LAW AND REVOLUTION
This chapter is concerned with the state of things under a legal order and what happens when a legal order is displaced and replaced by another. We must start with Hans Kelsen’s conception of law.
Hans Kelsen conceives law as a norm (a regulation setting forth how persons are to behave) coupled with sanction(s). In his view, a norm is an ‘ought’ proposition, it expresses not what is or must be but what ought to be, given certain conditions. A norm is valid if it has been created by a norm which itself has been created by a higher norm within the legal order. The logical connection of norms in this order will continue until we arrive at a non-law created entity, which is called the grundnorm. While every other norm is generated from the grundnorm and their validity is traceable to it, the origin or validity of the grundnorm is not traceable to any norm.
The question then is if a norm can only be derived from another norm, does this mean one can continue this derivation ad infinitum? Theoretically, it is possible but in practice, there must be a grundnorm which is the ultimate norm on which other norms rest.
Every norm begins as an act or omission which has been authorised or sanctified into being by a higher norm. According to Kelsen’s concretization theory, the relationship between an act/omission and a norm is dialectical. Kelsen notes that before an act can be a norm, it must be binding and validated by a higher norm.
The grundnorm is the ultimate source of authority of all norms. Tracing the act to the grundnorm is what Kelsen calls concretization. The question then is whether the constitution can be regarded as the grundnorm: it is only within the context of the legal positive sense that the constitution becomes the grundnorm.
An act must be in agreement with a norm before it can be valid. However, Kelsen notes two qualifications for the validity of the constituent norms: a. the total legal order must have been created in a constitutional way and b. the entire legal order must be efficacious. Furthermore, he suggests that the question of validity is a necessary condition but not a sufficient condition, that is, a conditio sine qua non but not a conditio per quam. This means that the efficacy of the total legal order is a condition, not the reason for the validity of its constituent norms. Thus, for you to have effective or valid norms, the entire legal order must be efficacious.
Suppose a group of individuals attempt to seize power by force, in order to remove a legitimate government and introduce a new form of government, what is the effect of the success or failure of this attempt? Where this group succeeds, the old order ceases and the new order begins to be efficacious. It is now according to this new order that the actual behaviour of individuals is interpreted as legal or illegal. If this attempt fails, the legal order remains the same and the failure of such attempt is interpreted (legal or illegal) according to the prior legal order. Military coup d’états are good examples.
Where a legal order has been affected by a fatal blow, Kelsen says revolution has occurred. The revolution then becomes the norm of the society instead of being punished by the old legal order. This means that though a revolution is illegal according to the old legal order, its efficacy and acceptance makes it legal.
The next question is whether a successful revolution has the effect of changing the groundnorm. To answer this question, we need to look into how the courts in different jurisdictions have decided the cases that came before them. In State v Dosso, the court held that since a victorious revolution is an internationally recognised legal method of changing a constitution, a successful revolution satisfies the test of efficacy and becomes a basic law creating fact. On that assumption, the grundnorm changed with the annulment of the Pakistan’s constitution of 1956 in 1958 by the then President of Pakistan. The case of Uganda v Commissioner of Prisons, Ex Parte Matovu where the then constitution of Uganda was suspended and replaced by another constitution by the revolutionaries and the question before the court was whether the constitution was valid. The question was answered in the affirmative, that is, the revolutionaries’ act of suspending and replacing the constitution meant that the existing grundnorm ceased to exist. The case of Lakanmi v The Attorney-General (West) makes a distinction between a revolution and an interim government of necessity. In that case, the military had overthrown the constitutionally democratic government in a bloody coup but preserved the 1963 republican constitution. The question before the Supreme Court was whether the military government was a revolutionary government. The court held that since the Military Government didn’t abolish the 1963 constitution, it was not a revolutionary government but an interim government of necessity. Similarly in Sallah v A-G. GHANA, a coup was staged to overthrow the ruling government but the constitution (which gave effect to the existing laws) was not abolished. The court held that the grundnorm hadn’t been changed and accordingly Kelsen’s principles were inapplicable. Ultimately, in MADZIMBAMUTO v LARDNER-BURKE, the court refused to hold that a usurping government in control must be regarded as a lawful government. In other words, when a revolution occurs, it is not the entire norm that wiped out. Prof Obilade suggests that after a successful revolution, customary law continues to apply. It is inherent in the people and not therefore subject to the whims and caprices of the usurper. Prof Sagay suggests that international law survives the conditions for validity of norms of the new legal order. In the same light, professor Dworkin suggests that certain principles which inherently form part of the legal order also survive. In Riggs v Palmer, a boy murdered his grandfather so he could inherit his estate. The court reasoned that tenets of universal law and maxims would be violated by allowing the boy to profit from his crime.
Law and Legitimation
It may well happen that a sovereign in a part of a nation has been usurped by rebels. Here we are talking about a situation where a portion of the inhabitants of a country have separated themselves from the parent state and established an independent government. A good example in this regard is the civil war where the usurpers declared the Eastern region as Biafra. The question is to what extent is the law created in this enclave recognised?
There are two approaches to this question:
1. The doctrine of necessity:
This theory makes a distinction between laws made for the purpose of maintaining peace, order and good government on the one hand and laws made in furtherance of the rebellion. The central government will uphold the former as they are deemed necessary (e.g. laws passed to repel an uprising) but will not uphold the latter (e.g. laws relating to the rebel’s legal tender). In Williams v Bruffy, a distinction was made between acts which do not (tend to) impair the supremacy of the national authority and act in furtherance of the rebellion or violating the constitutional rights of citizens. The court in Texas v White seems to saying that even during hostilities, life must go on. In fact, in Okwuosa v Okwuosa and Utta v Independence Breweries, the SC held that writs and summons which originated in or decided upon by the High Court of Biafra were null and void. In essence, the judiciary and enforcement agencies in the Biafran territory were deemed to be on leave of absence and without pay throughout the duration of the civil war. The courts treated all legislative, executive and judicial acts in the rebel territory as null and void.
2. The doctrine of implied mandate:
This suggests that the usurper’s regime should be deemed to be impliedly exercising the mandate of the lawful sovereign that had been overthrown by the rebels. The doctrine ignores the illegality of the form and absorbs it as if it was its own judgement. Thus, where a person is sentenced to death by a judicial official, the latter is deemed to have acted lawfully and the case will not be re-tried de novo.We now move on to consider the attitude of the Nigerian government on the decisions of the Biafran courts. In Oguebie v Odunwoke, the SC attempted to lay down once and for all the legal position in Nigeria as regards the status of the courts and judicial activities within a rebel enclave. This was a matter where pleadings were filed and exchanged during the illegal regime in the era of the Biafran war, but later on, the case was reactivated by legal court and pleadings were exchanged. The issue that was brought to the Supreme Court to decide was whether or not the earlier writ issued was void. Using the doctrine of necessity, it was argued before the court that judicial, legislative and executive acts made in order to preserve law and order in a rebel territory should be upheld as necessary. The court held that the doctrine of necessity and or implied mandate was applicable to the Nigerian situation subject however to a condition: there exists no policy or legislation by the sovereign government negating or contradicting the doctrine. The court held that the proceedings before the courts of the Republic were null and void because the policy of the legitimate government was against the application of the doctrine hence the appeal against the judgment of the lower court was allowed. The case was thus, remitted back to the High court, Owerri division for hearing.