© Springer International Publishing Switzerland 2015Daniel W. AmbayeLand Rights and Expropriation in EthiopiaSpringer ThesesRecognizing Outstanding Ph.D. Research10.1007/978-3-319-14639-3_2
2. Land Rights in Ethiopia
Institute of Land Administration (ILA), Bahir Dar University, Bahir Dar, Ethiopia
Daniel W. Ambaye
Land is the source of all material wealth; it provides us with all our needs to sustain on. It is also a major economic asset from which people and nations get significant profit. In many developing countries, land has been considered as an important economic and social asset where the status and prestige of people is determined. Because of such a high importance given to land, as compared to other properties, the legal protection accorded to land is always strict in nature.
Land is one form of property that is a subject of ownership or other form of use rights. Property is everything that has material or moral value for human beings… and guaranteed and enforced by law.1 For legal scholars, “property” refers to entitlements to resources protected by formal legal institutions.2 Property in the sense of legally protected entitlements comes in a variety of forms. The paradigmatic legal property right would be full title to a parcel of land or an object like a car, real property and personal property (or “chattels”), respectively. But, the law also affords legally enforceable claims to intangible resources such as intellectual property.
Different disciplines define “land” differently, in a manner that suits their objectives. In legal documents, mostly, it is considered as the surface of the earth and any fixtures on it, such as buildings, fence, tree plants, and improvement to the land.
For instance, according to Articles 552–554 of the French Civil Code, ownership of land “involves ownership of what is above and below it.” Unless restricted by statutes, the owner of a land is considered as owning also the minerals inside the land and the airspace above the land.3 The basic feature of the above rule is that the term “land” signifies not only the surface of the earth, the ground, but also things found beneath the surface and fixtures above, and sometimes the airspace, above the ground. Of course, the details of ownership beneath and above the ground may be limited by different legislations. But fixtures, such as trees and buildings are always considered as part of the land.
Under Ethiopian law, property is either movable or immovable (Article 1126 of the Civil Code).4 Land and buildings are considered as immovables (Article 1130 Civil Code). Hence, unlike the French one, where “land” includes “the ground and any fixture on the land”, the Ethiopian Civil Code treats “land” and “buildings” as two separate types of immovables. Whether buildings should be considered as part of the land is not clearly envisaged as its French Counterpart Ethiopian law, of course, follows the French Civil Code, Article 518 which also says “land and building are immovable by their nature.” But, as already shown above, in another section of the law, the French Civil Code declares that ownership of surface of land means ownership of all things above and below the land. In Ethiopia, however, there is no such kind of encompassing provision in the Civil Code. On top of that, today, as envisaged under Article 40(3), (7) of the FDRE Constitution, ownership of land is vested in the state and the people, while ownership of building is given to the individual. It means, the land surface and the building over the land are owned by two separate bodies. On the other hand, unless and until they are separated from the land, trees and crops are considered as part of the land (Article 1133 Civil Code). In other words, “land” signifies the ground and other fixtures to the land such as trees, grass, crops, excepting buildings and other similar erections.
In this chapter, land rights are referring to set of legally guaranteed entitlements or privileges which emanate by being an owner of the land. They may also be referred to as bundle of right or attributes of ownership. Ownership has not been defined in the Roman law or the French Civil Code, which is the main source of the Ethiopian Civil Code. The Romans were not concerned with theoretical definitions, and as Johnston, in his book, Roman Law in Context, remarked, “The best approach (taken by the Romans) seems to deal with the main attributes of ownership and from that allow the meaning of the term to emerge.”5 The attributes of ownership, according to the Roman law, are usus—the right to use the thing; fructus—the right to collect benefit offered by a thing; abusus—the right to dispose of a good either physically (destruction), or from a legal point of view (alienation-transfer gratuitously or for consideration).6 In Anglo-American legal system, ownership is best described as bundle of rights, lists of loosely attached and transferable rights.
Some of the land rights which emanate from ownership are the right of use and enjoyment, right of collecting benefit by renting and leasing, right to give as mortgage, alienating for consideration such as exchange or sale, and alienating for free such as inheritance and donation.7
2.2 Land Ownership Regimes
Before proceeding to the discussion of ownership, it is important to provide an explanation on the nature of land ownership in Ethiopia first. As shall be raised and discussed in different parts of this dissertation, the Ethiopian land is governed under two proclamations and provides two classes of land rights. From the outset one needs to know that land belongs to the common ownership of the Ethiopian people and the state, and hence it is not subject to sale or other means of exchange. For this reason, rural farmers and pastoralists are given a right called “holding right” that provides rights of use and enjoyment, lease/rent, and bequeath (donation or inheritance). Obviously, this right is short of ownership because of the absence of the sole right of selling the land. Similarly, urban residents can get land under lease agreement that guarantees a 99 years use right on the land. Even if the land may be transferred by sale together with the development or without it (bare land only), it is highly restricted which makes it also short of ownership (details are presented under Sects. 2.6.4 and 2.6.5).
Therefore, when it comes to the classifications of the land regimes in Ethiopia, it is not made from pure ownership right perspective, but from the “holding right” perspective.
Honoré, in his seminal article, Ownership, conceives ownership as “the greatest interest in a thing which mature systems of law recognize.”8 Looking into existing Civil Codes one may find similar expression in the renowned French Civil Code. The Code under Article 544 describes “Ownership” as “the right to enjoy and dispose of things in the most absolute manner, provided they are not used in a way prohibited by statutes or regulations.” Similarly, the Ethiopian Civil Code under Article 1204 explains ownership as “the widest right that may be had on a corporeal thing;” and “such right may neither be divided nor restricted except in accordance with the law.” In other words, of all property rights a person has over an object, ownership is the widest and most complete one; and yet, this right may be restricted for public health, safety, security etc. reasons sanctioned by law.
Land may be held in one of the following four ownership regimes: private, communal, state or open access. The physical characteristics of the natural resource, social circumstances, technology change, or population growth dictate one of the above forms of property ownership solution.9 The idea is to own some land in one form (e.g. Private, common, state or open access) may be more appropriate perhaps from ensuring economic efficiency, for conservation/management of resource, for avoidance of conflict(ensuring justice) or for other reasons instead of another one.
For instance, to hold grazing land in common may be wise than using it privately (to avoid conflict and ensure justice) or in open access (to conserve the resource). Assume the grazing land in a village is owned by one individual while other villagers have no access or alternative food for their cattle. Obviously, people will feel that the arrangement is unjust and they may resort to violence to get access. As Anthony Scott has noted, “The mere existence of the institution of private property is not sufficient to ensure the efficient management of natural resources; the property must be allocated on a scale sufficient to ensure that one management has complete control of the asset.”10 As argued by most property right theorists, the cost of preserving the asset (grazing land) may be higher than the benefit gained from it, and this makes the ownership unworthy.
On the other hand, if the land is open to all, then the result will be the immediate depletion and exhaustion of the resource, in this case the grass. In a word, there is always some kind of rationality behind some form of property ownership arrangement. In the following sub-topics, an attempt is made to discuss the nature of the four types of property regimes mentioned above. Based on the current Federal Democratic Republic of Ethiopia (hereafter FDRE) Rural Land Administration and Use Proclamation (hereafter RLAUP) and the Civil Code, we shall also identify what kind of land falls under which regime in Ethiopia.
2.2.1 Private Ownership
Private ownership is a property arrangement in which full and exclusive rights to decide about the property are given to a single person (natural or artificial) or group of persons. The owner shall have the right to use, possess, receive income from it, or alienate it gratuitously or for consideration. As mentioned earlier, in countries following the Roman law system, the usual way to describe ownership rights is of usus, fructus, and abusus. Modern writers add one important element to these rights: the right to exclude others from using and possessing the property.11
The experiences of many countries concerning land show that farming plots, residential land plots, buildings, easements (streets to serve the land property) are owned privately. In western countries, forest land, small lakes, streets and rural roads are also subject to private ownership.
The current governing land legislations in Ethiopia are mainly the FDRE Rural Land Administration and Use (RLAUP) 456/2005 and the Urban Land Lease Proclamation 711/2011, which are in place to govern rural and urban land respectively. Besides, the FDRE Constitution, FDRE Expropriation Proclamation 455/2005, and the Ethiopian Civil Code are relevant. Based on the above review, when one looks at the land ownership in Ethiopia, the ground (surface earth) is not subject to private ownership (see Article 40(3) of FDRE constitution). Land belongs to the state and the people, and is not subject of sale and exchange. This means that it is futile to classify the land paradigms in Ethiopia from pure ownership perspective. Rather, the land right provided, as termed in the RLAUP, is known as “holding right.” It is less of ownership in that the holder lacks the power of sale and exchange12 (details are given in Sect. 2.6).
Based on the above information, when one looks into the FDRE RLAUP 456/2005, one finds under Article 2(11), “private holdings” referring to private farming plots given to peasant farmers, pastoralists and semi-pastoralists. It is not clear about the private plots to be given to pastoralists, though. But, the assumption is that the plots may be those which the pastoralists will use for settlement or housing, rather than for grazing, which is communal in nature. Private land plots that are provided to peasants in the highlands are used for farming and housing. In urban area, land that is acquired through lease or government grant is considered as a private possession.
2.2.2 Communal Property
As opposed to private ownership, communal ownership is a property right allocation made in the interest of group of users. Here, there is no single individual in a privileged position to control and have command over all of the resources. In a system of communal property, rules governing access to and control of material resources are organized on the basis that each resource is, in principle, available for the use of every member alike. As noted by Clark and Kohler, writers on property law, “The defining characteristic of communal property is that every member of the community has the right not to be excluded from the resource.”13 In principle, the needs and wants of every person are considered, and when allocative decisions are made they are made on a basis that is in some sense fair to all.14
The most usual types of properties owned in common are grazing lands, forest lands, fisheries, irrigation systems, underground water, water wells, village roads, neighborhood streets, and so on.
The common feature of such properties is that they are not destined to an exclusive use of an individual person; every member of the community wants them equally. The other feature is that most of them are exhaustible, if left to anybody as open or free access. Even in case of allocation of such properties to specific part of society, the resources may be quickly depleted and individual members may not be encouraged to conserve unless the use and enjoyment is regulated by an internal sets of rules.
This is because people tend to care less for what is common as compared to what is their own. As modern economists argue, when the incentive to care and conserve is less than the cost of so doing, people will not go for conservation. One such modern economic theorist is Harold Demsetz, who argues that people give less care to what is common property, since the cost of taking care is higher than the benefit gained. The primary function of private property becomes a guiding incentive to achieve a greater “internalization of externalities.”15 In this way, individuals are made to bear the costs and benefits of their own activities, and to absorb the costs of inflicting spillover effects upon others.
According to Demsetz, if land is held in common, it is likely each user will not feel the full impact, in terms of the benefits but particularly the costs of his use. When, for example, many individuals use a forest to produce wood, no one has an incentive to increase the forest population (e.g. by replanting when a tree is cut), since the benefits of his doing so will redound to others as well as himself. In other words, while he internalizes (suffers from or is burdened with) the costs of planting trees, it will be others who will reap the benefit. If this is the case, any rational person will not invest his money and time for the care of the forest land, unless he is sure that the benefit of his doing is by far greater than the cost he incurred; or at least that he is sure that others will also do the same.
In the absence of such assurance, the common property will be depleted quickly and will face what Hardin called “The Tragedy of the Commons”, a situation where common or open access resources exhausted quickly by unregulated overexploitation.16 For this reason privatizing the land resource or setting internal rules are usually come up as solutions to the problem.
The difference between private ownership and communal ownership is that while in the former case the owner can sell his property, in the latter case, owner members may not be able to transfer their right by way of sale, especially to non-members.
Furthermore, in a well-functioning communal property situation, the users have certain rights and duties among themselves with respect to possession, use, and enjoyment of benefits from the resource. For example, in a regulated irrigation system, all participants have the right to divert water for specific time; they also have the correlate duty of not exceeding their assigned rate so as not to interfere with others’ water flow. Although by and large the internal rules governing the use of the common property are prepared by the members themselves, their enforcement or implementation may need state intervention.17
In Ethiopia according to Article 2(12) of the FDRE RLAUP 456/2005, “communal holding” is “rural land which is given by the government to local residents for common grazing, forestry and other social services.” This list is just an illustrative one and what are given are only examples. The government may allocate additional land as communal ones, if the local community needs it for some social or economic activities. Thus, land necessary for religious ceremonies, cultural festivities, or social gatherings may be permanently allocated to the village community in common. Besides grazing and forest land, one may also add irrigation systems (although the irrigable land may be private holding), water wells (especially in pastoralist areas), small rivers, hills,18 etc. to the list of communal lands.
2.2.3 State Ownership of Land
To describe “state ownership” of land, terms like “public ownership”, “collective ownership” or “government ownership” are also employed. Under the 1960 Ethiopian Civil Code, the term “public domain” is used for the same purpose. In any case, in this discussion, they shall be used interchangeably as the need arises.
In order to give additional explanation on the subject, it is proper to see the usage of the terms in some literature and legislations. The terms “state or government ownership” seem to denote the ownership of land by the political body, a central or municipal level, while “public or collective ownership” seems to signify the ownership of land by all the people or by the local community. It does not mean, however, that this definition would be fully acceptable; one has to rely on the legislation of the respective country to decide the actual meanings. Writers on property and land ownership, though, use the above terms interchangeably.19 Equally, others give different meanings. For example, the Chinese Land Law treats “collective ownership” and “state ownership” differently. Collective is understood as a village land committee, and farmers are forced to lease farm lands from these committees:
According to the 1982 Constitution…the structure of land ownership seems relatively clear that, in principle, natural resources and urban land are state-owned, while suburban and rural lands are collectively owned.20
In any case, what is important is to know that material resources are answerable to the needs and purposes of society as a whole, irrespective of the fact that the decision maker is the central government, a special national committee, or a village committee. The assumption is that even though it is the state which owns the land, the objective is to use it in the best interest of society in general. For example, in many countries21 urban land owned by city municipalities or local governments is used to benefit society, such as the provision for low cost housing.
Practically, there are no real differences between the dichotomy of the “state or government” on one hand, and the “collective or public” ownership of land on the other. My argument is that since the government, as a political body, puts itself as the representative of the people, the power of administration and allocation of land property is, most of the time, vested in the hands of the state, and hence the state becomes the sole decision maker. If, for example, we look into the land ownership system in former socialist countries, land was owned by the collective or the public, but the state was the real decision maker; citizens had use right only.22 In Ethiopia we find the same approach in reading Articles 40(3) and 89(5) of the FDRE Constitution, where the “state” and the “people” are considered as two joint owners of land and natural resources, but the state is represented to administer it on behalf of the people.
The FDRE RLAUP identifies, under Article 2(13), “forestlands, wildlife protected areas, state farms, mining lands, lakes, rivers and other rural lands,” as state holding lands. In this case, “other rural lands” means all land which is not held privately or communally. State land in Ethiopia means, land held by Federal or Regional government or by city municipalities. Rural land held by Regional governments is administered by woredas, while urban land is administered by respective city/town administrations. This means woredas and city administrations have the power to give and take land. The Federal government holds vast tracts of land found in lowland rural areas of the country destined to be transferred for large-scale agricultural investments.
All urban land which is not occupied by private lessees is held by the government/municipality. Although it is not mentioned in the current lease proclamation, one can assume that all city streets, sewerage systems, parks, highways, and empty spaces must belong to the state.
One question that may be raised is that what can be done if the new land proclamations (urban and rural) fail to address all the issues? Definitely, we go to the Civil Code. It must be stressed that the land legislations must be considered as supplements or modifications to the Civil Code. Further, since in no where the Civil Code is clearly abrogated, as far as its provisions are not contrary to the existing land legislations, it must continue its function. The concept of public property of urban areas, both in the Civil Code and the current land legislations is basically similar. Based on this argument, we may apply the Civil Code provisions on “public domain” to determine the situation of public/state lands in urban areas.23
The Ethiopian Civil Code under Articles 1444–1459 presents the nature and status of public lands in urban areas. To see the details, all [urban] lands owned by the state or administrative bodies are to be treated as “private lands” or as “public domains” (Article 1444). Although the provision lacks clarity, it must be understood as follows. All land owned by the state (centrally or through its various branches) is treated either as “private” or as “public.” “Private” means the state organ that owns (holds in today’s situation) land will have the right to exclude others from access and use. For example, state business enterprises (such as, banks, insurances, transport companies, telecom companies or energy companies) or administrative bodies (such as ministry of agriculture, ministry of finance) all happen to hold land and buildings. There is no reason that they should make their property open to all, and such land holdings will be treated as private holdings and governed by the civil code part that governs private property.
On the other hand, there are other types of state lands whose use and enjoyment are put at a “public disposal”, or by their nature they are “destined to a public service”. These are the type of land or buildings that are termed as “public domain,” (Article 1445) and the law tries to define their character. Since the definition of their character is not enough to identify them, the Code, under Article 1446, provides an example of such properties: roads, streets, canals, railways; seashores, port installations and lighthouse; buildings specially adapted for public services such as fortifications and churches. Thus, roads, streets, railways, canals are examples of properties put at public disposal.
2.3 Land Tenure and Ownership in Ethiopia
Under the general label “land tenure,” we are concerned with the complex relationships that exist between categories of individuals and groups in reference to land and other natural resources. These relationships can be analyzed in terms of sets of rights and obligations held by these categories of people with regard to the acquisition, exploitation, preservation, and transfer of land and related resources.24 A recent document published by United Nations Food and Agriculture Organization (FAO) defines land tenure as a “relationship, whether legally or customarily defined, among people, as individuals or groups, with respect to land.”25 Rules of tenure define how property rights to land are to be allocated within societies. They define how access is granted to rights to use, control, and transfer land, as well as associated responsibilities and restraints. In simple terms, land tenure systems determine who can use what resources for how long, and under what conditions.26
For a lawyer, as discussed above, what property right implicates is an entitlement that is enforced by law. Yet, tenure or property rights are wider than those written down in law books and enforced by law enforcements. Land tenure also encompasses those property rights recognized and enforced under customary systems. Customary land rights typically include communal grazing lands, private agricultural and residential houses. These rights are evolved indigenously within the local people. These traditional societies or groups have developed various ways of controlling land rights in different situations. These cover how land is managed in relation to members of communities; how land rights can be transferred within the group; and how land rights can be transferred to other persons outside the group.27
In Ethiopia, in Afar and Somalie Regions customary land tenure is still operational. Most of the time, community leaders and clan chiefs are at the center of the allocation and enforcement of rights.28 For generations, land rights in Ethiopia were governed and enforced by customary system. It was only after the 1960s and 1970s, that some legal measurements that changed the old system were introduced, especially with regard to rural land. In this section, an attempt is made to discuss the three types of tenure systems in Ethiopia, based on the historical, legal and political ideologies of the periods.
2.4 Tenure Systems in Pre-1975 Ethiopia
Pre-1975 Ethiopia is generally characterized as a feudal state, where most of the land was controlled by the state and feudal lords, and in which citizens were using land under different tenure arrangements. Such tenure arrangements were customary by nature and numerous in numbers. Before 1975, there were several types of land tenure systems which differed from province to province. For the sake of convenience and because of historical factors, the land tenures will be classified as northern and southern following the geography of the country. But, before that, let us see the powers and prerogatives of rulers and emperors of the time.
2.4.1 Land and Imperial Prerogatives
As quoted in Pankhurst, Job Ludolf, a seventeenth century German historian, is said to summarize the power of Ethiopian kings as follows: “The power of the Abyssinian Kings is absolute, as well in Ecclesiastical as Civil Affairs.”29 Other travelers and writers also testified that Ethiopian monarchs had been absolute over the people and their objects.30 Concerning land, the general claim, in the feudalistic Ethiopia, was that all land belonged to the king. Thus, all land rights emanated from the benevolent gift of the king to his subjects and the Church. The ideological background behind such claim was that land was acquired through conquest of local tribes by the Ethiopian kings to whom the land of the conquered was transferred in ownership as spoil of war. The state demanded an obligation of tribute from all land (except those which belonged to the church), as tax obligation was attached to land rather than a person.31 The idea of royal ownership of all land in Ethiopia was documented by royal chroniclers of different kings.32 For example, upon the purchase of land by king Lalibela (1200–1250) to construct his well known rock hewn churches in Roha, his hagiographer asked rhetorically to show the traditional power of the monarch in the distribution of lands: “who would have forbidden the king if he had decided to take the land [without purchase]?”33 In his famous conflict with the monastic leaders, Emperor Amda-Sion (1314–1344) is said to have demanded their absolute obedience to him because they lived ‘on the land of the king’. His son and successor, Sayfe-Arad (1344–72), is also said to have made the claim that ‘God gave (all the) land to me’.34 A more practical example of this royal prerogative over land is furnished by the abundant records of land grants made by Ethiopian kings in their name to various churches and monasteries.35
2.4.2 Land Tenure System in Northern Ethiopia
The northern part of Ethiopia is the cradle of Ethiopian civilization. It is believed that after the establishment of the state at the northern city of Axum, around 100 B.C, it slowly expanded southward until it took its present shape during the late nineteenth century.36 As shown above, although all land was considered property of the emperors, it was distributed to different users on different conditions. Hence, the land tenure system in the northern part of feudalistic Ethiopia may generally be classified as private holdings, church lands and state lands.
188.8.131.52 Private Holdings (Gult vs. Rist Land)
For centuries, Ethiopian rulers had been distributing land to the nobility and peasants in the form of gult and rist rights respectively. The natures of gult and rist rights are fully addressed by the definition that Hoben, an anthropologist, gives to the terms in his widely read book.37 Hoben writes that gult rights entail “fief-holding rights” whereas rist rights confer “land-use rights.”38 Other writers,39 as well, agree that gult (fief) rights confer the ruling class (bale–gult) rights of collecting tribute, judicial and administrative powers as well as military mobilization over the people occupying the land. And those people who actually occupy and farm the land had a rist (use) right to the land.
The recorded history about gult shows that it started at least during the fourteenth century.40 A lord who is provided a vast tract of land (3–4 square miles according to Hoben) as a gult will administer the people occupying it as holders of rist, collect tribute from them, adjudicate cases arising among them, and use the able bodies as soldiers during war times. He would retain part of the tribute as a fee for his services and fully use fees and fines he imposed in his power as a judge. However, the gult holder had no rights of produce over the land although he may cultivate part of the land for his private purpose using free local labor.
Referring to a 1917 book, Handbook of Abyssinia, written by an anonymous writer about the gult system in Tigray, the Northern part of Ethiopia, the historian Shiferaw Bekele describes the job description of gult-holder as follows:
The gult-holder, assisted by the local official (shum-adi), fixes the proportion of the state due which each adi (parish) must pay; he also acts as a court of appeal in civil and criminal matters from judgments of the shum-adi; he is responsible for peace and order in his gult and is, of course, the military chief of the district. In return for this he (a) has his land cultivated free of charge by the ristenyatat (rist holders); (b) receives all of the fines which he may impose in his judicial capacity; keeps a part, generally one-tenth, of the tribute collected by him; and (c) receives certain presents, example a sheep from each parish at Easter.41
Since gult was a kind of public office instead of land right, as a matter of principle, it was not transferable by inheritance or by sale. Of course, when the ruler/emperor wishes, the office might be passed to descendants. As exception, however, the historian Donald Crummey argues otherwise, based on his study of the seventeenth century Gonderine era. Without abandoning the view that gult was essentially a tribute right, Crummey argues that gult rights were transferred by sale and inheritance without necessarily involving the state.42 This is, however, an exception to the Ethiopian history of property right.
Rist rights, in contrast to gult rights, were land-use rights. In principle, they were hereditary and could be held by lords and peasants alike. Rist rights were land use rights claimed by a member of a kin from members of his/her generations of same ancestor. As described by Hoben, a single estate of gult land, comprising a few square miles, included within its boundaries strip fields, held as rist by scores or even hundreds of farmers. The gult holder might also hold some fields as rist within his estate of gult land.43
For all practical purposes, rist land was like private ownership except the holder lacked the right to sell the land. The peasant could be able to use, rent, and inherit the land to family members. In exchange, peasants were obliged to make payment for variety land related taxes. Selling the land to non-family members was prohibited. Land was then transferred in the form of inheritance from family to children for generations, which over time reduced the size of the farm lands.
In north Ethiopia, the rist land may have originated with ancestral first holders through government grant for a loyal service, clearance of forest, or perhaps purchase. Then, the land remained within the family forever and descendants would get a share of it irrespective of their presence or absence in the area. This land was held communally by the lineage and was not subject to sale and alienation. It was a common custom in many places that a person wishing to sell his share must transfer it to one of the lineage members; outsiders were not allowed to buy the land. In the north, thanks to this kind of land-holding system, a peasant could claim a plot of land as long as he could trace his descent. Tenancy in this part of the country was very minimal compared to the southern part. Some argue that the use-right was secured in the sense that political authorities, including the Emperor, or landlords refrained from interventions. As a result, “there was less tenure insecurity or fear of being evicted from the rist land.”44 The other character of rist in the north was that the land became highly fragmented because of the ad infinitum division of family land for many generations. Land disputes related to rist land claims were rampant in that they constituted 45 % of civil cases in court.45
The obligations of the rist holders were mainly two. The first was giber (land tax), which mostly amounted to one fifth of the produce or some form of fixed obligation delivered in kind that would be shared between the local gult-holder and the central state; and second, asrat (tithe) in which one-tenth of all crops grown had to be paid to the state.46 These are the two known legal obligations of the peasants although there were other informal obligations claimed by the nobility.47 According to the historian Bahru Zewde, the peasant’s “control over his produce and labor time, was limited by the claims of the nobility, both lay and clerical.”48 The peasant was forced “to undertake courvéé (forced labor) such as farming, grinding corn, and building houses and fences that claimed up to one-third of his time.”49 The rist holder or the peasant was also known as gabbar (which comes from the root word gibir, tax/tribute) which means tribute/tax payer.
184.108.40.206 Government Land
In the socio-political system of the time, institutions did not have any mechanism of collecting tributes in kind or cash and redistributing them to their staff in turn. What was done was to parcel out the land and give it to the individuals who would keep the institution going.50 As we shall discuss below, land was distributed to soldiers, priests, local administrators, judges, and state servants at various levels as remuneration for their service throughout the country. Modern state machinery with salaried soldiers and civil servants is of recent origin; it came after the Second World War. Therefore, land owned by the government was distributed to different people on the condition of serving the state at different levels. Such land might be reverted to the state in the event of non fulfillment of the obligation by the holder of the land.
Shiferaw Bekele51 argues that the whole land tenure arrangement was designed on some kind of implicit condition. Peasants were obliged to pay tax and to render manual services to the local gentry in exchange for the land rights they received. A peasant who failed to pay tax would loss his land. Church land had been distributed among member of the clergy and lay people on the condition that they would serve the church in different capacities, and failure to fulfill these obligations would cause the forfeiture of the land rights. Government land had also been distributed among different people on condition that they would continue to serve the state. The grand design in the whole property arrangement was that land was serving as a means to run the state functionary. In the old days since gold and silver was not found in abundance,52 the government had heavily relied in the land under its control to run the state.53 This is done in two ways, by giving land in lieu of salary to those who directly serve the state and by collecting tax tributes in kind from those who farm the land, which it may use for different purposes.
Generally speaking, state land is one which is categorized neither as private rist land nor church land. The two Ethiopian writers on traditional land tenure, Mahteme-Sellassie54 and Gebre-Wold-Ingida Work,55 provided us with various types of state land tenure. The list is long but, here, we reproduce few of them in order to show its nature. As stated above, land was provided to different people based on the service they rendered to the state and the names given to the land rights correlated to the obligations attached to them.
a. Melkagna Rist/riste-gult/siso-gult
According to this system, rist land was given to the malkagna or balabat, local gentry, because he cleared the forest and started to cultivate it. In other situations, a balabat who fought local tribes together with the king and brought about a lot of land to the state was given a rist as a reward, which should remain in his generation permanently, a semi-freehold right. In addition, such a person was also given a larger area as his gult. It means, out of the vast area of land given to him as his gult land, he also got some land as his rist land. Hence, the rist–gult holder would have the right to the whole produce from his land, and also a right to claim a third as tribute and a tenth (as tithe) from those who cultivate on the rest of his gult land.
b. Maderia Land
Maderia land was land granted for life, mainly, to government officials, war veterans, and other patriots in lieu of a pension or salary, but the state possessed a reversionary right over these land grants. In other words, it was temporarily given to government civil servants who were assigned to work in some locality in lieu of salary and it was returned to the state or given out to others when the civil servant was transferred or sometimes dismissed from his position.
c. Ginde-Bel Land
Ginde–bel Land is land given to persons who maintain government works of various types, such as ye–zemach meret, land belonged to soldiery, beklo kelabi meret, land given to those who look after government mules and horses, dingay felach meret, land given to those who work in the production of quarry for the construction of palaces, medf chagn meret, land given to those who carry and transport guns and cannons to battle front, dinkuan chagn meret, land given to those who carry and transport imperial tents, atkilt tekay meret, land given to those who plant trees and others in the compound of the royal palace, postegna meret, land belonging to those who transport mails and posts. These people were free from payment of land tax, but responsible for the asrat (tithe) one. The idea is that land was given for their services to the state and that they would be allowed to own it as far as they continue providing the services.
d. Were-genu, Balderas meret
Were–genu is land used for the raising of government cattle. The persons looking after such livestock were allowed to have maderia land of their own. In other words, the Were–genu land is dedicated to the feeding and raising of cattle and production of butter, both for the consumption of the royal palace. Similarly, Balderas meret is land held by peasants and reserved for the raising of government horses and mules.
e. Ganne-geb/maad-bet meret
Gann is a large container of Ethiopian local beer made of clay and maad–bet means kitchen, indicating that this type of land is related to the land selected for the production of food to the imperial palace. Since it was a custom for the monarchs to throw (hold) a big traditional feast (gebir) now and then, the palace needed a huge amount of food, either produced on such land or collected in the form of tax. Soldiers or peasants who worked on these lands were expected to supply the royal household with grains grinded once every year.
220.127.116.11 Church Land
The Ethiopian Orthodox Church had been the biggest beneficiary of state land grant since its establishment in the early fourth century at Axum (Ethiopian capital from 1st BC–8th AD). There is certain amount of evidence to suggest that the Cathedral of the Saint Mary at Axum, the monasteries of Abba Garima, and Debre Damo and several other religious establishments received grants of land at this time from the state.56 The traditional practice was for the sovereign to endow cathedrals, churches and monasteries with land as well as to give land to the ecclesiastics in attendance upon them.57 The historical records also show that such grants continued well up to the 21st century. Until the coming of the revolution in 1974, the church was said to be controlling one third of the land in the country.
This generous benefaction of the state was later on incorporated into the Fitha Negest (Law of the Kings), which in Ethiopian legal history, was considered as the first written legal document.58 Concerning land grants and the waiver of tribute/land tax, Section 40, No. 1540 cum. 1541 of the Fitha Negest reads as follows:
Let the king give honor to the order of the clergy, as did Constantine the Elect, faithful and righteous king; and as did others who followed him. Let the king be generous with his wealth. Let he give to each of them according to their ranks. First of all, the king shall give presents to the bishops; then to the priests, next to the deacons, and then to those who are below them. He shall exempt them from tributes, presents, and the other favors to be paid to the rulers. Let him assign something to the churches for the maintenance of the widows, the orphans and the poor, so that they may entreat God to reaffirm the true faith with the benefit in the Holy Trinity…59
Church lands were thus the most privileged since they were free from payments of tributes and land taxes.60 This doesn’t mean, however, that the cultivators of the land would be exempted from payment of land tax; on the contrary, they were equally responsible like any other peasant. This means, tax and tributes collected from the person who cultivated the land would be going to the church coffer instead of that of the government. In this way, churches were expected to support themselves.
Usually, the land given to the churches and monasteries, as gult land, was vast61 and the church was not expected to cultivate it. Rather, the church land was distributed among the people who served it. These people could be from among the clergy or lay men who supported and served the church in different capacities. Just like the peasant paid his tax to the government, they paid their taxes to be used by the church. The general name used for such type of tenure arrangement was Samon Land. Such land use was, however, as emphasized by Shiferaw above, conditional in that they had to continue to serve the church by themselves or through proxy. In most cases, priestly families had to see that one of their children became a priest. As Alvarez, the sixteenth century Portuguese traveler to Ethiopia, observed: “the sons of the priests are for most part priests…”62 This fact has survived even in modern history, as summarized by Markakis as follows:
There is a tendency among the clergy to preserve continuity and privilege within the family by passing on the priestly office from one generation to the next. A priest family will normally train one of its sons to enter the service of the church. Since the church provides traditional education, it is not difficult to get it. In this manner, the family preserves its rights over church land. Even if a family does not produce a priest from among its members, it seldom surrenders the land it holds under Samon rights; it simply arranges for a priest to discharge its obligations to the church, or may even pay a certain amount regularly to the administrator of the church in lieu of services.63
Concerning the proxy service, Shiferaw, in his study of land grants of five big churches in Addis Ababa, discussed some interesting facts: that six of the holders of Samon land, provided to the church of Enteto Mariam were Moslems.64 This means that although the original holders of the land might be Christians and probably priests, their descendants had changed their faith to Islam, and have continued to maintain the land by fulfilling their obligation to the church through proxy services.
2.4.3 Land Tenure System in Southern Ethiopia
The southern, south eastern and south western provinces of Ethiopia were brought under Emperor Menelik’s rule during the last third of the nineteenth century, above all between 1875 and 1889,65 and most land of the southern people was expropriated/confiscated and alienated to northerners. In areas where the people accepted Menelik’s rule voluntarily, traditional chiefs were allowed to retain their position and land.66 Landed property continued to belong to the inhabitants exactly as in the older autonomous provinces of the northern part of the country.67 The most successful, among these, were the present Wollega, Jimma, and Benishangul regions. On the contrary, the land of the rebels who resisted the entry of Menelik’s forces, after being defeated, was confiscated and distributed to nobles, the church, Menelik’s generals and soldiers, while the people remained landless gabbars. 68 The upper elites were empowered with appropriation of all taxes for themselves by passing a fraction of it to the sovereign. They were also given estates to cultivate for their own use.69
Land acquired through confiscation was then distributed on three-thirds or four quarter basis. The new rulers took either two-third or three-quarters of the land and left the remaining fraction (one third or one quarter) to the local chief who was then known as balabat (gentry). This last part of land is known as siso (a third) land. The big portion of land taken by the new settlers was shared between the church and the military based on the same principle applied in the Northern provinces. The amount of land distribution was 1–3 gasha (1 gasha is 40 ha) for a soldier, 10 gashas for hamsa–aleqa (commander of fifty), 20 gashas for meto–aleqa (lieutenant), 30 gashas for shamble (captain)70 and so on.
Such land was granted on the basis of different conditions or names. Some are given as rist–gult or siso–gult, such as those given to the local chiefs; some as maderia (in lieu of salary for civil servant, war veterans, on condition of serving the state in time of war), and some as ginda bel, on condition of carrying tents, cannons, guarding prisoners and so on. The land given to the church was parceled out as samon land in the same fashion as had been done in the north.
A major characteristic of the development was, thus, the allocation of land to the new administrators and their followers, while leaving the natives landless. People from the north were encouraged to settle in these new areas and became beneficiaries of land grant or land purchase. This was done for two reasons: first, to recompense for their service in the war, and second, in order to create “effective occupation”71 of the newly annexed territories.
The native people, who now became landless, were paradoxically given the name gabbars. This name did not connote the same meaning as it had in the north; in the north the name was given for a landed peasant who paid his tax, while in the south the person was landless. The gabbars in the south, rather, became servants of those who took their land.72 Quoted by Pankhurst, C.F. Ray, a traveler to Ethiopia by that time, reflected that the nobles and their followers had considerable dependents upon them. The gabbar was a tenant subjected to more onerous burdens than existed elsewhere. The gabbar was obliged to look after the settlers by cultivating their land, providing labor, building houses and so on for free.73 The general practice was that a person who got land in the south, reserved some part of the land for his private use (cultivated by the gabbars for him), and distributed the remaining part of the land to his gabbars and collected tribute (one third for himself) and tithe (to the government) and allowed them to subsist on the remaining produce. A study made by Markakis on Kembata district in the southern provinces vividly shows the circumstances that existed at the time:
Kenyazmach (commander of right wing) Arado was allotted forty gashas (1,600 ha) of land for his service in Kambata district. He kept twelve gashas and distributed the rest among his lieutenants and soldiers. One of these, a man from Gojam named Ayele, was given a total of four gashas. The native people who found themselves on the land granted to Ayele became his gabbars (the total family member was 40 people). Ayele settled in the nearby town of Hosana, the capital of Kembata district. Ayele divided his land into hudad (good land reserved for him) and other which was distributed among the gabbars. The gabbars cultivated the hudad and delivered the entire produce to Ayele. Ayele also collected a third of the produce from the other land as a tribute for himself, and another tenth which he turned over to the state as tithe. The gabbars were also required to provide Ayele with firewood, to grind his share of the grain and deliver it to his home in town, and to repair his house and warehouses. In addition, they had to offer him obligatory gifts on Christmas, Easter, and Maskal. Ayele acted as the judge for his gabbars, and in his capacity imposed fines and collected fees. Whenever he visited his land, the gabbars were obliged to provide him with a feast.74
On the other hand, the rights of local gentries were remained unaffected because of Menelik’s decree passed in 1905 (1897 E.C), which declares that in every land allocation to northern nobles, a third or in some cases half of it should be kept to the local balabat, gentry.75 This is, as already mentioned above known as siso–gult.
The other characteristic of the southern land tenure was that the introduction of private ownership of land tenure. It is generally held that private land ownership in the south evolved out of Menelik’s expropriation and redistribution of land after his conquest.76 Many evidences and the wordings of the then laws showed that land was transacted through sale from state to individuals and among individuals. Emperor Menelik also introduced new land measurement (qelad) and a tax system, based on the measured lands in the southern regions. The new land taxes imposed on siso land, maderia land and rist land were actually paid by the actual cultivator, the gabbars, instead of the owner of the land which increased yet the burdens of the gabbars and tenants.
2.4.4 Modernization and the Declining Role of Traditional Land Tenure System
The coming of Emperor Haileselassie I, in 1930, to the throne in the early twenty first century and his modernist approach of governance started to contribute to the declining role of the traditional land tenure system, especially to the abolition of the gult system in 1966. The traditional tax collection system (in kind) did not enable to generate enough money to the state to create the much needed modern state, with modern salaried military and bureaucracy. As discussed above, land tax in the form of tribute and tithe was collected by the gult holder in the northern provinces and the land owner/holder in the southern parts. Because it was difficult to find enough gold and dollars, tax was paid in kind77 (grain, salt, honey, cattle and so on). As a result, government agents were forced to take it to market to change it to cash money. The system was not efficient and there was no strong bureaucracy to control its proper collection; land owners used to squander it. Studies show that the share of land tax was declining compared to indirect taxes (customs tax) throughout the 1940s–1970s.78 To rectify such problem and in order to collect enough money from land, successive decrees concerning land tenure and land tax were promulgated well up to the 1970s.
As noted by Hoben, traditionally there was relatively little separation between political power, the control of land, and wealth. Men who enjoyed high positions of secular authority usually controlled much land. They were also at the apex of a redistributional economic organization. They collected tax and tribute from those over whom they held authority and expended a large portion of it again on the feasts and followers that were essential to the maintenance of their political power and their legitimacy in the eye of their subjects.79 So, it was not easy for the government to weaken the power of the landed autocrats by eroding their traditional power of tax collection, administration and adjudication. That is why, as we shall see soon, the reformative process encountered strong resistance not only from the landed aristocrats but also, ignorantly, from the peasant farmers as well.
Hoben provides four reasons that weakened the traditional power of gult holders80: the growth of bureaucracy that replaces their administrative power, tax reform that demands the direct payment of tax to government rather than to gult holders, emergence and establishment of modern court system that replaces their adjudication power, and finally the establishment of modern military that took away their power as collectors of local soldiers. In here, we will briefly look into the tax reform that had directly affected the land tenure system.
Before the Italian invasion and occupation of Ethiopia (1936–1941), the government tried to come up with two decrees81 that tried to reduce the burden of the gabbars of the southern people. Especially, a decree promulgated on May 9, 1935 tried to reduce the burden of the peasantry by replacing all duties with payment of 30 thalers per gasha.82 But, of course, this was the eve of the Italian invasion and the rule was not implemented. The government came up with series of laws related to land tax after the expulsion of the Italian forces (after the Second World War) which we shall see hereunder. The Italians, during their 5 years occupation, had abolished all informal taxes and burdens except the land tax (tribute) and the tithe (asrat). After liberation, the government took advantage of this situation and continued the process without restoring the previous system. The major laws enacted after this period are discussed below.
18.104.22.168 The 1941 Land Tax Decree
Shortly after he restored his power, Emperor Hailesellassie passed a land tax decree83 in 1941 that mainly contains three things: first, the law entitled all government officials and agents to salaries; second, all the taxes paid by the gabbars were to be sent directly to government treasury. In other words, it abolished the intermediary role of land owners and gult holders.84 Land tax was to be collected by government agents rather than landlords. Thirdly, it abolished all ‘manual labor, firewood, grass and miscellaneous dues and taxes’ imposed on the cultivators. This did not include, however, ginda bel and desta in which tax was paid in the form of manual labor.
22.214.171.124 The Land Tax Proclamations of 1942 and 1944
Proclamation 8 of 1942,85 promulgated on 30th of March 1942, but had been put into effect starting from 11 October 1941, brought one important change to the Ethiopian land tax system; it proclaimed that henceforth all land tax should be paid in Ethiopian printed dollars rather than in kind. Article 3(ii) of the proclamation put the amount of taxation based on the size of land area in gasha and its fertility rate. It classified the land into fertile, semi-fertile and poor, and imposed 15, 10, and 5 Ethiopia dollars respectively for each gasha land holding.
This proclamation lacked clarity in that it was confusing whether or not it replaced the previous two land taxes (tribute and tithe). In any case, a second proclamation (Proc. No. 70/1944) that repealed this proclamation was promulgated in 1944. This was also known as Land Tax Proclamation. This proclamation86 under Article 4 provided a different tax rate for each of the three types of land fertility. Besides, it provided tax payments in lieu of tithe and tribute tax. For example for some provinces (Shoa, Arusi, Harar and Wollo) the amount set for fertile land was $35 in lieu of tithe and $15 in lieu of tax, for semi fertile land $30 in lieu of tithe and $10 in lieu of tax, and for poor land $10 in lieu of tithe and $5 in lieu of tax. In effect, this law had doubled the tax obligations of peasants as compared to the previous law. The other character of this proclamation was that it did not impose same tax rate for all parts of the country. The Northern provinces were even allowed to continue with their old system as their land was not yet measured in gashas. Once again, the law under Article 4 repealed “any other taxes, services and fees heretofore payable”.
126.96.36.199 Education Tax and Health Tax
In spite of the state efforts, the above two proclamations could not greatly enhance the revenues of the central government, although they did effectively eliminate the possibility of tax collection by organs other than the state. Hence, to increase the revenue from the land the government introduced Education Tax in 1947 (Proc. No. 94/1947) and Health Tax in 1959 (Decree No. 37/1959)87 based on the amount and fertility of land holdings. This shows that the state was desperate to increase its tax collection from the land, which in turn aggravated the burdens of the peasant.
188.8.131.52 Abolition of Gult and Tithe and Introduction of Income Tax
The government took things one step further to their logical conclusion, in 1966 and 1967, with proclamations which abolished both secular gult and tithe.88 Proclamation 230/1966 that amended the previous land tax, proclamation 70/1944, clearly dictated those people who cultivate on lands subject to rist gult or siso gult directly to pay their tax to the Government treasury.89 The same amendment eliminated the special tax status of those holding rist gult or siso gult rights with respect to land which they also own.90 Since traditionally gult provides tribute collection power over gult holders, the transfer of the tribute collection power to other body eliminates the traditional institution of gult system. If a person whose land has been subject to rist gult rights had henceforth to pay the land taxes directly to the Government treasury, there was nothing left for the gultenga, the holder of the gult rights. His rights had, at a stroke, been eliminated. Gult holders were allowed to change certain part of their holding to private tenure and the remainder was divided among the gabbars.
The next step taken by the government was to amend the income tax in 1967 by introducing agricultural income tax. One of the characteristics of this proclamation was that it abolished the payment of tithe. As discussed before, cultivators used to pay a tenth of their produce to the government through the gult holder. Now the removal of this tax meant again eroding the power base of the bala gults and thereby reducing the burdens of the peasantry.
Although it cannot be denied that all these steps to some extent alleviated (especially the last two proclamations) the burdens of the peasantry of the south, they were not equally appreciated in the northern part of the country. For example, among the three peasant rebellions that took place in between 1940s and 1960s, the two that happened in the northern provinces of Tigray and Gojam were made against tax and land measurement activities of the state. Generally, the land tax proclamations and land measurements which were meant to enhance the amount of tax, initiated peasant rebellions in Tigray (1943), in Bale (1967–1970) and in Gojam (1968).91
2.4.5 The Question of Land Reform and Inadequate Government Response
Over the years, the land holding in the southern provinces had slowly changed into private (freehold) holdings through different decrees. As opposed to the north, land in the south was freely transferable by way of sale. Like his predecessor, Haile Sellassie also continued to grant land to different groups. Immediately after the Italian war, he granted extensive land to patriots, exiles, soldiers and civil servants as private property. This policy, however, was of little benefit to tenant gabbars. Indeed, from the nearly 5 million ha of land allocated after 1941, only a few thousand reached the landless and the unemployed gabbars.92 The concept of rist, as lineage land property, was not known in this part of the country. Hence, in the 1950s and 1960s extensive land sale was witnessed, especially the transfer from land owners to new investors.93 But the effect of such measures made the existing gabbars once and for all landless tenants. Tenants, thus, were forced to cultivate on share-cropping arrangement which was said to be unjust in that it claimed 75 % of the produce to the landlord.94
As already mentioned above (Sect. 2.4.4), in spite of the fact that the government passed laws that forbid other burdens, tenants were subjected to feudal dues like working on the landlord’s farm and giving him presents on special occasions for fear of eviction. Powerful lords of the land continued to confiscate peasant’s property at will and to evict tenants arbitrarily even on the eve of the Revolution.95 In addition to the fact that the system was seen as unjust, it was considered inefficient and unproductive for it did not give the tenants incentive to produce more because, it was alleged, they lost a lot of the increased produce to the landlord.96 The most radical criticism of the land-tenure system came from the student movement, which, since the middle of the 1960s, made the slogan “Land to the Tiller” its main rallying call and the attainment of land reform its main target. When, as of 1969, the issue surfaced concerning whether the southern part of the country was not a case of settler colonialism by people from the north, and whether, therefore, the southern tenants were reduced to this status on land which had once been their own, land reform acquired a much greater political poignancy than ever before.97 Also, academics, foreign governments and aid agencies were very critical of the existing land-tenure system and urged for some kind of reform to be adopted.
One of Haile Sellassie’s government responses to these criticisms was the establishment of a Ministry of Land Reform and Administration to deal with the matter.98 One notion promoted by that ministry, well before 1974, was the redistribution of individually owned land in excess of 20 ha. A draft proposal to that effect was shelved for lack of support in government circles. The fact that the government officials and members of parliament had their economic and hence political power based on land was often attributed as a cause for the obstruction of the adoption of the draft proposal. Harold Marcus, a prominent historian on Ethiopia, claims that after the 1960 cope d’état, the Emperor was forced to “rely increasingly on overt military power for authority and on the aristocracy and oligarchy for administrative support. Since the last two represented the property-owning classes, Haile Sellassie was unable to implement significant land reform, in the absence of which the intelligentsia and the students, at first quietly and then stridently, opposed the regime.”99
The emperor was generally said to be slow in taking a radical and important land reform that would have a socio-political effect. A contemporary researcher and professor at the then Faculty of Law at the Haile Sellassie I University, Harrison Dunning observed that:
Beyond the elimination of personal services, it is difficult to name an objective related to land and designed to improve the social and political position of the Ethiopian peasantry toward which even partial action has been taken in the past quarter century. Even public discussion of such objectives has not occurred. With guidelines so unclear, it is fruitless to attempt to evaluate the contribution which land reform could make in these areas of national development.100
By way of conclusion, it can be said that the resistance of the peasantry population (because of ignorance on the advantage of land measurement and registration), internal resistance for land reform from the landed aristocrats, most of whom sate in both chambers of the parliament,101 and the lack of action by the government102 itself to bring about change in the tenure system were the reasons for absence of meaningful change in the property right arrangement during the eve of the downfall of the imperial regime.
2.5 The Derg Era: A Radical Shift in Land Policy
Frustrated by the lack of meaningful land reform and driven by the then Marxist ideology, practiced in some parts of the world, university students started demanding social, economic and political reforms with the leading motto “Land to the Tiller.” The demand for change got momentum when the general public and finally the military and police force followed suit and resulted in the 1974 revolution. The condition of the peasant and the need for radical change that was advocated at the time can be easily perceived from Dessalegn Rahmato writing:
How can the peasant change his condition? Will it be through better laws, clearer definition of tenure rights, or improved land registration and cadastral surveys? Can it be done by granting ownership right to tenants over government-owned land? Or will land reform, but of kind which does not disturb the equilibrium of the feudal system, provide the antidote?
The peasant problem is too fundamental to be resolved with such facile measures. It is not the deficiencies of the system that creates rural misery, but the system itself. Peasant servitude and deprivation will not be eliminated so long as the land-less are under the economic subjection of the landlord. Only when the direct producers toil for no other but themselves will they be able to attain emancipation, and to raise their standard of living to a level consistent with human dignity. In this connection the slogan LAND TO THE TILLER is indeed subversive.103
The army, being better organized and having better gun power, took advantage of the situation and appointed itself as the agent of the people. A committee (junta) selected from all the army branches104 was established to negotiate things with the emperor and to bring corrupt officials of the ancient regime to justice.105 This committee (popularly known as Derg), a collection of junior officers, later on removed the Emperor from his throne in September 1974 and took power itself promising the election of a popular government in the future. The Derg established a “provisional military government.” Accordingly, until 1987, the country was administrated by the Provisional Military Administration Council (PMAC).
Following its assumption of power, the Derg, started to take radical socio-economic reforms which had Marxist ethos.106 In the following pages we shall see the highlights of the rural land and urban land proclamations which were enacted by the Derg in a bid to transfer all rural and urban land and urban extra houses to state ownership.
2.5.1 Nationalization of Rural Land
When the Derg revealed its ten-point program of “Ethiopian Socialism” on December 20 1974, it declared that “land would be owned by the people.”107 And the “people” appeared to be identified under point No. 7 which stated that “the right to own land shall be restricted to those who work on the land”108 which means that land would be privatized. Nevertheless, when the much anticipated proclamation109 lastly came out on March 4 1975, the Derg ruled out for public/state ownership of all rural land.
The main reasons for the nationalization of rural land from the previous owners/holders and its transfer to state ownership are envisaged in the preamble of the proclamation. Without the need to reproduce the whole preamble, we pinpoint the main essence as follows:
Whereas, in countries like Ethiopia a person’s right, honor, status, and standard of living is determined by his relation to land;… that several thousands gas has of land was grabbed by insignificant number of feudal lords while the masses live under serfdom;… that it is necessary to change the past injustices and lay a base upon which Ethiopians may live in equality, freedom and fraternity;…that development could be achieved through the abolition of exploitation of many by the few;…In order to increase productivity by making the tiller the owner of the fruits of his labour;…to provide work for all rural people;…it becomes necessary to distribute land and increase rural income and thereby laying the basis for the expansion of industry.
To implement this objective, Article 3 of the proclamation clearly declared that: “all rural lands shall be the collective property of the Ethiopian people,” and it prohibits any person, business organization (company) or other organization from holding rural land in private ownership (Article 3.2 of Proc. 31/1975). By doing so, the law once and for all eliminated any private ownership of rural land, which had started to flourish in the southern part of the country, and it overnight abolished the age-old tenure system of the country in general. Further, the law denied any compensation for the loss of land and any forest and tree-crops thereon. On the other hand, it provided that fair compensation would be paid for movable properties and permanent works on the land (Article 3.3). Nonetheless, when it came to practice, the Derg paid no compensation at all to such properties across the country.
The proclamation, on the other hand, created free access to land to the many rural landless and tenants. Without discrimination of any kind, the law provided opportunity for any person, who was willing to cultivate, to get rural land sufficient for his maintenance (Article 4.1). The size of land to be allocated for a household was made to be, as far as possible, equal, and allowed for a maximum of 10 ha (Article 4.3). No person was allowed to use hired laborers to cultivate his land (except the weak, the sick, widows, and minors (Article 4.5).
Until land distribution was to be carried out, it was stated that all “tenants or hired laborer shall have possessory right over the land they till;” on the other hand, “a resident landowner who has leased out all his lands shall have the right to equally share to the land with his tenants” (Article 6.1). The proclamation also abolished any landlord-tenant relationship, and the tenant was made free from any rent, debt or any other obligation. Likewise, a landowner who gave his land as antichresis to his tenants would be free from payment of the debt (Article 6.3). All large-scale farms, held by private investments, were transferred to state ownership or cooperatives.
Since land became state/public property, it was also important to delimit the scope of rights to be given to individual peasants. In this case, it did not give much. Under a title “Prohibition of Transfer of Land,” Article 5 of the proclamation declares:
No person may by sale, exchange, succession, mortgage, antichresis, lease or otherwise transfer his holding to another; provided that upon the death of the holder the wife or husband or minor children of the deceased or where these are not present, any child of the deceased who has attained majority, shall have the right to use the land.
Thus, the proclamation completely prohibited any sale, mortgage, antichresis,110 lease/rent, inheritance (outside of family), donation, or exchange of any sort that affects the land. It seems the government was cautious not to create controversy with the church and the northern land holders since the proclamation did not say anything about church lands, and provided separate provisions related to “communal lands”, specifically rist lands. According to some studies, the total amount of land held by the church by the time was estimated to be 20 % of all arable land and 5 % of all the land in the country.111 Concerning rist land, the proclamation under Article 19 provides “peasants in rist and dessa areas shall have possessory rights over the lands they presently till.” It denies any claimant thereafter to come up with new claims. However, unlike the southern parts, in the north, since every plot of land was held by peasants, there was no need for the proclamation to come up with such different provision.
In any case, Articles 3 and 5 of the proclamation had restricted the rights of transfer of land very much and this had a devastating effect to all the previous land owners in the south or rist holders in the north. This proclamation was, therefore, received with mixed sentiments across the country. For tenant farmers and landless peasants, especially of the southern part of the country, the abolition of land ownership removed a major source of exploitation in one case, and provided guaranteed access to land in the other.112 Peasants of the north who owned their own rist land that gave them effective control over it were threatened by a measure which required their security and put them on equal basis with the landless.113 The rist holders of the north who considered their right to the land as coming from their family and no one else, considered it as encroachment in their God given rights. According to some studies, in the Northern Province of Tigray, farmers out rightly refuted the law and a war ensued immediately.114 Armed struggle was declared and carried out by supporters of the old regime and various student led movements against the Derg, the sole survivor being the present incumbent. Rebellious conflicts were also arisen in the other Northern provinces of Gonder and Wollo.115
The management and distribution of land was given to peasant associations (PA), which were formed to cover a minimum area of 800 ha (20 gashas) of land.116 The functions of the peasant associations were mainly to redistribute land, maintain common assets, resolve land dispute conflicts, enable development activities taking place in their areas and implementing villagization programs.117