1.

1 DEFINITION

1.2 WHO WAS HANS KELSEN

1.3 POSTULATION OF THE PURE THEORY OF LAW

1.4 HOW IS THE PURE THEORY OF LAW WORKS

1.5 DOCTRINE OF THE REVOLUTION LAW

1.6 APPLICATION AROUND THE WORLD

1.7 THE APPLICATION OF THE PURE THEORY OF LAW TO CHANGE

OF LEGAL ORDERS IN UGANDA.

1.8 CONCLUSION
The ideas of the philosophers of the pure theory of law are known for
influencing the legal systems of Uganda and other states in different ways, as
demonstrated in the case law and legislative reforms. Discuss the above
statement.

0.1 DEFINITION

According to Hans Kelsen the pure theory of law is a legal concept that exclusively
describes the law and strives to exclude anything that is not precisely legal 11

0.2 WHO WAS HANS KELSEN

The man known to legal history as Hans Kelsen was born in 1881 in
Czechoslovakia. He became a law doctorate holder at 25 and a professor of public
law and jurisprudence at 30 years, at the University of Vienna and a dean of the
same law school between 1922 and 1923. After serving on the Supreme Court, he
worked as dean of law school at the University of Cologne. His academic prowess
placed him in a favorable place to interface with the theoretical demands of law
making very vital.Subsequently, he came to England and in 1940 he moved to
United States and became Professor of Law in several American Universities 2The
pure theory of law was first published in 1934 and second edition in 1960. At the
time of expounding his pure theory of law in1960 he was emeritus professor of
political science of the University of California.3His theory was categorized among
the theories of legal positivism.4

0.3 POSTULATION OF THE PURE THEORY OF LAW

He postulated that a theory of law should be “pure”5 or independent of the

influences of extralegal values of any kind. Thus Hans Kelsen (1881 - 1973)
believed and propagated a theory that law in its purity was divorced from all extra-
legal elements such as sociology, philosophy, ideology, psychology, politics,ethics,
etc. He explained that by mixing law with such disciplines, the real science of law
is lost in the process. He sought to restore the purity of the law by isolating those
components of the work of a lawyer or judge to be identified as strictly “legal”
1
theory-law-exhaustive-analysis/
0.4 HOW IS THE PURE THEORY OF LAW WORKS

In Kelsen view, the norm of any legal system are always organized in a hierarchy
and interconnected. Meaning a norm derives its validity from a superior or higher
norm on the hierarchy of norms. The inter-connection continues throughout the
system and finally terminates at the basic norm otherwise known as the
grundnorm. The grundnorm is the ultimate source of validity of all the other
norms in the legal system. The grand norm is not Just the Constitution but also the
presumption that the Constitutional order ought to be obeyed. In Uganda we have
the 1995 Constitution as grundnorm, it must be obeyed and all other laws derive
their validity from it. For example Acts of parliament are deriving validity from
constitution and from the Acts we have Regulations and Ordinances all
derivingbasis and validity from the constitution. Any law not originating from the
constitution in Uganda is invalid and can be challenged in the constitutional court.
This is contained under Article 2 of the constitution of the Republic of Uganda
which emphasis the supremacy of the constitution. (1) This constitution is the
supreme law of Uganda and shall have a binding force on all persons
throughout Uganda. It continued under section (2)If any other law or custom is
inconsistent with any of the provisions of this constitution, the constitution shall
prevail and that other law or custom shall to the extent of the inconsistency be
void

0.5 DOCTRINE OF THE REVOLUTION LAW

The doctrine of the “revolution law” is understood as Kelsen’s most important

Proposal. It is applicable where there’s an illegal change to legal order and the
change is successful. The mode of change must not be contemplated by The
Constitution and the new Legal Order it creates must be effective and Acceptable
by the people (masses)13. The effect of the revolution is the Distortion of the
existing constitution and the invalidation of the legal order14. In 1971 when Amin
over threw Milton Oboe’s government he suspended the Constitution and ruled by
decrees this was equivalent to “revolution law “Hypothesized by Kelsen.
0.6 APPLICATION AROUND THE WORLD

The pure theory of law was first applied was first Applied in Pakistan in the case of
State v Dosso and another

President Mirza had abrogated the Constitution of Pakistan on October 7 1958 and
replaced it with Martial Laws. Dosso was the tribal person to be charged under the
Martial Laws after he had Committed murder, arrested by tribal authorities and
handed over to Loya Jirga (a native court that uses traditional code of laws of the
Pashtun people) Which convicted him under Frontier Crimes Regulation (FCR).
Relatives of Dosso challenged the decision in Lahore High Court which ruled in
favour of Dosso. Federal Government went on to the Supreme Court of Pakistan
which Reversed the High Court’s decision by referring to the Hans Kelsen theory
of Legal positivism famously the doctrine of necessity.

In the case of Attorney General of the Republic v Mustafa Ibrahim and others

where court deviated from the constitution and upheld A new legal order on
grounds that there was need to avoid a vacuum of law That would result from a
refusal to give validity to the acts of the new Government. It held that necessity
renders validity applicable to what would Otherwise be illegal. Therefore, In light
of Kelsen ’spure law theory, A change is in law, If a Revolution or any other
means successfully overthrow an existing legal order And replaces it with another
and thus such annulment is effective if the New legal order takes precedent. Where
attempt to change the constitution Fails, those who sponsor it can be charged under
the existing constitution For treason. But if it succeeds, then the revolution itself
becomes law Because thereafter, it becomes the constitution and the validity of the
laws Made after are to be judged with reference to the new constitution.

0.7 THE APPLICATION OF THE PURE THEORY OF LAW TO CHANGE

OF LEGAL ORDERS IN UGANDA.

In Uganda, one of the earliest application of Kelsens pure theory of law was in the
case of Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu17, a
decision of the High Court of Uganda in which Hans Kelsen’s“ Pure Theory of
Law and State” was considered in determining the Legal validity of Uganda’s 1966
Constitution.
Facts

On February 22, 1966, Uganda’s Prime Minister, Apollo Milton Obote, Issued a
statement to the nation in which he announced that he had Assumed all powers of
government in the interest of “national stability, Public security and tranquility”.
Two days later, he suspended the 1962 Constitution of Uganda. However, the parts
of the Constitution relating to, Inter alia; the courts, the civil service, the armed
forces and the National Assembly were preserved for continuity of the basic
functioning of the State. On April 15, 1966, Uganda’s National Assembly
abolished the 1962 Constitution by resolution and replaced it with the 1966
Constitution to be In force pending the establishment of a Constituent Assembly to
draft and Pass a new Constitution (this later came to be the 1967 Constitution).
Under the new Constitution, all executive authority was vested in the President, in
this case Apollo Milton Obote, to be exercised with the advice And consent of
cabinet. Former President, Sir Edward Mutesa was Consequently evicted from the
State House and eventually forced to flee into Exile. The new Constitution also
abolished the federal states that had been Created by its predecessor. Following the
announcement, there was some Resistance, and some of those who were leading
the resistance got arrested. The Applicant in this case, Michael Matovu, also the
Saza Chief of BudduIn Buganda Kingdom, was arrested on May 22, 1966, and
detained at Masindi Prison under the provisions of the Deportation Ordinance. He
Was subsequently transferred to Luzira Prison in Buganda Kingdom. On May 23,
1966, a state of emergency was declared in Buganda Kingdom by Proclamation
and this was later confirmed by the National Assembly which Also passed new
legislation governing such states of emergency in form of The Emergency Powers
Act and the Emergency Powers (Detention) Regulations. Michael Matovu was
released from prison on July 16, 1966 And ordered to leave. However, he was re-
arrested upon stepping outside The Prison and consequently re-detained, this time
under the emergency Powers laws. On September 6, 1966, Michael Matovu filed
an application for the Prerogative writ of habeas corpus under Section 349 of the
Criminal Procedure Code of Uganda.

Issues

The issues revolved around;

a)The validity of the 1966 constitution

b)Constitutional validity of the Emergence powers, laws and the extension

c)The constitutionality of Michael Matovu’s detention. It should be noted the core

of this precedent, turned out to be the question Of the 1966 Constitution’s validity.
The roots of this 1966 Constitution lay In an extra-constitutional act namely, a
coup d’état or revolution Perpetrated by Apollo Milton Obote when he seized all
powers of Government.

Holding

Court rejected the submission that the validity of the 1966 Constitution Was a
political question, and heard an alternative argument that Incorporated Hans
Kelsen’s theory on how change in a state’s basic norm May effectively create a
new and valid legal order to replace the state’s former legal order, thereby

0.8 THE CONTINUED APPLICABILITY OF THE KELSENIAN THEORY OF LAW IN

UGANDA AND BEYOND

The question of the continued applicability of the Kelsenian theory in Uganda Is

debatable since the promulgation of the 1995 constitution. For instance, Under
Article 3(1)18, a person(s) is prohibited to take or retain the Government
ofUganda except as provided by this constitution, and (2) provides for an
Offence of treason to a person who unlawfully violates, suspends, Overthrows,
abrogates or amends the constitution, This Article tends to Outlaw the Kelsenian
doctrine of revolution in law. However, this is still Theoretical. The practicability
of Article 3 is still in doubt if the trends of courts in Uganda are to be analyzed. In
the previous cases, courts have been Reluctant to declare that a sitting government
is illegal as was in the case of

Besigye Election Petition cases of 2001 and 2006.

Article 3(3)19 states that it is not possible to abrogate the constitution Which is not
true. The true extent of this provision is not clear, as it has not Yet been judiciously
tested in courts of law. This leaves its applicability in Doubt. The practicability of
Article 3 is challengeable because any group that takes Power will validate its
position as was seen in the case of the Attorney

General of Fiji v. Chandrika Prasad

where the judge held that the Revocation of the 1997 constitution was not made
within the doctrine of Necessity and such revocation was unconstitutional and of
no effect since The 1997 constitution is the supreme and extant law of Fiji today.
Therefore, it can be noted that attempts were made to use Article 3 as a Means to
address the Kelsen theory. For instance; in the case of Dr. Rwanyarare and
Another V. Attorney General, the constitutional court Observed that the Article 3
may have been put there in light of our sad and Nasty past experiences of coup
de’tats and other forms of illegal Assumption of power by the previous leaders of
the nation.

SALLAH V. ATTORNEY GENERAL

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 LI 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

.Issues

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 the Kelsenite 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 his dissenting judgement however, Anin J.A adopted
Kelsen’s view as contended by the AG and held that by virtue of the coup d’état the old legal
order founded on the 1960 Constitution yielded place to a new legal order which was the
proclamation. He further opined that after the coup, all offices were deemed to be the creation of
the NLC and the existed by virtue and in pursuance of the proclamation

0.9 Conclusion

The landmark ruling in the case of Uganda v. Commissioner of Prisons, Ex Parte

Michael Matovu plus the cases that followed was a vivid description of how the
pure theory of law as postulated by the philosophers has influenced the legal
system in Uganda and other beyond

1.https://blog.ipleaders.in/pure-theory-law-exhaustive-analysis/

2.Edwin W. P, “Hans Kelsen and His Pure Theory of Law” (1952) 40 California
Law Review, Inc. 1 pp. 5-11

3. Kelly J. M, A Short History of Western Legal Theory, 7th ed. (Oxford, 2001) at
356.

4. Edgar Bodenheimer, “Jurisprudence – The Philosophy and Method of the Law.”,

(1962)Harvard University Press; London: Oxford University Press

5 Kelsen H, “On the Pure Theory of Law” (1966) 1 Israel Law Review 1