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Published online by Cambridge University Press: 18 September 2019
Since 2008 the Ethiopian government has allocated vast tracts of land, particularly in the Gambella and Benishangul-Gumuz regions, to agricultural commercial actors with little or no participation from indigenous communities. The marginalization of indigenous peoples in this process primarily emerges from the government's very wide legislative discretionary power regarding decision-making in the exploitation of land. The government has invoked constitutional clauses relating to land ownership and its power to deploy land resources for the “common benefit” of the people, to assert the consistency of this discretionary power with the Ethiopian Constitution. This article posits that the legislative and practical measures taken by the government that marginalize these indigenous peoples in decisions affecting the utilization of land resources are incompatible with their constitutional right to self-determination. Further, it posits that the government's use of the constitution to justify its wide discretionary power in the decision-making process relating to land exploitation is based on a misreading of the constitution.
LLB (Bahir Dar University, Ethiopia), LLM (University of Pretoria, South Africa), PhD (Monash University, Australia). Former assistant professor, Bahir Dar University, Ethiopia. This article is extracted from the author's PhD thesis, supervised by Emmanuel Laryea (associate professor) and Justin Malbon (professor). The author is grateful to his supervisors and the anonymous reviewers for their constructive comments on an earlier draft of this article.
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9 World Bank “Operational manual: OP 4.10 - Indigenous peoples” (July 2005, rev April 2013), para 2.
10 Id, para 4.
11 ACHPR Report of the African Commission's Working Group of Experts on Indigenous Populations / Communities, adopted at 34th session, 20 November 2003, at 92–93.
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25 Transitional Charter, art 18.
26 Id, preamble, para 2.
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28 Id, art 2(b).
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32 Id, art 47(1) and (2).
33 Id, art 13(2).
34 The Saramaka People v Suriname, preliminary objections, merits, reparations and costs, Inter-American Court of Human Rights, November 2007 (Saramaka), para 103.
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36 Adopted 16 December 1966, GA res 2200A (XXI), entered into force 23 March 1976.
37 Adopted 16 December 1966, GA res 2200A (XXI), entered into force 3 January 1976.
38 Adopted 27 June 1981, OAU doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982), entered into force 21 October 1986.
39 Ethiopia ratified the ICCPR and ICESCR in 1993. See: <http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=ETH&Lang=EN> (last accessed 28 July 2019). Ethiopia ratified the African Charter in 1998; see the ratification table at: <https://www.achpr.org/ratificationtable?id=49> (last accessed 14 August 2019).
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45 CESCR “Concluding observations: Sweden”, UN doc E/C.12/SWE/CO/5 (2008), para 15.
46 Comm no 276/2003, ACHPR. The decision was adopted by the ACHPR in May 2009 and approved by the African Union at its January 2010 meeting.
47 Id, para 16.
48 Id, para 239.
49 Id, para 251.
50 Id, paras 241, 246 and 251. The ACHPR found the Kenyan government to have violated art 17(2) and 17(3) of the African Charter. These provisions deal with the cultural, moral and traditional rights of individuals and communities. Even though the cultural right is apparently framed as an individual, rather than collective, right, the ACHPR noted that it also applies to groups of people: id, paras 241 and 246.
51 Judgment of the African Court, 26 May 2017.
52 Id, paras 6–10.
53 Id, para 180.
54 Id, para 183.
55 Id, para 190.
56 Judgment of 31 August 2001, IACtHR.
57 Id, para 149.
58 Merits, reparations and costs, 2005, IACtHR, para 216.
59 Merits, reparations and costs, 2010, IACtHR, para 51.
60 Id, para 86.
61 M Srur State Policy and Law in Relation to Land Alienation in Ethiopia (2014, PhD thesis, University of Warwick) at 249.
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65 Ibid.
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69 Adopted 13 September 2007, GA res 61/295, 107th plenary meeting.
70 UNDRIP, art 26.
71 See both ICCPR and ICESCR, art 1; African Charter, art 21.
72 The ACHPR made this observation when analysing the right to dispose of natural resources: Endorois, above at note 46, paras 266–68. However, the ACHPR provided details of the procedural safeguards as part of its analysis of the Endorois people's right to development: id, paras 289–97. By so doing, it linked the right to dispose of natural resources with the right to development.
73 Id, para 291.
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78 For instance, in Saramaka, the Suriname government argued that land ownership is vested in the state and, therefore, the state can grant land concessions in the territory of indigenous peoples: Saramaka, above at note 34, para 124. The Ethiopian government also argues that communal land is owned by the government, so it can transfer such land to private actors when it deems it necessary.
79 The Constitution, art 40(3).
80 Rural Land Proc, art 5(3). The Amharic version of the Rural Land Proc seems to be more sweeping in terms of proclaiming the government's ownership of land, in the sense that it vests all land ownership in the government, in contrast to the English version, which limits the ownership to rural land. The introductory phrase of the Amharic version of art 5(3) reads (author's translation): “Government being the owner of land”, while the English version states: “Government being the owner of rural land”.
81 Id, preamble, para 6.
82 For further details on this, see Hindeya “An analysis of how”, above at note 2 at 22–23. See also generally Makki, F “Development by dispossession: Terra nullius and the social-ecology of new enclosures in Ethiopia” (2014) 79/1 Rural Sociology 79CrossRefGoogle Scholar.
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85 Srur State Policy and Law, above at note 61 at 209.
86 The Constitution, art 40(3).
87 Id, art 40(6).
88 Id, art 40(3) and (6).
89 This issue has not been entertained by the House of the Federation, the organ responsible for interpreting constitutional disputes in Ethiopia.
90 Damtie “Land relations and its relations”, above at note 84 at 32.
91 Endorois, above at note 46, para 204.
92 E Daes “Indigenous peoples’ permanent sovereignty over natural resources” (lecture delivered at the National Native Title Conference, Adelaide, 3 June 2004), available at: <https://www.humanrights.gov.au/news/speeches/indigenous-peoples-permanent-sovereignty-over-natural-resources> (last accessed 28 July 2019).
93 The Constitution, art 89(5).
94 Srur State Policy and Law, above at note 61 at 299.
95 Id at xiv.
96 For further details, see Hindeya “An analysis of how”, above at note 2.
97 Srur State Policy and Law, above at note 61 at 165.
98 Regional states are given the power to administer land in their respective regions under art 52(2)(d) of the Constitution.
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101 Anaya Indigenous Peoples, above at note 99 at 31.
102 Ibid.
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104 Daes “Indigenous Peoples’ permanent sovereignty”, above at note 92.