INCONSISTENCY OF RURAL LAND LAWS IN ETHIOPIA

University of Gondar School of law INCOSISTENCY OF RURAL LAND LAWS IN ETHIOPIA: DOCTRINAL RESEARCH Name id. No. Abrhaley yrga……………………………….…….……….……3915/o5 Said abdi…………………………………………….……..……….…3961/05 Tadesse mulat…………………………………………...………..3966/05 Tinsayie tesfamariam………………………....................3969/05 Yosef workelule……………………………………….………….3977/05 Zemichaesl haftu………………………………….………........3978/05 ADVISOR Mr. Demoz Kassie (LLB, LLM) A Senior Thesis Submitted To School Of Law as Part of the Requirement for the Bachelor of Law Degree (LLB.) At University Of Gondar, School Of Law. JUNUARY, 2017 ETHIOPIA, GONDAR DECLARATION OF ORGIONALITY We the under graduate class law students officially declared that this senior thesis is our original work in partial fulfillment of the requirement for LLB degree in law. Name Signature Abrhaley Yirga _________________________ Said Abdi __________________________ Tadesse Mulat __________________________ Tnsaie Tesfamariam _________________________ Yosef Workelule _________________________ Zemichaesl Haftu _____________________________ APPROVAL SHEET BY THE BOARD OF EXAMINERS INCOSISTENCY OF RURAL LAND LAWS IN ETHIOPIA: DOCTRINAL RESEARCH APPROVED BY BOARD OF EXAMINATION -------------------- ----------------------- --------------------- ADVISOR SIGNATURE DATE ---------------------- ------------------------ -------------------- EXAMINER SIGNATURE DATE --------------------- ----------------------- ------------------ EXAMINER SIGNATURE DATE Acronyms ANRS- Amhara National Regional State ANRS- Amhara National Regional State Art.- Article CCI- Council of Constitutional Inquiry EPRDF-Ethiopian Peoples’ Revolutionary and Democratic Front FDRE- Federal democratic republic of Ethiopia HPR- House of peoples representative HoF-House of Federation No.- Number PA-peasant association PDRE- People’s democratic republic of Ethiopia RLAUP- rural land administration and use proclamation SNNP- southern nations, nationalities and people Acknowledgement First and foremost we would like to thank almighty God who gave us this precious time to conduct our thesis. Many people have contributed for the completion of our study and thesis. We would also like to thank our former advisor Mr. Melkamu Sisay, he who supported us in every step of conducting this thesis by providing necessary materials, suggesting how we should do it and by commenting our work and advising. In addition to this, we would like to forward our handful appreciation to our adviser Mr. Demoz Kassie for his diligence to read and comment our thesis within short time, and his brotherly approach. We would also like to thank Mrs. Yeshi Molla who helped us by typing and editing our thesis within short period of time without any claim of tiredness. Our thanks also go to those who directly and indirectly contributed for the completion of this thesis. Table of contents Title page Acronyms…………………………………….………………………………………………….…I Acknowledgement……………………………….………………………………………………..II Table of contents…………………………………………………………………………………III Abstract…………………………………………………………………………………………..IV CHAPTER ONE…………………………………………………………………………………1 INTRODUCTION…………...…………...…………………...…………………………..1 background of the study…………...……………………………………………………2 Imperial Era………………………..……………...…………………………………2 Derg Era…………………………….…………………………………………………5 The current government…………………...………………………………………......5 Statement of the problem……………………...………………………………………..…6 Objective of the study…………………………………………..……………………..…7 General objective………………………...………………..…………………………7 Specific objectives………………………………………….…………………………7 Research questions………………...………………………………..……………………..8 Significance of the study……………………………………………..……………………8 Research Methodology………………………………………………..…………………..9 Limitation of the study………………………………………………...…………………9 Scope of the study……………………………………………………..…………………10 Organization of the study……………………………………………...…………………10 CHAPTER TWO………………………………………………………………………………...11 LEGAL PLURALISM AND HEIRARCHY OF LAWS………………………………………..11 2.1. Legal Pluralism in Ethiopia…………………………………………………………………11 2.2. The Concept of Hierarchy of Laws………………………………………….………………12 2.3. Hierarchy of Laws under the 1995 FDRE Constitution………………………………...…...12 2.3.1. The Supremacy of the FDRE Constitution……………………………………………….13 2.3.2. Federal legislations and their hierarchy………………………………….………………14 2.3.3. State laws and their hierarchy……………………………………………………………14 Summary…………………………………………………………………………………………15 CHAPTER THREE……………………………………………………………………………...16 ETHIOPIAN LAND LAWS……………………………………………………………………..16 3.1. OVERVIEW OF ETHIOPIAN LAND TENURE SYSTEM: HISTORICAL PERSPECTIVE ………………………………………………………………………………………………........16 3.1.1. Rural land laws under the imperial regimes………………………………...…………….17 3.1.2. Rural land laws under Derg era………………………………………………..………….18 3.1.3. Current Land Policies in Ethiopia……………………………………………….………...21 3.1.3.1. Ownership Issues……………………………………………………………..…………21 3.1.3.2. Rural Land Legislation and Policy…………………………………………...…………22 3.1.4. The Current Governing Land Laws ………………...………………………….…………23 Summary…………………………………………………………………………………….…...31 CHAPTER FOUR 4.1.COMPARATIVE ANALYSIS OF ETHIOPIAN LAND LAWS ………….………………32 4.2.Land law legislation systems in Ethiopia …………………………………………………..60 Summary…………………………………………………………………………………………62 Conclusion……………………………………………………………………………………….64 Recommendation………………………………………………………………………………...67 Bibliography…………………………………………………………………………..…………68 Abstract In this thesis we strive to analyze the problem of inconsistency between the rural land laws in Ethiopia. The FDRE constitution empowered the federal legislative organ to enact a framework law in related with land use and administration. It also empowered it to delegate its legislative power to the regional states’ legislative bodies when it finds necessary. In addition to this, the constitution empowered the regional states to administer lands within their territory on the basis of the federal laws. Based on this constitutional stipulation, the HPR has been enacted Federal rural land use and administration proclamation and delegated to the regional states to enact their own rural land law for the purpose of implementation of the federal rural land use and administration proclamation within their territory. On the basis of the federal government delegation, some regional states have been enacted their own rural land use and administration proclamations and regulations which would be implemented within their respective territory. In this work we analyze and make a comparison between the federal rural land use and utilization proclamation, and the five regional states land use and administration proclamation and regulations. Our study is mainly a doctrinal one which is supported by a qualitative method of analysis, such as comparative analysis through tabulation system and statements. Therefore, its research methodology is qualitative one. We found that the wide range of inconsistencies among the regional rural land laws and as far as between federal and regional rural land laws even with the FDRE constitution. This inconsistency results the effect of creation of different rights on land for citizens of the same country. And this is contrary to the constitutional rights of equality with respect to property and natural recourse utilizations. Finally, the researchers have recommended the concerned bodies to scrutinize and rectify such inconsistency. INCOSISTENCY OF RURAL LAND LAWS IN ETHIOPIA CHAPTER ONE INTRODUCTION The land tenure system in Ethiopia dates back to the time immemorial and can aptly be studied in terms of the South/North dichotomy where the north has lived through the rist system and the south has lived under the communal system till the beginning of the 20th century. The Southern communal tenure has been disturbed immensely when the northerner started expanding their empire to the south and had won and included almost half of the present day Ethiopia. Coming back to the imperial regimes’ The Modern Ethiopia took its present territorial shape with the administration of king Menelik II (1889-1908) and was subsequently ruled by Emperors, Haile Sellassie I being the last and he ruled from 1930-1974. During these periods, the land holding system was largely governed by customary rules defining the nature of the feudal landlords’ rights especially in the newly occupied southern part of Ethiopia. land holding system, there were three kinds of rights over the land until it was abolished in 1975 via Proclamation. Rist,Gult and private land ownership. Rist was the right to claim a share of the chief father's land based on descent from him. Gult was the right, normally non-hereditary, to all or part of the tribute ordinarily due from the occupant of land to the ruler. The assignee of this tribute has not only the right to revenue, goods or services, but also the responsibility to perform certain judicial and administrative functions. He is known as "the governor of the gult,”. Read Richard Pankhurst, State and Land in Ethiopian History, (Oxford University press, 1966) Rist and Gult largely operated in the northern part of Ethiopia and the occupants ( rulers from the north) were also possessing private land in the southern and south western part of the country where people were subjected to extreme form of exploitation by the landlords. The owners of the land were royalties, nobilities, retired soldiers, governors, and the Orthodox Church. When we come to the derg regime, all things were nationalized by the government. Furthermore, under the current legal system, land is a public property in Ethiopia. The government has administered it since the 1975 radical land reform. It adopts federal state structure i.e. federalism which is composed of 9 regional states and 2 federal cities. There is devolution of power between the federal and the regional states. With regards to the rural land law enactment and administration, the constitution stipulated that the federal government should enact rural land laws and the regional states to administer rural lands within their territory based on the federal legislations. Based on this, the federal government has enacted RLAUP and delegates the power to enact laws so as to execute the federal law for regional states. In this study, we analyze the compatibility between the regional and federal RLAUPs as well as the FDRE constitution. More specifically, this research has five chapters. Chapter one is the introduction which deals with the background of the study, statement of the problem, research question, objective of the study, significance of the study, research methods and limitation of the study. Chapter two deals with the hierarchy of laws and legal pluralism, under this chapter, we try to analyze the hierarchy of laws in different regimes of government in Ethiopian. Chapter three gives a brief explanation about Ethiopian rural land laws and policies. In this chapter we briefly analyze the Ethiopian rural land laws and policies from the imperial up the current regime. Moreover, chapter four deals with the comparative analysis of Ethiopian rural land laws and the analysis on the current Ethiopian land laws legislation system. Under this chapter, we try to analyze some differences between the federal and regional RLAUPs through tabulation. Finally, the conclusion and the recommendations are discussed under chapter five. The conclusion incorporates our findings and other concluding remarks. 1.1. Background of the study Imperial Era Since the time immemorial, land was controlled by the king and the ruling elites in Ethiopia. As a Result of the expansionist war of the ancient Ethiopian rulers with their neighboring tribes, the State could manage to include vast territories to its rule. The land of the tribes was then made under the control of monarchs and had been redistributed to the favorites and supporters of the King in due time. In any case, the land remained under imperial control. As mentioned by Taddesse Tamrat ((Taddesse Tamrat 1972)) The idea of royal ownership of all land in Ethiopia was documented by royal chroniclers of different kings. 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 had he decided to take the land [without purchase]?” 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’ The land properties, which were distributed to their followers, overtime seized the form of private rist (linage usufractuary right), Church land and Government land. Land was granted to individual people/peasants in the form of rist (usufractuary right). The peasants were then allowed to use, rent, and inherit the land to family members. In exchange, peasants were obligated to make different kinds of land related tax payments. The main ones were tribute (one-fifth) and tithe (one-tenth) of total produce and usually paid in kind.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. Land was also provided to the Church which was considered as a major ally to the imperial power. The Church was a major possessor of material wealth not only because by selling salvation in return for treasure and land, but also by perpetuating imperial power over the people. It was the church which played a major role in propagating the mass to obey the king. Obedience to the king was justified in many of the Christian writings and the day to day teachings. Monarchs who disagree with the church or became out of favor of the later found themselves in the middle of bloody wars. A good example in this case is Emperor Susenyos (1606-32) who tried to change his faith from the official Orthodox Christianity to Catholicism and was excommunicated by the church and forced to resign from power after a bloody civil war. Land owned by the government was distributed to different people on the condition of serving the state at different levels. In other words, land during this era was used to serve as a means to run the state functionary. In the old days, since gold and silver was not found in abundance, Gebre-Wold-Ingida, Ethiopias traditional land tenure and taxation,1962 the government heavily relied in the land under its control to run the state. SHIFERAW-BEKELE 1995. The Evolution of Land Tenure in the Imperial Era. In: SHIFERAW, B. (ed.) An Economic History of Ethiopia: The Imperial Era 1941-1974. Dakar: CODESRIA. 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. Land given in lieu of salary might be reverted to the state in the event of non fulfillment of the obligation by the holder of the land. For example, land was given to civil servants and war veterans (maderia land) in lieu of salary or pension for their services to the state as long as they continued their services. Land was also Distributed to other state servants other than those mentioned above. Generally, this is known asginde bel land. For example, land given to soldiers; people who carry tents, cannons or brought horses and mules to war fronts; people who serve the palace as masons, prison guards, gardeners and so on were categorized under this tenure. In a similar fashion, the church had also been distributing the land given to its support by the kings to different hierarchy of the clergy and lay men who served the church. The name given to such type of land was known as Samon land. Hence, church land was distributed to the clergy, such as priests, deacons, church heads, teachers, and the lay people who support and protect the interest of the church at the royal court. Mahteme-Sellassie 1970 Zekre Neger, Addis Ababa, 2nd ed; Pankhurst 1966 . State and Land in Ethiopian History, Addis Ababa, The Institute of Ethiopian Studies and the Faculty of Law, Haile Sellasie I University; Shiferaw-Bekele 1995(The Evolution of Land Tenure in the Imperial Era. In: SHIFERAW, B. (ed.) An Economic History of Ethiopia: The Imperial Era 1941-1974. Dakar: CODESRIA) During the second half of the nineteenth century, the Ethiopian empire was further expanded to the present south, south eastern and south western of the country. The emperor (Menelik II) and his military commanders crushed any resistance attempted by the natives and confiscated all the lands of the natives (Pankhurst 1966). In places where the native chiefs accepted the dominance of the Ethiopian empire, the people were allowed to keep their lands intact (Pankhurst 1966). In any case, a vast territory of land was added again to the Ethiopian empire during this period. All the land which was confiscated by the northern forces was distributed to different organs. One part was given to Menelik soldiers to settle on and as a reward for their loyal service during the expansion process; a second part was given to the local chiefs/gentry to maintain their support; a third part was given to the church that would be distributed to the church clergy in the same fashion as in the north; and another share, held by the state, to be distributed to different people on the condition of serving the state at different levels. Northern people were encouraged to settle in the south in the hope that they, together with the existing soldiers, would create effective control of the new territories. As a result of this military expansion, the whole native people who used to cultivate the land on community and clan base were left landless, gabbars. The gabbars of the south hence become literally servants and tenants to the northern until 1974 Ethiopian revolution. PANKHURST, R. 1966. State and Land in Ethiopian History, Addis Ababa, The Institute of Ethiopian Studies and the Faculty of Law, Haile Sellasie I University; The peculiar feature of the land holding right in the southern regions was that land was held in private ownership and hence subjected to sale and other forms of exchange. There was a prolific land sale transaction at the period for investors were interested in cash crop (coffee mainly) production by purchasing land from owners. But the land sale process left the southern gabbars as tenants who solely relied on crop sharing farming activities. Derg Era After the 1974-1975 revolution, a military junta (Derg) controlled the power by ousting the emperor from his throne. The Derg immediately passed a proclamation that nationalized all rural land and transferred same to state ownership. This proclamation (Proclamation No. 31/1975) overnight abolished the age old property system and left the land owners empty handed without any compensation. On the other hand, it allowed all the peasants and tenants to maintain and held the land which they farmed and absolved them from any debt or obligation they owed to the landlords. The law restricted the right to use the land by prohibiting the lease/rent, donation, sale, exchange, mortgage, and inheritance (except to minor children) of the land. In any case the land reform was successful in that it generated a lot of support especially from the peasants of the southern regions. The administration of land was provided to the peasant associations created in every village of 800 hectares of land. They were tasked among others with distribution of land. Shiferaw Bekele, supra note 8 Government, as an owner of the land, conducted repeated land reforms and as a result farmers lost tenure security. Government had also introduced forced villagization (putting all rural farmers at one spot irrespective of their resistance), forced resettlement programs (moving farmers from one region, mostly the north, to another, mostly the south), and grain requisition programs (forcing farmers to deliver all their produce to the government at cheaper price instead of selling it at market price). In conclusion, as Dessalegn observed, the history of Ethiopia during the Derg regime had been partly recorded as a history of growing rural poverty, food shortages, famine, and escalated rural insurgency and civil war. Ibid Thus, since it nationalizes everything, states didn’t to peasant given a power to administer their respective land. 1.1.3 The current government After the downfall of the Derg in May 1991, the new Transitional Government disbanded all Collectivization and villagization programs based on the consent of the people. Collective farms Were privatized to individual farmers and the government stopped the grain requisition program allowing peasants to sell their produce at market value. The new government came with the federal system. In December 1992, it adopted a new economic policy whereby the government declared that until a new constitution would be in place, land would remain under state ownership. Then after the new constitution was enacted, under Art.40(3) of the FDRE constitution, it in a clearly manner gives the ownership right of the land to the state and peoples of Ethiopia. The constitution also provides the power to enact laws for the utilization and conservation of land and other natural resource to the federal government based on Art.51 (5). Accordingly, the HPR by using its power to legislate federal laws under Art.55 (1) enacted RLAUP No.456/2005. Furthermore, the constitution gives the state the power to administer land in accordance with the federal law (Art. 52(2) (d) of the FDRE constitution. In addition to this, the federal RLAUP under art.17 gives the state the power to enact rural land administration and use laws which consist of detailed provisions necessary to implement the federal RLAUP. Accordingly, the regional states of Oromia, Tigrai, Amhara, SNNPR and Benshangul/gumuz have enacted their respective RLAUPs. Statement of the problem In rural resident of most developing countries, including Ethiopia, land is the main economic, political, social and cultural asset. It is the crucial source of generating livelihood income for society. It remains an asset that farmers have to accumulate wealth and transfer the same to future generation. Moreover, the issue of land has not simply remained to be an economic affair but also it is very much intertwined with peoples’ culture and identity. In a nutshell, land related issues in developing countries are the most sensitive part of overall development that the government needs to consider and it needs to have strict regulation. Accordingly, the 1995 FDRE constitution has entitled the Ethiopian peasant, pastoralist and semi pastoralist land holding and use right. In order to regulate this holding and use right of the aforementioned right holders, the FDRE constitution has empowered the federal government the power to enact laws for the utilization and conservation of land. In this regard, the FDRE constitution empowers the HPR a power of legislation in all matters which are assigned to federal jurisdiction. Therefore, the HPR is empowered to enact specific laws on the utilization and conservation of land. However, states do not have power to do so. They are only empowered to administer land issues in accordance with federal laws. However, the FDRE constitution clearly stipulates that the federal government may, when necessary, delegate to the state powers and functions granted to it by art.51 as per Art.50 (9). From this stipulation, we can understand that the federal government can delegate its legislative powers under Art.51 to the regional states, not limited to this, including its power to enact laws in relation to land issues. Based on this authority, the federal government has been delegated by the regional states council so as to enact land administration and land use laws. This delegated legislative power is limited to enacting detailed provisions which are necessary to implement the federal land administration and land use proclamation. The phrase ‘’necessary to implement,” under Art.17 (1) of the Federal RLAUP No. 456/05 shows us the limited scope of the regional states council legislative power on land issues. From this, we can understand that the delegated power which is given to the regional states in the above provision has the status of issuing regulation that implements the federal proclamation. Based on the delegation, different regional states of Ethiopia ( such as Tigray, Amhara, Oromia, SNNPR and Benshangul Gumuz ) have currently enacted their own regional rural land administration and land use proclamation by mentioning Art.17(1) of the federal proclamation No. 456/2005 as a source of their power to enact such laws under their preamble. So, there is no any problem in the wording of their preambles, but the problem is in the content of their proclamations. That is, the state council of each respective region when they promulgate land administration laws, they incorporate some provisions which are inconsistent with the federal rural land administration proclamation and the FDRE Constitution by considering themselves as original law makers on the land issues. In this study, the researchers critically assess such inconsistency among federal and each respective regional state rural land laws. And finally, the researchers put an appropriate recommendation for each responsible organ of the government. Objective of the study General objective To reveal the inconsistency between the federal and regional RLAUPs as well as the FDRE constitution. Specific objectives To assess the extent of state powers regarding enactment of rural land laws To study the effects of plurality of rural land laws in Ethiopia To analyze the major differences between the federal and regional RLAUPs To study whether the existence of regional rural land laws gives more protection to citizen’s rights than that of the federal rural land laws or not To study whether the existence of regional rural land laws curtails or limits the rights which are actually given by the federal land laws or not To give an appropriate recommendations to the concerned organs of government on what improvements need to be made and how solutions can be effected to rectify or correct them Research questions To accomplish the above specific objectives, the following specific research questions have been formulated: What is the scope of state powers regarding enactment of rural land laws? What are the effects of plurality of rural land laws in Ethiopia? What are the major differences between the federal and regional RLAUPs? Does the existence of regional rural land laws give more protection to citizen’s rights than that of the federal rural land laws? Does the existence of regional rural land laws curtail the rights that are actually provided by the federal rural land laws? How can the government avoid the inconsistencies which are existed among the various Ethiopian rural land law Significance of the study In fact, the Ethiopian jurisprudence and legal research is at its infant stage, especially on the issue of rural land laws. Currently, for instance, land law is not a mandatory course in the Ethiopian legal education, and it is not difficult to observe that law trained judges and researchers are not interested in dealing with the subject. For this reason, it can be said that there is no serious research work made in recent years on issues related to rural land. Recently, the government has passed more laws on rural land issues. However, there is a huge inconsistency among such laws. Therefore, to develop the jurisprudence and legal research on the issues of rural land, to analyze the inconsistency of rural land laws in Ethiopia, as well as to recommend the concerned bodies of government as to the effects of such inconsistency, the researchers are interested to conduct a doctrinal research on this area. Furthermore, the researchers hope that government bodies and other responsible organs would find the finding of this study worth looking and would initiate revision and amendments of land laws. Research Methodology This study is primarily a doctrinal one which is supported by a qualitative method of analysis. This study explores and tries to identify the incompatibility of the federal and regional rural land laws of Ethiopia on the issue of rural land administration and land use rights. Therefore, its research methodology is qualitative one. Mainly, the researchers attempt to make an appropriate review of the existing literature on rural land administration and land use laws in Ethiopia to come up with the best mechanism of avoidance of inconsistencies of Ethiopian rural land law regulatory system. In furthering this purpose, the study incorporates the proper conceptual, legal and theoretical framework, which serves as a springboard to determine the point of inconsistencies between the federal and regional RLAUP as well as the FDERE constitution. Among the documents used; the FDRE Constitution, the Federal RLAUP No. 456/05 and the regional states RLAUP (such as; the RLAUP of Oromiya , Amhara , Tigray , Benshangul Gumuz and SNNP) are used as the main legal documents up on which this study has been based. These federal and regional RLAUP’s are analyzed and compared in detail in order to point out their incompatibility and their possible effects on the uniform regulation of rural land with well comprehensive regulatory system in Ethiopia. Limitation of the study This research comes across with some limitations, which affect its outcome. For one thing, the researchers do not get enough researches which are conducted on the issue that deals with the inconsistency of Ethiopian RLAUP. Moreover, the researchers face with lack of adequate written materials that are related with the issue at hand. So, the research is influenced by the shortage of relevant reference materials. Besides, there are time and financial constraints. All these and other constraints, therefore, put a negative influence on making the research full-fledged. Despite such limitations, the researchers do the utmost efforts in minimizing the impact of such constraints by, for example, diversifying the sources of information and referring to the available and accessible literatures on Ethiopian rural land laws. Scope of the study This research constitutes legal analysis with regard to the inconsistency of Ethiopian RLAUP’s. Specifically, it gives due attention to the incompatibility of federal and regional states land proclamations of Ethiopia in the current legal frame work. In terms of time frame, the study mainly covers the laws enacted since 1995 still now. Organization of the study The study is divided in to five chapters, each of which has its own sections and subsections. Particularly, Chapter one is the introduction part which deals with the background of the study, statement of the problem, research question, objective of the study, significance of the study, research methods and limitation of the study. Chapter two discusses about the hierarchy of laws and legal pluralisms. Chapter three gives a brief explanation about Ethiopian rural land laws and policies. In this chapter, the researchers briefly analyze the Ethiopian rural land laws and policies from the imperial up the current regime. Moreover, chapter four deals with the comparative analysis of Ethiopian rural land laws. Under this chapter, the researchers try to analyze some differences between the federal and regional RLAUPs through tabulation and the analysis on the current Ethiopian land laws legislation system. Finally, the conclusion and the recommendations are discussed under chapter five. The conclusion incorporates researchers’ findings and other concluding remarks. CHAPTER TWO LEGAL PLURALISM AND HEIRARCHY OF LAWS 2.1. Legal Pluralism in Ethiopia Legal pluralism is the existence of multiple legal systems within the same country. It is not only the existence of different laws and norms, but also it is the existence of different institutions that implement, execute and interpret the laws. www.jstor.org/stable/3053638 accessed on 02/11/2016 10:56 11:09 AMInstitutionally, for instance, since Ethiopia is a country of different nations and nationalities and peoples, the constitution of the FDRE grants the legislative, executive and the judiciary power to these nations, nationalities and peoples of Ethiopia .Therefore, both the federal government and the regions have those powers at the same time. This is the sense of legal pluralism in Ethiopia. i.e., since Ethiopia is a federal state there is a possibility to have more than one law to govern the diverse society in the same area. This having of more than one law within the same country also leads to the existence of legal pluralism in our country Ethiopia. Thus, the regional states (state councils) have the power to enact their own constitutions or to enact laws on matters falling under their jurisdictions FDRE constitution Art. Art.52(2) . However, the laws should not contradict with the federal constitution. i.e., both the federal constitution and the regional constitution must be consistent to each other. If not, conflict may be occurred between these two constitutions. If there is conflict between them the federal one should prevail. Ibid Art. 9(1) Furthermore, some regions in our country Ethiopia have enacted their own RLAUPs. For instance; the states of Tigray, Amhara, Oromia, SNNP and Benishangul gumuz have their own RLAUPs These rural land laws have a variety in their content. There is also other rural land law in Ethiopia which is the Federal RLAUP. This Federal RLAUP is also varied from the others. So, from this the researchers can simply observe that legal pluralism is the expression of the Ethiopian federal structure. That means, legal pluralism has a strong connection with federalism. Both of them have an inherent relationship. They cannot go separately. That’s why, the FDRE Constitution has established the federal state structure where governmental powers are shared between the federal government and the nine constitute units of the federation. This division of powers between the federal state and the regional state inevitably results in pluralism in law since the federal state and the regions have the legislative power. 2.2. The Concept of Hierarchy of Laws Ayele Bogale, Hierarchy of Laws within the Present Federal Legal Structure of Ethiopia, Addis Ababa University, Faculty of Law, (Unpublished), 1999 Hierarchy of laws refers to the superior subordinate relationship that exists among the various types of legislations Kreczunowicz, G., “Hierarchy of Laws in Ethiopia”, Journal of Ethiopian Law, Vol. 1, No. 2, 1964. It is used to express the ascending series of ranks or degrees of power and authority with the correlative subjection of each to the one next above. It is used to describe the structure of power relationship involving a varying amount of power and authority. It is believed that laws derive their validity and force from the authority that their makers posses. Thus, it can be said that the superior- subordinate relationship that exist among the law makers also exist among the laws and we can conclude that, hierarchy of laws is a direct reflection of the hierarchical relationship that exist in the law making authorities. Knowing the hierarchy of laws of a country is important for the purpose of interpretation of laws. In fact, one of the rules of interpretation is that whenever there is a conflict between two types of legislation the one higher in status will prevail and become applicable over the law which is lower in status. So, hierarchy of law is important to determine the applicable law in case there occur conflict between different types of legislations. Just like the law making process, the hierarchy of laws varies under different constitution. Though there are similar explanations and rules of hierarchy of laws, there are differences in the hierarchy of laws, depending on the constitutional setup. 2.3. Hierarchy of Laws under the 1995 FDRE Constitution. Fasil Nahum, The Constitution of the Nation of Nations, Red Sea Press Inc., 1997 Under the 1995 constitution, a federal state structure has been adapted in Ethiopia. Under this constitution state power is apportioned between the federal government and regional status. Accordingly, both the federal and state governments can make laws on matters that fall within their competence. In this section, we try to study the hierarchical relationship that exists among the federal and regional laws as well as between the federal and state laws. 2.3.1. The Supremacy of the FDRE Constitution The federal constitution, being the source of powers of both the central and regional governments, is believed to be the supreme law. So as to say that the constitution is supreme, we need to see its declaration to the effect that the power of the legislator to alter the constitution is either limited or non-existent and that all legislations are below the constitution. In this respect the federal constitution usually embodies a provision which prohibits legislators to alter the constitution unilaterally FDRE constitution Art. 105. The rationale for the supremacy of the constitution is that it is an emanation from the will of the body superior to the legislator, namely the people. Thus the fact that the federal constitution derives its validity from the ultimate body (the people) makes it the ultimate measure of legality of the acts of the legislators and other organs of state power established by it or in pursuance of and in accordance with its provisions. Consequently, all legislations be they made by the federal government or state government organs are subordinate to the federal constitution Ibid the preamble and Art.8. In like manner, the 1995 FDRE Constitution states that the constitution is the supreme law of the land Ibid Art. 9(1) . It reads as “Any law, customary practice, acts of an agency of government or official that contravenes the constitution is invalid.” In this article the phrase “any law” is used to cover all laws which are now in force both at the central and regional levels. Therefore, the FDRE constitution is superior to all federal and state laws including the state constitutions. This constitution is binding on all authorities of both the federal and of the regional states. Hence, all acts made by these authorities in contravention of the supreme law are invalid Ibid. 2.3.2. Federal legislations and their hierarchy As already mentioned in the foregoing part of this study, the position of federal legislation on the ladder of hierarchy is below the federal Constitution Ibid. The researchers have seen that primary legislation normally refers to the enactments made by the supreme legislative organ of the country to which it belongs. Therefore, in our case, federal statutes (proclamations) enacted by the House of Peoples’ Representatives, which is the supreme legislative organ of the federal government Ibid. Art. 50 (3) fall under this group of legislation (primary legislation). In other words, the House of Peoples’ Representatives is the supreme authority of the federal government. As a result, the federal statutes (proclamations) enacted by it are superior to all other laws made by the federal authorities Ibid. 2.3.3. State laws and their hierarchy At present, the Federal Democratic Republic of Ethiopia comprises nine states Ibid. Art. 47(1) . They are: Tigray; Afar; Amhara; Oromia; Somali; Benshangul (Gumuz); SNNP; Gambella peoples and Harari people. The powers of the Federal Government and of these states are defined by the Constitution of FDRE Art 50(8) of the FDRE constitution .The federal Constitution grants the State councils the power to enact laws on matters falling under the state Ibid. Art 50(5) .As it is mentioned in the constitution, the laws that are enacted by the State Councils include the state constitution and other state laws Ibid. Art 52(2)(b). In order to see the hierarchy of those laws in the states mentioned above, the following four state constitutions are taken as instances. These are: the Constitutions of Tigray Regional State, Amhara Regional State, Gambella People Regional State and the SNNP. All these Constitutions declare in their supremacy clause that subject to the supremacy of FDRE Constitution, they are the supreme laws of the respective state. To this effect, the Constitution of Tigray Regional state in its supremacy clause states that consistent to the FDRE Constitution, it is the supreme law of that regional state. According to this Constitution, any law, customary practice and an act of agency of government or official that contravenes it shall have no effect Tigray Regional State Constitution, Art 9(1) . The Constitutions of Amhara Regional State Amhara Regional State Constitution, Art 9(1) and Gambella Peoples’ Regional State Gambella regional State Constitution, Art. 9(1) have also employed the same wording. The forms of legislation existing in the states under consideration are similar to that of the federal legislation. These legislations cover: state statutes, decrees, regulations, and directives. As provided under Article 49 of the three regional state constitutions (Tigray, Amhara and SNNP), the state councils of these Regional states are empowered to enact laws that do not contravene the federal Constitution and other laws. The Constitution of Gambella people regional state also confers power to the State Council of the same to make laws that are applicable in that regional state FDRE constitution Art. 50(1) and (3). Summary To summarize this chapter, legal pluralism is the expression of the Ethiopian federal structure. That means, legal pluralism has a strong connection with federalism. Both of them have an inherent relationship. They cannot go separately. That’s why, the FDRE Constitution has established the federal state structure where governmental powers are shared between the federal government and the nine constitute units of the federation. With regard to the hierarchy of laws, the FDRE constitution is supreme law of the land. And if the conflicts arise between the two tiers of government legislations, the constitution does not provided supremacy clause to solve this problem unlike other countries experience. CHAPTER THREE ETHIOPIAN LAND LAWS 3.1. OVERVIEW OF ETHIOPIAN LAND TENURE SYSTEM: HISTORICAL PERSPECTIVE The land tenure system in Ethiopia dates back to the time immemorial and can aptly be studied in terms of the South/North dichotomy where the north has lived through the rist system and the south has lived under the communal system till the beginning of the 20th century. The Southern communal tenure has been disturbed immensely when the northerner started expanding their empire to the south and had won and included almost half of the present day Ethiopia. It is to be noted that before the time of Menelik II 7Menelik II ruled the new Ethiopia he forged out by conquering different kings and rulers of tribal kingdoms from 1881-1913. the present-day southern Ethiopia was largely under the tribal communal land system where each tribal leaders controlled and ruled over the land and the people. On the other hand, the northern part of Ethiopia lived under the age-old rist land tenure. If one ventures to the question of land tenure system in Ethiopia, he has to see it with respect to two eras: the era before the modern legislation and the era after the modern legislations i.e. pre 1960 and post 1960. The defining moment with this respect was 1960 where all customary laws have been abolished to the extent that they are inconsistent to matters provided within the new Civil Code, which was enacted at the same year. In 1960, the Emperor promulgated a new Civil Code for Ethiopia. This enactment ostensibly marked the end of the application of customary law throughout the empire, Article 3347 (1) of the code states: unless otherwise provided , all rules whether written customary or previous in force concerning matters provided for in this code shall be replaced by this code and are hereby repealed The 1974 popular revolution with the famous slogan ‘land to the tiller’ had changed the land ownership system from feudal to public land ownership. The land fragmentation and the attendant meager productivity was the consequence of the policy, which put in place public ownership of land and the prohibition thereof to sell, mortgage or transfer rights overland in any manner. Accordingly, many scholars, business men, even politicians hoped that the current government The Derg military government was toppled via force in 1991. would change the land policy of the nation; however, to the surprise of many it has continued (with slightest modification) the public ownership of land policy of the government it did succeed. 3.1.1. Rural land laws under the imperial regimes The period of imperial regime was characterized by feudal state, where most of the land was controlled by the state and feudal lords in which citizens were using land under different tenure arrangements. Daniel weldegebriel ambaye. land rights and expropriation in Ethiopia. Doctrinal thesis. Stockholm 2013 Such tenure arrangements were customary by nature and numerous in numbers. Ibid These land tenure systems vary from province to province. In feudalistic Ethiopia, lands were the property of the king which distributes among his subjects. A portion of such distribution is also given to church. In return of such distribution, tribute is paid to the king by all holders other than the church (which is exempted from paying tributes or tax). Ras Alula and Ras Gugissa, two famous governors of different part of the country, have once said to be declared that “Man is free, land tributary.” In the imperial regimes’ The Modern Ethiopia took its present territorial shape with the administration of king Menelik II (1889-1908) and was subsequently ruled by Emperors, Haile Sellassie I being the last and he ruled from 1930-1974. During these periods, the land holding system was largely governed by customary rules defining the nature of the feudal landlords’ rights especially in the newly occupied southern part of Ethiopia. land holding system, there were three kinds of rights over the land until it was abolished in 1975 via Proclamation. Rist, Gult and private land ownership. Richard Pankhurst, State and Land in Ethiopian History, (Oxford University press, 1966) Rist and Gult largely operated in the northern part of Ethiopia and the occupants ( rulers from the north) were also possessing private land in the southern and south western part of the country where people were subjected to extreme form of exploitation by the landlords. The owners of the land were royalties, nobilities, retired soldiers, governors, and the Orthodox Church. The idea of royal land ownership of land in Ethiopia was documented by royal chronicles of different kings. PANKHURST, R. 1966. State and Land in Ethiopian History, Addis Ababa, The Institute of Ethiopian Studies and the Faculty of Law, Haile Sellasie I University. P. 1.The land tenure system in the northern part of feudalistic Ethiopia may be generally classified as private holdings, church lands and state lands. Ethiopian Central Statistical Agency (CSA), www.csa.gov.et The land owned by the state were distributed among those serving the governing at various level. It is divided among the government servant in return of their service because there had been no fee at that time.. Before 1975, particularly in the southern part of Ethiopia, land was concentrated in the hands of often-absentee feudal landlords, tenure was highly insecure, and arbitrary evictions were a serious threat. Hussein Jimma, The Politics of Land Tenure Ethiopian History: Experience from South, (Center for Environment and Agriculture studies, Trondheim, Norway, 2004.) Hence, Private land tenure system operated in the southern part of Ethiopia. This fact and ensuing exploitation created popular resentments which erupted in the form of revolution and ended up not only with the demise of the imperial regime but also with new advent: land proclamations Public ownership of Rural Land Act Proclamation, No. 31, (Ethiopia. 1975) and Government Ownership of Urban Lands and Extra Houses Proclamation No. 47 (Ethiopia, 1975 making land the property of the government which came to power by then. 3.1.2. Rural land laws under Derg era Supra note 44 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.” ANDARGACHEW-TIRUNEH 1993. The Ethiopian Revolution, 1974-1987: A Transformation From an Aristocratic to aTotalitarian Autocracy, New York, Cambridge University Press. P. 97 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” Calpham, C. 1988. Transformation and Continuity in Revolutionary Ethiopia, Cambridge, Cambridge University Press. which means that land would be privatized. Nevertheless, when the much anticipated proclamation Public Ownership of Rural Lands, Proclamation No. 31/1975. Negarit Gazeta. Year 34, No. 26. 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 gashas 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. Proclamation 31/1975, Article 3.2 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 Ibid 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 Ibid 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 ten hectare Ibid Article 4.3. No person was allowed to use hired laborers to cultivate his land (except the weak, the sick, widows, and minors Ibid Article 4.5. 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, According to the Ethiopian Civil Code (Arts. 3041 ff and 3117 ff), antichresis is like a mortgage except that the former is created by contract. The main difference is that in case of antichresis the immovable (land or building) shall be temporarily delivered/transferred to the creditor, while in case of mortgage it has to stay in the hand of the debtor lease/rent, inheritance (outside of family), donation, or exchange of any sort that affects the land. In any case, Article 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. Calpham, C. 1988. Transformation and Continuity in Revolutionary Ethiopia, Cambridge, Cambridge University Press. The management and distribution of land was given to peasant associations (PA), which were formed to cover a minimum area of 800 hectare (20 gashas) of land. Supra note 50, Article 8 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. Ibid Article 10 Assessment of the land reform carried out in the years that followed the proclamation has been made by many writers. WEGREN, S. K. (ed.)1998. Land Reform in the Former Soviet Union and Eastern Europe, London, Routledge . For example it is said that in Ukraine, like any other place in the then Soviet Union, in theory, land farmed by agricultural collectives was owned by the collective. In reality, because Ukrainian farms were subject to the USSR land code and the Model Charter for collective farms, land was state- owned and workers on these farms assumed the same role as wage labor in industrial enterprises, p. 49. The general agreement can be summarized as follows: Erroneous state policies (villagization, grain requisitioning, resettlement, agricultural, collectivization) which were not discussed with the people at grassroots level cost the country lots of energy and money. The peasant associations (PAs) which were given authority to redistribute land, maintain, common assets, resolve conflicts and enable development activities taking place in their areas were captured/hijacked by the state to do its ‘political work’, such as tax collection, maintaining order, channeling propaganda, requisiting grain, and recruiting young men for the war. The land reform was successful in that it abolished the landlordism and tenant- ship in the country and created free access to land to all the landless, but it failed because 1) it defined land rights as usufractuary rather than private 2) the mandate given to the PA encouraged them to practice periodic land distribution, in consultation with local government agents, created tenure insecurity. By and large, it replaced the landlord with the state, providing the latter with direct and uncontrollable access to the peasantry. ”In conclusion, the end product of the land reform was it failed where it succeeded.” DESSALEGN-RAHMATO 2009 a-a. Land and Agrarian Unrest in Wollo: From the Imperial Regime to the Derg. DESSALEGN-RAHMATO (ed.) The Peasant and the State: Studies in Agrarian Change in Ethiopia 1950s-2000s (collection of articles by same author). Addis Ababa: Addis Ababa Univrsity Press. Pp. 36-40 3.1.3. Current Land Policies in Ethiopia 3.1.3.1. Ownership Issues As mentioned herein above, land was/is a public property in Ethiopia. The government has administered it since the 1975 radical land reform. The same is true with regard to the EPRDF government, which took power in 1991. Immediately after the downfall of the Derg, no one was certain what course the new government would take regarding land tenure. The Transitional Government The transitional government stayed in power from 1991 to the time of the ratification of the FDRE constitution. of Ethiopia had declared that the issue of land tenure (then defined as a choice between private and public ownership) would be settled in the process of developing the new federal constitution. Nega and Adnew, et seq., Current Land Policy Issues In Ethiopia, 2002 (Ethiopian Economic Policy Research Institute, Addis Ababa, Ethiopia), accessed from www.fao.org, on 12.01.2011 When the new constitution of the Federal Democratic Republic of Ethiopia was adopted in 1995 (herein after the FDRE Constitution), the issue was settled in favor of public ownership of land and this policy was made available in one of the articles of the Constitution. Article 40 (3) of the 1995 Constitution (which concerns property rights) provides that the right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the state and in the people of Ethiopia. "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“. Sub Article 4 also states, "Ethiopian peasants have the right to obtain land without payment and the protection against eviction from their possession." Thus, by inserting the land policy in the Constitution, the current government has effectively eliminated the possibility of flexible application of policy SAMUEL-GEBRESELASSIE 2006. Land, Land Policy and Smallholder Agriculture in Ethiopia: Options and Scenarios. Future Agricultures Consortium meeting. the Institute of Development Studies. P. 4 and implementing law. One has to wonder why this is being done; despite the fact that the public ownership policy of the ex-regime from which the present government took power by force ended unsuccessful. Some of the reasons forwarded by the government justifying this policy can be collected from the minutes of the constitutional debate Minutes of the Ethiopian Constituent Assembly, (November, 1995) Volume 4, Pages 23-51 (the assembly and other related assemblies ratified and approved the present Constitution of the Federal Democratic Republic of Ethiopia, 1995) pending its ratification: the present government’s position appeared dominant and won a place in the constitutional arrangement. 3.1.3.2. Rural Land Legislation and Policy The present government worked hard putting agricultural development at the front point. It has declared that land is the property of the nations, nationalities and people of Ethiopia. FDRE Constitution, article 40 On the other hand, the present government made slight modification to the Derg proclamation Supra note, 50 with regard to rural land and administration thereof. The first federal law enacted pursuant to the constitutional direction was the federal rural land administration proclamation no. 89/1997. If one sees the proclamation at a glance, it confirmed the constitutional principle of land ownership by the nations, nationalities and people of Ethiopia .i.e. public ownership of land. It gives power to administer land to the regional governments. Federal Rural Land Administration Proclamation no. 89/1997, Article 4-5 This proclamation practically amended the existing laws on one area only; that it enabled the right to rent out Ibid, Article 2(3); However, the renting is with limitation. Rent is allowed in a manner that does not displace the farmer. Distinction is also made on the duration of the lease period depending on the identity of the lessee and hence if the lessee is a farmer the maximum duration is 3 years while up to 25 years is allowed to an investor.land in addition to bundle of property rights in land provided for under proclamation 31/1975. Under the recent proclamation, bequeathing land to family members Ibid, Article (5); A family member is defined as any one permanently living with a person having holding rights by means of sharing the livelihood of the later. is allowed in a conflicting manner to the civil code of Ethiopia. Both modification were informally and customarily, there in the society, renting and inheriting land were and are common phenomenon for Ethiopians. Confirming once again the power of regional governments on land, proclamation 456/2005 provides for the rural land administration and use framework law; pursuant to this law states are allowed to enact their own laws with regard to land administration and use. On the morrow the big states, Regional States of Oromia, SNNPR, Amhara, Tigray, have enacted their own land use and administration proclamations as per the framework federal legislations and regulating areas left onto them. The framework legislation has also authorized regional states to fix duration of rural land rent out. For instance, Amhara Regional state has given up to 25 years, Oromia up to 20 years, SNNPR up to 25 years, Tigray up to 20 years. 3.1.4. The Current Governing Land Laws Ethiopia is a Federal State constituting two special administrative cities Addis Ababa and Dire Dawa that are accountable to the Federal Government and nine other administrative national regional states, which are autonomous in the administrative affairs of their people FDRE Constitution, Article 47. The powers and functions of the Federal and Regional Governments are provided in the FDRE Constitution. The power to “enact laws for the utilization and conservation of land ….” is provided, under the constitution, to the Federal Government Ibid, Art. 51(5).. Regional Governments are empowered “to administer land and other natural resources in accordance with Federal laws.” Ibid., Article 52(2) (d) To this effect, the Federal Government enacted a Land administration and Use Proclamation (RLAUP) in 1997 Supra note, 72, and then replaced it with the current legislation, proclamation No. 456/2005. Proclamation 456/2005 delegates regional states with the power to “enact rural land administration and land use law” Federal Rural Land Administration Proclamation No, 456/2005, Article 17. which is consistent with it Ibidin order to implement the FDRE RLAUP at regional level. Besides, there are other legislations in Ethiopia related to land matters Among which the Urban Land Lease proclamation (Proclamation No. 711/2011) and the Expropriation Proclamation (Proclamation No. 455/2005) are the main ones.. Further, six of the regional states have adopted their own RLAUPs and Urban Lands Holding Lease Regulations in order to implement the Federal Land Proclamations Tigray, Amhara, Oromia,SNNPRS, Beni Shangul Gumz, and Afar. The Constitution The FDRE Constitution deals with ”Right to property FDRE constitution, Article 40, provides details about property in general, and land ownership in particular. The Constitution guarantees for every Ethiopian to own private property with all its benefits Ibid , Article 40(1). Private property includes “any tangible or intangible product which has value and is produced by the labor, creativity, enterprise or capital of an individual citizen” Ibid.sub Article 2 . Article 40 (3) which is the relevant provision concerning land ownership in Ethiopia states that: The right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange. Regarding its means of acquisition, sub- Article 4 states that Ethiopian peasants have the right to obtain land without payment and the protection against eviction from their possession. Likewise, concerning the pastoralists of the lowland areas, sub- Article 5 declares that Ethiopian pastoralists have the right to free land for grazing and cultivation as well as the right not to be displaced from their possession. Although the peasant is not entitled to private ownership rights to the land itself, he is guaranteed a “full right to the immovable property he builds and to the permanent improvements he brings about on the land by his labor or capital,” and this right includes “the right to alienate, to bequeath, and, where the right of use expires, to remove his property, transfer his title, or claim compensation for it.” FDRE Constitution, Article 40 (7) Rural Land Laws Access to Rural Land Two years after the adoption of the FDRE Constitution, the Federal government enacted a Rural Land Administration and Use Proclamation (RLAUP) Supra note, 72 that replaced the 1975 Supra note, 50 rural land law. Proclamation 89/1997 was again itself repealed and replaced by the current RLAUP Supra note, 83 in 2005. This proclamation follows the constitutional principle that creates free access to rural land. It declares that “peasant farmers and pastoralists engaged in agriculture for a living shall be given rural land free of charge.” Ibid Article 5(1). A person, above the age of 18 years may claim land for agricultural activities, and women who want to engage in agriculture shall also have the right to get and use land. Ibid., Article 5(2) and (3); See also Article 5(1) of Oromia Rural Land Law that says “Any resident of the region, aged eighteen years and above, whose livelihood depends on agriculture and/or wants to live on, have the right to get rural land free of charge .” This principle of free access to rural land has also been reproduced in the regional rural land administration and use proclamations. The Revised Tigray National Regional State Rural Land Administration and Use Proclamation, Proclamation No. 136/2007. Tigray Negarit Gazeta. Year 16 No.1.Article 5(1) (hereinafter Tigray RLAUP); The Revised Amhara National Regional State Rural Land Administration and Use Proclamation, Proclamation No. 133/2006. Zikre Hig. Year 11, No.18. Article 5(2) (hereinafter Amhara RLAUP); Oromia Rural Land Use and Administration, Proclamation 130/2007. Article 5(1) (hereinafter Oromia RLAUP); The Southern Nations, Nationalities and Peoples Regional State Rural Land Administration and Utilization Proclamation, Proclamation 110/2007. Debub Negarit Gazeta. Year No. Article 5(1) (hereinafter SNNRS RLAUP).The conditions attached to this right are, firstly, the person must want to engage in agricultural activities. In other words, agriculture must be his/her main means of livelihood or profession. Secondly, s/he must reside in the area where the agricultural land is located. Although this principle is not clearly seen in the Federal RLAUP, Regional RLAUPs have clearly envisaged it. For example, the Amhara RLAUP that uses the phrase “any person residing in the region…” as a condition to get agricultural land (Article5(2), 6(1), 7(1); The Tigray RLAUP uses similar words like “any resident of the region” (Article 5(1) Thus, residency and profession are the two important conditions to get rural land in Ethiopia. The reason seems that since there is shortage of agricultural land in rural areas, because of population pressure, it is not advisable to give land to those who live elsewhere (absentee owners) and those who earn income from other professions. The criticisms raised against this rule are first, the principle of free access to rural land has, in practice, not been working for shortage of land in rural areas and because the laws prohibit redistribution of land. The Federal RLAUP simply says that upon the wish of the people land may be redistributed (Article 9); the Amhara RLAUP says, if 80% of the people agree (Article 8); the Oromia RLAUP completely prohibits redistribution (Article 14). Second, because of the residency requirement in the law, peasant farmers are locked in on their land instead of searching for additional income by staying in urban areas for longer periods. Thirdly, regional states may abuse “residency requirement” by misinterpreting it as “nativity requirement” and deny land to those who come from other regions. This is true, for example, in what happened in February 2012 when the authorities of the SNNPS evicted about 20 thousand peasants from a place called Gura Farda forcefully, who had migrated from the northern part of the country (Amhara). Daniel W. Ambaye, Ethiopia Yemanat (Whose land is the Land [Ethiopia]), News Paper , Reporter Amharic, March 28, 2012. The peasants claimed that they lived from 2-20 years, and finally they were evicted because their case was labeled as “illegal settlement.” The same incident was repeated in March 2013, when the Beni Shangul Gumz region evicted and expelled about 5000 people because they were Amhara ethnic origin coming from Amhara Region. The researchers believe that it is better to adopt the residency requirement instead of the nativity requirement in order to balance the shortage of land in the state and to maintain the security of the land holders. Nature and Duration of Land Rights Concerning the nature of right provided to the farmers, the Federal and Regional RLAUPs uphold the constitutional principle that denies private ownership to land. Rather, the RLAUPs provide farmers with a right termed as “holding right.” The Federal RLAUP defines the term holding right as right of peasants and pastoralists “to use rural land for purposes of agriculture and natural resource development, lease and bequeath to members of his family or other lawful heirs, and includes the right to acquire property produced on his land thereon by his labour or capital and to sale, exchange and bequeath same”. Supra note, 83 Article 2(2) Similar definitions have also been adopted by the other regional RLAUPs. The general understanding today is that peasant farmers will have all the rights of an owner except sale and mortgage. They can use the land for agriculture production, have full ownership to the produce collected there from, have right to rent to fellow farmers (share-cropping), lease to investors, and inherit and donate (as a gift) to family members. Peasants shall have such rights for lifetime and beyond, since they can donate and inherit it to others. It has been declared that “…rural land use right of peasant farmers, semi-pastoralists and pastoralists shall have no time limit.” Federal RLAUP, Article 7(1); Amhara RLAUP, Article 5(3); Tigray RLAUP, Article 5(1) (b). In a way, this gives tenure security to the holder of the land as the right of using the land and the investments made thereon will not be threatened by time limitation. It must be noted that the longer the duration of rights of using land is the better in terms of ensuring tenure security. Means of Land Acquisition There are different modalities through which a person may acquire land in Ethiopia. The Federal RLAUP recognizes the following ways for a person to get rural land: Land Grant As mentioned above, the constitution and the subsequent land laws have created a free access to rural land to whomsoever who wishes to engage in agricultural activities. Any person, who is 18 years and above has the right to get rural land free of charge, the government, through its different land administration apparatuses, is empowered to give land to those who are in need of it. Land grant may be made from unoccupied government lands, communal lands, land reserve (land left without heirs and claimed back by government, land claimed back by the state because the holder leaves the area permanently or neglect the land), and finally by conducting land distribution. Federal RLAUP, Article 5(2), (3) & 9(1); Amhara RLAUP, Article 7. Land redistribution, as discussed above, has less appeal to land holders who are supposed to give consent for its distribution. Bequeath The second means of acquiring land is through inheritance or donation. Any person who is a member of peasant family may have the right to get rural land from his/her family through inheritance or donation Supra note, 83 Article 5(2) . A family member is defined as “any person who permanently lives with holder of holding right sharing the livelihood of the latter Ibid. Article 2(5)”. Unlike the family members who are recognized by the FDRE Revised Family Law (RFC) as those who are related by marriage, blood and adoption, the Federal RLAUP follows a slightly different path. As can be inferred from the above cited provision, a family member is one who “lives” with the peasant who holds the land and “shares” his “livelihood.” The requirements are basically two: residency and management. It means, first, the beneficiary must permanently live with the farmer under the same roof (residency element); and second, s/he must totally rely on the peasant farmer for her/his livelihood and has no other income of her/his own. S/he is under the control and administration of the farmer (management element). This means, the law does not specifically require marital or blood relations for a person to be considered as a family member. Hence, a laborer who has no alternative income of his own and lives with the farmer, without salary, under the same roof may be considered as family member and eligible for inheritance. The Amhara RLAUP even goes one step ahead by allowing inheritance of land by will to any farmer engaged in agriculture. The Revised Amhara National Regional State rural land administration and use proclamation no 133/2006, Article 16(1); Whether or not this contravenes with the Federal Rural Land Law is debatable By contrast, it is not possible to inherit or donate rural land to one’s children who live elsewhere or are engaged in other professions. The rationale behind such rule seems that since land belongs to the state and the people and not a private one, it has to be transferred to those who are in need of it, irrespective of their blood relations. Yet, the FDRE RLAUP, except the possibility of passing one’s land to family members, presumably through expressed testament (will), doesn’t tell the situation of inheritance during intestate succession. The assumption is that in the absence of legitimate will left by the deceased landholder, the rules of the RLAUP and the Civil Code succession part would be applied. Looking into this problem, the Amhara (ANRS) and the Benishangul Gumz RLAUPs included provisions to settle the issue. Regulation 51/2007 of the ANRS, for example, under Article 11(7) puts the beneficiaries of intestate succession in the following priorities: minor children, if not, family members; children of full age who have no land of their own; children of full age who have their own landholding; parents. In order to be a legitimate beneficiary to the intestate succession, all the above people must show interest to engage in agricultural activities and reside in the area. Lease The third modality to acquire land is government land transfer to private investors through lease contract Supra note, 83 Article 5 (4)(a). .This is the base for the current large-scale agricultural land transfer practice carried out in the country. Ethiopia is one of the countries that attract the interest of investors and sovereign states from different countries. In the past two decades, millions of hectares of land have been transferred to many foreign and domestic investors ventured in the flowering industry, bio-fuel, sugar, cotton, palm oil, tea production etc. The Ethiopian government has a favorable investment policy that attracts foreign direct investment in such sectors. It has been claimed that so far about 3.5 million hectares of land has been transferred to both foreign and domestic investors, and the government has still a plan to transfer the same amount of land in the coming five years. DESSALEGN-RAHMATO 2011. Land to Investors: Large-Scale Land Transfer in Ethiopia. FSS Policy Debate Series. Addis Ababa: Forum for Social Studies. P.5.; Daniel W. Ambaye Author. 2004 E.C. Sefafi ye Gibrina Investment le Ethiopia min Yifeyidal? (What is the Benefit of Large Scale Agricultural Investment for Ethiopia?). Reporter.accessible at http://www.ethiopianreporter.com/old_ver/index.php?option=com_content&view=article&id= 4934:2016-11-02 241&catid=303:commentary; an article published on Fortune News paper, accessed 3:09 PM http://www.addisfortune.com/Published%20On.htm: 2016-05-11 accessed 11:41PM The government, on the other hand, puts the figure at about 2.6 million229 (2.2 million given by regional states and 380,000 given by the Federal Government.) However, recent press and other reports HORNE, F. 2011. Understanding Land Investment Deals in Africa: Country Report Ethiopia. Oakland, USA: The Oakland Institute. about actual or proposed large farmland acquisition by big investors have raised serious concerns about the danger of neglecting local rights and other environmental concerns. They have also raised questions about the extent to which such transactions can provide long-term benefits to local populations and their contribution to poverty reduction and sustainable development. Transfer of Land Use Rights As already mentioned above, land rights could be transferred permanently through inheritance and donation. Besides, there are other modalities through which land use rights may be transferred temporarily to others. We can call them commercial land transactions, to differentiate them from inheritance and gift. To be specific, the law recognizes rent and lease as the two possible ways to transfer land use rights temporarily. Sale and mortgage are not yet allowed. The FDRE RLAUP provides a general provision that allows rent and lease the details of which shall be decided by regional rural land laws. It generally says that peasants and pastoralists can “lease to other farmers or investors land from their holding of a size sufficient for the intended development in a manner that shall not displace them, for a period of time to be determined by rural land administration laws of regions based on particular local conditions [emphasis added]” Supra note, 83 Article 8(1). It means, the law gives the discretion of deciding on the duration of the lease period and the amount of land to be leased out to regional governments. Another point is that the law uses only the term “lease”, and excludes the word “rent”, whereas regional RLAUPs give different meanings to the two terms. For example in the Amhara and Oromia RLAUPs “rent” is understood as “transfer of land to fellow farmers for shorter period of time”, while “lease” is defined as “transfer of land from farmers to investors or from government to investors for longer period of time.” Investors who rent land either from the government or peasant farmers have the right to mortgage their lease right as security to banks Supra note, 83 Article 8(4) . Regional states have also reproduced this right in their respective proclamations. This implies that an investor may lease land from two sources: first from individual farmers, and second from the government. When we look the practice, it is the land which is rented from the government that is given as collateral to banks; not the one rented from peasant farmers. The reasons are firstly, the land rented from peasants is too small to pass it as mortgage, and secondly, the peasant may not agree that his land be given as collateral to banks. Termination of Land Rights Rural land rights are not immune to government intervention. Hence, a farmer may be required by law to use his rights in some fashion than another. For instance, a farmer may not cultivate land having 30 degree slope, without putting terraces on the land Ibid. Art. 13(4). Such restrictions are made for various reasons, such as environmental, equity, health and others. Violation of such obligations may render the loss of the land itself. Concerning the reasons of loss of the land rights, the proclamation does not as such give a coherent list. But, one may locate them in different parts of the proclamation. For instance, it is said that a holder of rural land “shall be obliged to use and protect his land. When the land gets damaged, the holder of the land shall lose his use right Ibid. Art. 10(1). In general, a review of the Federal as well as Regional RLAUPs reveals that the following may be considered as reasons for the loss or termination of rural land rights: Permanent employment of the farmer that brings him an average salary determined by government Engagement in professions other than agriculture and for which tax is paid Absence of a farmer from the locality without the knowledge of his whereabouts and without renting the land for more than 5 years Fallowing the land for three consecutive years without sufficient reasons Failure to protect land from flood erosion Forfeiting land right upon written notification Voluntary transfer of land through gift Land distribution (the loss will be partial). Expropriation of land without replacement of another land Summary The period of imperial regime is a period before 1975. It is characterized by feudal state, where most of the land was controlled by the state and feudal lords in which citizens were using land under different tenure arrangements. With the coming of Haile Selassie into power, follows modernization of everything including land tenure system. Different decrees and proclamation was issued to bring about changes in land tax system. But almost all of this decrees and proclamation deals with land tax other than rights. More or less, some changes have been brought. With the coming of Derg into power, there were two ideas which were implemented. At first, 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.” 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” which means that land would be privatized. Secondly, when the much anticipated proclamation lastly came out on March 4/1975, the Derg ruled out for public/state ownership of all rural land. The Transitional Government of Ethiopia had declared that the issue of land tenure (then defined as a choice between private and public ownership) would be settled in the process of developing the new federal constitution. When the new constitution of the Federal Democratic Republic of Ethiopia was adopted in 1995, the issue was settled in favor of public ownership of land and this policy was made available in one of the articles of the Constitution CHAPTER FOUR 4.1. COMPARATIVE ANALYSIS OF ETHIOPIAN LAND LAWS As per article 51 of FDRE constitution federal government is empowered to enact laws in related with the issue of land use and administration. Based on this authority the federal government has been enacted Federal land use and administration proclamation no.456/2005 and also it delegates the regional states under article 17 of this proclamation to enact land use and administration laws so as to implement this proclamation in their territory. By following this delegation most of the regional states are enacted their own land laws. In this chapter we tried to show the comparative analysis of the federal rural land law with the five regional state land laws and among them. No.1 The right to acquisition and use of rural land FDRE Rural Land Administration and Use Proclamation No. 456/2005 Article 5 of the proclamation lists down the situation in which people of the country acquire land when they fulfill those requirements mentioned under said provision. It stipulates that the government as an owner of land and its role in acquisition and use of rural land. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Almost there is paramount unanimity between the federal and Amhara proclamation regarding the acquisition of land especially Article 5(1)(b) of the federal and Article 6(1) and (2) of the Amhara proclamation. The right of private investors in land acquisition and usage is also included in the proclamation like the federal one, the right to use rural land in line with their development is granted to both governmental and non- governmental organization. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Article 5 of Oromia proclamation given the right to acquire land to any residents of the region aged either 18 years and above, whose live hood depend on agriculture, to Governments and non- governmental organization, to investors and social organization. In exceptional manner the proclamation give land a acquisition right for grazing, religious or ritual places, water points and other social services. To put it in nut shell, the Oromia proclamation holds similar ground to that of the federal and Amhara regional state regarding an acquisition of land and use of land. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 This proclamation slightly differs from the above mentioned somehow. It included new concepts such as tenure security, and acquisition by donation if the documentary evidence requirements are fulfilled. Generally speaking as compared to other proclamations the Tigrean one is broadly illustrative and has included new concepts. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Article 6 of this proclamation has adopted the same measure as that of the federal despite the inclusion of concept such as gold mining and use of rural land by urban dwellers. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 The SNNP proclamation under Article 5(4) has gave impetus to youth who wish to engage in agriculture and this makes the proclamation unique in its characteristic of acquisition. The land use right is not terminated by the mere fact of living in other area or death of one of spouses. This proclamation further illustrates land use and acquisition right to aged and disabled persons. No. 2 Transferring rural land use in inheritance FDRE Rural Land Administration and Use Proclamation No. 456/2005 Article 8(5) of this proclamation allowed holders to transfer rural land through inheritance to members of their family The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Unlike the federal one the ANRS mentioned numerous circumstance of transfer through inherence. Article16 of this proclamation illustrates transfer by will to person residing in town and engaged in small income. It prohibits disinheriting child of testator or the family of some from inheritance right. The proclamation also allowed transferring use right to more than one person (Article 16(4). This proclamation has also solved difficulties that could arise when the man dies without making a will. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 This proclamation gives the inheritance right to peasant, pastoralist, or semi-pastoralist holder. Those who have no other income shall be given inheritance priority. The proclamation also solves the problem of land disputes up on inheritance and situation in which no heir is found.(Article 9 of the proclamation). The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Article 17 of the proclamation stipulates about inheritance. It gives priority right to the child who are without land, inheritance by the other family members in case when the deceased has no child. What is inconsistent with other proclamation is those listed under sub article 2(c) and (d). This sub-article prohibits land acquisition through inheritance to those who have their own land and who precede life with other means and to resident of urban. Bensihagul Gumuz Regional state Land Administration and use proclamation NO.85/2010 Almost it has similarity with ANRS rural land use and administration proclamation. Article 17 of this proclamation includes all listed requirements under ANRS rural land use and administration proclamation in similar instance. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 Article 8(5) of the SNNP regional state proclamation is completely similar, even in wording, to Article 8(5) of the federal proclamation. No 3 Transfer through Donation FDRE Rural Land Administration and Use Proclamation No. 456/2005 The law governing rural land administration and use of the federal government is silent in issue relating with transfer through donation. The presentence of such gap would create inconsistency between the regional states’ land laws. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Article 17 of this proclamation lays down two requirements so as to transfer land holding and use right through donation. These are Where the done is family member who engaged or likes to be engaged in agricultural work, resident of the region, not holding any land, and tills land by renting Where freely care for 3 consecutive years before gift is under taken. The provision also excluded holding right transfer from organization and grant only use right. It state that the gift shall be made writing. ( Article 17(5) The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Article 9 of this proclamation stipulate transfer by inheritance or donation. This provision under its sub article 5 mentions any peasant, pastoralist or semi pastoralist as having the right to transfer land through donation. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Article 5(2) empowers any one to acquire land through donation by fulfilling essential requirements. Donation is allowed only to child or family who has no any other land. Anyone who have the right to use rural land can acquire through inherence or donation save the duties states under law. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 This proclamation already repeated donation procedures mentioned under ANRS land use and administration proclamation. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 Like the federal proclamation, the SNNP regional state proclamation has remained silent in this regard. NO.4 Transfer of Rural land use in rent FDRE Rural Land Administration and Use Proclamation No. 456/2005 Article 8(1) of this proclamation gives power to peasants, semi-pastoralist and pastoralist who have holding certificate to lease land. This lease right is only to size of sufficient for intended development and determine period of time. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Article 18 provides numerous cases for rent of rural land. It gives the right to any landholder to rent their land. If it is for more than three years, it must be made in writing. The contact of rent of land should mention area of the land, year of rent, the amount and system of payment, the provision to be registered and it should not exceed 25 years. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 In slightly modified form, this proclamation allows the right to rent up to half of his holding. Interestingly, Article10 (5) imposes an obligation on who rented land to proper preservation and conservation for the duration he holds the land. The rent procedure presupposes the free consent of the parties. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Like the federal proclamation this proclamation allows, certificate holders the right to transfer rural land through renting. If land holder is spouses land renting shall only take place by the consent of the two. It reduced the period of rent for technological activates to 25 years which the federal one threat all like to be 25 years. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Unlike other regions, the land proclamation of Benishagul Gumuz has included number of circumstances to be adopted. It starches from fixing amount of rent to be paid. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 Article 8(1) of this proclamation allows peasant farmers, semi-pastoralist and pastoralist who are given land holding certificate the right to rent land. Besides, the proclamation has classified the duration of the contract as from peasants to peasants which is 5 years, from peasant to investor which is 10 years. The proclamation also allows the collateral usage of land by investors. No. 5 Exercising the rights over improvement or investments on rural land possessed FDRE Rural Land Administration and Use Proclamation No. 456/2005 Article5 (4) (a) of this proclamation gives the right to acquire land to investors to enhance and encouraged investment in rural land. This promotes investments in service, production and productivity. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Almost in similar fashion Article 6(3) allows investors to acquire rural land. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 In separate provision dealing with investment on land, the proclamation paves the way to access rural land and makes mandatory planting of trees and conservation. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Under Article 16 of this proclamation envisages the use of new technology and huge capital to attain the goal of improved investment Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Private investors are allowed to acquire and use rural land. An opportunity is also created in which private investors are allowed to rent land and improve investment thereon. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 From its very naming the south proclamation encourages utilization of land. Article 5(15) of this promotes this activity of investment subject to priority to peasant. Regarding rights over improvement or investment there is no apparent inconsistence among land laws. NO.6 Distribution of rural land FDRE Rural Land Administration and Use Proclamation No. 456/2005 As per art 9 the land re-distribution is possible when holder dies, have no heirs and when they go for settlement or left the locality on own wish and stayed over a given period of time to peasant farmers, semi-pastoralists and pastoralists who have no land and who have land shortage. The distribution may be undertaken on irrigable land to make equitable utilization. The distribution shall not affect the minimum size of holding and shall not result fragmentation of land and degradation of natural resources. Unlike some regional states’ land laws, there is no need of the approval of holders. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 According to article 8(1), No land distribution and allotment shall carried out after the enforcement this proclamation. But, if more than 80% of the holders in the kebele requested the Authority in writing, land will be redistributed in accordance with the directive. The Amhara Regional state proclamation is rigid about the redistribution of rural land on the proclamation article 2(1). The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 In the Oromia proclamation also there is a gap on issue of depriving condition of land like in the federal government so their one kind of inconsistence between regional states. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 As per Art 22 Rural land will be 1.Distributed for farmers when land holders are gone for settlement or left the locality for more than 2 years 2. lands like slopes that couldn’t result land degradation and fragmentation one will be distributed for peasants and investors with in regulation. it does not included the reasons for land redistribution under the Federal and law such as -when the holders of the land one deceased and have no heir and -if there is unoccupied land it will distributed for landless and peasants who have land shortage. The land distribution can be carried out if it is the only alternative and up on the wish of the peasants and when more than 80% of them approved the distribution in a written form to the competent authority. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Article 2 of this proclamation stipulates that the peasant land cannot be redistributed except if it is not irrigable land and 80% of the holders’ approval for distribution is obtained. There is slight inconsistence in this regard with Amhara proclamation. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 As per Art.9 of this proclamation, If the holder of the land are deceased and have no heir and the holder gone for settlement program or left the locality, will be distributed for peasants and pastoralist have no adequate land. No. 7 Conditions of depriving rural land use rights FDRE Rural Land Administration and Use Proclamation No. 456/2005 The federal rural land law does not say anything about the issue of the conditions for depriving of rural lands use and holding right. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 According to Art. 12 of this proclamation the holder shall be of deprive from his holding right: -When he engaged in non- farming activity and earns for his livelihood form it. -where the holder disappear from his residence for 5 years without notification about whereabouts and without renting the land. - if he does not cultivate his land for consecutive 3 years and 1 year for irrigable land without good cause. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 The Oromia regional state rural land proclamation has followed the same approach with that of the federal land proclamation. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 As per Art.12 of the Tigray regional state rural land administration and utilization proclamation, there are some preconditions for depriving land use and holding right in addition to other Ethiopian land laws like period of limitation. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 As per Article 13 of this proclamation the conditions of depriving land holding right in this proclamation are similar with ANRS rural land law. But, the difference here is period of limitation to deprive the right that is not mentioned in the ANRS land law. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 The SNNP regional state rural land proclamation also has followed similar approach with the federal government proclamation and the Oromia land proclamations with regarding to this issue. No.8 The right of private investors Federal rural land administration and use proclamation NO456/2005 This proclamation does not say anything about the right of private investors. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 This regional proclamation also silent about this issue. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 According to article 12 of this proclamation, any privet investor shall have access to many land is obliged to conserve from degradation the requirement of being obliged to plant indigenous trees on the 2 % of their holding. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Up on the following criteria it gives use right to private investor; The investor has the duty conserve the community and to plant some part of the land Investor to meet out of the agriculture shall be made a contract with a competent authority There is inconsistency with Oromia proclamation as to the amount of the land to be planted. In the Oromia proclamation there is the duty to plant 2% of their holding but not in Tigrean. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Art 5 privet investor shall have the right to acquire land to use on, rent from the government or any other rural land holder through the agreement. From this provision we can understand that investor can hold land from government or land holders without other requirement. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 This proclamation says nothing about the issue of right private investor in their proclamation. No. 9 Rural land dispute resolution FDRE Rural Land Administration and Use Proclamation No. 456/2005 Article 12 of this proclamation provides that dispute over rural land should be resolved going through stage of; Discussion and agreement, Involvement of arbitral body, and It should be decided based on the relevant land law provisions. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 This proclamation almost followed similar procedure toward resolution of dispute arising over rural land. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Like Amahra regional state the Oromia regional state has adopted the same way of dispute resolution. This unanimity is attributed to problem solving approach of the federal law. The Revised Tigray National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 This proclamation 1st gives a chance for disputants to resolve the dispute with negotiation, if they can’t solve themselves it shall be resolve by Kebele administrator. Which then proceed to woreda court and its decision is final. Worada courts can also approve the decision of Keble administrator. There is inconsistence of procedure and way of resolution in this proclamation as compared with the other regional states proclamation. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Art 34 of this proclamation has adopted the same dispute resolving mechanism with the Amahra regional state land use and administration proclamation. It also incorporates special body related to women and children right, and competent bodies to supervise the litigation process and the administration of the land. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 It stipulates that if there is a dispute the parties shall be first brought the case to Keble administration. The Keble administration may resolve the dispute through negotiation and arbitration of elders chosen by the disputants. If they are not satisfied they can appeal to woreda court. NO.10 Criminal liability FDRE Rural Land Administration and Use Proclamation No. 456/2005 Article 19 of this proclamation stipulates that : “any person who violates this proclamation or the regulations and directives issued for the implementation of this proclamation shall be punishable under the applicable criminal law” The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 This proclamation does not raise the issue of criminal liability The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 It states that any land user who violates this proclamation shall be tried under the criminal law The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 This proclamation with standard to the criminal has incorporated some kind of penalty: Any holder who violates the period that limited for utilization rent land for utilization period of time be shall be punished from 100-300 birr Any holder who intentionally failed conserves his holding land he shall be punished from 20-30 birr and then she shall be conserving it. Any holder who construct a house in the land used for agriculture is punished with 50 birr and demolishing the house This proclamation has adopted somewhat unique form. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 This proclamation also incorporates the same idea with SNNP regional state proclamation and Oromia proclamation The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 As per art 16 of this proclamation, similar way of treating criminal liability is followed with Oromia proclamation 11. Rights regarding fixed assets on rural land FDRE Rural Land Administration and Use Proclamation No. 456/2005 Art 2(4) of this proclamation declares that land holding right constitute the rights of any peasant , farmer or semi pastoralist and pastoralist shall have use rural land for the purpose of agriculture and natural resource development, lease and bequeath to member of his family or other law full heirs and it also includes the right to acquire property , produce on his land there on by his labour or capital and to sell exchange and bequeath same. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 As per article 2(8), land holding right constitutes the right to produce and transfer the assets. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 As per Art 6(2), selling of fixed assets like coffee ,mango avocado, papaya , orange etc is prohibited. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 According to Art 8(6), any legal person who is given the right to use land has the right to sale, lease, bequeath and pledge the property produced by his labour or capital on his land. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 As per Art 13(2) of this proclamation, planting plants that can affect fertility of farm land is prohibited. Nonetheless, a person who intend to plant on sloppy land without ploughing it shall acquire permission from kebele rural land administration committee, woreda desk or any competent authority. As per Art. 2(4), any peasant or anybody who has the right on proclamation , by this proclamation it is ascertained to be land holder, to produce property on the land, transferring the property, not to be deprived from the land , to use the land for agriculture and natural resources development and the likes. Art 5(8) states that the detail any rural land, above slope 45% shall not be used for farming and free grazing other than forestry, perennial plants, development of forage for animals and any other similar activities. However, this provision shall not be effective on the same rural land prior seized by the land holders who use it that it does not damage the environmental protection and sustainable natural resource care being supported by the expertise advice. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 12 Attachment and injection of rural land through court order FDRE Rural Land Administration and Use Proclamation No. 456/2005 There is no any provision regarding this issue. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 There is not any provision regarding this issue. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Art 6(5) states that any peasant or pastoralist or semi-pastoralist shall not be evicted from his holing and his holding shall not be transferred to anybody or organization due to any liability or execution of judgment. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 It does not say anything about this issue. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 It does not say anything about this issue. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 It does not say anything about this issue. 13. Land holding certificate FDRE Rural Land Administration and Use Proclamation No. 456/2005 Art 6(3) states that any holder of a rural land shall be given holding certificate to be prepared by the competent authority and that indicates size of the land, land use, type and cover, level of fertility and borders as well as the obligation and right of the holder. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Art.24 (1) states that any person granted rural land shall be given the land holding certificate in which the details of the land is registered by the authority prepared by his name and his photograph fixed thereon. The holding certificate is the legal certificate of the holder. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Art 15(4) of this proclamation states that any holder of the rural land shall be given a holding certificate by Oromia agricultural and rural development bureau describing the size of holding , use and coverage , fertility status and boundary and also the right and obligation of the holder. Art 15(8) states that husband and wife that have a common land holding shall be given a joint certificate of holding specifying both their names. Art 15 (16) states that any one (governmental or non government organization or community etc. ) Who has the right to use rural land shall be given a holding certificate by their name where as for the communal lands held in the kebele , the holding certification shall be given by the name of the community using the land jointly. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 Art 6(4) states that where land is jointly held by husband and wife or by other persons, the holding certificate shall be prepared in the name of all joint holders. Art 6(5) stipulates a house lead woman, she shall be given a land holding and use right certificate in her name. Art 13(14) declares that any individual or organization shall not use rural land without land holding certificate. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Art 5(1) (c) lays down that land holding certificate shall be given to the holder by rural land administration committee of the kebele or woreda desk. Where the land is a holding of a husband and a wife in common , the holding certificate shall be prepared by the name of both spouses. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 As per Art 27(1) any person granted rural land shall be given the land holding certificate in which the detail of the land is registered by authority by his name and photograph fixed thereon. The holding certificate is a legal certificate of the holder. According to Art 27(2), where the land is a holding of a husband and a wife in common, the holding certificate shall be prepared by the name of both spouses. If it is held communally, it shall be prepared by the name all communal holders. 14. Mortgage of rural land FDRE Rural Land Administration and Use Proclamation No. 456/2005 According to Art 8(4), an investor who has leased rural land may present his use right as collateral. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 As per Art 19(1-5), An investor who rented rural land in lease may secure as mortgage right to use his land or asset produced on it or both for effected period of the lease. Where the land use right is mortgaged, the asset developed on the land shall be considered as it is with held together. However, where only an asset produced on land is mortgage the land use right shall not be considered as mortgaged to gather with the same. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Art 15(15) states that an investor who has gotten the use right of rural land rural land through lease or renting from the government shall use the right of his assets on the land as collateral. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 According to Art 8(4) An investor who held rural land by lease may present his use right as collateral. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 As per Art 15(3) An investor who held rural land by lease may present his use right as collateral. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Art 21 stipulates that an investor who has leased rural land may present his use right as collateral. Any investor who has leased his rural land may secure as mortgage right to use his land or an asset produced on it or both for effective period of the lease. Where land use right is mortgaged, the asset developed on the land shall be considered as it is with held together. 15 the governmental and non governmental institutions right to acquire rural land FDRE Rural Land Administration and Use Proclamation No. 456/2005 Pursuant to Art 5(4(b), Subject to giving priority to peasant farmers/ semi pastoralist and pastoralists governmental and nongovernmental organization and social and economic institutions shall have the right to use rural land in line with their development objectives. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 Art 6(4) states that Governmental offices and organizations, nongovernmental organizations, mass organizations and religious institutions, carrying out their work in the region shall, where the work is for nonprofit making, have a right to acquire land they use on in a condition that it does not contravene the land holding of farmers. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Art 5(3) stipulates that Governmental and nongovernmental organizations, private investors and social organizations have the right to get rural land. The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 According to Art 5(15), Subject to giving priority to peasants, semi pastoralists and pastoralist, governmental and nongovernmental organizations, social and economic institutions shall have the right to use rural land. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 Art 7(5) provides a reference to be determine the issue of governmental and nongovernmental organizations land use right to be determined by the successive regulation of this law. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 According to Art 6 (4) (b), Governmental and nongovernmental organizations as well as social welfare institutions will have the right to use the rural land in accordance with their development plan. 16. Voluntary exchange of rural farm land FDRE Rural Land Administration and Use Proclamation No. 456/2005 As per Art.11(3),in order to make small farm plots convenient for development farmers are encourage to voluntarily exchange farm land. The Revised Amhara national Regional State Rural Land Administration and Use Proclamation No. 133/2006 As per Art.10 (1) of regulation number 51/2007, Any holder having acquired the right to use rural land may voluntarily exchange his plots of land situated in various voluntarily change his plots of land situated in various locatives in order to consolidate same and find the contiguous with one another. The Amended Orgomia Rural land Use and Administration Proclamation No. 130/2007 Art.8 states that the merging of farm plots shall be made based on the consensus and willingness of the holder. Holders may be exchange their land based on consent so as to consolidate their plot of land. (Emphasis added). The SNNP Rural Land Administration and Utilization Proclamation No. 110/2007 As per Art.11 (4), in order to consolidate and make small farm plots convenient for development, farmers are encouraged to voluntarily exchange farm land. The Revised Tigreay National Regional State Rural Land Administration and Utilization Proclamation No. 136/2007 As per Art.19 (1) (5), in convenient to agricultural development, farmers may be exchange their plot of land voluntarily. The land of the deceased without hire may be exchanged by giving priority to his child. Beneshangul Gumuz Regional State Rural Land Administration and Use Proclamation on No.85/2010 Art.28 (4) states that in order to make small farm plots convenient for development, farmers are encouraged to voluntarily exchange their holding by their full consent. The following are possible differences that can be raised based on the above tabular comparative analysis: The Amhara National Regional State rural land law gives the minors, specially orphans, the right to acquire land through their guardian or representative The Revised Amhara National Regional State rural land administration and use proclamation No. 133/2006, Article 6(2). This right may be acquired either directly from the government or from their families through donation or succession. In other regional states’ rural land laws and the federal RLAUP, however, minors have only use rights. FDRE rural land administration and use proclamation No. 456/2005, Article 5(2) The SNNP region state rural land use and administration proclamation No. 110/2007, Article 5(8). The Revised Tigray National Regional state land administration and use proclamation No. 136/2007, Article 5(1) (d) The Amended Ormia rural land use and administration proclamation No. 130/2007, Article (5) Beneshangul Gumuz Regional State rural land administration and use proclamation No. 85/2010 Article 5(7) In other words, they give only the right to use land which is acquired from their family through succession or donation but not directly from the government. From this, we can understand that both the federal RLAUP and the other regional rural land laws give minors a diminished right to acquire and use land than that of Amhara National Regional State rural land law. The Tigray National Regional State rural land law has a provision that deals about acquiring land to construct house for those who attend their majority and who returned from migration. The Tigray National Regional State rural land administration and use proclamation No. 136/2007 Article 11(1) (e), Article 25 On the contrary, no provision is dealing about this issue in other regional states rural land laws and in the federal RLAUP. This shows us that the Tigray National Regional State legislature has enacted a land law which extends the right to acquire land to migrants that is not provided in federal RLAUP and other regional state rural land laws. Selling of fixed assets like coffee , mango Avoca papaya, orange etc is prohibited in the Oromia amended rural land law. The Amended Oromia Regional State rural land administration and use proclamation No. 130/2007 Article 6(2) That means, the Oromia Regional State rural land law prohibits the land holders from selling their fixed assets attached to the land. On the contrary, both the federal RLAUP and the other regional states’ rural land laws have no restriction on selling of these fixed assets. Rather, they give the land holders the right to produce and transfer such fixed assets of their land. FDRE rural land administration and use proclamation No. 456/2005, Article 2(4) The SNNP Regional State rural land use and administration proclamation No. 110/2007 Article 2(b) The Revised Tigray National Regional State land administration and use proclamation No. 136/2007 Article 13(4) The Amended Oromia rural land land use and administration proclamation No. 130/ 2007 Article 6(1) Benishangul Gumuz Regional State rural land administration and use proclamation No. 85/2010 Article 2(4) In this regard, Art. 40(1) of the FDRE constitution entitles every Ethiopian citizen the right to transfer private property either by sale, bequest or by any other means. From this, we can understand that the Oromia amended rural land law limits the right of the land holders to transfer their fixed assets which is guaranteed in the constitution and in the other feredral and regional RLAUPs. The Amahara National Regional State rural land law allows the land holder to transfer his holding or use right through donation to any person who resides in the region. The Amhara National Regional State land administration and use proclamation No 133/2006 Article 17 On the other hand, in the federal and regional land laws, it is possible to transfer land holding or use right only to their family members. The SNNP Regional State land administration and use proclamation No. 110/2007, Art 8(6) Article 5(11) The Revised Tigray National Regional State land administration and use proclamation No. 136/2007 Article 5(2) The Amended Oromia rural and use and administration proclamation No. 130/2007, Article 5(5) Benshangule Gumuz Regional State rural land administration and use proclamation No. 85/2010 Article 18 In other words, the land holder cannot transfer his holding or use right through donation to other persons other than his family members. This shows that the Amhara National Regional State rural land law has provided more extended rights than the other rural land laws of Ethiopia. Furthermore, the Amhara National Regional State rural land law states that any land holder may transfer his holding or use right through will to any farmer engaged or likes to engage in agricultural works. The Revised Amhara National Regional State rural land administration proclamation No 133/2006, Art 16(1) It also allows one of the spouses to transfer his share to any person engaged or likes to engage in agricultural works through will unless it affects the other spouse. But, in the other Ethiopian rural land laws it is possible to transfer land holding or use right through will only to family members. Supra Article 8(5), Article 5(2), Article 5(5) Article and 17 respectively and FDRE rural land administration and use proclamation No. 456/2005, 456/2005 Art 8(5). The Tigray national regional state rural land law totally prohibits urban dwellers from succeeding rural land holding and use right. The Revised Tigray National Regional State rural land administration and use proclamation No. 136/2007 Article 5(2). In case of Amhara regional state rural land law, Persons who reside in town and engage in small income activities to support their lives are considered as farmers for the purpose of succession. The Revised Amhara National Regional State rural land administration and use proclamation No. 133/2006 Article 16(2) However, other Ethiopian rural land laws are silent on this issue. With regard to rent of rural land, the Oromia National Regional State rural land law sets a prerequisite for the rural land lease contract to be registered and approved by agriculture and rural development office. The amended Oromia Regional State land administration and use proclamation No. 130/2007 Article 10(8) Otherwise, it shall have no effect before the law. In this regard, the SNNP regional state rural land law follows the same pattern with Oromia national regional state land law. The SNNP Regional State land administration and use proclamation No. 110/2007article 8(2) On the other hand , the Amhara National Regional State rural land law sets only a written form as a prerequisite to make the lease contract effective before the law. This written form is required to lease contracts which are concluded for the term exceeding three years. In addition to this, the contract of lease should only be registered by the competent authority. It does not need ratification. The Revised Amhara National Regional State land administration and use proclamation No. 133/2006 Article 18(5) The Tigray National Regional State rural land law has followed the same approach with the Amhara Natiional Regional State rural land law about this issue. The Revised Tigray National Regional States rural land administration and use proclamation No. 136/2007, Article 10(1) But, the federal RLAUP requires the rural land lease agreement to be approved and registered by the competent authority. FDRE rural land administration and use proclamation No 456/2005, Article 8(2) Moreover, the Beneshangul Gumuz Regional rural land law requires the agreement to be submitted and registered by competent authority. The Beneshangul Gumz regional state rural land administration and use proclamation No. 85/2010 Article 19(8). The Oromia and the Tigray National Regional State rural land laws allow the holder of the land to lease not exceeding half of his /her land holding and use right. The Amended Oromia land use and administration proclamation No 130/2007, Article 10(1) and the Revised Tigray National Regional State rural land administration and utilization proclamation No. 136/2007, Article 6(1) But, the other Ethiopian land laws do not set such kind of restriction. In the Amhara regional state rural land law where the land holders residing in one Keble and not less than 80% of them request the authority in writing for land redistribution, the redistribution may be carried out in accordance with a directive to be issued to implement the decision on the land where question was submitted. Its application shall only be on holders who passed the decision. The Revised Amhara National Regional State rural land administration and use proclamation No. 133/2006, Article 8(2) To redistribute either irrigable or non irrigable lands, consent of 80% of the land holders residing in the kebele is required. Unlike the Amhara National Regional State rural land law, other regional states’ rural land laws and the federal land law does not need the consent of holders to redistribute the land. All the regional land laws except the Amhara National Regional state land law has allowed redistribution only relating to irrigable land. The Amended Oromia land use and administration proclamation No. 130/2007 Article 14(1), The SNNP Regional State rural land administration and utilization proclamation No. 110/2007, Article 9(2), The Revised Tigray National Regional State rural land administration and utilization proclamation No. 136/2007, Article 23/1/. Beneshangul Gumuz Regional State rural land administration and use proclamation No. 85/2010 On the other hand, the federal rural land law has allowed the distribution of both irrigable and non irrigable lands where necessary. FDRE rural land administration and use proclamation No 456/2005, Article 9 (2,3) The SNNP National Regional State rural land law has allowed civil servant woman to hold rural land. The SNNP Regional State rural land administration and utilization proclamation No 110/2007 Article 5(7) While in other Ethiopian land laws such as Amhara and Beneshangul, civil servant cannot hold rural land in their own name. The Revised Amhara National Regional State rural land administration and use proclamation No. 136/2006 Article 12(1) (a) Beneshangul Gunuz regional state rural land administration and use proclamation No 85/2010 Article 6(9) The federal ,Oromia and Tigray rural land laws are silent about this issue. In the Amhara National Regional State rural land law, there is a possibility of mortgaging ordinary land holding right. The Amhara National Regional State rural land administration and use system council of regional government regulation No. 51/2007, Article 13 of the last sentence While in case of other Ethiopian land laws there is no a possibility of transferring land using right through mortgage by ordinary land holder. They allowed only the rural land holders who obtained their land holding right in lease system to transfer their using right through mortgage. Regional RLAUPs do not follow similar approach in the size of land to be leased out and the duration of the lease period. For instance, in Tigray, the peasant is allowed to rent out up to 50 percent of the size of his land for 20 years if the lessee uses modern technology, and 3 years if s/he uses traditional means of production The Revised Tigray National Regional States rural land administration and use proclamation No. 136/2007, Article 6 (1), (3) . In Amhara Region, renting land is allowed for a maximum of 25 years, although the size is not mentioned. There are practices in the region where farmers rented out the whole of their holdings to small scale investors. The argument for deviating from the Federal one (which says in a manner that shall not displace them) is one that depends on recognizing the rationality of the farmers; that farmers know better for themselves. The Oromia RLAUP follows the Tigray approach in terms of size and duration. The SNNPRS RLAUP follows a somewhat different approach. According to Article 8(1) of Proclamation No. 110/2007 of SNNPRS, the duration of land rented to a peasant by a peasant is 5 years, by a peasant to investor is 10 years, and by a peasant to those who cultivate perennial crops is up to 25 years. Land law legislation systems in Ethiopia In fact, many countries apply different systems so as to regulate land issues. For instance, some countries Such as US, India, Nigeria, Germany follow a uniform land legislation system for the sake of creating equal utilization of land among their citizens. In these countries, the constituent states are not allowed to enact land laws which are inconsistent with the federal land laws. In other words, the constituent states have a limited power in the enactment of land laws. Because if the federal government gives the constituent states a wide discretion in enacting land laws, there wouldn’t be equal utilization of land among the citizens of such states. So, this would be against the overall land policy of the countries (i.e. creating equal utilization of land among their citizens). On the other hand, some other countries have adopted a dual land legislation system for the sake of accommodating the special conditions or interests which exists with the constituent states. In these countries, the federal government gives the constituent states a wide discretion in enacting land laws. Accordingly, the constituent states can enact their own land laws without bothering as to the existence of federal land laws. Here, the primary purpose of the constituent states is accommodating special conditions which exist within their territory through enacting their own land laws. They can even enact their own land laws which are inconsistent with the federal land laws. From the above two approaches, the researchers can conclude that a uniform land law legislation system is more preferable than that of the dual land legislation system. Because, in case of a uniform land law legislation, every citizen can get equal treatment with regard to land so long as the very purpose of such system is creating equal utilization of land among the citizens. But, in case of a dual land law legislation system, there is unequal treatment among the citizens of the same country because in such system the constituent states have a discretionary power in the enactment of their own land laws. By using their discretionary power the constituent states may enact arbitrary land laws which are inconsistent with the federal land laws and this leads to insecurity in the protection of property rights. In short, since a land is a sensitive issue, it should be regulated strictly. All persons living within the same country should be treated equally. Based on this assumption, a uniform land legislation system is better than that of the dual land legislation system. When we come to Ethiopian approach, it has adopted a uniform land legislation system so as to create equal utilization of land among citizens. Accordingly, the FDRE constitution has empowered the federal government the power to enact laws for the utilization and conservation of land and other natural resources FDRE constitution Art.51(5). In this regard, the FDRE constitution empowers the HPR a power of legislation in all matters which are assigned to federal jurisdiction Ibid 50(9). Therefore, the HPR is empowered to enact specific laws on the utilization of land and other natural resources. In other words, states do not have power to do so. They are only empowered to administer land and other natural resources in accordance with federal laws. The federal government may, when necessary, delegate to the state powers and functions granted to it by Art. 51 FDRE constitution Art. 50(9) . From this stipulation, we can understand that the federal government can delegate its legislative powers under Art 51 to the regional states including its power to enact laws in relation to land and natural resources Ibid. Based on this authority, the regional state council has been delegated by the federal government so as to enact land administration and land use laws Federal Rural Land Administration and Use Proclamation No. 456/2005, Art. 17(1). This delegated legislative power is limited to enacting detailed provisions which are necessary to implement the federal land administration and land use proclamation. As provided under Art. 50(9) of the constitution, the delegation of power is “when necessary”. This means the HPR can limit the delegated power and decide the extent of delegation. Based on this power the HPR has limited the power of regional states to enact land laws when necessary to implement the federal land law Ibid. In line with this constitutional stipulation, the HPR has applied the phrase“…necessary to implement….”under Art 17(1) of the Federal Rural Land Administration and Use Proclamation No. 456/200 to limit scope of the regional states council legislative power on land issues. From this, we can understand that the delegated power which is given to the regional states has the status of issuing regulation that implements the federal proclamation Ibid. Therefore, this shows that the laws that the regional state enact should be consistent with the constitution and other federal laws. The regional legislature cannot deviate from the stipulation provided by the federal legislature. Despite this, the state council of Tigray, Amhara, Oromia, SNNPR and Benishangul Gumuz have currently enacted their own rural land administration and land use proclamations incorporating some provisions which are inconsistent with the federal rural land administration and land use proclamation as motioned earlier. The researchers can conclude that the regional rural land laws are the main sources for the creation of disparities on the protection of land rights among Ethiopian citizens. So, the regional states are acting against the principle of equality which is clearly stipulated under Art.25 and Art 89(2) of the FDRE constitution. In particular, Art. 89(2) say that’’…. all Ethiopians get equal opportunity to improve their economic conditions and to promote equitable distribution of wealth among them’’. The intention of these provisions is to provide equal utilization of resource among all Ethiopians. In this regard the HPR has enacted rural land laws applicable across Ethiopia to provide equal utilization of land among farmers. But the HPR has given the power to enact details on land laws to regional state to include their own peculiarities without deviating from federal rural land laws. In short, even if the federal rural land administration and land use proclamation has adopted a uniform land legislation approach (which is an appropriate approach stipulated under art. 17), the regional rural land laws are not in line with such approach. The existence of inconsistency among the Ethiopian rural land laws also leads to the existence of different judicial decisions on the same issues. Summary In this chapter, the researchers have tried to show the comparative analysis of the Ethiopian land laws. the analysis is made on matters such as acquisition of land, transfer of land through donation and will, rent of rural land, improvement or investment on rural land, distribution of rural land, condition of depriving land holding and use right, dispute resolution mechanism, criminal liability, issues of fixed assets on rural land, attachment and injunction of rural land by court order, land holding certificate, mortgage of rural land, the right of governmental and non-governmental organizations to acquire rural land and voluntary exchange of rural between the holders. From these analyses, the researchers have seen wider inconsistencies between Ethiopian land laws. And also the researchers have mentioned some possible differences based on the analysis. Many countries apply different systems so as to regulate land issues. Some countries follow a uniform land legislation system for the sake of creating equal utilization of land among their citizens. On the other hand, some other countries have adopted a dual land legislation system for the sake of accommodating the special conditions or interests which exists with the constituent states. The researchers can conclude that a uniform land law legislation system is more preferable than that of the dual land legislation system. Because, in case of a uniform land law legislation, every citizen can get equal treatment with regard to land so long as the very purpose of such system is creating equal utilization of land among the citizens CHAPTER FIVE COCLUSSION The 1995 Constitution is a departure from the past in many regards. One such regard is the introduction of a federal form of state structure. It envisages two layers of government: i.e federal and regional. There are about nine regional and two city governments. Government powers and functions are divided between the regional states on the one hand and the federal government on the other. The federal government has an exhaustively enumerated set of functions and powers. These are listed in Article 51 of the Constitution. These include: establishment and implementation of national standards and basic policy criteria for public health, education, science and technology, as well as for the protection and preservation of cultural and historical legacies; enactment of laws for the utilization and conservation of land and other natural resources, historical sites, and objects; formulation and implementation of foreign policy; negotiation and ratification of international agreements; determination and administration of the utilization of the waters or rivers and lakes linking two or more states or crossing the boundaries of national boundaries; and regulation of inter-state and foreign commerce. Although it appears from Article 51 that the powers and functions of the federal government are exhaustively listed, there is a mechanism for the transfer of some powers from the states to the federal government when the House of Federation decides so. In addition, some powers of the federal government can be delegated to the states. The state governments have residual power; anything that is not given to the federal government alone or the federal and regional governments concurrently is left to regional governments. As it enumerated in the above, the federal government has the power to legislate laws with regard to land administration and utilization. Note that, this power is given to the federal government exclusively; the regional governments have no power to enact laws on this issue. Based on this power the federal government has been enacted proclamation number 456/2005 and it has delegate the regional states to enact laws to administer the land within their territory in line with this proclamation. That means, the regional governments have not power to enact laws, while their power only limited to execute the federal land laws. This refers that their legislations with regard to land have the status of regulation. Having this in mind more than six regional states has been enacted their own rural land laws based on the power which is delegated to them from the federal government as per article 17 of proclamation number 456/2005. As we tied to show in this study by using the five regional states land laws as an inputs of our study, the legislations of the regional states has not been goes in line with the power delegated to them by this proclamation. In addition to this they violets the supremacy clause of the FDRE constitution which is enumerated under article 9(1) by legislating laws which are potentially inconsistent with its stipulation under article 51 and 52. as mentioned in the above the regional states have only the power to administer land based on the federal law, but by using the federal government delegation as a cover they legislated laws on rural land which are potentially contradict with the federal constitution and proclamation by considering themselves as the first instance legislature . this acts of the regional government is completely contravene the intention of the drafters of the constitution which is to safe guard equal utilization of land holding and using rights between the citizens of Ethiopia, so as to achieve the aim of equality clause under article 25 of the FDRE constitution. And as per article 89(2) of this constitution the government has been set an economic objective to ensure that all Ethiopians get equal opportunity to promote equitable distribution of wealth among them. in addition to this, since land is the main source of income to almost all Ethiopians the government should regulate to this effect . Due to this failure of the regional states to exercise their power based on the constitutional principles so much more inconsistencies has been practiced in the current Ethiopian rural land governing laws . Because of this inconsistency, the principle of equality is being affected. For instance, the Oromia regional state rural land law prohibit the land holder not to sale their fixed assets attached to the land while both the federal and other regional rural land proclamations which are mentioned in this study have not set down such rigid form of restriction; when we look at the Tigray regional state rural land law it entitles to the migrants and the those who attained the legal majority age to get the land to construct house if they did not have access to land. Whereas, the federal as well as the other regional states rural land laws does not have a room to this effect. This instance can be serving as the manifestation of unequal treatment of citizens in Ethiopia due to the inconsistent regional states rural land legislations. To sum up, as the researchers have assessed in this study in a clear manner, the regional rural land laws are inconsistent with the constitutional principles in the FDRE constitution, federal rural land proclamation and between themselves. And this inconsistency highly affects the rights of Ethiopians specially, rural dwellers by violating the right to be treated equally. so, the researchers can conclude that a uniform land law legislation system is more preferable than that of the dual land legislation system. Because, in case of a uniform land law legislation, every citizen can get equal treatment with regard to land so long as the very purpose of such system is creating equal utilization of land among the citizens. RECOMMENDATION Based on our conclusion, the following specific recommendations are forwarded; The federal government should take appropriate measures on those states which have enacted rural land laws in contradiction with the federal rural land administration and land use proclamation No. 456/2005 so as to create uniform land legislation system in the state and to make all citizens of Ethiopia equally beneficiary of land use rights without discrimination. The regions that have enacted land laws should also amend their rural land laws so as to make their laws compatible (consistent) with the federal proclamation and they should only enact laws so as to implement such proclamation The regional states, which haven’t enacted their own rural land laws yet, should enact their own rural land laws within the limit of their power given to them by the FDRE constitution and within the scope of their power delegated to them by the Federal Democratic Republic of Ethiopia Rural Land Administration and Land Use Proclamation. Even the CCI tries to deal the issue of inconsistency of regional states land law with the FDRE constitution on its decision in the case of Biyadiglign Meles et al v. Amhara National Regional State, Decision of the CCI on an application made on Miazia 30 1989 E.C. (8 May 1997, unpublished it’s is not come up with best solution for the problem of Ethiopian land law regime and regional states has continued to enact unconstitutional land laws. So, the council of constitutional inquiry should be given due consideration for this inconsistency and refer the case to HoF for constitutional interpretation to come up with best solution. BIBLOGRAPHY BOOKS ANDARGACHEW-TIRUNEH 1993. The Ethiopian Revolution, 1974-1987: A Transformation From an Aristocratic to aTotalitarian Autocracy, New York, Cambridge University Press Ayele Bogale, Hierarchy of Laws within the Present Federal Legal Structure of Ethiopia, Addis Ababa University, Faculty of Law, (Unpublished), 1999. Calpham, C. 1988. Transformation and Continuity in Revolutionary Ethiopia, Cambridge, Cambridge University Press. Daniel W. Ambaye Author. 2004 E.C. Sefafi ye Gibrina Investment le Ethiopia min Yifeyidal? (What is the Benefit of Large Scale Agricultural Investment for Ethiopia DANIEL-WELDEGEBRIEL-AMBAYE 2009a. Land Valuation for Expropriation in Ethiopia: Valuation Methods and Adequacy of Compensation 7th FIG Regional Conference. Hanoi, Vietnam, 19-22 October 2009 FIG DESSALEGN-RAHMATO 2009 a-a. Land and Agrarian Unrest in Wollo: From the Imperial Regime to the Derg Ethiopian Central Statistical Agency (CSA), www.csa.gov.et Fasil Nahum, The Constitution of the Nation of Nations, Red Sea Press Inc., 1997. Gebre-Wold-Ingida, Ethiopias traditional land tenure and taxation,1962 Hussein Jimma, The Politics of Land Tenure Ethiopian History: Experience from South, (Center for Environment and Agriculture studies, Trondheim, Norway, 2004.) Kreczunowicz, G., “Hierarchy of Laws in Ethiopia”, Journal of Ethiopian Law, Vol. 1, No. 2, 1964 PANKHURST, R. 1966. State and Land in Ethiopian History, Addis Ababa, The Institute of Ethiopian Studies and the Faculty of Law, Haile Sellasie I University. Richard Pankhurst, State and Land in Ethiopian History, (Oxford University press, 1966) SHIFERAW-BEKELE 1995. The Evolution of Land Tenure in the Imperial Era. In: SHIFERAW, B. (ed.) An Economic History of Ethiopia: The Imperial Era 1941-1974. Dakar: CODESRIA. SAMUEL-GEBRESELASSIE 2006. Land, Land Policy and Smallholder Agriculture in Ethiopia: Options and Scenarios. Future Agricultures Consortium meeting. the Institute of Development Studies. WEGREN, S. K. (ed.)1998. Land Reform in the Former Soviet Union and Eastern Europe, London, Routledge LAWS The 1955 Revised Constitution of Ethiopia, Negarit Gazata, 15th Year, Proclamation No. 149 of 1955. The Federal Democratic Republic of Ethiopia Constitution, 1995 The Peoples Democratic Republic of Ethiopia Constitution, 1987. The Amhara Regional State Constitution. The Tigry Regional State Constitution The Gambella Regional State Constitution. Federal rural land administration and land u 456/2005 The revised Amhara national regional state rural land use and administration proclamation no. 130/2007 The amended oromia rural land use and administration proclamation no. 130/07 The amhara national regional state rural land administration and use system implementation, council of regional government regulation no. 51/2007 Benishangul Gumuz regional state rural land administration and use proclamation no. 85/2010 The revised Tigray national regional state rural land administration and use proclamation no. 136/2007 THE CIVIL CODE OF ETHIOPIA. Negarit Gazeta: Gazette Extraordinary. Proclamation No. 165/1960. Constitution of the Federal Demecratic Republic of Ethiopia, Proclamation No. 1/1995. Negarit Gazeta. Year 1 No.1. The Constitution of the People's Democratic Republic of Ethiopia, Proclamation 1 of 1987. Negarit Gazetta: Year 47, No. 1. Federal Courts Proclamation No. 25/1996. Negarit Gazetta. Year 2, No. 13. Federal Courts Proclamation Reamendment Proclmation No 454/2005. Negarit Gazetta. Year 11, No. 42. Federal Democratic Republic of Ethiopia Rural Land Administration and Land Use Proclamation, Proclamation No. 456/2005. Negarit Gazeta. Year 11, No. 44. Fitha Negest (Amharic and Geez Version). Addis Ababa: Tesfa-Gebre-Sellassie Printing Press. Government Ownership of Urban Land and Extra Houses, Proclamation No. 47/1975. Negarit Gazeta, . : Year 34, No. 41. Land Tax Proclamation, Proclamation No. 70/1944. Negarit Gazeta. Year 4, No.2. The Revised Constitution of the Empire of Ethiopia. Negarit Gazetta, 1955. 77