not be terminated for moving away or changing one‟s residence area.95 Desalegn Rahmato asserts that the 2002 land legislation of Oromia is better than the land legislation of other regions.96 This proclamation has separately declared for security of rights under Article 1 as could be deduced from the title of the provision which reads “land user right security.” Peasants and pastoralists are guaranteed to be provided with lifelong certificates of tenure as per sub-art (1) of the same provision.

This law also lays down a number of obligations that landholders should fulfill as a precondition of exercising their holding rights and keeping the land under their possession for lifelong use. These include proper management of land, maintaining and preserving farmland boundaries, refraining from activities that exacerbate soil erosion, refraining from cultivating gullies, ravines and river boundaries and rehabilitating same, undertaking soil and water 93

See Art.2 (1) of Proclamation No.70/2003, Megaleta Oromia, 9 th Year, and No.12, which provides that the term “family member” is construed narrowly only to refer to naturally born or adopted children of the decedent and therefore land cannot be inherited by other relatives of the landholder. 94 Proc No.56/2002, supra note 70, Art. 6 (4) and (5) 95 Id, Art.15(5) 96 See Dassalegn Rahmato, “Searching for Tenure Security? The Land System and New Policy Initiatives in Ethiopia”, FSS Discussion Paper No.12, Forum for Social Studies Addis Ababa, (August 2004), p.2-8

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conservation measures, refraining from planting harmful vegetation and caring for „mother trees‟ standing on farm plots.97

It should also be noted that there are few obligations imposed on certain category of land users. For instance, lessees are required to carry out proper land management activities on the plot of land under their leasehold during the lease period98 while irrigation land users are obliged to use the land under their holding properly in such a way that avoids misuse and under use of the potential productive value of the land resource, and also mitigate the negative environmental impacts associated with the development of irrigation schemes.99

2.3.2 Proclamation No.70/2003

Proclamation No.70/2003 amended proclamation No. 56/2002 and introduced new provisions on redistribution of land in the irrigable areas. Taking the cultural settings of the State of Oromia the amendment also dealt with the issuance of holding right certificates to wives in polygamous marriages. These measures seem to enhance the land rights of women but they tend to be superfluous in practical terms for the joint or separate registration title registration with same holding would cause problems of implementation. This law has also introduced some changes to the preceding law. Firstly, transfer of use rights by holders through inheritance was restricted since the amendment of this Proclamation only permits transfer of holding rights through succession to one‟s children by narrowly defining the terms “family member” to constitute natural or adopted children of the holder.100 Secondly, the new amendment authorizes the government to take away the holdings of peasants or pastoralists and grant leasehold for investors if the land in question is found to be important for public purpose.

2.3.3 Proclamation No.130/2007 As a result of problems encountered in the process of implementing the preceding proclamations and for a need to handle disputes that may arise in relation to land tenure, the 97

Proc No.56/2002, supra note 70, Arts.17-19 and 22-23 Art.11 (6) 99 Ibid, Art. 14 (4) (h) and (i) 100 Proclamation No. 70/2003, supra note 73, Art.2(1) 98 Id,

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State of Oromia has enacted a new rural land use and administration law in 2007101 .This law reaffirms most of the principles and procedures followed by the preceding laws. Some of the new inclusions in the new law are: the right of investors to mortgage the property acquired on land (through the investment process) and issuance of certificate of holding which could be prepared in the name of the rightful holder, be it joint ownership or otherwise. As per the Revised Land Use Proclamation of 2007, there are basically three types of tenure arrangements, i.e., individual holding, communal holding and state holding.102 In the following section, salient features and constraints of the new land proclamation will be reviewed in light of access to land, rights and obligations of rural land users, effects of land registration and titling on tenure security and core restrictions.

2.3.3.1 Access to Land

The right to access to rural land free of charge is provided for in the federal and regional constitutions.103 In a similar vein, Proclamation No.130/2007, the latest rural land use and administration law of Oromia Regional State, attaches significant importance to secured land users rights as one of its primary goals is to ensure better rights for rural land users including the right to access to rural land.104 Article 5(5) of the Proclamation provides that “Any peasant, pastoralist or