Reforming Ethiopia's Expropriation Law

Author:Muradu Abdo
Position:Muradu Abdo (LL.B, LL.M, PhD), Assistant Professor, School of Law, Addis Ababa University, email: muradu1@yahoo.co.nz.
Pages:301-340
SUMMARY

Ethiopia is increasingly using expropriation as the single most important device to take land particularly from small landholders to supply it to corporate farmers and industrialists with a declared intention of boosting economic growth. This is happening in the context where expropriation laws are inadequate to protect peasants and pastoralists. The state is not paying cash compensation for land ... (see full summary)

 
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Reforming Ethiopia’s Expropriation Law
Muradu Abdo
Abstract
Ethiopia is increasingly using expropriation as the single most important device
to take land particularly from small landholders to supply it to corporate
farmers and industrialists with a declared intention of boosting economic
growth. This is happening in the context where expropriation laws are
inadequate to protect peasants and pastoralists. The state is not paying cash
compensation for land use rights, compensation for property on the land is
paltry, and uniform rehabilitative schemes are absent. There are also no
sufficient administrative and judicial mechanisms in place to restrain the
government in exercising its power of expropriation. This is lax expropriation
system that runs counter with the country`s Constitution which pledges tenure
security for small landholders. This article recommends enhanced judicial
scrutiny of expropriation, recasting land use rights as human rights, and
emphasis on the quality of projects that necessitate expropriation. Ethiopia
should expedite these and related measures in the interest of justice, securing
the livelihoods of the masses and national stability.
Key terms
Expropriation, public purpose, compensation, land use rights and rehabilitation
DOI http://dx.doi.org/10.4314/mlr.v9i2.3
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Introduction
Ethiopia`s recent economic growth has generated unprecedented demands for
land for urban expansion, infrastructure, manufacturing, corporate farming and
mining. The state is trying to meet these rising demands through two main
routes. The first is through invoking the ‘empty land’ narrative (i.e., unoccupied
land) which, inter alia, entails the designation of communal lands as
‘government owned land’ in order to render use of expropriation unnecessary.
Muradu Abdo (LL.B, LL.M, PhD), Assistant Professor, School of Law, Addis Ababa
University, email: <muradu1@yahoo.co.nz>. I thank the anonymous reviewers for
their comments and suggestions.
This Article is based on the following previous works of the author: A Textbook on
Ethiopian Property Law (2012) pp. 352-402; “Legislative Protection of Property
Rights in Ethiopia: An Overview” (2013), Mizan Law Review, vol. 7:2, pp. 165-206;
and “State Policy and Law in Relation to Land Alienation in Ethiopia” (2014), pp.
147-173, (PhD Thesis, Warwick University) <http://go.warwick.ac.uk/wrap>.
302 MIZAN LAW REVIEW, Vol. 9, No.2 Dece mber 2015
The other is use of the power of expropriation which focuses on land taking
primarily from smallholders. This article focuses on the latter.
In Ethiopia, there is lack of comprehensive data on how frequently and
extensively, for what purposes as well as with what impact the state is actually
using its power of expropriation. This hampers an empirically grounded study of
expropriation.1 However, legal research through the analysis of Ethiopian law of
expropriation, and its substantiation by various research findings and some
fieldwork reveal a trend that raises concern. The trend implies a reordering of
the land tenure system of Ethiopia increasingly in favor of capital.2 This implies
a remaking of the extant land tenure system which is dominated by smallholder
agriculture through expropriation of land from such smallholders for ‘public
purpose’ to lease it out to capital. This in turn suggests the beginning of a shift
from a land tenure system dominated by subsistence farm holdings to a system
whereby land is increasingly deployed to the service of commercial farmers and
industrialists with a declared purpose of enhancing economic development. This
shift contradicts state policies and laws that at the same time pledge to enhance
the tenure security of small landholders through the ‘land for all’ narrative.
The first section considers the present state of Ethiopian expropriation law
and practice in light of three basic ingredients of expropriation; namely, public
1 This is true in other jurisdictions as documented by Antonio Azuela and Carlos Herrera-
Martin (2009), “Taking Land around the World: International Trends in Expropriation for
Urban and Infrastructure Projects” <DOI 10.1007/978-1-4030-8862-9_13>, pp. 337, 342
& 359 (accessed March 13, 2011). In the Ethiopian case, the following recent studies with
some empirical element should be credited: Daniel W/Gebriel (2009a) infra note 21;
Girma Kassa (2011) infra note 21; Belachew Yirsaw, (2013) infra note 47; Daniel
Weldegebriel (2014d) infra note 47; Anthony Harris (2015) infra note 76; Daniel
Woldegbriel (2013c) infra note 139.
2 A rise in the use of expropriation by the Ethiopian state is contrary to what has been
asserted as a decline in some other jurisdictions. For example, Antonio Azuela and Carlos
Herrera-Martin, note 1, pp. 337, 344, 347, 350-351 & 358, have stated that the power of
eminent domain has generally declined globally in the sense that states are facing
difficulties in expropriating private property because of structural adjustment programs,
social resistance (motivated by opposition to the very idea behind certain mega projects,
contesting public purpose or for cultural reasons, general anti-expropriation public
sentiment, and a strong tradition of an independent and assertive judiciary, rising
expropriation costs to the state due to improved compensation or question of post-
expropriation rehabilitation and strict legal restrictions and pro-investor international
commitment of the concerned country). Such decline is reflected legislatively by
demanding governments to pay market value of the property they take, and subjecting
them to more stringent procedures, even if such trends do not include the definition of
public purpose. Contrary to th ese developments elsewhere, exprop riation in the Ethiopian
context and broadly in the context of the so called emergent economies is well alive and in
fact on the rise generally without significant constraints.
Reforming Ethiopia’s Expropriation Law 303
purpose, compensation and legal recourse. The section also provides a brief
discussion of incompatibilities between federal and regional expropriation laws,
and between bilateral investment treaties and the expropriation law of the
country. The second section examines the ‘transformative expropriation’
purportedly advanced by the Ethiopian government. That is, it presents the
manner in which the state explains its expropriation law including the
underlying thinking behind Ethiopia`s expropriation law. The third section
considers three forms of reforming Ethiopia`s expropriation regime. These are
judicial scrutiny, recasting land use rights as human rights and post-
expropriation development.
These three sections are informed by the lessons that Ethiopia can draw from
comparative experiences of India, Ghana and Kenya. These countries are chosen
because they are predominately agrarian countries with massive smallholder
population, and they have registered recent economic growth that has enhanced
the demand for land which primarily comes from smallholders via
expropriation. Law reforms in these jurisdictions also involve land matters
including issues of eminent domain that give due emphasis to the need for
adequate compensation and effective access to regular courts.3
The overall argument of the article is that current expropriation laws are
inadequate to protect small landholders because they over-privilege economic
development projects. This is related with the fact that the Ethiopian state is not
legally obliged during expropriation to pay compensation for land use rights nor
is it obligated (or at times not feasible) to give a substitute land. It is also argued
that compensation for property on the land is inadequate and that legally and
institutionally backed uniform rehabilitative schemes are not built into
expropriation measures. The discussion and analysis in the following sections
show that legal mechanisms to harness the government in exercising its power
of expropriation are insufficient. This brings Ethiopia close to countries with
“high economic growth rates in which strong states, with corresponding weak
rule of law, make extensive use of the power of eminent domain…” 4
3 In the case of Ghana, the Report of the Constitution Review Commission of Inquiry
(2011), <www.ghana.gov.gh/images/documents/crc_report.pdf> (accessed 12 August,
2014) has devoted one chapter to land and natural resources, where the issue of adequate
compensation is raised and got accepted by the Government of Ghana in its White Paper
on the Report the Constitution Review Commission of Inquiry (2012),
<ghanaoliwatch.org/images/Articles/crc_white_paper_report.pdf> (accessed 12 August,
2014) that also set up a Constitution Review Implementation Committee. Kenya in fact
has gone ahead of Ghana in commissioning land matters, land policy formulation and
adoption in 2009, setting up a constitution review commission, followed by an adoption
of a revised constitution in 2010 and then enactment of three land acts in 2012.
4 Antonio Azuela and Carlos Herrera-Martin, supra note 1, p. 334.

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