Res Nullius vs. Res Communis in Matters of Communal Lands of Smallholder Farmers in Ethiopia

Author:Daniel Behailu Gebreamanuel - Getiso Detamo Mekebo
Position:Daniel Behailu Gebreamanuel (PhD), Asst. professor of law, Hawassa University, Email: <danielbehailu@yahoo.com> - Getiso Detamo Mekebo (LL.M). The coauthor has collected the data for this article and drafted sections 6 and 7 of the article. Email: <getdetamo@gmail.com>.
Pages:99-126
SUMMARY

Communal land is among the key factors in the enhancement of rural livelihood because it enables mixed farming practices. Although communal lands are prime sources of livelihood in rural farming communities, empirical evidence shows gaps in their legal recognition and protection in Ethiopia. There are encroachments which include government intrusion, informal land sale, distribution, and handing... (see full summary)

 
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Res Nullius vs. Res Communis in Matters of
Communal Lands of Smallholder Farmers
in Ethiopia
Daniel Behailu Gebreamanuel and Getiso Detamo Mekebo**
Abstract
Communal land is among the key factors in the enhancement of rural livelihood
because it enables mixed farming practices. Although communal lands are prime
sources of livelihood in rural farming communities, empirical evidence shows gaps
in their legal recognition and protection in Ethiopia. There are encroachments
which include government intrusion, informal land sale, distribution, and handing
out land (selling communal land in informal markets) as Kebele‟s contribution for
development projects. These factors entrench poverty by sidelining the rural poor at
the grassroots whose life is anchored on these lands. These problems also entail
violation of human rights of the rural population. This article interrogates the
misconception which tends to consider communal lands (customary land tenure) as
res nullius (ownerless property) while such lands are in fact r es communis
(community property). The article uses the Hadiya Zone as a case study. It is argued
that there is the need for the effective implementation and amendment of land laws
which require political will to ensure tenure security of communal lands thereby
securing and diversifying the livelihoods of poor smallholder rural farmers and
ensuring human rights.
Key terms
Communal lands · Livestock · Poverty · Livelihoods · Rural Poor · Tenure
security
DOI http://dx.doi.org/10.4314/mlr.v12i1.4
Received: 13 February 2018 Accepted: 28 September 2018
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
Daniel B ehailu Gebreamanuel (PhD), Asst. professor of law, Hawassa University, Email:
<danielbehailu@yahoo.com>
** Getiso Deta mo Mekebo (LL.M). The coauthor ha s collected the data for this article a nd
drafted sections 6 and 7 of the article. Email: <getdetamo@gmail.com>.
100 MIZAN LAW REVIEW, Vol. 12, No.1 September 2018
Introduction
In Ethiopia, communal land rights and attendant matters are largely discussed in
terms of pastoral society or semi-pastoral society. However there are communal
lands among the smallholder farmers as well. Hadiya Zone (in SNNPRS) is
taken for the purpose of case study so that it can give insight to the problems
discussed in this article. There are gaps in the legal regime in the protection of
communal land rights thereby undermining livelihood diversification. Little
attention is given to protect communal lands among smallholder farmers, and
the steady erosion of customary rules and institutions call for serious reform.
Land is among the most important assets for the rural population.1 It is vital
source of livelihood and can be part of cultural and social identities.2 Especially,
it is the sole source of livelihood for the overwhelming majority of the rural
poor and is the most crucial medium to alleviate rural poverty.3According to
World Bank and IFAD (International Fund for Agricultural Development)
report, out of the total population of third world countries, 75% are rural
dwellers.4 In Ethiopia, more than 83% of the total population are rural dwellers.5
Land in Ethiopia, for rural residents, is more than source of livelihood.6
Landlessness can put one‟s life into jeopardy and erode social identity
(personhoods).7
1 Desalegn Rahmato (2008), The P easant and The State: Studies in Agraria n Cha nge in
Ethiopia 1950s 2000s (Create Space Independent Publishing Platform) 1-15; Berhanu
Abegaz (2004), „Escaping Ethiopia`s Poverty Trap: The Case for a Second Agrarian
Reform‟ Journal of Modern African Studies, No.42; John W. Bruce and Others (2006),
Land Law Reform, Achieving Development Policy Objectives (T he International Bank for
Reconstruction and Development / The World Bank) 1-5.
2 Rachael S. Knight (2006), „Statutory Recognition of Customary Land Rights in Africa: An
Investigation into Best Practices for Law Making and Implementation‟ (FAO 2010) 1 -3.
3 Muradu A. Srur, (2015) State Policy and Law in Relation to Land Alienation in Ethiopia
(University o f War wick, School of Law, PhD Thesis 2014) 1-3; Muradu A. Srur,
„Reforming Expropriation Law of Ethiopia‟, Mizan Law Review, Vol. 9, No.2, 301.
4 2017 World Bank Poverty Assessment, infra note, 41; see also, Klauis Dieninger (2011)
and others, „Rising Global Interest in Farm Land: Can it yield Sustainable and Equitable
Benefits? (The World Bank) 1-7.
5 Daniel Behailu, (2015) Transfer of La nd Rights in Ethiopia: Towards Sustainable Policy
Fra me Work (Eleven International Publishing); Richard Pankhurst (1966), State a nd Land
in Ethiopian Histor y, Preface (Central Printing Press) 1-10.
6 Daniel Behailu Geberamanuel and Gemmeda Amelo Gurero, (2017),„The Enigma of
Informal Rural Land Deals In E thiopia: Evidence from Peri- urban Areas of Hawassa City,
Hara maya Law Review 6, 43-66
7 Daniel W. Ambaye, ( 2012), „Land Rights in Ethiopia: Ownership, Equity, and Liberty in
Land Use Rights‟, FIG Working Week Rome, Italy, 6-10, pp. 1-5.

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