In this piece, we shall analyze the theory of discontinuity propounded by Hans Kelsen and the theory of Continuity as propounded by John Finnis. We shall, while looking at Kelsen’s theory, make a brief detour to the proposition by H.L.A Hart. We shall look at four main cases, which were decided in African Courts that compelled the courts to make a determination of the legal effect of coup d’états. We shall begin with the Ghanaian case of Sallah v A.G and then proceed with Uganda v. Commissioner of Prisons, Ex parte Matovu. The next will be Madzimbamuto v Lardner-Burke and another which occurred in the then Southern Rhodesia and finally the Lakanmi case in Nigeria.
There are two theories which were put forward to explain the legal effect of coup d’états. The first theory propounded by Hans Kelsen in “The Pure Theory of law” is widely known as the theory of discontinuity. According to Kelsen, the legal system can be likened to an inverted pyramid. At the top of the pyramid is the current legal system, and as one descends the pyramid, the current legal system derives its source from the previous, whiles the previous derives it’s source from the preceding system, and all these continue until one gets to the bottom of the pyramid where one encounters the basic norm, which he called the grundnorm. The Grundnorm, 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. 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.
Kelsen defines revolution as an overthrow of a government in a way that is not anticipated or provided for by the constitution. This change might be brought about through either action by those in official positions or by mass revolt. Kelsen then argues that since every legal system derives its legality from a basic norm (such as the constitution), once there is a process that abolishes the basic norm, the legal system cannot be said to be valid. 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 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.
Hart uses different tools of analysis from Kelsen. According to Hart, the legal system is a union of primary rules of obligation and secondary rules addressed to officials. Primary rules are those that impose some form of obligation on individual members of the community in their private or official capacities and include rules such as restriction against the use of violence, theft, and deception. These rules may stem from custom. The secondary rules are to complement the primary rules due to the non-standard and nonexistence of central point of enforcement of the primary rules. There are 3 types of secondary rules; rules of recognition, rules of change and rules of adjudication.
Another proposition is that of John Finnis. According to Finnis, in any legal system, there are three rules that constitute the system. The rule of succession to office, the rule of competence and the rule of succession of rules. According to Finis, one can only talk of one legal system having been replaced by another legal system if all three rules change through an event such as a revolution. He argues further that when one looks at revolutions, it is mostly the rule of succession that changes, (as new leaders assume political office through means which are not previously provided for) and some aspect of rules of succession of rules (as the process to make new laws may differ from the previous process). The rule of competence in most cases is unchanged and so many ordinary laws governing the community remain the same.
Having looked at the theories relating to the effect of revolutions, we shall now proceed to analyze the cases mentioned earlier. In doing this, however, I present 3 questions which pertains to the discussion and which each case seems to have answered one way of 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 efficacious?
In the case of Uganda v. Commissioner of Prisons, Ex parte Matovu, 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.
The Ghanaian case of Sallah v. A.G, the Ghanaian courts were not so complementary of Kelsen. 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. Based on this provision, the Presidential commission which was performing the functions of the president wrote to Sallah to leave his position as he was not reappointed. Sallah 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 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”. Having dismissed Kelsen’s theory of discontinuity, the court, speaking through Justice Archer agreed with Finnis (though reference was not made to him) when it said that a coup does not destroy the entire legal order but only aspects of it. It is only the decrees and acts of the new government that are referable to the proclamation for validity and not the norms existing prior to that regime.
We now look at the Southern Rhodesian case of Madzimbamuto v. Lardner-Burke and another the facts of which are as follows. Southern Rhodesia 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. Lardner-Burke, acting under the 1965 constitution purported to make fresh regulations which led to Madzimbamuto’s continuous stay in detention. 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. However, the courts for reasons of doctrine of necessity ruled that the many declaration of emergency by the Smith government were valid. The Court then distinguished between de facto government and de jure government based on the level of efficacy and the likelihood of its continuance. According to Beadtle CJ, the measure of efficacy of a revolution was to be seen in the current effectiveness over the population and the territory and the likelihood of this effectiveness continuing in the future. Where a revolution was currently effective over the territory but there is no likelihood that it will continue to be effective, we cannot talk of a successful revolution as there is still a struggle for power. Where the revolution was currently effective and it seems likely that the effectiveness will continue, that regime is the de facto government. On the other hand, where the current regime is effective and it is likely that it will continue to be effective, then the regime has been firmly established and hence becomes the de jure government. The court based on this criterion concluded that the Smith government was the de facto government, and under such conditions, could only operate based on the powers given to it under the 1961 constitution. It was only when the government had become de jure that it can introduce its constitution and hence the 1965 constitution was invalid. The Rhodesian courts have thus rejected Kelsen’s test for efficacy of a revolution as Kelsen talks of immediate and de facto efficacy. Kelsen’s theory did not make any distinction between de facto and de jure efficacies implying that he viewed both as one. On appeal to the Privy Council, the court held that the Smith government and its 1965 constitution were illegal as the revolution was not successful (as can be seen in the attempts made by the British government to regain control).
In the Lakanmi Case in 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. This constitution established the federal government led by the President and other notable offices such as the Prime Minister, federal legislature and the judiciary, as well as the regional governments.
Article 1 of the constitution of the federation states below;
This Constitution shall have the force of law throughout Nigeria, and, subject to the provisions of section 4 of the Constitution, if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, 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) hereafter referred to as (“the Decree” ) the suspension of the offices of President, the Prime Minister and Federal Ministers as well as those of a Regional Governor, Premier and Regional Ministers. The Decree also invested legislative powers in the Federal military government. Part of the Decree sought to modify Article 1 of the 1963 constitution supra as follows
This Constitution shall have the force of law throughout Nigeria and if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this Constitution shall prevail and the other law shall, to the extent of the inconsistency, be void.
Provided that this Constitution shall not prevail over a decree, and nothing in this Constitution shall render any provision of a decree void to any extent whatsoever.
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 made by the Chief Justice Samola, who was the chairman of the Tribunal of enquiry of the Western state.
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 inter alia that
- The events of January 15, 1966, did not amount to a revolution but a mere offer of invitation to the Armed Forces to form an interim Military Government, making it clear that only certain sections of the 1963 Republican Constitution were to be suspended, and the offer was duly accepted by the Armed Forces.
- That the constitutional interim government which came into being by the wishes of the representatives of the people, and whose object is to uphold the Constitution, could only derogate from that Constitution if the derogation is justified under the “doctrine of necessity.”
- That the Federal Military Government assumes the continued existence of the Constitution and in its Decree No. 1 of 1966 impliedly provided for a separation of powers between the legislatures, the executive and the judiciary as did the Republican Constitution; and that this must be perpetuated unless necessity otherwise arose compelling it under section 3 of Decree No. 1 of 1966 to make laws by decree “for the peace, order and good government of Nigeria on any matter whatsoever.”
- That since Decree No. 45 of 1968, which sought to validate the order made by the tribunal under Edict No. 5 of 1967 (and this implied that it was otherwise invalid), was a legislative act which impinged upon the sphere of the judiciary (by specifically naming the appellants and some other persons in its schedule) it was an unnecessary intrusion into the sphere of the judiciary and it is, therefore, void
It must be noted that the Nigerian courts supported the Kelsen theory of discontinuity. If there was actually a revolution then Article 1 of the 1963 republican constitution would cease to exist and as such the plaintiff could not seek the relief he so requires. On the other side, if what happened in 1966 was not a coup but a mere formation of an interim government to maintain peace in the country then the 1963 Republican constitution would still be in operation and as such the plaintiff could be granted the relief he so wants. The courts came to a conclusion that the events in 1966 was a mere handing over of powers to the Federal military Government to restore peace and stability. It was based on the doctrine of necessity. They also made a statement that, notwithstanding the incidents that had happened, they agree with the theory of discontinuity that revolutions destroy the pre-existing order completely and as such if the events which occurred in 1966 amounted to a revolution then they would have used the Kelsen theory and concluded that the 1963 constitution was void.
It is, therefore, seen that the courts in Uganda and to a large extent Nigeria agrees with Kelsen’s theory of discontinuity, whiles those of Ghana and Southern Rhodesia appear to have rejected the Kelsen’s theory and rather supported the continuity theory of John Finis. As constitutional democracy or at least a resemblance of it, takes hold in many African countries these days, the courts may never have the opportunity to pronounce between these two schools of thought and we can only conitue to critique the decisions of the courts in the four cases supra.