“Re: Jurisprudence’s Day in Court in Ghana” by Fuseini Basit. Part I

This is a long overdue response to an article with the same title by the learned Professor S. K. Date-Bah. While the main object is to critique the arguments canvassed in that article as specious, it is hoped that the overwhelming relevance of jurisprudence to the bench would not be lost on the reader. 

Professor Date-Bah who it seems was overwhelmed by Hans Kelsen’s Grundnorm as well as the overriding relevance of jurisprudence and logical analysis—and rightly so— mounted a critique of the majority decision in the case of Sallah v. The Attorney-General. His arguments are:

That, the bench did not welcome jurisprudence with open arms as he would have expected them to. That, the majority did not delve into a logical analysis of the correctness and validity (or otherwise) of the jurisprudential arguments presented by the Attorney-General (the Professor embraced the correctness of the arguments of the AG rather tightly). That, the arguments couched by the majority in refutation of the jurisprudential arguments by the Attorney-General were far from satisfactory.

The learned Professor then mounted what seems like a defense of jurisprudence which I think was a laudable exercise. He proceeded to make his analysis with Kelsen as the referent and concluded thus:

  1. The sub silentio dismissal of the Kelsenian arguments presented by the Attorney-General was not satisfactory. To him, the Kelsenian argument was not only apt, but also relevant to the issues under discussion and the majority should have considered same. Or, to be fair to the learned Professor, the majority should have engaged in a logical refutation of Kelsenian arguments as same carried some jurisprudential weight.
  2. The Proclamation of the NLC was the Grundnorm after the 1966 coup d’état.

There lies the crux of his submission and I humbly disagree with these conclusions reached by the learned Professor. In this article, I hope to point out that the said position is not even supported by a careful reading of Kelsen whose theory the learned Professor was championing.

THE FACTS OF SALLAH V. THE ATTORNEY-GENERAL

The plaintiff was appointed a manager in the Ghana National Trading Corporation, a State trading corporation, in October 1967. The Ghana National Trading Corporation had originally been established in 1961 by an executive instrument issued under the authority of the Statutory Corporations Act 1961. A new Statutory Corporations Act was passed in 1964 and a new legislative instrument was issued under its authority continuing the existence of the GNTC as a body corporate. At the time of the coup d’état in February 1966—which toppled Kwame Nkrumah— therefore, the GNTC was an already established legal entity. On February 21, 1970, the plaintiff received a letter from the Presidential Commission which informed him that his appointment with the GNTC had been terminated in accordance with section 9(1) of the Transitional Provisions of the Constitution. The plaintiff challenged this view that his post fell within any of the three categories of posts mentioned in section 9(1). He therefore sued the Attorney-General for and on behalf of the Government of Ghana for a declaration that, on a true and proper interpretation of section 9(1), the Government was not entitled to terminate his appointment.

“Section 9(1) of the Transitional Provisions of the Ghanaian Republican Constitution of 1969 reads as follows:

Subject to the provisions of this section, and save as otherwise provided in this Constitution, every person who, immediately before the coming into force of this Constitution, held or was acting in any office established (a) by or in pursuance of the Proclamation for the constitution of a National Liberation Council for the administration of Ghana and for other matters connected therewith dated the twenty-sixth day of February, 1966, or (b) in pursuance of a Decree of the National Liberation Council, or (c) by or under the authority of that Council, shall, as far as is consistent with the provisions of this Constitution, be deemed to have been appointed as from the coming into force of this Constitution to hold or to act in the equivalent office under this Constitution for a period of six months from the date of such commencement, unless before or on the expiration of that date, any such person shall have been appointed by the appropriate appointing authority to hold or to act in that office or some other office.”

The plain meaning of the words used in section 9(1) of the Transitional Provisions seemed to support the plaintiff’s view of the correct interpretation to be put on those words. It was to circumvent this result of reading the disputed provision in its plain meaning that the Attorney-General invoked Kelsen’s theory of the legal effect of revolutions and coups d’état on legal systems to support his plea that the word “establish” in section 9(1) should be given a ” technical meaning.”

THE ARGUMENT OF THE ATTORNEY-GENERAL

The Attorney-General argued, in Kelsenian terms, that the February 1966 coup d’état destroyed the Grundnorm of the previously existing legal order, namely the 1960 Republican Constitution, and, by so doing, destroyed the whole of the old legal order.

The Attorney-General based himself on this legal analysis. He argued that with the suspension of the 1960 Constitution, the Act that established the GNTC should be regarded as having lapsed. It lost its validity and only regained its validity from the Proclamation of February 26, 1966. In the light of this analysis, he urged that the word “establish” should be given the technical meaning of “deriving legal validity from.”

ISSUES

The Attorney-General’s argument raised two distinct issues:

  1. What is the legal effect of a coup d’état on a country’s pre-existing legal system?
  2. Whether such legal effect was relevant to the interpretation of section 9 (1) of the Transitional Provisions.

The majority judges interpreted the word “establish” in its ordinary English meaning and held that the plaintiff’s office was not established by the NLC’s proclamation.

ARGUMENTS OF PROFESSOR DATE-BAH

  1. He preferred that the majority judges should have adopted the Kelsenian analysis by the AG for the resolution of the issues. Since they did not, a satisfactory reason for rejecting the analysis should have been proffered.

According to the learned Professor, the viewpoint adopted by Apaloo and Sowah JJ.A., namely, that the Constituent Assembly could not have had Kelsen’s analysis in mind when the word “establish” was used, meant that they did not find it necessary to discuss the merits of the first issue involved in the Attorney-General’s submission. In other words, they did not find it necessary to find an express answer to the question: “What is the legal effect of a coup d’état on a country’s legal system? ” The judgments of the two learned judges therefore do not contain much “manna for jurisprudes” on that issue. But this is not a criticism that would worry Apaloo J.A. (as he then was), who expressed scant respect for jurisprudence and legal philosophy, so far as their utility in the judicial task of interpretation was concerned. Apaloo J.A. (as he then was) stated that:

“The literature of jurisprudence is remote from the immediate practical problems that confront judges called upon to interpret legislation or indeed to administer any law.”

Of the Attorney General’s Kelsenian arguments he said:

“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 could 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.”

The majority declined the AG’S argument to give a technical and jurisprudential meaning to the word “establish” because such a meaning was not likely to have been in the contemplation of members of the Constituent Assembly. Apaloo and Sowah JJ.A. proceed to interpret the word “establish ” in its ordinary English meaning and to hold that the plaintiff’s office was not established by the NLC’s proclamation.”

In expressing his disappointment, the learned Professor stated:

“… the fact that the antipathy shared by Apaloo and Sowah JJ.A. to the alleged doctrinaire juristic approach precluded them from undertaking a thorough discussion of the merits and demerits of the Kelsenite analysis was regrettable. Apart from their reasoning based on the Constituent Assembly’s intention, the learned judges also supported their rejection of the Attorney-General’s submissions with arguments which implied rejection of the Kelsenite analysis on its merits, but their judgments nowhere contain express reasons why the Kelsenite analysis of the effect of a coup d’état is wrong.”

According to the learned Professor, it was necessary for the learned judges of the Court of Appeal to have appraised Kelsen’s analysis on its merits and either accepted it or rejected it after that. Since counsel had adopted the Kelsenite argument, it deserved a refutation on its merits. It was not satisfactory for such refutation to be done sub silentio. It would have been more instructive for readers of the judgment to have had the learned judges’ express reasons for thinking the Kelsenite analysis incorrect. The basic attitude of Apaloo J.A. was that Kelsen’s analysis was irrelevant, but Sowah J.A. attempted to do more and to impugn the validity of the analysis on the basis that:

One is entitled to ask whether theories propounded by the great jurists ranging from the time of Plato, Marx and to Hans Kelsen are immutable and of general application and whether those theories must necessarily fit into the legal scheme of every country and every age? I do not think so.

The Professor replied by saying that it was too general a reason for the rejection on its merits of Kelsen’s specific theory of the legal effect of a coup d’état. General jurisprudential theories may not always fit the facts of specific legal systems, but the relevant inquiry that had to be made by the learned judge in this case was why it was incorrect to say that the coup d’état of February 24, 1966, had destroyed the Grundnorm of the previous legal order and consequently the whole of that legal order.

I agree with him to the extent that the bench should have provided satisfactory justification for their rejection of the Kelsenian analysis. But, the rejection was right and I shall point it out shortly. Without doubt, Kelsen presents a logical analysis into the way forward with respect to ordering the legal system after a constitutional revolution. There are however several limitations and inherent problems with Kelsen’s theory making the Professor’s suggestion that the theory is a “neat, tautly-argued analytical system that cannot easily be faulted on logical grounds” inaccurate. I agree with the learned Professor to the extent that he calls for reasons to be canvassed for the refutation of the AG’s submission. The AG’s submission is worthy of refutation because it brilliantly fits the case (and it is customary for judges to give reasons for positions they endorse) not because the Kelsenian theory itself is brilliant, because the latter argument would not be motivation enough.

  1. He equated the Grundnorm with the constitution

Archer J.A., on the other hand, spent some time on the Kelsenian analysis before rejecting same but the chief difficulty that he felt in applying the Kelsenite analysis to the Ghanaian legal system after February 1966 was in locating the new Grundnorm.

The learned Professor argued:

“He (Archer) declared that the new Grundnorm was not the NLC Proclamation of February 1966 because this was not, in his opinion, a constitution. A constitution, he considered, had to be predictable, but the Proclamation had the quality of unpredictability because the executive and legislative powers of the NLC were limitless. With respect, it is thought that this is a rather strange conception of what may be considered a constitution. The Proclamation was clearly a constitutional document. It did not embody all the constitutional rules in force during the NLC interregnum, but then hardly any constitutional instrument ever contains all the constitutional law of a country. The Proclamation was the basic constitutional instrument of NLC Ghana because the legal validity of the NLC’s acts and Decrees stemmed from it. It was thus the Grundnorm.” [Emphasis supplied]

Both legal luminaries made the rather common mistake of equating the Grundnorm to national constitutions.  There is false equivalence at play here. National constitutions are not the Grundnorm but they rather contain constitutional norms which are superstructures built on the Grundnorm in the hierarchy of norms.