Article

Access to Rural Journal of Land and Rural Studies

7(1) 1–22, 2019
Land Rights in the  2019 Centre for Rural
Studies, LBSNAA

Post-1991 Ethiopia: Reprints and permissions:

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DOI: 10.1177/2321024918808111
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Policy Shift

Brightman Gebremichael Ganta1

Abstract
In an agrarian society, like Ethiopia, where lion share of the population relies on
land rights for livelihoods and welfare, access to land is fundamental to be capable
of existence as a free and dignified human being. Otherwise, it can also be used
a political asset for political control and to impoverish the societal well-being.
With the opinion of historical pitfalls and injustices and the tremendous holistic
contribution of access to rural land rights in Ethiopia, the constitutional makers of
the post-1991 Ethiopia have incorporated the egalitarian concept of ‘free access
to land for all needy nationals’. However, the content analysis of the legislation
framed aftermath of the 1995 FDRE Constitution reveals the introduction of a
policy shift towards land regionalism and market-based land access, because, it
has attached regional residency requirement, prioritised to investors and model
peasants and introduced land use payment in contradiction to the constitutional
rule. Hence, this author argues for the restoration of the Constitutional principle
of access to land rights.

Keywords
Access to rural land rights, FDRE Constitution, policy shift, egalitarianism,
market-based

1
LLD Candidate, Faculty of Law, University of Pretoria, Pretoria, South Africa.

Corresponding author:
Brightman Gebremichael Ganta, LLD Candidate, Faculty of Law, University of Pretoria, Pretoria 0084,
South Africa.
E-mail: [email protected]
2 Journal of Land and Rural Studies 7(1)

Introduction
For agrarian economy and developing countries like Ethiopia, access to rural land
rights plays fundamental roles in two perspectives. From the perspective of
agrarian society, it has far-reaching implication on their economic, social, cultural
and political well-being and life. It secures their means of livelihood and enables
them to be uplifted from poverty (Cotula, Toulmin & Quan, 2006; Deininger,
2003, p. xx) Moreover, the prevalence of secured access to land is a means to
define the social status of a person in the community where he/she lives. The
historical experience of Ethiopia entails that it is a source of pride and self-esteem
and social acceptance (Jemma, 2004, p. 3). Furthermore, it enables the rural
communities to manifest and express their cultural values as it defines their way
of life (Committee on Economic, Social and Cultural Rights 2009, para 15(c)).
Finally, by ensuring their economic freedom, it tends to capacitate them to make
a meaningful political participation and their voice to be heard loudly on the local
decision-making process (Deininger, 2003, p. xxi).
As said by the government, the regulation of access to land rights produces
both negative and positive outcomes over the society. Positively, it enables the
state to collect income necessary for the running of the state machinery and rural
infrastructural development (FAO, 2002; Lindholm, 1965; Skinner, 1991). This
happens either in the form of land taxation or transfer of land to effective and
efficient utilisation, for instance transferring to an investor. Ironically, the state
may use it as a political weapon to control the society and to get legitimacy (Ada1,
2002, p. 27; Crewett & Korf, 2008, p. 207; Woldemariam, 1999). It can suppress
and control the part of the society that rebels and challenges against it by denying
access to land or fruits of their labour in the form of tax, tributes or contribution
for development programmes. In contrast, to get political loyalty and legitimacy
from the society, state can secure them with access to land as an instrument.
In the political–economy history of modern Ethiopia, access to rural land
rights has been playing a central role in the above two perspectives. In the past
two regimes—the imperial feudalism and in the socialist military Derg—the quest
for access to land has been the central reason for both regimes to be overthrown
(Tibebu, 1995). Typically, the ‘Land to Tiller’ slogan movement that brought an
end to the last emperor of the imperial–feudalist regime—Emperor Haile Selassie
I in 1974—implies the extent to which the regime had used access to land rights
as an instrument for political control and exploitation (Tareke, 1991, pp. 37–42).
The socialist military Derg regime that took a fundamental land tenure reform
continued with the use of access to land rights as a means of political control
and suppression by substituting the feudal landlordism with state landlordism
(Rahmato, 1993, p. 40). It has failed where it had to succeed and to achieve the
cause that brought it to power. Consequently, coupled with other reasons, the
same cause that brought it to power had led it to be overthrown by the currently
ruling party in 1991.
The post-1991 political regime, that has intended to form a constitutional
democratic government by way of redressing the historical suppression and
Ganta 3

injustices, and guaranteeing the non-happening of thereof, had gone through

transitional period up until constitutional protections were formulated. It was
only in 1995 the Federal Democratic Republic of Ethiopian (FDRE) Constitution
was promulgated (FDRE Constitution, 1995). One of the breakthroughs that
constitution brought is a curtailment of the state power to use the land rights as
a means of political control. It was one of the hotly debated in the constitutional
making and still controversial constitutional rule. Focusing on the nature of land
ownership adopted—‘state and people’s ownership’ (FDRE Constitution, 1995,
Article 40(3))—two antagonistic groups have been arguing on the relationship the
land ownership brings in between the state and society among others.
The government in support of the status quo argues from the perspective of
‘egalitarian equity and social security paradigms’ to ensure the access to land
rights for all the needy and to protect the same from the market force (Crewett
& Korf, 2008, pp. 204–205; Rahmato, 2004, p. 10). In contrast, opponents
and critics of the prevailing land ownership, besides the economic and tenure
security justifications, express their concern and fear that it paves a way for the
state to use access to land to exercise political control over the society (Crewett
& Korf, 2008, p. 206). However, in this article, the writer argues that the claim
of the proponent has not regarded the constitutional protection provided to the
land rights of the society and limitations imposed on the state power in that
respect. The government, on the other hand, has disregarded the constitutional
foundation and principles, particularly in relation to regulating access to land in
its policy and legislation making. Therefore, the central theme of this piece of
writing is to explore on the policy shifts made regarding the access to land rights
and their constitutionality.
The article encompasses five sections following this introduction. Second
section explores the significance of access to rural land rights in the agrarian
developing economy. It, particularly, discusses taking the case of Ethiopian
state and peasants and pastoralists. Third section analyses the historical context
of access to land rights in the past two political regimes that the country went
through as a modern state. Fourth section, on the other hand, critically discusses
the constitutional rule on access to rural land rights in the post-1991 Ethiopia.
Fundamentally, the foundation that guides access to rural land, the requirements
and prioritization that have incorporated in the FDRE Constitutional rule are
synthesised, whereas, the penultimate section is devoted to critically examine
how the constitutional foundation and principles about access to land rights are
shifted/changed in the legislative measures of the state. Final section offers a
brief conclusion.

The Significance of Access to Rural Land Rights

In agrarian economy and society like Ethiopia where 83 per cent of the population
and 39 per cent the GDP depends on land (National Planning Commission, 2016;
Population Census Commission of Ethiopia, 2008, p. 7), and land resource is
4 Journal of Land and Rural Studies 7(1)

regarded and used a means of attracting foreign investments (Rahmato, 2011, pp.
8–9), accesses to rural land rights play multi-faceted role for the overall well-
being of the society and for the state’s political legitimacy and suppression of the
society. Its multi-dimensional role for both the agrarian society and the state well
defines even the relation between the state and the society, because its roles
towards the society depend upon the extent to which the state ensured and
observed the society’s access to land. Otherwise, the state’s employment of access
to rural land rights for its own benefit and interest of political legitimacy and
suppression of society results in all in all impoverishment of the society.
From the viewpoint of the society, access to rural land rights defines their
economic, social, cultural and political position. The economic well-being and
eradication of poverty for agrarian community depend upon having secured
access to land rights (Deininger, 2003, p. xix; Meinzen-Dick, 2009). Because
for those parts of society, land rights are livelihoods from which they derive the
necessary food, income and shelter to sustain their decent living. Moreover, it is a
means of accruing of capital and bequeathing it to the coming generation (EEA/
EEPRI, 2002, p. 3). It is also fundamental for the realisation of some economic
human rights. For instance, for such society, the realisation of the right to food
(De Schutter, 2014, p. 3; Morlachetti, 2016, p.13), the right to housing (Sachar,
1995, paras. 54, 55) and the right to work and subsistence (ICESCR, 1966, Article
6; ICCPR, 1966, Article 1(2)) depends on the secured access land rights. That
is why they have demanded States to ‘protect the assets that are important for
people’s livelihoods’ – access to land in our case, and to conduct policy and legal
reforms ‘consistent with their human rights obligations and in accordance with
the rule of law’ (FAO, 2005, Giudelines 8.1, 8.10).
In an agrarian society, a person’s social status and position in the community
depend on his/her access to land, because having secure access to rural land
rights is a source of pride and self-esteem, and even it is sometimes regarded as
a defining element of humanness. That is why, though somewhat extreme, the
Amharic proverb says, ‘to be landless is to be sub-human’ (Dunning, 1971, p.
271). Moreover, it is also officially recognised in the legal document that how a
person’s social status is affected by his/her access to rural land rights. For instance,
in the Derg regime’s Rural Land Law it is stated that

A person’s right, honour, status and standard of living is determined by his relation to
the land; …it is essential to fundamentally alter the existing agrarian relations so that
the Ethiopian peasant masses...may be liberated from age-old feudal oppression,
injustice, poverty, and disease, and in order to lay the basis upon which all Ethiopians
may henceforth live in equality, freedom, and fraternity… (Proclamation No. 31, 1975,
preamble)

Additionally, from the angle of cultural human rights access to rural land
also determines the satisfaction of the right to culture of the agrarian society.
The right to culture, among others, guarantees the freedom to ‘follow a way
of life associated with the use of cultural goods and resources such as land…’
Ganta 5

(Committee on Economic, Social and Cultural Rights, 2009, para 15(b)). For that
society, their way of life as part of their cultural manifestation is dependent on
their access to land rights. Denial of their access to rural land rights and exposing
them to the illegal or unjust exploitation of their lands, in effect, is a violation of
and undermines their right to culture.
From the perspective of political empowerment too, secured access to rural land
rights plays a key role, because it empowers the agrarian society, giving them the
power to speak loudly and creating a foundation for democratic and participatory
local government (Deininger, 2003, p. xxi). Amartya Sen established this claim
stating that the economic freedom, in our context the access to rural land rights,
is an instrument to endeavour economic growth for agrarian society as a means
of political freedom which secures political empowerment and participation (Sen,
1999). Accordingly, the assurance of secured access to rural land rights for agrarian
society is a way to realise their economic freedom, as for them land is a means
of living. Once a livelihood is secured, then the society tends to demand political
freedom that secures their empowerment and participation in the decision-making
on matters affecting their interest.
However, the attainment of the abovementioned importance of secured access
to rural land rights depends on the legal protection provided for society’s access
to land and curtailing the state’s use of it for its own political goal. Otherwise, the
state may use access to land rights negatively as a means of political control and
oppression or positively as a source of revenue and instrument for investment
attraction to boost the development of the country. As will be discussed in
detail in the subsequent section, in the imperial–feudalist regime of Ethiopia,
to secure political legitimacy and loyalty, state had provided access to land to
the Ethiopian Orthodox Church and individuals loyal to the rulers (Pausewang,
1983). The church at that time was considered as a source of legitimacy for the
power of the crown and a major ally to the imperial power (Weldegebriel, 2012,
p. 2). To get and sustain its political alliance and support, the state rewarded
access to land to the church. Individuals, on the other hand, were granted with
access to land for the service they provided for the crown and the political
loyalty they showed towards it (Rahmato, 1984). However, the same trend has
not continued since the socialist military Derg regime. The Derg regime rather
employed membership to Peasant Associations (PAs) to access rural land so that
effective state control is implemented through such associations (Teklu, 2005,
p. 5), whereas, in the post-1991 Ethiopia, it is revealed that the ruling party is
using granting of access to land for landless needy people to get a vote and to be
elected (Rahmato, 2004, p.16).
As a means of suppression and oppression too, the state can use access to land
to maintain its political power and control over the society. That is the assumption
that the denial of the economic freedom of the agrarian society weakens their
resistance and rebel against the state. This tactic of the state has been used
throughout the different political regimes of the country. During the imperial–
feudalist regime, two different ways were employed under this tactical political
6 Journal of Land and Rural Studies 7(1)

control of the society. One is a total denial of the access to land making the local
society landless. This strategy was employed in the southern part of the country
after Menelik’s forceful expansion to control the area (Crummey, 2000). The
second mechanism was a denial of the fruits of the labour of the society. Though
the society was entitled to access rural land rights, they were denied the products
of their labour. The lion share of their products was taken away by the state in the
form of tax, tributes and tithe (Zewde, 1991, pp. 13–14). In these two ways, the
then regime had used access to rural land as a mechanism of political suppression
of the society.
The military socialist Derg regime, that came to power in the political struggle
against the political suppression of the imperial–feudalist regime, had also in
paradox to the cause that brought it to power used access to rural land as a political
weapon to suppress political oppositions. Like the previous regime, it denied the
agrarian society from being the owner and beneficiary of the fruits of its labour.
Through the means of grain acquisition, price fixing and demanding contributions
for different social and political tasks, it had weakened the economic freedom
of the society for the aim of political relinquishing (Pausewang, 1983, p. 26).
Besides, the PAs’ power to deny and deprive one’s access to land for the sake of
redistribution also paved the way for the state to suppress the agrarian society
(Proclamation No. 31/1975, Articles 23 and 26).
The post-1991 state of Ethiopia that had come into power in military struggle
again challenging the act of the Derg regime for using access to land as a political
weapon for societal control, also identified while manipulating the rural access
to land for election. It used in its electoral campaign the promise of access to
rural land for landless and at the same time threatening deprivation of the same
to those who go for electing oppositions (Rahmato, 2004, p.16). However, this
was against the constitutional protection and rights of ‘free access to rural and
for all needy’ (FDRE Constitution, 1995, Article 40(4) and (5)) as will be seen in
‘Constitutional Foundation and Principles of Access to Rural Land Rights in the
Post-1991’section.
Unlike the two previous regimes, the post-1991 political regime that
fundamentally adopted the free market principle of the economy had immensely
engaged in the attraction of investments. One of the attraction elements it
had involved in was making the land accessible to investors assuming it as a
development opportunity and generating revenue, creating job opportunity,
ensuring food security and resulting in the transfer of technology (Stebek, 2011,
pp. 181–182). As a principle, it is true that state can use access to land rights as
a means of generating revenue for itself and enhancing the development of the
country. Nevertheless, it must be made in observance of the Constitution that
enacted to address the historical injustice in relation to access to rural land rights.
Therefore, whether the act of the government in relation to the provision of access
to rural land to investments is in harmony with the constitutional foundation
and principles will be addressed in the following two sections: ‘Constitutional
Foundation and Principles of Access to Rural Land Rights in the Post-1991’ and
‘Access to Rural Land Rights in Rural Land Laws’.
Ganta 7

The Historical Context: The Imperial–Feudalist and the

Military Socialist Derg Political Regimes
Assessing the historical contour of access to rural land rights matters in analysing
the current situation, because mostly in the country, like Ethiopia, that transforms
from dictatorship and oppressive regime to constitutional democratic state, the
Constitutional rules and norms are basically meant to address the historical
injustices and suppressions (FDRE Constitution, 1995, Preamble). Accordingly,
one of the landmarks in the post-1991 constitutional making is the issue of rural
land rights. Specifically, the issue of access to rural land rights is regulated in the
constitution with the view to address the historical injustice and to confine the
state from using land as apolitically strategic asset as it used to be in the past
regimes. However, to understand what the post-1991 constitution tried to address,
it is necessary to know what has happened in the past regimes.
During the pre-1974 Imperial-Feudalist regime of Ethiopia, rural land was
entirely owned by the king as a fruit of military conquest and the captured lands
were distributed to favourites and supporters of the king (Tareke, 1991, pp.
55–85; Tibebu, 1995, pp. 71–84). However, the manner of access to land for
ordinary agrarian society varies from area to area. The fundamental difference
is examined in the then North and South. In the North, agrarian societies secured
access to land was fundamentally rely on establishing the bloodline with the
founding father of the land rights and discharging the obligations attached to the
land rights (Adejumobi, 2007, p. 41; Hoben, 1973; Tiruneh, 1993, pp. 7–15). In
the rist system—a form of corporate landholding system based on the descent
that granted usufruct rights, to claim access to land from his or her ancestors
who had originally held the land—he/she has to establish the blood ties to
the ‘founding fathers’ (Crummey, 2000, pp. 9–10; Tibebu, 1995, pp. 73–78).
Moreover, to have secured access to land, a person must also be the follower
of Ethiopian Orthodox religion (Kebede, 2002, p. 128) and be able to execute
the obligations attached thereof. Although they are lightened later, payment of
tributes about one-fifth of the products and tithe amounted to one-tenth, and
provision of compulsory labour services that took one-third of his/her time were
the basic obligation to maintain the access to land (Ambaye, 2015, p. 41; Teklu,
2005, p. 5; Zewde, 1991, pp. 14–15). Failure to discharge these obligations
would entail the denial of access to land.
In the South, the locational south and marginalised society include the agrarian
societies who were situated in the southern, South-eastern and South-western
provinces of Ethiopia and which had lost their self-governing autonomy and
annexed to the Northern ruling system under Emperor Menelik II in the year
between 1875 to 1889, and the Pastoralist society that has been experiencing a
non-hierarchical lifestyle followed Islamic or traditional religion and were living
in the southern, western, arid and semi-arid lowland along the red sea coastal
area, and Somali frontier (Marcus, 1994, p. 104; Tiruneh, 1993, pp. 7–8). The first
group of agrarian society the Emperor’s forces crushed any attempt at resistance
and confiscated all the lands of the resisters. In places where the native chiefs
8 Journal of Land and Rural Studies 7(1)

peacefully submitted and accepted the dominance of the Ethiopian empire, the
people could keep their lands intact. All the confiscated land was distributed to
the Ethiopian Orthodox church, to the emperor’s soldiers as a reward for their
service in the expansion process, to local chiefs to maintain their support and to
the state itself (Ambaye, 2015, pp. 44–45). Moreover, to create effective control
over newly conquered territories, northern people were encouraged to settle in
the south (Crummey, 2000, p. 223). As a result, the entire native population,
which formerly cultivated land on a community and clan base, was left landless
gabbars (Dunning, 1971, p. 298), and they became servants and tenants to the
northern people up until the 1974 Ethiopian Revolution (Jemma, 2004, p. 4).
Then, the access to land for locals was contingent on landlord–tenant agreements,
characterised by great inequality. For the local populations, land tenure system
became tenancy and their status reduced from peasants to tenants and servants to
the northern absentee landlords.
However, regarding the pastoral communities, during this regime they
managed to access land based on their customary rules and institutions up until
the 1950s where Emperor Haile Selassie I began to regulate to define their tenure
statutorily. They were burdened only with the duty to pay tax on livestock, salt
and trade to the government when possible (Tibebu, 1995, p. 86). However,
since the mid of the 1950s, their customary access to land was put to the state
domain’s open access category of ‘terra nullius’ (The 1955 Revised Constitution,
1955, Article 130). The government took away, with the aim to intensify rural
development via commercialisation of agriculture, without due process and
payment of compensation, the pastoral lands for large-scale commercial farming,
infrastructural development and environmental protection (Dunning, 1971).
Moreover, on the later stage, the commercialisation of agriculture was regarded
as a way for development, and commercial farming was highly prioritised over
the subsistence one (Dunning, 1971). Instead of access to land for a livelihood,
access to land for commercial farming was prioritised.
All in all, the denial of access to land, and the fruit of labour and confiscation
of one’s product in the form of tributes, tithe, and forced labour, in the imperial-
feudalist regime of Ethiopia had forced the agrarian society to rebel against the
state. Particularly, the Tigray, Gojjam and Bale Peasants Rebellion, the 1960
aborted Coup d’état instigated by the absence of agrarian reform among others,
and the 1960 onwards students protest under the slogan of ‘Land to Tiller’ were
the implications of the state using access to land as a political asset for its political
legitimacy and suppression of the society (Tareke, 1991).
The absence of a fundamental land tenure reform to secured access to rural
land to agrarian society in the imperial–feudalist regime had forced political
change calling for land to the tiller because of the frustration due to the
prevalence of dramatic inequality of land distribution and exploitation by few
(Adejumobi, 2007, p.117,120). Accordingly, in 1974, the military junta socialist
Derg regime had overthrown the last Emperor of imperial–feudalist regime,
Emperor Haile Selassie I, in a creeping coup d’état. Following assumption
Ganta 9

of power, the socialist Derg regime had fundamentally altered overall policy
direction of the country including the access to land based on radical communist
ideology (Brietzke, 1981).
The 1975 reform of access to rural land rights correctly analysed the defect
of the past political regime and aimed at redressing those defects. Basically, it
had provided two-fold of justifications related to secured access to land that the
previous regime failed to achieve. First, appreciating the role access to land is in
the overall well-being of agrarian society; it perceived that the past regime had
denied the mass ordinary agrarian society with the access to land (Proclamation
No. 31/1975, preamble). Second, it regarded that the past system of access to land
was unjust and created exploitative feudal agrarian relations (Proclamation No.
31/1975, preamble). Therefore, this reform had intended to address the historical
denial to access to land and injustice committed about the fruits of labour of
agrarian society by securing access to land for all needy on the basis of egalitarian
principle, and ‘...[making] the tiller the owner of the fruits of his labour… by
liquidating the feudal system under which the nobility, aristocracy and a small
number of other persons with adequate means of livelihood have prospered by the
toil and sweat of the masses’ (Proclamation No. 31/1975, preamble).
Consequently, to ensure access to rural land for all needy, the 1975 rural land
reform had nationalised all rural land rights without compensation and introduced
state ownership of all rural land (Proclamation No. 31/1975, Article 3). Freezing
the commercialisation of agriculture, it had adopted free access to land based on
the egalitarian social equity principle of ‘need and capability approach’ in relation
to peasants (Proclamation No.31/ 1975, Article 4). Whilst, it left to the customary
rules to define access to land for pastoral communities by implying grant to them
with the possessory rights which were denied in previous regime (Proclamation
No.31/1975, Article 24). The need and capability approach to access land considers
the distribution of land to be made based on both household ‘needs’—sufficient
to a person’s maintenance—and that of his family and the capacity of households
to use it. Accordingly, the size of the land allocated depends on the family size
and the capacity of the household in terms adult labour and agricultural inputs to
utilise the land (Kebede, 2004, p. 32).
Although the Derg regime was, to some extent, successful in ensuring access
to land for all needy, the regime was not freed from what it criticised about
the previous regime and justified to introduce reform on access to rural land.
Primarily, by subjecting the access to land contingent upon the membership to PA,
it continued to use access to land for political control over the bulk of an agrarian
society. The PA was the lowest administrative unit under the state structure and
formed in every village to 800 hectares of land (Proclamation No. 31/1975,
Article 8). To access rural land for a livelihood, a person was required to be member
of such an association. The mandatory demand for PA membership to access
rural land enabled the state to effectively control the agrarian society. Given
that the association was part of the state structure and its intimacy to the local
community, and the land administration power it enjoyed (deprivation, distribution
10 Journal of Land and Rural Studies 7(1)

and redistribution of land, and adjudication of land disputes, etc.) (Proclamation

No. 31/1975, Article 23), it paved a way for the state to have strong political
control over the society.
Additionally, the state control of the agrarian society was experienced by way
of depriving the economic freedom. The Derg regime, though on paper promised
to guarantee the agrarian society to be the owner and beneficiary of fruits
of its labour, but in the practical term like its predecessor, it denied of the same.
The peasants were forced into hastily organised producer cooperatives, thereby
losing their individual rights to land and freedom of labour (Rahmato, 2009,
pp. 43–44). Further, due to grain requisition to these cooperatives, they were not
beneficiaries of what they produced. Rather the grain acquisition and submission
of certain fixed quota of agricultural product to the state marketing cooperation,
which paid the fixed official rates limited the peasants’ right to use and transfer the
fruits of their labour in a manner they thought was fit (Pausewang, 1992, p. 26).
Finally, they were rigorously required to made financial contribution for different
activities carried out by the local government besides land tax (Rahmato, 2009).
Therefore, with different strategy, the Derg regime had continued to deprive the
agrarian society from being the owner and beneficiary of fruits of their labour
to deny economic freedom and that in turn affected their political freedom as
claimed by Amartya Sen.
Coupled with other factors, the failure of the Derg regime to achieve what it
promised and criticised the previous regime for, and continued use of access to
rural land for political control either depriving the access or the fruits of the labour,
had ‘[escalated] anti-government insurgency in the countryside’ (Rahmato, 1993,
p. 49). Because of this, after a protracted struggle, the regime was overthrown
in 1991 by currently ruling party called Ethiopian Peoples’ Revolutionary
Democratic Forces.

Constitutional Foundation and Principles of Access to

Rural Land Rights in the Post-1991
In a country like Ethiopia, the aftermath of civil war and the downfall of repressive
political regime, the formation of constitutional democratic state demanded the
formulation of constitutional norms that reflected the democratic and human
rights values and curtailed the state power of societal control (FDRE Constitution,
1995, Preamble). The process took time and that is why the country had been
administered by the transitional government (1991–1995) until the promulgation
of the FDRE Constitution and establishment of the constitutional state.
In the constitutional making and thereafter, one of the hotly debated and
contested matter has been the issue of land rights. Taking the issue of land played in
the political history of the country and how the past regimes had used it for political
control of agrarian society, policy and academic discourse on it have continued
in the post-1991. Fundamentally, the discourse has centred on the nature of the
land ownership and in between two antagonistic views. Nevertheless, both sides
Ganta 11

have raised the issue of access to land and state control of the agrarian society in
their justifications. The proponents of the ‘state and people’s ownership’ adopted
in the FDRE Constitution (FDRE Constitution, 1995, Article 40(3)) argue from
the perspective of the egalitarian principle of social equity and security paradigms
(Crewett & Korf, 2008, pp. 204–205; Constitutional Assembly, 1994, pp. 8–9).
Accordingly, from the perspective of social equity paradigm, they claim that
the state and people’s ownership provides the state with the chance to secure
free access to land for needy. To enable any needy with a means of livelihood,
the status quo land ownership must be maintained (Crewett & Korf, 2008, pp.
204–205; Constitutional Assembly, 1994, pp. 8–9). Moreover, in social security
paradigm, they also claim that by prohibiting sale of land, the existing form
of land ownership protects the agrarian society from losing their land rights in
distress sale and from being tenants of the urban bourgeoisie (Crewett & Korf,
2008, pp. 204–205; Constitutional Assembly, 1994, pp. 8–9).
Conversely, the opponents of the status quo, who profound on the introduction
of land ownership that allows transfer of land through sale—privatisation or
associative ownership, have also based their views on two access to land-related
basic justifications. First, they argue from the perspective of economic efficiency
and productivity (Ada1, 2002, p. 27; Constitutional Assembly, 1994; Crewett &
Korf, 2008, p. 206). The status quo land ownership form does not provide any
right to the entrepreneurs who do not have access to land but are willing to engage
in agriculture easily. At the same time, those who have access to rural land may
not have the interest or the know-how and capacity to productively utilise the
land resource. Thus, the incorporation of the land ownership that makes land to be
easily transferred through sale enables landless entrepreneurs to access land and
make productive use of it.
Second, mimicking how the state used access to rural land as a political weapon
to control agrarian society, the critics of the state and people’s ownership argue
that it empowers the state to have political control over the society (Adal, 2002,
p. 27; Crewett & Korf, 2008, p. 207; Woldemariam, 1999). Accordingly, the state
may provide access to rural land for supporters and deny the same to oppositions.
This fear has also been evidenced in the election campaigns where the local
campaigners of the ruling party were the promising provision of access to land if
they get elected (Rahmato, 2004, p.16). However, both the act of the ruling party
and the fear of the critics have not considered the constitutional foundation and
principles about access to rural land. Both assumed that it is the form of the land
ownership that obliges the state to ensure access to land for needy and paves the
way for state control of the society respectively. Rather than the ownership, there
are other constitutional foundations and principles defining the access to rural
land and addressing the above two concerns.
Unlike the economic policy of the country, that is based on the free market
principle, the constitution has defined access to land on the foundation of
egalitarian social equity paradigm. Particularly, the constitutional makers have
perceived access to rural land rights from the perspective of securing means of
livelihood for all. Rather than the economic value of land, what mattered most
12 Journal of Land and Rural Studies 7(1)

for constitutional makers of Ethiopia was to use access to rural land rights
for guaranteeing all needy nationals with the means of living. That is through
granting ‘free access to rural land for all needy nationals’ (FDRE Constitution,
1995, Articles 40(4) and (5)). Therefore, the right to free access to rural land rights
for all needy nationals is a separate constitutional right provided for the nationals.
It has nothing to do with the nature of ownership adopted and the realisation the
right does not depend on the state’s willingness. It imposes rather an obligation
on the state to respect, promote and fulfil the right to free access to rural land of
the needy nationals.
The FDRE Constitution has further provided the principles that guide the
access to rural land. The principles vary depending on whether the access to rural
land is required for livelihood or for investment. About payment to access rural
land, the constitution has stipulated free access for livelihood and investors access
through payment arrangement (FDRE Constitution, 1995, Article 40(4–6)). Those
of who are based or are willing to base their livelihood on rural land rights are
entitled to get rural land without any payment. The free access to land for agrarian
society in the constitution is provided with a view to limit the state’s deprivation
of the fruits of the labour of the society as it happened in the past consecutive
political regimes. However, in order to enable the state to drive revenue necessary
for rural development and infrastructure, the constitution has empowered the state
to ensure the access to rural land of investors by payment arrangement (FDRE
Constitution, 1995, Articles 40(6) and 97(2)).
Moreover, the principle of free access to rural land for needy applies only for
nationals and without making any further discrimination on any other grounds.
The emphasis of the requirement of nationality/citizenship to implement the
right to free access to rural land was manifested in the constitutional making
(Constitutional Assembly, 1994, p. 43). The incorporation of the principle of
nationality here serves two purposes. First thing, as it is stipulated in the human
rights chapter of the constitution, it aimed at defining the scope of application
of the right. Non-nationals although needy, they are not entitled to access rural
land for free. Moreover, the only way non-nationals can access land rights in
Ethiopia is for investment. Secondly, the constitutional emphasis on nationality in
defining free access to rural land is related to the form of state structure adopted.
The FDRE Constitution has adopted predominately ethnic-based federalism with
nine federating states, the number which can also increase (FDRE Constitution,
1995, Article 46 and 47). It further assumed that the rural land resources are not
evenly distributed among the regional states and there may be scarcity in one
state and abundance in another. Thus, failure to emphasise on the principle of
nationality to ensure free access to rural land rights may open a loophole for
discrimination on the residency requirement of a regional state, if not on ethnic.
To minimise, if possible to avoid such discrimination, and to ensure the free
access to rural land for all needy in the regional state where the land resources
are available and right to movement (FDRE Constitution, 1995, Article 32(1)),
the constitution has incorporated nationality as the sole requirement for needy to
access rural land for free.
Ganta 13

The last fundamental principle about access to rural land incorporated in

the FDRE Constitution is the principle of priority. The concept of prioritisation
principle is related to the foundation of access to rural land stated above. It indicated
that the FDRE Constitution has defined access to land not in its economic terms
but in its role for subsistence and livelihood. In line with this, the constitution has
also introduced the principle of priority in between access to land for livelihood
and for investment. The sequential order of the provisions and the qualifier
incorporated on the provision dealing with investors access to land indicate that
the needy is prioritised over investors to access the rural land rights. When one
sees the sequential order of the provisions in the constitution, the provision that
guarantees investors to access land rights through arrangement of payment comes
after the two provisions that deal about the access to rural land by the peasants and
the pastoralists (the needy), who demand land for livelihood (FDRE Constitution,
1995, Article 40(4–6)). Moreover, the insertion of the introductory qualifier ‘[w]
ithout prejudice to the right of Ethiopian … Peoples to the ownership of land…’
(FDRE Constitution, 1995, Article 40(6)) on the provision that governance
investors access to land, which is absent in case of the other, will have a meaning
only if it is provided for indicating the priority access right of the needy nationals.
Generally, the above constitutional foundation and principles of access to
rural land are aimed at restraining the state from using access to rural land rights
for societal control and denying the agrarian society from being the owner and
beneficiaries of the fruits of its labour. They guide the state’s formulation and
enactment of policies and laws to give an effect for the constitutional norms.
Consequently, the subsequent section examines whether the state has upheld the
constitutional foundation and principles in its formulation of rural land laws.

Access to Rural Land Rights in Rural Land Laws

The egalitarian social equity paradigm as a foundation, and the principles of free
access, priority and nationality incorporated in the FDRE Constitution to define
access to rural land rights are required to guide the legislative and administrative
measures of the state. Without the constitutional amendment, diversion from such
foundation and principles results in constitutionality issue and constitutional
review. Moreover, it becomes disregarding of the historical quest of land—land to
tiller/grazer and needy—and curtailment of state control over the agrarian society,
because, the issue of land in FDRE Constitution is the outcome to redress the
historical question of rural land rights since the time of imperial-feudalist regime
(Constitutional Assembly, 1994). Hence, reversion of the foundation and
principles in the constitution without constitutional amendment about access to
rural land is tantamount to the restoration of the historical injustice and state
control. However, it does not mean that land tenure reform is unnecessary. Since
the land policy is supposed to be flexible to accommodate the socio-economic
changes (Deininger, 2003, p. 51), legitimate way of reforming it is required
provided that the socio-economic changes are force to do so.
14 Journal of Land and Rural Studies 7(1)

The currently prevailing legislative measures of the state in providing details

about access to rural land rights are incompatible to the foundation and principles
adopted in the FDRE Constitution. It begins with changing of the foundation of
access to rural land rights. It stated before that the constitutional foundation for
access to rural land rights is the egalitarian social equity and security paradigm, in
a sense, the employment of access to rural land to address the livelihood questions
of the needy nationals. Nevertheless, nowadays it is shifted into access to rural
land for efficient users and developers and it is regarded as a source of revenue for
the state. The defining of access to rural land in its economic value and importance
is inferred from the violation of the priority and free access to rural land for needy
principles of the constitution. Although the Rural Land Law has, in line with the
constitution, provided that access to rural land for other can be ensured after the
satisfaction of the claims of the needy—peasants and pastoralists—(Proclamation
No. 456, 2005, Article 5(4)), the principle is reversed in the establishment of
‘Federal Land bank’ (Regulation No. 283, 2013), the incorporation of notion of
‘conversion of communal land to private landholding’ (Proclamation No. 456,
1975, Article 5(3)) and with the way how the idea of ‘public purpose’ is defined to
expropriate rural land rights from the needy (Proclamation No. 455, 2005, Article
2(5) and 3(2)).
With a rush and intense demand for agricultural land in the globe mainly
after the world food crisis of 2007/2008, the state of Ethiopia has grabbed it as
a development opportunity and intensely involved in the transfer of large-scale
agricultural land (Arezki, Deininger & Selod, 2013; Cotula, Vermeulen, Leonard
& Keeley, 2009; Rahmato, 2011). Moreover, it established the so-called Federal
Land Bank to collect rural land and make ready for the future demand of investors,
the constitutionality of which from the notion of division of power and delegation
needs a further study. This has been happening in the prevalence of landlessness
and scarcity for the needy nationals. In the time when it is proved that 43 per
cent of rural land population is lacking access to rural land (Bodurtha, Caron,
Chemeda, Shakhmetova & Vo, 2011, p. 11), the state has transferred huge tracks
of rural land to large-scale investments (Rahmato, 2011) and in national policy
of Growth and Transformation Plan (GTP) I and II, it further aimed at transfer of
arable land to investors (MOFAED, 2010; National Planning Commission, 2016).
This is inferred from Tables 1 and 2 which present sample data on land transferred

Table 1. Land Transfer for Agricultural Investment

Years Planned (in Hectares) Transferred (in Hectares)
2004−2008 – 1.2 million
2010−2015/2016 2.3 million envisaged to 840 thousand
reach the total of 7 million
2016−2020 671.8 thousand –
Sources: Rahmato (2011), Stebek (2011), National Planning Commission (2016) and MOFAED
(2010).
Ganta 15

Table 2. Investment Land under Federal Land Bank

Region Land (in Hectares)
Afar 420,000
Amhara 409,678
Benishangul Gummuz 691,984
Oromia 1,057,866
Southern nations, nationalities and people 180,625
Total planned to collect in the years 2016−2020 500,000
Source: Stebek (2011), National Planning Commission (2016) and Rahmato (2011).

and planned to transfer to investors and land collected and planned to be given to
Federal Land Bank.
Moreover, the legislative measure has also empowered the state to convert
communal land to private landholdings (Proclamation No. 456, 2005, Article
5(3)). It is with the view that private land utilisations—sedentary way and
investments—are economically more efficient and productive than the communal
land utilisation which is predominately common in the pastoral communities
(Abbink, 2011, p. 517; Abdulahi, 2007; Hundie & Padmanabhan, 2008, p. 5;
Pavanello, 2009, p. 9). Nevertheless, it is putting the pastoral communities’ land
rights into its previous imperial–feudalists era of open access status disregarding
the constitutional protection and recognition. And it may cause the extinction of
cultural identity of pastoral communities as for them it is fundamentally defined
in their pastoralist way of life. The irony is one of the justifications provided in
favour of the status quo land ownership at the making of the constitution stating
that it helps to preserve and protect identities of minority groups (Constitutional
Assembly, 1994, p.10).
Moreover, beside infringement of the constitutional principle of priority to
access to rural land, the unconstitutional shift towards the economic value of land
to define access is also inferred from the legislative broader understanding of the
notion of ‘public purpose’ to expropriate rural land rights of the needy. Unlike the
investors and urban landholders, to expropriate the rural land rights of the needy—
peasants and pastoralists—the Rural Land Law of the country has defined ‘public
purpose’ broadly including taking of land to transfer to an investor (Proclamation
No. 455, 2005, Articles 2(5) and 3(2)). The basic assumption again here is that the
transfer of land to investor derives more economic gain in terms of creation of job
opportunity and additional source of revenue to the state in tax form or land use
payment (FAO, 2008, p.12). Nonetheless, it disregards the constitutional principle
of priority and like saying the rural land rights granted to the needy today can be
taken away to transfer to an investor tomorrow.
The violation of the constitutional principle of free access to rural land rights
of needy again is inferred with the introduction of ‘land use payment’ in the
regional state laws (Proclamation No. 131, 2007; Proclamation No. 161, 2008;
Proclamation No. 137, 2007; Proclamation No. 4, 1996). As discussed in the section
16 Journal of Land and Rural Studies 7(1)

‘Constitutional Foundation and Principles of Access to Rural Land Rights in the

Post-1991’, unlike the investors, constitutional access to rural land rights for all
needy is without payment. The requirement of payment by the FDRE Constitution
is demand for investors’ access to rural land. And the constitutional requirement
of payment for access to rural land rights is not intended to be applicable to the
needy. Nevertheless, as a manifestation of the shift of foundation of access to land
to the economic gain of the state and a violation of the constitutional principle
of free access, regional state laws have imposed the duty to pay for the use land
for livelihood. Leaving aside the amounts differences, the form of payment also
various from state to state. In Oromia, Amhara and Tigray state’s laws, it is imposed
as land use payment (Proclamation No. 131, 2007; Proclamation No. 161, 2008;
Proclamation No. 137, 2007). In the Southern Nation, Nationalities and Peoples’
Regional State’s Law, it is incorporated as land rental payment Proclamation
No. 4, 2007. Whilst, in Afar, Somali and Benishangul Gummuz state’s laws it is
imposed as a land use tax (Proclamation No. 49, 2009, Article 18(1); Proclamation
No. 128, 2013, Article 17(1); Proclamation No. 85, 2010, Article 19(16 and 17).
This difference is also the manifestation of failure to properly understand the
constitutional principle of ‘free access to land for livelihood’.
Furthermore, the Regional States’ Rural Land Laws, while providing
the requisites for the free access to rural land of all needy, have set aside the
constitutional principle of nationality. They incorporated the requirement of
residency of the regional state to access rural land without payment. Accordingly,
one who is engaged or wants to engage in agriculture as a livelihood must be the
resident of a particular regional state to get rural land for free (Proclamation No.
252, 2017, Article 10(1); Proclamation No. 130, 2007, Article 5(1); Proclamation
No. 110, 2007, Article 5(2)). In contrast, non-residents are not entitled to access
rural land for free. However, given that the regional states are demarcated mainly
on an ethnic basis, such requirements may be interpreted to make discrimination
based on ethnic identity. Such implications are manifested when the peasants
of Amhara ethnic groups were evicted from the regional states of Oromia,
Benishangul Gumuz and Southern, Nation, Nationalities and Peoples (Ambaye,
2015, p. 69).
The reason for such discrimination is deeply rooted in a failure to give an
effect to the constitutional principle of nationality that defines the access to rural
land rights. The State Constitutions understanding of the nature of ownership of
land in regionalism/localism sense led the regional law makers to incorporate
such requirement. In almost all regional state constitutions, except Harari, the
ownership of land is defined as the ‘regional state and people’s ownership (Afar
State Constitution, 2002, Article 38(3); Amhara State Constitution, 2001, Article
40(3); Benishangul Gummuz State Constitution, 2002, Article 40(3); Gambella
State Constitution, 2002, Article 40(3); Oromia State Constitution, 2001, Article
40(3); Somalia State Constitution, 2002, Article 40(3); SNNP State Constitution,
1995, Article 40(3); Tigray State Constitution, 1995, Article 40(3)). The provision
of the ownership of land belongs to the regional state and people have attributed
for the incorporation of the residency requirement to access rural land for free.
Ganta 17

Coupled with the ethnic federalism (predominately defining the state structure),
the introduction of the residency requirement opens a leeway for discrimination
in granting access to land based on ethnic identity.

Conclusion
In an agrarian society, like the 83 per cent of the Ethiopian population dependent
on agriculture for livelihoods, the role of secured access to land rights goes beyond
its economic importance. It defines a person’s social status, cultural life and
political participation in the society. From the state’s perspective too, it can be
used positively as a source of revenue and a means to attract investments. Or else,
negatively it can be of an instrument to exercise political control over the society
by denying access to land or depriving the fruits of labour and land.
Throughout the modern political history of Ethiopia, access to rural land has
served the above two-dimensional roles. Specifically, the state’s use of it for
societal control and exploitation of the agrarian community in the landlordism
feudalist system had ignited peasants’ rebellion of Bale, Gojjam and Tigray, and
the student movement under the slogan of ‘Land to Tiller’. Then, it resulted in
the dissolution and elimination of the imperial–feudalist political regime in 1974.
Following, the Derg socialist military regime, though it had made fundamental
social, economic and political change, it continued to use access to land for
political control and exploitation of agrarian community. Well, its reform of
introducing free access to rural land for all needy was the success; the contingent
requirement of membership to PAs to get land, forcing of the agrarian community
to producer cooperatives, grain acquisition and sale of their products on state
fixed price, and hasty state demand for financial contribution beside tax, had led
the continuity of the state control and exploitation of the society. That is why it
is claimed that the Derg regime ‘failed where it has succeeded’ and replaced the
feudal landlordism with state landlordism.
After the downfall of the Derg regime, the demand of the land tenure reform
has continued in the post-1991 regime. In the making of the 1995 FDRE
Constitution, and thereafter, one of the most debated and debatable issues has
been the issue of land. Fundamentally, the debate centred on the nature of
land ownership, and two dissenting views have been reflected: the proponents
supporting the status quo, ‘state and people’s ownership,’ and the critics of
the status quo, ‘demanding privatisation or associative ownership’. The main
difference between the two antagonistic views relies mainly on the foundation
that defines access to land and the fear of the critics that the state will continue
to use access to land rights for political control and exploitation of the agrarian
society like the previous regimes. Nonetheless, both sides have not appreciated
what the FDRE Constitution has stipulated to define access to rural land and to
limit the state’s use of it for political control.
The constitutional foundation that defines and determines access to rural
land is not the economic utility of land. As an exception to the market principle
18 Journal of Land and Rural Studies 7(1)

adopted to define the economic system, the access to rural land is defined in terms
of the egalitarian social equity paradigm. The constitution employs access to rural
land to provide everyone with a livelihood. It is not for the one who utilises land
in the efficient and productive way that the constitution aimed to grant access
to land. Rather, it is for those who have based or want to base their livelihood
on rural land rights. On this basis, the constitution has guaranteed free access to
rural land rights for all needy nationals. Accordingly, emphasising on nationality,
to exclude non-nationals and not to open a loophole for discrimination based on
ethnicity given that the adopted state structure is predominately ethnic federalism,
the FDRE Constitution has entitled all needy persons with access to rural land
without payment. Moreover, it even incorporated the principle of priority in
defining access to rural land rights. The needy—peasants and pastoralists—are
prioritised over anyone including investors. The sequential order and wordings
of the provisions and the constitutional foundation that prescribes access to rural
land implies the prioritisation.
However, the detailed laws enacted to implement the constitutional foundation
and principles of access to rural land reveal the policy shift incompatible with the
Constitution. Basically, the establishment of ‘Federal Land Bank’ to collect and
reserve land for investors while landlessness in rural community is prevalent, the
adoption of broader definition of ‘public purpose’ including transfer of land to
investors to deprive rural land rights of the needy, empowering state to convert
communal land to private landholding and imposition of ‘rural land use payment’
on the peasants, is the implication of the shift of policy towards defining access
to rural land in terms of economic value of land. Moreover, it implies a violation
of the principle of free access to rural land for needy and prioritisation. Lastly,
the regional state’s adoption of residency requirement to access rural land for free
also goes against the constitutional principle of nationality.

Acknowledgments
The author would like to thank Professor Danie Brand, Professor Abebe Zegeye and Mrs.
Eden Fissiha for their comments on the early draft of the manuscript.

Declaration of Conflicting Interests

The authors declared no potential conflicts of interest with respect to the research,
authorship and/or publication of this article.

Funding
The authors received no financial support for the research, authorship and/or publication
of this article.

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