Trust and Distrust Approaches in the Constitutional Lawmaking of Rural Land rights in Ethiopia 349
done by recognizing the property rights clause in general without expressly
dealing with land rights.2 In some countries, Constitutions do not express the
recognition of property rights, let alone land rights specifically.3 In countries
where there is constitutional recognition of property rights, the extent of
specificity of the Constitution varies in dealing with property rights. There is
variability in the manner property rights are regulated across constitutions.
Depending on the general approach pursued by drafters of constitutions, a
highly “codified” or detailed approach to constitutional drafting may be used, or
the drafters may rely on a more “framework” style approach;4.
It is uncommon to find a Constitution that specifically recognizes and defines
actual property rights in land. Usually, constitutional laws either state the nature
of ownership of land;5 or the types of land tenure systems adopted which may
include the possibility of deprivation of land rights for public interest and
defining the structure and power of land administration organ and tribunals;6 or
setting social justice policy objectives revolving around land.7 However,
Ethiopia's Constitution, after distinguishing the nature of land ownership
adopted, i.e., ownership by the state and people,8 further grants actual rights to
rural land specifically.9 Moreover, the Constitution goes to the extent of
determining the manner of access to rural land rights10 and defines the nature of
property rights in land.11
2 Gregory S. Alexander (2009), “Property Rights”, in Vikra m David Amar and Mark V.
Tushnet (eds), Global P erspectives on Constitutional Law, Oxford University Press, New
York, p. 59.
3 A case in point is the experience of Canada and New Zealand.
4 Rosalind Dixon (2015), “Constitutional Drafting and Distrust”, Inter national Journal of
Constitutional Law, Vol. 13, Issue 4 (819–846), p. 820.
5 See for instance, The Constitution of the Republic of Rwanda of 20 03 Revised in 2015,
Official Gazette No. Special of 24/12/2015, Art. 35.
6 See for instance, Constitution of the Republic of Uganda (1995), Art. 237-243.
7 See for instance, Constitution of the Republic of So uth Africa (1996), Constitution
Seventeenth Amendment Act of 2012 – Government Notice 72 in Government Gazette
36128, dated 1 February 2013. Commencement date: 23 August 2013 [Proc. No. R35,
Gazette No. 36774, dated 22 August 2013, Art. 25(4/a), (5) and (6).
8 Constitution of Federal Democratic Republic of Ethiopia (FDRE) (1995), Art. 40(3).
9 Montgomery Wary Witten (2007), “The Protection of Land Rights in Ethiopia”, Afrika
Focus, Vol.20, No. 1-2, p. 155.
10 See FDRE Constitution, supra note 8, Art. 40(4) and (5) about peasants‟ and pastoralists‟
free access to rural land rights respectively and Art. 40(6) about private investors access to
land rights through payment arrangements.
11 See Id Art. 40(5) about the pastoralists‟ property rights in land – use rights; Art. 40(3) in
conjunction with Art. 35(7) about p easants‟ property rights in land – resembling to