JURISPRUDENCE’S DAY IN COURT IN GHANA

What is the legal effect of a coup d'état on a legal system? This could well be an examination question in jurisprudence set in an academic
institution, but this became a question that had to be resolved by the highest court of Ghana in order to settle a far from academic constitutional
dispute.
This article aims to analyze the legal validity of the Ghanaian Court of Appeal's ruling in the case of E. K. Sallah v. The Attorney-General,
representing the Government of Ghana. This case is a result of Ghana's recent political history.
On February 24, 1966, ex-President Kwame Nkrumah's government was overthrown in a military coup d’état. The army and police took over
governance, forming the National Liberation Council. They suspended the 1960 Republican Constitution of Ghana, which Dr. Nkrumah had
been operating under. The legal consequences of this action became relevant in the E. K. Sallah v. The Attorney-General case. If not for the
creative legal arguments presented by the Government (aka. the Attorney General), this case might have been a straightforward matter of
constitutional interpretation.
The Ghanaian Attorney-General's submissions made it necessary to consider jurisprudential thought in deciding the case. However, the
judgments did not offer much for those interested in legal philosophy. Jurisprudes hoping for in-depth analysis of the effects of a coup d’état on a
country's existing legal system might be disappointed. Many of the judges found the Attorney-General's jurisprudential submissions irrelevant
and misleading. The dissenting judge, who accepted the Attorney-General's argument, did not reference jurisprudential works, and their
judgment lacked a sustained discussion of legal philosophy.
The dispute in this case focused on section 9(1) of the Transitional Provisions of the Ghanaian Republican Constitution of 1969, which is part of
Schedule A to the Constitution. The provision states that, with certain exceptions, anyone who held or acted in an office established by the
National Liberation Council before the Constitution came into force would be deemed to have been appointed to hold or act in an equivalent
position under the new Constitution for six months, unless they were appointed to a different position before that time.
The plaintiff was appointed as a manager in the Ghana National Trading Corporation (GNTC), a state trading corporation, in October 1967. The
GNTC had been established in 1961 and continued to exist as a legal entity at the time of the coup d’état in February 1966. On February 21,
1970, the plaintiff received a letter stating that his appointment with the GNTC had been terminated according to section 9(1) of the Transitional
Provisions of the Constitution. The plaintiff argued that his position did not fall within any of the categories mentioned in section 9(1) and sued
the Attorney-General on behalf of the Government of Ghana for a declaration that his appointment could not be terminated based on the correct
interpretation of section 9(1). The plain meaning of the words in section 9(1) seemed to support the plaintiff's view. To counter this
interpretation, the Attorney-General invoked Kelsen's theory of the legal effect of revolutions and coups d’états on legal systems. The Attorney-
General argued that the word "establish" in section 9(1) should be given a "technical meaning" to support the government's position.
Kelsen's jurisprudential system suggests that a legal system consists of numerous hierarchically arranged norms or legal rules, all of which have
one ultimate source: the Gründnorm. The legal system can be compared to an inverted pyramid, with the Gründnorm as its foundation. All
subordinate norms in the legal system derive their validity from the Gründnorm. If the Gründnorm is removed, the entire structure collapses.
Kelsen argues that the legal effect of a coup d’état is the destruction of the Gründnorm, which leads to the collapse of the entire legal system.
The Attorney-General used this argument to claim that the February 1966 coup d’état in Ghana destroyed the Gründnorm of the previously
existing legal order (the 1960 Republican Constitution) and consequently the whole legal system.
According to Kelsen, when a revolution occurs, the new authorities often annul only the Constitution and some politically significant laws,
replacing them with new norms. Although many parts of the old legal order may "remain" valid within the frame of the new order, they are no
longer valid by virtue of being created under the old constitution. If these laws continue to be valid under the new constitution, it is only because
the new constitution has expressly or tacitly granted them validity.
The Attorney-General relied on this analysis to argue that when the 1960 Constitution was suspended, the Act that established the GNTC should
be considered as having lapsed. It lost its validity and only regained it through the Proclamation of February 26, 1966. Consequently, he urged
that the word "establish" in the relevant constitutional provision should be given the technical meaning of "deriving legal validity from."
Before discussing the reactions of the Court of Appeal, sitting as the Supreme Court, to this argument, it would be appropriate first to clarify the
issue of what legal authority the passage quoted from Kelsen above has in the Ghanaian legal system.
The passage from Kelsen, as well as any other legal argument from textbooks, holds no inherent legal authority in the Ghanaian legal system
unless they are found in books of authority. Their persuasive value is limited to their inherent force and merit, rather than any artificial weight
given to them by judicial decisions or authoritative books. The merit of such a legal argument can be assessed in terms of analytical excellence
and social desirability of the consequences resulting from the argument. Therefore, while Kelsen's theory may be logically sound and internally
consistent, judges must also consider the social desirability of the consequences of applying the Kelsenite viewpoint before using it to solve an
actual case. This approach reflects the sociological jurisprudence (which emphasizes the role of social context and experience in shaping the
law), as opposed to the purely analytical jurisprudence found in Kelsen's work.
The Attorney-General's argument raised two issues:
i. The legal effect of a coup d’état on a country's pre-existing legal system and
ii. The relevance of this legal effect on the interpretation of section 9(1) of the Transitional Provisions.
The first issue is independent of the will and intention of the members of the Constituent Assembly; the correctness of the Kelsenite analysis
cannot be affected by their ignorance of Kelsen's theory. To disagree with the Attorney-General on this issue, one must present an alternative
analysis of the legal effect of a coup d’état, suggesting that legal systems can survive such events and that, from a legal perspective or juristically
speaking, there is no break in the continuity of legal systems upon the occurrence of a coup d’état. This would require an alternative perspective
that considers the practical consequences and social desirability of the argument, in addition to its logical soundness.
Assuming that Kelsen's analysis as correct, it would imply that all public offices in Ghana were automatically abolished on February 24, 1966.
Consequently, since these public offices no longer existed as of that date, they could be considered as "established" by the NLC Proclamation of
February 26, 1966, as if they were created anew by the Proclamation. This interpretation, based on the Kelsenite analysis, would have a bearing
on the interpretation of section 9(1) of the Transitional Provisions.
The second issue involves assessing the relevance of the legal effects of a coup d’état on the interpretation of section 9(1) of the Transitional
Provisions. In deciding this issue, judges must weigh both the rationality of Kelsen's theory and the social consequences of applying it to the case
at hand. It is on this second issue that the will and intention of members of the Constituent Assembly become important. Did the members realise
when using the word " establish" that it could embrace, not only offices created for the first time by the NLC, but also offices created by the
NLC in substitution for offices bearing identical names under the old legal order?
Apaloo J.A. and Sowah J.A. in answer to these questions, both assert that the members of the Constituent Assembly likely approached their task
as practical individuals guided by their experiences and understanding of ordinary English words. They argue that it is unlikely that the members
had any juristic theories on the principle of legitimacy in mind while using the word "establish" in section 9(1). Therefore, it would not align
with the framers' intentions to interpret the word "establish" by reference to Kelsen's theory or any similar legal theory.
However, the relevance of Kelsen's analysis to the task of constitutional interpretation depends on whether the members of the Constituent
Assembly intended the word "establish" to encompass not only offices created for the first time by the NLC but also offices created by the NLC
as replacements for offices bearing identical names under the old legal order.
In essence, the position of these two judges emphasizes the importance of interpreting the words in a constitution according to the meaning
intended by its framers, rather than exploring alternative meanings that may be derived from specific jurisprudential theories. This approach
underscores the significance of practicality and the intended meaning of the constitution's drafters in the process of constitutional interpretation.
 Positions and Mistake of Apaloo and Sowah J.A
The viewpoint adopted by Apaloo and Sowah J.A. suggests that they did not find it necessary to discuss the merits of the first issue involved in
the Attorney-General's submission, as they believed that the Constituent Assembly could not have had Kelsen's analysis in mind when using the
word "establish." This means that they did not address the question of the legal effect of a coup d’état on a country's legal system directly.
Consequently, their judgments do not provide much insight into that issue from a jurisprudential perspective.
Apaloo J.A. expressed little regard for jurisprudence and legal philosophy when it came to the practical task of interpreting legislation and
administering the law. He saw the Attorney-General's Kelsenite arguments as highly artificial and unlikely to persuade experienced judges.
Apaloo J.A. emphasized the importance of interpreting the Constitution according to its letter and spirit rather than adhering to a doctrinaire
juristic theory. This approach reflects a practical stance on judicial interpretation, focusing on the actual intention and meaning of the Constituent
Assembly while drafting the Constitution. It highlights the significance of aligning judicial interpretation with the practical concerns and realities
faced by judges when interpreting legislation and administering the law.
Although Apaloo and Sowah JJ.A. dismissed the Kelsenite analysis based on the intention of the Constituent Assembly, it is indeed regrettable
that they did not thoroughly discuss the merits and demerits of the Kelsenite analysis itself. Their judgments focused on the ordinary meaning of
the word "establish" and the practical implications of the NLC Proclamation of February 26, 1966, but did not provide explicit reasons for why
the Kelsenite analysis of the legal effect of a coup d’état is wrong. For example, Apaloo J.A. argued that the NLC Proclamation allowed for the
continuation of public service offices, implying that they already existed before the coup d’état. This line of reasoning challenges the Kelsenite
analysis, but Apaloo J.A. did not specifically address why Kelsen's theory was incorrect. Similarly, Sowah J.A. suggested that the NLC
Proclamation was not intended to re-establish or create anew all the laws of Ghana, including common law and customary law. Instead, he
argued that the existing laws should continue, subject to any subsequent decrees. While this interpretation also challenges the Kelsenite analysis,
Sowah J.A. did not provide a clear refutation of Kelsen's theory.
While Apaloo and Sowah J.A. dismissed the Kelsenite analysis based on the intentions of the Constituent Assembly, their judgments did not
provide a thorough evaluation of the merits and demerits of the Kelsenite analysis itself. As a result, their arguments primarily focused on the
practical implications and ordinary meaning of the term "establish" rather than engaging with the underlying theoretical issues. Apaloo and
Sowah J.A.'s views are indeed based on an implied belief in the continuity of legal systems, and they assume that coups d’états do not affect the
continuity of legal systems.
While this view may be preferable to Kelsen's, it is important to engage with Kelsen's analysis on its merits, rather than dismissing it based on its
theoretical and foreign nature.
The learned judges could have provided a more detailed evaluation of Kelsen's analysis, explaining why they believe it is incorrect, and offering
alternatives. For example, they could have discussed whether they accept Kelsen's view on the structure of a legal system but believe that a legal
system can survive the destruction of its Gründnorm, or whether they reject Kelsen's view of the source of ultimate validity of rules in a legal
system altogether. A possible argument that the learned judges could have made is that there is a policy interest in maintaining continuity in legal
systems, and as such, it is socially desirable and practically necessary for the law to hold that all rules within a legal system, except those
specifically abrogated, survive coups d’états. This practical argument, although grounded in sociological jurisprudence, would have provided a
more comprehensive reasoning for their rejection of Kelsen's analysis.
Apaloo and Sowah JJ.A. dismissed the Kelsenite analysis based on its theoretical nature and the intentions of the Constituent Assembly, a more
thorough evaluation of Kelsen's analysis would have provided a stronger foundation for their reasoning. Engaging with Kelsen's theory and
discussing the reasons for its incorrectness or the merits of alternative views would have been more instructive for readers of the judgments and
allowed for a more robust understanding of the legal effect of coups d’états on a country's legal system.
The failure of Apaloo and Sowah JJ.A. to articulate their reasons for thinking the Kelsenite analysis incorrect indeed leaves readers guessing
about their rationale.
 Archer J.A.
In contrast, Archer J.A. did discuss the Kelsenite analysis on its merits before rejecting it. However, his primary difficulty in applying the
Kelsenite analysis to the Ghanaian legal system after February 1966 was in identifying the new Gründnorm. He did not consider the NLC
Proclamation of February 1966 as the new Gründnorm, arguing that it was not a constitution due to its unpredictability and limitless executive
and legislative powers.
However, this conception of a constitution is debatable, as the Proclamation was a fundamental constitutional document during the NLC period.
Although it may not have embodied all the constitutional rules in force, it served as the basis for the legal validity of the NLC's acts and Decrees,
making it the Gründnorm. Archer J.A.'s judgment, like those of the other majority judges, reflects an intuitive preference for preserving the
continuity of legal systems.
 The potential of the Kelsenite analysis to create a legal vacuum
One significant drawback of the Kelsenite analysis is its potential to create a legal vacuum in a country, as the destruction of the old Gründnorm
need not occur simultaneously with the establishment of a new Gründnorm. This could lead to a hiatus in the legal system, as might have
happened in Ghana between February 24, 1966, and February 26, 1966.
It is possible that the learned majority judges were influenced by such factors in their refutation of the Kelsenite analysis. However, their
judgments lack convincing arguments refuting Kelsen's analysis on its merits. A more thorough evaluation of Kelsen's analysis and a clear
articulation of their reasons for rejecting it would have strengthened their reasoning and provided a more comprehensive understanding of the
legal effect of coups d’états on a country's legal system.
 Conclusion
The author is persuaded by arguments that emphasize the importance of preserving continuity in legal systems and preventing legal vacuums or
hiatuses of lawlessness, concluding that the Kelsenite analysis of the legal effect of a revolution may lead to socially undesirable consequences.
While Kelsen's general jurisprudential system offers a useful way to analyze how a legal system works, practical lawyers may not readily accept
that all pre-existing laws lose their validity when a coup d’état occurs, and a constitution is abrogated without an immediate replacement.
This perspective suggests that subordinate norms in a legal system can survive the destruction of the Gründnorm, and social desirability supports
the notion that certain rules within a legal system should persist even after the Gründnorm is destroyed. However, only one judge, Anin J.A., was
persuaded by the Kelsenite argument, leading to the conclusion that the majority judges were determined to give the provision in dispute its
ordinary English meaning based on their desire to effectuate the will of the Constituent Assembly.
While this determination may have been justifiable in that context, it was based on the assumption that the Kelsenite analysis was mistaken. The
learned judges did not provide convincing reasons for their belief that the analysis was wrong, even though the author himself considers the
analysis to be unacceptable. In sum, jurisprudence's day in court in Ghana was not particularly favorable for the discipline, as the majority judges
were focused on effectuating the will of the Constituent Assembly and were not swayed by the Kelsenite analysis.
SALLAH V ATTORNEY GENERAL
Facts
On 24th February. 1966, the armed forces of Ghana staged a coup d’état and toppled the government of President Kwame Nkrumah. Days later,
the military by a proclamation suspended the 1960 constitution, dissolved the national assembly and established the National Liberation Council
as the new sovereign authority with power to legislate by decree. In 1969, the military rule was terminated and civilian rule was established
under a new constitution, 1969. The transitional provisions of the 1969 Constitution provided for the termination of any office established by the
NLC. The plaintiff, E.K. Sallah was appointed in October 1967 to a managerial post at the Ghana National Trading Corporation (GNTC), a
corporation established under the Statutory Corporations Act of 1961 under E.I. 203 and when that law was repealed, it was “continued in
existence” by Legislative Instrument No. 395 which was passed under the authority of the new Statutory Corporations Act, 1964. On 21st
February 1970, the new civilian government dismissed Sallah, under the transitional provisions of the 1969 Constitution. He instituted this suit
to challenge the validity of his dismissal.
Arguments
1. The plaintiff argued that his office was not brought into existence by the law that was overthrown in the revolution (LI No 395), rather, it was
continued in force by that law, and therefore the NLC could not claim that they had created that office. He argued that his office was created by
E.I 203 and was only continued in force by L.I 395 and as such, the new order created by the NLC Proclamation did not affect his office to be
caught by section 9(1) transitional provisions of the 1969 Constitution.
2. The Attorney-General’s arguments were based on Kelsen’s position that in a revolution properly so-called, the old legal order was abolished
and a new one, with its own Gründnorm was established. Thus in 1966, the old order (the 1960 Constitution) disappeared, and the new one was
established, with its new Gründnorm, which the Attorney-General identified as the Proclamation. He argued that “establish” must be interpreted
as “deriving legal validity from”. Simply put, the Attorney-General was using Kelsen’s theory of discontinuity, and applied thus, it meant that the
LI 395 was valid by virtue of the State Corporations Act, 1964, which in turn was validated by article 40 of the 1960 Constitution, and since the
NLC had annulled that constitution, the old source of validity of the GNTC was gone, and the corporation was re-born by the NLC
Proclamation, and therefore the plaintiff was squarely caught by the provisions.
Issues
1. The main issue was whether the plaintiff’s office was established by the NLC Proclamation.
Held
In a 3-2 majority decision, the court held that the plaintiff’s office had not been established by or under the authority of the NLC Proclamation, it
only “continued it in existence” and therefore they were wrong in terminating his appointment. The court rejected Kelsen’s theory posited by the
AG as it described it as foreign theories. The court, per Archer J.A declined to designate the coup d’état as a valid revolution but rather the
beginning of one and that the proclamation cannot be termed as the Gründnorm because it was not a constitution. The majority thus held that
Sallah’s office was established in 1961 by the E.I and not by the extra-constitutional regime (L.I 395) which only continued it in force.
In Justice Archer’s judgment he decided that although the argument from Kelsen’s point of view was very sound it was not enough to describe
whether the plaintiff’s office fell among the categories of offices by the proclamation. He said the theory could also not be used because the
people of Ghana had stated in their preamble that their basic norm was traced from Almighty God from which they had their constitution and
their legal order was their constitution which had the special element of predictability of which the proclamation did not have. The NLC
proclamation did not make the theory from Kelson applicable. The majority in court decided that the coup did not destroy the previous order
which was the 1960 constitution but just changed parts of it.
1. How are the theories as propounded by Henry Maine and Fredrich Carl Von Savigny(Historical Jurisprudence) relevant in
Ghanaian Jurisprudence?

Introduction
The theories of Henry Maine and Friedrich Carl Von Savigny have had a significant impact on jurisprudence throughout the world. Both scholars
are widely known for their contributions to historical jurisprudence, which focuses on the study of the historical and cultural context of law. This
essay will analyze the relevance of their theories in Ghanaian jurisprudence, with particular attention to the concepts of legal evolution,
customary law, and the role of legal institutions.

Maine's Theory: The Evolution from Status to Contract

Henry Maine's legal theories are best encapsulated in his work, "Ancient Law." His central thesis is that societies evolve from a status-based
system to a contract-based one. According to Maine, in the early stages of societal development, relationships are governed by status, meaning
that a person's rights and obligations are determined by their position in society. As societies become more complex, they shift towards a
contract-based system, where individuals negotiate their rights and obligations with one another.
In Ghana, the legal system has evolved significantly since the country gained independence from British colonial rule in 1957. Initially,
Ghanaian jurisprudence was deeply rooted in customary law and the status-based system, reflecting the country's diverse ethnic and cultural
traditions. However, with the adoption of a written constitution and the establishment of a legal framework, Ghana has transitioned towards a
more contract-based system.
Nevertheless, customary law still plays a vital role in Ghanaian jurisprudence. The 1992 Constitution of Ghana recognizes customary law as a
source of law, particularly in matters of land tenure, marriage, inheritance, and chieftaincy. Thus, Maine's theory of legal evolution from status to
contract remains relevant in understanding the ongoing transformation of Ghana's legal system.

Savigny's Theory: The Organic Nature of Law and the Importance of Custom
Friedrich Carl Von Savigny, one of the most influential legal scholars of the 19th century, argued that law is an organic, evolving product of a
society's customs and traditions. According to Savigny, law should be rooted in the Volksgeist, or the spirit of the people, and should change as
society evolves. Savigny's theory of historical jurisprudence emphasizes the importance of custom in shaping a legal system.
In Ghana, the importance of customary law cannot be overstated. As mentioned earlier, the Constitution recognizes customary law as a source of
law, and it plays a crucial role in regulating various aspects of social life. Customary law is deeply embedded in the cultural fabric of Ghanaian
society, reflecting the diverse customs and traditions of the various ethnic groups.
Moreover, Ghanaian courts have demonstrated a willingness to apply customary law alongside statutory law in their judgments. For example, the
Supreme Court of Ghana, in its landmark decision in the case of Nana Adjei Ampofo v. Nana Buabeng (2007), held that customary law should
be taken into account when interpreting the Constitution. This demonstrates the continued relevance of Savigny's theory in Ghanaian
jurisprudence.

The Role of Legal Institutions

Both Maine and Savigny stressed the importance of legal institutions in shaping the law. In Ghana, the legal system is characterized by a fusion
of customary law and statutory law, which is reflected in the structure of the country's legal institutions. The courts, including the Supreme
Court, the Court of Appeal, and the High Court, are tasked with applying both customary law and statutory law in their judgments. Additionally,
customary courts, such as the traditional councils and the regional and national houses of chiefs, play a crucial role in adjudicating disputes
involving customary law.

Conclusion
In conclusion, the theories of Henry Maine and Friedrich Carl Von Savigny remain relevant in Ghanaian jurisprudence. Maine's theory on the
evolution from status to contract helps us understand the transformation of Ghana's legal system from a status-based customary law system to a
more complex, contract-based one. However, the continued recognition and application of customary law in Ghana demonstrate the enduring
significance of status-based relationships.
Savigny's emphasis on the organic nature of law and the importance of custom in shaping a legal system is also evident in Ghanaian
jurisprudence. The incorporation of customary law into the legal system and the courts' willingness to apply it alongside statutory law reflect the
ongoing influence of the country's customs and traditions. Finally, the role of legal institutions in Ghana, including the courts and customary
institutions, highlights the importance of both scholars' theories in understanding the development and application of law in Ghana.
As Ghana continues to evolve and modernize, the theories of Maine and Savigny will remain critical in analyzing and understanding the
trajectory of its legal system. By appreciating the historical and cultural context of Ghanaian jurisprudence, lawmakers, judges, and legal
scholars can better navigate the complexities of the country's legal landscape and work towards the development of a more equitable and
efficient system that truly reflects the spirit and values of the Ghanaian people.
2. Should abortion be legalised? With relevant case laws, analyse and assess the theories of Natural Law and Positivist Law on the Issue
of abortion.