In the civil laws of all modern societies, a contract is a legally enforceable agreement between two or more parties with mutual obligations. There are all sorts of contracts, and certain ones have no validity in law. For instance, there are “unconscionable contracts” in which one party imposes terms on the other party by duress (such as use of physical threats, economic pressure, misleading information, etc.), undue influence (one party takes unfair advantage of the weaknesses of the other party) or “unconscionable bargaining” (the party in a superior bargaining position denies the subordinate party realistic opportunities to negotiate beneficial terms leaving that party the option of only acquiescing to the deal). A contract based on an “illusory promise” is invalid because one party has the sole option to live up to the terms of the contract or to avoid the obligations at will. If Zenawi does indeed have a legal “contract” with the people, it must be of the “unconscionable” variety.
A Social Contract?
Perhaps Zenawi is referring to a “social contract” with the Ethiopian people. Jean-Jacques Rousseau, the philosophical anchor of the French Revolution theorized about a “social contract” in which individuals gave up their natural liberty to ensure their self-preservation in civil society. Rousseau penned the memorable phrase, “Man is born free, but everywhere he is in chains.” The “chains” were put on man by other men who seek domination. Rousseau’s solution to the problem of “man in chains” was to create a community of people who establish a state that expresses their sovereign “general will” by passing laws that benefit them. Rousseau believed that government has a tendency to usurp the power of the people and supported the right of the people to alter their form of government and replace their leaders at will. The question is whether the Ethiopian people are in “chains” or “free” in their “contract” with Zenawi.
John Locke, the philosophical anchor of the American Revolution, also theorized about a “social contract”. He argued that individuals collectively formed society in mutual consent to protect each other’s life, liberty and property by establishing government. He believed the “just powers” of government derive from the consent of the governed. He wrote, “Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power vested in it; a liberty to follow my own will in all things, when the rule prescribes not, and not to be subject to the inconstant, unknown, arbitrary will of another man.” Locke’s basic argument is that people entered into a “social contract” to live under the rule of law (that is by application and respect for constitutional principles and legislation passed by the people’s representatives) and avoid the rule of a tyrant. Locke’s “social contract” is revocable at any time by the withdrawal of popular consent. The question is whether Zenawi’s vaunted “contract” with the Ethiopian people is based on the “rule of law” or the “arbitrary will of a man”?
Thomas Hobbes, the English philosopher and champion of absolutism (dictatorship) also proposed a “social contract” theory. He argued that in the state of nature (before government was established), life was “nasty, brutish, and short”. To end the “war of all against all” in the state of nature, humans entered into a “contract” and gave up their “unlimited natural freedoms” in exchange for a political community and civil society that maximized their self-preservation and personal security. Hobbes believed that a powerful and supreme sovereign (a monarch) was needed to enforce the “social contract”. Unlike Locke who believed in the rule of law, Hobbes believed in rule by prerogative (arbitrary rule by one individual who is accountable to no one) in which a monarch would exercise supreme authority to ensure the safety and security of individuals in civil society. Having personally experienced the English Civil War, he came to believe that the burdens of the most oppressive government are “scarce sensible, in respect of the miseries, and horrible calamities, that accompany a Civil War”. In other words, having an absolute dictator is better than risking civil war. Louis XIV of France was probably echoing Hobbes when he told parliamentarians challenging his personal decrees, “L’État, c’est moi.” (The state, it is me). More recently, Moamar Gadhafi and his sons have been pleading to extend their 42-year “contract” on the Libyan people indefinitely by claiming: “The tribes are all armed, there are forces from the Libyan army and the eastern region is armed. The situation is very dangerous. From the perspective of a civil war, the leader must play a very, very big role in calming Libya and convincing people to sit together. If something happened to the leader, who would be in control? A civil war would start.” Perhaps Zenawi is referring to a Hobbsean-type of social contract?
Second, the penalty for violation of the terms of a leasehold is termination and forfeiture (give up the land) as set forth in Article 15: “The lease-hold of urban land shall be terminated where the lease-hold possessor has failed to use the land for the prescribed activity or service within the period of time set.” It is not a crime to violate a “contract of lease”, yet Zenawi says “it does not serve our development interest to lock up so many businessmen since they admitted their mistakes”. Zenawi has no legal authority to “lock up” any businessmen for “mistakes” allegedly committed in the exercise of their contractual rights. All he can legally do is repossess the leased land following a contested court trial and seek compensation for damages, if any. To threaten businessmen to pay “hefty fines” or face “lock up” is plain extortion.
Third, Zenawi says the “law is open to interpretation.” The relevants parts of the Proclamation are plainly written and present no ambiguity which require interpretation. But if there is a dispute over the meaning or application of a particular law or provision, it is up to the courts to make authoritative determination on what the law means. Simply stated, whether the Proclamation allows commercial transfer of leasehold interests is purely a question of law (not fact) to be decided impartially by a judge; it is not a question to be decided by executive fiat in which one person becomes the policeman, judge, jury and executioner. For Zenawi to issue authoritative legal interpretation and dispositive declarations on what he concedes to be ambiguous questions of leasehold law is not only a travesty of justice but also an unconstitutional usurpation of judicial power. (Apparently, “one businessman” has chosen to try his luck in court by refusing to pay “hefty fines”. Best of luck!) Anyone who doubts the complete absence of the rule of law in Ethiopia and entertains the fantasy that there is an independent judiciary can take hard lessons from this example.
Fourth, Zenawi says “developers were grabbing land that does not belong to them in any legal sense and misusing the land lease rights they were given for personal profit and speculation.” It hard to make sense of this statement. Nonetheless, businessmen, including developers, are in business to make profit, as much profit as they could. Few businessmen and women are in business for charity, and even fewer would remain in business if they did not make a fair profit. A leasehold is a valuable asset in its own right and can be traded for profit as a physical asset, a fact fully acknowledged in Articles 13, 4 and 5 of the Proclamation. What must be understood is the fact that legitimate developers buy land, acquire leaseholds, finance real estate deals and build projects at great risk and expense. They often take extraordinary risks in arranging financing, obtaining loans and securing necessary regulatory approvals. More often than not, they are at the “mercy” of architects, city planners, engineers, surveyors, inspectors, contractors, brokers and building materials suppliers. It is unfair and mean-spirited to paint them with a broad brush as “land grabbers” and “land speculators” who are no better than gangsters and street criminals that deserve to be “locked up.”
In the American Declaration of Independence, Thomas Jefferson, inspired by Locke, wrote that when government breaks its contract and faith with the people, the people have the right to terminate the contract at will and reinstitute government that earns their consent and deserves their trust: “That whenever any form of government becomes destructive to these ends [life, liberty and the pursuit of happiness], it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.” The only contract that cannot be broken is one concluded with Mephistopheles.
