By Teweldeberhan Gebre
On 2 December 2016, the Government of Eritrea (GoE) has issued a proclamation, Proclamation No. 178/2016 on farm income and livestock taxation (ግብሪ ካብ ኣታዊ ሕርሻ ገጠርን እንስሳ ዘቤትን), that replaced Proclamation No. 63/1994. The proclamation has entered into force from 1 December 2016. Issuing numerous legal notices, decrees, orders, and proclamations are things national and subnational authorities can do to manage their affairs when they are in government. In the case of Eritrea there is no such mechanism to scrutinize any legal bills issued by the executive branch of government because there is no functional legislative body with a constitutionally vested power to make laws, to alter or completely repeal them. In the absence of a legislative body, legal bills issued by the executive branch of government may be subject to inconsistencies and controversies because of the lack of proper enquiry and scrutiny. Proclamation No. 178/2016 on farm income and livestock taxation is an example of these inconsistencies and controversies although not an exceptional in the Eritrean legal landscape.
According to the Land Proclamation No. 58/94 Article 4 (1) “[e]very Eritrean citizen shall have a usufruct right over land.” In this land proclamation of Eritrea there is no reference for ‘agricultural usufructuary lease’ or ‘lease’ for Eritrean citizens while reference on land lease for foreigners was made under Article 8 of the land proclamation. According to the land proclamation every citizen is granted a usufructuary right on land for lifetime to use, make improvements and enjoy its fruits although citizens are not allowed to sell and donate lands allocated to them. Moreover, according to Article 27 of the land proclamation, an Eritrean citizen can lease his/her usufructuary rights over land in whole or in part in which case the “lease duration and rent shall be determined by an agreement to be made between the parties.” Given the historically collective land holding system in most parts of Eritrea calling ‘land is owned by the state’ does not make a difference as long as citizens are indiscriminately entitled to usufructuary rights over land including its improvements and enjoining its fruits.
Proclamation No. 178/2016 Violates the Land Proclamation
Proclamation No. 178/2016 on ‘farm income’ and livestock taxation apart from the provisions for the livestock taxation violates the provisions in the Land Proclamation No. 58/94, specifically it violates Article 4 (1) “[e]very Eritrean citizen shall have a usufruct right over land.” Fundamentally, Proclamation No. 178/2016 is not about levying tax on agricultural incomes but a new land lease system systematically imposed on farmers. It is an act of taking back farmers lifetime usufructuary rights on land provided by the Land Proclamation of 58/94 without legally repealing the land proclamation Article 4 (1). Taxing farmers based on their farm incomes and imposing lease/land tax based on the numbers of hectares apportioned to them are completely different things. Hence, apart the provisions for the livestock taxation, the title of Proclamation No. 178/2016 “ግብሪ ካብ ኣታዊ ሕርሻ ገጠርን እንስሳ ዘቤትን ንምእካብ ዝወጸ ኣዋጅ” is not only flawed but also meant to tacitly introduce lease system into the ordinary Eritrean farmers. While the short title of the proclamation says “Proclamation No. 178/2016 to Collect Tax from Farm Income and Livestock”, the truth is the government is tacitly introducing a usufructuary land lease system into the subsistence and commercial farming. There is no such thing called ‘farm income tax’ or anything similar in the new proclamation despite the title of the proclamation. See below the Tigrigna versions of Articles 1 and 4 for yourself.
ዓንቀጽ 1 – ሓጺር ኣርእስቲ
እዚ ኣዋጅ’ዚ “ካብ ኣታዊ ሕርሻ ገጠርን እንስሳ ዘቤትን ግብሪ ንምእካብ ዝወጸ ኣዋጅ ቁጽሪ 178/2016”ተባሂሉ ክጥቀስ ይከኣል።
ዓንቀጽ 4 ኣገማምታን ኣከፋፍላን ግብሪ
ዝኾነ ሰብ ብውልቂ ወይ ብጉጅለ፦
- ልምዳዊ ሕርሻዊ ስርሓት ንምክያድ (መሬት) ዝተዋህቦ ዘለዎ ንነፍስ ወከፍ ሓደ ሄክታር 150 ናቕፋ (ሚእትን ሓምሳን ናቕፋ)
ዓመታዊ ኣታዊ ግብሪ መሬት ይኸፍል።
- ካብ ልምዳዊ ሕርሻዊ ስርሓት ወጻኢ ፍቓድ ንግዳዊ ሕርሻ ዘይተዋህቦ ግን ንግዳዊ ጠባይ ዘለዎ ሕርሻዊ ንጥፈታት ዘካይድ። ኣብ ልዕሊ ኣብዚ ዓንቀጽ’ዚ ንኡስ ዓንቀጽ ዝኽፈል ተወሳኺ ንነፍስ-ወከፍ ርብዒ ሄክታር 150 ናቕፋ (ሚእትን ሓምሳን ናቕፋ) ዓመታዊ ኣታዊ ግብሪ መሬት ይኸፍል።
Article 4 of Proclamation No. 178/2016 requires subsistence farmers and commercial farmers to pay, respectively, Nfa. 150 and Nfa. 750 per hectare annually. This is not about collecting tax on farm income but land lease payments to the government as the owner of the land. Interestingly, as in Article 4 (1) the government accidentally admits that this is not a farm income tax but land tax (ግብሪ መሬት). The question is, why does the government call the proclamation, “Proclamation No. 178/2016 to Collect Tax from Farm Income and Livestock” while it is actually imposing a land lease system into the farming communities? Well, the answer is because the provisions of the new proclamation (Article 4(1&2) are in sharp contradictions with the provisions of the Land Proclamation, specifically Article 4(1) of the Land Proclamation that gives citizens a lifetime usufructuary rights over land.
Another difficulty with the new Proclamation is that the per hectare land lease price is the same (Nfa. 150/ha for subsistence farmers and Nfa. 750/ha for commercial farmers) across the nation. This means no due consideration was given to the differences in land fertility and productivity. The chance to reverse this systematic introduction of agricultural usufructuary land lease system across the whole farming communities is unmistakably impossible given the political culture of the ruling class. For God’s sake, let us accept this new land lease system but the problem as I pointed out above goes beyond just imposing a new land lease system. The lease price per hectare is the same across all lands regardless the productivity or fertility of this and that plot of land. In other words, considering the productivity of the land, one hectare in Tessenei-Aligdir and elsewhere in Anseba region is not the same. Hence, imposing the same lease price across the country is not only unfair but also lacks common sense of governing a nation’s economy.
- The government has to repeal/amend its Land Proclamation No. 58/94 because now citizens are no more entitled for usufruct rights over land which was given under Article 4 (1) “[e]very Eritrean citizen shall have a usufruct right over land” of the Land Proclamation.
- The Government has to amend the title of its new proclamation which reads as “Proclamation No. 178/2016 to Collect Tax from Farm Income and Livestock” to something like “Proclamation No. 178/2016 to Introduce Agricultural Usufructuary Lease System…” because this new proclamation is not about taxing farmers based on their farm income but imposing a land lease tax.
- The per hectare lease price for subsistence farmers is Nfa. 150 and is the same across all regions of the nation. Does this mean all lands across the country have the same productivity and fertility level? I think this assumption is wrong. Applying the same per hectare lease price across the nation and plots of land by disregarding the nature and productivity aspects of agricultural land harms farmers who have acquired poor fertility and productivity lands.