INTRODUCTION
“Self-determination may make some people think of the right to vote, or the right to belong to political parties or the right to self-government … But when I think of self-determination I think also of hunting, fishing, and trapping. I think of the land we have lost. I think of all of the land stolen from our people. I think of … people destroying the land. I think of the dispossession of our peoples of their land.”Footnote 1
Since 2008 the Ethiopian government has allocated vast tracts of rural land to investors in lowland areas of the country, particularly in the Gambella and Benishangul-Gumuz regions, to make way for large-scale commercial farming. Although no accurate data are available on the amount of land allocated to investors, research shows that millions of hectares of land have changed hands since 2008.Footnote 2 The allocation of land often takes place with little or no consultation with local peoples, much less seeking their consent in decisions affecting the utilization of their land resources.Footnote 3 The alienation of land partly emerges from the government's very wide discretionary power (incorporated in the land laws) regarding decision-making in the exploitation of land. The provisions of the land laws that vest rural land ownership in the government also facilitate and legitimize land alienation. These laws serve as a tool for the government to assert that, in alienating land from indigenous communities, it is merely retaking “its own” land. The Federal Rural Land Administration and Use Proclamation (Rural Land Proclamation) provides that the “government being the owner of rural land, communal rural land holdings can be changed to private holdings as may be necessary”.Footnote 4 This is reiterated in the preamble, which states that one of the objectives of the law is to encourage the participation of private investors in pastoralist areas where there is a tribe-based communal landholding system.Footnote 5
Against this context, the purpose of this article is twofold. First, the article posits that the Ethiopian government's claim of being the owner and principal decision-maker in the utilization of land resources, which is used as an instrument to dispossess land, is incompatible with the right to self-determination (as it applies to indigenous peoples) enshrined in the Constitution of the Federal Democratic Republic of Ethiopia (the Constitution).Footnote 6 The discussion of the right to self-determination in this article is based on the notion that most distinct groups of peoples in the Gambella and Benishangul-Gumuz regions can be identified as indigenous peoples, which necessitates construing the right to self-determination in ways that take indigenous peoples’ unique cultural identities, needs and circumstances into account. In the final analysis, the article argues that the constitutional right to self-determination, as it applies to indigenous peoples, entails that indigenous communities have the right to administer, maintain access and ties to, and control over, their land resources through their traditional institutions. This means that the current practice, under which the state is the primary if not the sole agent in the exploitation of indigenous peoples’ land, would be incompatible with indigenous peoples’ right to self-determination. Secondly, the article demonstrates that the Ethiopian government's use of clauses in the Constitution to justify its very wide discretionary power to exploit land resources and deny indigenous peoples greater control and say in the utilization of their land resources, is based on a misreading of the Constitution. This in turn suggests that the land laws that give the government very broad discretionary decision-making power on land matters and vest land ownership in the government are incompatible with indigenous peoples’ constitutional right to self-determination.
The first section of the article briefly analyses why the article deploys the concept of indigenous peoples to refer to some groups in the Gambella and Benishangul-Gumuz regions. It discusses whether there are groups of peoples who qualify to be identified as indigenous in the context of Ethiopia. Thus, before discussing how the constitutional right to self-determination can be construed as it applies to indigenous peoples, a brief explanation is offered for why the article bases its analysis on acknowledging the presence of such groups in Ethiopia. The second section briefly explores the legal concept of self-determination in Ethiopia's Transitional Charter, which served as the foundation for the Constitution. The third section analyses the content and scope of the right to self-determination under the Constitution as it applies to indigenous peoples. In particular, this section examines what the right to self-determination means in practice for indigenous peoples in relation to decision-making in the utilization of land resources. The fourth section examines some constitutional clauses that the government has invoked to deny indigenous peoples control and a greater say in the utilization of land resources, and contends that the government does so in ways that are inconsistent with the Constitution. The final section provides some concluding remarks.
WHAT IS THE SIGNIFICANCE OF DEPLOYING THE CONCEPT OF INDIGENOUS PEOPLES?
The concept of indigenous peoples is significant for the purpose of determining the scope and contents of the right to self-determination under the Constitution. Admittedly, in providing the right to self-determination to sub-national groups, the Constitution does not categorize them as indigenous and non-indigenous. It generally stipulates (in article 39) that every sub-national group is entitled to the right to self-determination. Even though each sub-national group is entitled to the right of self-determination, the manner in which the contents of the right under article 39 are construed and applied may differ based on the unique situations, circumstances and collective physical, survival and cultural identities of different groups of peoples. In other words, the scope and contents of the right is unique to each people. For instance, indigenous peoples have a close and unique relationship to their traditional land. This land forms an integral component of their culture, history and collective survival as distinct peoples. Consequently, their land plays a central role in determining their destiny. This in turn suggests that land is a central component in determining the scope and contents of their right to self-determination. Thus, identifying groups as indigenous is significant in interpreting the constitutional right to self-determination provisions in light of the groups’ unique circumstances, traditional practices and ways of life in general, and the centrality of land in determining their destiny in particular.
That said, there is no succinct definition of indigenous peoples. Thus, identifying which groups qualify as indigenous in general and whether there are groups of peoples in Ethiopia that can be identified as indigenous in particular can be controversial. Even so, there are some operational definitions of indigenous peoples at the international and regional levels. At the international level, the definition by Martínez Cobo, former special rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, is the most commonly cited. It provides:
“Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”Footnote 7
According to this definition, a group qualifies as an indigenous people if it was invaded or colonized by other societies. In addition, the group should currently be a non-dominant sector of society and should also have a unique ethnic identity. Furthermore, the group needs to have a special attachment to its ancestral land, in the sense that it is determined to transmit it to future generations in accordance with its own culture and institutions.
Other definitions of, and criteria for, indigenous peoples at the international level include those developed by the International Labour Organization (ILO) and the World Bank. Article 1(1)(b) of the ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries provides a definition of indigenous peoples that is broadly similar to Martínez Cobo's definition.Footnote 8
The World Bank notes that indigenous peoples are “social groups … who are frequently among the most marginalized and vulnerable segments of the population … with identities that are often distinct from dominant groups in their national societies”.Footnote 9 It also notes that these groups possess “collective attachment to geographically distinct habitats” and have indigenous languages distinct from those of mainstream society.Footnote 10
At a regional level, the African Commission on Human and Peoples’ Rights (ACHPR) has developed criteria for indigenous peoples. According to the ACHPR, a group qualifies as indigenous if it meets the following criteria: “[e]xperience of subjugation, marginalization, dispossession, exclusion or discrimination because these peoples have different cultures, ways of life or modes of production than the national hegemonic and dominant model”; “[a] special attachment to and use of their traditional land whereby their ancestral land and territory has a fundamental importance for their collective physical and cultural survival as peoples”; and “[s]elf-definition (Self-identification) as indigenous and distinctly different from other groups within a state”.Footnote 11 Based on the criteria they developed, the ACHPR and the World Bank have noted that there are some groups in Ethiopia, including some Omotic groups in the Gambella region, who qualify to be identified as indigenous peoples.Footnote 12
It is beyond the scope of this article to analyse in detail whether there are specific groups in Ethiopia that meet the criteria of indigenous peoples. In the African Journal of International and Comparative Law, this author argues (based on the operational criteria developed at international and regional levels) that some distinct groups of peoples in the Gambella and Benishangul-Gumuz regions meet the criteria of indigenous peoples and should be recognized as such.Footnote 13 For the purposes of the present article, it suffices to summarize the analysis in that journal. Distinct groups of peoples in the Gambella and Benishangul-Gumuz regions can be identified as indigenous for the following reasons. These groups were incorporated into the Ethiopian state during the state's period of territorial expansion in the last quarter of the 19th century.Footnote 14 Before their incorporation, most of these groups had lived for centuries under the administration of their own traditional institutions. They can thus be regarded as pre-invasion societies.Footnote 15 These groups have been, and continue to be, at the lowest rung of the state's political, social and cultural power structure.Footnote 16 Thus, in present-day Ethiopia, they are not simply a non-dominant section of national society, but are some of the most marginalized groups in the country. They have unique languages, cultures and identities.Footnote 17 They have special attachment to their ancestral lands in the sense that land is not just a source of economic livelihood but also highly intertwined with the culture and identity of these groups.Footnote 18 The physical survival of these groups as distinct groups depends on their ancestral land.Footnote 19 These groups thus meet the criteria for indigenous peoples stated above and qualify to be recognized as such.
THE RIGHT TO SELF-DETERMINATION IN THE TRANSITIONAL PERIOD CHARTER
Ethiopia was a unitary state until 1991, when a coalition of parties known as the Ethiopian People's Revolutionary Democratic Front (EPRDF)Footnote 20 captured power by overthrowing the military junta, the Derg. With the coming to power of the EPRDF, the unitary Ethiopian state was abandoned and the state was deconstructed to an alleged “voluntary federation” of sub-nationals.Footnote 21 This federation was founded on the notion of self-determination for each sub-national group, which became the norm on the basis of which the Transitional CharterFootnote 22 and later the Constitution were founded.Footnote 23
With the capture of power by the EPRDF, the Transitional Government of Ethiopia was instituted. In 1991 the Transitional Period Charter of Ethiopia (Transitional Charter) was approved.Footnote 24 The Transitional Charter, which served as the supreme law of the land for the duration of the transitional period,Footnote 25 provided that the Ethiopian state would be deconstructed in radically different ways from those that had previously existed. Centralized power was to be abandoned, at least on paper, in favour of decentralization to what the Transitional Charter referred to as the nations, nationalities and peoples of Ethiopia. Hence, the notion of the right to self-determination became the bedrock principle on which the Transitional Charter was founded. The preamble of the Transitional Charter noted that the military dictatorship, the Derg, and its predecessors had perpetuated policies that engendered historical inequities and oppression for the numerous distinct groups of peoples in Ethiopia, and declared that the introduction of the Transitional Charter marked the end of that era.Footnote 26 For this purpose, it declared that Ethiopia would pursue a transformation of the relationship between the state and society by opening a new chapter in which: “[f]reedom, equal rights and self-determination of all peoples shall be the governing principles of political, economic and social life”.Footnote 27
Furthermore, article 2 of the Transitional Charter provided for internal and external self-determination of sub-national groups in Ethiopia. In particular, it provided for the right of each sub-national group to “administer its own affairs within its own defined territory”.Footnote 28 The self-determination provisions of the Transitional Charter started to be implemented with the division of the Ethiopian state into 14 regions in 1992, based mainly on the ethnic identity of sub-national groups, and the conferring of wide-ranging powers to the regions, including the right to adopt a regional constitution and regional laws.Footnote 29 The right to self-determination enshrined in the Transitional Charter and its initial implementation laid the foundations for the right to self-determination incorporated in the Constitution. In 1995, the Constitution replaced the Transitional Charter.
THE RIGHT TO SELF-DETERMINATION UNDER THE CONSTITUTION AS IT APPLIES TO INDIGENOUS PEOPLES
The Constitution introduced fundamental changes that spelt out the right to internal and external self-determination of sub-national groups, or “nations, nationalities and peoples”. In the Constitution “self-determination is the super-norm” on which the Constitution is founded.Footnote 30 This is evident from the notion of the right to self-determination in the very first paragraph of the preamble of the Constitution, which provides that “we, the nations, nationalities and peoples of Ethiopia: Strongly committed, in full and free exercise of our right to self-determination, … to guaranteeing a democratic order, and advancing our economic and social development” have adopted the present Constitution.Footnote 31 Article 39 of the Constitution (rights of nations, nationalities, and peoples) provides the main content of the right to self-determination:
“1. Every nation, nationality and people in Ethiopia has an unconditional right to self-determination, including the right to secession.
2. Every nation, nationality and people in Ethiopia has the right to speak, to write and to develop its own language; to express, to develop and to promote its culture; and to preserve its history.
3. Every nation, nationality and people in Ethiopia has the right to a full measure of self-government which includes the right to establish institutions of government in the territory that it inhabits and to equitable representation in state and federal governments.”
Entitlement to the right to self-determination under article 39, content and scope of the right
According to article 39, every nation, nationality and people in Ethiopia is entitled to the right to self-determination. This means that every distinct group that qualifies to be regarded as a nation, nationality or people is entitled to the right to self-determination. Different ethnic groups of peoples in the Gambella and Benishangul-Gumuz regions are recognized as distinct peoples who are entitled to the right to self-determination under article 47 of the Constitution.Footnote 32 As noted earlier, most of these groups also qualify as indigenous peoples. The question then is what does the right to self-determination mean in practice for indigenous peoples? What should be the contemporary understanding of the right to self-determination under the Constitution as it applies to indigenous peoples? How can we interpret the Constitution in a manner that accounts for the distinct collective cultural and physical survival of indigenous peoples? These are some of the issues this section addresses.
There is no domestic jurisprudence on the application of the constitutional right to self-determination in the context of indigenous peoples. Given the lack of domestic jurisprudence, this article analyses the scope and contents of the constitutional right to self-determination, as it applies to indigenous peoples, on the basis of international and regional human rights instruments and jurisprudence. The Constitution requires reference to regional and international instruments as a means of interpreting constitutional provisions. According to article 13(2) of the Constitution, provisions under chapter 3 (where the right to self-determination is found) should be “interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, international covenants on human rights and international instruments adopted by Ethiopia”.Footnote 33
Against this context, this section is engaged in an exposition of the law as it is. It contends that the constitutional right to self-determination must be understood to give indigenous peoples greater say and influence in decisions affecting the utilization of land resources, while curtailing the power of the state to exploit their land resources. This means that the right to self-determination should be interpreted in a way that takes the lifestyle and unique situations of indigenous peoples into account. This type of interpretation does not favour indigenous groups over and above other groups. This approach is not against the principle of equality but rather is consistent with it, because the principle of equality requires treating not only the same cases similarly but also different cases differently.Footnote 34 Seen in this light, the interpretation of the Constitution in a manner that accounts for the situation of indigenous peoples is neither discriminatory nor confers rights beyond and above other distinct groups of peoples.
In light of this analysis, article 39(2) (peoples’ right to cultural self-determination) and 39(3) (people's right to full self-government) of the Constitution are provisions that can be construed to provide indigenous peoples with control over their land resources.
Article 39(2): Cultural self-determination as protection against land dispossession
Article 39(2) provides that each distinct group of peoples has the collective right to develop and promote its own culture. In the context of indigenous peoples, given that many cultural practices are highly intertwined with land, the right of indigenous peoples to preserve and promote their culture should essentially be understood as their protection against land dispossession.Footnote 35 In the absence of protection against land dispossession, indigenous communities are scarcely able to preserve their culture and identity. Ethiopia's land laws do not recognize the right of indigenous groups to maintain access and ties to their ancestral land, let alone granting land ownership. The lack of such recognition facilitates the dispossession of indigenous peoples of their ancestral land. This seems contrary to the constitutional right of cultural self-determination as it applies to indigenous peoples, as discussed below.
The connection between culture and land, especially in the case of indigenous peoples, has been noted by the UN Human Rights Committee (HRC), the UN Committee on Economic, Social and Cultural Rights (CESCR), the ACHPR and the Inter-American Court of Human Rights (IACtHR). The HRC, the CESCR and the ACHPR authoritatively interpret the International Covenant on Civil and Political Rights (ICCPR),Footnote 36 the International Covenant on Economic, Social and Cultural Rights (ICESCR)Footnote 37 and the African Charter on Human and Peoples’ Rights (African Charter)Footnote 38 respectively. Ethiopia has adopted the ICCPR, the ICESCR and the African Charter.Footnote 39 As noted earlier, this means that the right of indigenous peoples to self-determination to preserve and develop their culture under article 39(2) of the Constitution should be construed in the light of these instruments. It is against this context that the jurisprudence of these international and regional bodies is discussed below.
The HRC has acknowledged the link between culture and land (in the context of indigenous peoples) in its general recommendation, concluding observations on state reports and individual complaints.Footnote 40 In its interpretation of article 27 of the ICCPR, the HRC noted, “with regard to the exercise of the cultural rights protected under article 27, the Committee observes that culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting and the right to live in reserves protected by law”.Footnote 41
Culture constitutes many aspects including traditional indigenous activities such as fishing or hunting.Footnote 42 As these activities are dependent on land resources, the dispossession of indigenous land deprives indigenous communities of their cultural economic activities and distinct identity. Thus, in the words of Kingsbury, “the right to enjoyment of culture also seems to extend to maintenance of the group's cohesiveness through, for instance, possession of a land base and pursuit of important cultural activities of an economic nature”.Footnote 43
The HRC has reiterated its view on the connection between the right to culture and land in its concluding observations on state reports. In particular, it interpreted the right to culture in the light of the provision on self-determination in article 1 of the ICCPR as referring to the right of indigenous peoples to control land resources. In its concluding observations on Finland regarding compliance under article 1, the HRC expressed concerns “over the failure to settle the question of Sami rights to land ownership and the various public and private uses of land that affect the Sami's traditional means of subsistence - in particular reindeer breeding - thus endangering their traditional culture and way of life”.Footnote 44
Likewise, the CESCR has linked cultural rights with land in the case of indigenous peoples in its observations regarding compliance under article 1 of the ICESCR. In its concluding observations on Sweden, the CESCR expressed concern that the “Sami land rights have not yet been resolved and that this fact negatively affects their right to maintain and develop their traditional culture and way of life, particularly reindeer herding”.Footnote 45 Both the HRC and the CESCR consider traditional economic activities such as reindeer breeding and herding to be an integral part of indigenous culture. Thus, the dispossession of indigenous land resources, a resource that is central to the pursuit of these traditional activities, violates the right of indigenous peoples to maintain and develop their culture. This illustrates the interdependence of both rights.
In the context of the African Charter, the ACHPR noted the interdependence between preserving the culture of indigenous peoples and the control of the land resources necessary for peoples to pursue traditional economic activities of central significance to their culture in Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya (Endorois).Footnote 46 Endorois concerned the forceful removal of the Endorois community to make way for a game reserve and ruby mining. One of the complaints in this case related to the impact of the Kenyan government's measures on the cultural integrity of the Endorois community. The complainants alleged that “land for the Endorois is held in very high esteem, since tribal land, in addition to securing subsistence and livelihood, is seen as sacred, being inextricably linked to the cultural integrity of the community and its traditional way of life”.Footnote 47 The complainants alleged that the government's measures damaged the pastoralists’ way of life in violation of their cultural rights.Footnote 48 The ACHPR apparently agreed with the complainants’ assertion. The ACHPR observed: “by forcing the community to live on semi-arid lands without access to medicinal salt licks and other vital resources for the health of their livestock, the Respondent State [has] created a major threat to the Endorois pastoralist way of life. [The ACHPR] is of the view that the very essence of the Endorois’ right to culture has been denied, rendering the right, to all intents and purposes, illusory”.Footnote 49 By making these observations, the ACHPR equated a pastoral way of life with the culture of the indigenous community. The land dispossessions that damaged the pastoralist way of life of the Endorois peoples are thus rendered violations of cultural rights under the African Charter.Footnote 50
Likewise, in The African Commission on Human and Peoples’ Rights (on behalf of the Ogiek Community) v Kenya (Ogiek),Footnote 51 the African Court on Human and Peoples’ Rights (African Court) noted that indigenous peoples’ culture and land rights are highly intertwined. In Ogiek, the complainant alleged that the Ogiek community consists of indigenous groups who had been evicted by the Kenyan government from their ancestral land in violation of a number of rights (including cultural rights) enshrined under the African Charter.Footnote 52 In this case, the court observed that the preservation of culture is of particular importance in the context of indigenous groupsFootnote 53 and noted that the eviction of the indigenous Ogiek community from their land significantly affected their culture.Footnote 54 The court found the Kenyan government's measures to have violated a number of rights, including cultural rights under the African Charter.Footnote 55 The court thus linked the preservation and promotion of indigenous culture to maintaining access and ties to, and control over, ancestral land. This demonstrates that, in the context of the African Charter, the right to develop and promote indigenous peoples’ culture requires their protection against land dispossession.
The IACtHR's observations on the connection between the right of indigenous peoples to culture and land protection are also instructive as they elaborate further on the link between cultural rights and control over traditional land. In Awas Tingni Community v Nicaragua,Footnote 56 the IACtHR linked the right of indigenous peoples to preserve and maintain their culture with their effective control over land. The IACtHR observed:
“The close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations”.Footnote 57
The IACtHR has also noted the link between the cultural rights of indigenous peoples and control over land in other cases. In Yakye Axa Indigenous Community v Paraguay, the IACtHR noted that the loss of traditional land entails cultural loss in the context of indigenous peoples.Footnote 58 In another case, Xakmok Kasek Indigenous Community v Paraguay, the Inter-American Human Rights Commission (IACHR) posited that the restitution of an indigenous community's lost traditional land is a precondition to guaranteeing the right of that community to preserve and develop its culture.Footnote 59 The IACtHR apparently agreed with the IACHR's argument and noted that it is inconceivable to think of an indigenous community's culture without its traditional land.Footnote 60 This demonstrates that the right to develop and promote the culture of indigenous peoples can only be guaranteed when these peoples are provided protection against land alienation.
It appears that the link between the right to preserve and develop culture and control over land resources in the case of indigenous peoples is well-established in international human rights law. As noted above, the Constitution needs to be interpreted in light of the international human rights instruments adopted by Ethiopia. Seen in this light, it follows that the right to develop and promote culture under article 39 of the Constitution should be understood broadly. Culture needs to be understood to encompass many aspects beyond traditional dancing, clothing and singing. As discussed above, culture, particularly in the context of indigenous peoples, extends to traditional economic activities such as pastoralism, hunting and fishing. To indigenous peoples in Ethiopia, these traditional activities are not only a means of securing economic livelihoods but are highly intertwined with their cultural integrity and distinct way of life.Footnote 61 These traditional economic activities can only be maintained and developed if the land resource that is central to the pursuit of these activities is protected from alienation.
Furthermore, the right to preserve and develop culture and history under article 39 of the Constitution entails that the peoples who are granted this right should continue to live and exist as distinct and viable groups. For this viability to materialize in the context of indigenous peoples, whose identity and culture are highly intertwined with the land, their land should be protected against commercial and non-commercial intrusion. This is not to suggest that the right to exist as a viable group implies living without contact with other people outside their community; such interaction is inevitable and is not necessarily harmful. It is rather to argue that the right to exist as a viable group under article 39(2) allows indigenous peoples to decide by themselves the pace and intensity of contact and interaction with other groups, thereby determining their destiny freely. Seen in this light, the right of indigenous peoples to preserve their culture under the Constitution should be understood as essentially the right of indigenous peoples to be protected against land dispossession.
In sum, read in the light of international human rights law (in particular the ICCPR, the ICESCR and the African Charter), the right of indigenous peoples to develop and promote their culture under article 39(2) of the Constitution should be construed as providing indigenous peoples with the right to maintain access and ties to, and control over, their land resources. In other words, as principal agents who decide the fate of their culture, indigenous peoples need to have greater say and influence in decisions affecting their land resources.
Article 39(3): The right to self-government as indigenous peoples’ control over their land resources
Pursuant to article 39(3) of the Constitution, a sub-national group has the right to a “full measure of self-government which includes the right to establish institutions of government in the territory that it inhabits”. As no definition is provided for “full measure of self-government”, what does this phrase mean in practice for indigenous peoples? Can the right of “full measure of self-government” be construed as conferring on indigenous peoples the right to be principal actors in decisions affecting the utilization of their land resources through their own institutions, instead of state-imposed political institutions deciding on their behalf? This section addresses these questions.
Self-government or autonomy, particularly in the context of Ethiopia, is often understood in its political context (which in turn is conventionally understood as the participation of people in state-organized institutions).Footnote 62 In this way, politics is seen to be independent from other aspects, including economic, social and cultural. Thus, political autonomy does not automatically entail internal autonomy in economic aspects in general and land affairs in particular. It is apparently based on this understanding that some scholars have construed the right to self-determination of peoples under the Constitution as granting political autonomy while conferring little or no economic autonomy. For instance, Fasil Zewdie argues that the constitutional right to self-determination focuses on socio-cultural and political autonomy and does little to protect economic autonomy, particularly the land resources of groups of peoples.Footnote 63 Brietzke also posits that the Constitution does little to protect the control of peoples over their land and natural resources.Footnote 64 To fill the “strictures of the new Constitution”, he suggested that “property rights could be granted to a nation, rights akin to ‘aboriginal’ rights in Australia or Canada”.Footnote 65 By so observing, he implicitly suggested that the Constitution in general, and the self-determination provisions in particular, do not confer on distinct groups of peoples the right to decide freely on how to access and utilize their land resources.
Contrary to such arguments, the Constitution, particularly the self-determination provisions, can be construed as providing indigenous peoples with the right to control and maintain access to their land. The “full measure of self-government” provided under article 39(3) refers not just to political aspects but also to economic aspects, in particular land. First, in so far as there are no constitutional limitations on the exercise of the full measure of self-government, it is fair to say that the term “full measure of self-government” refers to all aspects of local matters of indigenous peoples, including social, economic and political. Since rights to cultural expression are already incorporated in article 39(2), the self-government right in article 39(3) can be regarded as referring to social, economic and political self-administration. Self-determination is not simply a political right as it is often described.Footnote 66 Full measure of self-government or autonomy can refer to many aspects, including political, economic, social and cultural rights, which all are interdependent and “closely woven and inextricably related rights”.Footnote 67
Therefore, it follows that the constitutional right to self-government should be understood to refer to indigenous peoples’ right not just to internal political autonomy (often exercised through state organized institutions at regional and local levels) but also autonomy over the utilization of land, which can be exercised through their traditional institutions. On the connection between the concept of self-government and indigenous peoples’ control over their land, the HRC's observations are instructive. In its concluding observations on Canada, the HRC acknowledged the conclusion of the Royal Commission on Aboriginal Peoples that “without a greater share of lands and resources institutions of aboriginal self-government will fail”.Footnote 68 It thus linked self-government with the right of indigenous people to greater control of their land resources. Furthermore, article 4 of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) provides that self-determination in the context of indigenous peoples entails autonomy or self-government on issues related to their internal and local affairs.Footnote 69 According to the UNDRIP, autonomy or self-government in local affairs includes the right of indigenous peoples to maintain access and ties to, and control over, their ancestral land.Footnote 70 Therefore, self-government for indigenous peoples presupposes not just an abstract right or the mere establishment of state-imposed political institutions. The establishment of indigenous political institutions may be devoid of any concrete manifestations if peoples are not given greater control over and say on the utilization of their most important asset: land. The constitutional right to a full measure of self-government needs to be understood as the right of indigenous peoples to control and manage the utilization of their land resources through their traditional institutions, instead of state-imposed political institutions deciding on their behalf.
Furthermore, within the context of the right to self-determination in international instruments ratified by Ethiopia (including the ICCPR, the ICESCR and the African Charter), the right to self-determination confers on indigenous peoples the right to be in charge of their local land affairs, which entails freely disposing of their land resources.Footnote 71 The right to dispose of land resources in turn imposes a duty on the state to consult effectively and devise reasonable benefit sharing arrangements in respect of the exploitation of indigenous peoples’ land.Footnote 72 The ACHPR has noted that effective consultation requires the state “not only to consult with the community, but also to obtain their free, prior, and informed consent, according to their customs and traditions” should a state allow a large-scale investment project that has a “major impact” within the territory of indigenous peoples.Footnote 73
In addition, the right to self-determination (in particular the right to self-government) should be construed in the light of the rationale for incorporating this right under the Constitution. As noted above, the incorporation of the right to self-determination into the Constitution emerged from the socio-economic, cultural and political marginalization of sub-national groups. As with the UNDRIP, the rationale of the right to self-determination under the Constitution can be seen as “belated state building”,Footnote 74 through which marginalized communities are able to become equal partners with other dominant groups within the larger state. This rationale is included in the preamble of the Constitution, which stipulates that rectifying historic unjust relationships (apparently referring to the relationship between dominant groups and marginalized peoples) is one of its objectives. Indigenous communities in Ethiopia have been dispossessed of vast tracts of land that were critical in supporting their physical well-being and cultural identities in historic and contemporary Ethiopia.Footnote 75 State-imposed or organized institutions have played a major role in land dispossession. In the context of indigenous communities, rectifying unjust relationships should largely constitute empowering communities to be principal actors in the exploitation of their land resources, thus enabling them to determine their destiny with little interference from the larger state. Seen in this light, the right to self-determination in general and the right to self-government in particular must be understood as rectifying injustices in the exploitation of land resources through, inter alia, enabling indigenous peoples to have greater say and control over their land resources through their institutions.
Against this backdrop, it can be concluded that the constitutional right to self-government should be understood as enabling indigenous peoples to be in charge of their local affairs, including the exploitation of local land resources through their traditional institutions instead of state-imposed political institutions.
In arguing for empowering indigenous peoples to be primary actors in the utilization of land resources, a call for complete non-interference by the state in how indigenous institutions manage the utilization of land resources is not being suggested. In some instances, the way indigenous institutions operate could give local chiefs disproportionate power in the utilization of land to the detriment of the larger indigenous community. Consequently, some local chiefs, who claim to represent a certain community, often take advantage of their position in the community and seek to gain disproportionate economic benefit by facilitating the transfer of communal land to commercial actors without the prior and informed consent of local communities.Footnote 76 In various African countries, local chiefs have played an important role in facilitating the transfer of vast tracts of communal land to private and public actors, thus serving as agents in alienating land from local communities.Footnote 77 Given that land is highly intertwined with the economic well-being, physical and cultural survival of indigenous communities, this practice has far-reaching implications for the capacity of these communities to determine their destiny. As is the case with land dispossession of indigenous communities by government measures, the consequence of this practice would run counter to the constitutional right of indigenous peoples to self-determination. The right to self-determination entitles indigenous peoples to the right to be protected against land dispossession, resulting not just from government measures but also by non-government actors, including local chiefs. Thus, it is imperative to scrutinize whether the practices of indigenous institutions ensure that local communities are in charge of their destiny including the utilization of their land, in line with their right to self-determination.
THE QUESTION OF LAND OWNERSHIP: GOVERNMENT'S CUSTODIAN ROLE OVER LAND RESOURCES AND INDIGENOUS PEOPLES’ CONTROL OVER LAND RESOURCES
As noted earlier, the Ethiopian government has handed over vast tracts of land to investors with little or no compensation for, or effective consultation with, indigenous peoples. These dispossessions have partly been undertaken on the basis of interpretation by government officials of the constitutional clause relating to land, which they argue allows the government to alienate land without the consent of indigenous peoples. The constitutional provisions invoked by the government in this way relate to land ownership and the government's custodian role to deploy land resources on behalf of the people. This article now argues that such interpretations are based on a misreading of the Constitution.
Land ownership
Some governments, including the Ethiopian government, claim that land ownership is vested in the government and the government can therefore deploy land resources, including indigenous peoples’ land, as it deems necessary (or as it wishes).Footnote 78 Governments thus treat indigenous peoples as passive beneficiaries, instead of principal actors who have the right to make decisions in the exploitation of land resources.
Ethiopia's constitutional provision on land ownership reads: “the right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the peoples of Ethiopia. Land is a common property of the nations, nationalities and peoples of Ethiopia and shall not be subject to sale or to other means of exchange”.Footnote 79 The Ethiopian government uses this provision to assert that it is the owner of rural land in general and indigenous peoples’ communal land in particular. This interpretation has resulted in the transfer of lands with little or no consent or effective participation from indigenous peoples. The government's interpretation of the constitutional clauses pertaining to land is apparent from the land legislation the government has enacted. The Rural Land Proclamation provides that the “government being the owner of rural land, communal rural land holdings can be changed to private holdings as may be necessary”.Footnote 80 The government's intention to facilitate the transfer of communal land to private actors is reiterated in the preamble of the Rural Land Proclamation, which states that one of its objectives is to encourage the engagement of private investors in pastoralist areas where there is a tribe based communal landholding system.Footnote 81 According to the government, communal land is “underutilized” or “unused” land that needs to be transferred to private investors for “productive use”.Footnote 82 However, the government's legislative and practical measures stand on shaky constitutional ground.
Admittedly, the text of the constitutional provision on land ownership invites various interpretations. There is no jurisprudence on the issue of land ownership. However, scholars have different views on what the Constitution says regarding the question of land ownership. Some scholars note that the Constitution provides for state ownership of land.Footnote 83 This suggests that indigenous peoples only have access rights while the state as an owner can do whatever it deems necessary to deploy the land.
Other scholars provide a different interpretation. Mellese Damtie posits that the phrase “land ownership is vested in the state and the people” in the Constitution is used to treat the state and the people as distinct entities and in so doing make land the joint property of the two entities. He concludes that land is the common property of the state and the people.Footnote 84 Muradu Srur concurs with this interpretation.Footnote 85
The second argument appears to be consistent with the Constitution. The Constitution provides that “the right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the peoples of Ethiopia”.Footnote 86 It further stipulates that the nations, nationalities and peoples of Ethiopia have the right to ownership of land.Footnote 87 There is no use in employing two different terms, the peoples and the state, if the drafters intended to refer only to state ownership of land. The Constitution provides that land ownership is vested in the state and the people, or in the state and the nations, nationalities and people of Ethiopia.Footnote 88 It appears that this phrase was deliberately used to provide people with protection against government abuse if land were to be under the exclusive ownership of the state. This in turn suggests that the Constitution, in using these terms, pronounces that the people as joint owners have the right to decide on how land resources can be deployed.Footnote 89
Moreover, discussions during the constitutional drafting process confirm this interpretation. The minutes regarding the drafting of the Constitution show that the question of land ownership was debated and the idea of making the state the sole owner of land was rejected by representatives from numerous communities.Footnote 90 As a result, the debate was settled in favour of joint ownership by the peoples and the state. The government's claim to sole ownership of indigenous communal lands is thus in conflict with the Constitution.
The interpretation that indigenous peoples are co-owners of land is in line with the jurisprudence under international human rights law. As the ACHPR notes, the jurisprudence under international human rights law bestows on indigenous peoples the right of “ownership rather than mere access”.Footnote 91 What is more, laws that proclaim that land that once belonged to indigenous peoples is now the property of the state discriminate against indigenous peoples and are therefore contrary to international human rights law.Footnote 92
In the light of this analysis, the current land laws that consider land to be government owned are inconsistent with the Constitution. Further, given that the Constitution entitles nations, nationalities and peoples to be co-owners of land, the very wide discretionary power that the government wields in the utilization of land resources, while significantly marginalizing local communities in the decision process, is unconstitutional. Thus, the land laws that give the government sweeping power to act as a principal agent (if not a sole agent) in the utilization of land should be amended in ways that empower rural land holders, including indigenous communities, to have greater say and influence in decision-making relating to land utilization. The empowerment of these communities in the utilization of land (in ways that reflect their co-ownership entitlement) would be in line with their constitutional right to self-determination. In practice, such empowerment will play an important role in resisting the risks of land dispossession. That said, it is beyond the scope of this article to discuss this issue in detail.
Government's custodian role over land resources
The dispossession of indigenous peoples of their land to make way for large-scale agricultural land acquisitions has also been facilitated by the government's interpretation of another constitutional clause pertaining to land: a clause that confers a custodian role on the government to deploy land resources on behalf of the people. This provision stipulates that “government has the duty to hold, on behalf of the people, land and other natural resources and to deploy them for their common benefit and development”.Footnote 93 As Muradu Srur notes, land alienations have taken place partly on the basis of the “power elites` interpretation of this constitutional clause which they, as custodians of land, understand to allow legislative space to expand land rights in favor of improvers”.Footnote 94 The government thus assumes the role of sole decision-maker in the transfer of indigenous peoples’ communal lands to “actors who are assumed to be better land improvers”.Footnote 95 To the government, indigenous peoples are neither owners nor principal decision-makers on the utilization of their land resources.
According to the government, such land transfers are within the government's responsibility for deploying land resources for the “common benefit” of the people. They are being deployed for the common benefit because these investors (who are “better land improvers” in the eyes of the state) create jobs, and generate much needed foreign currency and government income.Footnote 96 So, the argument goes, this in turn benefits local communities and the national economy, bringing “common benefit” to the people. The question of whether the current large-scale agricultural land transfers are being deployed for the “common benefit” of the people is debatable and is beyond the scope of this article. However, it is an erroneous interpretation that the custodian role the Constitution bestows upon the government allows it to become the sole decision-maker in the utilization of land. A custodian role entails that the government has a duty to manage land resources in the form of trusteeship.Footnote 97 A custodian role neither deprives the peoples of their co-ownership over land nor allows the government to dispossess peoples of land as it deems necessary. Given that land is a source of economic well-being as well as basis for the physical and cultural survival of indigenous peoples, this custodian role should be understood as imposing a duty on the government to provide indigenous peoples with protection from being dispossessed of their land by private and public actors. The government breaches its duty of trust when it facilitates the transfer of indigenous peoples’ land to private actors without the consent and effective participation of these peoples.
The analysis in this article is not to suggest that the Constitution does not have gaps in terms of providing legal protection to indigenous peoples against land dispossession. The Constitution has its own limitations. First, the power to hold and deploy land resources is entrusted to government, both federal and regional,Footnote 98 without expressing what role distinct groups of peoples may have in managing and controlling their local land resources. This is unexpected given that the Constitution vests land ownership in the state and the peoples (the nations, nationalities and peoples of Ethiopia). As co-owners, the role of distinct groups of peoples in controlling and managing land should have been expressly specified.
Secondly, by entrusting the government with a trusteeship power without expressly stating what power local communities have in decision-making relating to land, the Constitution has apparently opened the door wide for the government to abuse its power. While trusteeship systems are often promoted as preventing the exploitation of groups of peoples, in practice many governments that were bestowed with the trusteeship of indigenous peoples’ resources have abused their responsibility in ways that are detrimental to the interests of indigenous peoples. For instance, indigenous peoples in the USA and Canada have been fighting against the abuse of government responsibility under the trusteeship systems that entrusted the respective states to hold and manage indigenous land resources.Footnote 99 As Daes posits, trusteeship systems over the deployment of resources can also “be reminiscent of the abuses that were typical of overseas colonies” in the 20th century.Footnote 100
This abuse is often justified by casting the resource use of indigenous peoples as “underutilization” at best and a waste of resources at worst. The government takes the responsibility of a “civilizing” mission over peoples whose use of land resources is “inferior”.Footnote 101 This is reminiscent of the notion of trusteeship introduced as grounds for the imposed exercise of authority over indigenous peoples in the Americas during the 16th century.Footnote 102 During this period, Spain could assume rights over the indigenous peoples in the Americas “if it was to the benefit of the tribes”, giving rise to the doctrine of trusteeship.Footnote 103 Admittedly, the context is different but, like Spain's authority over indigenous peoples’ land, the Ethiopian government assumes an imposed authority to hold and deploy land resources of indigenous peoples for the “common benefit” of the people.
In sum, the analysis in this article is not to suggest that the right of indigenous peoples to control their land resources and to have a greater say and influence in decisions affecting their land utilization, which flow from their right to self-determination, is absolute. The state has the power to deploy resources for the common benefit of the people through, for example, expropriation or imminent domain. However, the right of indigenous peoples to self-determination entails that the government's expropriation power should be extremely limited. If the government takes vast tracts of indigenous peoples’ land (either at once or gradually) through its expropriation power, this will significantly affect the right of indigenous peoples to determine their destiny freely. This in turn affects their right to self-determination, considering that land for indigenous peoples is fundamental for their economic well-being, and collective physical and cultural existence as distinct peoples. As Daes posits, “this would appear to mean that states may not take indigenous resources, even with fair compensation, because to do so could destroy the future existence of the indigenous culture and society and possibly deprive it of its means of subsistence”.Footnote 104
CONCLUSION
The concept of self-determination has gained prominence in Ethiopia since the 1960s and evolved over time. It is now one of the principles on which the Constitution is founded.
The Constitution recognizes the rights of Ethiopia's nations, nationalities and peoples to self-determination. The peoples in the Gambella and Benishangul-Gumuz regions thus have the constitutional right to self-determination. This article contends that these peoples can be identified as indigenous, which necessitates the interpretation of the constitutional right to self-determination in a manner that accounts for the specific situation of indigenous peoples, ie their lifestyle, and their collective cultural and physical survival. This approach does not confer rights on indigenous peoples above and beyond other groups of peoples. Instead, it is an exposition of the law that takes the situations of indigenous peoples into account. This approach is thus not discriminatory against non-indigenous groups. In other words, it is not against the principle of equality but rather consistent with it. This is because, as noted above, the principle of equality requires treating not only the same cases similarly but also different cases differently. Therefore, the interpretation of the Constitution in ways that account for the specific needs and circumstances of indigenous peoples is neither discriminatory nor confers rights above and beyond those of other distinct groups of peoples.
Against this background, this article has construed the constitutional right to self-determination as it applies to indigenous peoples. As the Constitution requires the right to self-determination to be interpreted in the light of international human rights instruments, the article has referred to the right to self-determination provisions under international human rights instruments ratified by Ethiopia and associated jurisprudence to interpret the Constitution. The article demonstrates that the legislative and actual measures the government introduced to facilitate the transfer of large-scale land acquisitions, without the consent and effective participation of indigenous peoples, are incompatible with the constitutional right to self-determination, as it applies to indigenous peoples.
The article posits that the constitutional right to preserve and promote culture and history (stipulated under the article 39 provision on self-determination) essentially entails that indigenous peoples have the right to maintain access and ties to, and control over, their land. This in turn implies that the right to self-determination, as it applies to indigenous peoples, requires that they be protected against land dispossession, as their culture and distinct identity is highly intertwined with their land resources. Furthermore, the right to self-government under article 39 of the Constitution entitles indigenous peoples to administer and exploit local land resources through their traditional institutions, instead of the government being the principal agent in the utilization of land. This means that the practice of handing over vast tracts of indigenous communal land to investors (where the Ethiopian government has been the primary if not the sole agent, with indigenous communities having little or no say) would be incompatible with the right to self-determination, as it applies to indigenous peoples. In addition, reliance by the Ethiopian government on constitutional clauses to deny indigenous peoples greater control and say in the utilization of their land resources is based on a misreading of the Constitution.
This does not mean that the right to self-determination, as it applies to indigenous peoples, is absolute. The constitutional right to self-determination, as it applies to indigenous peoples, may be limited to a certain extent by the government's expropriation power. However, in the context of what the right to self-determination means under the Constitution (as it applies to indigenous peoples), in most cases the government should not exercise its power of expropriation in relation to indigenous territories, even when fair compensation is provided. Otherwise, the taking of vast tracts of indigenous peoples’ land in the name of expropriation will destroy the lifestyle, and collective cultural and physical existence of those peoples, which would be incompatible with their right to self-determination.
The arguments in this article should not be misinterpreted as advancing a position for maintaining the status quo in indigenous societies, being oblivious to the dynamic nature of their social, economic and political lives. It is inevitable that their ways of lives will change over time, which in turn will require adaptation to changing realities. The right to self-determination requires that, during any stages of such transition, indigenous peoples should be in charge of the decision-making process (including on issues regarding the utilization of their land), enabling them to determine their destiny in ways that suit their unique needs and circumstances.
