© Springer International Publishing Switzerland 2015Daniel W. AmbayeLand Rights and Expropriation in EthiopiaSpringer ThesesRecognizing Outstanding Ph.D. Research10.1007/978-3-319-14639-3_4
4. Expropriation Procedure
Institute of Land Administration (ILA), Bahir Dar University, Bahir Dar, Ethiopia
Daniel W. Ambaye
Expropriation procedure, also known as condemnation, is the process of implementing the taking of private property under expropriation power. Although it is said that the government has an inherent right to take private land by way of expropriation, due process of law requires following some procedural steps. In other words, to follow the procedure is in accord with some legal right or requirement of justice. A discussion on expropriation procedure must consider and investigate the authorities which are involved with the taking and the mandatory procedures they follow. Therefore, this chapter discusses the institutions that have roles in the expropriation process and the procedural steps that must be fulfilled during expropriation in Ethiopia. Some of the steps that should be followed before appropriating the land are: public discussion, serving notice, taking inventory and assessing value of property and effecting payment of compensation. In discussing the Ethiopian case, the institutional setup of some countries is also reviewed to have a clear picture of the trend and the place of the Ethiopian system.
4.2 Expropriation Power
4.2.1 Brief Overview of Foreign Practice
After studying the practice of different countries, Kitay in his valuable book, Land Acquisition in Developing Countries, differentiates the allocation of expropriation power into two: horizontal allocation and vertical allocation.1 In the horizontal allocation, the expropriation authority may be given to the legislator, executive or judiciary, while in the vertical one it may be allocated to federal or state governments or their departments and other quasi-government organs, such as, utility and power companies. Of course, the amount of involvement of these organs (horizontal or vertical) differs from country to country.
While the right or power of eminent domain is inherent in the state, it is also 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.2 In transforming this right or power from a potential one into an active one, the legislature may proceed directly and appropriate the required property by legislative act, or it may proceed indirectly by delegating its right or power to take such property to its chosen agent. In most countries, the legislatures use the second method and allocate power to the executive and judiciary. The basic idea is that in horizontal allocation of authority, the legislature sets out expropriation legislation that determines the public purpose for which land may be expropriated, the procedures which should be followed, and the roles of different organs of the executive branch and that of the judiciary. For example, in the USA what constitutes a public use, although in the first instance a legislative question, is in the last analysis a question of Constitutional Law to be determined by the courts.3 Concerning the powers of the executive and the courts, Kitay elaborates, the executive decides when a project is of public interest, designates the property to be expropriated, and appoints an expert to evaluate the property. Then, a judicial proceeding resolves any dispute over the public purpose and amount of compensation.4 The vertical power allocation focuses, on the allocation of power within the executive branch itself; whether a certain project amounts as public purpose and whether land is needed to be expropriated may be decided starting from top by a president or minister to local municipality, as the case may be. In many countries, property valuation is the task of the executive branch; it may be carried out either by panel of external valuators or by staff experts within the executive organ. But, in other countries, the court involves in the valuation process.5
Therefore, the trend seems that expropriation may be either purely administrative that excludes the court, or a judiciary in nature, or a hybrid of the two. As we shall see, the Ethiopian expropriation procedure is totally administrative in nature. Likewise, in some countries, such as Singapore, expropriation procedure is purely administrative in nature. Starting from declaration up to compensation and appropriation of land, the procedure is decided by the administrative (executive) body.6 Yet, in others, the whole expropriation process falls under the jurisdiction of courts. For instance, in Nicaragua, both the designation of the property for the project and the valuation are the responsibilities of the judiciary.7 But, in most countries, the process involves both the administration and courts. For example, in Peru, the first stage is administrative and results in the declaration of public purpose, the designation of the particular parcel to be expropriated, and an initial appraisal of its value. The second stage is a judicial one, wherein the court approves the valuation result and provides an order for land transfer.8
4.2.2 Expropriation Power in Ethiopia
18.104.22.168 Who May Decide Expropriation
In Ethiopia, like in any other country, the role of the legislature is to enact expropriation legislation that determines the powers and roles of different actors. To this effect, the legislature enacted the current expropriation proclamation in 2005.9 Article 3 of this Expropriation Proclamation is the relevant provision in Ethiopia to identify the appropriate authority that is empowered with expropriation power. The provision under the title “Power to Expropriate Landholding” declares:
A woreda or an urban administration shall, upon payment in advance of compensation in accordance with this Proclamation, have the power to expropriate rural or urban landholdings for public purpose where it believes that it should be used for a better development project to be carried out by public entities, private investors, cooperative societies or other organs, or where such expropriation has been decided by the appropriate higher regional or federal government organ for the same purpose.
A wereda (district) and urban administration (municipality) are both the administrative organs that are responsible for the administration of rural and urban land respectively. They are empowered with the expropriation of land, after following other steps that shall be discussed hereunder. If the woreda or municipality believes that the project for which land is requested will serve the society, it just can expropriate the needed land. In other words, they have the power to determine the nature of the public purpose of the project by themselves. Secondly, the woreda or the urban administration designate the necessary land, setup a valuation committee to assess the property thereon, issue notice, effect compensation and finally take delivery of the land and transfer same to the project owner, the details of which will follow. Most of the time, this is done when the project involves small-scale investments, socially bounded developments (school, health center, religious and cultural sites) and so on, except in big cities like Addis Ababa, of course.
The other possibility that is envisaged in the provision is that expropriation may be decided by a higher regional or federal government organ. From the observation conducted by the researcher, in various areas, starting from urban upgrading to big private investments, decisions and orders usually come from above, and the woreda or urban administrations just execute the orders by performing the above process (designate the land, value property, provide notice, pay compensation and takeover of the land). Therefore, the role of the higher organ is limited to approving the project and deciding its public purpose nature; the other steps are carried out by the lower administrative organs (woreda and municipality.). When it is said a higher organ, depending on each case, it could be the prime minister, a particular minister, a regional governor, or a bureau in a region. At federal level, the Ministry of Agriculture, Ministry of Trade, Investment Agency, Ministry of Construction and Urban Development, and Ministry of Mining are the most notable ministries that give expropriation decisions and request the relevant woreda or municipality to proceed with the land transfer.
22.214.171.124 Who Can Initiate Expropriation
Initiation means requesting land or the expropriation of land for public purpose activities. In this regard, the proclamation identifies the organ that may initiate expropriation as an “implementing agency.” Implementing agency, according to Article 2(7) of the proclamation, is defined as “a government agency or public enterprise undertaking or causing to be undertaken development works with its own force or through contractors.” This “implementing agency” is required to prepare detailed plan before a year and pay compensation to landholders when the time comes (Article 5). But, the definition seems narrow for it excludes other organs; what is included in the definition is only the government: government as a public body and government as business enterprise. This argument may also be strengthened when we see the contents of Article 3. From the outset, it is envisaged under Article 3 that the projects may be carried out by public entities, private investors, cooperative societies or other organs. It seems the definition given to the implementing agency is mistaken since it makes the proclamation to contradict with itself; on the one hand, it allows all these organs to get land by expropriation and on the other, it excludes them from benefiting from it. Therefore, it must be understood that the initiator may be one of the following: government administrative body, government business enterprise, private investors, cooperative societies, local community, charitable organizations, diplomatic missions, Micro and Small-Scale Enterprises (MSEs), etc.
In any case, assuming the proclamation includes all of the above as initiators (which is also the practice), what is expected from the initiator of the expropriation procedure? As stated under Article 5 of the Expropriation Proclamation, the first thing expected from it is to:
prepare detail data pertaining to the land needed for its works and send same, at least one year before the commencement of the works, to the organs empowered to expropriate land in accordance with this Proclamation and obtain permission from them (Article 5.1).
To elaborate this provision, in practice, the detailed data or plan has to be submitted with an application for land access. The plan, usually known as ‘project plan’, needs to indicate the type of project work to be carried out, financial statements, social benefits, environmental impact assessment, and the time frame within which to finalize the work. This application may be made either to the woreda or municipality or to one of the higher organs which have the power to decide. For example, investors who want to engage in large-scale agriculture (more than 5,000 ha) must apply to the Federal Ministry of Agriculture, and those who want to engage in mining should apply to the Ministry of Mining. Those investors who wish to engage in manufacturing apply to the Ministry of Trade or Investment Agency. The idea is that an affiliated ministry that issues the license is in a better position to understand and judge the public purpose nature of the project. Once the applicant gets approval, his application will be re-directed to the respective woreda or municipality which is supposed to give the necessary land. The woreda or municipality may not need the detail of the ‘project plan’; they rather need a “land plan” that shows the land size, location, and a map of the area.10
If the project work is of a small-scale, such as a hotel or small scale agricultural investment, both the ‘project plan’ and ‘land plan’ may be submitted to the concerned woreda or urban administration.
Sometimes, it may be a government agency, such as Ministry of Water and Natural Resources, which is responsible for both the expropriation decision and the implementation of the project. For example, in the Amhara Region, the Ministry has acquired land in various areas by expropriation for the construction of dams, and in all cases the woreda got only an order to expropriate (value properties, and transfer land) a specific land area.11
Still, another possibility is that the project may be initiated by the local community itself. Usually, local community may want to build schools or health centers, or may demand a specific land for cultural or religious purposes. In such a case, it will be the woreda or municipality that may also even prepare the plan for the society.
The second obligation of the implementing agency, the initiator, is the payment of compensation (Article 5.2). The idea is that as a beneficiary of the land expropriation, the implementing agency should also bear the payment of compensation. However, in some cases, government or community may be encumbered with the compensation obligation. For example, in case of urban expansion, it is the government that pays compensation to peasant landholders. Sometimes, in order to encourage investment, the government may give land for free in selected areas and the investor is not expected to pay compensation. The usual trend in urban areas is that a city municipality prepares land and puts it in its land bank in order to transfer it by auction.
4.3 Procedural Steps in Expropriation
The Expropriation Proclamation has not given clear procedural steps that should be followed by the administrative authorities in the event of land expropriation. Therefore, we have to construct one from the reading of the different provisions of the Expropriation Proclamations and the directives. The proclamation, however, provides one clear step concerning the issuance of notice of expropriation order:
where a woreda or an urban administration decides to expropriate a landholding …it shall notify the landholder, in writing, indicating the time when the land has to be vacated and the amount of compensation to be paid.12
This provision by itself does not tell about the other activities that should be fulfilled and the priority levels existing among them. One clue that we find here is that notice would be issued after the completion of valuation, since the notice is supposed to mention the amount of compensation. In any case, using this very provision and others, we shall hereunder provide the basic steps.
4.3.1 Making Inquiries
Once the application for land and the accompanying “business plan” and “land plan” are made to the relevant authority, the latter must at least make the following inquiries:
126.96.36.199 Ensuring Eligibility
Ensuring that the applicant who requests the expropriation is a legally permitted person or organ is the first thing to be made. This is to say that it must be certain that the applicant is one of the eligible organs mentioned under Article 3(1). For example, an expropriation request for personal use, such as building ones house on the land, may not be accepted, for individuals other than investors are not mentioned in the law.
188.8.131.52 Approving Public Purpose
The woreda or urban administration or another higher body that decides about expropriation must approve the public purpose aspect of the project. The proclamation may not help much in this respect since it is general, as we shall see in the next chapter. But, regions came up with lists of projects considered as public purpose activities. Besides, the land requested should not be related to protected or forbidden areas, such as natural, cultural and historical reserved areas, national parks, and natural forests.13
184.108.40.206 Weighing Pros and Cons
An expropriation act has both positive and negative side; while someone is benefiting, another may be adversely affected. Although it is possible in principle and legally permissible to expropriate, the public benefit thought to be gained may be insignificant compared to the inconveniences caused as a result of the action. In some countries, it is stated in their law that expropriation shall not be used if the inconvenience for private individuals outweighs the public advantage.14 Similarly, the Federation of International Surveyors’ (FIG) guideline on compulsory purchase dictates that compulsory purchase should not be opted if other routes of land acquisition methods can be pursued.15 This has happened in the Amhara Region in one place.16 Weighing the pros and cons, hence, helps the body to reach a rational decision.
4.3.2 Public Discussion
Whenever the administration decides on expropriation, the woreda or municipality calls a public meeting to explain the purpose. Public discussion should not be understood as a “notice” for the latter will be another stage. Public discussion is a procedure actually practiced by all regions and cities, although it is not mentioned in the Federal Expropriation Proclamation. Public discussion is also a proposed and actually practiced procedure in many countries.17 Public discussion provides an opportunity for people to learn more about the project, to receive answers to their questions about the process and the procedures and to voice their concerns. Open public discussion enables the government to appreciate the concern of the people and to create smooth environment for the project’s undertaking. If the public is not clear about its benefit and the compensation packages before the commencement of the project, conflict may arise. Taking this into consideration, the Ethiopian government gives more focus to this stage as compared to others. From the interviews conducted with officials and affected farmers, it has been learned that in Amhara Region as well as in Addis Ababa, the government usually sends higher government officials to discuss with the affected people.18 Sometimes, though, the officials simply exaggerate the benefits to be accrued to society, and this causes frustration when the expectation was not met. This has been observed, for example, in the field visit made in Rib Irrigation Dam Project in the Amhara region, where farmers who lost their land complained that what was promised to them by the officials during the public discussion did not materialize. Further people moved from the Arada, Basha Wolde Chilot and Sheraton expansion areas, confirmed the same frustration. They claimed that officials at the beginning have promised them that they would be given a place (condominium houses) on the same site, not at the periphery.
The purpose of public discussion should be to try to persuade the public to accept the project and cede its land peacefully. From good governance and security perspectives as well, it enables government to hear concerns of the public in a bid to give answers and to avoid tensions. Otherwise, it cannot be considered as a democratic meeting, wherein the people are supposed to accept or reject the project. Expropriation by its nature does not demand the consent of the owner, and demanding consent of owners will be a contradiction in terms.
Under exceptional circumstances, though, the woreda may need approval of the community before it begins a project. Such peculiar situation happens when the development work is supposed to be made by the community for its own use, like rural health centers, roads, or schools. In this respect, the Amhara RLAUP declares that “where the land expropriation activity is directly related with the development of the surrounding society, the case shall be submitted to the kebele people for discussion and obtain a majority vote thereof, before it is decided by the woreda branch office of the Authority to expropriate land for public service.”19 The wisdom of inserting this procedure is that if the society understands and agrees, first, there will be little resistance to obtain the needed land and fund. Secondly, there is the possibility of compensation being paid by the community itself. This occurs when a local community agrees to give part of the community land as compensation to those who cede their land for the project development. A good example in this case is the rural roads construction in Amhara Region where government connects rural kebeles. The gravel roads pass through farm lands and the Regional Rural Roads Authority does not pay compensation, since the farmers are supposed to be compensated by the rural society.20 The respective kebeles or woreda