WHAT IS THE CONSTITUTIONAL EFFECT OF A COUP D’ETAT/REVOLUTION?
What is the Discontinuity Theory?
It asserts that every illegal change in the constitution of a state is a revolution and that revolution overturns the entire legal order, replacing it with a new system (Hans Kelsen). Proponents however know that in almost all cases, the content of the post-revolution legal system is similar, if not identical, to the pre-revolution system. Both the general rules of law (especially private law) and the particular rights (contractual, real, remedial) acquired under those rules are likely to survive i.e. ‘the same’ rules and rights will be enforced after as before the revolution.
What is the Continuity Theory?
There are categories of unconstitutional acts which involve modification of the law in force without bringing birth to a new legal system (mere coup detat). In Edwardian England, usurpations (coup detats) were dealt with same as the death of the King as ‘demise of the crown’ hence the law, even constitutional law, of the kingdom is affected neither in content nor in identity by coup detats.
In order for the constitution to be discontinued, all three of the following rules prescribed in the constitution must be affected;
– Rules of succession to office
– Rules of competence (governing distribution of powers as btn offices and states)
– Rules of succession of rules (rules governing the amendment, suspension or replacement of rules of each of the three categories
In Article 3(4)(1&2) of the 1992 Constitution, citizens are charged to defend the constitution and to do all in their power to restore it when it’s been suspended, overthrown or abrogated. It suggests therefore that the framers of the constitution did not support the Kelsen’s discontinuity theory but rather were supporters of the continuity theory where the effect of the coup detat on the constitution is partial. The judges in Sallah v A-G also treated the A-G’s arguments based on Kelsen’s discontinuity theory with a pinch of salt.
According to Kelsen, the jurist can proceed back, via a succession of rules of succession of rules, to a historically first constitution – the grundnorm – which emerged without legal authority and can be regarded as the ultimate and highest posited source of validity of the existing constitution and hence the whole legal system. A rule of succession to office cannot be violated without violating some rules of succession of rules.
What is the Doctrine of Necessity?
It describes the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. Hence the SC of Nigeria found that the ’66 military takeover of government was out of necessity and not a revolution.
Sallah v A-G – the effect of the ’66 coup was only partial on the constitution. All laws did not derive their validity from the proclamation as argued by the A-G. Hence, since the GNTC was set up by an EI in ’61, and where Sallah’s position existed before the NLC proclamation, his position did not derive its validity from that proclamation. Therefore the presidential commission was wrong in dismissing him. Anin JA dissented.
Lakanmi – the military takeover in ’66 was not a coup d’etat/revolution but a temporary transfer of power – an interim gov’t for the purposes of maintaining law and order. Hence only parts of the constitution were set aside based on the doctrine of necessity. The ’63 Constitution therefore was still valid and all rules obtained their validity from it. Since the constitution was still valid, any laws which contravened it were unconstitutional and thus void as it was the supreme law of the land.
Uganda v Commissioner of Prisons Ex P Matovu – In April ’66, the Ugandan Parliament passed a resolution repealing the ’62 Constitution and replacing it with another. Although this was not the prescribed mode of changing the constitution, the HC ruled that the ’66 constitution was valid. Per Udo Udoma CJ, the act of abolishing the ’62 constitution and replacing it with the ’66 constitution was a revolution because it occurred contrary to the principles of legitimacy. The PM did not follow the procedure prescribed in the ’62 constitution for the removal of the president and his vice. The ’66 constitution therefore became the legally valid and supreme law of Uganda and the ’62 constitution, having been victoriously abolished, ceased to exist and no longer formed part of Ugandan law. The detention order issued under the ’66 constitution was therefore valid and the court had no authority to inquire into its validity or otherwise as it was an act of the legislature.
Finnis might not have considered this a revolution because only the rules of succession to office were changed unconstitutionally. Kelsen would however have considered it a revolution because of the mere unprescribed nature of the change.
Madzimbamuto v Lardner-Burke – P was detained by an order made by the Minister of Justice in Southern Rhodesia under the Emergency Powers Regulation ’65. The EPR was made by an officer appointed under the constitution enacted by the parliament of South Rhodesia after the unilateral declaration of independence from British rule by Smith’s gov’t. The UK tried to regain control by declaring the ’65 constitution and all action taken under it void. Per Lord Reid, since the UK is taking steps to regain control, the usurper cannot be deemed to be a lawful gov’t. The EPR therefore has no legal validity.