LEGAL EFFECTS OF A

COUP D’TAT &

REVOLUTIONS
 Objective of the Class
• To provide a framework understanding of the effect of the abrogation of
the constitutional order
• Draw a link between past military regimes and their related impact on our
current constitutional dispensation
• Understand why some democracies fail and some pitfalls to avoid to
prevent the emergence of tyrannical and despotic regimes
 RECOGNITION OF THE POSSIBILITY OF INTERFERENCE
WITH CONST.
• It has been said the Constitution of Ghana is not only a Political Document but also a
historical one providing evidence of lessons from the past and the modern realities
the past experiences create.
• Article 3 (1-7)) of the Constitution, 1992 particularly 3(3) provides
“ A 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 upon conviction suffer death.
Clearly, a combined reading shows that a coup is discouraged but there is the
recognition that it could happen and thus article 3 (4) encourages citizens defend the
constitution and to do all in their power to restore same if suspended, overthrown or
abrogated
 Key Questions to ponder over
• What amounts to a Coup?
• Are the perpetuators of Coups guilty of treason?
• Does the existing Constitutional Order survive a Coup d'état?
• What is the legal foundation of a regime born out of Coups?
• What are the powers of the courts to validate or invalidate
interruptions to constitutional order?
• What is the effect of the Coup on the understanding of basic
constitutional theories and concepts?
Relevance to our study of Constitutional law
• Ghana has had 5 Constitutions since Independence
• But Ghana technically has 4 Military Interruptions and a
number of Palace Coups and many attempted Coups
• Chapter 25 provides for ways in which the Constitution may
be amended, But…
• Article 3 of the 1992 contemplates the possibility of
occurrence of Coups in Ghana and provides for the
empowerment of people to resist such an occurrence.
• Over the years the courts have had to answer these
questions and also to resolve issues of the survival of the
constitutional order and the validity and legitimacy of
powers of the Coupist.
• Fundamental of these questions have been
• the question of what a Constitution is?
 That fundamental question
• What is a Constitution?
• What is a Establishment Proclamation Decree?
Read S. K. Date-Bah, Jurisprudence's Day in Court in Ghana, The International and Comparative Law
Quarterly, Vol. 20, No. 2 (Apr., 1971), pp. 315-323 commenting on the judgment of Archer JA, in Sallah v AG
[1970]CC
• “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 NLCs acts and Decrees stemmed from it.”
 The Coup d'état Phenomenon
• In contemporary Africa, out of the current 53 States there are
so far only nine (post-apartheid South Africa, Swaziland,
Zimbabwe, Botswana, Mozambique, Djibouti, Malawi,
Namibia, and Mauritius) that have not experienced a
successful or failed military coup or an armed insurgency.

• Ghana has experienced its fair share of Coups.

• Coup d’état’ literally means “a blow to the state”;

• i.e. A blow to the state by the state’s own military force. Analytically,
the blow is not to the state as such but to the existing government.

• S. Huntington, "the infiltration of a small but critical

segment of the state apparatus, which is then used to
displace the government from its control of the remainder.”
 The Coup d'état Phenomenon
• According to Tayyab Mahmud
• A coup d’état on the other hand typically aims only at capturing political power extra-constitutionally.
• Only that part of the Constitution which bears on the formation of political organs of the State is
subverted.
• The functional frameworks of the State, the judicial branch and the wider legal order are typically
kept in place.
• the term has acquired the settle meaning of a sudden, often violent, and unconstitutional overthrow of an
existing government or regime by a small group.
• A coup merely results in the replacement of leading government officers and thus is a change in power from
the top. It rarely alters a country’s fundamental social and economic policies, and its foreign policy. It rarely
results in a significant redistribution of power among competing sections of the country.
 Coup-Revolution contrasted
• According to Welch& Taintor (eds)(1972)
• Revolutions are defined as involving the “Rapid tearing down
of existing political institution and building them anew on a
different foundation.”
• This envisages a complete metamorphosis that affects both civil
society and the entire State.
• Transformation is so pervasive that legitimacy of the new order is
completely autonomous of the processes and institutions of the old
older.
• According to Prof. Anyangwe a revolution is usually
achieved by a large number of people working for basic
social, economic, political and foreign policy change.

2014/2015 First Semester GIMPA Law - Nana Tawiah Okyir

 What is a coup d'état/revolution?
• Hans Kelsen, in his seminal work, General Theory of Law and State (1946) states
that:

• “…. The State and its legal order remain the same only as long as the constitution is
intact or changed according to its own provisions.”
• Coup d'états are usually referred to as the
unconstitutional overthrow of an existing
government

• Such state of affairs are more often than not

characterized by violence

• They usually affect the top hierarchy of

government/State officials
• Revolutions, however, are more often than
not popularly based!

• It is usually characterized by an uprising of

some sort (whether or not spontaneous) –
and having the tacit approval of the
masses

• E.g. the French Revolution; The Arab

Spring etc.
• According to Kelsen, any illegal change in
the Constitution of the State represents a
revolution

• Such a revolution in his opinion, does away

with the pre-existing legal regime, and
replaces it with a new one!

• DO YOU AGREE?
• According to Kelsen, coup d'états are subsets of
revolutions

• They are thus a type of revolution that destroys

and creates new legal systems at the same time!

• Thus, in Kelsenian terms, once an old legal order

gives way for a new one, there is a REVOLUTION
 The Grundnorm
• In his “Pure Theory of Law” Hans Kelsen refers to the grundnorm as the basic
norm, which is the source of validity for all the other norms existing in a legal
system

• Thus, all other norms derive their validity from this basic norm (Grundnorm)

• This is, according to Kelsen, the historical first Constitution, which must be
presupposed – with no other norm being higher than it!
• This basic norm, is also the ultimate norm, and is
defined in terms of validity

• It is presumed to be valid, and all other norms

must necessarily derive their validity therefrom
and must conform to it

• The Grundnorm must be pre-supposed!

• This is because, this so-called Grundnorm is not
a creation of any law-making institution or body

• Its validity is not hinged on the basis of its

creation; but rather because it is pre-supposed to
be valid

• And it is pre-supposed to be valid because

without that, no act can be deemed to be legal
 Who presupposes the Grundnorm?
• “The basic norm is presupposed by whoever interprets the
subjective meaning of the constitution-creating act, and of
the acts created according to the constitution, as the
objective meaning of these acts, that is as objective valid
norm.” – Hans Kelsen
• According to Kelsen, the basic norm (which he
also referred to as the “historical first
constitution”) is not necessarily the constitution
that was first in time!

• It does not also necessarily refer to the oldest

constitution discoverable, nor the first “written
constitution”

• IT IS A REFERENCE TO AN INITIAL CONSTITUTION

OR ORGANIZING LAW (created in a way not
anticipated by its predecessor)
• It follows therefore that, in Kelsenian theory, any
norm purporting to be the grundnorm/basic norm
which comes about, or is anticipated by the
existing “initial law/constitution” cannot purport
to be the basic norm

• This is because, this new “basic norm” would

have been anticipated by the pre-existing basic
norm!

• THE VALIDITY OF THE NEW NORM IS

DETERMINED BY THE EXISTING NORM!
“Change of the basic norm: It is just the phenomenon of revolution which clearly
shows the significance of the basic norm. suppose that a group of individuals
attempt to seize power by force, in order to remove the legitimate government in a
hitherto monarchic state and to introduce a republican form of government. If they
succeed, if the old order ceases, and the new order begins to be, efficacious because
the individuals whose behaviour the new order regulates actually behave, by and
large in conformity with the new order. It is now according to this new order that the
actual behaviour of individuals is interpreted as legal or illegal. But this means that a
new basic norm is presupposed. It is no longer the norm according to which the old
monarchical constitution is
valid, but a norm according to which the new
republican constitution is valid, a norm endowing
the revolutionary government with legal authority.
If the revolutionaries fail, if the order they have
tried to establish remains inefficacious, then, on
the other hand, their undertaking is interpreted,
not as a legal, a law creating act, as the
establishment of a constitution, but as an illegal
act, as the crime of treason, and this according to
the old monarchic constitution and its specific
basic norm.”
Hans Kelsen (General Theory of Law and State)
• This is known as the theory of legal
discontinuity
 Examples
• The 1979 Constitution of Ghana v. The Armed Forces Revolutionary
Council (Establishment) Proclamation

• The 1992 Constitution of Ghana v. The Provisional National Defence

Council (Establishment) Proclamation
• This theory of legal discontinuity is not a
concept without its critics

• Finnis, for his part, has doubted the

veracity of this so-called theory of legal
discontinuity
 The three (3) categories of constitutional rules by Finnis
• RULES OF SUCCESSION TO OFFICE

• RULES OF COMPETENCE

• RULES OF SUCCESSION OF RULES

 Rules of Succession to Office
• These include rules in the Constitution which govern accession to and
succession in office

• Thus, the rules in a Constitution which prescribe the requirements for those
who aspire to public office etc. according to Finnis, are rules of succession to
office

• See Articles 62, 63, 64, 65 & 66 of the 1992 Constitution

 Rules of Competence
• These are the sum total of the rules which govern the distribution of power in
the State

• Each branch of government, for example, under most Constitutions are given
distinct roles/functions and powers as well i.e. separation of powers

• See for example Articles 58, 93 & 125 of the Constitution of Ghana
 Rules of Succession to Rules
• This category of rules include those (whether they are included in the first two
categories) which govern the “amendment, suspension, or replacement of
rules of each of these three categories.”

• Thus, all rues in a Constitution, which seeks to regulate how the constitution
can be amended etc. fall within this third category of Finnis

• See for example Chapter 25 of the Constitution (Articles 289 to 292)

• It suffices to note that, the rules of succession to
office for instance can be legally altered

• When this is done, the presumption is that, it is

done pursuant to the rules of succession of rules!

• This also, according to Finnis, coincides with the

rules of competence! (Only the legislature may
instigate such a chain of events)
 When is there a Revolution?
• According to Finnis, a revolution occurs, if it affects all the three (3) categories
of rules!

• Thus, it is only when all the three (3) categories of rules are effectively altered
that we can say a revolution has occurred, in terms of the Constitution

• DO YOU AGREE?
•What then is the legal
effect of a Coup?

•When can be say that a

Coup has become
effective?
 Efficacious
• For a coup to be considered successful…According to
Kelsen: Then it must be “efficacious”. i.e.
• (i) the coup is generally accepted by the people and
• (ii) the laws of the coup makers are obeyed by the people and
are enforced by the courts.

• If the old order ceases, and the new order begins to be

efficacious, because the individuals whose behaviour
the new order regulates actually behave, by and large,
in conformity with the new order, then this order is
considered as a valid order.
• It is now according to this new order that the actual
behaviour of individuals is interpreted as legal or illegal.
• Mitchell v. DPP

• Uganda v. Commissioner of Prisons; Ex Parte

Matovu

• Lakanmi v. Attorney-General

• The State v. Dosso

• Madzimbamuto v. Lardner-Burke

• Ekwam v. Pianim (No. 2) [1996-97] SCGLR 120

 Ex Parte Matovu
• On 22nd February, 1966 the Prime Minister of Uganda issued a statement
declaring that “in the interest of national stability and public security and
tranquility” he had taken over all the powers of the government of Uganda

• He was successful in this regard; and the High Court had to consider the legal
effect of same!
• “We hold, that the series of events, which took
place in Uganda from February 22 to April 1966,
when the 1962 Constitution was abolished in the
National Assembly and the 1966 Constitution
adopted in its place as a result of which the then
Prime Minister was installed as Executive President
……could only appropriately be described in law as a
revolution. These changes had occurred not in
accordance with the principle of legitimacy. But
deliberately contrary to it. There were no
pretentions on the part of the Prime Minister to
follow the procedure prescribed in the 1962
Constitution in particular for the removal of the
President and Vice President from office. Power was
seized by force from both the President and the Vice
President…………………………....................
• ….our deliberate and considered view is that the
1966 Constitution is a legally valid constitution
and the supreme law of Uganda; and that the
1962 Constitution having been abolished as a
result of a victorious revolution, in law no longer
exist nor does it now form part of the laws of
Uganda, it having been deprived of its de facto
and de jure validity.”
 Lakanmi v Attorney-General (Western State) 1971 1
University of Ife Law Reports 201
• Learned counsel for the Appellant argued strenuously that the
military takeover in Nigeria in January 1966 was by invitation of
the rump of the existing government and that therefore there
was no revolutionary takeover and so the constitutional order
valid until then (the 1963 Constitution) survived the takeover
and continued and consequently the military government had
no power to go against the Constitution.
• The learned Attorney General replied that after soldiers killed
the Prime Minister and certain of his key ministerial colleagues
the so-called invitation by the surviving ministers to the military
to move in and save the Constitution was a mere façade. What
actually took place, he submitted, was a revolutionary
overthrow of the constitutional order then in existence. The
constitution valid until then did not survive the coup, except in
so far as it was saved by the new government.
• But in theory of law the authority behind the saved constitutional
provisions is no longer the people but the military government and that
document cannot properly be referred to as the 1963 Constitution.
 Lakanmi Cont’d
• The Supreme Court was not swayed by this line of argument
marshalled by the learned Attorney General on behalf of
the state.

• It ruled that the military government was not a revolutionary

government but an interim one of necessity brought in to save the
1963 Constitution and safeguard the lives and properties of
citizens;
• The Constitution still subsisted as the supreme law of the land and
could not therefore be violated even by the military government.
The Court thus ruled in favour of the appellant.

• The military government lost no time in passing a decree

nullifying the judgment and, for the avoidance of any doubt
it ousted the jurisdiction of the courts from inquiring into
the validity of any of its decrees or proclamations.
 Sallah v. Attorney-General (1970) CC

• Section 9(1) of the Transitional Provisions of the 1969 Constitution provided:

“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, hold 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 the 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 Plaintiff, Mr. E.K. Sallah, was appointed as a
manager in the Ghana National Trading
Corporation (G.N.T. C.) in October 1967.

• The G.N.T.C. was originally established as a State

trading corporation in 1961 pursuant to Executive
Instrument 203 i.e. (E.I. 203)

• This was issued under the authority of the

Statutory Corporations Act, 1961 (Act 41)
• In 1964, Act 232 (a new Statutory Corporations
Act) was passed; and a new Legislative Instrument
(L.I. 395) was made – continuing the existence of
the GNTC as a body corporate

• Thus, at the time of the coup d'état of 24th

February, 1966, the GNTC was already established
and in existence as a legal entity
• On the 21st day of February, 1970, Mr. Sallah received
a letter from the Presidential Commission,
terminating his appointment with the GNTC in
accordance with section 9(1) of the Transitional
Provisions of the 1969 Constitution

• He insisted that his office did not fall under/within

any of the categories mentioned in section 9(1)

• He therefore brought an action, for a declaration to

the effect that, on a true and proper interpretation of
section 9(1), the Government was not entitled to
terminate his appointment
• This case presented an opportunity for the
highest court of Ghana to pronounce on the
legal effects of a coup d'état

• Unfortunately, it seems as though it did

not!
• The Attorney-General argued on behalf of the
government that, the suspension and subsequent
abrogation of the 1960 Constitution had the effect
of rendering all Acts thereunder as having lapsed

• Thus, the Act ‘establishing’ GNTC had lost its

validity and only regained that validity from the
NLC Establishment Proclamation of 26th February,
1966

• Thus, he urged the court to interpret the word

“establish” in its technical sense/meaning – to
mean “deriving legal validity from”
 Per Apaloo J.A.
• “I believe members of the Constituent Assembly approached and performed
their task as practical men of business guided by the experience of our recent
past and informed by an understanding of ordinary English words. I cannot
accept that in using the word “establish” in section 9(1) they had in mind any
juristic theories on the principle of legitimacy. If that be right it would be
subversive of their intention to interpret their declared will by reference to
any such theory.”
• “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 have thought an argument
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.”
 Per Sowah J.A.
• “It seems to me a far-fetched interpretation to say that by these
words, the National Liberation Council was re-establishing or
creating anew all the laws of Ghana including the common law and
customary law. The true interpretation is that those laws in
existence should continue subject, of course, to subsequent
decrees that might be promulgated.”
 Per Anin J.A.
• “Notwithstanding the fact that public offices which were in existence prior
to the coup bore practically the same name before as after the coup, the true
legal position is that these public offices and services were the creation of
the National Liberation Council and they existed by virtue of, and in
pursuance of, this Proclamation and in certain specific cases, in pursuance of
subsequent NLC Decrees.”
 Ekwam v. Pianim
• Can a dead ‘grundnorm’ be revived? – Plaintiff sues for
a declaration that defendant is not qualified to contest
as NPP flag bearer.
• Defendant had been convicted of attempting to
overthrow the PNDC government in 1982.
• Invokes article 1(3) of 1979 constitution as a defence,
and suggest that even if it is true, he had done so in the
spirit of that article.
• Held: 1(3) no longer in force at the time he had tried to
invoke it.
 Ekwam

• Constitution suspended by the PNDC (Est)

Proclamation 1981

• “Plainly, the very provision relied on realistically stops

short of what is to happen when the persons seeking
to abolish it in fact succeed in doing so. It knows that
that will be its end. Yet the defendant is erecting a
defense on its dead body” – per Atuguba, JSC
 Coups and the 1992 Constitution

• Per Adade JSC.

• “Section 34 of the transitional provision of the Constitution, 1992 on indemnity...
presupposes that the event which took place on 31 December 1981 was not a lawful
one, and that this fact is conceded by the PNDC, among others. The section does not
legalise the coup of 31 December 1981 nor any of the coups mentioned there. It
only grants the coup-makers an indemnity, in the nature of public pardon, to free
certain persons from liability and punishment for, in the instant case, the event of 31
December and its sequel, which acts have been carefully spelt out under,
particularly, article 34(2) of the Constitution, 1992”.
• “It seems to me incongruous that after this pardon of a conduct considered
improper and unlawful (for there would be no need for a pardon if the conduct
were lawful and proper), the public will seek to romanticise the same event
with carnivals and route marches. An exhibition of a more inconsistent
behaviour than this in a people, including members of the government, cannot
be imagined, justifying the plaintiff’s action under article 2(1)(b) of the
Constitution, 1992.”
 Read!
• NPP V Attorney General (31st December)
• Ekwam v Pianim (No 3)
• Sallah v Attorney General
• Kwamena Ahwoi, Kelsen, the Grundnorm and the 79 Constitution
• Date-Bah, Jurisprudence’s Day in Court in Ghana
Q&A SESSION
THE END

NT Okyir 2019/2020