The Pluralist Approach in Ethiopia

The approach taken by governments of Haile Selassie (circa 1930–1974) and Mengistu Hailemariam (circa 1974–1991) in regard to law and development exemplified the modernist vision. These leaders epitomized what Reference ScottScott (1999: 4) calls “high-modernist” ideologues. Haile Selassie was an ideologue of the market. His government sought to create a uniform regime of property based on a modernization philosophy (Reference SingerSinger 1970). Hailemariam was an ideologue of planning. His government, also known as the “Derg” which means “council,” sought to create a uniform regime of property suited to a “communist” ideology (see Reference ClaphamClapham 1988).

Both governments had faith in the power of law to change society. They adopted a centralized uniform law that was intended to obliterate the multitude of local customs and practices in the name of national unity and development. Under Haile Selassie, Ethiopia adopted the Civil Code of 1960 and five other codes in the spirit of capitalist modernization (see Reference SingerSinger 1970). Under Hailemariam, the Public Ownership of Rural Land Proclamation of (RLP) announced “collective ownership of the means of production.” In both cases, the approach to rural land was what may be called “centralized formalization.” But neither government succeeded in effecting the sweeping changes that their reforms were intended to achieve in the face of tenacious local customs and practices (Reference CohenCohen 1987: 148).

Since the collapse of Hailemariam's government in 1991, the party in power, the Ethiopian People's Revolutionary Democratic Front (EPRDF), has promoted a pluralist vision. The constitutional documents it has adopted are founded on a multiculturalist vision of Ethiopia, “a nation of nations” (Reference NahumNahum 1997). State institutions have been restructured on the basis of ideas of federalism and the human rights of local communities, including the rights of ethnic communities to promote their cultures, languages, and traditions, and even to secede from the federation (FDRE Constitution : Art 39). The “command economy” policies of the previous government have been replaced with market-oriented agricultural policy (Reference CholeChole 2004: 192–208, 261–91).

The multiculturalist vision was first declared in a document called the “Transitional Charter of 1991.” With the mediation of Western diplomats, the rebel forces that overthrew Hailemariam's government negotiated its adoption (Reference CohenCohen 1992). The Charter's overriding political goal was to address the so-called “question of nationalities,” understood to mean the lack of equality among ethnic groups (Reference ZewdeZewde 2014). The Charter's vision was enshrined in the Constitution adopted in 1995. A federal structure consisting of nine states, each organized largely along ethnic lines, and the rights of nationalities to self-determination, including the right to secession, was enacted (FDRE Const. 1995: Art. 39, Art. 47). The preamble of the Constitution commences by identifying its makers as “We the Nations, Nationalities, and Peoples of Ethiopia,” as opposed to the conventional “We the People” common in other constitutions. This arrangement is conceived, according to the EPRDF officials, to maintain “unity in diversity.”

Legal Expressions Concerning Land

When the Constitution was drafted in 1994, there were two proposals on the table: to privatize land and to retain the state control introduced by the RLP (Constitutional Commission Minutes 1994). The proposal that resonated with the then contemporary mainstream view prescribed a regime of private and alienable property rights in land. The rationale was that such a regime would promote private investment and land productivity. But the drafters of the Constitution rejected it with respect to land and natural resources. They reasoned that unequal land distribution was the main factor in creating the unequal relations among ethnic communities that sparked the 1974 Ethiopian revolution (Reference Yemane-abYemane-ab 2016).

A regime of private and alienable land, EPRDF leaders argued, would revive the historical rift between the “center,” understood to mean ethnic groups dominating the economy and politics, and the “periphery,” marginalized ethnic groups (see Reference MarkakisMarkakis 2011). If such a regime were adopted, individuals and communities from the historical center would take advantage of the communities of the periphery due to the different economic and social conditions among the groups and the relative scarcity of fertile agricultural land in the areas of the center. For most communities of the periphery, the dominant ideological constituencies of EPRDF (see Reference HaileHaile 1996), any proposal for a regime of private property in land triggered memories of the baneful past. Despite efforts at persuasion by Western financial institutions, the influential figures in the constitutional drafting bodies held that the land redistributions and state controls introduced by the RLP were too dear to be traded for privatization (Minutes of the Ordinary Sessions of the Constitutional Commission 1994).

Thus, the process of drafting the constitutional property clauses was aimed at striking a balance between the two views. Recognizing private property in the spirit of a market economy, a clause stipulates that: “Every Ethiopian citizen has the right to the ownership of private property” (FDRE Const.: Art. 40). “Ownership of private property” is defined as “the right to acquire, to use and, in a manner compatible with the rights of other citizens, to dispose of such property by sale or bequest or to transfer it otherwise” (FDRE Const.: Art 40). The term “private property” is defined as: “any tangible or intangible product which has value and is produced by the labor, creativity, enterprise or capital of an individual citizen, associations which enjoy juridical personality under the law, or in appropriate circumstances, by communities specifically empowered by law to own property in common” (FDRE Const.: Art.40(2)). The government is charged to ensure “the right of private investors to the use of land on the basis of payment arrangements established by law” (FDRE Const.: Art. 40(5)).

Addressing the “question of nationalities,” another clause stipulates that ownership of land and natural resources is vested in the state and in the peoples; that land is the common property of “nations, nationalities and peoples”; and, that land shall not be subject to sale or other means of exchange (FDRE Const.: Art.43(3)). This was the most debated constitutional clause among politicians and scholars (see Reference AbegazAbegaz 2004). The first element of the clause has been widely understood to mean that ownership of land is vested exclusively in the state (Reference Adal and AssefaAdal 1999: 168). Hence the conventional folk view that “maret yemengist new,” “land belongs to the government,” in Amharic. No clear official interpretation has been rendered of what the phrase “land is the common property of the nations, nationalities and peoples” means. That land shall not be subject to sale or other means of exchange means that “land cannot be sold by anyone and is therefore not a marketable commodity” (Reference NahumNahum 1997: 161).

Despite this ban, however, informal sales and exchanges of land, often disguised as sales of buildings and plants on the land, bequests among family members, and rentals are ubiquitous, especially in rural villages close to towns and cities and other localities where land is scarce (Reference GebreamanuelGebreamanuel 2015: 110–16). Since Article 40(3) does not limit private ownership or the commercial alienability of immovable things and permanent improvements made on land, rural dwellers often sell land under the pretext of a sale of the immovable things and improvements they have added to the land.

Two further constitutional clauses, in particular, envision egalitarian access to land and protections against the eviction of rural dwellers. The first of these clauses stipulates that: “Ethiopian peasants have the right to obtain land without payment and the protection against evictions from their possession” (FDRE Const.: Art 40 (4)). The second clause stipulates that “Ethiopian pastoralists have the right to free land for grazing and cultivation as well as the right not to be displaced from their own lands” (FDRE Const.: Art. 40(5)).

These two clauses are the least effective. The peasants’ and pastoralists’ rights to free access to land envisage, given the virtual absence of unoccupied land suitable for agricultural uses, redistributions of the lands held by farmers to landless peasants and pastoralists free of charge. However, there has not been any serious effort to redistribute rural land over the last two decades, save for sporadic and politically motivated ones (Ethiopian Human Rights Council 1997), because of the small attention that policy makers give these rights. This is partly due to the rising popularity of “market competitiveness,” “security of property,” commercial farming, and the ideology of neoliberalism more generally.

To be sure, the redistribution of rural land to implement these rights can be an intractable challenge. The rural population, approximately 80–85 percent of the about 100 million national population, is increasing. Agricultural land, consequently, has become scarce, and an increasing number of rural dwellers, especially youth, are becoming landless. The nonagricultural sectors of the economy are not growing fast enough to employ the rural landless. Under these conditions, land redistribution could lead to the fragmentation of landholding and create uncertainties and instability.

The right to protection against eviction is eviscerated by officials’ expropriation of rural lands for urban development, commercial farms, plantations, industrial-zones, and other commercial enterprises (see Reference GebremichaelGebremichael 2016). According to the statutory law, officials can expropriate rural land for “any better development purpose,” with compensation paid only for crops, plants, and similar improvements on the land (Expropriation Proclamation : Art. 3.1). This policy has threatened the lives and livelihoods of rural dwellers, especially after a global wave of agricultural land deals began to occur after the 2008 price spike in global food and commodity markets (see Reference ShepherdShepherd 2013).

In the last 10 years alone, Ethiopia has leased out more than 3 million hectares of farmlands—an area roughly the size of Belgium—to national and multinational corporations for large-scale commercial farms and mega plantations (see Reference RahmatoRahmato 2014). Although only a small fraction of this land has actually been developed (Reference BurgisBurgis 2016), according to a document from WikiLeaks (2009), the national government officials plan to negotiate and offer about 3 million hectares of additional rural land for such leases.

Statutes dealing with land are also marred by competing visions. The rules governing horizontal property relations, such as classifications of goods, nuisance, possessory actions (actions to enforce possessory right), petitory actions (legal actions to enforce ownership rights), and transfers and acquisitions of immovable properties stem largely from the rules set forth in the Civil Code (see Reference AbdoAbdo 2008). But the statutory rules governing the ownership and alienability of land and the resolutions of land disputes stem from the state ownership regime set forth in the RLP (see Reference Crewett, Bogale and KorfCrewett et al. 2008: 15–17). Nominally, state governments wield the power to enact laws and to regulate land use (FDRE Const.: Art. 51(5)). However, the content of the laws is the same across the states, because the central authorities exercise de facto control over local authorities by means of the political party structure (see Reference AbbinkAbbink 2009). Thus, laws governing expropriation, dispute resolution, regulations of land use norms and practices, and the registration of rural land are more or less the same across the country.Footnote ³

The Rural Land Registration Initiative

Ethiopia's land registration initiative is one of the most ambitious efforts to standardize local land customs and practices. It was cast in broad policy terms as an initiative intended to secure the land titles of smallholder farmers and pastoralists, to encourage gender equality, and to stimulate the conservation of land and natural resources (Reference RahmatoRahmato 2009a: 181). A general framework for implementing the program was formulated in a statute enacted by the federal government (Rural Land Administration and land Use Proclamation 456/2005), and state governments adopted laws and regulations consistent with the proclamation to carry out the registration of all rural lands within their respective territories. Unlike the system of registration envisioned by the Civil Code (see Civil Code of the Ethiopia 1960: Book III, Title X), which was to be implemented by expert civil servants, the current system of registration has been implemented by lay members of communities through localized processes anchored in villages and carried out in several rounds and phases. The first round of the first phase of the program, covering the areas occupied by smallholder farmers, has been completed in most parts of the country (see Reference DeiningerDeininger et al. 2008).

Local administrators registered plots using traditional tools such as ropes to survey, measure, and record information about the size, location, borders, use and names of proprietors of plots of land. The register was supposed to include encumbrances, such as easements and covenants, although that has not occurred in practice. In the districts where I conducted field studies, a committee consisting of five people called “Kore Shalagi Lafa” (Committee of Land Survey) was constituted for every village to survey, measure, and record such information. The members were elected by simple majority vote of the village community for a term of 4 years, renewable for another such term. Every such committee had a chairperson and secretary, both of whom had to be literate as they were charged with the task of making written records.

Information collected through surveys was recorded in a template distributed by the Central Bureau of Rural Land and Environmental Protection to its local offices. The template consisted of rows and columns in which information about the size, borders, uses, and names of proprietors of plots were recorded. The recorded information was submitted to the local office of Rural Land and Environmental Protection, and that office issued certificates that bore the information submitted to it by the committee.

If a plot was a common holding of spouses, the certificate bore the names of both spouses. Plots of land that belonged to the community as a whole, such as open fields and common grazing areas, were to be registered as “common land,” and certificates in respect of such plots were to be deposited with a person elected by the community to keep in trust for the community. Both the committee and the office kept registers that contained the information collected by the committee and submitted to the office. The registers were to be used in case of any inaccuracies, disputes, and disagreements that might arise.

The second round of the first phase, which deploys modern tools of information technology such as the Geographic Information System to upgrade and expand the databases developed during the first round, has been launched in some areas where the first round has been fully completed. The tasks of measuring and recording land information in this round have been outsourced to short-term consultants. According to the government's plan, a second phase of registration, which will cover areas of land used by pastoralists and semi-pastoralists, will be forthcoming.

Inconsistencies of Land Customs and Registration

The register of property being implemented in Ethiopian has been crafted in a set of templates of fixed rows and columns to record information about plots (farmland, residence, common area, and location), the corresponding title (use right, leasehold), and the subject of the title (use-right holder, leaseholder, and spouse or spouses). It is premised on what Reference ColdhamColdham (1978: 98) called a “dangerous assumption,” which is the theory that customary interests are congruent with formal land rights. Although the templates are uniform across the country and the register is supposed to remain stable and a fixed source of authoritative information, customary property interests in rural land are local, overlapping, and embedded in changing social relations (Reference BerryBerry 1993). Thus, what the development agencies prescribe under the rubric of “formal recognition” of customary property interests actually changes those interests, leading to complex outcomes instead of standardizing local variations.

Some general observations about Ethiopia's rural society and land are important to illuminate the lack of congruence between registration and customary property interests and the complex outcomes of registration. The rural dwellers consist mainly of communities of sedentary farming, mixed farmers, pastoralists, and hunter-gatherers organized around an administrative locus of village, known as “Kebele,” that the Derg government constituted through its infamous “villagization” program (see Reference PankhurstPankhurst 1992).

Subsistence farmers, who constitute 90 percent of the rural dwellers, typically have four types of land: homesteads, farmlands, semi-common, and common lands. The homesteads are household residences, while farmlands consist of plots dispersed across the entire area of a village. The 1975 rural land redistribution was made so that each household would acquire plots assessed not only in terms of size but also fertility, resulting in dispersed plot distributions (Reference Rahmato, Rahmato and AssefaRahmato 2006: 3–11). The average household cultivates less than 2 hectares of land, fragmented into about 2.3 plots (Reference GebreselassieGebreselassie 2006: 4). The semi-common lands are open to all members of the community or subgroups of the community at certain times and for certain purposes, such as grazing calves and cows, funerals, and other social functions. The common lands are generally open to all members of the village.

Kebele administrators usually consist of a chairman and council comprising a few individuals who are nominally elected from among the members of the village. In theory, a Kebele is part of the formal government, and the administrators are supposed to govern on the basis of official policies and laws. Taken at face value, this and the official rules vesting “ownership” of land in the state might suggest the absence of customary property interests in land. However, administrators act on the basis of local customs and norms as well as local conceptions of the official laws. Disputes over land among rural dwellers are typically submitted to elders in the neighborhood, and only if the elders fail to resolve them are they submitted to the administrators and courts.

Pastoral communities constitute about 10 percent of the entire population, but they occupy or claim title to about 61 percent of the landmass (see Reference RedaReda 2014). Even though an area may be vacant at a given time, a community has territorial claims. Formal Kebele nominally exist in the pastoral and hunter-gatherer communities, which also have other parallel and more organic social structures that fulfill administrative and judicial functions.

The rural land regimes are quintessentially local, changing, and embedded in social relations governed by a hybrid set of official and unofficial regimes (see Reference RedaReda 2014). Communities that change their customs by deliberate design are common. The Borana pastoral community in southern Ethiopia, for instance, “spend much of their time reviewing their culture (aadaa), with deliberate intention to modify their customs and, if necessary, introduce new laws” primarily through the Borana Gada institutions, an endogenous age-grade-based social structure engaged in a continuous process of norm-making and revision (Reference BassiBassi 2005: 103).

Borana land customs are connected to water, labor, and other elements of the social relations. The connection among customs, authorities, and practices governing water wells (or boreholes) and land among the Borana is important in understanding the extent of local variations and the complex problem of implementing a standardized scheme of land registration.

The customary authorities and practices governing Borana lands, as well as water wells, are set by traditional authorities ranging from “Abba Olla” (“father of village”) all the way up to the general assembly of the entire Borana community, called “Gumi Gayo” (general assembly), within the broader traditional institutions of Gada (see Reference Dhal, Megerssa and Pa'lsonDhal and Megerssa 1990). The Borana customs and practices regarding boreholes involve different authorities, norms, customs, and practices. All adult males of a village community dig boreholes collectively, but the person who is said to have spotted the location first, known as “Abba Ela,” “the father of the well” in the local language, Afan Oromo, has certain exclusive rights and privileges. The borehole is named after him in perpetuity and his (and his heirs’) cattle have priority in accessing water from the well. He wields a venerated authority over decisions regarding the upkeep and cleaning of the borehole, establishes priority of access to the boreholes, and imposes collective contributions of labor and money for the upkeep of troughs and the surrounding areas. The authority to regulate the number and sequencing of the herds that access the borehole belongs to another person called “Abba Herega,” “the father of the accounts.” These two traditional authorities govern the use of boreholes within the broader framework of the Gada structures that also govern the access and use of lands.

Rights and social relations over boreholes and the rights and social relations over land are deeply interconnected, but the law envisions the registration of all rural land with the assumption that the right to access the boreholes can be isolated from land rights and treated as an easement. Treating access to the boreholes as easement will have significant implications. It will impose a binary legal relation and a hierarchy between ownership and encumbrance in Borana legal culture, where property relations are nuanced and complex. This could disrupt the existing relations among the various authorities in charge of the boreholes, those in charge of lands, and the public with respect to the governance and use of land and water. It can also ossify existing entitlements and power relations.

Another complex problem concerns the changing local land use and social relations because of migrations of individuals and households across communities. Movement usually occurs from a densely populated to a less densely populated area. While households in sedentary communities where land is scarce move to pastoral and hunter-gatherer areas where land is less scarce (see Reference WatsonWatson 2006), communities in the latter areas are also shifting to livestock herding and sedentary farming economies (see Reference Gebre, Negatu and AdalGebre 2004). These processes shape (and are shaped by) population growth, conflict, drought, ethnicity, the state, aid organizations, and combinations of other natural and man-made factors (Reference Helland and BabikerHelland 2002: 47–66). Similar factors affect local land regimes and social relations across Africa, and the changes involve conflict, cooperation, and redistribution of power and property among social groups (see Reference BooneBoone 2013).

The question then is how registration affects these diverse, changing, and overlapping land rights and social relations. In the particular case of the Ethiopian initiative, a uniform template of registration formulated by central authorities cannot accommodate the particularism of diverse local land customs and practices. Although, as Reference MiskinMiskin (1950) notes, it is theoretically possible to devise a scheme of registration that fits the idiosyncrasies of a local regime, designing one to suit every local regime would result in multiple systems of registration. Not only would this be costly, but the registration would be superfluous because local land regimes are internally formal (see Reference SmithSmith 2009: 7–12). Registration can never be a merely formal recognition of customary property interests. It creates new property, forms of authority, and social relations that may be incompatible with the existing structure of interests, powers, and privileges of the myriad of traditional authorities. In short, customary property interests are not just a set of property rights, but also a set of norms about how property rights change, including procedures for such change. And it is hard to adequately capture each and every customary property interest and to ensure that ongoing shifts in a custom are reflected in the register of properties.

The constitutional limitations on the alienability of land rights, discussed in the previous section, also raise the question of how official rules affect diverse and flexible local land regimes. Although the practical significance of constitutional rules is limited, the limitations can potentially lock into place the flexibility of land rights under local customs and practices. If registered interests in land in rural areas were capable of being alienated through local market and social exchange processes, social change could be accommodated. The next sections discuss the social impact of land registration in more detail.

The Failure to Recognize Customary Interests

The customary property interests of some individuals were sidelined during the initial processes of registration and subsequently in the course of deciding disputes over land titles. The main reasons were the uniform mode of the registration and the shift made by judges toward applying the doctrine of indefeasibility of title certificates strictly—certificates are conclusive evidence of title (see Reference CookeCooke 2003: 99–122). Despite their statist ideologies and formal laws, courts under the government of Haile Selassie and the government of Mengistu Hailemariam tolerated customary practices and transactions, creating an avenue to recognize and enforce interests in land arising from local customs and practices.

The courts’ approach changed in 2008, when the highest court, the Federal Supreme Court, rendered a precedent (Gebrehiwot v. Dubarge et al.) requiring registration as a precondition of the validity of contracts pertaining to immovable things. It thus effectively outlawed the recognition and enforcement of real rights to immovable things that were not registered (Reference HerouiHeroui 2008). By reinterpreting Article 1723 of the Civil Code (Reference HerouiHeroui 2008), the court ushered in a silent but fundamental shift in the approach to customary practices that is in tension with the official pluralist vision—the recognition of customary interests in land. Although the precedent was rendered in a case that involved the unregistered sale of a house, lower courts in rural areas have adopted the new approach, especially in the areas where the program of registration has been implemented.

The land registration, coupled with the courts’ approach to the indefeasibility of formal land title, has had a perverse impact on the customary interests. A number of cases confirm that the registration disadvantages individuals and communities that have relatively limited access to the formal laws and government services (see Reference Quisumbing and KumarQuisumbing and Kumar 2014). The following is an account of one such case.

Meskerem was a young woman of about 20 years old.Footnote ⁴ She lived in a rural village on the outskirts of Batu town, Oromia. On the day of my interview with her, she was at the district court along with her mother to hear the outcome of litigation between her and her husband about their divorce and division of their common property. The property consisted of chattel, grains, and a plot of land. Meskerem did not have a lawyer and neither did her husband.

The court validated decisions that had been rendered by a council of local elders on the divorce and division of grains and chattels, but it rejected Meskerem's claims with respect to a piece of farmland. She believed that her in-laws had given her the land as part of “handhura,” a local customary practice whereby in-laws donate property to a newlywed couple. By the customary practice of the community, the piece of land was a common marital property, and a share of it belonged to her. But the court reasoned that a certificate of registration was conclusive proof of title, and that since the particular land she claimed was still registered in the name of her in-laws, she had no enforceable right to it. If she had had the gift registered with the office of registry in her name or in the name of her husband, the court might have enforced her claim. Meskerem's mother explained that to ask one's in-laws for a transfer of registration, which involved travel and other processes, would create a serious breach of trust between a woman and her in-laws.

According to the judges of the district, courts relied on certificates for proof of title except in cases pertaining to lands in areas where the registration program had not been undertaken.Footnote ⁵ They would not enforce claims of unregistered titles or customary interests unless the plaintiff impugned the validity of the certificate on the grounds of fraud, duress, or mistake. These are the only legally permissible grounds for a court to invalidate a certificate of land title.

Meskerem's case raises two related questions: How often do customary interests go unrecognized, and do the outcomes of registration in terms of clarity and security of land rights in the general scheme of the economy and society justify the failure to recognize customary interests? Meskerem's was not an isolated incident. My fieldwork revealed a number of cases of selective legalization, the recognition of some interests but not others. Similar phenomena have been observed in other African settings (see Reference ColdhamColdham 1978).

The second question concerns deeper issues because a cost-benefit formula presumes commensurability of incommensurate values, that is, the idea that we can measure the cost and benefits of registration by attributing a monetary value to the outcomes of registration. To conclude that the benefits of registration outweigh the problems faced by the people whose land rights go unrecognized, we must assume that the benefits and the losses can be quantified and compared. However, not only this assumption raises profound moral and political questions about the distribution of property and power. The comparison and normative conclusions drawn from the cost-benefit analysis, often on the basis of data gathered in the form of opinion polls, also raises questions about accuracy and reliability. Furthermore, the idea that a higher benefit gained by the majority justifies losses sustained by a minority is problematic, especially from the standpoint of human rights.

A related point concerns the efficacy of the formal law. If the law of registration and the doctrine of indefeasibility gain traction, local customs may change in a way that conforms to the law. If customs conform to the law, people like Meskerem who acquire land rights through local customs will be able to get their property interests registered or that the customs will cease to function so that marriage arrangements like Meskerem's will not entail a gift of land rights. Nonetheless, even if the land customs conform to the law, the failure to recognize customary interests belies the pluralist ideology—the belief that registration, among other things, recognizes customary interests and promotes the rights of women and other vulnerable groups. Land registration is likely to change the land customs and practices, particularly the customs of dowry and other traditional practices that involve the sharing of land and land-related resources in relationships characterized by trust and reciprocity.

But the outcome could also be ineffective formal laws, as indeed was the case with the Civil Code. The ineffective formal law would mean, among other things, that the courts would not apply the doctrine of indefeasibility of certificate of title, and that people like Meskerem will be able to enforce their land rights despite the lack of a certificate of registration. Indeed, ample researches show that legislative efforts to standardize local land customs in sub-Sahara Africa rarely produce the intended outcomes (Reference MooreMoore 1998).

Meskerem's case points to a further basic question about land registration: Having a certificate of title does not guarantee that land registries and courts cannot manipulate the land records and the rules and standards to attain a particular outcome. Even if the formal law becomes effective, and people like Meskerem get their customary interests registered, outcomes of land disputes may not be particularly certain or predicable. Instances where courts and land registries annulled certificates of title for legal, illegal, and nonlegal reasons were common.

The following is a land dispute that involved registration and decisions by courts, committees, and combinations of official legal rules, and unofficial regimes illustrating how the registration can be a selective legalization of rights and outcomes of disputes over registered land can be protracted and costly.

An elderly couple in the village of Kal'o Kabit of Dugda district rented a parcel of their farmland to another person (the Renter).Footnote ⁶ The rental agreement was neither put in writing nor registered by the administrators. The Renter had been cultivating the land for about 8 years and was able to get it registered in his name during the first round of the land registration program. When the couple became aware of this and complained about it, the local office of land registry rejected their request to cancel the certificate and to transfer the registration to their names. The couple then sued the Renter in the trial court, which also rejected their claim. The couple appealed the decision to the appellate court, which was located about 100 miles away from their residence, and the appellate court remanded the case, instructing the lower court to have the matter investigated by a committee.

The trial court accordingly constituted a committee, which reported that the couple had held title to the land for more than 20 years before the onset of the land registration initiative in the locality. The Renter was cultivating the land pursuant to an informal (oral) rental agreement with the couple for about 8 years before the registration. Based on the findings of the committee, the court annulled the Renter's title certificate and ordered registration of title to the land in the couple's names.

The plaintiffs in this case asserted unregistered title against the defendant's registered titles. This situation resembles Meskerem's claim. The reasoning of the appellate courts in this case, however, was different from that in Meskerem's case, in which the court rejected her claim for the recognition of a customary interest against her in-laws’ registered title. In this case, the court annulled the Renter's registered title even though there was no claim (and proof) of fraud, mistake or duress against the Renter. This was, according to the opinion of the judges, due to the fact that the plaintiffs’ claim derived from title granted by the formal local administration, while the issue in Meskerem's case concerned a local custom.

In cases of disputes over registered land titles, especially claims contesting the validity of a certificate of title, courts generally refer the disputes to the office of land registry to find the facts. The office ordinarily convenes a committee of inquiry called “Kore Kulkulesitu,” or “investigation committee,” consisting of representatives of the local offices of public prosecution, agriculture, clerks of local court, and a few others. The committee then goes to the location of the disputed parcel and talks to the village administrators and the parties to determine the matter. The findings of the committee usually rely on information and evidence supplied by the village administrators.

Such investigations are lengthy. The village administrators do not have a reliable record of land titles, and the influence of favors, connections, and briberies conditions the quality of their services, investigations, and inspection of the evidence. The contesting parties have various ways to influence the outcome at various stages of the dispute-resolution process. One party may be able to influence the village administrators while the other may have connections at upper levels of the government. Since the decision processes involve multiple offices and officials, it may be hard for any single person to bribe or unduly influence the entire processes.

In influencing the outcome of land dispute in the wider process, a local chief who wields influence over the local administration may fare less well than the widow whose son works at the bureau of land administration. The multiple avenues for contests and appeals in the formal process increase the prospect of different outcomes. Furthermore, since the individuals and institutions in charge of deciding disputes have views and interests that may not be in line with the law and legitimate interests of the parties, outcomes do not always match the certainty and predictability attributed to formal land titles.

Land registration can create land disputes and costly dispute resolution processes without necessarily leading to qualitatively superior outcomes. Because legal rules are largely indeterminate, even in Western legal culture (see Reference Llewellyn and ChrissLlewellyn and Chriss 2008), they rarely produce the sort of certain and predictable outcomes that are often attributed to them. The indeterminacy is compounded in Ethiopia's land dispute cases because of arbitrary judicial discretion (Reference GabisaGabisa 2015: 301–13), an overwhelming backlog of cases at the courts, the courts’ lack of human and technical resources, and the influences of local traditional authorities in a long and protracted dispute resolution processes (see Reference MequanentMequanent 2016: 173–76).

Changes in Relative Bargaining Power

Local land customs are part of the background norms and institutions that govern rural land rights and shape bargaining processes in land rentals, sharecropping, farm-labor, and related exchanges (Reference Ensminger, Drobak and NyeEnsminger 1997: 169–70). They shape rural land use and land-related transactions. However, local land customs can be complex and unfriendly from the standpoint of an outsider, and the registration is intended partly to simplify this complexity and promote a broad-based and impersonal land market. In addition to promoting a land market, the registration is expected to protect the interests of the poor, women, and other vulnerable groups and enhance their bargaining power in land transactions. Field evidence shows, however, that registration may reduce the relative bargaining power of the poor and less well-off rural dwellers in land rental agreements.

One of the people I came across during my field research was a 42-year old man named Dima, a father of six children.Footnote ⁷ At the time of our conversation, Dima was looking after a vegetable farm of about four hectares that belonged to an investor from Addis Ababa, the capital city. There was a generator and a water pump for bringing water from a nearby pond to irrigate the farm. Dima was hired to look after the farm and the farm tools for a monthly salary of 450 Birr. He worked at the farm only during the seasons when he did not work on his own farm, which he worked seasonally because he could not afford a generator and water pump and had to rely on the rains.

Dima did not have much trouble getting a certificate for his land titles, but he believed that some members of his village had a hard time getting theirs. “You had to knock on many doors of the members of the committee and the chairman and other officials during the land registration process to make sure that parts of your farmland would not be registered in the name of somebody else or kept out of the survey because registration could entail higher taxes,” Dima noted. Apparently, some farmers did not want to have their entire holding registered because of concerns about land taxes and other matters.

Dima was not entirely happy with all of the changes that had surfaced in his community. He thought the registering land, leases, and rentals would shift bargaining power in favor of the “investors”—the commercial farmers mostly from urban centers who came to rent land from smallholder farmers—who were well-versed in formal processes and well-connected with the local officials. Before the registration was implemented in the rural communities, land rental agreements were governed by customs and practices that were more favorable to the subsistence farmers than to investors.

Under the prevailing custom, rental agreements were normally oral, and farmers negotiated the terms before, during, and after concluding the agreements. The extent of negotiation and bargaining over rental arrangements depended on facts that neither party could have known at the time of the initial bargaining. Subsequent events affected subsequent negotiations and bargains. If the investor harvested or was likely to harvest more than anticipated, for instance, the farmer would likely seek to renegotiate the arrangement. But if the harvest went bad or was likely to go bad, he might forgo part of his initially agreed rent. A farmer could seek early termination, additional payments, and various forms of support from the renter if he faced unexpected difficulties, significant social or family events, or mishaps. If the farmer could not afford the expenses for his children's school or medical fees or seed and fertilizers for his farms or wedding and funeral expenses for his family, for instance, he would ask for support from the investor. The investors rarely refused such requests, because, by custom and tradition, the farmers were normally entitled in such instances to modify the rental terms.

Under the registration laws, land rental and exchange agreements must be written and registered with a government office. This requirement has made it harder for farmers to renegotiate terms and benefits they might have claimed according to customary practice. The requirements of writing and formal registration mean that courts, and not necessarily traditional authorities, enforce rental agreements. Investors can now hire lawyers and influence courts, whose processes are relatively cheaper and more accessible to the investors than to the farmers. Or, so Dima and some of my other informants thought.

The changes in bargaining power due to changes in background norms affect the structure of rural land markets, mainly rental agreements, and the relative welfare of the parties. In theory the changes should not matter, because each party should be able to anticipate the changes and adjust the rental terms accordingly. Under the customary regime, the investor would anticipate future costs in setting the rent, and the farmer under the formal regime should account for what he would forego because of the changes in the background norms. But the different initial endowments in general and the conditions of subsistence farmers constrained by social norms and vicissitudes of nature now create significant differences in the course of bargaining.

For subsistence farmers, offering farmlands for a profit is an exception to the social norm of personal virtue. The “good farmer” cultivates his farmlands, and how well he cultivates establishes his social standing and civic status in his community. There are social norms against land rentals. A farmer who rents out his farmlands to sit idle is considered socially unworthy, even if the rental earns him higher gains than what he could have earned by working the land. “Upright” farmers would offer their farmlands for rent only if they faced a serious and immediate need of cash, or if they could not cultivate their lands because they could not afford farming inputs, such as plow-animals, seed, and fertilizer. A widow or any other farmer who could not cultivate her farmland because of age or illness could rent out farmlands without offending social mores.

Not every rural dweller upheld the social mores against rentals. Mores also change, and they have changed, especially in areas close to towns, where rentals for profit are becoming more common. Even sales of rural land that occur under the shadow of informality are common despite the official legal ban (Reference Rahmato, Ubink, Hoekema and AssiesRahmato 2009b: 50). Also, not every subsistence farmer could command superior bargaining power to every investor under customary arrangements. An investor might be able to influence the traditional authorities. Similarly, a subsistence farmer who had a good network in the government might be in a far better position than an investor to succeed under the formal regimes.

Shifting the Power of Decision Making

The land registration initiative is one place where the Ethiopian government attempts to assert authority over local regimes in rural communities (see Reference ChinigoChinigo 2014). One outcome of the registration is to shift power from local social organizations, such as households, heads of households, chiefs, and village-councils, to state officials. Researchers point out that the authorities have used the land registration program to achieve specific political objectives. Reference RahmatoRahmato (2009a: 181–201), for instance, indicates that officials used the land registration processes to reward supporters and punish opposition and supporters of the opposition political parties following the controversial elections in 2005.

Some of my informants also described situations in which the registration deepened their insecurity, leading to outcomes that feed into the broader scheme whereby local and global elites and powerful corporations extract surplus from rural societies in what Reference KennedyKennedy (2012: 210–16) calls “perverse political economy.” A farmer noted, “before the registration came about, if you worried about someone encroaching your boundary or title, you would inspect the physical land and see who was doing what. But since the registration, someone can tamper with the record of your title at the office in town, and you would not even know about it unless you went to the office and were able to read your records or have connections in the offices.”Footnote ⁸

Proponents of registration think that a registered title is more secure than “informal” title. This is why advocates of the human rights of women and other vulnerable persons attempt to empower these social groups through land registration initiatives. Nevertheless, the opposite may also be true: formal regimes can be less secure than local customs and practices. Reference Nyamu-MusembiNyamu-Musembi (2007) documents that land registrations worsened the land rights of women and other vulnerable persons in Kenya because of insecurities caused by the formal regimes. Reference LaversLavers (2017) cautions against Ethiopia's attempt to solve structural social problems, such as gender inequality, merely by land registration (Reference LaversLavers 2017). The attempt to solve structural social inequalities through formal legal equality can legitimize and entrench existing structures. The problems of gender and other social inequalities require serious reforms, cultural changes, and the restructuring of power relations within the household, community, and the society more generally. In the absence of these changes, women and vulnerable persons may find local regimes more beneficial than formal regimes. Reference Hoben, Tuden and PlotnicovHoben (1970) reported, for instance, that the local custom of “rest,” a traditional system of land tenure in the highland regions of the Amhara people, promoted distributive equity and gender equality within the community. Other research documents local customs and practices that advance efficiency and environmental sustainability (Reference Bassi and TacheBassi and Tache 2011).

This is not to suggest that local customs are always better than formal land regimes. Land customs that undermine women's rights, foster conflict, and encourage wasteful land use are many (see Reference FlintanFlintan 2010). The customs and practices surrounding rural land in the Amhara and Tigre communities, for instance, discriminated against ethnic, trade, and religious minorities (see Reference HobenHoben 1973: 8). The Borana custom of inheritance does not allow a woman to inherit common marital property unless she has given birth to a son (see Flintan: 163). The Borana consider Wata people outcasts and deny any meaningful access to land, herding, and other civic relations with mainstream Borana way of life even though they speak the same language and reside among the Borana (see Reference Kassam and BushanaKassam and Bushana 2004).

In the Gada tradition, the man is considered the head of the household, and the Abba Olla the head of the village, and the Abba Gada the head of the Borana community as a whole. Although the effective power of these heads might be constrained by other organizations such councils of elders and spiritual authorities and by the sense of ethics and morality of the individuals in question, they wield powers sanctioned by tradition and discriminate against particular social groups such as women, “illegitimate” children, and outcast groups.

The pitfalls of local customs can certainly be addressed by governmental regulation and progressive social policies. The question, however, is whether rural land registration suits a progressive agenda. Donor-commissioned researches report that the registration has enhanced women's perception of tenure security (Reference Holden and TeferaHolden and Tefera 2008), while other researches document more nuanced outcomes. A study in Siraro, a district in the central part of Ethiopia, concludes that the registration extended the power of the state in the rural milieu without any progressive distributive outcome (see Reference ChinigoChinigo 2014). Another study in Wolaita, a district in the southern part of the country, reports the lack of women's participation in the registration processes (Reference QorichoQoricho 2011). The evidence from my fieldwork also showed how the shift of power often hurt the people intended to benefit from the registration.

I met Fate,Footnote ⁹ an elderly woman perhaps in her 60s, in the office of the Rural Land and Environmental Protection at the town of Batu. She was from one of the villages in the area, and on that day, she had come to the office to request a replacement for her certificate of land title. Pulling out a ruined booklet from a basket she carried, Fate explained to an officer that the mice had destroyed her certificate and that she wanted a replacement. In further conversations with the officer, it turned out that her main reason for coming to the office was not entirely the destruction of her booklet. Illiterate and a widow, she was not intending to do anything particular and immediate with the certificate. What she really wanted was to be relieved of taxes and liabilities with respect to the parts of her farmlands that were being cultivated by two of her sons. Before the onset of the registration program, the local authorities levied taxes and fees on the person who actually cultivated the land. But with the introduction of the registration, the person in whose name a plot of land was registered had to pay the taxes on it.

The officer advised Fate that he could not replace her certificate at that time. He was expecting to receive new booklets from the Headquarters in Addis Ababa, about 250 km away. In the meantime, she would not need to come to the office, as he would advise the chairpersons of all the villages in the district when the new certificates arrived. At that time, she would have to pay a fee for the replacement. As for the removal of the lands being used by her sons, the officer advised her to request that the village administrators write a letter and to submit information about those lands to the office, and the officer would then remove the registration from her record.

From the officer's advice, it was clear that Fate and other rural dwellers like her were not the only ones exposed to the costs and uncertainties inflicted by land registration. The officers in charge of the local land registry had neither adequate resources nor the full information about whether and when they would get the resources they needed, including the basic forms and stationeries. The local office depended on the central authorities, and the central authorities, in turn, depended on the donors for funds and expatriate consultants for expertise and technical support. Fate's case shows, in short, how registration shifts power and authority from local villages to district and central government offices and officials. It shows how local matters become a subject of national and even global expertise, power, and authority, contrary to the claims routinely propagated by the donor agencies that the registration process was and continues to be local and participatory.

The shift of power is not objectionable per se. What matters most is how and for what purpose the officials exercise their acquired power. Two sets of factors make the shift objectionable. First, the pervasive illiteracy among rural dwellers, the lack of accountability and transparency of the formal government bodies, the distance of government institutions from the rural communities, and other similar problems disempower the poor, women, and the rural dwellers more broadly. Government offices, such as land registries and courts, are located miles away from most rural communities. In addition, the formal regimes and their procedure require literacy, if not technical legal skills, and expose the illiterate and the poor among rural dwellers to greater costs and uncertainties than do the local regimes.

Second, and more important, the registration initiative opened up legal, illegal, and nonlegal avenues for officials and other well-positioned individuals to expropriate land and extract surplus from the rural economy. Illegal expropriation, maladministration, corruption, and arbitrary evictions of the rural dwellers are rampant (see Reference PlummerPlummer 2012: 288–315). In a number of rural villages, officials charged with administering land enclosed common grazing areas for private use while implementing the land registration. In one case, local government officials illegally issued certificates of title to as many as 300 individuals in an area of land that belonged to a rural village of about 600 households (Oromia Ethics and Anticorruption Commission 2013: 30–33). The recipients of the illegal certificates were neither farmers nor residents of the village and, according to the law, had no right to the titles. They were from different urban areas and worked for the government.

One might argue that the problems of abuse of power, corruption, expropriation, and other causes of insecurity of rural landholding among the rural dwellers in Ethiopia are issues of “rule of law.” Supporters of the Ethiopian registration initiative might think that the problems could have occurred without the registration initiative. The fact, nonetheless, is that the state of Ethiopia's “rule of law” when the donors decided to support the program of registration was as fragile as it is today. The records at the land registries contained simplified data and information about the rural dwellers and their land titles that have made expropriations and extractions of surplus from the rural economy easier for officials.