Rural Commons and the Ethiopian State.

• Author: Srur, Muradu

Introduction

This article examines the legal status of rural commons, a crucial aspect of the land question in Ethiopia. To this end, it analyzes Article 5 (3) of the 2005 Rural Land Law (1) that provides that "Government being the owner of rural land, communal holdings can be changed to private holdings as may be necessary." This legislative stipulation has received some treatment in literature, which opts to see its nullification on the ground of unconstitutionality. Yet, to the present writer, this legislative provision cannot be merely brushed aside as contrary to the tenets of the current Ethiopian Constitution. Instead, there is a need to appreciate the underlying historical thinking behind such provision that declares rural commons as the property of the state.

As shown in this article, the state's claim over the commons is based on a long standing historical thinking that any land and landed resource not privately enclosed is deemed to be part of the state domain; the state thinks that it is the owner of communal lands. The state's claim is not a benign one - the claim to title over the commons is not merely symbolic or is made in order to protect the interests of members of the people with full acknowledgment of their traditional title. It is rather a radical claim in the sense that the state's control over the territories especially in southern Ethiopia meant gross expropriation of communal lands, i.e., resources are made part of the government domain without invoking ordinary expropriation procedures which would require the state the recognition of the claims of the concerned peoples, establishment of public purpose and payment of compensation. The state's claim over the commons shows that the current land tenure of Ethiopia has not de-linked itself from past land tenure systems of the country.

The argument here is thus that there is a need to delve into history, both that of Ethiopia and other countries, to fully grasp the nature, justification and implication of this declaration of the rural commons as part and parcel of government domain to the disregard of the claim of the people who critically rely on those commons for their livelihoods. The argument here is not that the state should not take land from the people for various purposes. What is challenged here is the manner in which the state has been taking lands from the people in order to satisfy its need for land as well as the underlying property notion behind this taking. This radical state title over the commons, in addition to its encapsulation in the above legal provision, is reflected in government policies, plans and current practice of leasing out large amount of farmlands of the state to meet energy and food security needs of capital rich but land and water scare countries.

Such massive land transfers are being made on the arguments that the lands so transferred are 'unoccupied' or 'barren' or 'empty' or 'unpopulated' or 'underutilized', that the food and tenure security of the local populations is not affected, and that such lands leased out to agribusiness are part of the 75 million hectares of cultivable fertile land (out of which only about 18 million hectares is being cultivated by peasants) and that improvement of such underutilized lands transferred to investors would bring about immense benefits including technology transfer, employment and infrastructure development. In this process, the state's approach has been to totally reject customary rules pertaining to communal lands, which are considered inimical to modernization and impose on the people a particular notion of property in order to promote its own conception of modernization. The focus on the article is to examine the treatment by the Ethiopian state of land and landed resources held by agriculturalists and pastoralists but with special emphasis on the fate of rural commons in possession of the latter. The article draws on case studies on rural commons. And it also highlights a recent complaint filed on behalf of the Anuak people in Gambella, south western Ethiopia, alleging that the state is using funds by World Bank and UK Department for International Development to force them off their farmland in connection with an ongoing villagisation program and which the Bank's accountability panel referred to the Bank for investigation.

Part I examines the meaning and significance of communal land, showing the redefined nature of the commons in literature and their critical importance for the livelihoods of rural poor. Part II considers the historical development of the radical title asserted by the state over the rural commons in Ethiopia. And Part III searches for possible justifications for this overriding state claim based on the history of Ethiopia and some comparative experience. Such justifications have to do with the ideas of imperium, dominium and civilizing pre-modern people and the legal doctrines of improvement and of trusteeship derived from such concepts.

1. The nature and significance of the commons

   This part briefly explains the nature, and theories, governance approaches as well as significance especially for rural poor of the commons, which are understood in this article to mean natural resources such as grazing land and forests held and used for a variety of purpose by members of a given community and sometimes even by members of several adjacent communities.

   1.1 The commons under the 'old' and new thinking

   One may categorize perspectives on the commons broadly into two, namely the 'old' and new thinking. The former is articulated by Hardin and his followers using the famous expression-the tragedy of the commons-whereas the latter is developed by Ostrom and her followers. This sub-section provides a brief account of the way the two paradigms appreciate the commons.

   Under the 'old' thinking about the commons, Hardin's piece entitled 'The Tragedy of the Commons' comes to the surface. Hardin has argued in this article that the commons which include grazing land belong to everyone and thus ultimately to no one, which, to him, definitely invites desecration of these resources. Hardin assumes in this article that the commons are open for every Tom, Dick and Harry and that the commons without distinction are unmanaged. (2) To Hardin, a better policy option to this recipe for disaster is private property, private enclosure of some, though not all, of the commons. Hardin says, (3)

   ...the rationale herdsman concludes that the only sensible course for him to pursue is to add another animal to his herd. And another...and another...But this conclusion is reached by each and every rational herdsman sharing a commons. Therein is the tragedy...Freedom in the commons brings ruins to all...We might sell them off as private property. The tragedy of the commons is...averted by private property. Hardin gets support from Crowe who cites England's enclosure movement intended to avert " a tragedy of overgrazing and lack of care and fertilization which resulted in erosion and underproduction..." (4) Conceptually, the old thinking about the commons as embodied in Hardin's piece is not nuanced. Under the old thinking, communal lands are considered as conferring no individual access to and control over resources, necessarily requiring collective use, and the rules governing such resources were seen as prohibiting land transfers to outsiders. The commons were likened to resources under the state of open access, i.e., no property case.

   That attitude has now changed in literature. It is now a stereo-type to consider common property regimes as involving only collective production, as conferring the entire set of rights only to the group, as involving no tradability and being regulated by no norms and thus akin to open access resources. (5)

   The new thinking, which Ostrom has popularized, involves in nuanced conceptualization of the commons and it no more views the commons as resources left in norm-less condition. (6) Bruce says the concept of common property is often characterized by diversity of tenure regimes. (7) This means communal land tenure does not necessarily mean that members of the community would undertake production collectively. Production or use of the commons is not necessarily collective. Production is individual in some portion of the commons and it is collective in other portions. And common property does not mean that "the entire bundle of rights is given only to group as a whole..." (8) Communal property is property right held by a group and the nature of the property the group may enjoy can be ownership or rights less than ownership such as usufruct or lease. (9) Bromley succinctly puts common property as representing "...private property for the group." (10) Common property is "property of a group held as a common pool resource that group members use simultaneously or sequentially." (11) Communal land and other associated natural resources are ultimately controlled by the concerned community or clan to the exclusion of non-members. (12) Members do have individual and/or common access to those resources. The members transfer these access rights to their descendants. (13) There are occasions where communal resources are transferred to outsiders either in the form of sale or lease or outsiders are given access to communal resources in the form of sharecropping arrangements.

   Ostrom argues that the world is replete with non-tragic use of the commons and thus the issue is not whether the commons are feasible or how faster we shall privatize the commons but under what conditions and at what scale the commons can be feasible. (14) The direction we should go is not towards exclusion but towards finding an appropriate level or mix of governance of the commons to prevent spill over by outsiders and to prevent exploitation of some members from within. (15) Bruce contends that recent scholarship on common property as well as lessons learned from common resource...