(Taken from LAND LAWTEACHING MATERIAL Prepared by DANIEL W/GEBRIEL and MELKAMU BELACHEW under the sponsership of JUSTICE AND LEGAL RESEARCH INSTITUTE)
Rural Land Lease 3.3.1 General Rural land lease can also be termed as agricultural land lease as known elsewhere. However, in Ethiopia, there is another form of lease of rural land for investment purpose. The purpose of this part of the discussion is to discuss briefly the types of rural land leases recognized by Federal and Regional rural land proclamations. For the purpose of clarity we shall use the Rural land Proclamations of the Federal (Proc. No. 456/2006), Oromia (Proc. No.130/2007), Amhara (Proc. No. 133/2006) and Tigray regions (Proc. No. 136/2007). Lease is one form of land holding rights recognized by rural land proclamation. The Federal rural land administration and use proclamation No. 456/2006 in its definition of “holding rights”, among others, include lease as one form of right. Hence, rural farmers are allowed to lease or rent their land to any person who wishes to involve in the agricultural sector.
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(Taken from LAND LAWTEACHING MATERIAL Prepared by DANIEL W/GEBRIEL and MELKAMU BELACHEW under the sponsership of JUSTICE AND LEGAL RESEARCH INSTITUTE) 3.2.4. Sub-Leasing According to Black’s Law Dictionary Sublease is a lease executed by the lessee of land or premise to a third person, transferring the same interest which the lessee enjoys, but for shorter term than that for which the lessee holds. In Ethiopia, unless agreed otherwise, subletting a premise is in principle possible. The only requirement on part of the lessee is that he should give notice to the lessor (Art. 2957). Concerning the status of the relationship between the lessor and the lessee on the one hand and the third person who is subleasing on the other hand the code provides sufficient provisions. The relationship between the lessor and the lessee remains intact whether the lessor has consented to the sublease or not (read art. 2960). The sub-lessee is also bound to pay rent directly to the lessor, but his liability is limited only to the amount of rent payable (art.2962). Finally, a sublease shall be terminated if the principal lease is to be terminated as indicated under article 2964. 3.2.5 Termination of Lease Contract A contract of lease may be terminated for various reasons. The following are some of the reasons stated in the code:
3.2 Lease of Houses/Tenancy
This is a place where we shall discuss about lease of housing. The housing that we are talking about may be residential or commercial. In countries where the real property market is flourished these are very common systems of conveying one’s house to another renter. Yet for public purpose and social welfare reasons most counties in the western world regulate the ceiling of rent that should be paid for a residential house. In Ethiopia, there are two systems of rental: private and public. The government owns a lot of urban houses after it nationalized them using Proc. 47/1975, a proclamation to provide for the ownership of urban land and extra houses. The Rental Agency administers these houses. It puts a regulated and mostly fixed rate of rent for its tenants. On the other hand, private owners of residential and commercial houses are at liberty to put the market price for rent. This is a contract that is totally controlled by the civil code. In this section a discussion will be made based on the civil code tenancy provisions (2896-3018). (Taken from LAND LAWTEACHING MATERIAL Prepared by DANIEL W/GEBRIEL and MELKAMU BELACHEW under the sponsership of JUSTICE AND LEGAL RESEARCH INSTITUTE)
Use and purpose of lease Lease is another means of land holing system. Lease may be of private or public one. For both the state and private individuals lease is a means of income for it is also another form of land market. The income from land lease has significant part in the over all GDP of a country in general and in the real estate transaction income in particular. In the absence of an effective land taxation system, one of the means by which local governments increase revenues is through public land leasing. There is evidence that land leasing has been happening on a large scale. Some countries secure a particular place for lease purpose. For example, the city of Sydney, in Australia, is a good example. In Sydney the only means of land acquisition is lease. They call is ground lease for the state or municipality, as the case may be, transfer the ground land by way of lease. In other words, to collect rent from transfer of land by way of lease, states may reserve particular land for this purpose. On the other side of the coin, lease is a means of acquisition of land. In industry and agriculture lease is preferable since the business may not be long lasting. Some times it is easy, if not cheaper, to get land by way of lease rather than purchasing. Eve the procedure, for example in Ethiopia, is shorter and easier than land grant for land lease policy is more responsive to demand of land supply. From private lease point of view, those who could not afford to buy land from the land lords had the only choice of leasing land. 3.1.1 Scope and Definition
“Lease” under the FDRE lease proclamation 272/2003 has been define as “lease-hold system in which use right of urban land is transferred or held contractually (Art. 2(1). The 1960 Ethiopian civil code under article 2896 on its part defines lease as follows: The lease of an immovable is a contract whereby one of the parties, the lessor, undertakes to ensure to the other party, the lessee, the use and enjoyment of an immovable, for a specified time and for a consideration fixed in kind or otherwise. Hence the concept of the word “lease” which is employed in the above laws is one similar to what is coined in the common law as “Leased fee” which means an ownership interest held by a landlord with the rights of use and occupancy transferred by the lease to others. The rights of the lessor (the leased fee owner) and the lessee are specified by contract terms contained within the lease. And “leasehold” means the interest held by the lessee (the tenant or renter) through a lease transferring the rights of use and occupancy for a stated term under certain conditions. Here the definition and scope of lease provided in the proclamation is different from the scope of the term defined in continental legal system. A typical definition of lease is one given by Planiol which states lease as: “A contract whereby one person engages himself to furnish to another person the temporary enjoyment of a thing for a price proportional to the time.” The similarity one can find in all the above definitions is that firstly, lease right emanates from contractual agreements. Secondly, the right transferred to the lessee (tenant) is the use and occupancy of the property. Thirdly this interest is transferred for consideration- that the lessee must pay in the form of rent. And fourthly, in both systems lease right provides only personal rights to the lessee, not real rights for the lease right generally may not be sold or mortgaged. The basic difference one can observe from the definitions however Planiol’s definition of lease can encompass movable and immovable, for the word “thing” can connote both movable and immovable. In the common law as well as under the Lease proclamation no. 272/2003 leases are applied to real property or land. A systematic search and analysis of the civil code also shows that the code follows the common law approach. (Taken from LAND LAWTEACHING MATERIAL Prepared by DANIEL W/GEBRIEL and MELKAMU BELACHEW under the sponsership of JUSTICE AND LEGAL RESEARCH INSTITUTE)
2.3.2 Land Legislations A. Constitution Article 40 of the Federal Constitution, which relates to “Right to Property,” provides: 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 peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange. (Sub-Article 3). Regarding its means of acquisition, sub-article 4 states that Ethiopian peasants have right to obtain land without payment and the protection against eviction from their possession. Likewise, concerning the pastoralists of the lowland areas, sub-article 5 declares that Ethiopian pastoralists have the right to free land for grazing and cultivation as well as the right not to be displaced from their possession. The Constitution has also shown the way to acquire land by private individuals. Sub-article 6 of the same provision stipulates: Without prejudice to the right of Ethiopian Nations, Nationalities, and Peoples to the ownership of land, government shall ensure the right of private investors to the use of land on the basis of payment arrangements established by law. Other important provisions concerning the security and rights of land-holders are provided under sub-articles 7 and 8 of the same provision. Sub-article 7 declares 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 labour 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. The right to land is also secured in that the state has the duty to pay compensation during expropriation. Sub-article 8, which is related to expropriation, states: Without prejudice to the right to private property, the government may expropriate private property for public purposes subject to payment in advance of compensation commensurate to the value of the property. The power to enact laws for the utilization and conservation of land and other natural resources in the country is exclusively given to the Federal Government (Art. 51(5) of the Constitution) Regional governments have the duty to administer land and other natural resources according to federal laws.(Art. 52(2)(d))of the Constitution). The first law of this nature was enacted in July of 1997 and was titled “Rural Land Administration Proclamation, No. 89/1997.” This law has, however, been repealed and replaced by the more recent Proclamation No. 456/2005, otherwise known as ‘‘Rural Land Administration and Land Use Proclamation’’. Likewise, based on such Federal Rural Land Use Proclamations Regional states (Tigray, Amhara, Oromia, and SNNPR) ensue to adopt similar rural land laws. HISTORY OF TENURE SYSTEM IN ETHIOPIA
Introduction (Taken from LAND LAWTEACHING MATERIAL Prepared by DANIEL W/GEBRIEL and MELKAMU BELACHEW under the sponsership of JUSTICE AND LEGAL RESEARCH INSTITUTE) Understanding the Ethiopian land tenure system is important to student of land law for it gives students general historical and factual ideas about the land holding system in the country. The Ethiopian land tenure system is also the concern of history, sociology, agriculture, and economics and as a result different writers from all these disciplines have written a lot of materials. In here we shall briefly discuss the types of land holding system in three broad historical periods and the content of the laws used for such systems: before the 1974 revolution, during the Derg Era, and the present system. The pre-evolution period is treated in one section because the land tenure system was basically the same for long period. Only the coming of the revolution fundamentally changed the millennia based land holding system. PROCLAMATION NO. 13/1995 A PROCLAMATION TO ESTABLISH THE SECRETARIAT OF THE HOUSE OF PEOPLES' REPRESENTATIVES AND OF THE HOUSE OF THE FEDERATION OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA WHEREAS, it has become necessary to establish the secretariat of the House of Peoples' Representatives and of the House of the Federation of the Federal Democratic Republic of Ethiopia; NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows:
1) "the House of Peoples' Representatives" means the House of Peoples' Representatives of the Federal Government established pursuant to Article 53 of the Constitution; 2) "the House of the Federation" means the House of the Federation of the Federal Government established pursuant to Article 53 of the constitution; 3) "Speakers" means the Speakers respectively elected by the House of Peoples' Representatives and the House of Federation pursuant to Article 55(19) and 62(11) of the Constitution. 3. Establishment 1. The Secretariat of the House of Peoples' Representatives and of the House of the Federation (hereinafter referred to as "the Secretariat" is hereby established as an autonomous organ having juridical personality. 2) The Secretariat shall be accountable both to the Speaker of the House of Peoples' Representatives and to the Speaker of the House of the Federation relative to matters falling under their respective jurisdiction. 4. Powers and Duties of the Secretariat The Secretariat shall have the following powers and duties: 1) to provide secretarial services to the organs of the Houses; 2) to arrange for halls required for the general assemblies of the Houses and for the meetings of their various Committees; 3) to see to it that the minutes, decisions and documents of the organs of the Houses are recorded and kept properly; 4) provide library, research and information services to the organs and members of the Houses; prepare draft legislation subject instruction from the concerned organ; 5) to follow up the publication and circulation of periodicals and newsletters issued by the Houses; 6) to cause services of cordial reception to be extended to visitors to the Houses; 7) to won property, enter into contracts, sue and be sued in its own name; 8) to perform such other duties as are conducive to the fulfillment of the activities of the organs of the Houses. 5. Organization of the Secretariat The Secretariat shall have: 1) a Head to be elected by the House of Peoples' Representatives; and 2) the necessary staff. 6. Powers and Duties of the Head of the Secretariat 1) The Head of the Secretariat shall, subject to general directives from the Speakers, direct and administer the activities of the Secretariat. 2) Without limiting the generality stated in sub-Article (1) of this Article, the Head of the Secretariat shall: (a) exercise the powers and duties of the Secretariat specified in Article 4 of this Proclamation; (b) employ and administer personnel of the Secretariat in accordance with the Federal Civil service laws; (c) prepare, and submit to the Speakers, the annual budget and work programme of the Secretariat, and implement same upon approval; (d) effect expenditure in accordance with the approved budget and work programme of the Secretariat; (e) represent the Secretariat in all its dealings with third parties; (f) prepare, and submit to the Speaker, reports on the activities and financial accounts of the Secretariat; (g) perform such other functions as are assigned to him by the Speakers. 3) The Head of the secretariat may delegate part of his powers and duties to subordinate officials and other employees of the Secretariat to the extent necessary for the efficiency of the Secretariat. However, in case of delegation to an official to act in his absence, for more than thirty (30) days, prior approval by the Speakers is required. 7. Budget
The budget of the Secretariat shall be approved by the House of Peoples' Representatives. 8. Books of Accounts 1) The Secretariat shall keep complete and accurate books of accounts. 2) The Secretariat's books of accounts and financial documents shall be audited, annually, by the Auditor General. 9. Effective Date This Proclamation shall enter into force as of the 19th day of October, 1995 Done at Addis Ababa, this 19th day of October, 1995 NEGASO GIDADA (DR.) PRESIDENT OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA PROCLAMATION NO. 23/1996
A PROCLAMATION TO AMEND THE MINING INCOME TAX PROCLAMATION WHEREAS, it has become necessary to amend the Mining Income Tax Proclamation; NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: 1. Short Title This Proclamation may be cited as the "Mining Income Tax (Amendment) Proclamation No. 23/1996." 2. Amendment Sub-Article (1) of Article 3 of the Mining Income Tax Proclamation No. 53/1993 is hereby deleted and replaced by the following new sub-Article (1): "(1) A holder of large-scale or small-scale mining license shall pay 35 percent income tax on the taxable income." 3. Effective Date This Proclamation shall enter into force as of the 15th day of February, 1996. Done at Addis Ababa, this 15th day of February, 1996 NEGASO GIDADA(DR.) PRESIDENT OF THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIPIA PROCLAMATION NO. 25/1996 FEDERAL COURTS PROCLAMATION
WHEREAS, in the Federal Democratic Republic of Ethiopia, judicial power is vested in both the Federal Government and the Regions; WHEREAS, it is found necessary to determine the jurisdiction of the Federal Courts on the basis of the Constitution; NOW, THEREFORE, in accordance with Article 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: PART ONE Genral 1. Short title This Proclamation may be cited as the "Federal Courts Proclamation No. 25/1996." 2. Definitions In this Proclamation: 1) "Officials of the Federal Government" means members of the House of Peoples' Representatives and of the House of the Federation, officials of the Federal Government above ministerial rank, ministers, judges of the Federal Supreme Court and other officials of the Federal government of equivalent rank; 2) "Employees of the Federal Government" includes all employees, other than those referred to under sub-Article (1) hereof, engaged in the activities of the Federal Government; 3) "Laws of the Federal government" includes all previous laws in force which are not inconsistent with the Constitution and relating to matters that fall within the competence of the Federal Government as specified in the Constitution. 4) "Federal Courts" means the Federal Supreme Court, the Federal High Court and the Federal First Instance Court; 5) "Person" means a natural or juridical person. |
AuthorAbrham Yohannes Archives
February 2012
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