Pies in the Sky: Manna for Jurisprudes Part 2 by Priscilla Vitoh

The Brooding Omnipresence

In 1970, Ghana witnessed a landmark case in Sallah v Attorney General SC.   20. 4. 70. This case is a landmark not just for the fact that it put the then Prime Minister Dr. K.A Busia and the court on a collision course, it is also relevant as it marked an occasion on which legal theory was itself put on trial. The then attorney general Mr. N.W Adade in his submissions to the court thrust jurisprudential arguments into the crux of his submissions compelling the judges to consider legal theory in their judgement. Former Supreme Court justice, Professor Date-Bah has termed it jurisprudence’s day in court in Ghana. The professor notes rather regrettably that because of the judges’ antipathy for legal theory, the case provided no “manna for jurisprudes. In this case an explicit attempt was made to ignore legal theory and denounce it as irrelevant to the interpretation of law.

In part one we noted Hans Kelsen’s exposition on the nature of law and the grundnorm as the basic norm. In addition we also noted his proposition that all laws in a legal order are nullified when there is a revolution, a change in the legal order that the order did not anticipate. Kelsen’s proposition in relation to the grundnorm and revolutions is also referred to as the Discontinuity Theory. A parallel conception to that theory is offered by another theorist, Finnis, who contends that in a revolution only laws that are expressly repealed and replaced no longer form part of the legal order and everything else stays the same. This is known as the Continuity Theory.

 

Apollo 568

The case involving E. K Sallah turned on where the validity of the law that established his office as manager of GNTC emanates from. This was in the wake of the coming into force of the 1969 Constitution, Ghana’s third constitution since independence and first since the overthrow of President Nkrumah in 1966. In 1970, a letter from the Presidential Commission purported to relieve Mr. E.K Sallah and other civil servants in the government of Ghana from their positions, famously referred to as Appollo 568. The letter was pursuant to section 9(1) of the transitional provisions of the 1969 constitution which gave the commission power to decide the fate of officials who, immediately before the coming into force of 1969 Constitution, held or were acting in any office established by or pursuant to the Proclamation for the constitution of the National Liberation Council (NLC), the military regime that filled the interregnum between 1966 and 1969.

Sallah claimed that, his office, which was established by an executive order in 1961 could not possibly be deemed to have been established by the NLC. Literally this argument was powerful, and presented a huge challenge to Mr. Adade, the Attorney General.

The complexity was that, going by the discontinuity theory, Sallah was wrong, the grundnorm of 1960 was destroyed and any law that existed after the 1966 coup d’etat were to be deemed to have been established by the 1966 proclamation of the NLC. Then again, going by the continuity theory Sallah was right. The 1961 executive order remained in force and its source of validity remained the one provided in 1961.

 

No Manna for Jurisprudes

The Attorney General on his part presented a Kelseniteargument before the court. He argued that the suspension of the 1960 Constitution had caused the Act that established the GNTC to lapse. It lost its validity and only regained its validity from the Proclamation of February 26, 1966. As such the word “establish” contained in the transitional provisions was to be given the technical meaning, precisely, “deriving legal validity from.” As such, the GNTC though established in 1961 was now to be deemed to have been established under the NLC Proclamation made after the coup in 1966 which was the new grundnorm.

Apaloo JA (as he then was) said the following words about the Attorney General’s submission:

This contention seems to me highly artificial and I cannot believe that with the known pragmatism that informs judicial attitude towards questions of legislative interpretation, the Attorney General can have thought an argument such as this was likely to carry seasoned judicial minds. We should fail in our duty to effectuate the will of the Constituent Assembly if we interpreted the Constitution not in accordance with its letter and spirit but in accordance with some doctrinaire juristic theory.

 

From Kelsen to Finnis

The court in this instance was decidedly against the deployment of legal theory in a case like this. Apaloo and Sowah JJA as they then were downplayed the role of legal theory in resolving real legal disputes that required the judicial skill of interpretation. Yet, in rejecting the attorney general’s argument, which centered on the grundnorm (discontinuity theory), the court inadvertently showed support for another theory, continuity theory of Finnis.  Apaloo JA asserted that the effect of the NLC Proclamation of February 26, 1966, was to permit the continued existence of offices in the public services and argued further that to permit a thing to continue was to acknowledge its prior existence and that it was an abuse of language to say that the person or body who permitted its continuance in fact created it, he was, wittingly or unwittingly showing preference for a view of law that other legal theorists have held.

Even without trying their argument fell squarely within Finnis’ continuity theory in which a coup d’etat does not completely end the entire legal order and rules are capable of surviving a revolution or the destruction of the grundnorm. Prof Date-Bah expressed the view that the court could have demonstrated this preference by engaging the concepts and not relegate them with silence. Yet, clearly, in a bid to run away from one legal theory, the court, without intending to, embraced another theory. This is the sense in which, legal theory has the brooding omnipresence in every question of law.