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.
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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)
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. A PROCLAMATION TO PROVIDE FOR THE LEGISLATIVE PROCEDURE OF THE HOUSE OF PEOPLES' REPRESENTATIVES12/16/2011 A PROCLAMATION TO PROVIDE FOR THE LEGISLATIVE PROCEDURE OF THE HOUSE OF PEOPLES' REPRESENTATIVES
WHEREAS, Article 55 of the Constitution of the Federal Democratic Republic of Ethiopia provides that the House of Peoples' Representatives has the power to legislate within the bounds of the jurisdiction of the Federal Government; WHEREAS, this complete power to legislate is to be exercised in accordance with a procedure followed by the House, having consulted upon and consented to it; WHEREAS, the legislative procedure of the House ought to emphasize on the democratic tenets embodied in the Constitution and its modus operandi ought to be carefully devised with transparency and comprehensibility to the public in mind; NOW, THEREFORE, in accordance with Articles 59(2) and 55(1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: PROCLAMATION NO 147/1998
A PROCLAMATION TO PROVIDE FOR THE ESTABLISHMENT OF COOPERATIVE SOCIETIES WHEREAS, it has become necessary to establish cooperative societies which are formed by individuals on voluntary basis and who have similar needs for creating savings and mutual assistance among themselves by pooling their resources, knowledge and property; WHEREAS, it has become necessary to enable cooperative societies to actively participate in the free market economic system; WHEREAS, it has become imperative to issue a comprehensive legislation by which cooperative societies are organized and managed in order to achieve the above mentioned objectives; NOW, THEREFORE, in accordance with Article 55 (1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows: 1.3.3 Process of Forming Administrative Contracts under the Proclamation
Under private contracts, parties have at every liberty to choose their would be contracting party. This being not the case under administrative contracts the manner of selecting the prospective contracting party will have in view such considerations as ensuring the economic and efficient use of public fund and making public procurement in a manner which is fair, transparent and non discriminatory (Preamble of Proclamation No.430/2005). Administrative contracts, therefore, have this view in advance thereby limiting contracting parties’ from freely picking up their prospective counter parts. To begin with our discussion, it is good to first understand what procurement is per proclamation No 430/2005. Accordingly, “procurement” is to be understood as “the purchasing, hiring or obtaining by any other contractual means goods, works and services.” [Art.2 (e) of the proclamation] We should therefore understand procurement in a wider sense to include not only purchasing but also hiring and any other contractual means enabling the acquisition of goods, works and services. If this is procurement, what are the means of procurement? The rule here is “open bidding”. That is why Art. 25(1) prescribes “[e]except as otherwise provided in this proclamation, the procuring entity shall [use] open bidding as the preferred procedure of procurement.” The otherwise provisions of the proclamation are enumerated under Art 25(2) of the same. Next to this, upon delimiting the scope of application of the proclamation, Art.3.(2) takes into account another consideration that authorizes the use of a different procedure of procurement. This is obviously true in purchase of goods, services or works that involves “national security or defense”. But should all procurements that involve the above entities be undertaken following a different procedure than open bidding? At least six modalities of procurement including open bidding are recognized by the proclamation. These are available under Articles 25-30. They are:
Administrative Contracts in General-The Law of Administrative contaracts Teaching Material unit one11/3/2011 Administrative Contracts in General
Introduction This unit is intended to acquaint students with the nature generally of and the formation and object of administrative contracts. Administrative contracts are very much important in ETHIOPIA under current settings .some people say it is bad to have too much interference in the private sphere in the era of privatization. The government should regulate the market being another argument. Leaving aside the literary arguments, legally Ethiopia has devoted one title in its civil code to specifically deal with administrative contracts. In addition to this, we have procurement proclamation to enable equitable, efficient and effective procurement. In this section, we will have something to say on Ethiopian administrative contract. Specific Objectives At the end of the unit students will be able to define administrative contracts Ø form administrative contracts. Ø distinguish administrative contracts from other types of contracts. Ø understand the views the two prominent legal systems have towards administrative contracts Ø Know the historical setting of administrative contracts. 1.1 Brief Genesis of Administrative Contracts Though hard to locate the exact time, one can still validly locate philosophical and economic backgrounds of administrative contracts. Back in the days of Adam Smith who preached the laissez faire argument with the effect of diametrically insulating the state from the market, the role of the state was exponentially limited to enabling the state to undertake only its “traditional” functions. As per Adam Smith, the state was advised to let the market alone. The state should put its hands off the market but without forgetting to create internal peace and order, facilitating the market by formulating a peaceful environment and without directly intervening in the market. To this end, the state should establish institutions like the police, courts and parliaments. Such an impact on the economy as caused by leaving the market alone however would not outlive such a condition as the Great Depression. The Great Depression proved the fact that markets cannot operate by their forces alone-rather to some extent the state should regulate the market. Next generation political economists devised the WELFARE state where we have a state which regulates the market- that provides public services such as education ,health, transport, water, light ,sanitation, recreation etc. Thus, apart from its traditional functions, the state was also conferred with those additional functions listed above. Basically the state used to institutionalize its coercived force to carry out its protection function. But with the growth in the type and nature of functions and because the appropriate way of attaining goals as the case may be is entering into contract. Either by its coercive force or its right to enter in to contract the state strives to carry out its ever growing functions. To this end of utilizing its contracting capacity, government enters into a special type of contract called administrative contract. Note that it is from this background, apart from other things, that administrative contracts derive their peculiar feature. |
AuthorAbrham Yohannes Archives
February 2012
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