Joornaalii Seeraa Oromiyaa [Jiil. 9, Lak.1, 2012] Oromia Law Journal [Vol.9, No.

1, 2020]

A CRITICAL ASSESSMENT ON PROVISIONS OF THE FEDERAL

CONSTITUTION OF ETHIOPIA WITH REGARD TO FEDERAL-
REGIONAL GOVERNMENTS RELATIONSHIP ON LAND LAW

Habib Jemal *
ABSTRACT

The Federal Democratic Republic of Ethiopian Constitution has stipulated that the
Nations, Nationalities and Peoples of Ethiopia are owners of land, which is one of
the invaluable resources for the exercise of sovereign and self-determination rights
of the people, who are also the building bricks of the federation under the
Constitution. The Constitution demands the existence of land policy that respect
and enforce the self-determination right of the people over the land resource. The
resource is a subject matter over which both federal and regional governments
have power under the Constitution. However, it does not provide a clear division
of power between them. The purpose of this article is to analyze the land law-
making relationship between the two levels of government in light of the
Constitution. The researcher has employed a qualitative approach that is mainly
doctrinal legal research. Accordingly, the FDRE Constitution does not require all
Regional States to administer land resources based on a single and uniform land
policy of the Federal Government. A central land legislation making process,
under the monopoly of the Federal Government, is far from the spirit of the
Constitution. The Constitution requires the presence of a decentralized land policy
process that reflects the peculiar land policy interest of each Nation, Nationalities
and Peoples. Unlike the practice, the FDRE Constitution demands the formulation
and implementation of land policy that is the result of harmonious coordination
between the Federal Government and the Regional States. Thus, the Federal
Government is not the only source of land law in Ethiopian federal system as land
lawmaking is a concurrent power under the Constitution.

Key Terms: FDRE Constitution, Land Resource, Federal Government, Regional

States, Land Administration, Rural Land Law, and Urban Land Law.
______________
* LLB (Haramaya University), LLM (Addis Ababa University); Lecturer of Law at Wollega
University. He can be reached at via email address: [email protected].

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I. INTRODUCTION

Many jurisdictions do not regulate land issues as the subject matter of their
constitution.1 The land resource has an invaluable place for the socio-economic
and political life of Ethiopians. This has made the Federal Democratic Republic of
Ethiopia Constitution (FDRE Constitution hereinafter) to be much more sensitive
on the issue of land resources. Accordingly, the Constitution has declared that
Ethiopian Nations, Nationalities and Peoples (NNP hereinafter) are owners of both
urban and rural land.2 This fundamental declaration of the Constitution requires the
formulation and implementation of land policy which ultimately make NNP
principal economic beneficiaries of land resource.

The Constitution requires a land policy which respects and enforces “NNP land” to
NNP. It also imposes a duty on both Federal and Regional Governments to
formulate and implement a land policy that ensures the benefits of all Ethiopians
from land resources.3 Land resource is a subject matter over which both Federal
and Regional Governments can exercise power, as provided under Art 51 (6) and
Art 52 (2) of the FDRE Constitution. The former provision stipulates that the
Federal Government enacts the law on the utilization and conservation of the land
resource. The latter provision, on the other hand, stipulates that the Regional States
administer land in accordance with federal law. Hence, the scope of regional state
land administration power and the degree they should administer land in
accordance with federal law under the Constitution is the core issue.

The objective of this article is to evaluate the relationship between the Federal and
Regional Governments concerning land law in light of the FDRE Constitution. To
this end, the author has employed a qualitative approach, which is mainly doctrinal
legal research that analyzes the Ethiopian legal framework on land rights. To
expose the nature and scope of the rights in Ethiopia, the relevant FDRE laws as a
secondary data have been collected and analyzed. These include the FDRE
Constitution, Federal Land Proclamations, and land policy documents. Besides, for
explicating the theories behind reliance was made on literature. Finally, the author
has analyzed all relevant laws and other authoritative documents.

1
Daniel Weldegebriel, Land Rights in Ethiopia: Ownership, Equity, and Liberty in Land Use Rights
(Research Paper presented on FIG Working Week Conference, Italy , Rome, 6-10 May 2012), P 5.
2
FDRE Constitution, Art 40 (3)
3
FDRE Constitution, Art. 9 cum Art. 89.

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II. FEDERAL GOVERNMENT’S LEGISLATIVE POWER AS TO LAND

RESOURCE

FDRE Constitution has made land resource as a subject-matter over which both
levels of government can exercise power under Art 51 (6) and Art 52 (2). The
former provision of the Constitution stipulates the Federal Government enacts law
on the utilization and conservation of the land resource. The latter stipulates that
the Regional States administer land in accordance with federal law. These two
different provisions are concerned with one single subject matter i.e. land
resources and provide interrelated powers for the two tires of government. The
power is "land administration" and "land lawmaking."

The core issue of this section is whether there is constitutional ground to consider
land lawmaking power as the exclusive power of the federal government or not. To
provide an answer to the question, it is important to assess whether the
Constitution bans the regional states from enacting land laws or not. Under this
section, the meaning of the federal government's land law-making power will be
addressed. In the following two sub-sections, this issue will be addressed in light
of the general approach of the Constitution, and the relational and scope of Federal
Government power. In the next section, the issue of the Regional Government's
land law-making power will be addressed.

A. THE IMPLICATION OF POWER ALLOCATION APPROACH

UNDER THE FDRE CONSTITUTION

Federal constitutions allocate power between central and constitute units based on
two major approaches. The first approach is called dual federalism that is followed
by the older federations like the USA, Australia, and Canada.4 The dual approach
underlines the principle that each level of government retains the executive
responsibility in those matters in which it exercises the legislative power. 5 In
addition, both the legislative and the executive powers concerning a given subject
matter lie with the same level of government. This method works with the
assumption that the two levels of authority retain autonomy concerning their
respective powers.

4
Solomon Negussie, Ethiopia’s Fiscal Federalism: A Constitutional Overview (Ethiopian
Constitutional Law Series, Vol. III, Law Faculty AAU, 2010).
5
Ibid.

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The second approach results in the division of labor where the legislative power is
reserved for one of the tiers of government and its administration to the other. The
approach involves a strong relationship between the Federal Government and the
states. The best illustration for this method of allocating executive powers is the
practice in Germany where the Federal Government is primarily concerned with
policy initiation, formulation, and legislation, while the states are mainly
responsible for implementation and administration. As a result, German federalism
is described as functional federalism.6

On one hand, in Ethiopian federation, Art 50 (2) of the FDRE Constitution

provides that both Federal and Regional Governments have the legislative and
executive powers on matters that fall under the respective jurisdictions. Each tier
of government shall respect the powers of the other as per Article 50 (8). To this
effect, the powers and functions of the Federal Government and the states are
listed under Articls 51 and 52 of the Constitution, respectively. In addition to
Article 51, the scope of the legislative and the executive powers of the Federal
Government are indicated under Articles 55, 74 and 77.

On the other hand, Regional States are endowed by the Constitution with
legislative, executive and judicial powers. States have the power to establish their
administrative levels which they consider necessary. The State Council is the
highest organ of state authority and elects the regional president who is the Head
of the state administration (the highest state executive organ). States hold residual
power in addition to the brief account of powers stated under the Constitution
(Article 52). They are also empowered to draft, adopt and amend state
constitutions. From the above provisions of the FDRE Constitution, it is clear that
it follows the USA model of a dual structure; which is by reserving the executive
responsibility to each level of government on matters in which they exercise the
legislative power.

Articles 51 (6) and 52 (2) of the Constitution has made land resource as a subject
matter over which both levels of government can exercise power. It requires the
Regional States to administer land in accordance with federal law. But, it is not
safe to conclude that the division formula of the Constitution as to land resource
follows the functional model. The two models are general and simply imply the
constitutional approaches for the division of legislative and executive powers. This

6
Ibid.

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is affirmed by another scholar who states the applicability of one approach cannot
exclude the other and recent federations are tending to design their constitutions in
between the two approaches.7

Besides, the principle formula employed to divide power between the Federal and
Regional Governments under the FDRE Constitution is a dual model. And the idea
of implementing federal land policies via regional state institutions is far from the
power division principle of the Constitution. In support of this, one scholar has
underlined the reason for adopting the dual approach under the FDRE Constitution
to be the high emphasis given by the Constitutional Assembly for the values on
self-rule.8

Based on the above line of arguments and reasoning, it would be safe to conclude
that the dual formula of power allocation under the FDRE Constitution has no
exception concerning land resources between federal and regional governments.
Thus, there is no constitutional ground that makes land lawmaking power as the
exclusive power of the federal government or that ban the regional states from
enacting land laws.

B. RATIONAL AND SCOPE OF FEDERAL

GOVERNMENT POWER

The FDRE Constitution is the result of a bargain among NNP, who are sovereign
and have the bearers of the right to land. The economic significance of land
resources for Ethiopian NNP is invaluable and incalculable. This is why the
Constitution has considered land to be one of fundamental resource for the
exercise of NNP self-determination rights. This right becomes impracticable unless
the land resource is properly conserved and utilized. To change into practice such
NNP sensitive land policy of the constitution, it is essential to have an effective
legal framework, which enforces the rule of law on land resources.

Putting differently, the rationale behind Federal Government land legislative

intervention under the Constitution is not needed for having a uniform land policy
in Ethiopia. Rather, the Federal Government is made responsible under the
Constitution to make legislative intervention which ensures the existence of an
7
Solomon, Supra note 4
Assefa Fiseha, Ethiopia's Experiment in Accommodating Diversity: 20 Years’ Balance Sheet,
8

Regional & Federal Studies (2012), 22:4, 435-473, P446.

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effective land administration framework for the conservation and utilization of

land resources for each of NNP. Hence, despite the Constitution subject the
Regional States to administer land in accordance with federal law, this wouldn't
mean that land law-making power is a federal matter.

The Constitution has required federal intervention to introduce some means of

uniformity. The ultimate end of this uniformity is to conserve and utilize land
resources for the economic and political benefit of NNP. The purpose of legislative
intervention by the Federal Government on land matters, which is a subject matter
assigned to states under the Constitution, should not be confined to achieve
uniformity of land law and policy in all Regional States. The place has given under
the Constitution to protect and promote the interest of NNP in terms of land
ownership, land right and federalism supports decentralization land policy.

Besides, under the Constitution, there is no mechanism enabling to reflect and

represent the interest of NNP up on federal government policymaking. This is
possible in other federations via the Second Chamber. In the Ethiopian federation,
the House of Federation (the Second Chamber) has not shared legislative power
with the House of Peoples Representative (the First Chamber). It is also important
to mention that NNP is the bearers of sovereign power under the Constitution. The
constitution supports land policy or law-making process which reflects the peculiar
interest of each of NNP. This requires a making process that gives wide
involvement of government which is closer to each of NNP.

The Constitution is interested in an institutional framework that enhances NNP

democratic participation, facilitates effective policy development and delivery. The
role of federal land law under the Constitution is to enable land resources is
utilized and conserved for the benefit of each of NNP found in the nine Regional
States. The scope of Federal Government land lawmaking should not extend
beyond ensuring that landholders, the NNP and Ethiopian citizens are secure in
their occupation, they are not dispossessed without due process and compensation,
and so on. The scope of federal land law cannot provide limitations or introduce
changes that affect the relationship of NNP with the land.

Finally, it is important to mention that the idea of implementing federal land

policies via regional state institutions is incompatible with the dual principle of the
power division formula of the Constitution. Consequently, the phrase that demands
the Regional States to administer land in accordance with federal law under Article

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52 (2) neither provides monopoly land lawmaking power to Federal Government

nor imposes an obligation on all regions to administer land only based on laws
passed by The Federal Government. The Constitution has no intention to ban or to
narrow policy-making space Regional Governments concerning land resources.
The power of the Federal Government is only to pass general on land conservation
and utilization that cannot restrict to respond and make practicable the peculiar
interests, rights, and ownership of NNP on land resources. In short, FDRE
Constitution has not given exclusive land lawmaking power to Federal
Government.

III. REGIONAL GOVERNMENT’S LEGISLATIVE POWER

AS TO LAND RESOURCE

Article 52 (2) (b) of the FDRE Constitution provides that land resources are
administered by the Regional States. The Constitution uses the term administer in
different provisions. To understand the significance and meaning of the term under
the above proviso, it is necessary to highlight the use of the term under the other
provisions of the Constitution and its implication in practice. Hence, before
looking for the meaning and scope of this power based on the Constitution, it is
important to clarify the conceptual meaning of the term land administration. Then,
constitutionality or legal aspect of land administration is considered.

A. DEFINITION OF LAND ADMINISTRATION

Land is a fundamental input into agricultural production and is directly linked to

food security and livelihood. The land is also a primary source of collateral for
obtaining credit from institutional and informal providers, and the security of
tenure provides a foundation for economic development.9 Scholars assume that
people must relate to land in some way and the relationships tend to get more and
more organized as they evolve. Based on this assumption land administration is
conceptualized as the study of how people organize land which includes the way

9
Tony Burns, Land Administration Reform: Indicators of Success and Future Challenges (The
International Bank for Reconstruction and Development/The World Bank, USA, Washington, DC
2, 2007), P6.

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people think about land, the institutions and agencies people build, and the
processes these institutions and agencies manage.10

Land administration is also considered as the basis for conceptualizing rights,

restrictions, and responsibilities related to people, policies and places.11 Land
administration is concerned with the social, legal, economic and technical
framework within which land managers and administrators must operate. 12 Land
administration systems, therefore, need high-level political support and
recognition, and land administration activities are, not just about technical or
administrative processes.13 The activities are political and reflect the accepted
social concepts concerning people, rights, and land objects concerning land tenure,
land markets, land taxation, land-use control, land development, and
environmental management. 14

From the above literature, it can be concluded that the scope of the term land
administration is a wide concept. Land administration informs the ‘how’, the
‘what’, the ‘who’, the ‘when’ and the ‘where’ of land tenure, land use, land value,
and land development. 15 Land administration is defined as the activities that relate
to organizing land tenure, land value, land use, and land development.16 This
definition of land administration encompasses the determination of policy, legal,
tenure, administrative, technical, and capacity development elements on land
resources. This definition is concordant with the more recent definition provided in
the international standard for the land administration standard, which is also
known as the Land Administration Domain Model (LADM).17

10
Ian Williamson Stig Enemark Jude Wallace Abbas Rajabifard, Land Administration for
Sustainable Development (Esri Press, 380 New York Street, Redlands, California U.S.A, 2010).
11
Stig Enemark, Land Administration Systems- Managing Rights, Restrictions and Responsibilities
in the Land (Paper Presented on the International Federation of Surveyors: Map World Forum,
Hyderabad, India, 2009), Pp10-13 .
12
Ibid.
13
Ibid.
14
Ibid
15
United Nations, Framework for Effective Land Administration, Committee of Experts on Global
Geospatial Information Management (UN-GGIM), 2019) P 10.
16
Ian Williamson Stig Enemark, Supra note 10.
17
ISO 19152, Geographic Information Land Administration Domain Model (Edition 1, International
Standards Organization, Geneva, Switzerland, 2012).

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B. THE MEANING UNDER THE CONSTITUTION

Article 52 (2) (b) of the FDRE Constitution provides that land resources are
administered by the Regional States. The Constitution uses the term administer in
different provisions. To understand the significance and meaning of the term under
the above proviso, it is reasonable to highlight the use of the term under the other
provisions of the Constitution and its implication in practice. For example, the
Constitution employs the term ‘administer” while listing and describing some of
the power of the Federal Government under Art. 51.

Accordingly, Article 51 (6), (7), (10), (13), and (18), respectively vest power to the
Federal Government to administer national defense and public security forces as
well as a federal police force; administer the National Bank, print and borrow
money, mint coins, regulate foreign exchange and money in circulation, administer
the Federal Government’s budget, administer and expand all federally funded
institutions that provide services to two or more states, and administer all matters
relating to immigration, the granting of passports, entry into and exit from the
country, refugees and asylum.

The Constitution has assigned all of these matters to the Federal Government, by
using umbrella term- administer. The Constitution made all decision making on
any aspect of such matters far from the Regional States, and in practice, it is only
the Federal Government that has jurisdiction to deal with them independently.
Administration of these matters requires the formulation of policies and strategies,
as well as the institutional and legal framework. In practice, the Federal
Government has passed legislation and established institutions to properly and
effectively determine and direct the necessary policies the federal institutions
follow while administering the above matters. The Constitution also underscored
under Art. 55 the need for legislation to administer all matters assigned to Federal
jurisdiction.

Similarly, the use of the term “administer” under the Constitution and the federal
practice imply the presence of wide room for the entity empowered to administer
to make deal with the subject matter. In addition, there is no reason to interpret less
favorably and differently the meaning of the term administer under Article 52 (2)
(b) of the Constitution. The Regional States administer land resources “in
accordance with federal law does not mean that land resource is a subject matter
that falls under the jurisdiction of the federal government. This can be also

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supported based on an inference made from Article 51 (11) of the Constitution,

which exceptionally assigns natural resource-related jurisdiction of the Federal
Government. This provision limits the jurisdiction of the Federal Government only
to determine and administer the utilization of the waters or rivers and lakes linking
two or more states or crossing the boundaries of the national territorial jurisdiction.

The same can be understood from Article 49 of the Constitution which states the
special interest of the State of Oromia in Addis Ababa, regarding the utilization of
natural resources. This indirectly confirms the intention of the Constitution to vest
legislative power at the hand of each regional state to determine land resource use
policy in their boundary. Further, the Federal Government has no power under the
Constitution concerning the determination of regional state revenue from the land;
since the power to levy and impose a land tax is given for the Regional States
under Art 97 (2) and (6).

Finally, the element used to define the term NNP under the Constitution support
the relevancy of Regional States legislative role concerning land resource. This can
be inferred from the definition of NNP under Article 39 of the Constitution. This
provision defines NNP as a group of people who settled in the contingent territory
with natural resources including land which is also owned by them. Proper
enforcement of the NNP land right requires the regional legal framework enforces
rule of law by taking into account the peculiar economic, social, cultural and
political aspiration of each of the NNP. All land situated within the respective state
boundaries are vested to NNP and their political institutions have the power to
enact a law that deals with it. The land law-making power of the Federal
Government is necessary to make practicable the peculiar interests, rights, and
ownership of NNP on land resources.

The Federal Government cannot address all details and it is a regional state which
can adopt feasible subsidiary land legislation to implement federal laws
considering the prevailing facts in the region.18 Consequently, the phrase that
demands the Regional States to administer land in accordance with federal law
under Article 52 (2) neither provides monopoly land lawmaking power to Federal
Government nor imposes an obligation on all Regions to administer land only
based on laws passed by Federal Government. In sum, from the reading of Article
52 (2), (b) and 51 (6) of the FDRE Constitution, Regional Governments have

18
Ibid

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meaningful and wide power on land law. In addition to this, there are other
constitutional dimensions and policies which support the need for land policy
decentralization or regional land policy/law. This issue is addressed in the next
section.

IV. PRIMACY OF THE REGIONAL GOVERNMENT’S

LEGISLATIVE POWER AS TO LAND RESOURCE

In comparison with the Federal Government, the FDRE Constitution provides wide
space to the Regional States on the formulation of land policy. The Constitution is
not interested to make all regional states administer land based on a single land
policy passed by the Federal Government. This assertion is by linking the land
administration power of the regional states with two key land resource-related
factors of the Constitution. The first factor requires us to assume land
policymaking under the umbrella of economic policymaking power. The second
requires us to assume a look at land lawmaking power as an important component
of NNP right. In the following sub-sections, an attempt is made to look at these
two issues.

A. DEVELOPMENT RELATED POLICY FORMULATION

AUTONOMY OF REGIONAL GOVERNMENTS

The role of land in the process of development is invaluable. The issue of the land
resource should be the starting point in any meaningful process of policy
development and reform. Today, the accepted theoretical framework for all land
administration is the delivery of sustainable development – the triple bottom line
of economic, social, and environmental development, together with the fourth
requirement of good governance.19 Land administration is the basis for
conceptualizing rights, restrictions, and responsibilities related to people, policies
and places. 20

The land policy has a strong link with economic policy since the land resource is
one important variable for shaping an economic policy of a country. Consequently,

19
Property rights are normally concerned with ownership and tenure whereas restrictions usually
control use and activities on land. Responsibilities relate more to a social, ethical commitment or
attitude to environmental sustainability and good husbandry (Stig Enemark, Supra note 11).
20
Property rights are normally concerned with ownership and tenure whereas restrictions usually
control use and activities on land. Responsibilities relate more to a social, ethical commitment or
attitude to environmental sustainability and good husbandry (Ibid).

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it is essential to admit the absence of strong reason to treat the land resource as an
irrelevant subject matter for the formulation of economic policy. Article 52 (2) (c)
of the FDRE Constitution provides regional states power to formulate and
implement their respective economic and development policy. There is no clue
under the FDRE Constitution that limits us not to look at land policy-making
power under the umbrella of economic policymaking power. Because, the land
resource has significant factors that determine the type of development (both urban
and rural) as well as for the distribution of income and wealth, for the rate of
economic growth, and the incidence of poverty.21 The influence of land policy on
the development of Ethiopia is also recognized.22

Hence, it is sound to recognize the significance of land resources to influence and

shape the nature of the regional economic policy of Ethiopia. The regional states
cannot properly exercise their economic policymaking power unless they take into
account land issues upon the formulation of their respective economic and
developmental policy. Because the land resource is one important input which
likely to influence and shape the kind and the nature of regional state economic
policy. In effect, it is unreasonable to consider land policymaking as a remote
subject matter of regional economic policymaking power. Article 52 (2) (c) of
FDRE is one important ground in support of regional states’ power to formulate
land policy.

Besides, there is no principle- exception relationship- between Article 51(5) and

Article 52 (2) (b), and Art 52 (2) (c) of the FDRE Constitution. These provisions
stipulate the land policy-making power of the Federal Government, and the
economic policymaking power of regional states respectively. There is reasonable
ground to consider the land policy as an important component of economic policy,
on which the regional states have constitutional power under article 52 (2) (c) of
the FDRE Constitution. Also, it is important to underscore the absence of a
hierarchy of norms among different clauses provided under the FDRE
Constitution. In effect, there is no ground to consider land lawmaking power as the
exclusive federal power; based on Article 51(5) of the FDRE Constitution and at
the expense of Article 52 (2) (c).

21
Lorenzo Cotula etal, Land Tenure and Administration in Africa: Lessons of Experience and
Emerging Issues, (FAO workshop, June 2003, Ghana, Accra).
22
Getnet Alemu and Mehrab Malek, Implications of Land Policies for Rural-Urban Linkages and
Rural Transformation in Ethiopia (Working Paper, 2, No. 15, Food Policy Research Institute, Addis
Ababa, 2010), P10.

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The FDRE Constitution, under Article 52(2) (c) suggests that the regional states
are endowed not merely with administrative power. The Constitution places
primary responsibility on the Federal Government to determine major policy
directions and standards. It cannot exhaustively and exclusively legislate on all
matters fall under the umbrella of economic and developmental policymaking. It is
not an exaggeration to consider land resources as an element of economic and
development policymaking. The regional states have Constitutional ground to play
a meaningful legislative role concerning land resource since the proper
determination of regional economic and development policy need their legislative/
policy-making involvement land resource. The same conclusion can be made from
the following constitutional grounds.

B. THE NEED TO INSTITUTIONALIZE PEOPLE’S

LAND RIGHT

FDRE Constitution has considered land to be one fundamental resource for the
exercise of NNP self-determination rights. The Constitution has provided both
substantive and procedural limitations which indirectly guide and determine land
resource-related powers and relationship of both governments. On one hand, the
Constitution provides substantive limitations; namely, NNP land ownership right
under Article 40, NNP right of self-determination under Article 39, and NNP right
to development under Article 44. On the other hand, there are procedural
limitations under the Constitution that amplify NNP's say on land resource namely,
the principle of accountability and transparency under Article 12, and the
procedure of public consultation under Articles 44 and 89.

The power of both the federal and regional governments concerning land resources
cannot be ascertained properly by disregarding the above assumption and
limitations of the Constitution. A total and cumulative reading of the above
limitations reveals the significance of both Federal and Regional Government
intervention on land policymaking. Although the Constitution stipulates land
should be administered in accordance with federal law, this wouldn’t mean that the
Federal Government can strip the say of NNP concerning land resources. The
Constitution does not allow the enactment of a land law, which ignores the spatial
and socio-cultural distinctions of NNP.

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The Constitution is interested to have a land policy which accommodates the

possible distinctions among each of Ethiopian NNP interest on land resource. That
is why the Constitution, instead of the Federal Government, has preferred and
vested to the regional states the power to administer land and other natural
resources. This preference has been also strengthened under the provision of the
Constitution which vests the power to the regional states on economic policy
formulation and implementation. The Constitution is in favor of federal legislative
intervention on land resources, which is legitimate and general, as well as not
ignores possible distinctions of interest among NNP. Thus, Federal Government
land law and policy intervention have to leave meaningful policymaking space for
the Regional States, enabling them to plan and allocate land resources; which
protect and sustain the economic interest of NNP.

C. THE LIMITATION OF FEDERAL LAW MAKING

INSTITUTIONAL FRAMEWORK

The FDRE Constitution has established two chambers parliament; namely, the
House of People's Representative and the House of Federation. The composition
and power of the latter House (the HoF) is expected to represent regional states.
The members of the House of Federation are composed based on a majoritarian
principle which is contrary to the composition principle of other federal states such
as the U.S.A, Switzerland, Canada, and others. These federations employ the
composition formula which is principled on equality states whereby each of the
members of the federation (the constituent units of the federations) have equal seat
in the Senate.

Most federal constitutions have also shared legislative power between two
chambers, i.e., the House of People’s Representatives and the senate. Contrary to
this, the federal law making process is not bi-cameral as the House of Federation is
a non-legislative organ under the FDRE Constitution. Hence, there is no
institutional framework that enables all regional states to make meaningful
participation in the process of Federal Government land policymaking.

The Constitution also has no provision which requires the establishment of an

institution that might serve as a land policy coordinating body (allow the
involvement of regional states) at the national level. However, the involvement of
NNP, who are owners of land resources, who are sovereign and eligible to exercise

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self-determination rights up on land policy-making is unquestionable under the

Constitution. Hence, the absence of clear constitutional provision for the
establishment of NNP sensitive land policy coordination institutions doesn't mean
that the land policy making process should be monopolized by the Federal
Government.

The Constitution supports land policy formulation institutions, which promotes

active and formal involvement of representatives of NNP. In this regard, the key
question is to identify or choose an institution that has the utmost support to
represent NNP under the FDRE Constitution. The main institutions under
consideration are like HPR, HoF, CoM, Regional Council, and Regional
Executive. Regional states are the most relevant organ which represent NNP and
participate in the land policy-making process at the federal level. Their relevancy,
for example, can be inferred as, ethnic criteria, which is formally recognized under
the Constitution as NNP to be the principal formula that the nine regional states are
established.

Besides, the fact that the Constitution is a bargain between NNP and concerning
matters which are not negotiated and articulated under the Constitution are given
to the regional states, which is the residual power. Article 50 (3) of the
Constitution also recognizes the same. It stipulates that the State Council is the
highest organ of state authority. It is responsible for the People of the State, i.e.,
the NNP.

Finally, the high preference of regional states to represent NNP than Federal
Government also inferred from the FDRE Constitution which recognizes NNP as
the authors of the Constitution, the owners of land resource, and the holders of
sovereign power, and the holders of self-determination rights; allow delegation of
Federal Government power to Regional Government. The prohibitions of a reverse
delegation from Regional Government to Federal and other governments amplify
the relevancy of regional states to represent NNP in any affair, which includes
their interest in the land resource. Hence, the limitation of the federal land making
process justifies regional states' meaningful involvement in land policy/
lawmaking.

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V. COMPARISON OF SOME FEDERAL LAND LEGISLATIONS OF

ETHIOPIA

Since the 1990s the Federal Government of Ethiopia has enacted different federal
land laws that have been influencing the scope of regional states' land policy/law
making scope. The federal land legislations have two distinct classes of laws that
govern rural land and urban land. The legislations are Rural Land Proclamation
No 89/1997 and Rural Land Proclamation No 456/2005, and Urban Land
Proclamation No. 80/1993, Urban Land Proclamation No 272/ 2002, and Urban
Land Proclamation No 721/2011.

There are also other federal legislations which influence the land policy space of
regional states like the Expropriation Proclamation, Urban Planning Proclamation,
Industrial Parks Proclamation, Industrial Parks Regulation, and Urban
Landholding Registration Proclamation. But, these specific legislations are not the
subjects of comparison under this article, as they are enacted to govern specific
administrative, technical and strategic issues. They are not more concerned with
wide policy issues which can be considered as constitutional rights and powers as
to land resource. On the other hand, the above mentioned federal government land
legislations are more relevant for this article. The article is more concerned with
constitutional issues on the relationship between Federal and Regional
Government and the comparison is targeted to clarify the principles, nature, and
scope of the federal legislation and its implication on the power of regional states
as to land administration and land policy.

The main purpose of the comparison is to understand the extent of the regional
states and Federal Government role on land policy and law-making. The
comparison is essential to clarify the practical meaning of the phrase "land
administration in accordance with federal law" which is stipulated under Article 52
(2) of the Constitution. Besides, there is a significant time difference between the
enactments of the selected federal legislation. This is important to compare and
understand the relationship between Federal and Regional Governments legislative
power concerning land resource by taking into account the evolution of the federal
systems and political reforms. The selected legislations are also wide in terms of
their scope of application, content, and places as they are enacted to govern the
major policy aspects of both urban and rural land resource exist in all regional
states. Therefore, the selected legislations are relevant provisions to understand the

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meaning of land administration in accordance with federal law. In the following

two sub-sections, the author compares the rural land and the urban land laws.

A. FEDERAL RURAL LAND PROCLAMATIONS

In Ethiopia, since the introduction of the federal system, rural land administration
of the pattern of regional states has been regulated based on the two federal rural
land proclamations. These are Proclamation No. 89/1997 (which is already
repealed), and Proclamation No 456/2005. These two federal land legislations have
a significant difference in the scope of regional states' rural land law-making
power. First, this can be inferred from the definition provided under federal rural
land legislations for the term land administration. Accordingly, the first federal
rural land proclamation,23 defined the term “Land Administration” as the
assignment of holding rights and the execution of distribution of holdings. Under
the current federal rural land proclamation24, the term “Land Administration” is
defined as a process whereby rural landholding security is provided, land use
planning is implemented, disputes between rural landholders are resolved and the
rights and obligations of any rural landholder are enforced, and information on
farm plots and grazing landholders are gathered, analyzed and supplied to users.

The first federal rural land proclamation even if provides a short and precise
definition for the term land administration, it recognizes the existence of a wide
role at the hand of the regional states. Since the proclamation has considered the
regional states land administration roles to include a determination of policies on
the manner of assignment of rural landholding rights and the execution of
distribution of rural landholdings. On the contrary, the current proclamation has
provided a specific and narrow definition for the term. By doing so, this
proclamation narrowed the role of regional states on the land administration that
has systematically excluded determination assignment of holding rights and the
execution of distribution of holdings from the concept of land administration.

Hence, under the current rural land proclamation, land administration's role of
regional states as a process, after the substantive matters and policies on the
manner of assigning rural land is determined by the Federal Government. Under

23
Rural Land Administration Proclamation of the Federal Government of Ethiopia, Proc. No 89/
1997, Art 2(6)
24
Federal Democratic Republic of Ethiopia Rural Land Administration and Land Use
Proclamation, Proc. No, 456/2005

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the first proclamation, the land administration role of the regional states is not only
the procedure or process role to be played but also the determination assignment of
holding rights and the execution of the distribution of holdings. Thus, unlike the
first rural land proclamation, the current one is enacted based on an assumption
that the regional states have no/ low involvement on the determination of land
policy, which systematically widens the role of the Federal Government on the
determination of regional land policy.

There is also a substantial difference between the proclamations in terms of their

structural arrangement and contents. The structure of the first federal rural land
proclamation has encompassed 8 general provisions; the current one, however,
encompasses 21 detailed provisions. From this, it can be inferred that the first rural
land proclamation had recognized a wide regional state legislative role, and very
much limited Federal Government legislative role. The content of the first rural
land proclamation is also enacted based on the principle that the intervention of
Federal Government legislation is very much undesirable. This is inferred from
Article 5 and Article 6 of the first federal rural land proclamation.

Accordingly, Article 5 of the proclamation which is titled as “Conditions of Land

Administration", stipulates under its sub- article (1) the regional states shall
administer rural land in accordance with the general provisions of the
proclamation. Sub-article (2) requires each Regional Council to enact a law on
land administration for purposes of implementation of sub-article (1) of Article 5.
The next provision sub- article (3) stipulates land administration law of a region to
be in conformity with the provisions of laws on environmental protection and shall
observe the federal land utilization policies. Finally, under sub-article (4) the land
administration law of a region to confirm the equal rights of women in respect of
the' use, administration of land.

Article 6 of the proclamation which is entitled as “Contents of a Land

Administration Law" allows the regional councils to enact land legislation, by
respecting the following conditions. As per Article 6 (1), the regional land law
should ensure free assignment of holding rights both to peasants and nomads,
without differentiation of the sexes; as well as secure against eviction and
displacement from holdings on any grounds other than total or partial distribution
of holdings affected according to decision by the Regional Council. As per Article
6 (6), the regional law should provide demarcation of land for house-building,
grazing, forests, social services, and such other communal use shall be carried out
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in accordance with the particular conditions of the locality and through communal
participation. Most importantly, Article 6 (12) of the proclamation allows the
regional states to enact provisions, which are not inconsistent with the federal
proclamation, for other general or particular matters as found necessary under the
peculiar circumstances of the locality.

Thus, Article 5 and Article 6 of the first rural proclamation support the legislative
role of the regional states concerning land resource and administration. The
proclamation has simply provided general guidelines on the conditions and
contents of regional land administration. In other words, under the first rural land
proclamation, the land policy-making role of the Federal Government was very
much limited. The very assumption under the proclamation was the intervention of
the Federal Government is undesirable. The previous proclamation had provided
wide say to regional states to determine the appropriate land policy and execute the
same in context to their region.

On the contrary, the Federal Government has enacted the current proclamation
having detailed provisions. This proclamation is enacted by reversing the
assumption taken under the previous proclamation, which had given wide
recognition on the regional state land policy-making role. The Federal Ministry of
Agriculture and Rural Development is in charge to initiate the development of new
rural land policy ideas, and the amendment of the existing policy, as necessary;
under Art 16 of the current proclamation. The Federal Ministry is also responsible
to implement the rural land use and administration policies of the Proclamation.

Article 6 (6) and (12) of the first proclamation have recognized the policy-making
power of the regional states. On the contrary, under the current rural land
proclamation, the regional states have no legislative and policy-making room, to
accommodate their peculiarity at the regional level. Even if Article 17 of the
proclamation provides power to each regional council to enact rural land
administration and land use law, they have no power to deviate from the land
policy of the Federal Government as provided in detail under the proclamation. At
worst, Article 17 of the proclamation “recognizes" Regional Councils to enact
“rural land law” which consists of detailed provisions necessary to implement the
federal Proclamation.

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B. FEDERAL URBAN LAND PROCLAMATIONS

The first Urban Land Proclamation No. 80/1993 was passed before the inception of
the FDRE Constitution; by the Transitional Government of Ethiopia.25 The
Proclamation has introduced a new urban land policy in Ethiopia which is an urban
land lease policy. Proclamation No. 272/2002 repealed the Transitional
Government urban land proclamation.26 Under its preamble, the proclamation
states lease will be the cardinal and exclusive urban land-holding system. As
provided under Article 3, the scope of the proclamation applies to an urban land
held by the permit system, or by the lease-hold system. As an exception to the
scope of application of lease system, the proclamation under Article 3 (2) provides
legislative space to the regional states to decide as to the time, manner and
conditions for the applicability of lease system.

The current urban land proclamation is Federal Urban Land Proclamation No.
721/2011.27 The proclamation, under Art 5 induces all of the nine regional states of
Ethiopia to implement a lease system on urban land exists within their respective
boundary without exception. The proclamation provides detailed provisions
concerning the procedure of land administration via lease system including the
lease price, lease period, and other issues concerning urban land. The proclamation
is also considered the principal method of fixing lease price via “tender” under
Article 7, which is a modality of transferring lease of urban land to a bid winner
fulfilling the competition requirements issued based on the rule of market
competition of urban land tenure as defined under Article 2(9) of the same.

Similarly, Article 33 of the current proclamation requires the regional states to

administer land, based on the lease system and lease policy formulated by the
federal legislator, which is provided in detail under the proclamation. The
proclamation also allows the direct involvement of Federal Government Executive
organs both on the formulation and implementation of the lease policy.
Accordingly, under Article 32 Ministry of Construction and Urban Development
has the power to follow up and ensure the implementation of the lease system in all

25
Urban Lands Lease Holding Proclamation, Proclamation No. 80/1993,.Negarit Gazeta of the
Transitional Government of Ethiopia, Year 53, No. 40.
26
Re-Enactment of Urban Lands Lease Holding Proclamation, Proclamation No 272/2002, Negarit
Gazeta, Year 8, No 19.
27
Urban Lands Lease Holding Proclamation, Proclamation No 721/2011, Negarit Gazeta, Year 8,
No 19.

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regions. The Ministry is also in charge to prepare model regulations, directives,

and manuals for the implementation of the lease system.

From the above, it is clear that the federal urban land legislation before 2011 is
principled on the absence of Federal Government monopoly on the determination
of urban land policy. Such practice had allowed regions to select and implement
appropriate urban land policy by taking into consideration their respective interest
on land at the regional or local level. On the contrary, Proclamation No. 721/2011
has encompassed several detailed and mandatory provisions on the application of
the lease policy and system on all urban land in Ethiopia.

VI. CONCLUSION

The land law under the FDRE Constitution allows for diversity and also uniformity
of law and policy. Ironically, the current Ethiopian land administration programs
are highly affected by federal land policies and laws. Federal land proclamations
have already covered and determined land policies, based on which the law
expected the regions to administer the land. The proclamations provide the manner
and procedure of land access for investors, citizens; and land rights guarantee for
investors, and holders. The list of requirements and procedures are also provided,
which guide regional state on land administration viz., land transfer, consolidation,
tender, negotiations and so on. Surprisingly, the proclamations have also allowed
the intervention of federal executive organs (namely, Ministry of Agriculture,
Investment, and Construction and Urban Development); both on the formulation
and implementation of land policy in all regions of the Ethiopian federation.

Such heavy central bias present in the federal land legislation/policymaking

practice has created imbalances between the Federal Government and regional
state concerning land administration. This is the encroachment of regional states'
autonomy on land resources guaranteed by the FDRE Constitution. Land policy
interest of each of NNP, who are landowners and sovereign, is institutionalized
better at a regional level. There is no way to institutionalize NNP land policy
interest upon federal land policy/law-making process/. The HoF, even if it has
been assumed as representatives of NNP, it does not represent each of the NNP. At
worst, the HoF has no legislative role.

Regional states shoulder the utmost responsibility to protect and respect the land
resource policy interest of NNP. This is the reason why the FDRE Constitution

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provided land administration power.to the regional states. However, without their
involvement in land policymaking, the right to exercise self-government and the
right of NNP to self-determination is valueless and doubtful. By the same token, in
absence of such power, the regional states cannot properly formulate and
implement regional economic and development policies. As the land resource is
one microeconomic factor, which significantly influences and shape regional
economic and developmental policy options.

Hence, land law/policy-making involvement of regional states is indispensable; to

accommodate the distinct interest of NNP. And, in Ethiopia land administration
should not be guided by the interest of the Federal Government. Rather the federal
land law/land policy has to leave meaningful decision-making space for the
regional states. The Federal Government should also not ignore the stipulation of
the Constitution which explicitly stipulates the possibility of a delegation of
powers from the Federal Government to the regional states, not vice versa.
Ironically, in practice, the HPR has passed uniform and inflexible federally
dominated urban and rural land legislation/policy by ignoring constitutionally
recognized rights of NNP and procedure of delegation.

VII. RECOMMENDATIONS

The author provides the following recommendations. First, the provision of the
existing federal urban and rural land proclamations which already determined land
policy in a detailed manner should be revised. The provisions of the proclamations
that provide wide power to institutions of the Federal Government on the
determination of land policy should be amended. The amendment should give
meaningful decision-making space to each of the regional states. The amendment
should also oblige the government to consult the section of society to identify land
policy options in each region.

Second, it is essential to establish an inter-governmental relation (IGR) Institution

which serves as a forum for negotiation between federal and regional governments
on land policymaking. To this end, primarily there should be a political consensus
on the significance of establishing formal and democratic IGR institutions, in
safeguarding and promoting the land rights and interest of NNP under the
Constitution. The objective of the institution should be principled on the
accommodation of the specific land policy interests and policy options of each of

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the nine regional states. The procedure of the institution should allow each regional
state to make formal and independent land policy negotiations with the Federal
Government.

Third, the government should enact procedural legislation that ensures the land
policy formulation process of Ethiopia with meaningful participation of NNP. The
objective of the legislation should be principled on accommodating the different
views of each of NNP. Thus, the procedural rule should allow each NNP of
Ethiopia to reflect their voices concerning land policy options at regional, zonal,
local levels. The procedural rule should enable active and informed participation of
NNP who pursue their lives in urban centers/municipalities/ or towns.

Fourth, it is necessary to conduct a preliminary study that investigates the view of

the public and identifies key variables to make the consultation on land policy
options. The study should understand the economic as well as the political views
of NNP on the policy. The study should be conducted individually for towns/cities
by an independent body.

Finally, if the Federal Government is unable or unwilling to make amendment that

implements the above recommendations and suggestions regional states have to
challenge the Constitutionality of the federal land laws before the House of
Federation.

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