Papers by Melkamu B E L A C H E W Moges
Despite the constitutional protection of property rights, the FDRE Constitution permits two forms... more Despite the constitutional protection of property rights, the FDRE Constitution permits two forms of property intrusion under Article 40 (1 and 8): police power and expropriation (eminent domain) respectively. While expropriation involves the taking of private property on account of public purpose and against payment of adequate compensation, the police power allows the government to deprive property rights without compensation. However, the implications of such uncompensated limits through the state's police power should not be overlooked, especially when these regulations go beyond and substantially diminish the value or use of private property without outright expropriation. Without pretending to be a full comparative overview, the paper aims to assess other countries experience on balancing property rights protection and excessive regulation and draw a lesson. Accordingly, the paper finds that: while some States employ an 'invalidation' approach, challenging the constitutionality of excessive regulations and deeming them non-compensable, others opt to "judicially transform" such regulations into "regulatory taking" or explicitly recognize it as "indirect or constructive expropriation" making it compensable under the Constitution. Coming to the FDRE Constitution, arguably, excessive but otherwise regulation cannot be justified in either the police power or expropriation clause, rendering them noncompensable. In such cases, 'invalidation' becomes the likely outcome for such regulations. However, invalidation may not always be a practical option for regulations enacted for the public good. Further, the paper contends that while holding onto hope, 'neither judicial transforming nor explicit recognition of such regulation as regulatory taking' appear feasible within the current constitutional context. Instead, the paper suggests the explicit recognition of regulatory taking through specific laws (excessive regulatory laws), which safeguard property rights while aligning with broader regulatory objectives.
Mizan Law Review, 2023
Sound water resource management is critical for Ethiopia to protect water bodies and wetlands as ... more Sound water resource management is critical for Ethiopia to protect water bodies and wetlands as well as tap these resources for better socioeconomic development. However, water resource management has faced challenges in Ethiopia. This article examines whether water resources could be better managed through an innovative way of integrating their management and administration with land administration in line with the principle of Integrated Water Resource Management and sustainable land management. Doctrinal analysis of laws pertaining to water and land management is applied to this end. Primary data collection methods were also applied through questionnaire survey, in-depth interview, and focus group discussion. The article discusses the general role of sustainable water resource management in the protection of the country's water bodies and examines the critical gaps under the present fragmented natural resource management system. A conceptual framework is developed to highlight the relationship between the principle of sustainable water resource management and land management. The existing natural resource management in Ethiopia is unsustainable and hence it is argued that a land administration approach can enhance water resource management in an integrated, holistic, and sustainable fashion by focusing on Lake Tana Watershed.
THE INTERNATIONAL JOURNAL OF ETHIOPIAN LEGAL STUDIES, 2021
In Ethiopia, rural land holders as well as practitioners are left with uncertainty regarding the ... more In Ethiopia, rural land holders as well as practitioners are left with uncertainty regarding the right and freedom to sell properties they produced on their land‒holding for dwelling purposes and like. The message conveyed by the FDRE Constitution and rural land legislations in this respect has not been clearly understood and applied. This paper aims to investigate the real content of the legal provisions and the practice with respect to the sale of rural houses in Ethiopia by providing empirical evidence from Amhara National Regional State (ANRS). The research applied both qualitative and quantitative research methods. The qualitative method was used to analyze data collected through focus group discussion (FGD) and key informant interviews. 5 FGDs were conducted with a total of 85 rural land-holders in each of the Five
selected woredas and with Nine judges selected from the Bahir Dar Area High Court and the Supreme Court of ANRS. To analyze relevant laws, I applied doctrinal analysis. I also applied comparative law method to compare the Ethiopian land transfer regime with that of China and
Vietnam. The quantitative method was applied to present data collected through questionnaire.
Questionnaire survey was applied to collect information from two groups of respondents: 50 rural land administration and use staff in the selected Five woredas (districts) and a total of 30 judges working in courts representing the Five selected woredas. The data obtained was
presented by a simple statistical tool using figure, tables and percentages. The study has found out that the law does not prevent the sale of rural houses in Ethiopia as it is the case in Vietnam and China. However, the study showed that the law has been understood by both the people and
experts to prohibit the practice of sale of rural houses. The study suggests that a clearer and more complete legislative coverage as well as an active and better oriented staff in land administration and use offices and courts should be ensured in order to enforce existing land policy properly.
The International Journal Of Ethiopian Legal Studies, 2019
Generally, in most African countries, cadastral systems have not developed well. This paper, firs... more Generally, in most African countries, cadastral systems have not developed well. This paper, first, uncovers the critical problem surrounding customary tenure in Africa under the theory the author has introduced ‒ ‘custom paradox’ theory. In the paper,‘custom paradox’ theory is considered as a common misunderstanding of customary tenure, and, as such, has contributed to the failure of cadastral systems in most African countries. Second, the paper elaborates on the true characteristics of customary tenure and demonstrates its strong relationship with statutory tenure. In order to best establish the relationship, the author introduces an analytical theory which calls for the ‘informalization’ of the statutory tenure where the cadastral system legislations are made the reflection of the practices of the African people. A critical desk review of relevant secondary and sometimes legislative documents is mainly used in the paper. In addition, the paper has critically reviewed legal theory in order to cater for the relationship between law and practice and to apply same in the context of the objective of the research. The paper argues that recognition and formalisation of customary tenure is now getting legislative coverage in a few countries of Africa including Ethiopia despite some practical shortcomings. While showing the mechanisms of favorably making custom work in cadastral systems by way of striking a balance between ‘modernization’ and ‘tradition’, the paper would contribute to the strengthening of the already existing scholarly work through establishing the casual relationship between the failure of cadastral systems and the misunderstandings about customary tenure in most African cadastral systems.
© 2015 Dr. Melkamu MogesA cadastral system deals with land — a very important resource for sustai... more © 2015 Dr. Melkamu MogesA cadastral system deals with land — a very important resource for sustaining people’s livelihoods. No wonder, therefore, that a large volume of research has been undertaken on land management, land administration and most specifically on the cadastre and land register systems. Such research also deals with the manner of continually improving a cadastral system, and has included various models, principles and guidelines for this purpose. Nonetheless, the models developed so far have a shortcoming because they do not deal with cadastral system legislative principles. Researchers have thus underestimated the crucial role legislation might play with respect to the setting up of a successful cadastral system. Most existing cadastral systems, especially those in less-developed countries, do not achieve their intended objectives. One major reason for this is the lack of appropriate guidelines prescribing parameters for the preparation of a robust cadastral system legislation. This thesis argues that a cadastral system must be founded on a number of requirements and principles to be sustainable. It especially argues that a sustainable cadastral system must be based on a legislative framework which effectively encompasses such requirements and principles. The thesis will set the relevant factors and principles in a comprehensive and coherent framework in the form of a model — hence the title: ‘Modelling Legislation for a Sustainable Cadastral System’. The principles used to construct the model are derived from various sources. Firstly, the model is based on a set of principles already known by models of a cadastral system. Secondly, it is informed by the essential requirements of a sustainable cadastral system drawn out in the thesis. Thirdly, it makes use of principles of cadastral system legislation derived from general principles, theories and philosophy of law. Finally, it relies on the principles and best practices solicited from an analysis of the cadastral system legislation of Victoria, Sweden and Kenya. These jurisdictions are selected because they give a wide geographic and socio-economic coverage representing Africa, Australasia and Western Europe, with the view to constructing a model which is both representative of the broader experience across the globe and is able to be applied in a flexible manner. In short, this thesis develops a theoretical framework of principles for an effective cadastral system legislation, which is identified as one of the essential requirements of a sustainable cadastral system
African Journals Online, Dec 31, 2021
Land registration is a useful land information system practised in almost all modern nations. It ... more Land registration is a useful land information system practised in almost all modern nations. It is also true that many land registration systems fail due to a number of reasons. This article investigates whether the land registration system in Ethiopia has given due attention to sound land governance components which are critical for the success of any land registration system. Doctrinal and content analysis of legislative documents of Ethiopia is applied to this end. Desk review of relevant secondary material was also used. The article discusses the general role of good governance in such systems and shows the benefits of a land registration system that is exercised under good governance. A conceptual framework is used by which the land registration governance system of Ethiopia is weighed. I argue that the land registration system of Ethiopia has major gaps of land governance. Good land governance in land registration of the country could be enhanced by the provision of adequate legislative and policy framework, effective land registration institutional organs and efficient processes for the enforcement of the system.
Bahir Dar University Journal of Law, Dec 1, 2015
This article deals with the question of formal requirements and their relevance to the validity o... more This article deals with the question of formal requirements and their relevance to the validity of transactions relating to immovable properties both in urban and rural settings. The article discovers that while some rules try to mention the types of formal requirements and their effect on the validity of legal transactions on immovable properties, there is still a problem of lack of coherence within each of the legislations as well as among the various legislations. Similarly, there are divergent interpretations of these rules. One cause, we argue, is the failure to demarcate the distinction among multiple existing formal requirements. In particular, legal professionals have been confused with the difference between authentication and registration requirements. This research aims to supplement the current discourse on the issue by critically identifying the different formal requirements described in various laws, both the long existing Civil Code and the relatively recent urban and rural land use and administration legislations, and advancing more comprehensive arguments on the issue. To do so, it provides a theoretical definition of the relevant concepts based on international standards and links these definitions to the definitions given under our law. In addition, it analyses a few sample court cases decided by the Amhara region Supreme Court as well as offering supplementary information from a few key informants and a focus group discussion.
Land registration system has been put in place in the rural areas of Amhara National Regional Sta... more Land registration system has been put in place in the rural areas of Amhara National Regional State (ANRS) since 2002. The courts in the regional state decide on land disputes based on land information obtained from the land administration offices. These offices are expected to supply the information available at the land registration system. However, land administration and use offices often get the information directly from the public on an individual case basis following order from a court. This is mainly attributable to the low level of using the land registration system in the region by the land administration offices and legal professionals. The land registration system is not used to its maximum potential to alleviate the problem of land dispute. A case study approach is used in this article, and five rural woredas were purposively chosen because of high prevalence of land disputes. Questionnaires, focus group discussions (FGDs) and court cases are used. The research indicate...
SUMMARY Ethiopia is, in the last two decades, taking some legal and policy positive measures to i... more SUMMARY Ethiopia is, in the last two decades, taking some legal and policy positive measures to improve the old long lasting poor land administration system. Land registration and certification is being implemented in the country though in quite varying scale and quality. However, there are several major gaps in the existing sustainable land management practices. The responsible organ for the
Critical Gaps in Land Governance with Respect to the Land Registration System in Ethiopia, 2021
Land registration is a useful land information system practised in almost all modern nations. It ... more Land registration is a useful land information system practised in almost all modern nations. It is also true that many land registration systems fail due to a number of reasons. This article investigates whether the land registration system in Ethiopia has given due attention to sound land governance components which are critical for the success of any land registration system. Doctrinal and content analysis of legislative documents of Ethiopia is applied to this end. Desk review of relevant secondary material was also used. The article discusses the general role of good governance in such systems and shows the benefits of a land registration system that is exercised under good governance. A conceptual framework is used by which the land registration governance system of Ethiopia is weighed. I argue that the land registration system of Ethiopia has major gaps of land governance. Good land governance in land registration of the country could be enhanced by the provision of adequate legislative and policy framework, effective land registration institutional organs and efficient processes for the enforcement of the system.
SUMMARY Ethiopia is, in the last two decades, taking some positive measures to improve the old lo... more SUMMARY Ethiopia is, in the last two decades, taking some positive measures to improve the old long lasting poor land administration system. Some laws were made at federal and regional level; so were some policy guidelines. More importantly, land registration and certification is being implemented in the country though in quite varying scale and quality. In view of this, it is quite appropriate to investigate the major gaps in the existing sustainable land management practices. The gaps should be identified and a few possible solutions be indicated. The main problems in this regard relate to enforcing institutions of the land laws and activities, legislative framework for the land administration, and the technical management of the land related information such as the issue of computerization. However, this governmental effort has to be supported by the land professionals in the country whose number is increasing at a good rate. In view of this, the land professionals have already p...
Mizan Law Review, 2020
Land registration system has been put in place in the rural areas of Amhara National Regional Sta... more Land registration system has been put in place in the rural areas of Amhara National Regional State (ANRS) since 2002. The courts in the regional state decide on land disputes based on land information obtained from the land administration offices. These offices are expected to supply the information available at the land registration system. However, land administration and use offices often get the information directly from the public on an individual case basis following order from a court. This is mainly attributable to the low level of using the land registration system in the region by the land administration offices and legal professionals. The land registration system is not used to its maximum potential to alleviate the problem of land dispute. A case study approach is used in this article, and five rural woredas were purposively chosen because of high prevalence of land disputes. Questionnaires, focus group discussions (FGDs) and court cases are used. The research indicates the need for a strong institutional and regulatory mechanism of land management in ANRS.
International Journal of Ethiopian Legal Studies, 2019
Generally, in most African countries, cadastral systems have not developed well. This paper, firs... more Generally, in most African countries, cadastral systems have not developed well. This paper, first, uncovers the critical problem surrounding customary tenure in Africa under the theory the author has introduced ‒ ‘custom paradox’ theory. In the paper,‘custom paradox’ theory is considered as a common misunderstanding of customary tenure, and, as such, has contributed to the failure of cadastral systems in most African countries. Second, the paper elaborates on the true characteristics of customary tenure and demonstrates its strong relationship with statutory tenure. In order to best establish the relationship, the author introduces an analytical theory which calls for the ‘informalization’ of the statutory tenure where the cadastral system legislations are made the reflection of the practices of the African people. A critical desk review of relevant secondary and sometimes legislative documents is mainly used in the paper. In addition, the paper has critically reviewed legal theory in order to cater for the relationship between law and practice and to apply same in the context of the objective of the research. The paper argues that recognition and formalisation of customary tenure is now getting legislative coverage in a few countries of Africa including Ethiopia despite some practical shortcomings. While showing the mechanisms of favorably making custom work in cadastral systems by way of striking a balance between ‘modernization’ and ‘tradition’, the paper would contribute to the strengthening of the already existing scholarly work through establishing the casual relationship between the failure of cadastral systems and the misunderstandings about customary tenure in most African cadastral systems.
Lake Tana Legislation and Administration, 2005
This research is about Lake Tana and the administration thereof. It assesses the general legislat... more This research is about Lake Tana and the administration thereof. It assesses the general legislation as well as administration of all water resources in the country to help shed direct light on the administration of Lake Tana.
This research has been undertaken with the following aims and objectives:
a. Looking at the present state of administration of Lake Tana ,
b. Identifying the major problems of administration of the Lake,
c. Investigating the best ways of managing the Lake primarily control of its quality and pollution thereto, and
d. Promoting the highest benefit that people could derive from the Lake.
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Papers by Melkamu B E L A C H E W Moges
selected woredas and with Nine judges selected from the Bahir Dar Area High Court and the Supreme Court of ANRS. To analyze relevant laws, I applied doctrinal analysis. I also applied comparative law method to compare the Ethiopian land transfer regime with that of China and
Vietnam. The quantitative method was applied to present data collected through questionnaire.
Questionnaire survey was applied to collect information from two groups of respondents: 50 rural land administration and use staff in the selected Five woredas (districts) and a total of 30 judges working in courts representing the Five selected woredas. The data obtained was
presented by a simple statistical tool using figure, tables and percentages. The study has found out that the law does not prevent the sale of rural houses in Ethiopia as it is the case in Vietnam and China. However, the study showed that the law has been understood by both the people and
experts to prohibit the practice of sale of rural houses. The study suggests that a clearer and more complete legislative coverage as well as an active and better oriented staff in land administration and use offices and courts should be ensured in order to enforce existing land policy properly.
This research has been undertaken with the following aims and objectives:
a. Looking at the present state of administration of Lake Tana ,
b. Identifying the major problems of administration of the Lake,
c. Investigating the best ways of managing the Lake primarily control of its quality and pollution thereto, and
d. Promoting the highest benefit that people could derive from the Lake.
selected woredas and with Nine judges selected from the Bahir Dar Area High Court and the Supreme Court of ANRS. To analyze relevant laws, I applied doctrinal analysis. I also applied comparative law method to compare the Ethiopian land transfer regime with that of China and
Vietnam. The quantitative method was applied to present data collected through questionnaire.
Questionnaire survey was applied to collect information from two groups of respondents: 50 rural land administration and use staff in the selected Five woredas (districts) and a total of 30 judges working in courts representing the Five selected woredas. The data obtained was
presented by a simple statistical tool using figure, tables and percentages. The study has found out that the law does not prevent the sale of rural houses in Ethiopia as it is the case in Vietnam and China. However, the study showed that the law has been understood by both the people and
experts to prohibit the practice of sale of rural houses. The study suggests that a clearer and more complete legislative coverage as well as an active and better oriented staff in land administration and use offices and courts should be ensured in order to enforce existing land policy properly.
This research has been undertaken with the following aims and objectives:
a. Looking at the present state of administration of Lake Tana ,
b. Identifying the major problems of administration of the Lake,
c. Investigating the best ways of managing the Lake primarily control of its quality and pollution thereto, and
d. Promoting the highest benefit that people could derive from the Lake.