Jurnal Kajian Ilmu Hukum dan Syariah

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Published By:

Lembaga Kajian Konstitusi Indonesia (LKKI)

Fakultas Syariah dan Hukum Universitas Islam Negeri (UIN) Ar-Raniry Banda Aceh Jl. Syeikh Abdul Rauf, Kopelma Darussalam Banda Aceh, Telp: 0651-7557442

PETITA PETITA PETITA

Jurnal Kajian Ilmu Hukum dan Syariah

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INTERNATIONAL LAW AND REVOLUTION IN THE 21

^ST

CENTURY:

Kelsen’s Jurisprudence and The Enduring Impact of The January 15, 1966 Coup On The Nigeria Constitution

EMMANUEL OBIKWU

Barrister & Solicitor of Nigerian Law, London, United Kingdom Email: [email protected]

Abstract: This article argues on the continued significance of Kelsen’s theory of the grundnorm and revolution in international law. It urges that revolutions and coups d’etat will continue to occur in the international legal order. That criticisms of Kelsen’s thought on this issue notwithstanding, Kelsen’s arguments on successful revolutions and the shift in the grundnorm is still as relevant today as it was when first propounded. A case of study of Nigeria is used, however this is carried out against a backdrop of developments internationally. Military take-over of governments has occurred internationally and though not adhering to the rule of law and human rights in the strict sense, national courts and the international legal order must continue to take account of them. Nigeria under military from 1966 to 1999 underwent several coups. Based on this development across the globe, the received wisdom of Kelsen is aptly defended in this article through an examination of case law and jurisprudence.

Keywords: Kelsen’s Jurisprudence, Law and Revolution, Military Decrees, Nigeria Constitution, Courts and Successful.

Abstrak: Artikel ini mendiskusikan signifikansi berkelanjutan teori Kelsen tentang grundnorm dan revolusi dalam hukum internasional. Teori ini mendorong agar revolusi dan kudeta akan terus terjadi dalam tatanan hukum internasional. Kritik terhadap pemikiran Kelsen tentang masalah ini terlepas dari argumen Kelsen tentang revolusi yang berhasil dan perubahan dalam grundnorm masih relevan sampai saat ini seperti ketika pertama kali teori ini dikemukakan. Kasus Nigeria digunakan sebagai contoh, namun hal ini dilakukan dengan latar belakang perkembangan internasional. Pengambilalihan militer terhadap pemerintah telah terjadi secara internasional dan meskipun hal ini tidak sesuai dengan aturan hukum dan hak asasi manusia, pengadilan nasional dan tatanan hukum internasional harus terus mempertimbangkannya. Nigeria mengalami beberapa kudeta di bawah kekuasaan militer dari tahun 1966 hingga 1999. Berdasarkan perkembangan di seluruh dunia, kebijaksanaan Kelsen dipertahankan dalam artikel ini dengan mempelajari kasus hukum dan yurisprudensi.

Kata Kunci: Yurisprudensi Kelsen, Hukum dan Revolusi, Keputusan Militer, Konstitusi Nigeria, Pengadilan dan Keberhasilan.

Introduction

The aim of this article is to argue that revolutions are still of significance in the international legal order. Contrary to the views expressed by the likes Ogowewo,¹ this article posits

1 T. I. Ogowewo, ‘Why the Judicial Annulment of the Constitution of 1999 Is Imperative for the Survival

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inter alia that on the contrary, every successful revolution, be it a coup or a military takeover of government, or a popular uprising of the people, does indeed creates its own legality, in other words if successful, it perpetuates its own legitimacy. It is contended further that the impact of successful military coups or revolutions and the legal order that they establish persists until that order is itself toppled by an adverse event such as another military coup or a revolution, or even by a return to democratic governance. The first part of this article looks at the meaning of revolution in law including coups. The second part expounds on this, and the Basic norm. Thirdly, the continued relevance of Kelsen’s ideas to the jurisprudence of the twenty first century, the normative reasoning as outlined by the majority of legal thought and the case law of the preceding century, such as those of the Judicial Committee of the Privy Council in cases such as Madzimbamuto v Lardner Burke²is maintained. It is contended that the settled wisdom there under and from most of the legal literature, which this article upholds, is that if a revolution is successful then it originates its own legality. The fourth part, looks at the impact of the January 15, coup on Nigeria. In part five, an overview of the position of the critics, in this case an article by Ogowewo which attempts to undermine the application of Kelsen’s jurisprudence is critiqued. This is tied in with the conclusion which is based on the issues discussed in this article.

The significance of this topic has been stated by the Privy Council in Madzimbamuto v Lardner Burke:

It is a historical fact that in many countries – and indeed in many countries which have been under British sovereignty- there are now regimes which are universally recognized as lawful but which derive their origins from revolutions or coup d’etat. The law must take account of that fact.³

Revolution

On 15 January 1966, a group of young army officers in Nigeria’s military mutinied and carried out a bloody coup that eventually toppled the 1963 Republican Constitution. The impact of that coup and its disastrous consequences still reverberates in the Nigerian polity until date. Fast forward to the twenty first century, between, the 14 and 15 of November 2017, the Armed Forces of Zimbabwe had Robert Mugabe, the country’s de facto President since independence in 1980, placed under house arrest in a master stroke that resembled a military take-over of the reins of government through a coup.⁴ The Armed Forces said through the media that early on Wednesday 15 November, 2017 that Mugabe had been placed in custody that the erstwhile undisputed ruler of Zimbabwe and his family were safe. The military did not see their move (that is the coup) as an attempt to topple Mugabe or to take over the governance of Zimbabwe in the long term.⁵ Recently, on

of Nigeria’s’ (2000) 44 Journal of African Law 135; See also Gerry Simpson, Great Powers and Outlaw States (Cambridge University Press 2004) accessed 16 June 2021; See also Bill Bowring, The Degradation of the International Legal Order?: The Rehabilitation of Law and the Possibility of Politics (2008).Gerry Simpson describes the ways in which an international legal order based on ‘sovereign equality’ has accommodated the Great Powers and regulated outlaw states since the beginning of the nineteenth-century. In doing so, the author offers a fresh understanding of sovereignty which he terms juridical sovereignty to show how international law has managed the interplay of three languages: the languages of Great Power prerogative, the language of outlawry (or anti-pluralism 2 All Answers Ltd, “Madzimbanuto v Lardner-Burke” (Lawteacher.Net, June 2019) Accessed 16 June

2019.

3 P.1118 at 1124 per Lord Lord Reid.

4 Zeeshan Aleem, ‘Zimbabwe’s Military Just Ousted Robert Mugabe The World’s Oldest Head of State Has Been Placed under House Arrest’ (Vox.com, 2017) See also Ozan O Varol, The Democratic Coup d’état (2017); See also JNC Hill, Nigeria since Independence: Forever Fragile? (2012).

5 Aleem (n 4); Varol (n 4); Hill (n 4).

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April 11, 2019, Sudan’s strongman, President Omar al-Bashir was toppled from power by the country’s military forces. In a communique, Sudanese Minister of Defence and Army General Ahmed Awad Ibn Auf told the world Bashir, who had ruled for three decades was under arrest and is “in a safe place”. An interim military council will take control of the country for two years, after which elections would be held, the minister announced.⁶ Prior to this, there was an attempted coup in Turkey which failed in July 2016 but it marked a turning point in that country’s political development.⁷ A section of the Turkish military executed a systematic operation in the major cities of Turkey in order to over throw the government and dislodge President Recep Tayyip Erdogan. It was to be the fourth military coup in its political history, following the end of the Ottoman Empire.⁸ However, in this particular case as news of the coup attempt was broadcasted live on social media, many of the ordinary citizens, carrying kitchen utensils confronted the coup plotters and resisted the coup attempt. With the assistance of loyal Police and other sections of the military, the mutiny was quelled. The cost of victory was enormous: 241 people were killed and 2,194 others were injured⁹.

The main thrust of this article however, is to examine the position when a revolution is successful.

According to Kelsen:

A revolution occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way that is, in a way not prescribed by the first legal order itself. It is in this context irrelevant whether or not this replacement is effected through a violent uprising against those individuals who so far have been the legitimate organs competent to create and amend the legal order.

It is equally irrelevant whether the replacement is effected through a movement emanating from the masses of the people or through …those in government position. From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new order in a…way which the former had not itself anticipated.¹⁰

The key words from this often quoted phrase it is submitted is that from a juristic or legal perspective, the crux of the revolution is the overthrow of one legal order by another. Not only is it toppled but it is replaced by a new revolutionary government.

It has been urged that Kelsen’s theory was positivistic (or pure) and hence apolitical, or politically neutral and hence, it kind of empowered judges when deciding revolutionary cases – or so they thought to accept the legality of successful revolutions occurring in their various countries, without pronouncing on the politics of the situation.¹¹ This is a sound proposition it is suggested.

According to the Australian Legal Dictionary, a revolution is a large scale revolt aimed

6 Jason Burke, ‘Sudan Protesters Reject Army Takeover after Removal of President’ (2019).

7 ‘Turkey Failed Coup Attempt’ (www.aljazeera.com) <https://www.aljazeera.com/news/2016/12/

turkey-failed-coup-attempt-161217032345594.html accessed on 12/04/19> accessed 12 April 2019.

8 ibid.

9 ibid.

10 Hans Kelsen, “Pure Theory of Law’ (1934-1935) 50 and 51 Law Quarterly Review P518; John A Booth, The End and the Beginning: The Nicaraguan Revolution (2019); A. V.Miles, The Perfect Society: Marx’s Communist Revolution (Nuova Publishing 2019).

11 JW Harris, ‘When and Why Does the Grundnorm Change?’ (1971) 29 The Cambridge Law Journal, 103.

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at overthrowing a government in power, or seceding from a state by those who have been subject to that government or state. A unilateral declaration of Independence is a revolutionary act. International law the dictionary goes to on to explain does not forbid a revolution; nor does it prevent the incumbent government from pacifying revolution by any means.¹² Furthermore, the term revolution has no precise meaning in international law.¹³

The Oxford Reference Dictionary defines a revolution as the forcible overthrow of a government or social order, in favour of a new system. It gives as historic examples, the Glorious Revolution of 1688, the French Revolution of 1789 and the American Revolution 1775 to 1783.¹⁴ To the list may be added the Russian Revolution of 1917.

A coup d’ etat is one instance of a revolution and is defined as the sudden toppling of a lawful government by its own military forces.¹⁵Encyclopaedia Britannica defines it as a sudden overthrow of an existing government by an individual or small group, usually with only limited violence and sometimes with none at all. It usually results in the abrupt replacement of leading government personnel but does not generally alter basic economic or social policies.¹⁶

In jurisprudence an examination of the concept of revolution looks among other things at the question of legal continuity and how disruption occur therein.¹⁷ Legal continuity in the context of revolution, is addressed by Obilade.¹⁸ He deals with the issue of the validity and force of laws in the interim between the overthrow of a government and the entrenching of the revolutionary government. De Smith too, looks at the role judges in emergency situations.¹⁹ The aim of this article is however, different. It focuses on “successful revolutions” itself and nothing in between.

Revolution in whatever form it takes, happens in the scheme of things, and it can occur at any time whether expected or not. Thus, they cannot be consigned to the pages of history as far as the international legal order is concerned. The catalyst for revolutions cannot always be determined. However, useful lessons can be taken from the Universal Declaration of Human Rights.²⁰ It provides in its preamble inter- alia: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression that human rights should be protected by the rule of law”.²¹ Similar words were expressed in the American Declaration of Independence that:

That whenever any Form of Government becomes destructive of the ends of good governance, it is the Right of the People to alter or to abolish it, and to institute

12 PE (Peter Edward) Nygh and Peter Butt, Butterworths Australian Legal Dictionary (Butterworths 1997).

13 ibid; ‘Georges Pinson (France) v. United Mexican States 19 October 1928, Reports of International Arbital Awards, Vol. 5’, p. 328.

14 Joyce Hawkins and Susan Le Roux, The Oxford Reference Dictionary (Clarendon Press ; Oxford University Press 1986).

15 ibid, footnote 10, 293.

16 K. Mowoe, The Rule of Law: A Catalyst for Enthronement of Democracy, Justice and Good Governance (An Inaugur, University of Lagos Press 2009), 24; Philip Sales, ‘The Contribution of Legislative Drafting to the Rule of Law’ (2018) 77 Cambridge Law Journal 630 accessed 27 June 2021.

17 Peter Cane and Joanne Conaghan, The New Oxford Companion to Law (Oxford University Press 2008).

18 AO Obilade, ‘“Revolutionary Regimes and the Pre-Existing Law in Nigeria”’ in AO Gordon R. Woodman and Obilade (ed), African Law and Legal Theory (Dartmouth Publishing 1995), 207.

19 SA De Smith, ‘Constitutional Lawyers in Revolutionary Situations’ [1968] Western Ontario Law Review 7 W. Onatario L. Rev. 93.

20 UN General Assembly, ‘Universal Declaration of Human Rights’ (1948).

21 ibid.

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a new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.²²

However, this line of thought is not to suggest that all revolutions are brought on by oppression or the violation of human rights. However, whenever a government is changed in a manner not contemplated by the existing legal order, there is a revolution, whether or not there is violence, and whether or not the basic economic policies are altered. Once such a revolution, coup d’état, or change, is victorious, it creates a new legal regime which outlines the basis for the legitimacy of the unconstitutional government. This is especially the case, because an unsuccessful revolution constitutes treason against the existing legal order,²³ as was the case in the failed coup in Turkey mentioned above.

It is settled wisdom too, that customary international law recognizes a coup d’ etat as a proper and effective way of changing a government, as long as certain conditions are fulfilled:

1. There must have been an abrupt political change, that is a coup d’etat or a revolution 2. The change must not be within the ambit or contemplation of an existing constitution 3. The change must destroy the entire legal order except what is preserved

4. The revolutionary government must be effective²⁴

In the second half of the twentieth century in Pakistan, Uganda and Southern Rhodesia, courts have held themselves entitled to declare that the effect of a successful revolution has been to change the law in their respective jurisdictions.²⁵ Judges appointed under the previous constitution have held themselves to be bound to recognize the validity and legitimacy of laws promulgated under a different constitution. The primary authority upon which the courts in these cases have relied on has been Han Kelsen’s theory of change in the grundnorm brought about by a revolution.²⁶

Essentially, Kelsen reasoned among other things that, were a group of individuals succeed in overthrowing a legitimate government and introduce a new one in its place, then based on this success the old order ceases and the new order begins to be efficacious because people in the concerned state begin to behave by and large in conformity with the new order. Then this new order is to be considered as a valid order. By virtue of this, ipso facto a new basic norm is presupposed giving the new revolutionary government normative validity and imbuing it with legal authority.²⁷

If indeed, Obilade queries that a revolution destroys the legal order, it is arguable/

debatable to raise the question at what point does the pre-existing laws cease to have force or cease to exist.²⁸ He asks what law governs the people before the revolutionary government settles down to create a new constitution or to make laws governing issues like contracts, torts, and crimes among others.²⁹ Without further mincing words, in the context of Nigeria, successful revolutionaries announce through broadcast either by

22 ‘Www.Ushistory.Org/Declaration/Document/’ accessed on 08/06/19.

23 Mowoe (n 17), p. 705; ‘Http://Www.History.Com/Topics/American-Revolution/American- Revolution-History#’ accessed 31 May 2017.

24 Abiola Ojo, ‘The Search for a Grundnorm in Nigeria—the Lakanmi Case’ (1971) 20 International and Comparative Law Quarterly 117. 129-130.

25 Harris (n 12), 103-133.

26 ibid, 103.

27 ibid, 104.

28 Obilade (n 19). 207.

29 ibid, 208.

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television or radio or both, the suspension of the constitution or parts of it and the saving of other laws expressly or by implication. Thus, in this particular jurisdiction, it is almost assumed or taken for granted that pre-existing laws continue to apply subject to those expressly repealed by the successful revolutionaries.³⁰

“No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself”.³¹

The general principle then is that successful revolutions create new legal orders whose validity may be adjudged by courts within the territory subject to the revolution. On this basis the case of Lardner Burke³² was distinguished from the Pakistani³³ and Ugandan³⁴ cases, it being that in Southern Rhodesia the revolution could not be held a complete success since the erstwhile colonial power and old constitutional authority was still trying to reassert its suzerainty.³⁵ Thus in the Lardner Burke case, the Basic norm had not been totally displaced by Southern Rhodesia’s ‘Unilateral Declaration of Independence’.

Revolution and the Basic Norm According to Salmond:

There must be found in every legal system certain ultimate principles from which all others are derived, but which are themselves self-existent. Before there can be any talk of any legal sources, there must be in existence some law which establishes them and gives their authority.³⁶

Hart speaks in this regard about the basic rule of recognition as containing the criteria for the validity of other rules in the legal system. Law in Hart’s thought is seen as an amalgamation of primary and secondary rules. Primary rules are duty imposing rules, secondary rules are power conferring rules. Thus the rule of recognition is a secondary rule.³⁷

According to Obilade, in the context of a revolution it is essential to know when the fundamental rule of a legal system has lost its efficacy. The matter is one of fact. If a legal regime has been toppled by a revolution one has to trace whether the ultimate rule of the legal order is still regarded as valid by the officials including the court judges and others, like the generality of the people.³⁸

In the jurisprudence of Kelsen as noted above, this ultimate principle is known as the grundnorm/or the basic norm. It is also the constitution in the logical legal sense.³⁹ To expand, according to Kelsen, the basis upon which norms rest is referred to by the different names of basic norm or grundnorm. Also termed by him as the Constitution in the legal

30 ibid.

31 Hans Kelsen, General Theory of Law and State (1st edn, Harvard University Press 1945), p. 118; Harris (n 12), 104.

32 All Answers Ltd, “Madzimbanuto v Lardner-Burke” (Lawteacher.Net, June 2019) Accessed 16 June 2019’ (n 2); Harris (n 12).

33 The State v Dosso.

34 Uganda v. Commissioner for Police, Ex Parte Matovu (1966) EALR 514.

35 Harris (n 12), 104.

36 Salmond’s Jurisprudence 1902, 102 as in Ojo (n 25). 131.

37 Obilade (n 19). 208.

38 ibid. see also Pierre-Hugues Verdier and Mila Versteeg, ‘International Law in National Legal Systems:

An Empirical Investigation’ (2015) 109 American Journal of International Law, 514; Tajul Arifin, ‘The Guarantee of the Application of Capital Punishment on a Peacefull and Harmonious Life: Proof From Around the World’ (2019) 4 Petita : Jurnal Kajian Ilmu Hukum dan Syariah, 56.

39 Hans Kelsen, General Theory of Law and State (n 31).

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– logical sense. In Kelsen’s jurisprudence a legal system consists of manifold hierarchical norms or legal rules all of which have one ultimate source, the grundnorm or basic norm.

It is on it that the legal system derives and the norms are imbued with validity.⁴⁰ The basic norm brings about the unity of the system and founds the system of its legal order.⁴¹ If one takes away the Grundnorm then the inverted pyramid collapses for lack of support.⁴² Law is always concerned with coercion according to Kelsen.⁴³ To create this universal into the particular (or model) he theorizes that all norms including the grundnorm, have the same form: they all command, permit or authorizes the use of force to human beings against their will (on the pain of sanctions). The grundnorm is presupposed and authorises the creation of norms including the constitution.⁴⁴

The basic norm brings cohesion or unity to the national legal order and establishes it as well.⁴⁵ Kelsen propounds his theory of a hierarchy of norms leading back to a first constitution whose binding effect is presupposed. A successful revolution can displace the constitution in the legal – logical sense if “the new order begins to be efficacious…and individuals behave in conformity with it.”⁴⁶ Salmond urges that:

“Every constitution has an extra –legal origin, the best illustration being the United States of America, which in open and forcible defiance of English law broke away from England and set up new states and constitutions, the origin of which was not merely extra –legal but was illegal.

Yet as soon as those Constitutions succeeded in obtaining de facto establishment in the rebellious colonies they received recognition as legally valid from the Courts of the colonies. Constitutional law followed hard upon the heels of constitutional facts. So it is with every constitution that is altered by way of illegal revolution.

By what legal authority was the Bill of Rights⁴⁷ passed and by what legal title did William III assume the Crown?”⁴⁸

Kelsen extrapolates further:

From a juristic point of view, the decisive criterion of a revolution is that the order in force is overthrown and replaced by a new legal order in a way which the former had not itself anticipated. Usually, the new men whom a revolution brings to power annul only the Constitution and certain laws of paramount political significance, putting other norms in their place. A great part of the old legal order “remains”

valid also within the frame of the new order….it is only the content of these norms that remain the same, not the reason of their validity. They are no longer valid by virtue of having been created in a way the old constitution prescribed. That constitution is no longer in force…⁴⁹

Thus the crux of the issue of our concern, is with the success or the victory of a revolution or coup d’ etat. The reasoning of Kelsen lends support to the view that in some cases in fact only the constitution is violated and perhaps some other legal norms the victorious

40 SK Date-Bah, ‘Jurisprudence’s Day in Court in Ghana’ (1971) Vol. 20 ICLQ, 315-317.

41 Ojo (n 25), 117-136.

42 ibid.

43 Harris (n 12), 103-108.

44 ibid, 108-109.

45 ibid, 118-119.

46 ibid, 131.

47 The Bill of Rights 1688 Chapter 2 1 Will & Mar Session2.

48 G. Williams, editor Salmond On Jurisprudence 11^th edition at p. 101 as in Ojo (n 25), 130.

49 Hans Kelsen, General Theory of Law and State (Russell & Russell 1961), 117-318.

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revolutionaries find unpalatable.

In the case of Uganda v. Commissioner of Prisons ex parte Matovu,⁵⁰ the Prime Minister abrogated the Constitution of Uganda in the National Assembly and substituted a new one which installed him as Executive President with power to appoint the Vice President contrary to the abolished constitution. Chief Justice Udo Udoma cited the case in Pakistan of TheState v Dosso and Another⁵¹to reason that the President’s (of Pakistan’s) Proclamation of 7 October, 1958 by which the:

“Constitution of 1956 was annulled and martial law was proclaimed constituted an “abrupt political change” not within the contemplation of the said constitution that is a revolution. A victorious revolution is an internationally recognized legal method of changing a constitution. Such a revolution constitutes a new law creating fact. Laws which derive from the “old order” may remain valid under the “new order” only because validity has expressly or tacitly been vested in the same, not the reason of validity. Further, no jurist would maintain that even after a successful revolution the old Constitution and the law based there on remain in force, on the ground that they have not been nullified by the old order itself”⁵²

He went on to opine that:

“Our deliberate and considered view is that the 1966 Constitution is legally valid and the supreme law of Uganda; and that the 1962 Constitution having been abolished as a result of a victorious revolution in law does no longer exist nor does it now form part of the Laws of Uganda. It having been deprived of its de facto validity.”⁵³

In summation the Privy Council took note in the case of Madzimbamuto v. Lardner Burke⁵⁴ of the above reasoning’s and did not disagree with the results or the outcome of the judgments. But concurred that they are explainable on the same basis:

It is clear that in both cases the judges started by accepting the effectiveness and success of the revolution, i.e. they clearly accepted office under the new Constitution and therefore the consideration which they devoted to its validity or otherwise…”⁵⁵

In R v Ndhlovu⁵⁶ eight months after Madzimbamuto’s case, the Appellate Division held the revolution in Southern Rhodesia (now Zimbabwe) to be successful, so that all the new regime’s laws had internal validity. Thus, the consequences of a successful revolution has been to change the law in the respective jurisdiction.⁵⁷

The basic norm is theoretical, but it also alludes to reality. And that it exists in the juristic consciousness is the result of a simple analysis of actual juristic statements. This “juristic consciousness” is a pre-supposition which facilitates an understanding of the legal system.

It is not chosen arbitrarily: it is selected by reference to whether the legal order as a whole is by and large efficacious. Its validity depends on efficacy.⁵⁸ “Every by and large effective

50 ‘Uganda v. Commissioner for Police, Ex Parte Matovu (1966) EALR 514’ (n 34).

51 (1958) 2 Pakistan Supreme Courts Reports 180 at 184.

52 ‘Uganda v. Commissioner for Police, Ex Parte Matovu (1966) EALR 514’ (n 35) at 538.

53 ibid, at 539.

54 ‘[1969] 1 AC 645’.

55 ibid, 668..

56 (1968) 4. S.A. 515.

57 Harris (n 12), 103.

58 ibid, pp 108 and 111.

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coercive order can be interpreted as an objectively valid normative order”.⁵⁹

If the validity of a legal order depends on the effectiveness of its basic norm, it follows that when that basic norm of the system no longer attracts general support, it may be supplanted by some other basic norm. This is precisely what occurs after a successful revolution. According to Kelsen when the new laws of the revolutionary government are effectively enforced, lawyers presuppose a new grundnorm. This is because the Grundnorm is not the Constitution, but the presupposition that the new situation ought to be accepted in fact.⁶⁰

Thus, it is that Kelsen’s legal theory speaks of the Constitution in the legal logical sense – the basic norm, and then the Constitution in a positive legal sense which is the document containing rules for the administration of Government of the Country, which is commonly referred to as the constitution of a country.⁶¹

The decisions that have upheld the success of coups include the State v. Dosso, (Pakistan), Uganda v Commissioner of Police, ex parte Matovu,(Uganda) Madzimbamuto v. Lardner Burke (Southern Rhodesia), Bhutto v Chief of Army Staff (Pakistan),⁶² Valabhaji v. Controller of Taxes⁶³ (Seychelles), Mokotso v. King Moshoeshoe II (Lesotho).⁶⁴ Antanzima v. President of Transkei (Transkei).⁶⁵

In ending this section it is stressed that though Kelsen’s jurisprudential theory may be a neat coherent and logical analytical system that cannot be flawed on the grounds of logic, especially as far as its internal consistency appears. Yet before such a logical system is used as a solution to actual cases the judges are entitled to consider whether in addition to its logicality the consequence of applying Kelsen’s theory is desirable.⁶⁶ For according to Wendall Holmes often quoted phrase “ the life of the law has not been logic: it has been experience”:

The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.⁶⁷ Date- Bah, goes on to argue however that the legal effect of a coup d’état indicates that legal systems survive them and that juristically there is no break in the continuity of the legal systems upon the occurrence of such events.⁶⁸ Whilst this is conceded to some extent, it does not invalidate the arguments already put forth concerning the change in the grundnorm following a successful revolution. For as noted, usually only certain parts of constitutions or the whole constitution itself is annulled, but other parts of the legal order are saved as the following discussion below illustrates.

59 Hans Kelsen, General Theory of Law and State (n 32), 212.

60 ibid, 112.

61 Michael Freeman, Lloyd’s Introduction to Jurisprudence (9 th, Sweet & Maxwell Ltd 2014), 260; Martin Loughlin, Political Jurisprudence, vol 1 (Oxford University Press 2018).

62 (1977) P.L.D . S.C. Ct. 657.

63 ‘Civil Appeal No. 11 of 1980, Seychelles Court of Appeals’ [1981] 7 Commonwealth L. Bulletin 1249.

64 ‘(1989 ) L.R.C. Const.24’.

65 ‘1989 (4) SA 989.’

66 Date-Bah (n 40).

67 Edmund Fuller, ‘Oliver Wendell Holmes’ <https://www.britannica.com/biography/Oliver-Wendell- Holmes-Jr>, acces on 08/06/19.

68 Date-Bah (n 41), 318-319.

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The continued impact of the military revolution in Nigeria

The January 15, 1966, in Nigeria was executed by junior army officers. However, there uprising was suppressed by Federal troops of the Nigeria Armed Forces. On 16 January the Head of the Nigerian Armed Forces became the Head of the new Federal Military Government (FMG) which announced in a nation-wide broadcast that the armed forces had taken over the government of the country with immediate effect.⁶⁹ It was stated that certain provisions of the 1963 Constitution and of each Region were suspended.

The Federal Parliament and all Regional legislatures were similarly suspended. But the judiciary, the Public Services throughout the federation, the Armed Forces and Police were saved.⁷⁰ It is poignant to point out and to note that, the Nigerian legal order hence forth and till date has never had State or Regional Constitutions following the January 1966 Military coup in Nigeria.

The new Military Government by Decree Number 1 Constitution (Suspension and Modification) Decree of 1966, stipulated that the Federal Military Government had the power, to formulate laws for the “peace, order and good government of Nigeria or any part thereof with respect to any matter whatsoever”.⁷¹ This meant that the Federal Military Government had unlimited legislative powers: it was not limited to the Exclusive and the Concurrent lists as under 1963 Constitution or the earlier repealed 1960 Independent Constitution.⁷² This statement is partly clarified by the reasoning of the Privy Council when it provided further explanation on the origin of the term “peace order and good government.”⁷³ The phrase:

“Peace, welfare and good government” of a colony was the phrase habitually employed to denote the plenitude of sovereign legislative power, even though the power be confined to certain subjects or within certain reservations. The constitution thus established placed no restrictions on the manner in which or the extent to which the law making power could be exercised, either generally or for particular purposes.”⁷⁴

The Decree further provided for the modification and subjection of 1963 Constitution to Military decrees.⁷⁵ It stated:

“This Constitution shall have the force of law throughout Nigeria and if any other law (including the Constitution of a Region) is inconsistent with this Constitution, this constitution will prevail and the other law shall, to the extent of the inconsistency, be void. Provided that this Constitution shall not prevail over a decree and nothing in this Constitution shall render any provisions of a decree void to any extent whatsoever”⁷⁶

Decree number 1 of 1966 stated further, that no court of law shall have the power to review any question as to the validity of any decree or edict.⁷⁷ Thus, whatever was not

69 ‘Government Notice No. 148 of 26 January 1966.’

70 ‘Elias, 457’.

71 ‘Decree Number of 1966, Section 3’.

72 Dominion Constitution of Nigeria S.I. 1960, No. 1652; 1963 Republic Constitution- Constitutive Act.

73 ‘The Bribery Commissioner v. Ranasinghe [PC] [1964] 2 All E.R. 785 at 786’.

74 ibid at 791; For a contemporary fuller discussion of this phrase see further H.O. Yusuf, Colonial and Post-Colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government (Routledge 2014) and case of ‘R (Bancoult v. Secretary of State For Foreign and Commonwealth Affairs EWCA Civ 498’ (2007).

75 Ojo (n 25), 120-121.

76 ‘Schedule 3 under Section 1 of Decree No. 1 of 1966 (Constitution Suspension and Modification) Decree’.

77 ibid, section 6 of the Decree.

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abolished or suspended of the 1963 Republican Constitution was inferior to and unable to prevail over a military decree or military legislation.⁷⁸ For the Regions of Nigeria, the said decree stipulated that the Military Governors did not have the power to make laws with respect to any matter in the Exclusive Legislative list and only with the prior permission of the Federal Military Government could they make laws on any matter included in the concurrent legislative list.⁷⁹

The Federal Military Government ruled by force of arms and by decrees.⁸⁰ Not only did they have power to make laws, but by the success of the 1966 Military coup it must also be assumed that they had acquired in consequence thereof the authority to enforce the obedience of all Nigerians. In July 1966, there was a counter coup that successfully toppled the military government ushered in by the January 15 debacle.

In describing the nature of military rule, and the revolution in the Nigeria legal order, in E.A Lakanmi and Kikelomo Ola v. Attorney General, Western State⁸¹ the Court of Appeal in the Western State of Nigeria rightly observed it is suggested that:

“A new legislative power was created which does not derive its authority from the provision of the pre-existing Constitution. The Federal Military Government which made Decree No. 1 of 1966 is not a creation of any statute although section 8 of that Decree establishes bodies like the Supreme Military Council and the Federal Executive Council”.⁸²

In essence what is being urged is that the legislative power of the Military Government was supreme and could not be curtailed by the provisions of any other law. However, before, this particular case came before the Supreme Court, just after the decision of the High Court and before the decision of the Court of Appeal (West), referred to above, the Federal Military Government (FMG) passed successive Decrees to support the Attorney General of Western State (the respondent) since it seemed clear that based on the grounds of appeal of the appellants that the respondent was going to run into some legal problems. Decree No. 45 was the apex of the powers of the FMG to rescue the Western State Government from what was a perceived legal conundrum. The Decree legitimated all obligations made under any enactment or Decrees of the military administration, ousted the jurisdiction of the courts from questioning the validity of any Decree, excluded the application of fundamental human rights’ provisions in the Constitution and abated all pending proceedings in respect of any Decrees. Hence, Decree No. 45, 1968 was the back bone decree of the matters to be decided.⁸³

Indeed, the Constitution under Military rule in Nigeria to some extent complied with John Austin’s definition of Law as the command of the sovereign, the subjection of persons by the sovereign to his power⁸⁴ and backed by force: Military decrees and edicts in Nigeria, were backed by the force of arms and the threat of harm or injury to persons for daring to challenge the new military dispensation. By virtue of the nature of military rule in Nigeria, human rights were curtailed.

78 Ojo (n 25), 121.

79 Section 2 of Decree No. 1 of 1966 (Constitution Suspension and Modification) Decree.

80 Ojo (n 25), 124.

81 ibid, 129.

82 ibid.

83 DO Aihe, ‘Nigerian Federal Military Government and the Judiciary: A Reflection on Lakanmi v.

Attorney-General (Western State of Nigeria)’ (1971) 13 Journal of the Indian Law Institute 570-580.

84 R. Wacks, Understanding Jurisprudence: An Introduction to Legal Theory (Oxford University Press Inc 2012), 64.

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However, in this same case of E. A. Lakanmi and Kikelomo Ola v. Attorney General of Western State⁸⁵ the Supreme Court of Nigeria, came to a contrary view as to the success of the two military coups/ revolutions that occurred in 1966, and as to the unhindered power of the Federal Military Government to make laws.⁸⁶ If the interference of the military was a revolution, then all laws coming from the Military dictatorship could not be subjected to judicial review, because the old order under the 1963 Constitution would have given way to the new legal regime.⁸⁷ The case also covered the ouster clauses in certain military decrees like Decree No.1 of 1966.⁸⁸ Furthermore, the legislative competence of the Military Dictatorship in enacting Decrees especially Decree No. 45, of 1968⁸⁹ was challenged. It was this decree that was the bone of contention between the appellants and the Attorney General of Western State, (of Nigeria) the defendant.⁹⁰ The Decree’s compass as noted above, ousted the jurisdiction of the courts from questioning the validity of any decree and ordered there to be a cessation of all pending proceedings in respect of any decree edicts.⁹¹

The Supreme Court came to the conclusion in the Lakanmi case before it, that the Federal Military Government, as the supreme legislative body had by Decree No 51, of 1966, enacted what was the law covering the investigation of assets of public officers, which was operative throughout the country, any sub – state (or regional) enactment such as Edict No5 of 1967 on the same subject matter was ultra vires and void under the doctrine of covering the field.⁹² That another Decree, No. 45 was nothing short of Legislative Judgment, an exercise of judicial power, therefore ultra vires and invalid. It was further decided that the Federal Military Government was not a revolutionary government but was a temporary interim administration predicated by the events January 15, 1966.⁹³ The court was of the view that the happenings on that date which resulted in the handover of the government to the military was not outside the terms of the 1963 Constitution. The court held that although the manner of the cession of power to the military was unusual, it could be excused on the grounds of necessity and, being constitutional, bound the succeeding military regime to respect the constitution. In holding thus, the court held that the 1963 Constitution was still the basic norm in spite of the military coup.⁹⁴

The military government, responded immediately by promulgating decree No 28 of 1970,⁹⁵ which had the effect of nullifying this decision or that of any court in any part of the Federation whether given before or after the passing of the Decree, daring to pronounce void any military decree.

Decree No 28 of 1970 stated inter- alia:

“It is hereby declared that, …(b) any decision, whether made before or after the commencement of this Decree by any court of law in exercise or purported exercise

85 ‘SC (of Nigeria) 58/69 Unreported’.

86 See generally Ojo (n 25), 117-136.

87 ibid.

88 <http://nationalmirroronline.net/new/lakanmi-how-scourt-dared-military-regime/> accessed 19 March 2017

89 ‘The Forfeiture of Assets, Etc. (Validation) Decree, 1968’.

90 Aihe (n 84), 571.

91 ‘Sections 1(1)(2), (3) and 2(1) and (2) of the Forfeiture of Assets Etc (Validation) Decree 1968’.

92 ibid.

93 ibid.

94 C. Odinkalu, ‘The Management of Transition to Civil Rule by the Military in Nigeria (1966-1996)’ in y Lebeau K. Amuwo, D.C. Bach (ed), Nigeria during the Abacha Years (1993-1998) (Nigeria during the Abacha Years (1993-1998) Institut Francais de Recherche en Afrique).

95 ‘The Supremacy and Enforcement of Powers Decree 1970’.

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of any powers under the Constitution or any enactment or Law of the Federation or of any State which has purported to declare or shall hereafter purport to declare the invalidity of any Decree or of any Edict (in so far as the provisions of the Edict are not in inconsistent with the provision of the Decree) or the incompetence of any of the governments in the Federation to make the same is or shall be null and void and of no effect whatsoever as from the date of making thereof.’’

Furthermore, the Supremacy and Enforcement of Powers Decree in its preamble (which was to be read and interpreted as part of the decree) and provisions asserted that indeed, that the two military coups that occurred in 1966 were military revolutions, that comprehensively dispensed with the whole pre-exiting legal order in Nigeria. What was allowed to exist, including the 1963 Constitution, existed by virtue of the Constitution (Suspension and Modification) Decree.⁹⁶ Undoubtedly, the phoenix that emerged from the ashes of the over thrown legal order was the Federal Military Government which had absolute powers to make laws for the peace, order and good government of Nigeria or any part there in with regards to any matter whatsoever.⁹⁷ After this case, it also became the practice of every succeeding military government in Nigeria to introduce ouster clauses into their decrees.⁹⁸ This had the effect of preventing the courts from questioning the validity of the decree or anything done (or purported to be done) pursuant to the decree.⁹⁹ Mowoe, holds that eventually the Nigeria Supreme Court conceded the legislative supremacy of the military dictatorship of that epoch and the new legal order that it created.¹⁰⁰ Due to the effectiveness of this particular Decree,¹⁰¹ (as well as Decree No.1 of 1966) its peculiar provisions formed part of the ‘grundnorm’ of all subsequent military governments till 1999, and confirmed that the January 15, 1966 coup was a revolution that effectively dethroned the legal order that then existed,¹⁰² except what was saved, suspended or modified.

The Supremacy and Enforcement of Powers Decree as well as Decree No. 1 of 1966`undoubtedly laid a clear precedent that the foundation on which other laws or norms rest or the grundnorm was in the said Decree No1 of 1966 and in all subsequent constitution and modification decrees promulgated by successive Military Governments, that dominated the legal order of Nigeria from 1966 till 1979 and from 1983 till 1999.¹⁰³ Thus, equipped military dictatorships have through coups d’état been enabled to guarantee and assure the success of their revolutions in the legal order of Nigeria.

In applying Kelsen’s jurisprudence to this situation it is reasoned thus; that the grundnorm is presupposed and authorises the creation of norms including the constitution. Coercive acts ought to be applied in accordance with the Decrees passed by the Supreme Military Council in complying with the provisions of Decree No. 1 of 1966 (Constitution: Suspension and Modification) Decree.¹⁰⁴ And subsequent similar suspension and modification decrees.

96 Decree Number 01 of 1966.

97 ibid; Preamble to the Decree, section 1 to the end; See also B.O. Nwabueze, Constitutional History of Nigeria pp174-175 footnote 18 above.

98 ‘The Supremacy and Enforcement of Powers Decree (Amendment II) Decree No.16, 1994’.

99 T. I. Ogowewo (n 1).

100 Mowoe (n 17), p. 17; and cites Chief Adebiyi v H.E. Colonel Mobolaji Johnson, Military Governor of Lagos State, SC 158\70 (unreported), to back her contention.

101 ‘That Is the Supremacy and Enforcement of Powers Decree, Decree No. 28, 1970’.

102 ibid, see the Preamble to the above decree.

103 Mowoe, Constitutional Law in Nigeria (Malthouse Press 2008), 24.

104 ibid, p. 109-110. This logic when applied to the UK will see the basic norm inter-alia as the Crown in Parliament.

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The military individuals/ rulers who created the decrees are seen as norm creating authorities. Applying this line of thought to the military class that governed Nigeria also fits aptly in this context.¹⁰⁵ For a decree becomes law when signed by the Head of the Federal Military Government. In 1983, when the Military, having returned the country in 1979 to democratic governance, carried out another coup d’ etat that toppled the Second Republic of Nigeria (1979 to 1983). They promulgated another Decree No.1. This decree as well, suspended and modified the 1979 Constitution. Those parts not suspended or that were saved were to have effect subject to this new decree.¹⁰⁶ Power to make laws by decrees was conferred on the Federal Military Government, this occurred when signed by the “Head” of the military Government. The power of State Military Governors to do the same (known as edicts) was also delineated by the same enabling decree.¹⁰⁷

There were other Military Decrees at different times between 1966 and 1999 apart from the two already mentioned. They included the following: The Constitution (Basic Provisions) Decree No. 32 of 1975,¹⁰⁸ the Interim Government (Basic Constitutional Provisions) Decree No. 61 of 1993¹⁰⁹ and the Constitution (Suspension and Modification) Decree No. 107 of 1993.¹¹⁰ These mentioned decrees formed basic norms of successive military regimes in this epoch of Nigeria’s constitutional development.

It is thus, ip so facto¹¹¹clear that the successful coup d’états that have occurred in Nigeria have permanently altered the constitutional landscape. It is generally agreed that the Supreme Court decision in the Lakanmi case was wrongly decided.¹¹²

It cannot be denied that the courts are the bulwarks/ bastions of the rights of the people. Governmental encroaches upon the forbidden zones of the Constitution are usually rebuffed by judicial review but where the government has removed the right of the court to review legislative actions in certain respects the courts are bound to respect that provision especially where the Constitution is no longer supreme. To hold that a decree or edict of the Federal Military Government is ultra vires is to deny the legislative competence of the Military Dictatorship and to affirm that the Republican Constitution is still the supreme law of the land. This it is contended was clearly wrong.¹¹³

This separation of legislative competencies was abrogated by the Military Dispensation whilst it lasted. As the Supreme Court further observed in the Lakanmi case:

“It is no gainsaying that what happened in Nigeria in January 1966 is unprecedented in history. Never before, as far as we are aware, has a civilian government invited an army to take over, or the armed forces to form an interim government.”¹¹⁴ According to Tayyab Mahmud, reflecting on the Lakanmi case:

The aftermath of the Lakanmi is very instructive for any study that aims at identifying suitable judicial responses to successful coups de etat. It clearly

105 Harris (n 12), p. 110; Hans Kelsen, General Theory of Law and State (n 32).126.

106 ‘Decree No 1 of 1984 (Constitution: Suspension and Modification) Decree of 31st December 1983 Sections 1(1)(2)’.

107 ibid, section 2 (1) (2) (a) (b).

108 ‘For the period 29 July 1975 to 30 September 1979 and replace Decree Number of 1966.

109 From 26 August 1993 to 16 November 1993

110 Which operated between 17 November till 28 May 1999 111 By the very fact

112 Ojo (n 24).

113 Aihe (n 83).

114 B.O. Nwabueze, Constitutional History of Nigeria, 163.

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demonstrated the practical limitations a court confronts when fed with the fait accompli of usurpation. The usurper’s monopoly of coercive power allows them to ignore any adverse pronouncement by the judiciary or even to browbeat it into submission.¹¹⁵

Nwabueze contends¹¹⁶ inter-alia that by this revolution the armed force was vested not only with executive authority, but the entire legislative sovereignty as well. For it must be noted that the military became the sole government of the country, combining all the powers of the legislative and executive, of both the federal and regional governments.

The Federal Military Government took upon itself complete sovereignty – absolute, undivided and unlimited. Before this, Nigeria had been a Parliamentary democracy and no one single government in the federation had absolute executive and legislative powers.

This was due to the nature of the 1963 Republican Constitution,¹¹⁷ and the Independence Dominion Constitution that operated at the point of full self-government in Nigeria in 1960. The Nigeria Armed Forces acquired by the revolution competence to relate with the constitution in any way they thought fit- to preserve it, modify or suspend provisions. And they did so, suspending, modifying or eliminating all aspects of the constitution as were incompatible with the structure and purposes of Nigeria’s Military dispensation.¹¹⁸

The peak of this line of jurisprudence reaches its climax with the legitimization of the military revolution of January 15, 1966 which received expression in the 1979 and 1999 Constitutions. Thus, in the 1999 CFRN, the judicial powers of the Federation are vested in the designated courts under the Constitution, but it:

Shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make any such law.¹¹⁹

Similar provisions were also outlined in the earlier 1979 Constitution of the Second Republic.¹²⁰ Furthermore, by Section 4, of the 1999 CFRN, Legislative power in Nigeria is vested in the National Assembly comprising of a Senate and a House of Representatives.¹²¹ They are however unable to pass laws retroactively with respect to any criminal act whatsoever. Yet again the exact same provisions were contained in the earlier 1979 CFRN.¹²² Hence, the revolutionary acts/coups carried out by the Nigeria military from January 1966 which in some cases involved the loss of lives and other crimes or offences appear to have escaped the long arm of the law and of justice.

Criticism

In an article calling upon the Supreme Court of Nigeria to declare the 1999 Constitution currently in force a nullity,¹²³ Ogowewo, argues against the received wisdom of Kelsen’s thought as covered above. His article covers many issues but he urges inter-alia that the military imposed constitution is illegitimate and that it lacks moral authority and that it was

115 T. Mahmud, ‘Jurisprudence of Successful Treason: Coup d’etat & Common Law (1994)’ (1994) 27 Cornell Int. Law Journal 49,153.

116 Nwabueze, A Constitutional History of Nigeria see section section 78 (2), 78 (1) and section 69 (2) of the 1963 Constitution.

117 ibid, 163; see the 1963 Constitution of Nigeria Sovereignty was distributed between the Federal and the four Regional Governments.

118 ibid, 163.

119 ‘1999 CFRN Part 2 Section 6 [6][d]’.

120 ‘1979 CFRN Part 2, Section 6 (6) d.

121 ‘1999 CFRN Section’ (n 119).

122 1979 CFRN Part 2, Section 4 (9).

123 T. I. Ogowewo (n 1), p. 135-166.

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foisted on Nigerians through deceit.¹²⁴ That as it stands the Constitution provides or gives incentive to revolutionaries or coup plotters as he calls them most of the time throughout his article, to go ahead, that if they succeed in toppling the said constitution then their rewards are immeasurable to the extent that the risk of failure in successfully executing the coup peters out to insignificance thereby.¹²⁵ Nigeria’s law now rewards usurpers who after remaining in power for a long time can retire with their ill-gotten wealth.¹²⁶ This is evidenced by the Remuneration of Former Presidents and Heads of State (and other Ancillary Matters) Decree.¹²⁷ That rains down wealth and other lavish privileges upon retired military leaders.¹²⁸ That irrespective of alleged crimes and atrocities committed by military dictatorships which governed Nigeria from January 1966 until May 1999, section 6 (6) (d) of the 1999 CFRN provides them with a cloak of immunity that cannot be questioned by the courts.¹²⁹ He fails to mention though, that these same provisions were incorporated in the 1979 Constitution also.

He contends further that with the departure of the military from the corridors of power, it is now within the ambit of any democratic government in Nigeria and the vanguards of civil society ‘to alter the risk benefit calculus of coup plotters by introducing – what should always be in the calculus – the risk that even when successful coup plotters depart they will be called upon to account for their crimes.’¹³⁰

However, prosecution against the coup plotters can only succeed if the 1999 Constitution that contains this immunity clause is annulled. It is in providing for the legal basis for its judicial termination that Ogowewo attacks Kelsen’s theory of the change in the grundnorm, and that it has been misapplied by jurists including those in Nigeria.¹³¹ Not only they but courts have fallen into error too. The position of Nigerian jurists according to Ogowewo is:

the successful execution of a coup is a revolution and the suspension decree promulgated by the revolutionaries becomes the grundnorm. That whatever the military do such as promulgating a new constitution with an immunity clause. Or repealing an existing constitution or abrogating a prior constitution (is what he means it is suggested).¹³² That these acts of the military must be recognized not only during military rule but after military rule, because the revolution has put an end to one legal system and has initiated a new one.¹³³ One of his many conclusions is that:

“Kelsen himself would not have agreed with this line of reasoning. That Kelsenian scholars have pointed out that courts that have used Kelsen in this way have

“misrepresented Kelsen’s positivist Pure Theory and its concept of Grundnorm to disguise from observers, and perhaps from themselves, the profoundly political nature of their actions.”¹³⁴

However, in response it is retorted that until the legal order set up by the military influenced 1999 Constitution is repealed and replaced by another constitution or through another revolution, Ogowewo’s arguments of the revival of the will of the people of Nigeria

124 ibid, 135.

125 ibid, 135-136.

126 ibid, 136.

127 ‘Decree Number 32 of 1999, which became law just under three weeks before the country reverted to civilian democratic rule on 29^th May 1999.

128 ibid. 136.

129 ‘1999 CFRN Part II.

130 ibid, 137.

131 ibid, 137-159.

132 ibid, 154.

133 ibid.

134 TC Hopton, ‘Grundnorm and Constitution: The Legitimacy of Politics’ (1978) 24 McGill L.J 72.

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hitherto in abeyance as a result of the earlier over throw of the 1979 Constitution, remains a theoretical proposition.¹³⁵ The law and jurisprudence of successful revolution if it can be said to exist deals with legal realism and practicalities of the situation. Throughout his article he draws on authors like de Smith.¹³⁶ Yet the latter never disputed that a successful revolution creates its own legality. He was engaged mostly in that article in discussing emergency powers and the doctrine of necessity.¹³⁷ Thus, the learned author commenting on the constitutional crisis that engulfed Pakistan shortly after independence¹³⁸ posited:

“It was no doubt a comfort to be able to hold that what was necessary was also lawful, and indeed lawful precisely because it was necessary.”¹³⁹

Ogowewo also argues that Nigerian jurists have equally misunderstood Kelsen by treating his theory as prescriptive, that a theory has been elevated into a rule of decision.¹⁴⁰ That the theory of legal discontinuity is explanatory and not otherwise.¹⁴¹ Thus if a coup is successful according to Ogowewo’s logic and the revolutionaries subsequently relinquish power then there is a problem. That to be truly successful, a military coup must lead to permanent military rule then there is an efficacious new order, that it is only in this context that Kelsen’s theory of discontinuity has explanatory force, since it explains why the rules in the new legal order are habitually obeyed. He cites sections of Sallah v. AttorneyGeneral (Ghana).¹⁴² That in the Pakistani case of Jilani v. Government of Punjab¹⁴³ the Supreme Court overruled its earlier decision in Dosso, which has been described as a carte blanche for treasonable conduct,¹⁴⁴ and rejected a Kelsenian argument that would have validated all the laws of the usurpers who had since relinquished power. Hamoodur Rahman C.J. said:

“Kelsen’s theory was, by no means, a universally accepted theory nor was it a theory which could claim to have become a basic doctrine of the science of modern jurisprudence . . . He was propounding a theory of law as a ‘mere jurist’s’ proposition about law. He was not attempting to lay down any legal norm or legal norms which are ‘the daily concern of Judges, legal practitioners or administrators’.”¹⁴⁵

The court also pointed out that using Kelsen to validate the actions of usurpers is a misapplication of Kelsen. He went on to say that: “It was, by no means, [Kelsen’s] purpose to lay down any rule of law to the effect that every person who was successful in grabbing power could claim to have.”¹⁴⁶ Ogowewo, retraces his steps conceding that Kelsen did argue that a revolution puts an end to one legal system and initiates a new one, but his theory was never meant to explain the effect of an usurpation which although successfully executed did not ultimately succeed. Thus, it is urged, that though not all jurists subscribes to Kelsen’s theory of the basic norm and the change of basic norm through coup d’etats and revolutions.¹⁴⁷ Some argue that the weight of academic and judicial opinion is now strongly against revolutionary legality of the military type.¹⁴⁸

135 ibid.

136 De Smith, ‘Constitutional Lawyers in Revolutionary Situations 1968’ Western Ontario Law Review.

137 ibid.

138 ‘Reference by the Governor – General (of Pakistan) P.L.D. 1955 F.C. 435, 486’.

139 De Smith (n 137), 97.

140 ibid, 155.

141 ibid.

142 ‘20th April, 1970 Unreported. Reprinted in S.O. Gyandoh, Jr & J. Griffiths, A Source of the Constitutional Law of Ghana, Accra (1972) P493’.

143 ‘(1972) P.L.D. s.Ct. 139, 243’.

144 ibid, 134.

145 ibid, 135.

146 ibid, 136.

147 J. W. Harris, ‘When and Why Does the Grundnorm Change?’ Vol. 29 The Cambridge Law Journal 103.

148 Hakeem Yusuf, Colonial and and Post Colonial Constitutionalism in the Commonwealth: Peace,

Jurnal Kajian Ilmu Hukum dan Syariah

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Contents

INTERNATIONAL LAW AND REVOLUTION IN THE 21

CENTURY:

Kelsen’s Jurisprudence and The Enduring Impact of The January 15, 1966 Coup On The Nigeria Constitution