It has been decades since land fell into the hands of the state instead of citizens. But the laws concerned with land rights are vague and continue to be held captive to disputes, writes Emlaelu Fesseha (email@example.com), legal adviser, lawyer and former executive manager at Women for Life non-governmental organisation.
Land has been the property of the state since 1974 when the Derguetook over power from the Imperial regime. What subsequent constitutions have provided are the rights to use the property on the land, which covers only parts of the rights of ownership.
The right to use land is one of the most contentious subjects countries around the world have had to deal with, and Ethiopia is no different. The unprecedented waves of violence we witnessed in the past three years can be partially attributed to this. They have been driven by low rates of compensation, bad governance and lack of decision making in the appropriation of land. What added fuel to fire is vague provisions in proclamations and the constitution.
The constitution provides that every Ethiopian citizen has the right to ownership of private property; unless otherwise prescribed by law “on account of public interest.” What public interest could entail is not clearly defined.
Similarly, it is stated that “without prejudice to the right to private property, the government may expropriate private property for public purposes subject to payment in advance of compensation commensurate to the value of the property.”
This article does not stipulate what public interest is and to what extent it shall be applied. What the basis for calculating the amount of compensation is are not addressed. Even if it is difficult to define the meaning of public interest, mechanisms of how that can be gauged for specific investment projects should have been provided.
Our constitution also holds that land is the common property of the “nations, nationalities and peoples of Ethiopia” and that it could not be sold or exchanged.
But who are nations, nationalities and peoples? How are their commonalities and differences defined?
Such terms are open to interpretation and addressing them may be the key to resolve the controversies related to ensuring the benefit of local communities from the land transferred for investment.
When we say that “land is the common property of the nations, nationalities and peoples of Ethiopia and shall not be subject to sale”, are we saying that residents of that region have equal power and right regarding the land in other regions? If not, how is land owned by the nations, nationalities and peoples of Ethiopia?
The extent of implementation of another article is also vague.
It states that “nationals have the right to participate in national development and, in particular, to be consulted with respect to policies and projects affecting their community.”
But there are no clear indications that local community demands for the relocation of investments has been met.
There is an environmental law that prohibits the implementation of projects that need environmental impact assessments without prior approval from the authority or from the appropriate regional body.
“Without authorization from the Authority or from the relevant regional environmental agency, no person shall commence implementation of any project that requires environmental impact assessment,” it is stated.
But instead of implementing this provision, corrective actions are being taken against factories that have already invested their resources. There have been examples of how companies operating legally have been affected by the negligence and unlawful practices.
It is also stipulated that the environmental assessment reports shall be made public and the local communities should be invited to express their opinion on the proposed project. But it is hard to find evidences of such initiatives. On the other hand, no provision explicitly suggests what should be done when the public expresses its disagreement about a project.
One can find vague wordings when it comes to the urban lease holding proclamation of the nation too.
Public interest is defined as “the use of land defined as such by the decision of the appropriate body in conformity with urban plan in order to ensure the interest of the people to acquire direct or indirect benefits from the use of the land and to consolidate sustainable socio-economic development.”
But what are the public’s positions on what a commensurate compensation for a land that has been expropriated for the collective good is? Does the term “public interest” in such contexts not violate individual rights?
While these questions remain unanswered, the same proclamation states that the appropriate body shall have the power – where it is in the public interest – to clear and take over urban land upon payment of commensurate compensation for properties to be removed from the land.
The assignment of such absolute power to governmental bodies creates in citizens a sense of violation of rights. Such power vested in the state leads to abuse and insecure property rights that cause unnecessary socio-economic damages.
The effectiveness of public participation in practice can be influenced by the quality of the process itself. Government investments in public consultation early in the decision making process, sufficient advance notification and documentation can enhance the quality of the input into the decision.
If the public is often consulted too late in the process to make any difference in the decision, this can erode trust and negatively affect the willingness of the public to participate in future consultations.
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