The post-1991 rural land tenure system in Ethiopia: Scrutinizing the legislative framework in view of land tenure security of peasants and pastoralists

Abstract

In this thesis I examine the extent of legal protection afforded peasants’ and pastoralists’ secure of land tenure in post-1991 Ethiopia. To this end, I analyse constitutions, laws, policy documents, judicial decisions, constitutional interpretations as well as the literature, critically. The prevailing premise in academic discourse is that land tenure security is realized when the landholder is granted an adequate number of rights in land; with longer duration; deprivation of land rights for greater societal interest occurs only in terms of due process of law and upon payment of adequate compensation; enforcement of land rights through an independent judiciary is affordable, and there is participatory and low-cost registration and certification of rights. I argue instead that the components of tenure security are not formulated comprehensively and clearly nor defined contextualised to different landholding systems. This is because of the prevalence of\ variations in understanding the concept itself; the assumption that private land ownership best guarantees land tenure security; a view of security of tenure as one set of rights in the bundle of rights property metaphor; and a piecemeal approach to studying each construct of tenure security. I also argue that the notion of land tenure security is broader than a single set of rights and should be studied in a holistic approach separated from land ownership discourse. The extent of legal protection should be formulated taking into account the nature of landholding systems, extent of dependency on land rights and the historical land question, as land rights are central to political movements in Ethiopia. As perpetuation of land tenure insecurity prevails in the making of law, provision of constitutional protections founded on the aforementioned factors and adoption of a constitutional interpretation approach that seeks to enhance land tenure security are also essential. Academic and policy discourses on land tenure security in post-1991 Ethiopia’s predominately centre on the land ownership dichotomy. Some claim the “people’s and state ownership of land” adopted in the constitution of the country aims to ensure land tenure security of peasants and pastoralists. Others argue that it is a source of land tenure insecurity as it empowers government to exercise political control over landholders as in past political regimes. Both sides fail to take the nature of constitutional protections afforded peasants’ and pastoralists’ land rights seriously, unnecessarily focusing on the ownership deliberation. I argue that a regionalized understanding of the nature of ownership adopted in state constitutions forms an ethnic base, and has implications for displacement of peasants and pastoralists from other states. Absence of clear constitutional demarcation of federal and state power over land contributes to power competition between the two levels of government and contradictory legal pluralism, which makes landholders uncertainty of their land rights. Furthermore, I argue that subordinate legislation do not translate constitutional protections and do not define legal constructs sufficiently to ensure land tenure security for peasants and pastoralists. Besides, judicial practice and constitutional interpretation tend to abridge rather than promote their security of land tenure.