JURISPRUDENCE HAD ITS DAY IN GHANAIAN COURTS.

JURISPRUDENCE HAD ITS DAY IN GHANAIAN COURTS.

What is the legal effect of coup d’etat on a legal system      

Is  the grundnorm of a country destroyed during a coup?

This could be a well set examination question in jurisprudence but had to be settled by Ghanaian Court in the highly celebrated case of E.K. Sallah v AG . After the 1966 coup,  the National Liberation Council was formed to  govern Ghana. The NLC suspended the 1960 constituition of Ghana under which Kwame Nkrumah’s government operated. Sallah v AG discussed the legal implications of this action.

For the ingenious jurisprudential submissions made on behalf of the
Government, the Sallah,  case may have just been another straightforward case having  constitutional interpretation. But because of the Attorney General’s submissions, a consideration of jurisprudential thought became necessary for the decision in this case. Jurisprudes who might have hoped to find in the judgement of the case profound analytical discourse on the legal effect of a coup d’etat in a country’s legal system were somewhat disappointed because the majority of the court found the Attorney General’s jurisprudential submissions irrelevant and misleading. While the judgement of the dissenting judge who accepted the Attorney- General’s argument was somewhat bereft of any reference to jurisprudential and cannot be said to contain any sustained jurisprudential discussion.

However the turn out of the case, ‘Jurisprudence’ had its day in Ghanaian Court of Appeal Court which was sitting as a supreme court in the particular case.

HANS KELSEN’S LEGAL THEORY ON THE GRUNDNORM      

Austrian jurist and philosopher of law. Kelsen is known for the most rigorous development of a ‘positivist’ theory of law, i.e. one that rigorously excludes from its analysis any ethical, political, or historical considerations, and finds the essence of the legal order in the ‘black letter’ or laid-down law. A system of law is based on a Grundnorm or ground rule, from which flows the validity of other statements of law in the system. The ground rule might be that some particular dictates or propositions, such as those of the sovereign, are to be obeyed. The Grundnorm can only be changed by political revolution. The theory is best known in its development in the Allgemeine Staatslehre (1925, trs. and revised as General Theory of Law and State, 1945).

 Kelsen's theory on the Grundnorm seeks to answer when and under what circumstances one legal system ceases to exist and a new one is created in its place. Kelsen's response is 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." (Kelsen 1961: 368-9) Kelsen holds that this "principle of legitimacy . . . fails to hold in the case of a revolution," because "it is never the constitution merely but always the entire legal order that is changed by a revolution," with the result that all norms of the old order are "deprived of their validity by revolution and not according to the principle of legitimacy." (Id.: 117-8) In the wake of a coup d'etat, "[e]very jurist will presume that the old order--to which no political reality any longer corresponds--has ceased to be valid . . . . " (Id.: 118) If the revolutionaries "succeed, if the old order ceases, and the new order begins to be efficacious, because the individuals whose behavior the new order regulates actually behave, by and large, in conformity with the new order, then this order is considered as a valid order." (Id.) In his "attempt to make explicit the presupposition on which these juristic considerations rest," Kelsen finds that “the norms of the old order are regarded as devoid of validity because the old constitution and, therefore, the legal norms based on this constitution, the old legal order as a whole, has lost its efficacy; because the actual behavior of men does no longer conform to this old legal order. . . . The principle of legitimacy is restricted by the principle of effectiveness.”(Id.: 118-9)

Kelsen's theory assumes the identification of the state with the legal order, with their foundations rooted in the constitution. As his theory rests upon the "operative premise . . . that the positive and deliberate destruction of the foundation of the legal order presumes the intention to found a new state, a new sovereignty," (McIntosh : 5) it precludes any distinction between a revolution and a coup d'etat. While he recognizes that coups d'etat do not result in actual replacement of the legal system, and "only the constitution and certain laws of paramount political significance" are suppressed, while "[a] great part of the old legal order 'remains' valid,"( Kelsen 1961: 368) he is constrained to treat their legal implication as being the same as those of a revolution. This places his theory out of step with the reality of coups in post-colonial societies that do not aim at destruction of the entire legal order, but only at usurpation of political offices.

 The Attorney General in the Sallah case based his submissions on Kelsen’s theory arguing that since the 1960 Constitution established the  GNTC with its suspension, the Act that established the GNTC should be deemed as having lapsed. It lost its validity and only regained its validity from the proclamation of February 26, 1966.The arguments of the Justices in the Sallah case may have been influenced by the main drawback of the Kelsen theory which was its capability of creating a legal vacuum in country where ther has been a coup which was a legal consequences to be avoided.