The right to property Vis a Vis compulsory eviction of land tenants under the FDRE constitution

?- The right to property Vis a Vis compulsory eviction of land tenants under the FDRE constitution

By Tetemke Yohannes

Abstract

The right to property is one of the most accepted basic rights of the citizens of a nation. The government must be respect this right and protect it from the unlawful violations committed by others. Not only this, the government shall develop the legal framework to determine how to exercise this widest right properly. Based on this the Ethiopian government has adopted the new constitution in the early 1995 and it clearly recognizes the right to property. As we know that one of the property right may be existed and exercised in land. The constitution says that all rural and urban lands are belongs to the Nation, Nationalities and People of Ethiopia and the Government. Since the right created on land is only limited to the use right the government would overtake the land as a means of expropriations easily and this may affect the land holders right to property. Under this article the author tries to indicate the legal framework of eviction of land holders on one hand and the widely recognized property right on the other hand. The author also justifies how the compulsory overtaking of land may affect the individual’s right to property if it is not well managed and taken by arbitrary means.

Key words

Compulsory eviction, land tenants, the right to property, FDRE constitution.

Introduction

Property right is one of the oldest rights in the history of mankind. It is the fundamental right of citizens of a nation. Prosperity and property rights are inextricably linked.[1] The importance of having well defined and strongly protected property rights is now widely recognized among economists and policymakers. A private property system gives individuals the exclusive right to use their resources as they see fit. That dominion over what is theirs leads property users to take full account of all the benefits and costs of employing those resources in a particular manner. The process of weighing costs and benefits produces what economists call efficient outcomes.[2] So the right on property has a great contribution in once a country economic development. In other word it means the protection of an individual right to property may result nations prosper when such rights are well defined and enforced. Clearly defined property rights stimulate capital formation as a key device to raise capital for a poor country. ?Such clear delimitation of property rights fixes the economic potentials of assets, integrates dispersed information into one system and makes individuals accountable and assets fungible. It also facilitates networks between individuals, and duly protects and enforces transactions involving property rights through legislative, judicial and administrative mechanisms.[3] Well-defined property rights involve clear and comprehensive legal specification of who the holder of a given property is, singling out and characterizing the object of the property, the nature of the property right (e.g., ownership or usufruct), manner of its transfer, restrictions thereof, institutions which are mandated to enforce the right upon infringement and specific remedies attendant to property right violations.[4] On the hand ill-defined property rights breed insecurity. Besides, poorly defined property right cannot solve the undercapitalization of developing countries, inter alia, because: ... a lender must make the same costly investments as a purchaser in order to make sure that the property right is under the borrower's control and that, in the event of a default, the property can be obtained with the same rights as those enjoyed by the present owner. This increases the interest rate charged by lenders for loans guaranteed by an expectative property right, ill defined property right or its equivalent; worse still, it may simply prevent such transactions from taking place.[5]

?It is true that among of the property right established, land is the most important one. Ethiopia as an agrarian nation, the socio, economic, cultural and political matters is highly related with the use and ownership of land. It is not an easy task to separate the history of Ethiopian nations from their land especially in rural area. Land is the very issues in all governments in past and to the present. In this article the writer will discuss how the right to property (land) is vis a vis with the compulsory eviction made by the government. In addition to this the writer believes that the government must strike the balance between the two interests.

Short history of land right in Ethiopia

As I have stated in my introduction part, land is the most important property or capital for Ethiopians especially in the rural area. This does not mean that land is not important for the urban dwellers. Rather how the land is sentimentally and historically as well as spiritually attached with the rural communities so far. Based on this the history of land right during Imperial era, indicates the land is under control of the imperial and all the tribes was made under the control of monarchs and had been redistributed to the favorites and supporters of the king in due time. In addition to this the land properties, distributed to their followers, overtime seized the form of private Rist (linage usufractuary right), Church land, and Government land. Land was granted to individual people/peasants in the form of Rist (usufractuary right). The peasants were then allowed to use, rent, and inherit the land to family members. In exchange, peasants were obligated to make different kinds of land related tax payments. Selling the land to non-family members was prohibited. The church was also owned land in the imperial period. Land was provided to the Church which was considered as a major ally to the imperial power. The Church was a major possessor of material wealth not only because by selling salvation in return for treasure and land, but also by perpetuating imperial power over the people. It was the church which played a major role in propagating the mass to obey the king. Obedience to the king was justified in many of the Christian writings and the day to day teachings.?Monarchs who disagree with the church or became out of favor of the later found themselves in the middle of bloody wars.[6] Land was then transferred in the form of inheritance from family to children for generations which over time reduced the size of the farm lands.

However in the Derg Regime land right system existed for long time is come to an end by the nationalization policy. The government has taken the ownership right of all rural land right through nationalization. This overtaking has justified by the then proclamation (Proclamation No. 31/1975). The proclamation allowed all the peasants and tenants to maintain and held the land which they farmed and absolved them from any debt or obligation they owed to the landlords. The law restricted the right to use the land by prohibiting the lease/rent, donation, sale, exchange, mortgage, and inheritance (except to minor children) of the land. For instance in any case the land reform was successful in that it generated a lot of support especially from the peasants of the southern regions. The administration of land was provided to the peasant associations created in every village of 800 hectares of land. They were tasked among others with distribution of land. Not only had the rural land the Derg Regime continued to nationalize the urban land by proclamation. The law was Proclamation No. 47/1975 and it nationalizes all urban lands and extra houses other than those that are occupied by the family for residential purposes. The proclamation denied any compensation to the loss of land in urban areas. As its rural counterpart, it allowed all tenants (lessees) to maintain and use the houses they rented from landlords and made them free from any rent obligations or debts. The state rather replaced the individual land lords in collecting rents. The law allowed for a person only to own a single residential house and if necessary another single business house.

The recent time land right of the Federal Democratic Republic of Ethiopia is regulated by the FDRE constitution and it says all lands either rural or urban land is belongs to the government and the nation nationalities and peoples of Ethiopia. This is the introduction of new regime and the ownership right on the hand of the government and it provides the use right to the holders. The constitution also says the land is not subject to sale. The writer will address the issues very well as follows.

The right to land under the FDRE constitution

?Ethiopia was adopted the federal form of government after the downfall of Derg Regime in 1991. The new government introduced the FDRE constitution since 1995. This constitution is the base for the recent land policy and governance. According to article 40(3) of the federal democratic republic of Ethiopia constitution all land is belong to the government and the nation nationalities and peoples of Ethiopia.[7] Still the land is not subject to sell is well recognized by the constitution. In addition to these the Constitution empowers government to provide private investors with use right over land on the basis of payment arrangements.[8] Once use right over land is given to investors, they have full right to the immovable property they build and to the permanent improvements they bring about on the land by their labor or capital including the right to alienate, to bequeath, and, where the right of use expires, to remove their property, transfer their title, or claim compensation for it.[9] The Constitution indicates that the particulars of these general features of private property will be specified by law.[10] Private property can be subject to expropriation for public purposes subject to payment in advance of compensation commensurate with the value of the property.[11]

The law is new and it compared with the former laws by different grounds. The previous laws were not clearly indicated what kind of right is created on land by the land holders. Rather they says that land is belongs to different class or group of society. But in the new laws the ownership right of land is on the hand of government and the usufracturay right is given to the holders. It also guaranteed the holders use right and impose obligation on the government not to take the land arbitrarily. In addition to these the government has obliged to pay compensation for expropriated land for public use. (Dr. Daneil W.) on his book, states that?in many countries land ownership is not as such treated as a constitutional issue, but in Ethiopia, because of its socio-economic importance, land ownership goes beyond being a mere policy matter. Therefore, it is inserted in the Constitution and the issue of its ownership is a settled subject. The argument forwarded by the ruling party for the continuation of land as public/state property rests mainly on two policy objectives: social equity and tenure security.[12] The FDRE Constitution as well as other Federal and Regional Land Proclamations ensure free access to agricultural land. The amount of land to be provided to peasant farmers, as far as possible, is made equal. This way, the policy objective is to ensure equality of citizens in using the land. The weakness of this policy objective is that first, it does not address the urban land; article 40 of the FDRE Constitution that deals with property talks only about rural land.

The second government justification to why the land is belongs to the government and the people are tenure security. Since the land is not subject to sell, this may protect the holders from unwanted sell and the overall social problems. In other word the government ownership is to some extent safeguards the land holders from selling their land and faces difficulties after it. Private ownership of rural land would lead to massive eviction or migration of the farming population, as poor farmers are forced to sell their plots to unscrupulous urban speculators.[13] However the land policy adopted by Ethiopian government is subject to criticism for the last 25 or more years. The policy of the government has been attacked and criticized by researchers and international donors who favor neo liberal economic thinking. The usual argument forwarded by this people against the state/public ownership of land is one that focuses on lack of tenure security. They argue that absence of tenure security for land users provides little or no incentive to improve land productivity through long term investment; increase transaction cost because of land dispute; and it hinders the emergence of property market such as, credit availability/land mortgage.?The fear of the critics and supporters of private ownership of land is, further, that government may use land as political weapon by giving and taking it away from holders[14]

Compulsory eviction of land tenants in Ethiopia

The new constitution of 1995 approved and recognizes the state ownership of land in Ethiopia. According to article 40 of the 1995 Ethiopian constitution states that the right to ownership of rural land and urban land, as well as of all natural resources is exclusively vested in the state and the peoples of Ethiopia. Land is a common property of the nations, nationalities and peoples of Ethiopia (Federal Democratic Republic of Ethiopia 1995, Article 40). The article further specifies a “right to obtain land without payment” for “Ethiopian peasants” for grazing and cultivation purposes as well as a right to be protected against eviction from the possessions”. The article further stipulates that any transfer of land is prohibited and “shall not be subject to sale or other means of exchange”.

But the constitution is not clear well regards to land security. Based on this the proclamation of the federal government in particular, does not state the duration of usufruct rights for landholders. Broadly speaking, while the 1995 constitution and the subsequent Proclamation 89/1997 largely confirm state ownership of land as continuation of Derg policies, they also provide some specifications that seek to take account of the necessity for a rural land and labor markets to emerge.[15] Several regional governments have made use of the powers vested in them in the 1995 constitution and Proclamation 89/1997 to formulate their land policies, among them Tigrai Region (1997, amended 2002), Amhara Region (2000 amended by proc. 252/2017), Oromia Region (2002 amended ), and Southern Regional State (2003 amended). According to the constitution, regional land policies need to be in accordance with federal law; all regional policies therefore validate state ownership of land and farmers only receive usufruct rights to plots of land without transfer rights, such as sale or mortgage. All regional proclamations confirm at least formally that land rights are to be granted to men and women, including the right to lease out land, although most regions restrict the period of the lease and limit leasing rights to only a share of the farmland. Only one out of the four regional policies mentioned above rules out future land redistribution (Oromia), one does not specify (Tigrai), and two other regions make it conditional on the demand of the community and a scientific assessment of its effects on land productivity (Amhara Region, and Southern Nations, Nationalities, and Peoples Regional State). In three out of four regional states, landholders need to comply with a number of user rules and management obligations to secure their usufruct and access rights. In Tigrai and Amhara regions the right to use land depends on the residence in the kebele, a restriction already in place under the Derg regime. At the same time, some regions formulate the aim to introduce certificates designed to increase tenure security and to reduce border conflicts. Inheritance rights have also been specified and in some case been extended beyond the core family. For example, in the Amhara region, it is allowed for land to be bequeathed to people outside of the family if those assisted the rights holders in times of need.[16]

The land right in Ethiopia includes the right to use, transfer it by donation, inherit to the heir, leasing for a specific period of time etc… but the question is how the government overtake the land for public use and justify it. In addition to these how we avoid the arbitrary overtaking and expropriation of privately hold land to public use?

The FDRE constitution includes provisions about the overtaking of individual’s property for the public use. This is called the compulsory eviction or expropriation. In Ethiopia the power of expropriation is vested in the state by virtue of Article 40(8) of the FDRE Constitution which provides that "the government may expropriate private property for public purposes subject to payment in advance of compensation commensurate to the value of the property". Based on this the federal government of Ethiopia adopted the expropriation proclamation and it’s called Expropriation of Land for Public Purpose, Payments of Compensation and Resettlement of Displaced People-Proclamation No. 1161/2019. The central objective of the Expropriation Proclamation is to take land for investment activities. It has three main aspects: provisions relating to public purpose, compensable property, and procedural recourses. If properly formulated and implemented, the requirements of public purpose, of compensability and of procedural recourses would have the effect of disciplining government authorities since such procedures would force the state to carefully re-examine its projects, thereby serving as a buffer zone for property holders and preventing overtaking without necessarily handcuffing such authorities.[17]

Public purpose is the basic reason to limit the power of government to expropriate the property of individuals. The idea of public purpose is explained in different ways. For the minimalist the overtaking of individual property must be justified for public reason. In other word the state authorities precludes from undertaking expropriation to transfer the property of one person in order to enrich the patrimony of another, therefore taking private property for solely private purpose. Whereas the maximalist argues that the taking of individual’s property is to the happiness of the maximum number of the social class. It suggests anything which tends to enlarge the resources, increase the industrial energies and promote the productivity of any considerable number of inhabitants or a section of the state, or which leads to the growth of towns and creation of new resources for the employment of capital and labor, contributes to the general welfare and prosperity of the whole community. [18]

On the other hand the proclamation says that the government overtakes property of individual by paying the compensation. Payment of compensation is the concept which is well practiced by different part of the world. The idea is that to support financially the land holders after expropriation made on his/her land. If the state were not required to compensate private property holders for taking their property, people would be unlikely to invest their time, labor, energy and resources in developing and improving their property and investors would be discouraged from investing in the country. Both would adversely affect economic development. So compensation is the basis for expropriate the properties of individuals.

The third concept in the proclamation to expropriate the property of individuals is that the government must keep all procedural matters. Procedure is the mechanism to enforce the substantive laws. If the procedural irregularities committed by the government, this may affect the very right to property of individuals. In addition to these the procedural safeguards presuppose that the government must respect all due process of law at the time of expropriation. However, the expropriation law in force in Ethiopia manifests a deficiency in this regard. The Constitution, in its draft stage, included a clause providing for a public forum at which the concerned public authorities would be required to prove that expropriation was the only available option under the circumstances. The draft also required the authorities to establish a genuine case of public interest and compelled them to give an opportunity for potential land losers to explain their own version of the intended project.[19]

?However, this was removed from the final version of the Constitution. Thus, as the law stands, the requirement of public consultation is absent; it shows a regression in this regard from the Civil Code which in early 1960s required the authorities to organize a public inquiry under certain conditions. Under the Expropriation Proclamation, expropriation is crafted largely as a matter that involves reaching a decision by an executive organ followed by simple notification of such decision to the expropriated. The process requires going through a series of administrative decisions. Some of these include reaching a decision on public purpose, determining whether the land has been lawfully acquired, fixing compensation and notifying the expropriated the time within which the land has to be cleared and taking over the land.[20] This may indicate the arbitrarily taking of the property of individuals and causes the socio, economic and political problems in a country.

Conclusion and recommendations

It is true that in Ethiopia like other developing countries land has a backbone of rural communities. In fact the economy of the country is depend on the agriculture, the government policy regards to land is must be well organized and addressed all the issues significantly. I conclude that one thing is that we have laws on different areas including land laws. We have regional land laws and proclamation to regulate the limited land resource. All these laws incorporated the basic right to property of individuals and they also indicate government power of expropriation when the land is need for the public use. So the government bodies must respect the constitutional right to property of individuals. On the other hand employ all the legal and procedural (due process of law) matters to respect the private right to property and carryout the expropriation as the law requires.

Still the laws enshrined the procedural safeguards to how the government employs expropriation. But there are some recommendations provides on this regard:

??Involve and carryout the public discussions and hearing before expropriation.

Even the law says that all the land belongs to the government and the people, the public discussion is very important to expropriate the land of individuals easily and to create awareness why the land expropriated. So the government at any level who are a power to expropriate must made the discussion with the public or the dwellers of area.

??Follow up the implementation of procedural safeguards

The very problems of our country on the areas of law are related with enforcement or execution. The government must direct and order each procedure application during expropriation. In addition to this the government bodies must follow all the due process of law is respected at the time of expropriation.

On the other hand the only payment of compensation is not providing the solution to compulsory eviction. In fact it is the best mode to cover the loss in terms of money to the land holders but the social problems of losing land to the holders goes beyond this. Based on this the government has responsible to the following suggestions:

??Providing the alternative livelihood ways to integrate the rural area communities with urban. The land holder’s lives may be changed when all their land may be expropriated. In this case the land holder may integrate himself with the new ways of lives and try to participate in other areas of economies. The government also facilitates all the process to land holders moving to new lives.

???The government also works on rehabilitation programs. We say that the only payment of compensation is not solving all the damages, the government organize the institution to follow up the evicted land holder’s rehabilitations. Otherwise as we have see recently the land holders may use their money (they get from compensation) in extravagant way and subject to many economic and social related problems after they finished the money.

??The government also creates awareness to evicted land holders. ?Most of the rural land use right are in hands of the farmers and majorities are illiterate. So the government must create awareness to them regards to the management of money and its economic use.

???Access the credit and saving institution to evicted land holders. Most of our citizens are not familiar with the importance of saving, or they don’t know how the saving of money brings investment very well. So the expansion of microfinance institution to the evicted land holders and awareness creations related to the importance of saving is organized by the government.

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[1] Property Rights the Key to Economic Development by Gerald P. O’Driscoll Jr. and Lee Hoskins, the Pacific Research institute.

[2] Ibid see page no 1

[3] ?Hernando De Soto (2000), The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else (New York, NY: Basic Books) Cited by Dr. Murado Abdo, on his article Legislative Protection of Property Rights in Ethiopia: An Overview

[4] Ibid see page no 166

[5] Ibid

[6] Land Rights in Ethiopia: ownership, equity, and liberty in land use rights Daniel Weldegebriel AMBAYE, Ethiopia, peer reviewed paper.

[7] Constitution of the federal democratic republic of Ethiopia, 1995 see article 40(3)

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[8] Ibid see article 40(6)

[9] Ibid see article 40(7)

[10] Ibid see article 40(6&7)

[11] Ibid see article 40(8)

[12] Dr. Daniel W. supra note 6 see page no 5

[13] Ibid see page no 6

[14] Ibid

[15] Land Tenure in Ethiopia Continuity and Change, Shifting Rulers, and the Quest for State Control Wibke Crewett, Humboldt-University of Berlin Ayalneh Bogale, Alemaya University Benedikt Korf, University of Zurich

[16] Ibid see pp 16-17

[17] Muradu Abdo, Reforming Ethiopia's Expropriation Law, 9 Mizan L. Rev. 301, 340 (2015)

[18] Ibid see page no 306

[19] Ibid see page no 323

[20] Ibid see page no 324