Public Purpose
Legislation’s name
Legislation’s no.
Article
Terminology used
FDRE constitution
1/1995
40(1)
Public interest (Yehizb Tiqim)
40(8)
Public purpose (Yehizb Tiqim)
Expropriation proclamation
455/2005
2(5), 3(1)
Public purpose (Yehizb Tiqim)
Investment proclamation
769/2012
25(1)
Public interest (Yehizb Tiqim)
Urban land lease proclamation
721/2011
26(1)
Public interest (Yehizb Tiqim)
FDRE RLAUP
456/2005
7(3)
Public use (Yehizb Tiqim)
Mining proclamation
678/2010
53(1)
Public purpose
Civil code
165/1960
1460
Public purpose (Yehizib Tiqim)
1463
Public utility (Yehizb Agelgilot)
1464
Public interest (Yehizb Agelgilot)
Amhara RLAUP
133/2006
2(18), 11(1)
Public interest (Yehizb Agelgilot
28 Title
Public use (Yehizb Agelgilot)
2(15), 5(8), 28(1), (2), (4)
Public service (Yehizb Agelgilot)
Oromia RLAUP
130/2007
6(10), (11)
Public use (Yehizib Tiqim)
One can easily notice that this provision puts a general restriction on the use and enjoyment as well as disposition of private property “on account of public interest.” As mentioned in Chap. 2, the use and enjoyment of private property may be restricted by the state for different reasons such as public health, public safety, environmental concern, or urban aesthetics. The restriction in such cases may not necessitate the physical taking of the property; rather the use and enjoyment may be restricted by pieces of regulations. This power of the government is best explained by what is known as the “police power” of the state rather than expropriation. The “police power”, as it is termed in the USA, is an “inherent power of the government to make all laws necessary and proper to preserve the public security, order, health, morality and justice.”56 Hence, all restrictions imposed by urban planning laws on owners of real property concerning the building height, typology, construction and demolition, for example, fall under the police power of the government. Similarly, all restrictions imposed on the use of alcohol, drug, and fire safety measures are examples of governmental concern for public health and safety. The implication is that “public interest” in this provision of the Constitution is used to justify all restrictions imposed on private properties including expropriation. For this reason, it seems, Article 40(8) of the Constitution that deals with the expropriation aspect employs a different terminology, “public purpose” instead of “public interest” to indicate the wider and comprehensive nature of the second terminology. In other words, under the FDRE constitution, “public interest” has a wider application than “public purpose.”
Some literatures also differentiate between the two concepts. In one literature, it says that the meaning of “public interest” is close to public concern in general, while “public purpose” is narrow in its scope and limited to the projects for the use of the public, under the law of expropriation.57
Yet, when one looks into the other subsidiary Ethiopian land related legislations, one may notice two facts: first, the two terminologies are used as synonyms, and second, there is no uniformity in the usage of the terminologies. Table 5.1 shows, for instance, the usage of the terminology in different legislations. We have supplemented their corresponding Amharic terms as indicated in the legislations. But, in the opinion of this writer, even the Amharic terms do not exactly explain the English ones. For example, the Amharic term “Yehizb Tiqim” denotes “public use” instead of “public purpose.” And the term “Yehizb Agelgilot” means “public service” rather than “public interest.” The term “public purpose” can better be explained by the Amharic term “Yehizb Alama,” and the term “public interest” as “Yehizb Filagot”. What we see, rather, is the use of the Amharic terms “Yehizb Tiqim” as referring to all the terms “public purpose”, “public use”, and “public interest.” Whether the intention of the legislator was to use the narrower or broader application of the term cannot be known only by looking at these contradictory terminologies; one needs to contextually read other parts of the Expropriation Proclamation. In any case, the contradictory and inconsistent terminologies used in the different legislations (at least in the active existing ones) are the results of poor draftsmanship of the legislator.
5.4.2 The Federal Expropriation Proclamation
In his comparative study of land acquisition mechanisms made in different countries, Kitay states that in legislations, public purpose doctrines are expressed in two basic ways.58
A.
General guidelines, which state merely that expropriation requires a public purpose, or other similar words. This kind of expression leaves a great amount of discretion to the executive power/government and to the courts. Whenever the government wishes to take a land for a certain purpose, it can justify it on the general principle of public purpose.
B.
List provisions that explicitly identify the purposes for which land may be taken. In this regard, most laws specify schools, health centers, government offices, roads, military installations, utilities and so on as activities that benefit the public. The list may be illustrative or exhaustive, as the case may be. If the list is of the latter kind, purposes not appearing on the list may not form the basis for expropriation of land. Neither the government nor the courts can add items to the list other than the ones expressly provided.
The above classification is, of course, with due regard to the possibility of employing a third different mechanism as used by some countries, where it may be possible to use a hybrid of the two approaches. In any case, when we look into the Ethiopian system, an investigation of the FDRE Expropriation Proclamation shows that the approach used is the first one. The previous repealed Expropriation Proclamation, Proclamation No. 401 of 2004, on the other hand, listed the kinds of projects that constituted public purpose. For example, power generating plants, highways, airports, dams, railways, fuel depots, water and sewerage facilities, telephone and electrical works and other related activities were listed as public purpose activities.59 The Amhara RLAUP on its part adopts the third modality that includes a partial list as well as a general clause.60
The current 2005 Federal Expropriation proclamation defines “public purpose” as:
…the use of land defined as such by the decision of the appropriate body in conformity with urban structure plan or development plan in order to ensure the interest of the people to acquire direct or indirect benefits from the use of the land and to consolidate sustainable socio-economic development 61 (emphasis added.)
As already discussed in the preceding chapter, the appropriate body that decides the public purpose aspect of a project is either the rural woreda administration or the urban municipality or a relevant higher federal or regional authority. This means, as far as these government organs believe that the project will bring some form of public benefit, land may be expropriated from private holders or urban lessees. Furthermore, Article 3(1) emphasizes that the appropriate body may expropriate land “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…” [Italics added.]. Here the law envisages two important things: first, better development or a better use of the land may amount as public purpose, and second, the user may be a public body, private person or others. One may question the nature of the parameter the “appropriate body” should use in approving the expropriation procedure. In other words, what objectives or standards should “the appropriate body” use to determine the public purpose nature of the project? How does it decide whether the use of the land will be better if transferred to others? The reading of the above provision (Article 2(5)), reveals the following parameters.
5.4.2.1 Urban Structural Plan and National Development Plan
One clear parameter that we may infer from the reading of the provision cited above is that the expropriation decision should be in “conformity with urban structure plan or development plan.” This means, any taking that aids the implementation of “urban structural plan” or the government’s “development plan” may amount to public purpose. One may of course question, at this juncture, the meaning and nature of these plans. Accordingly, a brief explanation is due hereunder.
a. Urban Structure Plan
Urban structural plan is defined in the current Urban Planning Proclamation as
… a legally binding plan along with its explanatory texts formulated and drawn at the level of an entire urban boundary that sets out the basic requirements regarding physical development the fulfillment of which could produce a coherent urban development in social, economic and spatial spheres.62
Urban structural plan can be prepared by each and respective urban center anticipating 10 years future development of the urban center.63 An urban structural plan must, at least, indicate the following aspects of the urban plan64:
(a)
the magnitude and direction of growth of the urban center;
(b)
principal land use classes;
(c)
housing development;
(d)
the layout and organization of major physical and social infrastructure;
(e)
urban redevelopment intervention areas of the urban center;
(f)
environmental aspects; and
(g)
industry zone.
It is witnessed in present day Ethiopia that, for example, in urban centers land may be expropriated to implement the urban structural plan. Thus, the blight part of the capital is being demolished to replace it with modern high-rise buildings; houses are demolished to widen roads; farm lands are being expropriated to construct condominium houses, and so on. As we shall see soon, if the structural plan requires a specific type of building on a given site, an owner is forced either to construct such type of building or cede the land to others who have the ability to do so.
b. National Economic Development Plan
The second type of plan mentioned above is “development plan.” Although this term lacks clarity, it must be referring to the “national medium-term development plan” of the country. This national development plan is a 5 year development plan that encompasses all urban and rural development programs. Since 2002, Ethiopia has witnessed three 5-year national development plans, the current one being the “Growth and Transformation Plan” (GTP) that is to be implemented from 2010/2011–2014/2015.65 The GTP is the guiding economic and social development program of the government. The current development plan aspires to attain very ambitious objectives within the plan’s period. Starting from laying infrastructure and boosting the economy to improving the education, health and justice system of the country, it aims to fulfill the Millennium Development Goals (MDG) by the end of the plan’s period.66
The GTP document lists down seven pillars67 of the program with detailed explanation. Four of the pillars which have close effect on land expropriation are briefly described as follows:
1.
Sustaining rapid and equitable economic growth: Ethiopian economy has been growing rapidly in the past and the government intends to maintain this growth by focusing on agriculture and industry. An ambitious plan is in place to open and expand textile, leather, cement, sugar, fertilizer, mining, energy, metal and engineering industries. At this moment, for example, ten sugar factories are under construction and the plan is to use 200,000 ha of land for sugarcane plantation.68
2.
Maintaining agriculture as major source of economic growth: agriculture has been the backbone of the country’s economy, and it will continue to play the leading role within the plan’s period as well. For this reason, besides helping farmers to make intensive production on their farm, there is a plan to transfer 3.3 million hectares of land to foreign and domestic private commercial-farm investors.69 This is in addition to the 2.8 million hectares of land that was already transferred, as discussed in Sect. 2.6.4.3.
3.
Create conditions for the industry to play key role in the economy: to accelerate the industrial development in the country, favorable conditions in terms of tax holidays and provision of necessary land will be made to investors. Further, the government will provide special assistance to Micro and Small-Scale Manufacturing Enterprises (MSEs). As we shall see in due course, the MSEs already received large size of urban land to establish and expand their businesses in the capital as well as in other parts of the country. The 5 years’ plan is to provide the MSEs 15,000 ha of land, mostly in urban centers.70
4.
Enhancing expansion and quality of infrastructure development: the construction and maintenance of infrastructure such as roads, power and water supply will continue. The road network will be expanded not only by the construction of new highways but also by networking all rural kebeles to the main roads. Railway lines connecting different parts of the country will be developed. To encourage urban growth, all necessary infrastructure and housing demands will be met. From transportation perspective, the program shows that within the plan’s period, 18,000 km asphalt roads, 71,000 km rural gravel roads, 2,395 km railway, and 34 km light weight urban rail will be constructed. In the energy sector, more than 8,000 MW (equivalent to 8 big nuclear reactors) will be produced, which is a big boost to the current 2,000 MW. Urban infrastructure will be improved by the construction and production of 150,000 houses in the capital only. About 101,000 houses will also be constructed in sugar development areas. Most of these works are now under way, and there is a good chance that they might be completed on time.71
The point is that all such activities will be immediately considered as public purpose activities, and land required for such projects will be immediately granted. The appropriate body, which is supposed to approve the expropriation, will, thus, use both the “urban structure plan” and the GTP (or similar future plans) as guiding principles to consider the public purpose nature of a project.
5.4.2.2 Acquiring Direct or Indirect Benefit
A particular project may give direct access or an indirect benefit to society. Direct and indirect benefits may be acquired either by “the use of the land” or through the consolidation of “sustainable socio-economic development.”
Direct benefit could be something similar to what has been termed as “use by the public”, as was already discussed in the American definition above. This means, the public will directly benefit by having an indiscriminate actual use of the facility such as schools, hospitals, roads, parks or hotels. From the outset, such projects are designed mainly with the intention of benefiting society.
In Ethiopia, where the State is the main player in the economy and the sole provider of all the infrastructures, the purpose of building such projects is nothing but benefiting society. The state has been instrumental in construction and provision of all the basic amenities and social services. In fact, the Ethiopian government has been praised for its pro-poor infrastructure investment which, according to one report, consumes 10 % of its GDP, the highest in Sub-Saharan Africa.72 The current government’s economic philosophy is known as “developmental state” where the state plays the role of “regulatory orientation and the developmental orientation.” Chalmer Johnson’s description of “developmental state” best describes the economic philosophy in Ethiopia:
The developmental state is one that is determined to influence the direction and pace of economic development by directly intervening in the development process, rather than relying on the uncoordinated influence of market forces to allocate economic resources.73
The state, thus, plays the two roles of a regulator and a business man, and creates in effect two parallel economies, the state and private. For this reason, most of the developmental (economic or social) projects planned in the GTP are being carried out by the state.
Apart from those facilities which may directly be accessible by the public, there are also other projects which the public is thought to benefit from them indirectly (by consolidating sustainable socio-economic development). A good example in this case, and which is also contestable, is the land provided for private investments. All types of private investments are encouraged by the government, among others, by the provision of land for free. As we already discussed above (Sect. 2.6.5.2), the manufacturing sector is, for example, an area of investment where investors get urban land by allotment (without auction.) The existing investment law requires government organs to identify and prepare land for investment.74 In the 2011/2012 fiscal year only, the FDRE Ministry of Trade and Industry received about 5,130 ha of land from different cities for industrial zone to be transferred to different companies in due course.75 This is in a bid to reduce the bureaucratic delay investors have been facing in acquiring land for investment. In regional states, too, rural and urban land administration organs prepare potential land (in their land bank) suitable for investment. The investments range from manufacturing to agriculture and service sectors. Hence, land is being expropriated from farmers and city dwellers in order to transfer it to manufacturing industries, horticulture farms, hotels, and private housing programs. Similarly, there is a recent move by the Ministry of Agriculture to establish “agriculture economic zones” in selected parts of the country with the intention of identifying, demarcating and making accessible land for agricultural investment.76
The usual reasons given for considering such private investments as public purpose are because they create jobs, increase tax revenue of the state, generate foreign currency (important for Ethiopia), create transfer of technology (especially from foreign investments), and improve the local infrastructure.77
5.4.3 Existing Practices
Today in Ethiopia, land rights are being expropriated both in urban and rural areas of the country. In urban centers, land is expropriated from within the city or from its periphery, whereas in rural areas, private farming plots and common lands of the people are subjected to expropriation. If we take Addis Ababa city as an example, extensive land has been expropriated from the city center and its periphery. Much of the city center is slum, and indeed according to the UN Habitat’ report, 40 % of the total housing stock of the city needs replacement.78 On practical level, the city’s plan shows that out of the total 54,000 ha of the city’s built area, 14,765 ha of land is considered as slum destined to be renewed.79 Accordingly, large part of the city center is under demolition for urban renewal and upgrading purposes.
At this juncture, to avoid confusion, it is important to define the terms urban redevelopment, urban renewal and urban upgrading. These terminologies are adequately defined in the FDRE Urban Planning Proclamation as follows:
Urban redevelopment is a generic term which is understood as an undertaking that encompasses:
…urban renewal, upgrading and land reallocation with the view to alleviating urban problems, improving living standards and bringing about urban dynamism and efficient land utilization.80
And urban renewal is defined as:
…an undertaking aimed at improving the living and working environment in an urban center through fully or partly removing dilapidated, blighted or derelict structures in an urban center.81