(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
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.
B. FDRE Proclamation NO. 456/2005
As stated above, this law is entitled as “Federal Democratic Republic of Ethiopia Rural Land Administration and Land Use Proclamation.” It was adopted in July, 2005. It replaces its predecessor, Proclamation No. 89/1997. The scope of application of this law is throughout the country, as envisaged under Article 4 of the proclamation. Regional governments are given the power to enact rural land administration and land use laws, which consists of the detailed provisions necessary to implement this proclamation. (Article 17(1))
Reemphasizing Article 40 of the Federal Constitution, the proclamation states: “peasant farmers/pastoralists engaged in agriculture for a living shall be given rural land free of charge.”(Art.5(1)(a). Any person who is a family member of a peasant farmer, semi pastoralist or pastoralist having the right to use rural land may obtain rural land from his family by donation, inheritance or from the competent authority.(Art.5(2)). Thus, the means of acquisition of rural land is either through family inheritance or donation, or through government provision. Since land is owned by the State and the people, peasants’ title to the land is only of a usufractury nature. In the proclamation this kind of use-right is termed as ‘‘holding-right’’. Article 2(4) defines ‘‘holding right’’ in the following manner:
The right of any peasant farmer or semi-pastoralist and pastoralist to use rural land for purpose of agriculture and natural resources development, lease and bequeath to members of his family or other lawful heirs, and includes the right to acquire property produced on his land thereon by his labour or capital and to sale, exchange and bequeath same.
Hence, the law permits holders to use, lease, and bequeath (transfer to family members by way of inheritance or donation) their holding rights. Similarly, Article 8 of the same proclamation which deals with “transfer of rural land use rights” stipulates in detail the possibilities of leasing holding rights in part to investors, or jointly develop the land with investors. Surprisingly Article 8 (4) says that an investor who has leased rural land may present his use right as collateral. So, if there is someone who is willing to lend money to the investor securing his use right emanating from the lease agreement, then it is possible to hold it as mortgage collateral. The law does not, however, yet allow mortgage of the land by the holder of the right himself or by a fellow farmer who rented the land. The same also applies to sale of such land. One more limitation is that transfer of holding-rights, by way of inheritance or donation, is only applicable to family members. A family member is identified here in a different manner from that of the Federal Family Code. The proclamation defines a “family member” as “any person who permanently lives with the holder of holding rights sharing the livelihood of the later.” (Art. 2(5)). Thus, unlike the Family Codes, in which blood and marital ties are important elements to identify a family member, under the Federal Rural Land Proclamation, living under same roof and sharing the same livelihood with the holder of the right are sufficient conditions. As a result, a hired labourer who has been living for years with the farmer or a maid servant, who likewise lives with the family, may be eligible to inherit the holding rights.
Another important provision of the proclamation related to property rights is Article 7 that deals with the duration of use right. According to article 7 (1), “the rural land use right of peasant farmers, semi-pastoralists and pastoralists shall have no time limit.” This reminds us of the freehold land system of the United Kingdom where all land is symbolically owned by the Crown and the later grants rights to individuals. The essence of the freehold estate in the UK is that it defines the length of time for which the right to the land will last. The two forms of freehold estates existing today are the “life estate” and the “fee simple”. A life estate gives a right to the land for the life of the holder; whereas, a fee simple is a right capable of lasting indefinitely and which will pass on death of the holder by will or through intestacy.
From duration point of view, the Ethiopian land holding system is similar to the fee simple, in that both rights are given for an indefinite period of time. The fee simple continues notwithstanding the death of the grantee (holder of right), and notwithstanding the absence of a will, as there are rules that enable the property to pass intestate to the nearest relative. If there are no relatives within the prescribed classes, then the property will go to the Crown. Likewise, Proclamation No. 456/2005 gives a perpetual right to the right holder. Upon his/her death, the right will transfer to heirs by law, who are family members. Here one difference between the two is that in the case of fee simple the grantee/holder can transfer/inherit it by will to whomsoever he wishes it to have. But in the Ethiopian case, inheritance or donation is possible only to family members. It seems testate (inheritance by leaving a will) is void if the beneficiary is not a family member.
If the “holders are deceased and have no heirs or are gone for settlement or left the locality on their own wish….the land shall be distributed to peasants…who have no land and who have land shortage” (Art. 9(1). Under both systems, if there is no legitimate heir, the land will devolve back to the state. See also article 852 of the civil code
C. Lease Proclamation No. 272/2002
The other kind of land holding system, which prevails in urban areas of the country, is the lease system. For the last 18 years, leases have been in place as the cardinal landholding system for the transfer of urban land to users, to the extent possible and in accordance with Master Plans. Pursuant to Article 4 of the Lease proclamation, an urban land can be permitted to be held by lease:
a. In conformity with plan guidelines where such a plan exists, or, where it does not exist, in conformity with the law which Region or City government makes, as the case maybe, and
b. On auction or through negotiation; or
c. According to the decision of Region or City government.
The main point is that unlike rural farmers and pastoralists, urban dwellers are not entitled to get land for free. In reality and when municipalities have regulations, under exceptional circumstances, however, when people organize and create an association for the development of residential housing, and when the city municipality considers it as an incentive for the development and expansion of urban areas, land may be granted for free. Moreover, in small towns where the lease law is not operational land may be given free of charge.
Based on the urban development and type or sector of development, the law provides different time limits for the contract of a lease. Hence, for example, the law sets for any town a maximum ceiling period of time of:
a. up to 99 years for: housing (personal and leasable), scientific, technological study and research facilities, government offices, non-profit- making philanthropist organizations, and religious institutions;
b. up to 15 years for urban agriculture;
c. as per government agreement, for diplomatic missions and international organizations.
For the city of Addis Ababa, 60 and 50 years have been set for industry and commerce, respectively. In other cities and towns, not designated as of the grade of Addis Ababa, 80 and 70 years are stipulated for the above mentioned activities, respectively (Art. 6(1). This holding right, emanating from the lease agreement, may be terminated because of termination of contractual period or because of the need to appropriate the land for public interest, among other reasons.