Ghana, like many African countries after colonialism, has had its share of regime changes through the barrel of the gun ever since sovereignty was taken back from the British colonialists. Self-government now raised several eyebrows, and maybe the people entertained thoughts of an immediate better future, because there were some regime changes through the barrel of a gun in the first few governments
At the heart of any discussion on the legal effect of a coup d’etat on traditional constitutional concepts, one is likely to find the Kelsenian theory of successful revolutions and its effects on the constitution of the affected country, which Sowah J. (as he then was) stated in the case of Sallah v Attorney General 2 G & G 493, that he was not going to derive much assistance from foreign theories. He took it a step further to impugn the validity of Kelsen’s analysis as regards its general applicability “into the legal scheme of every country and every age”.
Indeed, one constitution is distinguishable from another by its own provisions. These provisions are usually referred to as either the basic characteristics or features of the particular constitution and these are invariably derived from the basic political philosophy and constitutional arrangements of the particular country. A coup affects these characteristics in different ways. Some automatically disappear as being incompatible with the revolution; some are modified, others are strengthened.
The usurpers, mostly the military, as seen in previous examples, may choose to set aside the constitution completely and replace it with another, or amend it to suit the new situation, or rule without any constitution. This often happens amidst the rattle of weapons and the whirr of military engines in and around the capital of a given country on such occasions, and the forceful possession of media houses to make the new overlords known. Of current relevance of coup d’etat in Africa include that of Burkina Faso,Guinea,Male and Sudan.
This paper therefore seeks to examine the legal effects these coups have on the legal order and structure of the state.
Legal effects of coup d’etats on the structure of a state
A coup d’etat is an illegal and overt attempt by the military or other elites within the state apparatus to unseat the sitting executive” (Powell & Thyne, 2011). A coup d’état is a form of political instability. Military coups, according to Professor Richard Albert, constitutes “an affront to the democratic ideals of stability, consent, and legitimacy, which means they undermine or serve as a “slap with the back of the hand” to what a democratic society stands for.
A successful coup is one in which the ruling power transfers to a different executive for at least a notable period of time. Coups are commonly viewed as a threat to democracy. Thus, the peaceful and organized transfer of power as enshrined in the constitution is relegated to the background through the use of threat or use of force against the incumbent regime by the armed forces of the country.
For the uninitiated in basic Ghanaian history, it is pertinent to point out that, there have been several coups d’état since independence notably within the periods of 1966-1969; 1972-1979; 1981-1992 coup d’etats.
For a fact, policy makers in donor countries have taken action in line with this belief by implementing foreign aid suspension policies in regard to states that recently experienced a coup. More recent research, however, shows that coups may actually promote democracy; particularly in long-standing autocratic states. In these circumstances, the new democracies may benefit more from an increase in aid, as opposed to suspension of aid.
Be that as it may, a successful coup d’état raises some complex legal questions. A coup d’etat affects the basic characteristics of the particular constitution. These are affected in different ways. Some automatically disappear as being incompatible with the system of the revolutionary power; some are modified, while others are strengthened. Among these is constitutionalism which is examined to measure the performance of the rulers after a successful revolution.
If a regime’s coup resisting strategies fail, the consequences of successful and attempted coups can be of further detriment to the surrounding society. For example, most, if not all successful and attempted coups are violent with accompanying significant bloodshed. Moreover, the presence of a coup has been linked to future civil war, which is one of the costliest and destructive activities for a state to experience (Fearon & Laitin, 2003).
Perhaps, it is in view of the above effects of coup d’états that Ghana’s constitution, 1992 frowns upon the overthrow of democratically elected governments in whatever form and citizens have been empowered to resist any attempt by any person or group of persons in that regard, and attempted coup is treason for a perpetrator and is punishable by the death penalty.
These can be seen in the following provisions of the 1992 Constitution.
Article 3(1) of the constitution, 1992
Parliament shall have no power to enact a law establishing a one-party state.
Article (2) of the constituion,1992
Any activity of a person or group of persons which suppresses or seeks to suppress the lawful political activity of any other person or any class of persons, or persons generally is unlawful.
Article 3(3) (a) (b) of the constituion,19992
Any person who –
(a) by himself or in concert with others by any violent or other unlawful means, suspends or overthrows or abrogates this Constitution or any part of it, or attempts to do any such act; or
(b) aids and abets in any manner any person referred to in paragraph (a) of this clause; commits the offence of high treason and shall, upon conviction, be sentenced to suffer death.
Article 3(4) of the constitution,1992
All citizens of Ghana shall have the right and duty at all times -(a) to defend this Constitution, and in particular, to resist any prison or group of persons seeking to commit any of the acts referred to in clause (3) of this article.
The Hans Kelsen’ theory of pure law
The Pure law theory was propounded by Hans Kelsen to explain the legal effect of coup d’états. It is widely known as the theory of discontinuity. Kelsen, for purpose of his pure theory of law, says that a revolution occurs whenever the legal order is replaced in an illegitimate way-a way not prescribed by the former order. Therefore, the military overthrow of the Nkrumah-led government in 1966 was illegitimate since it did not follow the provision of the then 1960 constitution of Ghana.It is, in this context, irrelevant whether or not replacement is effected through a violent uprising against the legitimate organs empowered to create and amend the legal order. It is also irrelevant whether the replacement is effected through a movement emanating from the mass of the people, or through the actions of those in government positions or otherwise. In other words, then, every illegal change in the constitution of a State is a revolution. At its most basic, therefore, a revolution entails an effective seizure of state power.
Kelsen says that those norms which have the character of legal norms and which make certain acts legal or illegal are the objects of the science of law. The meaning of norm is that something ought to be or ought to happen, especially that a human being ought to behave in a specific way. The main challenge for a theory of law, as Kelsen saw it, is to provide an explanation of legality and the normativity of law, without an attempt to reduce jurisprudence, or “legal science”, to other domains. The law, Kelsen maintained, is basically a scheme of interpretation. Its reality, or objectivity, resides in the sphere of meaning; we attach a legal-normative meaning to certain actions and events in the world. This idea of normas can be attributed to Hobbe’s social contract theory where men ought to behave in a certain way so as to have their own rights and liberties protected by the state. They give up their own ideologies and conform to society’s ways, and that is the norm within their law.
Kelsen says that a norm is valid because it ought to be obeyed and applied. A general legal norm is regarded as valid only if the human behavior that is regulated by it actually conforms with it, at least to some degree.
Kelsen then proceeds to measure a revolution by the extent to which members of the community conforms to the rules of the revolutionaries. Thus, a successful revolution is one whose rules are generally being obeyed by the community. Kelsen argues that when a revolution occurs, it is not only the political order that changes but also the entire legal order, underwritten by a new Grundnorm.
Though in most cases only the constitution as well as few laws of political significance changes, the rest of the laws, though they continue to exist, are valid not on the basis of the old constitution but on the new constitution which confers validity on them. They continue in force or derive legal validity from the new norm, through a process of reception or large scale adoption.
The Grundnorm (German for basic law or Source of law), writes Kelsen, “is a fiction in the sense of Vahinger’s philosophy of “As if”. In other words, the Grundnorm must be treated as if it exists, when in fact, the opposite is true. To understand the effect of revolutions on legal system, we shall assume the constitution is the current living grundnorm whiles the historically first constitution is the fictional grundnorm. Any reference to grundnorm subsequently is the living grundnorm and not the fictional grundnorm.
Coup D’etats and the Kelsen Theory in Africa (Some Decided Cases)
Having looked at the Hans Kelsen’s theory of Pure Law relating to the effect of revolutions, we shall now proceed to analyze some decided cases across Africa, which decisions either affirms or negates Hans Kelsen’s theory. In doing this, however, we shall present 3 questions which pertains to the discussion and which each case seems to have answered one way or the other.
Whether a constitution or other basic laws introduced by leaders of successful coup d’états should be acknowledged as valid by the law enforcement agencies?
Whether a successful coup introduces an entirely new legal system such that all legal norms existing thereafter may be said to derive their validity from the new constitution?
When can we say that the new regime and new constitution have become effective?
In the case of Uganda v Commissioner of Prisons; Ex parte Matovu (1966) EA 514, the facts are as follows. In early 1966, there were series of disturbances that led to the then Prime Minister, Dr. Milton Obete declaring himself president and banning the incumbent President and Vice President from their offices. These were contrary to the constitution of 1962. The National Assembly passed a resolution that banned the 1962 constitution and enacted a new constitution in its stead “the 1966 constitution”.
Preventive detention laws were passed to deal with the situation and Matovu was arrested and imprisoned. A habeas Corpus application was made on his behalf, arguing that his detention was unlawful since the 1966 constitution upon which the preventive detention rules were made was itself invalid. The courts had to answer whether the constitution of 1966 which came into being in a manner contrary to the previous 1962 constitution was valid. The court’s judgement was delivered by Udo Udoma CJ as follows:
“That the events in 1966 which led to the abolishing of the 1962 constitution and the enactment of a new constitution can be described as a revolution. According to International law and Kelsen’s theory, a revolution is a valid way of changing constitutions provided the revolution is efficacious. The court was satisfied that the 1966 revolution was efficacious and hence the 1966 constitution was legal. Again according to Kelsen, once a new norm has been introduced, it is with reference to this norm that other norms derive their validity from. Subsequently the preventive detention rules which imprisoned Matovu were legal.”
Hence the Ugandan Courts agreed with Kelsen’s theory of discontinuity and answered the first question in the affirmative.
In the case of Sallah v Attorney General 2 G & G 493. The facts are as follows. Sallah was a departmental manager in GNTC, a company which was established in 1961 under the Nkrumah regime. The GNTC was continued in existence in 1964. Sallah became a departmental manager in 1967 during the reign of the NLC.
In 1969, there was a new constitution and as part of the transitional provisions of that constitution was a provision to the effect that anyone occupying any office established by the NLC regime was to vacate their position within 6 months after the coming into force of the constitution unless the person was reappointed by the new government.
Sallah was therefore asked to vacate his position as he was not reappointed. He brought an action against the AG in the Supreme Court, arguing that since GNTC was established in 1961, his office could not be said to be established by the NLC regime and hence was not subject to the transitional provisions supra.
The AG on the other hand urged the court to give a technical meaning to the word “established”. Depending heavily on Kelsen’s theory, he argues that the word established meant “continued in existence” or “deriving legal validity from”. On the basis of Kelsen’s theory, therefore, all legal norms in Ghana prior to the 1966 coup ceased to derive legal validity from the Nkrumah regime’s constitution and those which continued to be applicable did so because they were continued in existence by the NLC. The office held by Sallah, therefore, was created by the NLC and hence came under the purview of the transitional provision supra.
The courts were, therefore, called upon to make a determination of the second aspect of the legal issue raised above. The majority of the judges in this case relied on plain interpretation of the word “establish” which means “created”.
Drawing analogy from the customary and common laws applicable in Ghana, the court argued that if we are to go by Kelsen, then it will imply that the NLC Proclamation is the one which created the customary and common laws of Ghana and this leads us to some legal absurdities. For as lucidly pointed out by Justice Apaloo, “to permit a thing to continue is to admit its prior existence and it is an abuse of language to suggest that the person who permitted its continuance in fact created it”.
Consequently, the court rejected the Hans Kelsen’s Pure Law theory in its interpretation of the law.
In the Southern Rhodesian case of Madzimbamuto v Lardner-Burke (1969) 1AC 645; the facts of which are as follows. Southern Rhodesia, present day Zimbabwe, was a colony of Britain and had a constitution in 1961. Under that constitution, a state of emergency could last for only three months but could be renewed if a resolution was passed in the Legislative Assembly. Madzimbamuto was arrested and detained on November 6th 1965 under state of emergency regulations.
Whiles he was still under detention, Ian Smith made a Unilateral Declaration of Independence (UDI) which sought to cut off colonial ties with Britain. The 1965 constitution was passed by the Legislative assembly. The British government dismissed the Smith government and refused to recognize its legitimacy and also proscribed the Legislative Assembly. The state of emergency regulations expired on 4th February at the time when Madzimbamuto was still in prison. Mrs Madzimbamuto sought a declaration in the Rhodesian Courts that the regulations made under the 1965 constitution which led to the continuation of the detention of her husband were invalid since the 1965 constitution itself was invalid.
The Courts were, therefore, faced with whether or not the Smith’s 1965 constitution was valid. The Appeal’s Court of Southern Rhodesia held inter alia that the 1965 constitution was invalid and the 1961 constitution was still valid. The detention of Madzimbamuto under the 1965 constitution was, therefore, invalid.
In the Lakanmi Case (1971) 20 I.C.L.Q (Nigeria): the facts of which are as follows;
Nigeria gained independence in 1960 and became a Republic in 1963 with the formulation of a new republican constitution. Article 1 of the constitution makes it the supreme law of the country and any other law which is inconsistent with the constitution, shall to the extent of the inconstistency, be void.
On January 15th, 1966, there was a military action that took control of the federal and regional governments. The remaining members of the former cabinet, excluding the President and Prime Minister met with the military leaders and “handed over” power to the military on the 16th January 1966. The new military leaders on that same day addressed the nation and announced by Decree No.1, (Constitution (Suspension and Modification) Decree No. 1, 1966) which suspended the Constitution that had been used by the previous government.
The military set up a Tribunal of Enquiry into assets of public officers of Western state and by Decree No. 45 froze the 12 landed assets of the Plaintiff, Lakanmi, including his bank accounts. The plaintiff applied for an order of certiorari to remove the order freezing his assets. The courts had to decide whether or not the military takeover of 1966 was a revolution which has led to a new Grundnorm, thereby validating the order to freeze the assets of the plaintiff.
The court held that the actions of the military was an unnecessary intrusion into the sphere of the judiciary and it is, therefore, void.
In conclusion, it is, therefore, seen that some courts in Africa have accepted and applied Hans Kelsen’s Grundnorm theory in their judgements as per the decided cases above, whilst some other, most notably in Ghana, as was seen in the side chosen by the majority in Sallah v Attorney General appear to have rejected the Kelsen theory. As constitutional democracy or at least a resemblance of same, takes hold in many African countries these days, the courts may never have the opportunity to make definite pronouncements on the Hans Kelsen’s theory of “Pure Law” and we can only continue to critique the decisions of the courts in the four cases as read above. However, there is one thing worth noting,thus,a statement made by Prof Date-Bah on the ruling of the majority in this case.
He criticized the ruling and asserted that the Bench did not welcome jurisprudence with open arms, and that the majority’s sub silentio dismissal of the Kelsenian argument put across by the Attorney General was not satisfactory. In his educated opinion, he believed that the declarations made by the National Liberation Council were the Grundnorm after the 1966 coup d’etat. We are of the opinion too, that if the Kelsenian principles are anything to go by, and if the science of law is to be followed, then the newest master in a house is the determinant of what the rules are, especially if that master overpowered the previous one to establish his dominance. It must be noted that, what practices he allows are his will, and what he disallows are no longer law. We believe that the Grundnorm was established by the NLC once they overthrew the previous regime, and what they allow is their law. Sowah J had the power to make this a precedent, and it is power we might never have, but it is an opinion worth expressing.