Ethiopia, its Land Laws and the Potential to Improve Lives

Rory Pulvino, Associate Editor, Michigan Journal of International Law

The right of security of land tenure has vast implications for the possible improvement of those living in developing countries. This right has been interpreted as the right of every person and group to effective protection by the state against forced evictions, the possibility of selling and transferring, and the possibility of utilizing land as credit.[1] By securing land tenure people are more confident in and more able to assert other ‘sticks’ in the bundle of land rights such as the “way in which the land may be used, the profit that may be derived from it, or the manner in which some or all of the rights may be disposed of.”[2] Security of tenure begins with recognition by outside parties, including the state, of the rights of use, ownership and possession to a parcel of land. This recognition can be and likely must be secured through a variety of registration systems ranging from the informal/customary to the formal.[3] State recognition of land registration strengthens tenure security, a right secured under the right to adequate housing[4] and may be the beginning of strengthening ties of people to their land which has vast implications for alleviating poverty.[5] In 1948 the General Assembly of the UN adopted the Universal Declaration on Human Rights[6] which included the right to adequate housing and was reaffirmed in the International Covenant on Economic, Social, and Cultural Rights.[7] Though not legally binding, the right to adequate housing has relevance “to all States, as they have all ratified at least one international treaty referring to adequate housing and committed themselves to protecting the right to adequate housing through international declarations, plans of action or conference outcome documents”.[8] The United Nations Committee on Economic, Social, and Cultural Rights has outlined how the right to adequate housing should be interpreted, offering guidance to States on their obligations under adoption of the right in various treaties.[9] In 1991, OHCHR, in its General Comment 4, the office outlined that the right to adequate housing should be interpreted broadly and includes the legal security of tenure.[10] Despite these principles and commitments, millions living in developing countries such as Ethiopia lack legal security of tenure, which not only violates these commitments, but also contributes to the continuing impoverishment of the majority of Ethiopians. Land tenure security has recently become a hot topic throughout the development community for a variety of reasons ranging from the fear of large, often illegal, land grabs,[11] but also because of the potential for poverty reduction that comes with local land registration.[12] The benefits derived from strengthening land tenure goes beyond merely giving people greater access to credit. It has potential to help environmentally sustainable development through biodiversity, help food security,[13] and to secure the cultural heritage of minority populations.[14] Land registration and securing tenure has the potential to reduce conflict within nation states, to facilitate reconciliation in post-conflict areas.[15] Finally, recognizing a woman’s right to own land has significant benefits for developing communities as “families tend to be better fed; better educated and healthier […] Daughters tend to marry at an older age and wives tend to suffer less incidents of domestic violence”.[16] Even with such potential benefits, countries such as Ethiopia are still searching for ways to take advantage of this low hanging development fruit. Like many countries, Ethiopia has a convoluted and conflict filled past that has created a complicated history of land tenure and where “politics has played [a] crucial role in determining property rights.”[17] Ethiopia’s current land tenure position is representative of many developing countries that have a conflict ridden past, experiments with socialism, and a diverse population full of political winners and losers. To understand the current state of Ethiopian land law and the government’s position, it is important to have a basic understanding of Ethiopian history. Under the imperial rule of Haile Selassie, land within Ethiopia was mostly owned and controlled by large families that had disparate impacts in different parts of the country.[18] In the wealthier northern part of the country, land was shared more equitably between families, whereas in the politically weak south land became concentrated in wealthy, politically connected northern families who created exploitative landlord-tenant relations with the politically weak south.[19] This private ownership all changed when, in 1974, a communist motivated military revolution overturned the Imperial government and formed the Derg regime.[20] The Derg would quickly move to reform land ownership, passing the “Public Ownership of Rural Land Proclamation” in 1975 which nationalized all rural land and redistributed land to tillers, abolishing exploitative landlord-tenant relations.[21] The fall of the Derg in 1991 though did not spell the end of state land ownership, rather the new democratic government maintained state ownership, granting private individuals only usufruct rights to land holders.[22]The government has maintained this position, arguing that state ownership benefits peasants by preventing “the accumulation and concentration of land in the hands of a small number of urban and bourgeois land owners, who acquire large tracts of land through distress sales.”[23] Facing increasing pressure from donor countries and mounting evidence of the benefits of private ownership, the Ethiopian government has recently allowed for regional control and varying local land tenure policies.[24] In 1997 the Ethiopian government passed the “Federal Rural Land Administration Proclamation” which transferred “authority for land administration, including rights to distribute land to the regional governments.”[25] The Proclamation still forbids the mortgaging and selling of land and reserves the right of the state for land redistribution, but allows for leasing of some property and land certification which increases subjective tenure security.[26] Various regional governments have taken advantage of this concession to create local plans for land titling and certification.[27] Even with the central government maintaining ownership, evidence suggests land certification programs have increased land-related investment.[28] While various regional governments within Ethiopia have instituted policies that allow for the Ethiopian people to take greater advantage of the benefits that stronger land tenure security affords, there remain worries about land insecurity and how the government allocates land use.[29] In acceding to the International Covenant on Economic, Social and Cultural Rights, Ethiopia has committed in an international treaty to upholding the right to adequate housing.[30] Yet for years the Ethiopian government failed to uphold its obligation to uphold legal security of tenure under this right, allowing for forced evictions which were ‘legitimate’ given that the land from which people were evicted was technically state owned. Such technicalities allow the Ethiopian government a window whereby to practice discrimination against politically weak minorities such as the Gambella people.[31] While such treaties offer a wonderful idealism of how the world should be and what rights people should have, realities within countries often do not fit these idealistic notions. Countries such as Cambodia that suffered the horrors of the Khmer Rouge and the process of mass relocation or those in Sub-Saharan Africa reeling from the effects of HIV/AIDS need substantive reasons to uphold these principles rather than resorting to exploitation and authoritarianism. Only recently has the Ethiopian government begun a slow process that may lead to more inclusive land tenure, but not because of an international treaty upholding a moral principle. Rather, the Ethiopian government appears to have been persuaded by the mounting empirical evidence of the benefits of private ownership, which begs the question of how the UN and international treaties should seek to modify behavior of governments. If fledgling governments fail to uphold treaties couched in grand moral terms, might they be more likely to be persuaded by rights argued for in terms of the substantive economic gains that can be had by upholding the rights? While there are worries about how governments will institute policies to protect these rights, if the international community begins to offer a scheme of rights that includes analysis and incentives for upholding the rights perhaps we might just achieve greater adherence to the principles.