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Public Purpose as a Justification for Expropriation of Rural Land Rights in Ethiopia

Published online by Cambridge University Press:  15 February 2016

Brightman Gebremichael
Brightman Gebremichael*
Affiliation:
University of [email protected]
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Abstract

Expropriation of private land rights involves two contradictory interests: there is a public need for land; and landholders expect security of tenure and protection of their private property rights. A satisfactory expropriation policy must strike a balance between these interests. Legislation must therefore only authorize the government to expropriate land rights for a clear and limited public purpose under the supervision of an independent body. The author argues that Ethiopia's rural land laws have defined the public purpose for the expropriation of rural land rights in different ways depending on the nature of the landholders. For peasants and pastoralists the public purpose requirement is defined vaguely and broadly, whereas for investors the concept is limited to projects implemented by government. The author argues that the protection of private property rights and security of tenure are further undermined by a legislative failure to authorize affected people to appeal to an independent body on the basis that the public purpose requirement has not been satisfied.

Keywords

Land expropriationpublic purposebalancing interestsrural land lawsEthiopia
Type
Research Article
Information
Journal of African Law , Volume 60 , Issue 2 , June 2016 , pp. 190 - 212
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Copyright
Copyright © SOAS, University of London 2016 

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References

1 D W/Gebriel “Compensation during expropriation” in M Abdo (ed) Land Law and Policy in Ethiopia Since 1991: Continuities and Changes (2009, Ethiopian Business Law Series vol III, AAU Printing Press) 193 at 194.

2 Food and Agricultural Organization (FAO) “Compulsory acquisition of land and compensation” (2008, Land Tenure Studies 10, Rome) at 1. The author employs these terms interchangeably.

3 Ibid.

4 K Deininger Land Policies for Growth and Poverty Reduction (2003, the World Bank and Oxford University Press) at 173.

5 Id at 170; see also FAO “Compulsory acquisition”, above at note 2 at 6.

6 Deininger Land Policies, above at note 4 at 6 and FAO “Compulsory acquisition”, above at note 2 at 6 and 45–48.

7 K Deininger and S Jin “Securing property rights in transition: Lessons from implementation of China's rural land contracting law” (policy research working paper 4447, The World Bank Development Research Group Sustainable Rural and Urban Development Team, December 2007) at 5.

8 See FAO “Compulsory acquisition”, above at note 2 at 6.

9 Id at 10; see also W/Gebriel “Compensation during expropriation”, above at note 1 at 195. In Ethiopia as well, different terminologies are adopted in legislation for the same concept. For instance, Ethiopia's Constitution and federal rural land law employ the phrase “public purpose”, whereas the rural land laws of Amhara and Benishagul Gummuz States and of the Southern Nations, Nationalities and Peoples have adopted “public service” and “public use”, respectively, for the same concept.

10 P De Wit et al “Land policy development in an African context, lessons learned from selected experiences” (land tenure working paper 14, FAO, October 2009) at 72.

11 HC Black (ed) Black's Law Dictionary (7th ed, 1999, West Publishing Co) at 1245.

12 RM Muzaffar Compulsory Acquisition of Land (1967, Lahore, Civil law Publications) at 40.

13 Dana, DA “Exclusionary eminent domain” (2009) 17/1Supreme Court Economic Review 7CrossRefGoogle Scholar at 14.

14 Id at 15.

15 GS Gulic and RT Kimbrough (eds) American Jurisprudence vol 26 (1966, The Lawyers Cooperative Publishing Company) at 665.

16 Dunning, HC “Law and economic development in Africa: The law of eminent domain” (1968) 68/7Columbia Law Review 1286CrossRefGoogle Scholar at 1298.

17 VG Ramachandran The Law of Land Acquisition and Compensation (1963) at 321.

18 M Langford and U Halim “Path of least resistance: A human rights perspective on expropriation” in FAO Land Reform, Land Settlement and Cooperatives (2008, FAO) 33 at 39.

19 FAO “Compulsory acquisition”, above at note 2 at 11.

20 Id at 12.

21 Ibid (emphasis added).

22 Ebeku, KSA “The separation of powers in local government in Nigeria” (1992) 36/1Journal of African Law 43CrossRefGoogle Scholar at 44.

23 FAO “Compulsory acquisition”, above at note 2 at 7. For instance, art 20 of Ghana's Constitution of 1992 provides: “(1) No property of any description, or interest in or right over any property shall be compulsorily taken possession of or acquired by the state unless the following conditions are satisfied: (a) the taking of possession or acquisition is necessary in the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such a manner as to promote the public benefit.” Nevertheless, this is also not an exhaustive listing, but seems to leave open the inclusion of other conditions through interpretation by an organ empowered to interpret the constitution.

24 FAO “Compulsory acquisition”, above at note 2 at 11.

25 Id at 7.

26 G Alexander The Global Debate Over Constitutional Law (2006, The University of Chicago Press) at 65.

27 Kelo v City of New London 545 US 469 at 478–80 (2005) (dissenting judgment), arguing for the “public use” requirement to be read to allow the taking of property only if “the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever”.

28 Expropriation of Landholding for Public Purposes and Payment of Compensation Proc No 455/2005, Fed Neg Gaz no 43, year 11, (Land Expropriation Proc), art 2(5).

29 FAO “Compulsory acquisition”, above at note 2 at 11.

30 Ibid.

31 Ibid.

32 Land Expropriation Proc, art 2(5).

33 FAO “Compulsory acquisition”, above at note 2 at 11.

34 Deininger Land Policies, above at note 4 at 170.

35 Ibid.

36 FAO “Compulsory acquisition”, above at note 2 at 11.

37 Deininger Land Policies, above at note 4 at 170.

38 Id at 173.

39 Harrington, MP “The original understanding of the so-called takings clause” (2002) 53/1Hastings Law Journal 345Google Scholar.

40 Kelly, DB “The public use requirement in eminent domain law: A rationale based on secret purchases and private influence” (2006) 92/1Cornell Law Review 1Google Scholar.

41 De Wit et al “Land policy development”, above at note 10 at 72.

42 Lehavi, A and Licht, AN “Eminent Domain, Inc” (2007) 107/7Columbia Law Review 1704Google Scholar at 1705.

43 Deininger Land Policies, above at note 4 at 173.

44 FAO “Compulsory acquisition”, above at note 2 at 16 and 45.

45 The other grounds are appeal against the procedures used to implement the expropriation and against the compensation value. While compulsorily acquiring land, the government may fail to follow the legislatively established procedures, including improper notice, improper processing of a compensation claim, delay in payment or payment to the wrong person, and unreasonable haste in pursuing acquisition. At the same time, appeal against the compensation value occurs when the affected people perceive that the compensation offered to them for their land right is inadequate, and they claim an entitlement to more money or another form of compensation.

46 FAO “Compulsory acquisition”, above at note 2 at 46.

47 Ibid.

48 “State constitutional limitations on the power of eminent domain” (1964) 77/4Harvard Law Review 717CrossRefGoogle Scholar at 718.

49 Proc No 1/1995, Fed Neg Gaz, 1st year, no 1.

50 Id, art 40(3).

51 Id, art 40(4) and (5).

52 Id, art 40(6).

53 Id, art 40(8).

54 Ibid.

55 Id, art 40(2).

56 Deininger Land Policies, above at note 4 at 28.

57 Langford and Halim “Path of least resistance”, above at note 18 at 41.

58 The Constitution, arts 89(8) and 90.

59 Id, art 43(1) states that “The peoples of Ethiopia … have the right to improved living standards and to sustainable development”.

60 FAO “Compulsory acquisition”, above at note 2 at 1.

61 The Constitution, art 40(3).

62 Id, art 40(8).

63 On the other hand, under the rural land laws of Amhara and Benishangul Gummuz regions (among the federating states of the country), the concept of “public purpose” has seemingly been defined in a narrower sense compared to the federal legislation. In the same fashion, the laws of both regions have employed the terminology of “public service”, defining it as follows: “service given to the public directly or indirectly, such as government office, school, health service, market service, road, religious institutions, military camps, and the likes, and includes activities assumed important to the development of people by the regional government and to be implemented on the rural land”: Revised Amhara National Regional State Rural Land Administration and Use Proclamation, Proc No 133/2006, Zikre Hig, 11th year, no 18, art 2(15) and Benishangul Gummuz National Regional State Rural Land Administration and Use Proclamation, Proc No 85/2010, art 2(24). Here, the legislation of the two regions has defined the concept of “public service” in an illustrative manner providing some examples of public service. However, again in this definition the power of determining the other “public services” is left to the respective region's regulatory body based on the standard of “direct or indirect benefit to the society” without involving citizens through the use of public hearings in the process. Thus, the “indirect benefit of society” standard employed in both laws would enable the governments of these regions compulsorily to acquire rural land held by peasants for transfer to investors.

64 Land Expropriation Proc, art 2(5).

65 World Bank Options For Strengthening Land Administration Federal Democratic Republic Of Ethiopia (report no 61631-ET) at 3.

66 FAO “Compulsory acquisition”, above at note 2 at 12.

67 World Bank Options, above at note 65.

68 See W/Gebriel “Compensation during expropriation”, above at note 1 at 196 and Land Expropriation Proc, art 3(1).

69 Langford and Halim “Path of least resistance”, above at note 18 at 39.

70 The Constitution, art 40(6) and all rural land laws of the federal and state governments indicate that investors can acquire rural land use rights by means of a lease from the government.

71 Land Expropriation Proc, art 3(1) and (2).

72 The Oakland Institute Understanding Land Investment Deals in Africa (country report: Ethiopia, 2011) at 1.

73 Rural Land Administration and Land Use Proc No 456/2005, Fed Neg Gaz year 11, no 44 (Rural Land Proc), art 5(4).

74 See W/Gebriel “Compensation during expropriation”, above at note 1 at 196 and Land Expropriation Proc, art 3(1). W/Gebriel has tried to show the problems in the valuation system and the amount of compensation awarded for affected people.

75 Proclamation to Amend the Proclamation No 56/2002, 70/2003, 103/2005 of Oromia Rural Land Use and Administration, Proc No 130/2007, Megelata Oromia 15th year, no 12 (Oromia Rural Land Proc), art 13(2).

76 Id, art 11(1).

77 The SNNP Regional State Rural Land Administration and Utilization Proclamation, Proc No 110/2007, Debub Negarit Gazeta 13th year, no 10 (SNNP Rural Land Proc), art 2(23).

78 The SNNP Regional State Rural Land Administration and Utilization Regulation, Council of Regional Government Reg No 66/2007, Debub Negarit Gazeta 7th year, no 66, art 13(3)(a).

79 The Constitution, art 52.

80 White, CMN “A survey of African land tenure in Northern Rhodesia” (1959) 11/4Journal of African Administration 171Google Scholar at 172.

81 Rural Land Proc, art 17(1).

82 The Constitution, art 50(9).

83 Rural Land Proc, art 17(1).

84 The Constitution, art 43(2).

85 Oromia Rural land Proc, art 13(2) and SNNPR Rural land Proc, art 13(11).

86 Amhara National Regional State Rural Land Administration and Use System Implementation, Council of Regional Government Reg No 51/2007, Zihikre-hig, year 12, no 14 (Amhara Rural Land Reg), art 29(2).

87 FAO “Compulsory acquisition”, above at note 2 at 12.

88 Id at 5 and 55.

89 It is again difficult to assume that courts are sufficiently independent and competent enough to handle the public purpose issue if allowed to do so in Ethiopia.

90 Land Expropriation Proc, art 11(1) and (4); Amhara Rural Land Reg, art 33(1) and (5); and Benishangul Gummuz Region's Draft Rural Land Administration and Use Regulation, drafted in 2010, art 31(1) and (5).

91 Amhara Rural Land Reg, art 29(5).