27 Questions
What is the difference between a coup d'etat and a revolution?
A revolution involves a sizable number of people overthrowing a government to bring about fundamental political change, while a coup d'etat is a quick, successful overthrow often not involving violence.
What is the legal status of a coup d'etat in Ghana?
The forceful overthrow of government is considered criminal in Ghana.
How has Africa been affected by coups historically?
Since 1910, Africa has experienced coups in almost every country on the continent.
What is Hans Kelsen's Pure Theory of Law associated with in the context of coups?
Hans Kelsen's Pure Theory of Law has been associated with the successful outcome of a revolution or coup d'etat.
What does the rules governing succession of office deal with?
Who qualifies for the office.
What do rules of competence define?
The boundaries of someone's power.
What happens when there is a coup d'etat?
An aspect of the rules is changed, but not the entire order.
What happens when a new government comes into power through a coup d'etat?
It becomes a legal government.
What provisions does the Constitution have regarding amendments?
Provisions concerning amendments of constitutional provisions and amendments of Acts of parliament.
What offence was the first defendant convicted of?
An offence involving the security of the State
What was the argument of the first defendant regarding his eligibility as a presidential candidate?
The government he purported to overthrow was not the 'State' and a government could be overthrown while the security of the State remained unaffected.
What was the basis of the plaintiff's suit challenging the eligibility of the first defendant?
His conviction for an offence involving the security of the State
What did the Supreme Court determine regarding the 1979 Constitution and the first defendant's rights?
The 1979 Constitution was lawfully suspended by the PNDC and the article under which the 1st Defendant was exercising his rights ceased to form part of the laws of Ghana.
Under what constitutional provision did the first defendant claim to be exercising his rights?
Article 1(3) of the 1979 Constitution
What was the government's argument for the ineligibility of the first defendant as a presidential candidate?
He was convicted of an offence involving the security of the State
According to Lord Pierce in Madzimbamuto v Lardner-Burke, what happens when a coup d’etat occurs?
A new legal norm is created and becomes the grundnorm.
In the case of Sallah v A.G, what was the legal effect of a coup d’etat discussed?
Whether the NLC Proclamation had replaced the Constitution and re-enacted all the laws of Ghana.
What did the majority decision of the Supreme Court in Sallah v A.G conclude regarding the NLC Proclamation?
It could not be equated to the Constitution of Ghana.
What legal theory did the minority rely on in Madzimbamuto v Lardner-Burke to argue the creation of a new legal order?
Kelsen’s theory
In which case did Lord Pierce rely on the Pure Theory of Law to support the creation of a new legal norm through a coup d’etat?
Madzimbamuto v Lardner-Burke
What did Archer JSC emphasize about the predictability of a country's Constitution in Sallah v A.G?
The Constitution had to be predictable and certain.
According to Justice Dennis Adjei, what may coup makers do once a coup d'etat becomes successful?
suspend or abrogate any existing law including the national constitution
What happens to a norm within the Pure Theory of Law if it becomes ineffective for some time?
It may lose its validity
In the context of laws, when does a norm become valid according to the Pure Theory of Law?
immediately it is made following the basic law
What did Finnis propose regarding the legal effect of a coup d'etat?
When a coup d'etat happens, one of three things happen
According to Kelsen, what is the relationship between the basic norm and international law?
there is a linkage between the two for the former to gain validity from the latter
What is the consequence of a law losing its efficacy, according to the text?
It shall cease to be valid
Study Notes
Coup d'etat and Legal Effect
- A successful coup d'etat introduces a new legal order, which may abrogate or suspend the old order, depending on the choice of the coup makers.
- According to Justice Dennis Adjei, when a coup d'etat becomes successful, the coup makers may suspend or abrogate any existing law, including the national constitution.
- A norm becomes valid immediately it is made following the basic law, but it may lose its validity if it becomes dormant or ineffective for some time.
- A law that loses its efficacy shall cease to be valid.
Kelsen's Pure Theory of Law
- There is a relationship between efficacy and validity of laws within the Pure Theory of Law.
- A basic law may change through a revolution or a coup d'etat, and the new order introduced by the revolution shall be valid and efficacious.
- Kelsen opines that there is a relationship between the basic norm and international law, and concludes that there is a linkage between the two for the former to gain validity from the latter.
Finnis's Theory
- Finnis views that when a coup d'etat happens, one of three things happen:
- Change of succession to rules
- Change of competence
- Change of succession to office
- Rules governing succession of office deal with who qualifies for the office.
- Rules of competence define the boundaries of someone's power and are power-conferring rules.
- Finnis argues that when there is a coup d'etat, an aspect of the rules is changed, but not the entire order, and there is still some continuity.
Constitutional Effect of a Coup d'etat
- Once a new government comes into power, even through a coup d'etat, it becomes a legal government, though it may be described as unconstitutional.
- A coup d'etat is illegal from its inception, but it can bring about political change through a violent means.
- A revolution can be referred to as an overthrow of a government by a sizable number of people, which brings about a fundamental political change.
Coup d'etat in Africa
- Africa has experienced coups since 1910, and almost every country on the continent has experienced one form of coup or another.
- Ghana, for example, experienced five coups from 1966 to 1981, excluding the unsuccessful ones.
Legal Effect of a Coup d'etat
- The legal effect of a coup d'etat is that it introduces a new legal order, which may abrogate or suspend the old order.
- In Ekwam v Pianim (No. 2) and Others [1996-97] SCGLR 120, the Supreme Court held that the 1979 Constitution was lawfully suspended by the PNDC (Establishment) (Proclamation), 1981, after the coup.
- The court also held that the new legal order will become the basic norm, and the old basic norm would be considered as having been replaced by the new one.
- In Madzimbamuto v Lardner-Burke - 1 AC 645, Lord Pierce relied on the Pure Theory of Law and held that whenever there is a coup d'etat or a State declares itself as a State, a new legal norm is created and becomes the grundnorm.
- In Sallah v A.G, the majority decision of the Supreme Court was that the NLC Proclamation could not be equated to the Constitution of Ghana.
Test your knowledge on the constitutional effects of coup d’etats and revolutions. Explore the legality of coups and revolutions, and the impact they have on governments and political systems.
Make Your Own Quizzes and Flashcards
Convert your notes into interactive study material.
Get started for free
