© Springer International Publishing Switzerland 2015Daniel W. AmbayeLand Rights and Expropriation in EthiopiaSpringer ThesesRecognizing Outstanding Ph.D. Research10.1007/978-3-319-14639-3_3
3. Conceptualizing Expropriation
Institute of Land Administration (ILA), Bahir Dar University, Bahir Dar, Ethiopia
Daniel W. Ambaye
Expropriation as a means of land acquisition is a recent phenomenon in the Ethiopian legal history. For the first time it was formally introduced by Emperor Menelik II when he enacted a land charter of the newly established city of Addis Ababa in 1908. There is no much historically known fact that indicates whether previous kings of Ethiopia used expropriation to take privately owned land for public purpose activities. Active public development engagements, such as road construction, dam building or establishing new towns which necessitate the acquisition of private lands always trigger the use of expropriation. Looking into the Ethiopian past, only few incidents in the history of the country show that emperors of different eras engaged in such activities. There is no known record from the first century of the Axumite era, the first civilization of the country, although a relatively good amount of historical fact is known from the seventeenth century of the Gondarine Era. And yet, historians or royal chroniclers of the time had either deliberately left mentioning about expropriation, or could have considered it as an issue not worth mentioning in their records. Therefore, it can be argued that expropriation is a relatively new legal concept of the twentieth century. Much development has been witnessed on the nature and use of expropriation with the economic and social changes and developments of the country. Specifically, the 1960s, the golden years on the legal system in the country, saw the codification of laws, among which the 1960 civil code was the most important. The Civil Code, unlike before, allocated a good number of provisions for the treatment of expropriation. However, this part of the civil code was suspended for 20 years following the demise of the imperial era in 1975 and the coming of the Derg to power. This was followed by a new era, and new genre of expropriation rules which were adopted in 2004 and then revised in 2005.
Expropriation as a form of land acquisition has been a known concept of law in the Western world since time immemorial. Biblical stories of King Ahab and his subject Naboth were considered as the starting point in the history of expropriation. Similar stories were also narrated from the Greek and the Roman periods. With all their legal developments the Romans had not clearly raised it in their laws, although in reality it had been practiced since the state was engaged in the construction of roads, streets, aqueducts and public baths. The theory is that Roman governors must have used expropriation to build all those pubic woks.
Expropriation, in the name of “eminent domain” was christened by the Dutch jurist and philosopher Hugo Grotius and his followers Samuel von Pufendorf and Cornelius van Bynkershoek in their respective discourses. The concept of expropriation was also in practice in continental Europe and England for centuries. The Americans were also familiar with the concept and procedure of expropriation or eminent domain starting from their earliest colony in the western hemisphere.
Expropriation as a means of land acquisition by sovereign governments has been exercised as a matter of right but for and upon two fundamental reasons: for public purpose and upon payment of compensation for the property lost. These two provisos survived and strengthened in modern world legislations although there are still contentious debates on the expansive nature of public purpose and the fairness of compensation.
Modern day Ethiopia is depicted as a country in rapid economic development where massive construction of roads, building of hydropower and irrigation dams, renewal and redevelopment of urban centers, expansion of cities, transfer of large-scale rural agricultural land to investors, zoning of industrial lands etc. are being carried out. Millions of hectares of land have been taken from farmers and transferred to foreign and domestic agricultural investors. Thousands of blight houses that rested on hundreds of hectares of land in the city center of the capital, Addis Ababa, have been demolished to redevelop the areas. Thousands of farmers who used to live on the boarders of the many cities around the country have lost their land for the establishment of newly emerging towns or for the expansion of the existing ones. Although Ethiopia is one of the least developed countries in the world, the government has managed to carry out or has attracted investors to carry out lots of development activities for cheap land lease price since land is basically controlled and owned by the state. In other words, the fact that the state has become the sole owner of the land has relieved it from paying compensation for the land. As was raised in the first chapter, and will be reemphasized in the following chapters, land has no value to the individual holder in terms of sales value or compensation.
This chapter is designed to define the concept of expropriation in general and analyze its basic nature and justification. Besides, the philosophical and practical reasons for expropriation are discussed by reviewing major literatures in the area. The experience and reality of major legal systems from selected countries are also the subjects of this discussion.
3.2 Concept and Nature of Expropriation
Jurists and students of laws of many nations and many periods have devoted their efforts to the determination of the nature and characteristics of the power of expropriation or eminent domain. Knowledge of the meaning of expropriation, its origin, and the evolution of the power provides an insight into the present-day practical application of the law which a dogmatic exposition of apparently axiomatic principles could not possibly hope to achieve.1
Although the power may be simply and succinctly described, there is an inherent complexity which renders a simple definition difficult and possibly misleading. It has been hedged in by many exceptions, qualifications and limitations. It has been differentiated from other powers to which it bears a resemblance. Under the circumstances it becomes necessary to use the analytical approach. From such point of view, the nature of the power of expropriation may be broken down into its constituent elements.
3.2.1 Concept of Expropriation
Although there are many legal terminologies used by different legal systems that share the same name and transmit same meaning, Expropriation, on the other hand, assumes different names in different legal systems. While in the United States it is known by the name “Eminent Domain”, in the United Kingdom and continental Europe it is termed as “Compulsory Purchase” and “Expropriation” respectively.2 Ethiopia, being a follower of the continental legal system, uses the term “expropriation”. Hence, throughout this paper we shall employ the word “expropriation” with due regard to the possibility of mentioning the other terminologies as well, whenever necessary.
The most authoritative legal dictionary, Black’s Law Dictionary, defines eminent domain as “the power to take private property for public use by the state, municipalities, and private persons or corporation authorized to exercise functions of public character.”3 An older legal dictionary, Bouvier, defines the term as “The superior right of property subsisting in sovereignty by which private property may in certain cases be taken or its use controlled for the public benefit, without regard to the wishes of the owner.”4 Eminent domain is also defined in Nichols as “the power of the sovereign to take property for ‘public use’ without the owner’s consent.”5 In all the definitions, eminent domain or expropriation is described as the power of the sovereign state or agencies delegated by it to compulsorily take land for public use purposes. What is missing from the definitions is the “compensation” element. Actually, when we look into the definition of eminent domain in earlier decisions of American courts or State Constitutions, compensation as an essential constituent of its meaning had come later.6 In some modern definitions of the terminology, the element of compensation is still left out. For example, FAO’s definition of the term could be a good example: “Compulsory acquisition is the power of government to acquire private rights in land without the willing consent of its owner or occupant in order to benefit society.”7 It must be admitted, despite the logical accuracy of the foregoing definition and despite the fact that the payment of compensation is not an essential element of the meaning of eminent domain, that it is an essential element of the valid exercise of such power. The absence of an explicit provision requiring compensation for the taking of property should not be seen as evidence of a rejection of the compensation principle. On the contrary, compensation was a well established feature of takings by eminent domain in most countries, as we shall see in the next section.
In Ethiopia, the first systematic definition for the concept was given in the 1960s Ethiopian Civil Code. The Code, under Article 1460, provides:
Expropriation proceedings are proceedings whereby the competent authorities compel an owner to surrender the ownership of an immovable required by such authorities for public purposes.8
In this definition, the idea of the taking of private land by the state or authorities without the consent of the owner for public purpose is clearly envisaged. The phrase “expropriation proceeding” is employed here instead of the word “expropriation” because of a translation error from the original French version.9 It is said that the original French version has defined the term as follows: “expropriation is a procedure by which the administration obliges an owner to surrender to it the ownership of an immovable which it needs for the purpose of public utility.”10 And yet, like the above definitions, the rule noticeably fails to include the element of compensation in its definition.
Without undermining the above definition, the following one may be considered as a working definition in discussing the details, as it is more comprehensive. This definition elaborates the concept eminent domain as follows:
…it is the right of the nation or state, or of those to whom the power has been lawfully delegated, to condemn private property for public use, and to appropriate the ownership and possession of such property without the owner’s consent on paying the owner a due compensation to be ascertained according to law.11
This definition seems more complete, since it includes all the basic elements. First of all, expropriation or eminent domain is a right that is exercised by the state itself or its sub-branches such as municipality and other public or private companies and people legally authorized by the state/legislature. Sustainable development requires governments to provide public facilities and infrastructure that ensure safety and security, health and welfare, social and economic enhancement, and protection and restoration of the natural environment.12 An early step in the process of providing such facilities and infrastructure is the acquisition of appropriate land. Government may use alternative land acquisition mechanisms such as purchase, to secure land for public purpose activities. But, it is impossible to rely totally on land market as individuals may create a holdout on the projects or the land required may involve the interest of more owners that warrants the exercise of expropriation power. As we shall see in the next section, the expropriation power is inherent in the state power.
The second element is that the state or the organs authorized to take such lands must follow some procedure. In the U.S., it is known as “condemnation proceeding” while in other countries, mainly European, it is referred to as an “expropriation procedure.” The main idea is that the state must ensure due process of law before appropriating the property. In the U.S., courts usually involve in the proceeding, and the process consists of two phases: proceedings that relate to the existence of “public use” that justifies the taking, and proceedings to set the amount of compensation to be paid for the property taken.13 The state or an authorized organ shall first petition to court for appropriation of the property and the owner will be given the right to be heard and to negotiate on the amount of compensation, and finally, the court must approve of it. In other countries, expropriation procedure is either purely administrative procedure or a hybrid of the court and administrative decisions.14 This procedure avoids arbitrary takings of land by the state without fair compensation.
The third point worth discussing is the issue of “public use.” The doctrine of expropriation stands in opposition to the right of private property. Thus, expropriation requires to find the balance between the public need for land on the one hand, and the provision of land tenure security and the protection of private property rights on the other hand. In seeking this balance, expropriation principle includes the requirement of “public interest” as one limitation on the state power of expropriation. This limitation or requirement is known by different names in different countries, such as public use, public benefit, public good, public interest, public purpose or public welfare.15 The idea is that, there may be exceptional times and places in which the very foundations of public welfare cannot be laid without requiring concessions from individuals to give up their private property in the interest of the common good.
The appropriation or taking, mentioned in the definition, is the fourth important aspect or stage in expropriation procedure. There are several types of appropriation which can occur through expropriation: total appropriation, partial appropriation, temporary appropriation, easement and right of way being the main ones. Under the Ethiopian Civil Code, the defunct expropriation rules show that expropriation may be used either to acquire or terminate rights in rem such as servitude, usufruct or lease.16 Expropriation differs from such similar concepts like police power (termed in the USA) or regulations that limit the use right of the property due to health, public safety, etc., in that it involves the loss of the core constituent right of disposal. In the latter case, what the owner loses is some part of his use right over his property, while in the former case, he loses the entire or part of the property.
The fifth point embodied in the definition is the absence of consent on the part of the owner. The power of eminent domain/expropriation is a sovereign power of the state to take private land without the consent of the owner. What makes expropriation different from other consensual types of land acquisition mechanisms is the complete absence of consent on the part of the property owner. It is true that many public and private organs do also collect land through purchase and similar transactions which are based on the willingness of the person. But, it may not be realistic to totally rely on the good will of the owner to get land for different reasons. The state, hence, resorts to such coercive proceedings for two main reasons: first, owners may create a holdout on the public development activities either by totally refusing the sale of the land at any given price or by requesting unrealistically higher prices for the sale of their properties; and second, public development projects which demand long and continuous land holdings involve the interest of many owners and it may be difficult to reach agreement with all owners. In both ways, owners try to impede the public welfare that could be attained by using their land.
The last principle included in the definition is the obligation of payment of fair compensation. This principle is the most important guarantee to individual owners on their lawful possessions. All major legal systems and constitutions include this concept as a guarantee to the owner and as a limitation to the power of government. The just compensation requirement demands that the state reimburse the owner for the value of the property interest taken and place the latter in as good a pecuniary position as if the property had not been taken. The assessment of compensation is extremely complicated, and different countries incorporate different valuation methods within their expropriation legislation to reach market value.17 Nevertheless, the existence of compensation makes expropriation tolerable and differentiates it from other government actions, such as confiscation, nationalization, and eviction, in that these three are devoid of the state obligation to compensate for the taking.
3.2.2 Nature and Power of Expropriation
There are different theories on the nature of the eminent domain power. Matthew Harrington,18 an American professor of law, identified and developed three theories based on the jurisprudence, legal systems, and court decisions of the continental/civil law and the common law legal systems. The first theory conceives eminent domain as “reserved right” of the sovereign; the second presumes eminent domain as “inherent right” of the state; and the third theory argues that eminent domain power emanates from “consent” of the governed.
188.8.131.52 Reserved Right Theory
The “reserved rights” theory, as we shall discuss soon, was formulated by Hugo Grotius and his followers saying that the power of eminent domain was based upon the principle that the state had an original and absolute ownership of the whole property possessed by the individual members of it antecedent to their possession of it, and that their possession and enjoyment of it was derived from a grant by the sovereign and was consequently held subject to an implied reservation that it might be resumed, and that all individual rights to such property might be extinguished by a rightful exertion of this ultimate ownership by the state.19 Pufendorf termed this power as ‘‘exercise of transcendental property’’ whereby the sovereign resumed possession pursuant to the tacit agreement implicit in the original grant that the property might be resumed to meet the necessities of the sovereign.20
According to this theory, a citizen’s possession of property is subject to an implied reservation that the state might retake the property at any time for a public purpose.21 In this view, an individual’s ownership of property is limited to a mere possessory right, at least with respect to the government. The right to hold property is, therefore, subject to a tacit agreement between the citizen and the sovereign that the property might be reclaimed by the latter to meet public necessity, and the citizen holds his land with such awareness and cannot complain of injustice when it is lawfully exercised.
This theory was received and incorporated into the laws of continental system,22 and many earlier courts in the U.S. accepted this theory in reasoning their decision.23
The consequence of such a reserved-rights theory is that it has the potential to deny compensation to the landowner and to eliminate the necessity of going through all the judicial procedures. The most clear objection to this theory had come from latter American courts, for whom reservation of rights in the sovereign ‘‘sounds too much like feudalism.’’24 The most obvious rebuttal to this theory is that it simply is not in accord with actual practice.25 Unlike Europe or England, feudalism was totally unknown in America for it was established on equality of citizens and rights.26 Accordingly, it is now generally considered that the power of eminent domain is not a property right, or an exercise by the state of an ultimate ownership in the soil, but that it is a power based upon the sovereignty of the state.27 Historical precedents in America and England show no reservation of power in the hand of the sovereign. Even in continental Europe, in the Roman period there were evidences of compensation for the taking of private property.
184.108.40.206 Inherent Powers Theory
As shown above, the strongest objection to the reserved rights approach came from the American courts. Confronted with many theoretical problems, as well as because of the nature of the American federal structure, many courts in the United States eventually rejected the theory of reserved rights and came to view eminent domain simply as an inherent right of sovereignty.28 The state’s power to take land for public use came to be regarded as a power which inheres in the right of the state to govern the polis—which is to say, inherent in its ‘‘police power’’—and was not dependent on any pre-existing property right.29 According to this view, governments have the sovereign power to enact any regulation affecting persons or property located within their borders, subject to such limitations as might be imposed by their respective constitutions. By adopting this approach, the American courts equated the source of power for eminent domain to other similar powers of the state, such as police powers and the power to levy taxes, which are inherent powers founded in the primary duty of government to serve the common needs and advance the general welfare of the people. Currently, the principle of inherent power seems dominantly accepted everywhere. It is said that the power of eminent domain is an inherent attribute of sovereignty and exists even without constitutional recognition; therefore, constitutional provisions relating to eminent domain must be construed as limitations upon, rather than grants of such power.30
Such right or power antedates constitutions and legislative enactments, and exists independently of statutory or constitutional sanction or provision.31 Thus, modern laws only try to recognize it and prescribe limits for its application. A reading of the expropriation laws of most countries reveals that they confirm the state’s authority to confiscate private property, but impose two conditions on the exercise of such authority: the taking must be for a public use, and just compensation must be paid to the owner.32
220.127.116.11 Consent Theory
Although it seems the above two theories propagate two different ideas, in reality, the underlying principle is one and the same. Both inherent powers and reserved rights theories permit no real restraint on the sovereign’s exercise of the power of eminent domain. A sovereign’s eminent domain power is absolute and total. It is superior to all other property rights, and every owner of property holds his land subject to the right or power of eminent domain. The taking of property by a government’s exercise of its power of eminent domain is not a government infringement of the property owner’s fundamental right to own property, since the power of eminent domain is itself a constitutional right.
Hence, a third theory based on the consent of owners is developed. This theory is actually back to the English practice of middle-ages where the power of the sovereign (king) was restricted in favor of parliamentarian power. As shall be discussed in the history of expropriation in England, the power of expropriation was transferred to parliament as early as 1400.33
The theory of consent is best understood as being a function of the theory of consent inherent in the representative government. That is to say, the power to take property for public use resides in the legislature, and not the executive, because such takings require the consent of the owner and that consent can be given directly or through his legal representatives. In this respect, takings by eminent domain are on the same footing as takings through taxation. Just as the sovereign lacks the power to levy taxes without consent of the legislature, so too does it lack the power to take property from a subject without similar consent.
In modern laws, (irrespective of the theoretical arguments that eminent domain power is reserved or inherent in the state, it is dormant until the legislature rouses it into activity by taking steps for the exercise of the power, declaring the objects to which, and the mode and agency through which, the power shall move.34 The legislature, by adopting legislations to this effect, may delimit the powers of expropriation of the state. Hence, it can be said that the taking of property by government exercise of its power of eminent domain does not amount to an infringement of the property owner’s fundamental right to own property, since the power of eminent domain is itself a constitutional right. Therefore, we can conclude that eminent domain or the power of expropriation is superior to all property rights, and every owner of property holds it subject to the right of eminent domain.
18.104.22.168 Principles of Expropriation
The United Nations Food and Agriculture Organization (FAO) has published guidelines for countries to follow during expropriation of land. We hereunder reproduce the principles of compulsory purchase and the problems that may created because of improper expropriation process.
According to the FAO guideline, when enacted their expropriation legislations, countries should consider the following principles35:
Protection of due process and fair procedure: Rules that place reasonable constraints on the power of the government to compulsorily acquire land strengthen the confidence of people in the justice system, empower people to protect their land rights, and increase the perception of tenure security. Rules should provide for appropriate advance consultation, participatory planning and accessible mechanisms for appeals, and should limit the discretion of officials.
Good governance: Agencies that compulsorily acquire land should be accountable for the good faith implementation of the legislation. Laws that are not observed by local officials undermine the legitimacy of compulsory acquisition. Good governance reduces the abuse of power and opportunities for corruption.
Equivalent compensation: Claimants should be paid compensation which is no more or no less than the loss resulting from the compulsory acquisition of their land. Laws should ensure that affected owners and occupants receive equivalent compensation, whether in money or alternative land. Regulations should set out clear and consistent valuation bases for achieving this.
The problems that may arise when compulsory acquisition is not done properly are36:
Reduced tenure security: Policies and legislations that strengthen land rights of individuals and communities may be eroded through compulsory acquisition. People may believe they lack tenure security if the government can acquire rights in private land without following defined procedures, and/or without offering adequate compensation.
Reduced investments in the economy: Insecure tenure, with the threat of the arbitrary loss of land and associated income, discourages domestic and foreign investment.
Weakened land markets: Threats to tenure security discourage land transactions, reduce the acceptability of land as collateral, discourage people from investing or maintaining their property, and depress land values.
Opportunities created for corruption and the abuse of power: The lack of protection and transparency can result in injustices which anger citizens and undermine the legitimacy of government.
Delayed projects: Appeals against unfair procedures may hold up the acquisition of land, and thus block projects and increase costs.
Inadequate compensation paid to owners and occupants: Financial awards may be inadequate to allow people to enjoy sustainable livelihoods after their land is acquired. People may feel that they are not compensation.
3.3 History of Expropriation
3.3.1 Ancient Greece and Rome
Looking into the early history of the power of expropriation, it seems that the origin and history of expropriation was lost in obscurity since there was no definitive legislation that clearly gives expropriation power to the ancient governments. This does not mean, however, that it was not in actuality practiced. As we shall see in a while, there are ample evidences that show its existence in the early and middle ages. In any case, the concept indisputably finds its roots in the natural law movement.37 Despite its practical application, though, it was not until after the close of the middle ages that the taking of property for public use as a distinct branch of governmental power began to be discussed among jurists and philosophers.
To start with the Bible itself, some people ascribed the biblical story of King Ahab’s seizure of Naboth’s land as the first example of an act of expropriation.38 According to the Bible,39 Israel’s King Ahab desired a vineyard owned by Naboth the Jezreelite to grow herbs on it. He offered Naboth his choice of either a new vineyard or “the worth of it in money.” When Naboth refused to sell, Jezebel, Ahab’s wife, conspired with others to put Naboth to death. The theory that this was the first act of expropriation was first put forth by Merlin de Douai, the nineteenth century French legal theorist.40 Scholars, however, became skeptical as to the existence of the king’s power of expropriation. They argue that if the king had the power of eminent domain, he would not have needed to kill Naboth to grab his vineyard land.41
In tracing the history of the power of expropriation in ancient Greece and Rome, we find only unsatisfactory allusions to the existence of such a principle. Looking first to Greece, we read in the Athenian Constitution of Aristotle about the reconciliation of the Athenians who were in exile and those who stayed in the city during the aftermath of the fall of the ten tyrants who were elected after the overthrow of the previous thirty tyrants.42 An agreement was reached concerning the Athenians who wished to immigrate to the city of Eluesis and get property there upon payment of compensation that implicates an expropriation like practice:
If any of the seceding party [Athenians] wished to take a house in Eleusis, the people would help them to obtain the consent of the owner; but if they could not come to terms, they should appoint three valuers on either side, and the owner should receive whatever price they should appoint.43
Susan Reynold provides two additional evidences from ancient Greece that may show the possible existence of expropriation practices: one is about a legislation concerning the valuation of noncitizens’ property that might be wanted for building temples; and the other is, the laying of drains in private fields in Euboea, with payment to the landowner.44
When we come to the Roman expropriation practice, although Romans had detailed laws on private ownership of property, it is difficult to find one that shows whether expropriation was part of the formal Roman laws, for it was never formulated into legislation.45 However, from the ownership right of the Romans, it can be said that the Roman owner had a general or residuary, rather than an unrestricted right. So, when the need for public works made it necessary to take over land in private ownership, there was nothing inherent in the nature of ownership which could be urged against this course.46 Scattered bits of evidence which have been studied by scholars also suggest that “there is a good deal of evidence to indicate that the Romans took private property to further a variety of public purposes.”47 In this regard a study conducted by Jones observes:
It is impossible to believe that the construction of the Roman roads, extending in a straight line from one end of the Empire to the other, or of the Roman aqueducts, was at the mercy of the owners of the land through which they were to pass.48
Nathan Matthews, an American scholar, who researched the Roman Valuation systems, on his part concludes:
Notwithstanding the paucity of surviving precedents for the expropriation of real estate, the general opinion seems to be that this function of government must have been freely exercised, particularly under the later (Roman) emperors, in aid of highways, municipal buildings and other public improvements.49
A further scrutiny on the subject also reveals some evidences of expropriation practices. For instance, the edict of Justinian, A.D 535, provides that church lands could be taken for such other purposes as the authorities might deem to be in the public interest upon condition that the religious bodies should receive other property of equal or greater value.50 Where land was taken for the construction of a tower in Constantinople, the landowner was compensated by a right to live in the tower when built. Sometimes the compensation took the form of remission of taxes.51 The Roman senate decreed in 11 B.C. that it should be lawful to take from the adjoining lands of individuals the materials needed for the repair of aqueduct, upon an estimate of the value or damages, to be made by good men.52 And in the Annals of Tacitus we are told that, when a private house was injured by a public road or aqueduct, the Emperor Tiberius paid the damage on petition by the party to the senate.53 All these instances, however, although striking, do not prove that the expropriation principle was recognized under the Roman law. The fact that the Roman law treated private property and citizens in high regard coupled with the absence of expropriation rules in the Institutes of Justinian and the Codes create considerable doubt on the existence and application of the practice.
3.3.2 The Civil Law of Continental Europe
With the decline and gradual fall of Rome, all trace of the power of eminent domain disappears for centuries, and during the medieval period, when the demand for public improvements was small and the rights of individuals little regarded, the power of eminent domain was neither considered nor discussed.54 Although there was no clear and known philosophical or legal discourse on the subject up until the seventeen and eighteen centuries, the practice of expropriation seems, though, to have survived all these years. Susan Reynolds, who investigated the history of expropriation in Western Europe, complained that lack of “evidence before 1100 and absence of community solidarity”55 during this age makes it difficult to trace the existence of expropriation until the early middle ages. An attempt has been made by her to piece together the scattered references from across Western Europe in order to establish the existence of expropriation. The general conclusion of her work is that expropriation in middle ages Europe was mild and was exercised by central authorities and sometimes by local lords for the “common good” of society, such as erection and construction of fortifications, river canals, city walls, and roads upon payment of compensation either in kind or in money.56 The general belief was that individuals had no power to resist a royal power in taking property for a public work. This can be described in what an English Chancery decided in 1664 on a disputed case by remarking that “it should not be in the power of one or two willful persons to oppose a public good.”57
The government’s authority was thought to be emanating from its being lord of all the land and the people, which gave the government the right to take back what it granted before to the people. This is associated with the concept of “feudalism” which, according to the English Jurist, Blackstone, was a universally received type of governance throughout the Middle Ages’ Europe. The fundamental maxim and nature of feudalism has been described by Blackstone as follows:
The grand and fundamental maxim of all feudal tenure is that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately, of the crown.58
This means, as a source of the land grant, the sovereign has a reserved power to claim back what it had granted earlier. In explaining the English feudal system, Blackstone also says elsewhere that, “the king is the universal lord and original proprietor of all the lands in his kingdom; and that no man do or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feudal services.”59
Expropriation, in the name of “eminent domain”, started to take definitive shape after Hugo Grotius’ influential work, On the Law of War and Peace, where he “constructed an argument that derived and justified the right of expropriation clearly from the origin and nature of all property rights.”60 Like John Locke and Thomas Hobbes, who came after him, Grotius assumed in the “state of nature”, where there had not been law and state, land was owned by the people in common.61 He claimed, “by the law of nature, before property was introduced, everyone had a right to the use of whatever he found unoccupied.”62 Thus, mankind, as joint inheritors of one general patrimony, holds all things of this earth as their “common stock.”
The next question raised by Grotius was how man moved from this common right of the earth and its riches to private ownership. For Grotius, private property is a result of occupation and subsequent recognition by the community. According to Grotius, in the primitive stage of mankind “man exercised a general right to seize for his own use or consumption whatever he needed, and it became unjust to deprive anyone of what he had once captured.”63 Thus, private property hinges on two factors- occupation and consent.64 Since people could not continue to live in a state of anarchy, they had to enter into contract to establish a “civil society.” Property becomes now a civil right. “The civil right is that which is derived from the civil power. The civil power is the sovereign power of the state. A state is a perfect body of free men, united together in order to enjoy common rights and advantages.”65 Since private property right is a result of the human will which transcends to the recognition of the state, the state becomes now powerful since it represents the interests of all people. By virtue of this superior power, the state keeps a residual power over citizens’ private property to take it back when suffering extreme duress. Grotius, in his Introduction to Dutch Law, emphasized that “property was established by human communities,” and by virtue of which “the whole community had, and has, a higher right over the goods of its members.”66
In his second book, On the Law of War and Peace, Grotius shows the existence of two types of rights in the civil society: one, for the advantage of the individual, and the other superior, eminens dominium, a power that the sovereign has on the individuals and their property. In case of necessity, Grotius wrote, “the Sovereign has a greater right over the property of his subjects, where the public good is concerned, than the owners themselves have.”67 The taking of private property for common good is termed by Grotius as “eminent domain,” which is otherwise known as expropriation. He argued that the state may take individual property by eminent domain “but to do this by the force of Eminent Dominion, there is required, in the first place, public utility; and next, that, if possible, compensation be made, to him who has lost what was his, at the common expense.”68 Elsewhere, on the eminent domain power of the state, he argues:
The property of subjects is…under the eminent control of the state, that the state or the sovereign who represents it, can use that property, or destroy it, or alienate it, not only in cases of extreme necessity, which sometimes allow individuals the liberty of infringing upon the property of others, but on all occasions, where the public good is concerned, to which the original framers of society intended that private interests should give way. But when that is the case, it is to be observed, the state is bound to repair the losses of individuals, at the public expense, in aid of which the sufferers have contributed their due proportion.69
What is new in Grotius’s writing is his contribution to the philosophical justification of source of eminent domain power: that the power is derived from the assumption that those who consented to join the civil society, by entering into the social contract, thereby intended that private claims should give way to those of “public utility.” Precisely why such a presumption should be inherent in the social contract, Grotius did not say.70 On the other hand, he maintains the traditional value given for private property and the fact that eminent domain can only be effected only if it is necessary for public purpose activities and upon compensating the property owner.
Samuel von Pufendorf, another natural lawyer and follower of Grotius, on his part argues that originally private property emanated from the grant of the ruler, and it is the ruler who determines what rights the people have over the property. The ruler has three rights over citizens’ private property whether granted or acquired latter by the individual. The first has to do with the right to set rules regarding the “use of property in conformity with the interest of the state”, “quality of their possession” and “method of transaction.” The second right is pertaining to taxation, while the third right is concerned with the right of eminent domain. He elaborates:
The third right is that of eminent domain, consisting in this, that when public necessity demands it, the property of any subject which are very urgently needed at the time, may be seized and used for public purposes, although they may be more valuable than the allotted share which he is supposed to give for the welfare of the republic. On this account, the excess value should, insofar as possible, be refunded to that citizen in question, either from the public funds, or a contribution of the other citizens.71
The important point that we may gather from Pufendorf’s writing is the rational that he provided for compensation, that no one should be compelled to pay more than his fair share for public improvements, and if such a sacrifice is required, the burden should be redistributed to others so that those called upon to make excessive sacrifices can be recompensed.
The next step in the history of expropriation in continental Europe was to insert the principle of expropriation into their respective legislations and codes. Although they were short lived and rarely cited, there were some legislations in the seventeenth and eighteenth century Europe that recognized the principle of expropriation as a means of land acquisition for the common good of the people. For instance, in Germany the Bavarian Landrecht of 1616 refers to the taking of land for roads, and the Codex Maximilianus of 1756 says that no one could be compelled to sell property against his will unless the government needs it for the common good.72 Legislation for Austria in 1784 ordered that where the public good required, those who held land that was needed for new roads had to give it up, either at a price to which they agreed or at one fixed by the government engineer.73
Finally, the inclusion of the expropriation principle in the 1789 French Declaration of Rights of Man and of the Citizen, the 1793 French Constitution and finally in the French Civil Code of 1803 were significant steps forward in defining the power of the state versus individual property right. The 1789 Declaration of Rights of Man and of the Citizen under Article 17 says, “Property being an inviolable and sacred right, no man may be deprived of it, unless in cases where public necessity, legally recorded, clearly demands it, and on condition of just and prior compensation.”74 The 1793 French Constitution under Article 19 on its part provides: “No man may be deprived of the least portion of his property without his consent, unless it is when legally recorded public necessity demands it, and on condition of a just and prior compensation.”75 The French Civil Code, which then after served as a source for many countries around the world, carries this principle under article 545 as follows: “Nobody may be forced to cede his property unless for purpose of public interest, and against the prior payment of a just compensation.” By the revolution of 1789, the state became no longer the holder of absolute power,76 which was carried by the “eminent domain” phraseology argued by Grotius and his followers.
3.3.3 Historical Developments in the United Kingdom
The term ‘‘eminent domain’’ was a phrase not known to English law as it was understood in the United States. Even currently, it is known by the name ‘‘compulsory purchase.’’ The doctrine, as expressed in England, was applied only in the exercise of the sovereign to enter lands for the defense of the realm.77 English kings before the sixteenth century used to take private lands to build castles, fortifications, churches and the like. The scanty evidence gathered from this era shows that compensation used to be paid mainly in terms of land to land compensation.78 However, the European conception of absolute power of the king on his subjects and their property was restricted in England after the adoption of the Magna Charta in 1215. This was because the Magna Charta prevented the king from applying such power to all types of rights. With regard to property rights, the Magna Charta declares: ‘‘no free man shall be… dispossessed… his freehold liberties… except by the lawful judgment of his peers, or by the law of the land.”79 This means, at least, the king could not expropriate private land without paying compensation.
This expropriation power of the sovereign was further curbed due to dominance of parliament over the king’s power in the English politics. Unlike what was dictated by Grotius and others in continental Europe, in England, the supremacy of the king was long refuted and replaced by parliamentary supremacy.80 Blackstone himself sided with the parliament by refuting the inherent power of the Crown to take land for public purpose activities. Blackstone, in his Commentaries, after emphasizing the high regard of the law on private property and the impossibility of taking of private property against the will of the owner even for “general good” of society, as exception, declared:
…it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual’s private rights. In this and similar cases the legislature alone can, and indeed, frequently does, interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full indemnification and equivalent for the injury thereby sustained. And even this is an exertion of power which the legislature indulges with caution, and which nothing but the legislature can perform.81
Hence from as early as 1402, only Parliament was empowered with the authority to effect compulsory sale,82 which in effect means the power of expropriation of land for public purpose was transferred to parliament.
However, there were two exceptions in which the king could exercise the power of expropriation. In these circumstances, the king had prerogative powers to act in the public interest and without making compensation for private property taken or destroyed. These conditions were when it was necessary to defend the realm or where he was thought to have some special property right.83 Concerning national defense, the king, for example, in order to save and protect the realm against enemies or the sea could erect bulwarks and other fortifications on private land, tear down the houses in the suburbs of a city, or dig in private land for saltpeter to make gunfire, if necessary to wage war.84 Necessity also justified the king in razing houses to prevent the spread of fire, or building walls or dikes to protect lands from imminent flooding.85 Although in Burmah Oil Co Ltd v Lord Advocate (1964) the House of Lords decided that this war prerogative could not be exercised without paying compensation to expropriated owners, this decision was altered by the retrospective War Damage Act of 1965 denying such compensation.86
Sometimes, the king was thought of as having exclusive right in some objects seized. Thus, the Crown had a right to all royal fish, abandoned shipwrecks, waifs (goods stolen and thrown away by a thief in his flight), wandering animals, and treasures unclaimed by owners.87
Unlike the king, Parliament had complete power of eminent domain to take private property upon payment of compensation. With the increase of urbanization and the expansion of sophisticated public facilities, during the period between the seventeenth and nineteenth centuries, Parliament issued a series of statutes condemning private lands for the construction of roads, bridges, drainage systems, naval bases, etc. In any case, it is said that the idea of a “power of eminent domain was well established in England by the time of the American Revolution, and the obligation to make compensation had become a necessary incident to the exercise of the power.”88 Today, the power of compulsory purchase is delegated by acts of Parliament to regional authorities to enable municipal and other corporations to take property for their use.
3.3.4 Brief History of Eminent Domain in the United States
As far as the necessity of eminent domain powers were concerned in the American colonies, the appropriation of property for public use was primarily limited to the establishment of roads, dams, or grist mills.89 One can imagine the need for more roads in new settlement, totally unimproved lands, like the early colonies of the United States of America. From as early as 1639 the states of Massachusetts, New York, New Jersey and others started constructing town streets and roads by taking land from private owners or by allocating land for such purposes originally. Usually, men were selected by courts to assess the level of damage and the amount of compensation to be paid.90 Next to roads, the most important object for the exercise of eminent domain during the colonial period was the erection and maintenance of mills. Statutes authorizing lands to be taken to enable the owner of a mill site to construct or maintain a dam in order to raise a head of water sufficient to operate a mill were in force in seven of the colonies prior to the Revolution.91
A review of the pre-constitutional period in the U.S. reveals two significant characteristics. First, property was usually expropriated without resort to litigation. Like the tradition in England, Americans repeatedly declared that the power to expropriate private property for a public purpose rested in the legislature alone.92 To this end, it is said that both the colonial and confederation governments made extensive use of the power to expropriate property for all manners of social and economic ends.93 Second, the duty to compensate a deprived land owner was generally not recognized.94 Yet, there are evidences that show that some states used to pay compensation. For example, in the Dutch colonies compensation was paid during expropriation of land.95 Immediately before and after the adoption of the U.S. constitution, though, courts tried to scrutinize the legislative acts of expropriation by requiring the payment of compensation based on the principle of natural justice.96 At the end of the American Revolution, although eminent domain as a legal form had begun to take shape, its exercise by governments or courts was not yet limited. In other words, there was no concept of public use in the statutes and court decisions at that time. Later, when the U.S. Constitution was adopted, the concept of eminent domain with its limitation of public use was incorporated into the Fifth Amendment.
When the Americans finally adopted their Constitution, the absolute and unlimited form of the power, which had been limited in England by the Magna Charta, was restricted even more by the United States Constitution’s Fifth Amendment. The last clause of this amendment says: “…nor shall private property be taken for public use, without just compensation.”97 The eminent domain clause under the Fifth Amendment is not though as comprehensive as it should be. It does not contain particulars that clearly grant expropriation power or substantive limit on the power. Rather, what is “commonly thought to be a takings clause is in fact nothing more than a compensation clause.”98
3.3.5 Historical Background of Expropriation in Ethiopia
In Ethiopia, the power to take land for public purpose did not become a matter of great concern until the early twentieth century. Until this point in history, Ethiopia remained relatively small and its need for public works rather limited. The country’s economy was predominantly agriculture, and urbanization was totally unknown99; hence, there were fewer motives for the leaders of the time to take land for public works. Throughout most of its history, Middle Age Ethiopia remained a land of small villages and isolated homesteads.100 Modern urbanization only started with the establishment of the present capital, Addis Ababa in 1886. Although modern road construction works started on a small scale and for military purpose earlier during the middle of the nineteenth century, it was intensified only after the establishment of the capital.101
22.214.171.124 Pre Constitutional Era
Turning into the Ethiopian history of property right vis-à-vis the power of the sovereign kings, it has been mentioned by different writers, national or foreign travelers, that the powers of the Ethiopian monarchs had been absolute over the people and their objects.102 As already discussed in the preceding chapter, land had been controlled by the sovereign and distributed to the people and elites on, theoretically, some kind of condition, like paying tribute tax, or rendering manual or military service to the emperor, very similar to the Middle Ages of European feudalism. Therefore, we could assume that the emperors could take land that belonged to any person, at their pleasure, although this may not have happened frequently for two main reasons: first, up until the early twentieth century, there was no significant economic development in the country that warranted the taking of land for public construction activities; and second, the emperors who mostly relied on the teaching of the Christian morality would not resort to cruel measures of land confiscation unless the person commits serious crimes. Both of these assertions are backed by some evidences presented hereunder.
With regard to the powers of the monarchs and right to property held by the people, we have already established the kind of property rights in Ethiopia in Chap. 2. In the northern part of the country a relatively secured land right, rist right that provided the holder all rights except sale used to be practiced. In the southern parts of the country, which was annexed to the empire during the late nineteenth century, land was generally held in private by individuals, by the Church or by the state, and was freely transferable. Although there is ample evidence on the nature and type of land holding rights over a long period in Ethiopia, expropriation is mentioned very rarely. We find some allusions here and there that might give us a clue on the existence and practice of expropriation; and yet, it is not conclusive to say that it existed in full practice until the enactment of the 1908 Addis Ababa Land Charter, which we shall discuss soon.
According to the evidence that is found, it is said that King Lalibella of the Zagwe Dynasty (early thirteenth century)103 had made payments to the land he used to construct his well known churches. The hagiographer of the King compliments him for paying for the land on which he built his churches. “He attributes this to the king’s special sense of piety and saintliness and asks a rhetorical question to demonstrate the traditional power of the monarch in the distribution of land: ‘who would have forbidden the king if he had decided to take the land’ (without compensation)?”104 As James Bruce, the eighteenth century Scottish traveler to Ethiopia, underlined, although the monarch had this absolute right over the land and the subjects in respect of taking, it “makes no violent use of its power in that respect.”105
Another evidence that is associated with Christian morality, is the rule that was incorporated to the fifteenth century law of the country, Fiteha Negest (The Laws of the Kings). There is a provision inserted in the Fiteha Negest that was influenced by the Biblical story of King Ahab: “Do not take wealth of any one by violence, and do not buy from him by force; neither openly nor by trick, in order not to be afflicted by God in this world and in the future…”106 Of course, this rule by itself is not as such telling about expropriation, but what is important is the message that it incorporates. The message here is that nobody (a person or a king) should take the property of another person by violence (such as theft and robbery) or buy by force (such as compulsory purchase). One may argue that this provision does not give the power of expropriation to the sovereign for it clearly forbids the taking of land without the consent of the owner. But, the implication is that in the event of pressing public necessity, the king would have no choice but to expropriate the land, and to rectify this wrong (transgressing of the Fiteha Negest), he would make a recompense in kind or in cash to those who lost their property.
When Emperor Fasiladas (1632–1667) established the medieval capital city of Gonder, he must have taken lots of land from farmers, or he must have built it on barren hilltops. There are extensive records that show the free transaction of land in the Gonderine period.107 In other words, land was held in private hands during that period. But, there is nothing important that is said about the expropriation of land in that era. Yet, we can assume that the later monarchs must have taken land either by purchase or expropriation from private owners for the construction of churches, royal castles, streets and market places during the subsequent century and half, following the establishment of the city by Fasiladas.
As already discussed previously, the church was a holder of large tracts of land property in all the history of Ethiopia. Emperors of different eras made the grants to churches and monasteries so that the latter would be supported from the income. However, sometimes, this smooth relationship between the church and the palace encountered difficulties, which resulted in the expropriation of church lands. For example, as a result of the clash he had with the Church on religious matters, Emperor Susneyos (1607–1632) is said to have seized a substantial part of land belonging to the monastery of Debre Bizen.108 In a later period, extensive land which caused tension was expropriated by Ras Michael Sehul of Tigre. According to James Bruce’s records, as a result of the friction that Michael had with the Church authorities, a royal proclamation was issued at Gonder in 1771 ordering that “all lands and villages, which are new, or have been given to the Abuna by the king, shall revert to the king’s own use, and be subject to the government, or the Cantiba [mayor] of Dembea, or such officers as the king shall after appoint in the provinces where they are situated.”109 In both cases, church land was taken or reverted to the kings’ hands without compensation. Besides, there is no evidence that shows that the land was taken for the common good of society; rather it was taken because of power struggle between the monarchs and the Church.
We find a similar story, in a later age, when Emperor Tewodros II (1855–1868) wanted to reform the land tenure and the Church itself. Among others, he ventured to reduce much of the Church’s land and transfer it to landless tenants110 and to his soldiers who used to live by plundering and raiding peasants.111 The Emperor was complaining on the multitude of Church land as compared to his own which was intended to be allotted to the soldiers. The clergy resisted the Emperor’s plans but as the contemporary missionary, Henry Blanc said, “Theodore could not tolerate any power in the state but his own. He had fought hard to be the supreme ruler of Abyssinia … and when he thought the occasion favorable to do away entirely with his power and influence, he confiscated all the Church lands and revenues.”112 His ultimate aim was to transfer the Church land to landless peasants and soldiers for better use, as salary, and to make it more productive.113 Although his attempt was not successful,114 this, at least, may be taken as a good example of expropriation, because the establishment of modern salaried military (defense) could be considered as an act done in the interest of the public.
The sovereign’s right in respect to the land in Shoa (central Ethiopia) was also similar, if not greater than that of the northern Ethiopia. In a similar fashion as noted above, it has been said that in Shoa “all the best portion of the soil pertain to his Majesty, and all the life as well as the property of every subject is at his sole and absolute disposal.”115 And yet, some evidence from this part of Ethiopia shows that expropriation to meet royal needs seems to have been accompanied by the provision of alternative land for the dispossessed. Richard Pankhurst, citing a contemporary English traveler of the time, Charles Johnston, relates that when Sahel Sellasssie, King of Shoa (1813–1847) erected his palace at Ankobar, many people had been evicted from their land so that their land could be used for the palace construction. The Englishman was greatly interested in the matter and made careful investigation about the fate of the peasants. He particularly wanted to know whether “any injustice had marked this course.” His informants all agreed that ample compensation had been given by the king to the peasants.116
Ethiopia witnessed considerable amount of road construction after Emperor Menelik II came to the throne in 1889. Many and impressive amount of roads were constructed in the city of Addis Ababa during his reign.117 Another important accomplishment of his period was the construction of a 781 km railway from Djibouti to Addis Ababa and the establishment of new towns along the new railroad. In 1894, the railway company was established and the Emperor was asked to “grant to the company a continuous stretch of territory along the entire length of the line.”118 The amount of land, according to Section Eleven of the concession contract, was to be 1,000 m in width. But, a 1908 revised contract under Section Four indicates that the land would be 1,000 m from Djibouti to Dire Dawa, 200 m from Dire Dawa to Awash, and 50 m from Awash to Addis Ababa.119 This shows the amount of land given decreased as the line came from the lowland desert to the highland populous areas of the country.
Although there is information on the sale and purchase of land in those newly established towns, such as Dire Dawa, whether the land utilized for the railways construction was acquired through purchase or expropriation is not known. Nevertheless, the assumption is that since the eastern part of the country on which most of the rails were rested was a desert and was inhabited by the Afar nomads, the land might not have been purchased or expropriated. But, in towns and in the central highland plateaus, where the land was populated, there is no doubt that the Emperor must have expropriated land for such purpose. Yet, there is no available information whether or not compensation was paid at that time.
Nonetheless, there is relevant information from the same period that seems to enlighten us on the tradition of the time concerning expropriation procedures and compensation. This interesting story was told by Rober Skinner, the head of American Mission in Ethiopia during the Menelik II era. He noted that in 1903, a year before the road between Dire Dawa and Harar was projected, it was necessary to take the land required for the construction of the road. The local Oromos who lost their land waited upon the governor, Ras Mekonnen,120 and complained saying that their farms would be ruined and as a result they could not accept a price offered for their land. Surprised, the Ras asked, “But it is fair price, is it not?” and the peasants answered: “It is not the price we complain of, most gracious lord; we don’t want our farms destroyed.” The Ras thereupon ordered them out of his presence, saying, that there was but one Governor of Harar, and that he alone would say what might or might not be done. The road was constructed…and when it was all over, the Ras called the peasants before him, and telling them that he had been compelled to exert his authority in order to demonstrate his supremacy, he was now prepared voluntary to pay them twice the value of their property, thus showing them that their Governor could be generous as well as just.121
This story is interesting in the sense that the concept of expropriation is fully explained by it. Road construction is a work considered as a public good in expropriation. We also see the absence of consent on the part of the peasants to surrender their land; it was rather compulsorily taken. We even see the compensation paid to the farmers in lieu of their lost land. The other important assumption that we may gather from it is that there was the tradition of payment of compensation in the event of expropriation. The Governor of Harar was a trusted General and a close counsel of the Emperor, and hence what he had done at that time must be based on the examples of tradition or the acts of the Emperor himself. Taking into consideration the fact that both the railroad and the gravel road were constructed at the same period, and the fact that both cousins (the Emperor and the Governor) shared the same principles and beliefs, we can safely conclude that land owners who lost their property to the construction of the Ethio-Djubouti railroad must have got compensation.
To strengthen this point one may also look into the historical developments of the time concerning property rights, all of which reinforce the above assertion, that the King must have been paying compensation. Emperor Menelik II was a modern leader who not only allowed the introduction of modern technology, but also established a cabinet of ministers to run the state. The Emperor in consultation with his ministers passed a series of edicts, among others, concerning land property. For example, his royal chronicler tells us that in January 1891, Menelik, after consulting the Fitha Negest, passed an edict concerning land found in Shoa (from Wayt to Awash). It shortly says that “no rist land shall be expropriated from the owner irrespective of his crimes; let his cattle be taken as penalty”.122