Land policy in post-independence Eritrea: A critical reflection

Abstract

After a brief review of the traditional land tenure systems in a historical perspective, the article attempts to identify and discuss the main tenets of the post-independence government's land policy and explains the reasons underlying the government's decision to opt for state ownership, in spite of the bleak track record of such a property rights regime, instead of building on the wealth of the historically transmitted, culturally embedded, and socially sanctioned tenurial regimes in the country. On the surface, there appear to be well-thought-out arguments underlying the government's land policy as underpinned by the land law. This article questions the main assumptions and the reasons that support this policy.

Keywords:

• land tenure
• land policy
• customary land rights
• state land ownership

Notes

1. It is common for the overwhelming majority of diasporic Eritreans to build houses in their villages of origin and to be buried in such places.

2. I am grateful to one of the two anonymous referees for this point.

3. The ownership and control rights of these communities are recognised and sanctioned by all other neighbouring communities.

4. British Military Administration, Races and Tribes in Eritrea, 1943, FO 371/35658.

5. Between 1893 and 1895, a total of 314,492 hectares of land was declared as state land by the colonial government (Zekarias 1966, Appendix G: 55).

6. See British Military Administration, Races and Tribes in Eritrea, 15 January 1943, FO 371/35658, Trevaskis Papers, MSS, British Empire s367, Box 1, Item 4, Notes of Guidance for District Officer in Eritrea; (n.d.). These documents are at the Rhodes House Library, Oxford.

7. See EPLF, Resolution 8 (1), Nakfa, February 1994.

8. I am indebted for this to one of the two anonymous referees.

9. Awaj kutsri 58/1994 (Proclamation No 58/1994). All references to the Land Proclamation 58/1994 are my own free translations from Tigrinya into English.

10. Article 3(1) Proclamation 58/1994 unambiguously states, ‘In Eritrea, all land belongs to the state’.

11. This was clearly shown to be the case in papers presented by different participants in a regional conference on African Land and Resource Rights organised by the Norwegian People's Aid on 14-17 February 2005, Nairobi. In all the countries represented at the conference – namely, Eritrea, Ethiopia, Sudan and Somalia (Northeast Africa): Kenya, Tanzania, Uganda (East Africa): Angola, Malawi and Mozambique (southern Africa): and Rwanda (the Great Lakes Region) – all land is owned by the state. South Africa was the only exception where there are three categories of ownership: state, community and private ownership. In the other countries, not only is land owned by the state but the reasons underlying their said property rights regimes are similar.

12. See Land Act no. 4 of 1999 and the Village Land Act no 5. of 1999 implemented in May 2001.

13. Proclamation 58/1994, Article 6(6).

14. Proclamation 58/1994, Article 50(3).

15. Proclamation 58/1994, Article 4(4).

16. Proclamation 58/1994, Article 48(1).

17. Proclamation 58/1994, Article 48(2).

18. Proclamation 58/1994, Article 7.

19. EPLF, Resolution 8(5), Nafka. February 1994.

20. EPLF, Resolution 8, Nakfa, February 1994, 54–5.

21. EPLF, Resolution 8, Nakfa, February 1994, 54–5.

22. The people at the centre of policy making are nearly all men.

23. To mention a few of those who were interviewed regarding this question included the Director-General responsible for land in the Ministry of Land, Water and Environment, the head of regional development in Gash-Barka, the Director-General responsible for water in the Ministry of Land, Water and Environment. Other officials at district and Baito levels were also interviewed. These interviews were conducted between 1994 and 2002.

24. These views are consistently repeated by different government officials in Asmara, Agordat, Tessenei and Goluj. These interviews were conducted during field trips between 1994 and 2002.

25. Though it was the government that decided to vest ownership of all land in the state Alemseged Tesfai, who then worked in the Land Commission as a deputy, was the main architect of the Proclamation 58/1994. The term architect is used in the technical sense. There is no indication that he fully supported or rejected the idea of state ownership. As a legal expert he was asked to draft a land proclamation in accordance with the government's and the ruling party's vision. Soon after he drafted the proclamation, he was marginalised and removed from the office of the Land Commission.

26. This idea was recurrently mentioned by the government officials interviewed in the study. The Director-General of Land in the Ministry of Land, Water and Environment, for example, said, ‘You can't create a united country and people unless people can live and cultivate land according to the law anywhere within Eritrea. Our aim is to help people expand their sense of belonging to a nation rather than to a village. We also want them to embrace the belief that Eritrea belongs to all Eritreans and this includes villages.’

27. See President Isaias Afwerki's interview, Voice of the Masses, 23 April 2003.

28. EPLF's Third Congress, Resolution VIII (5), Nakfa, February 1994.

29. Proclamation 58/1994. Article 25(1).

30. Proclamation 58/1994. Article 35(2).

31. This is unclaimed land and land that reverted to the community after the death or emigration of a landholder. It is continuously replenished by these means.

32. Personal communication, officials in the Ministry of Land, Water and the Environment, Asmara 2001.

33. Adgna Tegeleba Customary Code, 1938, Article 239.

34. Lego Chewa Code of Customary Law 1935. Article 14.

35. Personal communication, officials in the Ministry of Land, Water and the Environment, Asmara, August 2001.