Trust and Distrust Approaches in the Constitutional Lawmaking of Rural Land Rights in Ethiopia: Nature, Drafting and Implications
| Author | Brightman Gebremichael |
| Position | Brightman Gebremichael: LL.B, and LL.M in Environmental and Natural Resources Law from Bahir Dar University. LL.D University of Pretoria. Assistant professor of law Institute of Land Administration, Bahir Dar University. Email: bgbmichael@gmail.com The author thanks Prof. Danie Brand, Eden Fesseha, Dr. Muauz Gidey, Dr. Elias Nour and the... |
| Pages | 348-370 |
348
Trust and Distrust Approaches in the
Constitutional Lawmaking of Rural Land
Rights in Ethiopia:
Nature, Drafting and Implications
Brightman Gebremichael
Abstract
Although rural land rights are recognized in the 1995 Constitution of the Federal
Democratic Republic of Ethiopia (FDRE), the academic discourse and policy
dialogues on the issue are still underway. However, these dialogues do not
comprehensively cover the provisions in the Constitution concerning rural land
rights, the modus opera ndi in the drafting approaches of the provisions and their
legal implications. Hence, by analyzing the different sections and articles of the
Constitution, this article seeks to examine the extent to which rural land rights are
defined in the Constitution and the legal implications of its constitutional
recognition. This article examines the compatibility of the approach adopted by
Ethiopian Constitution makers with the Trust and Distrust approaches propounded
by Rosalind Dixon for drafting of constitutional provisions on rural land rights.
Dixon‟s view is reviewed before considering it in relation with compatibility issues.
Key terms
Rural land rights · Constitutional drafting · Nature of land rights · Ethiopia
DOI http://dx.doi.org/10.4314/mlr.v12i2.5
This article is licensed under a Creative Commons Attribution-NonCommercial-
NoDerivs (CC BY-NC-ND)
_____________
Introduction
Most written Constitutions of nations are, inter alia , “devoted to establishing
and maintaining a system for the allocation (and reallocation) of power over
wealth among individuals, groups and the state.”1 Among others, this may be
Brightman Gebremichael: LL.B, and LL.M in Environmental and Natural Resources Law
from Bahir Dar University. LL.D University of Pretoria. Assistant professor o f law
Institute of Land Administration, Bahir Dar University. Email: bgbmichael@gmai l.com
The author thanks Prof. Danie Brand, Eden Fesseha, Dr. Muauz Gidey, Dr. Elias Nour
and the anonymous reviewers for their helpful comments on the initial draft of the
manuscript.
1 John Henry Merryman (1973), “Ownership and Estate (Variations on a Theme by
Lawson)”, Tul. L. Rev., Vol. 48, p. 916.
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
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