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GSJ: Volume 8, Issue 9, September 2020, Online: ISSN 2320-9186 GSJ: Volume 8, Issue 9, September 2020 ISSN 2320-9186 2198 GSJ: Volume 8, Issue 9, September 2020, Online: ISSN 2320-9186 www.globalscientificjournal.com Assessing the Practices of Illegal Land Transactions in Periphery Urban Lands of Sawla Town, Gofa Zone, Southern Ethiopia Hizikel Banbire Belayneh (LL.B, LL.M) Lecturer at School of Law, Wolaita Sodo University, Ethiopia Cell phone: +251910508310 Email: [email protected] Abstract All urban and rural lands are constitutionally declared as a public property in Ethiopia. The Constitution and succeeding rural land laws strictly prohibits transfer of rural land rights by sale. Besides the statutory laws, the customary notion of Gofa people also discourages sale of land outside lineage lines. However, practically in the study areas illegal land transactions seems as a legally permitted business. Periphery urban lands become a target area of urban residents who failed to acquire a piece of residential urban land by lease. Individual unlimited holding of urban land by lease under the current lease proclamation, administration problem of periphery urban lands and conflicts during its expropriations, etc are the main problems of this study. The objective of this study is to explore the nature and practices of illegal land transactions, its pushing factors, key actors and beneficiaries of the transactions and the roles of courts in handling transaction cases in the study areas. This study is a non-doctrinal legal research and the data presented in this study obtained from both primary and secondary sources. To gather the primary data the writer used both quantitative and qualitative approaches, and the data collection tools employed were questionnaires, interview questions and personal observations. In addition, different secondary sources were also consulted. The results of this study indicate that uncontrolled soaring of lease prices, weak administration of periphery urban lands, minimum compensations during expropriation, internal displacements in different parties of the country because of ethnic based conflicts, construction of administrative offices for lately formed Gofa Zone, etc are identified as the main pushing factors for illegal land transactions in the study area. Illegal brokers and local officials at Kebele level are the main role players in illegal land transactions. As a result, the writer recommends the amendment of current lease proclamation that set limitations on lease holdings an individual can hold to minimize monopolization of urban lands by a few rich individuals, fair compensations during expropriations based on newly amended expropriation proclamation, an independent law that governs periphery urban land should be enacted and its administration power should be given to the municipality. Key terms: Periphery urban land, illegal land transaction, Kebele, Sawla, Ethiopia. 1 GSJ© 2020 www.globalscientificjournal.com GSJ: Volume 8, Issue 9, September 2020 ISSN 2320-9186 2199 1. Introduction Land transaction is any dealing or transfer of rights on land for consideration or gratuitously between the landholder and other involved party (Black’s Law Dictionary, 9th ed., 2009). It includes sale, which permanently transfers ownership or corpus of property/land for consideration, rent that transfers usufruct right on land temporarily for consideration, etc transactions (Encyclopaedia Britannica Ultimate References Suite). It plays an important role by enabling the productive farmer who have no land or own little land, to get land by negotiation with land supplier (Sanne et al, 2017). The transaction may take place either in formal land markets as per the national laws and regulations governing it, or it may take place through informal means or out of legally permitted ways (Twarabamenye and Nyandwi, 2012). If the transaction conducts illegally like illegal subdivision, it may create unauthorized rights on land (Achamyeleh, 2014). Privatization (allowing sale of land) or maintaining public ownership (prohibition of sale) was the key contesting issues between the opponents and ruling parties in Ethiopia (Daniel, 2011). The opponent parties argues in favour of land privatization, believing that land sale would promote economic development, as it would transfer the land to those who have the means to put it under effective use. It would also serve as collateral for landowners to get access to bank loans, promote the conservation of the land, and improve security for investment, since the existing statutory prohibitions did not practically prevented illegal transactions (Daniel, 2011 and Muradu, 2014). On the other hand, the present government and those who support its land policy, maintain that land privatization would create uncontrollable land speculations and the people could easily be taken advantage of by greedy land speculators. If land is subject to sale, individuals with capital can accumulate it and subject the mass to landlessness. This would in turn create a mass of unemployed and unemployable people flooding already overstressed urban centres (Muradu, 2014). To avoid this, the state should hold land as a trustee of people and prohibit its sale. The 1995 Federal Democratic Republic of Ethiopia (FDRE) Constitution affirms: “The right to ownership of rural and urban land, as well as all natural resources exclusively vested in the state and the peoples. Land is a common property of the Nations, Nationalities, and Peoples of Ethiopia and shall not be subject to sale or other means of exchange (Article 40(3) of the FDRE Constitution, 1995).” Article 40(4) of the Constitution grants holding right to farmers, which includes usufruct right for indefinite period. This also incorporated in federal and all regional states rural land laws, including Article 7(1) of the South Nations, Nationalities and Peoples Regional State (hereafter stated as SNNPRS) rural land proclamation number 110/2007. These laws excluded abusus right and allowed transfer of holding and use rights either temporarily by consideration (like rent/lease, exchange, sharecropping) or permanently without consideration (by inheritance or donation) under conditions provided by those laws. A little legal research has been conducted on this topic in Ethiopia and they disclose that, in peri-urban lands there were high practices of disguised land sells that conduct against statutory laws. The administrative bodies have been paid less attention to control it (Daniel, 2011 and 2 GSJ© 2020 www.globalscientificjournal.com GSJ: Volume 8, Issue 9, September 2020 ISSN 2320-9186 2200 Muradu, 2014). However in the study area, no any legal research has been conducted on this topic and this study was limited on illegal land transaction/transfer by sale. 1.1. Statement of the Problem Transfer of rural land rights by sale contradicts the constitutional policy of land and supremacy clause of FDRE Constitution, which stipulates that; Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect (Article 9(1) of the Constitution). Likewise, the 1960 Ethiopian Civil Code states that “a contract shall be of no effect where the obligations of the parties or of one of them are illegal (Article 1716 (1) of the 1960 Ethiopian Civil Code).” Although the courts are authorized by the law to nullify illegal land transactions, in the study areas the contracting parties do not take their case before the courts to void it. High rental house prices and related challenges bother the urban residents’ to look for a piece of urban land. But, its accessibility is exacerbated by tender process by which a highest bid winner get the land based on his/her bid price and the amount of advance payment he/she offers. This makes the competition very stiff and the price offered is unaffordable by the poor. Hence, the rich is the expected winner of any tender by sky-rocketing the bench mark price of urban land lease, which may drive the poor and middle income urban residents out of the game and render homeless. The lease proclamation doesn’t put any legal limitation/s on the maximum limit of lease holdings that a single individual can hold. This provides an opportunity for monopolization of urban lands by few individuals (who can offer highest lease price during auction) and land speculation. The poor may be marginalized by those rent seekers. This and other related problems drive the people to engage in illegal transactions of periphery urban land in the study areas. Thus, the main research questions attempted to answer by this study are the following: 1. How illegal land transactions are carrying out in periphery urban lands of Sawla town? 2. What are the main factors that push the parties to engage in illegal land transactions? 3. What are the roles courts are playing to handle illegal land transactions in the study areas? 1.2. Objectives of the study The main objective of this study is to assess the practices of illegal land transactions and its driving forces in the study area. Its specific objectives are: 1. To assess the methods of conducting illegal land transactions in the study areas. 2. To investigate the pushing factors of illegal transactions in the study areas. 3. To explore the roles of courts in handling illegal land transactions in the study areas. 2. Methodology This study is a non-doctrinal legal research and the data presented in this study obtained from both primary and secondary sources. To gather the reliable primary data the writer used both quantitative and qualitative approaches. The quantitative data were gathered by disseminating close-ended questionnaires to the respondents selected from three periphery urban lands of Sawla town such as Gurade, Suka and Yela Kebele (the last administrative level of the Region as per Article 103(1) of the SNNPRS Revised Constitution, 2001). 3 GSJ© 2020 www.globalscientificjournal.com GSJ: Volume 8, Issue 9, September 2020 ISSN 2320-9186 2201 Based on the preliminary data, the sample household was the person who engaged in illegal land transactions as a buyer or a seller in those selected Kebeles.
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