- Kelsen’s theory is for the legal scientist not the Judge
According to Kelsen, the Grundnorm (basic norm) which must be extra-legal is that norm that gives validity to all other norms. This basic norm must be selected by the legal scientist on the principle of efficacy, that is to say that, the legal order as a whole must rest on an assumption that is by and large efficacious, in the sense that the people do conduct themselves in conformity with it. In other words, it is only when the legal system is by and large efficacious that the legal scientists thereby proceed to select the Grundnorm. This means that the majority of the people must organise their lives in accordance with the legal order; they must conform with the new legal order for the legal order to be seen as being “by and large efficacious”. This assessment is done by the legal scientist in his selection of the Grundnorm. Furthermore, the basic norm is non-positive, to wit, it is not a codified body of laws. Since it is non-positive, it is not the direct concern of legal science, but the Grundnorm is purely formal in giving unity to the legal system and marking the limits of those norms which are the subject of legal science. Due to this reason, Kelsen placed the onus of selection of the Grundnorm on the legal scientist though the Grundnorm itself is extra-legal and non-positive.
Kelsen then makes a curious distinction between the role of the legal scientist and the law-making authority, such as a judge. The legal scientist can only describe and not prescribe, and, therefore, he cannot exercise any choice open to the judge. The legal scientist or the jurist must, therefore, accept any decision as valid, since it is outside his competence to say whether it is within the framework of the general norm in question. In Kelsen’s view, the legal scientist’s role is limited as it is only descriptive. In this descriptive role, he propounds possible interpretations and he has no competence, as it is not his duty, to pronounce authoritatively on a matter. And, though he can point out possible interpretations, he must leave the law-making authority to make the choice, for to influence this authority is to exercise a political and not a legal function.
So, on the resort by judges to the theory of the basic norm in countries torn by constitutional revolutions and coup d’états, Michael D. A. Freeman the author of “Lloyd’s Introduction to jurisprudence” explained:
“The theory of the basic norm becomes a most useful guide in countries torn by revolution or other upheavals, (where) it may prove a valuable construct. Certainly, in the aftermath of such cataclysmic change, lawyers have believed that Kelsen’s theory of the change of the basic norm was the key to unlock the mystery of the validity of pre- and post-revolutionary laws. If it can be shown that their faith in Kelsen is well-placed, there may be some justification for Kelsen’s setting up of an additional extra-legal hypothesis. But, in deciding whether their expectations are legitimate ones, we must again return to Kelsen’s curious distinction between the role of the legal scientist and the law-making authority.”
“For, it may be argued that Kelsen’s theory, being descriptive of legal science, can only indicate the role of the jurist and can in no way assist the judge. This would suggest that those judges who relied upon Kelsen’s theory to solve post-revolution legal problems were labouring under self-deception that Kelsen could assist them. But, this would in no way detract from any assistance that a legal scientist might seek in Kelsenian analysis.” [Emphasis supplied]
So, Kelsen’s theory is for the legal scientist, the jurist, not for the judge, and using the theory for the resolution of disputes in the courtroom is but a wrong interpretation and misunderstanding of Kelsen. This misapprehension is not uncommon for Judges have placed expectations on Kelsen to help them resolve issues after an upheaval but such expectations were illegitimate.
“In a number of cases judges have failed to appreciate Kelsen’s dichotomy between the respective roles of jurist and judge. For example, Udoma CJ in Uganda v Commissioner of Prisons, ex p. Matovu (1966) E.A. 514 said: “Applying the Kelsenian principles … our view is that the 1966 Constitution is a legally valid Constitution and the supreme law of Uganda … the 1962 Constitution abolished as a result of victorious revolution does not longer exist.” But Kelsenian dogma is not really helpful to him. He had a practical decision to take which he did by weighing up relevant considerations such as peace and stability. The pure science of law could not assist in this task. All it can do is to declare upon the new reality, one of the primary factors of which is judicial recognition.” [Emphasis added]
Udoma CJ was wrong in the application of Kelsenian principles to resolve the case the court was faced with simply because Kelsen reserved his theory for the jurists. The learned Professor Date-Bah argued forcefully for the Ghanaian bench to resort to Kelsenian principles to resolve the Sallah case. But the arguments he presented will not receive the full support of Kelsen himself. Had the bench accepted the argument of the AG and applied Kelsen, they would have made the same mistake as the then Chief Justice of Uganda. So, the rejection of the invitation to apply Kelsenian dogma was valid per a true, proper or contextual reading of Kelsen though they rejected same on totally different reasons (or without supplying reasons at all). The learned Professor points out that Anin J.A. was persuaded by the Kelsenian argument. The learned Justice was wrongly persuaded to say the least.
It must be pointed out that some scholars, an example is Harris, argue rather unconvincingly that a judge is a legal scientist. Assuming that is correct, all the judges who applied Kelsen acted properly. Is that why Professor Date-Bah argued for the bench to have applied Kelsenian principles? The reasons he canvassed are that the theory is apt and relevant for the issues under discussion. This suggests that the learned Professor believed that judges are legal scientists since the theory of the Grundnorm is of legal science. This belief was not however expressed, making the learned Professor guilty of the sub silentio posture he accused the judges of. In any case, judges are not legal scientists within the framework of Kelsen’s theory. So, it was incorrect to suggest to the judges that they should have selected the NLC Proclamation as the new Grundnorm for it was not their duty so to do. But, to argue that a judge is a legal scientist is an attempt at tweaking or reformulating Kelsen’s theory. This attempt at the very least demands convincing arguments since it is not faithful to Kelsen’s theory.
- The Proclamation was not even the Grundnorm.
Anatomy of the Grundnorm
Kelsen described the Grundnorm as not being “positive”. This means that the Grundnorm is not a norm of positive law (as it is not created by a real act of will of a legal organ), but is presupposed in juristic thinking.
Kelsen adopted German terminology in explaining the basic norm. The Grundnorm is not gesetzt (not created by a real will), but vorausgesetzt (presupposed) in juristic thinking. Kelsen ultimately believed that the basic norm is a fictitious norm presupposing a fictitious act of will that lays down this norm. These epithets do not describe a national constitution. The NLC Proclamation was positive, not fictitious, not extra-legal among other things.
The learned Professor Date-Bah is not alone in this false equivalence for Professor Stone made a similar mistake in “Legal Systems and Lawyers’ Reasonings (1964)” thus:
“… All that the logical theory of the structure of a legal order tells us is that the apex norm of any legal order, i.e., its constitution, ought to be obeyed”. [Emphasis added]
Stone confuses constitutional norms or the constitution with the basic/apex norm; a very common mistake amongst the readers of Kelsen. The basic norm is purely formal, it is a juristic value judgment, and has a hypothetical character; yet it forms the keystone of the whole legal arch. A constitution cannot be hypothetical. The Grundnorm, is propounded as the means of giving unity to the legal system, and enabling the legal scientist to interpret all valid legal norms as a non-contradictory field of meaning.
The basic norm can be formulated thus: men ought to behave in conformity with the legal order only if it is as a whole effective. That of the United Kingdom legal order is that: “coercive acts ought to be applied only under conditions and in the ways customarily recognised as constitutional from time to time by the population at large”. For further examples on the formulation of the Grundnorm see: Hans Kelsen “General Theory of Law and State (1946)”. Kelsen gave the basic norm of a religious norm system to be: “one ought to behave as God and the authorities instituted by Him command”. Note that he did not identify the Grundnorm to be the Bible and this should provide an ultimate guide to readers. Similarly, he continued, the basic norm of a legal order prescribes that: “one ought to behave as the “fathers” of the constitution and the individuals— directly or indirectly—authorized (delegated) by the constitution command.” Note again that Kelsen did not identify the Grundnorm to be the national constitution.
This begs the question as to what really was the Grundnorm in that era since the NLC Proclamation as demonstrated, was not and could not have been the Grundnorm. And more importantly, what is the present Grundnorm of the Ghanaian legal order?
From the formulations of the Grundnorm above, the Grundnorm of the NLC era can be suggested as: one ought to behave as the coup makers or the NLC Proclamation of February 1966 and the individuals— directly or indirectly—authorised (delegated) by the coup makers or NLC Proclamation command.
Key Points in Finding the Grundnorm of the Current Ghanaian Legal Order
To formulate the Grundnorm of the current Ghanaian legal order, certain key points should be discussed. Without revealing these key historical points, it might be difficult for the legal scientist to correctly formulate the norm whose validity is not dependent on another norm. Ignoring these historical points might lead to formulating a norm as the Grundnorm but such a norm would not be the Grundnorm in esse as such a norm will draw validity from another fundamental norm. These are the historical antecedents.
The 1992 Constitution which is the highest constitutional norm receives validity from P.N.D.C.L. 282, the Constitution of the Fourth Republic of Ghana (Promulgation) Law, 1992. It is this law that ushered in the 1992 Constitution. P.N.D.C.L. 282 states that the Provisional National Defence Council set up a Consultative Assembly to prepare a draft Constitution for the administration of Ghana and this was in turn done under the authority of the Consultative Assembly Law, 1991 (P.N.D.C.L. 253). The said draft was submitted to a national referendum held throughout Ghana on the 28th day of April, 1992. The People of Ghana approved the said Constitution for the administration of Ghana to come into force on the 7th day of January, 1993. Moving on, the Constitution of the Fourth Republic of Ghana (Promulgation) Law states that in pursuance of the Provisional National Defence Council (Establishment) Proclamation 1981, the Constitution set out in its Schedule shall come into force on the 7th day of January, 1993. In other words, the 1992 Constitution which is set out in the Schedule to the Law that promulgated it, states in Section 1 of the said Law that the ushering Law itself (i.e., P.N.D.C.L. 282) was made under the authority of the Provisional National Defence Council (Establishment) Proclamation 1981. This was the Proclamation that gave validity and authority to the P.N.D.C. when it seized power in 1981 through a military coup destroying the previous legal order.
To summarise, the Consultative Assembly which prepared the draft Constitution draws validity from the Consultative Assembly Law, 1991 (P.N.D.C.L. 253). The draft Constitution was approved by the People of Ghana. The approved Constitution was ushered in by and draws validity from the Promulgation Law; the Promulgation Law was made under the authority of the Provisional National Defence Council (Establishment) Proclamation 1981. Though the 1992 Constitution is the supreme law of Ghana, it receives validity from these Laws because the P.N.D.C. created the enabling environment for its birth.
Therefore, the Grundnorm of the current Ghanaian legal order can be reasonably and carefully suggested to be this: one ought to behave as the 1992 Constitution instituted by the PNDC regime and as the individuals or institutions— directly or indirectly—authorised by the Constitution command. This, or anything along these lines should qualify as the current Grundnorm.
I would agree with the learned Professor that, “on the whole, then, it would seem that jurisprudence’s day in court in Ghana was not a particularly favourable one for jurisprudence.” But this has been worsened by the learned Professor himself who mounted a criticism and made suggestions as to how the judicial function would have been exercised properly while relying on a misreading of Kelsen. He, it seems, presented the arguments of Kelsen as a fait accompli after supporting it further with a Ghanaian jurisprudential scaffolding. Jurisprudential theories and analyses cannot be a fait accompli. The principle of charitable interpretation requires interpreting a speaker’s statements in the most rational way possible and, in the case of any argument, considering its best, strongest possible interpretation. However charitable an interpretation one adopts, one is met with the fact that the learned Professor argued that a positive, legal, non-fictional, and non-hypothetical Proclamation is the Grundnorm. It is here that one must drop such a charitable interpretation.
The bench, through some sort of judicial accident, rightly and justifiably rejected the invitation to usurp the duty of the legal scientist. They must, however, be criticised to the extent that they failed to couch valid reasons for this rejection, for it is customary for the judiciary to canvass reasons for arriving at a particular conclusion. Any other critique of the bench beyond this will likely suffer further critique.
- AHWOI KWAMENA in KELSEN, THE GRUNDNORM AND THE 1979 CONSTITUTION [1978-81] VOL. XV UGLJ 139—16. That article has far less objections than the one under discussion as Professor Ahwoi, most importantly, rightly sketched the anatomy of the grundnorm to be a presupposition.
- Again, see “NOTES AND COMMENTS: SALLAH V. ATTORNEY-GENERAL KELSEN & OTHERS IN THE COURT OF APPEAL”  VOL. VII NO. 2 UGLJ 142—156 by TSATSU TSIKATA and FUI S. TSIKATA. The learned writers rightly pointed out that: “It is respectfully submitted that the attitude of the majority of the Court of Appeal in treating the matter straightforwardly as one of interpretation without putting on Kelsenite spectacles was the correct one.” They justified this with the self-imposed limitations of Kelsen’s theory in practical judicial dispute resolution and made legal analysis of section 9 which does not make room for Kelsen. They too presented some instructive insights.