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One of the most fascinating questions in jurisprudence is: What is the legal effect of a coup d’état on a country’s legal system? Does the grundnorm the foundational rule of a legal order collapse when a coup occurs?
This is the kind of question you might expect in a jurisprudence exam, but in Ghana it had to be answered in real life. The issue came before the courts in the celebrated case of E.K. Sallah v. Attorney General.
The Background
After the 1966 coup that overthrew Kwame Nkrumah’s government, the National Liberation Council (NLC) assumed power and suspended the 1960 Constitution. The Sallah case forced the courts to grapple with the legal consequences of this suspension.
The Case
On the surface, the matter could have been treated as a straightforward exercise in constitutional interpretation. But the Attorney General’s submissions drew heavily on jurisprudential theory, particularly the work of Hans Kelsen, making the case a rare moment where abstract legal philosophy collided with practical constitutional law.
Kelsen’s Grundnorm in Ghana
Hans Kelsen, the Austrian jurist, developed one of the most rigorous positivist theories of law. His central idea was that every legal system rests on a grundnorm, a basic rule from which all other laws derive their validity.
According to Kelsen:
A legal system remains intact only as long as its constitution is respected or changed according to its own provisions.
A revolution (or coup) disrupts not just the constitution but the entire legal order.
Once the old order loses effectiveness and the new order is obeyed in practice, the new order becomes valid.
This theory equates coups with revolutions, treating them as events that wipe away the old legal order and establish a new one.
In the Sallah case, the Attorney General argued that since the 1960 Constitution had been suspended, institutions created under it, such as the Ghana National Trading Corporation (GNTC), lost their legal validity. They could only regain legitimacy through the NLC’s proclamation of February 26, 1966.
The majority of the court, however, rejected this line of reasoning. They found the Attorney General’s reliance on Kelsen’s theory both irrelevant and potentially dangerous, as it risked creating a legal vacuum in the aftermath of a coup. The dissenting judge accepted the argument but offered little sustained jurisprudential analysis.
The Outcome?
While the case did not deliver the profound jurisprudential discourse some scholars hoped for, it remains significant. For a brief moment, jurisprudence itself stood trial in Ghana’s Court of Appeal (sitting as the Supreme Court).
