KAAF UNIVERSITY

FACULTY OF LAW

CONSTITUTIONAL LAW 1
CONSTITUTION INTERRUPTIONS
LEGAL EFFECTS OF COUP
D'ÉTATS AND REVOLUTIONS
 Key Question to Consider regarding Coup d‟etat

 What amounts to a Coup and what amounts to a

 Revolution?
 Are the perpetuators of coups guilty of treason?

 Does the existing Constitutional Order survive a Coup
 d‟etat?
 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 in Constitutional Law



Ghana has had 5 Constitutions since Independence
 But Ghana 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.
 Raises the question of what is Constitution?
 More issues

 What is a constitution?












 Is an establishment proclamation a constitution?
 Yes!!!

 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.
 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
 What is a coup d'état/revolution?

 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 _ coups since 1957

 Social/Political/Legal relevance.
 What is a coup d'état/revolution?

 According to Welch& Taintor(eds)(1972)


 Revolution 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 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.
 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.”
 According to Kelson

 A revolution in the broader sense of the word (that includes a
coup d‟ etat) is every illegitimate change of the constitution

or its replacement by another constitution.
 It is irrelevant whether this change of the legal situation has
been brought about by the application of force against the
legitimate government or by the members of that government
themselves, whether by a mass movement of the population or
by small group of individuals.

 What is important is that the valid Constitution has
been changed or replaced in a manner not prescribed by
the Constitution valid until then.
 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 officials
 „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.




 One definition: 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.”
 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.
 Coups/revolutions under customary
international law

4 basic criteria:
 Abrupt political change – revolution/coup d‟etat

 Change must not be within the contemplation of

the existing legal order 
 The change must destroy the entire legal

order except what is preserved 

The new constitutional government must be effective


– i.e. it must have no rival within the state.
 For a coup to be considered successful…

 According to Kelsen: If it is “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.
 Not always easy to tell: cf Ex Parte Matovu
 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!
 Ex Parte Matovu, cont.

 “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.”
 Sir Udo Udoma CJ, Supreme Court, Uganda
 Madzimbamuto v. Lardner-Burke
(1978) 3 WLR 1229

Per Lord Reid:

“It is an historical fact that in many countries and indeed in many
countries which are or have been under British sovereignty – there
are now regimes which are universally recognized as lawful but
which derive their origins from revolutions or coup d‟etats. The law
must take account of that fact. So there may be a question how or at
what stage the new regime became lawful. The issue in the present
case is whether Emergency Powers Regulations made under the 1965
Constitution can be regarded as having any legal validity, force or
effect. Their Lordships will therefore humbly advise Her Majesty that
it should be declared that the determination of the High Court of
Southern Rhodesia with regard to the validity of EPR made in
Southern Rhodesia since November 11 1965, is erroneous, and that
such regulations have no legal validity, force or effect.”
 Madzimbabuto v Lardner-Burke

 “If the legitimate Government had been driven out but was trying
to regain control it would be impossible to hold that the usurper
who is in control is the lawful ruler, because that would mean that
by striving to assert its lawful right the ousted legitimate
Government was opposing the lawful ruler. In their Lordships'
judgment that is the present position in Southern Rhodesia. The
British Government acting for the lawful Sovereign is taking steps
to regain control and it is impossible to predict with certainty
whether or not it will succeed. Both the judges in the General
Division and the majority in the Appellate Division rightly still
regard the " revolution" as illegal and consider themselves sitting
as courts of the lawful sovereign, and not under the revolutionary
constitution of 1965. Their Lordships are therefore of opinion that
the usurping Government now in control of Southern Rhodesia
 cannot be regarded as a lawful Government.”
 Lord Reid
 Denying the de jure consequences of a coup

can make the court appear weak;
 Cf Lakanmi v Attorney-General (Western
State) 1971 1 University of Ife Law Reports
201 – Supreme Court of Nigeria refuses to
recognize decrees passed by Federal Military
Government – describes it as a temporary regime,

incompetent to make laws. 
 Military Passed another law re-affirming
its existence. – also: Madzimbabuto.
 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!
 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
 Kelsen

 “From a juristic point of view, the decisive criterion

of a revolution is that the order in force is
overthrown and replaced by a new order in a
way which the former had not itself anticipated.
Usually, the new men whom a revolution brings to power
annul only the constitution and certain laws of
paramount political significance, putting other norms in
 their place. A great part of the old legal order
‘remains’ valid also within the frame of the
new order. But the phrase ‘they remain valid’
does not give an adequate description of the
phenomenon.”
 “That constitution is no longer in force; it is
replaced by a new constitution which is not the
result of a constitutional alteration of the former.
If laws which were introduced under the old
constitution „continue to be valid‟ under the new
constitution, this is possible only because validity
has expressly or tacitly been vested in them by the
new constitution”
 “No jurist would maintain that even after a
successful revolution the old constitution and the
laws based thereupon remain in force, on the
ground that they have not been nullified in a
manner anticipated by the old order itself. Every
jurist will presume that the old order to which no
political reality any longer corresponds has ceased
to be valid, and all norms, which are valid within
the new order, receive their validity exclusively from
the new constitution. It follows that from this juristic
point of view, the norms of the old order can
no longer be recognized as valid norms.”
 Norms

Legal order is based on a hierarchy of norms.

 Social norms
E.g. thieves ought to be punished.

 Legal Norms
If someone steals, he shall be punished

What is the source of the legal norms?

What is the hierarchy of the legal norms?
 Norms

 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 for this
basic norm (Grundnorm)
 The Grundnorm

 This is, according to Kelsen, derived from 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
 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!
“....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

 Ekwam v Pianim 1997-1998

[SCGLR]
 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 rules 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?
 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

 Also an opportunity to comment on

Kelsens Theory
 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 [1996-7]SCGLR 120

 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.
 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” Atuguba,
JSC
 Post Scripts: Questions to Consider

 What will be the impact of a coup or Revolution


on Key constitutional organs, theories and concept

 The Legislature

 Concept of the Supremacy of the Constitution

 Constitutionalism

 Rule of Law

 Separation of Powers

 Fundamental Human Rights
 Judicial Review
THE END