KTH Architecture and the Built Environment LAND RIGHTS AND EXPROPRIATION IN ETHIOPIA Daniel Weldegebriel Ambaye Doctoral Thesis in Land Law Real Estate Planning and Land Law Department of Real Estate and Construction Management School of Architecture and the Built Environment Royal Institute of Technology (KTH) Stockholm, 2013 Academic Dissertation for the Degree of Doctor of Philosophy Author: Daniel Weldegebriel Ambaye Title: Land Rights and Expropriation in Ethiopia ISBN 978-91-85783-36-6 TRITA-FOB-PHD 2013:5 Daniel Weldegebriel Ambaye Real Estate Planning and Land Law Department of Real Estate and Construction Management School of Architecture and the Built Environment Royal Institute of Technology (KTH) SE- 100 44 Stockholm Sweden Abstract This study examines and analyses the expropriation laws and practices in Ethiopia. The objective of the thesis is to analyze and describe the land rights and expropriation laws in Ethiopia and to compare them with the practice in order to determine the fairness of compensation. The study is made against the Ethiopian Constitution and other subsidiary legislations which provide the basic land rights and the nature and details of expropriation. The basic argument made in this thesis is that even if the Ethiopian Constitution provides and guarantees common ownership of land (together with the state) to the people, this right has not been fully realized whether in terms of land accessibility, enjoyablity, and payment of fair compensation in the event of expropriation. The reasons have to do either with the faulty nature of the laws or with their implementation by public authorities. From the outset, the constitution excludes land as a subject of compensation. For this reason, land is being excluded from the compensation package and hence it has no value for the holder. Urban land holders are denied location value of their property, which they can collect it otherwise during sale, and hence the compensation becomes unfair. Similarly, rural farmers are denied compensation for the complete loss of their farm land. The denial of compensation for the value of the land is categorically in contradiction with the very principle of joint ownership of land by the people and the state. There are also other reasons which are related to the law or its practical applicability, such as valuation process which reduces the amount of compensation. There are also property interests which are not included as compensable interests. Payment of compensation is one factor for secure property right and hence sustainable development. To ensure fair compensation in the event of compensation, a legal and policy level reform is necessary to address and amend the existing problems. Further, to harmonize the laws and practices is imperative to reduce the amount of injustice existed in today’s expropriation procedure in Ethiopian. Keywords: Land Rights, Expropriation, Valuation, Compensation i Acknowledgments Many people have contributed for the completion of this study. First and for most I would like to thank the Swedish Institute (SI) for providing me a scholarship for my education at the Royal Institute of Technology (KTH). My gratitude as well goes to Sida for funding part of my travel costs and my research which was conducted in Ethiopia during the past four years. This was made possible with the creative planning of Professor Hans Mattsson of KTH and the Institute of Land Administration (ILA) at Bahir Dar University. I would like to express my profound gratitude to my supervisors, Prof. Thomas Kalbro and co-supervisor Prof. Annina Person for their valuable comments and criticisms. I am grateful for their friendly approach and concerned readings of the thesis. I wish also to thank Professor Hans Mattsson for his tireless effort to see the full realization of my Institute at Bahir Dar University. It was his suggestion in the first place that made me to apply for the SI Scholarship. Dr. Frew Tegegne and Ato Seid Hussien, the two previous directors of ILA, were also instrumental for the completion of the study. I am grateful for their moral support and friendly concerns. I wish to express my appreciation to the KTH staff at the department of real estate planning and land law and ILA staff at Bahir Dar University for their friendship and encouragement during the study period. I am indebted to Dr. Tesfaye Dangew of Bahir Dar University for reading and editing the material before its submission for review. Finally I wish to express my heartfelt gratitude to my beloved wife, Seni, and my children Nebiyu, Arsema and Henock for their generous love and support throughout my study. I am also grateful to my father Weldegebriel Ambaye and my Mother Birhan G. Anania for their love and prayers. ii List of Acronyms and Abbreviations Addis Ababa The Capital City of Ethiopia ANRS Amhara National Regional State Asrat Tithe, tax amounts to one tenth of the total produce Axum Ancient city of Ethiopia from the 1st BC BoEPLAU Bureau of Environmental Protection Land Administration and Use CSA Central Statistical Agency FDRE Federal Democratic Republic of Ethiopia Gebir Royal feast Gibir Tribute, land tax, usually paid in kind Gonder Ethiopian Capital during 17th-18th centuries GTP Growth and Transformation Plan Gult Land right that gives right to administer, collect tax, and adjudicate cases Kebele Administrative sub-district Rist Land use rights, inheritable from family RLAUP Rural Land Administration and Use Proclamation SNNPRS Southern National Nationalities and Peoples’ Regional State Woreda Administrative district iii Table of Content ABSTRACT I ACKNOWLEDGMENTS II LIST OF ACRONYMS AND ABBREVIATIONS III TABLE OF CONTENT IV CHAPTER ONE 1 RESEARCH BACKGROUND AND METHODOLOGY 1 1.1 RESEARCH BACKGROUND 1 1.1.1 INTRODUCTION 1 1.1.2 RESEARCH PROBLEM 3 1.1.3 PURPOSE AND RESEARCH QUESTIONS 6 1.1.4 SIGNIFICANCE OF THE RESEARCH 8 1.2 RESEARCH METHODOLOGY 9 1.2.1 CASE STUDY 9 1.2.2 LEGAL RESEARCH METHOD 20 1.3.2 DESCRIPTIONS OF THE JUDICIARY, SOURCES AND HIERARCHY OF LAWS 22 1.4 OUTLINE OF THE DISSERTATION 27 CHAPTER TWO 30 LAND RIGHTS IN ETHIOPIA 30 2.1 INTRODUCTION 30 2.2 LAND OWNERSHIP REGIMES 32 2.2.1 PRIVATE OWNERSHIP 34 2.2.2 COMMUNAL PROPERTY 35 2.2.3 STATE OWNERSHIP OF LAND 37 2.3 LAND TENURE AND OWNERSHIP IN ETHIOPIA 40 2.4 TENURE SYSTEMS IN PRE-1975 ETHIOPIA 41 2.4.1 LAND AND IMPERIAL PREROGATIVES 41 2.4.2. LAND TENURE SYSTEM IN NORTHERN ETHIOPIA 42 2.4.3 LAND TENURE SYSTEM IN SOUTHERN ETHIOPIA 50 2.4.4 MODERNIZATION AND THE DECLINING ROLE OF TRADITIONAL LAND TENURE SYSTEM 53 2.4.5 THE QUESTION OF LAND REFORM AND INADEQUATE GOVERNMENT RESPONSE 57 iv 2.5 THE DERG ERA: A RADICAL SHIFT IN LAND POLICY 59 2.5.1 NATIONALIZATION OF RURAL LAND 60 2.5.2 NATIONALIZATION OF URBAN LAND AND EXTRA HOUSES 64 2.6 THE CURRENT LAND TENURE SYSTEM 69 2.6.1 LAND POLICY: TWO DEBATES ON OWNERSHIP OF LAND 69 2.6.2 GOVERNING LAND LAWS 73 2.6.3 THE CONSTITUTION 74 2.6.4 RURAL LAND LAWS 75 2.6.5 URBAN LAND LAW 83 2.7 CONCLUSIONS 103 2.7.1 SUMMARY 103 CHAPTER THREE 105 CONCEPTUALIZING EXPROPRIATION 105 3.1 INTRODUCTION 105 3.2 CONCEPT AND NATURE OF EXPROPRIATION 107 3.2.1 CONCEPT OF EXPROPRIATION 107 3.2.2 NATURE AND POWER OF EXPROPRIATION 112 3.3 HISTORY OF EXPROPRIATION 117 3.3.1 ANCIENT GREECE AND ROME 117 3.3.2 THE CIVIL LAW OF CONTINENTAL EUROPE 120 3.3.3 HISTORICAL DEVELOPMENTS IN THE UNITED KINGDOM 125 3.3.4 BRIEF HISTORY OF EMINENT DOMAIN IN THE UNITED STATES 127 3.3.5 HISTORICAL BACKGROUND OF EXPROPRIATION IN ETHIOPIA 129 3.4 THE JUSTIFICATION FOR EXPROPRIATION 142 3.4.1 ECONOMIC JUSTIFICATIONS 143 3.4.2 NATURAL RIGHT THEORIES 148 3.4.3 SOCIAL CONTRACT THEORIES 152 3.4.3 UTILITARIANISM 155 3.4.4 THEORY OF JUSTICE 157 3.5 SOURCES AND JUSTIFICATION OF EXPROPRIATION POWER IN ETHIOPIA 164 3.6 CONCLUSIONS 166 CHAPTER FOUR 167 EXPROPRIATION PROCEDURE 167 4.1 INTRODUCTION 167 4.2 EXPROPRIATION POWER 167 4.2.1 BRIEF OVERVIEW OF FOREIGN PRACTICE 167 v 4.2.2 EXPROPRIATION POWER IN ETHIOPIA 169 4.3 PROCEDURAL STEPS IN EXPROPRIATION 172 4.3.1 MAKING INQUIRIES 173 4.3.2 PUBLIC DISCUSSION 174 4.3.3 INVENTORY OF ASSETS 176 4.3 4 VALUATION OF PROPERTIES 177 4.3.5 NOTIFICATION 178 4.3.6 PAYMENT OF COMPENSATION, APPEAL AND APPROPRIATION OF LAND 180 4.4 RESETTLEMENT PROGRAM 182 4.5 CONCLUSION 187 CHAPTER FIVE 188 PUBLIC PURPOSE 188 5.1 INTRODUCTION 188 5.2 CONCEPTUALIZING PUBLIC PURPOSE 188 5.2.1 PUBLIC PURPOSE DEFINED 188 5.2.2 NATURE OF ACTIVITY THAT QUALIFIES AS “PUBLIC PURPOSE” 190 5.3 THE DEBATE ON THE SCOPE OF THE TERM IN THE USA AND EUROPE 192 5.3.1 NARROWER AND BROADER VIEWS OF THE CONCEPT 192 5.3.2 RECENT DEVELOPMENTS IN THE USA 194 5.3.3 PUBLIC PURPOSE IN EUROPE 197 5.4 PUBLIC PURPOSE LIMITATION IN ETHIOPIA 199 5.4.1 THE CONSTITUTION 199 5.4.2 THE FEDERAL EXPROPRIATION PROCLAMATION 202 5.4.3 EXISTING PRACTICES 208 5.4.4 THE QUESTION OF PRIVATE USE AS PUBLIC PURPOSE IN ETHIOPIA 211 5.4.5 THE ROLE OF COURTS 215 5.5 CONCLUSION 217 CHAPTER SIX 218 VALUATION AND COMPENSATION DURING EXPROPRIATION 218 6.1 INTRODUCTION 218 6.2 VALUATION 218 6.2.1 DEFINING VALUATION 218 6.2.2 VALUATION APPROACHES 219 6.3 COMPENSATION 222 6.3.1 NATURE AND JUSTIFICATION 222 6.3.2 THEORIES OF COMPENSATION 223 vi 6.3.3 NOTIONS OF “MARKET VALUE” AND “JUST” OR “FAIR” COMPENSATION 226 6.3.4 IMPORT OF QUALIFYING ADJECTIVES 227 6.3.5 FAIRNESS AND OBJECTIVITY OF MARKET VALUE 228 6.4 VALUATION AND COMPENSATION IN ETHIOPIA 229 6.4.1 THE COMPENSATION PRINCIPLE 230 6.4.2 VALUATION METHOD 231 6.4.3 ASSESSORS 234 6.5 COMPENSABLE INTERESTS AND DETERMINATION OF COMPENSATION 236 6.5.1 COMPENSABLE INTERESTS 236 6.5.2 DETERMINATION OF COMPENSATION IN URBAN AREAS 239 6.5.3 DETERMINATION OF COMPENSATION IN RURAL AREAS 248 6.5.4 DETERMINATION OF COMPENSATION IN PERI-URBAN AREA 263 6.6 APPEAL AND THE ROLE OF COURTS 265 6.6.1 APPEAL PROCESS AND APPEALABLE CASES 265 6.6.2 INCIDENTAL AND CONSEQUENTIAL DAMAGES 268 6.7 CONCLUSION 270 CHAPTER SEVEN 271 CONCLUSIONS AND RECOMMENDATIONS 271 7.1 INTRODUCTION 271 7.2 SUMMARY AND CONCLUSIONS ON ISSUES OF LAND RIGHTS 271 7.2.1 LAND RIGHTS IN RETROSPECT 271 7.2.2 EXISTING LAND RIGHTS 274 7.2.3 EQUITY AND LIBERTY IN LAND RIGHTS IN THE THREE REGIMES.