JURISPRUDENCE 1.6 LAW AND REVOLUTION
Topic 4: LAW, REVOLUTION AND LEGITIMATION.
Topic 4.1 LAW AND REVOLUTION
Nothing is constant except change. What happens when a legal order is replaced by another one?
Hans Kelsen uses his concept of norm to explain the legal order.
He describes law as a norm. He describes a norm as stipulations regulating conduct and backed by sanction[1]. A norm prescribes mode of conduct. A norm prescribes what should happen in certain situations. He noted that norms have hierarchy. A norm first starts as an act. Then the act is validated by a higher norm. The Higher norm is validated by a higher norm which is validated by a higher norm… the process continues[2] until it reaches the ultimate norm. This ultimate norm is the grundnorm. All other norms derive their validity from the grundnorm. Any norm that cannot be traced to the grundnorm is of questionable validity. He concludes that the legal order is a hierarchically structured system of norms. The act of tracing an act to the grundnorm is what he refers to as “concretisation”. Kelsen did not intend the grundnorm to be the constitution. The grundnorm is an idea.
E.g. the ICPC invites Senator John for questioning. You ask; who gave then the audacity? We answer; a higher norm called the ICPC Act. You ask: of what validity is the ICPC Act? We answer, it was enacted by the law making authority of Nigeria. You Ask: who gave the lawmakers power to make laws? We say; Section 4 of the 1999 Constitution. You Ask; of what validity is the 1999 Constitution? We say: it is the law which the people (in whom sovereignty lies[3]) gave themselves. You ask; what makes the people sovereign, we answer, International Law recognises the sovereignty of peoples… The question and answer goes on and on. In the long example above, you see that at every stage, there is a higher norm validating the lower one until it is traced to the grundnorm.
Kelsen then concludes that a norm looses its validity when the total legal order loses its efficacy.
A revolution according to Kelsen is when the legal order has been dealt a fatal blow. Where change is brought about in a manner which the grundnorm did not envisage/prescribe. “Whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way”. To him, revolution is a “radical departure from the existing legal order”.
The Marxists believe that a revolution is a change of a class and replacement by another class.
Uchegbu believes that a revolution consists in “people taking up arms against the state with a view to overpowering it, capturing its apparatus especially the law making power and consequently legalising the revolutionary idea”.
Prof Abiola Ojo notes that if the revolution succeeds/survives, it becomes the norm. If the revolution fails, the plotter(s) would be punished. Therefore the validity of the revolution depends on whether it is successful or not.
The Efficacy of law is a matter determined by causation while validity is explicable not in terms of causation but imputation[4].
In State V Dosso[5], on October 1958, the President, seeing that things may go out of hand in Pakistan, declared martial law, annulled the 1956 Constitution of Pakistan, dissolved both the National and Provincial Assemblies. The court held that the declaration amounted to an “abrupt political change” and therefore amounted to a revolution. In Uganda V Commissioner of Prisons Ex Parte Matovu[6], The Prime Minister of Uganda in Feb 22 1966 suspended the 1962 Ugandan Constitution and a new constitution of 1966 was passed. Held that the grundnorm changed when the 1962 Consitution was abolished. However in Lakanmi and Kikelomo Ola V A.G Western Nigeria, the Military Government enacted an Edict which ousted the jurisdiction of the court. The question was whether the Military Government was a revolutionary Government. The court held that it was an interim government of necessity. In Sallah V A.G Ghana, Sowah J.A rejected Kelsen’s Theory noting that “it seems to me we will not derive much assistance from the foreing theories”. Same done in Asma Jilani V Government of Punjab. In Madzimbamuto V Lardner-Burke[7], In November 1965, a State of emergency was proclaimed by the governor. In Noveember 11 1965, the Prime Minister and his colleagues without authorisation issued a declaration of independence. This was adopted by the legislature in the 1965 Constitution. Held that a revolution occurred.
From the above, it appears that the courts regard the constitution as the grundnorm and any overthrow that is not provided for in the constitution amounts to a revolution.
Topic 4.2 LAW AND LEGITIMATION. LAW IN A REBEL ENCLAVE.
Can the usurpers be regarded as a lawful government? What happens when the usurpers attack the legal order? Does it mean that all laws are irrelevant?
Joseph and John Finis are of the opinion that a revolution appears to be something more radical than a mere coup detat.
John Finis (Drawing inspiration from the Baggot’s Case) noted that it is impossible for the entire grundnorm to be wiped out. He argued that the grundnorm consists of:
- Rules of succession of office.
- Rules of competence
- Rules of succession to rules.
He concludes that it is only the rules of succession to office that is suspended by a coup d’etat. For a real revolution to occur, all three must be wiped out. In Coup d’etats, the state is left intact. It is just the government that goes. Similarly in Lakanmi Kikelomo V A.G Western Nigeria the court also held that a mere change in succession to office (i.e.) military takeover) does not amount to a revolution.
Prof Ekelaar suggests that various principles survive a revolution. Like the principle of effectiveness, legitimate disobedience to authority, necessity, liability, non-profit from wrong, ex turpi causa non oritur action, observance and implementation of treaties, etc. He went further to note that judgments of courts would still be predicated on such rules. Prof Dworkin also noted that certain principles survive a revolution.
Prof Obilade notes that customary law survives a revolution as it is inherent in people.
Prof Sagay notes that international law survives a revolution. Same positon was maintained by Fritz Saunders.
Professor Raz notes that social fact survives revolution.
A rebel may be taking power and gaining grounds based on territory. He may want to establish laws to govern the territory. E.g. in the Biafran War, the part of Nigeria called Biafra began issuing Biafran currency. If Boko Haram terrorists capture Borno and Yobe (God forbid), to what extent is the law created by them to govern Borno and Yobe recognised? Should Lagos (or U.S) recognise a marriage conducted in Biafra according to Biafran Law? Since Biafra is a rebel enclave. Should other Independent States regard laws from a rebel enclave as valid?
There are two approaches viz the doctrine of necessity and implied mandate.
- THE DOCTRINE OF NECESSITY
Laws that are necessary (like laws against rape, murder, armed robbery, and so on) would be recognised notwithstanding the fact that they were made by the rebels. However, laws that are in furtherance of the Rebellion (e.g. if the Rebels introduce their own Legal Tender) would not be upheld. In Williams V Bruffy[8] the court held that issuing coins, stamps and so on which furthered the interest of the rebellion shall not be recognised. In Texas V White, the court noted that notwithstanding insurrection and war, “order has to be preserved, contract enforced, marriage celebrated, estates settled, transfer and descent of property regulated precisely as in time of peace”.
Therefore laws and acts that are necessary for peace and good order would be valid. But laws/acts in support of the rebellion would be regarded as void and illegal. Same position was maintained in Adams V Adams: Thoringtor V SmithAlso, Onwudiwe V Onwudiwe, Utta V Independence Brewery.
THE DOCTRINE OF IMPLIED MANDATE: in this sense, if for example, A has been ordered to pay B a fine of 600 in Imo State and before he pays the fine, Imo falls under Biafra territory, the fine would still be enforced. In Oguebie V Odunwoke, the plaintiff instituted a case for trespass at the legitimate Owerri High Court in 15th May, 1967. About twelve days later, Col Ojukwu Led a Rebellion. That High Court became the High Court of Biafra. The plaintiff still continued the case (by filing a statement of claim) in the HC of Biafra. After the insurrection on 6th Jan 1971, the case still continued in the now Legitimate High Court. Held that the doctrine of Necessity and Implied Mandate was applicable in this case but because of the Legislation passed by Nigeria negating the doctrine, it would not apply. Also, in the cases of Okwuosa V Okwuosa, Uttah V Independent Breweries and Ike V Nzekwe, the courts noted that judicial acts in the rebel enclave of Biafra were illegal, null and void. This was because of the law declaring those acts as null and void. Otherwise, they may have been valid where necessary or upon the doctrine of implied mandate.
In conclusion, readers kindly suggest you opinion and possible reforms of the law.
[1] Sanction which may include; loss of freedom or loss of property.
[2] This creates a system of norms.
[3] See Section 14 of the Constitution.
[4] Readers please confirm the meaning of this statement. I don’t know it at present but it seems too important to ignore
[5] (1958) 2 P.S.C.R 180
[6] (1966) E.A.L.R. 514
[7] (1961) 1 A.C 645
[8] (1996) US 1878
Ewulum Ifechukwu C.
This is beautiful. it succinctly captures the cases in this regard which has gone a long way to heping me. Kudos and a job well done!