Law, Social Justice & Global Development



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III. Justification

Governments in Ethiopia might advance three possible reasons in defense of their claim of ownership and control over rural commons. The first possible justification for such claim might be that the state is intervening in the commons under the dictates of the evolutionary theory of land tenure. In other words, the state is intervening in the commons just to correct possible imbalances in the course of customary land tenure changes. The second reason might be that the state is asserting dominion over rural commons under the guiding hands of the theory of the tragedy of the commons, i.e., such common resources have been reduced to open access resources for a variety of reasons, and that the state is rescuing those resources from depletion. And the third reason could be that the state is guided by the concept of imperium and dominium and its derivate ideas of improvement, trusteeship and civilizing the people on the commons. Sub-sections 3.1and 3.2, respectively, consider the first two reasons briefly and followed by extensive (including some comparative) coverage in the rest of the section of the third reason.

3.1 Evolution?


The evolutionists argue that land tenures in traditional societies today are evolving over time into individualization owing to such factors as population increase and expansion of commerce.84 Such individualization of land would clarify and simplify land tenure leading to enhanced efficiency. ``One hopes that in so far as individual rights are tradable, opportunities to trade will, over time, reduce inefficiencies and spread the gains from the property-rights creations…``85 The basic assumption here is that communal tenures are dynamic as opposed to the old thinking that they are eternally static. For example, Ayalew has documented how the Karrayu people who inhabit in eastern Ethiopia have redefined their traditional land tenure system in the face of decades of land takings by the central government for conservation and commercial farming purposes and intercourses with and demand for farmland by migrants.86The Karrayu used to be decidedly pastoral for it was a taboo in their custom to enclose land for private use.87 People and herds have to make intercourse with nature in the open field and collectively.88 Now they see themselves as semi-pastoralists since they now cultivate land, create private enclosures for grazing, and transfer land informally even to outsiders.89

The evolutionists claim that states need to intervene in order to promote certain ideals (i.e., prevention of oppression and allowing investment by outsiders) which might be undermined if the evolution is left to its own devices. So there is a need for governments to negotiate with the concerned communities or make interventions to meet the objective of making land available for investment activities by outsiders. The state intervention in the course of evolution might be required ``to limit predation or capture and to move out of an evolutionary dead end…``90 And the state might legitimately, but carefully, intervene in this communal land tenure evolution when there are ``glaring inadequacies (gender discrimination seems the most acute of these).``91Another justified entry point for state intervention in customary tenure rules is to ensure that land dealings by community leaders with investors benefit all members of such a community, not just the elders.92 Further, there is a need for state intervention in customary land tenure where due to conflicts there is ``a breakdown in the traditional rules and leadership structures``.93 Further, state intervention in customary land tenure is called for in cases where: there is ``a breakdown in the traditional rules and leadership structures``94 in the aftermath of wider conflicts, the social fabric of a society is disrupted due, for example, to HIV/AIDs pandemic that may lead to deprivation of access to land by widows95and the land rights of immigrants require protection.


Commentators do not have much faith in the evolutionists` call for government intervention in the commons. They think that such entry points might be good pretexts for state land grab. Bruce for one expresses his concern about massive land-grabs by the state under the color of asserting state title over community land and he says that the evolutionists` suggestion for state intervention` ``will be of little significance if such processes cannot be controlled…``96 Bruce concludes: ``current thinking is less sure of final solutions, more aware of the limits of law and state action, more respectful of indigenous systems, more participatory in its methods and more ready to accept diversity.``97 At a more general level, in addition to its assumption about universal unidirectional societal growth, this theory has been criticized on the ground that evolution of communal property is simplistic to fully explain property rights cases and that the evolution might lead to the division of land in favor of ``either elites or government officials`` and thus ultimately producing inefficient allocations of land.98

Moreover, in the Ethiopian context, the evolutionary theory lacks the power to explain the state of the commons because the theory tenure assumes the people on the ground have de jure say over their lands because such land and landed resources thus are their common property as a matter of state law. In the Ethiopian context, the evolutionists are misled by de facto land transactions made by the commoners. For instance, the adherents of this theory mistake de facto land transfers by communities to outsiders for de jure power. But these transactions, in the Ethiopian context, can be undone by the state any time since these land transactions do not have the blessings of the state. Even some of the land transactions which are made by the commoners with full knowledge of the fact that the state has sole despotic power over these resources and they are acting in a preemptory fashion, in the sense they want to earn money through transfer of their lands to outsiders before the dominion holder, the state, takes it away from them without any compensation.

Furthermore, the Ethiopian state in relation to the commons is not a neutral party in the sense that it is claiming ownership over any land and landed resources not privately held. In this condition, one cannot expect the state to let evolution take place in relation to the commons with some interventions as the need arises. The state seeks to reallocate the commons by itself and in its own terms not by the terms of the concerned communities. Both in the highland and lowland parts of Ethiopia, though for different reasons, the state sees the commons primarily as resources that meet its current overriding objective of boosting export earnings.

If, from the point of view of the people, the evolutionary theory is not a proper tool to fully explain the legal status of the commons in today`s Ethiopia, what other theories are out there to better explain the situation? This query leads us to examine the tragedy of the commons and the improvement narratives in the sections which follow. The two sub-sections below argue that the concept of modernization with its attendant individualized conception of land rights might be one of the underlying reasons for this confiscatory act of the state. This section in 3.2 deals with the application of the theory of the tragedy of the commons as invoked by the Ethiopian state to justify appropriation of the commons in the highland Ethiopia populated by peasants and then followed in 3.3 by examination of the improvement narrative as a rationale used by the state to appropriate the commons in the low land areas of the country inhabited by pastoralists, and such separate treatment is warranted because of the existence of a distinction in the reasons for the state`s appropriation of communal land resources of peasants and of pastoralists.







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