IS THE REVOLUTION IN LAW THEORY ACTIVE OR DEFUNCT IN UGANDA?

ANALYSIS ON THE REVOLUTION IN LAW THEORY IN UGANDA

In commencement of my essay, I quote the words of Sir Ivor Jennings in his article in the Institutional Theory that. “the task which many writers on jurisprudence attempt to fulfill in defining law is a futile one for according to me (sir ivor), ‘law has no definition except in a particular context.” Therefore according to me and in this contextual question, I define law as a mandatory rule defining the conduct of people in a given society.

 These rules can either be written down by statute or simply inherited courtesy of the existing customs. as prior mentioned, law is not limited to one definition as many as its universal application has given rise to tremendous essays describing it since its perceived differently by various schools of thought inter alia the natural law school, marxist school, historical school, realist school, positivists. 

 The first school of thought that attempted to define law was the natural school with Cicero as its profounder (106-43BC). He defined law as right reasoning in agreement with nature. Such that any law that disagrees with nature ceases to be. He further stated that there are absolute values against which the validity of a law is tested. He also said that any law which lacks morality is wrong and unjust. 

Cicero was succeeded by other scholars like Thomas Aquinas who is credited to have been the greatest founder of this theory. He lived between the years of 1224 and 1274. His contribution to the natural school of thought can be seen in his propounding that i) god is the highest good ii) that law flows ultimately from divine reason. Aquinas also stated that man’s law are ordinances of reason made by God and through this, one can conclude that man’s authority to make laws coupled with the laws he makes , are derived from God who is above all. Most importantly is to accredit his statement that the validity of law depends upon its justice. 

 The other school that defined law was of the positivists and these believe that law is one which is posited/ given by the state. The positivist theory was first expounded by Jeremy Bentham and his philosophy is used in jurisprudence to analyze law on a positivist’s perspective. After Bentham, there came John Austin who is specially remembered for his “command theory”. He defined law as the command of the sovereign. He defined a sovereign as a person or group of people who are rendered habitual obedience but they do not render such obedience to anyone. According to him, the source of law would be the social contract and law had to be separated from morals. notwithstanding, prof. Fredrick Carl von saving under the anthropological school of jurisprudence ,also stated that law was the product of internally operating forces which cannot be restricted to the decree of law .the historical school in the study of ‘the science of the law’ (jurisprudence) clarify that law originated from traditions and customs by whose continuous operation, evolved into legal rules.

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However as historians, it’s important to note that the law is capable of being revolved and manipulated and this in fact was evident in some countries as termed the revolution of law. In as far as to my understanding, a revolution in law is an uncontemplated change in the legal order of a certain society. The constitution could be written or simply believed as a custom or tradition of people that certain acts are immoral and shouldn’t be practiced. Uganda is a culprit of this revolution in law. prior to the 1900 Buganda agreement, one can say that there hardly existed any such legal document but both in that year and the years that followed such as 1902 and 1920, a set of order in council were set up which would govern the Uganda protectorate. 

The trend of posited laws carried on until 1962 when officially, a constitution was declared for independent Uganda. This constitution commanded a majority of Ugandans in fact held its efficacy until 1966 when Obote the then prime minister of Uganda, ordered Idi Amin the army commander who attacked the kabaka’s palace in Mengo ,forcing him to flee to exile where he later died in 1969.on 24th February, Obote suspended the 1962 independence constitution, abolished the office of the president and vice president, then bestowed himself as the president of Uganda. From then on, Uganda was ruled by de facto and not de jure until 15th April when the next constitution was promulgated. 

Prior to the promulgation of a new constitution, Obote ordered members of parliament to be locked in chambers and were forced to draft a new constitution while in pigeon holes and at gun point and this is what came to be called the pigeon hall constitution. Prior to the abrogation certain members serving in government were alleged to be planning a coup to oust Obote from power. So when Obote overthrew the constitution, he declared a state of emergency and within it, passed the 1966 emergence power (detention) regulations under which he was able to have his enemies arrested without trial. The victims of these included Grace Stuart Ibingira, Matovu, among others. 

 The applicability of a revolution in law became possible in the case of Uganda V ex-parte Matovu . Matovu had been arrested under deportation act on 22 may 1966 but was released and later detained on the 16th day f July 1966 under an emergence legislation which had taken effect from his first arrest. He was granted a detention order under article 31(1)a of the constitution of Uganda. The issue in this case became one as to whether the detention of the claimant was lawful under the 1962 constitution and more so, it raised the issue of the legality of the extra-constitutional changes following the abrogation of the 1962 constitution. 

In another sense, the court was faced with assessing the events that led to the 1966 constitutional changes. Reference was made to the kelsen theory of laws whose principles were largely applicable and so were relied on in passing judgment amid the ex-parte Matovu case. Court by reliance on the kelsen theory held that the series of events that took place in Uganda from 22nd February 1966 were law creating facts and these were described in law as revolution in law. This description came on basis that the abrupt political change that transpired through Obote’s abrogation of the 1962 constitution and its replacement with the 1966 were not contemplated by the former. It was added that the fact the 1966 constitution had extra legal origins cannot deny its validity since the 1962 constitution had been successfully overthrown by virtue of a victorious revolution in law hence, the latter was deprived of its de facto and de jure. 

  THE KELSEN’S THEORY OF LAW Kelsen theory was founded by Hans kelsen, an Austrian who lived between 1861 and 1973. Kelsen defined law as a social fact .He sought to explain law in its structural and typical form, that it was free from sociological and psychological investigations, thence separating law from morality. Its of No wonder that he referred to it as the pure theory of law. This description earned him a lot of criticism especially from the socialists with an objection that for one to appreciate the significance of law, they ought to have studied it in its social context with emphasis on its actual effects in practice. Kelsen objected the socialists view on legal statements coupled with their relation to various milieu stating that legal or moral statements are normative and they must not be confused with physical facts and moreover, that a norm cannot be derived from facts but from other norms. By saying this, he directed it towards what he referred to as the hierarchy of norms or a law making process. In this, he noted that the validity of a norm rests upon a higher norm and each level in the hierarchy represents a movement from generalization to individualization. This trend (general-specific) was referred to as concretization. 

He differentiated the sociological school of thought from the kelsen school that the former studies the behavior of norms (validity of norms) whereas the latter is the study of norms. (efficacy of norms) Hans defined norms as regulations setting how men should behave ; That a norm is an “ought” preposition and not an “is” (as the positivists put it) in that it expresses not what is, but what ought to be , given certain conditions. this then means that the existence of law means its validity . the validity of norm according to kelsen, is measured basing on its consistence with a higher another norm such that from it (the higher norm) it derives its validity. On the issue of validity, kelsen states that a law’s derivation does not render it endless but since norms are concerned with human conduct, there must be an ultimate norm ,clearly postulated upon which all others rest and this he preferred calling it the grand norm. this grand norm does not necessarily have to be the same in every legal order but a grand norm of some kind will always exist either in written form or as a belief that there exists a certain legal order which ought to be respected. 

 The grand norm otherwise called the basic norm according to Hans, is a presumption that the constitution ought to be obeyed. The constitution was categorized by kelsen as a norm/ positive norm whose validity is begotten from the grand norm. kelsen in a bid to distinguish between a constitution and the grand norm, poses a question similar to a scenario that when one has been convicted of for instance murder and sent to jail, the question would be why a certain individual deprives another of their freedom by putting him/her in jail(?) and the answer would be that because it has been prescribed by an individual norm. a further question to demand where this individual norm begets its validity would usher in an answer that because it has been created in a certain criminal statute for instance penal code which is an act of parliament. This statute finally receives its validity from the constitution and where one insists on questioning the validity of such a constitution, reference is made to a historically first constitution (which is presumed) that is postulated and creates a belief that one ought to obey a constitution thence the this first constitution is what can be otherwise named the grand norm/basic norm. 

 Kelsen mentioned about sanctions. He says that law rests on a coercive order and that there’re organs tasked to enforce this coercive order. Such organs in Uganda may include inter alia the police .that every norm to be legal , it must include a sanction and this sanction comes as a result of a delict meaning that for one to be held legally liable to a certain behavior, the contrary behavior is wrong( a delict) further more implying that for one to be held legally liable for a delict, its sanction must be postulated in the law forbidding it. This assertion is related to the principle of legality. 

However, the element of sanctions was criticized for it doesn’t give a distinction between criminal and civil law by since in some civil cases, the sanction may not necessarily be written and as such, may give room for compromise among parties. 

 The theory justifies the operation of every constitution and more so allows for the jurist to presuppose the validity of this constitution whether it was given by an usurper, popular hero or a national assembly. This is confirmed in various statements such as;

   a) the laws made under a constitution continue to operate with validity until when replaced, altered or amended. Take for instance when a constitution is overthrown by force, its replaced. • b) That sometimes it happens that a constitution is disrupted by an abrupt political change that’s not contemplated by the constitution. • c) In law, a change is a otherwise named a revolution if it annuls a constitution provided this annulment is effective. 

To add more emphasis on these points is by saying that when the abrupt change mentioned in clause (b) above fails, its sponsors are charged of treason but when successful, its sponsors form the new government and a new constitution is thereby formed and this is termed as a revolution in law. Efficacy of the doctrine of revolution in law particularly in Uganda, became conspicuous in its ushering in of legal notices. These legal notices are what were used by Ugandan ‘dictators’ to legitimize new governments in which people assumed power through revolutions. For instance, Idi Amin overthrew Obote’s government in 1971 using the legal notice L/N-1/1971. This led to the case of Alfred kisubi v. Uganda who questioned the legality of Amin’s regime with its violation of human rights. It was held that the constitution was subject to Amin’s decrees such that any provision that was inconsistent with any of Amin’s decrees passed after proclamation was void. 

The situation suffered under Amin’s regime, with the legality of his decrees is attributed to the authority granted by the kelsen theory. Various other legal notices were declared to legitimize new regimes such as the L/N 1 of 1979 which ushered in the Uganda national liberation front under prof. Lule. The NRM regime was initiated to power using the L/N 1 of 1986. In article 3(1) the NRM government outlaws theoretically the applicability of the kelsen doctrine of revolution in law although no such cases have been registered hence this law’s applicability is still subject to debates . 

 This doctrine became globally applicable and criticized as well for instance by H.L.A Hart . It was applied in various countries Uganda inclusive as already seen above and its efficacy is not limited to the latter alone by virtue of the following cases; In State V Dosso and anor [1958] , the then president of Pakistan upon failing to manage the law and order of his state, decided to annul the ruling constitution, declaring martial law as well as appointing Gen. Ayeb khan who was the commander of the army, as the chief administrator of martial law. And this he accompanied with the promulgation of new laws and their respective validation in the courts if law. All laws were to be valid with no writ against such that would be allowed to prosper. 

There were four appeals brought before the Supreme Court and the issue was whether the writs issued by the high court in respect of crimes regulations act 1901, on the ground of repugnancy to article 5 of the 1956 constitution had abated by reason of clause 7 art 2 of the laws (continuance in force) order. The court was to determine the effect of the proclamations and the order on the writ jurisdiction of the high court including pending application for writs already issued which were subject of appeals in the supreme court. Mohammed Munic C.J plus other judges held that the president’s proclamations of October 1958 by which the constitution was annulled and martial law was established, constituted an abrupt political change not contemplated on by the previous constitution and that was a revolution. 

 The learned justice noted that Laws which derive from old order may remain valid under the new order only because validity has expressly or tacitly been vested in the new constitution and its only the contents of these norms that remain the same not the reason of the validity. Further, no jurist would maintain that even after a successful revolution, the old constitution and the old laws there would remain in force on ground that they had not been nullified in a manner anticipated by the old order itself. It was also held that laws (continuously in force) order was a new legal document and was in accordance with the validity of laws and the correctness of the judicial decisions had to be determined. 

As seen in the judgment of this case, its right to say that a victorious revolution is an internationally recognized legal method of changing a constitution and that such a revolution consists a new law making organ, by virtue of having become a basic law creating fact. Its therefore worth keeping in mind that according to the kelsen theory, the purpose of the basic norm/grand norm is to settle conflicts between positive norms and in this case, the positive norm can be the constitution. He goes further to say that where there’s conflict between two grand norms, a higher basic norm (considering the hierarchy of norms) is needed to settle such conflict for example if France and Germany both claimed to legislate over Alsace and Loraine, and only an international law could provide a solution. So upon every successful revolution in law, there remains a grand norm perhaps as a belief that a constitution needs to exist and ought to be obeyed and it’s from such a grand norm that the revolutionary government derives its validity. 

 The theory also held efficacy in Nigeria in the case of Wole Soyinka V Abacha and others. On august 30th 1990, general Abacha replaced Babaginda as minister of defense .on June 10th 1993, the Abuja court under justice Bassey Ikpeme issued an order restraining the national electoral commission from conducting presidential elections which was defied and elections were conducted from which M.K Abiola emerged winner but was instead arrested under the orders of Abacha who on November 17th 1993, had assumed office as head of state forcing chief Shonekan to step down under forceful means and more so, he annulled the 12th June presidential election .the issue with prof. Wole Soyinka was of challenging the validity of abacha’s regime with reason that his rise to power was by self proclamation under decree 6 of 1993, which was itself declared null and void thus the basis of his gaining power was lawfully unacceptable. 

Justice Belgone in his holding considered less a revolution as per the evidence obtained showing that chief Shonekan ha d resigned through threat and intimidation. However the judge later found out that a revolution had occurred which ushered in a new government and its having gained the support of the people, rendered its legality. 

However in my perspective, I do not wholesomely agree with the judge’s holding especially when he bases on the general acceptability of a new regime to render it legally binding since people’s compliance to the new constitution could be on basis of some rules which previously existed in the old legal order and have been thereby incorporated in the new constitution and besides , their compliance too could be as result of the force exerted to ensure obedience to the law hence we cannot base the efficacy of revolution in law on the unanimous support it receives from its subjects. 

 The concept of revolution in law was later rejected in the Pakistan in the case of Asma jilan V the government of Punjab . the father of the appellant, Amlik Ghullam Jilani was arrested under an order dated 22 December 1971 issued under rule 32(i) (1) read with rule 213 of the defense of Pakistan’s rules, 1971. Government rescinded this order and substituted it with another purported to have been issued under martial law regulation no. 778 by the martial law administrator zone C. the writ petition was accordingly amended and on the hearing on 15th January 1972 the government raised a preliminary objection that the juirisdiction of the high court was barred in the matter by virtue of the provisions of clause 2 of the jurisdictions of courts (removal of doubts) order, 1969 promulgated by the chief martial law administrator. the high court presided over by shafi-ur-rehman J relying on state V dosso held that the jurisdiction of courts was (removal of doubts) was valid and binding and as such, it had no jurisdiction to entertain and decide the petition. On appealing to the Supreme Court, it was held that the court could not uphold the coercive power of the state; the people and the courts are only silenced temporarily and the imposed order was illegal and unworthy of court’s recognition. Furthermore, that as soon as opportunity rises and the coercive power falls, those behind it should be tried of treason and punished in order to deter others from doing the same. 

The kelsen’s theory was rejected on grounds that It would cause disorder and encourage any other people to overthrow legitimate government. The court ruling in this case shows diversity from the kelsen theory and shows an extent of its later inefficiency. This, according to me is of no surprise since the moral effect of the applicability of the kelsen theory was largely a cause for disorder and became a platform upon which the much ambitious and adventurous could rise to power, ruining the political and legal order in a society. 

 However, the kelsenian doctrine despite having been upheld in the ex-parte Matovu, dosso cases among others; it was in some cases rejected in favor of the state of necessity doctrine. This was applied in Mitchell v DPP where the lawful government of Grenada was overthrown by a coup calling itself the people’s revolutionary government which suspended the constitution and assumed all executive and legislative powers. for the next four and a half years it held control of Grenada and no elections were held. on 19th October 1983 there was an uprising supported by other Caribbean sates and the governor assigned full power of government and later re-established the constitution which had been suspended in 1979 and elections were held for a new parliament. 

The majority of the court held that there wasn’t sufficient evidence to show that the people’s revolutionary government had the support of the people and therefore that government could not be regarded as the lawful government. “The court should not take an approach which will encourage power seeking politicians to believe that If by force of arms they can gain and retain government power then the government will become consequently lawful and legitimate.” 

 The court further gave conditions for the state of necessity to apply in that; 

• An imperative necessity must be because of the existence of exceptional circumstances not provided for by the constitution. • There must be no other alternative available • The action taken must not impair the rights of the citizens • It should be one the sole effect of which is to consolidate or strengthen the revolution as such. 

A new government may however be accepted in circumstances where a vacuum of law is predicted as a result of failure to consider valid the acts of the new government. It was stated that necessity renders validity applicable to what may otherwise be illegal. This all transpired in the case of Mustafa Ibrahim where court diverted from the prevailing constitution and upheld a new one. In the case of controller of taxes V valabhaji, then 13th June 1977,the president took over all the power of government of Seychelles and revoked the existing constitution replacing it with another which was endorsed by elections. The court of appeal upheld the validity of the constitution. Hogan P commented;”control of nearly all thinking on this subject is the belief that the sovereignty nearly depends on consent and acceptance by the people, manifested by obedience to the principles of those claiming authority……Acceptance, consent, or its equivalent, are a touchstone.” 

 Furthermore, in the republic of Fiji v chandrinka Prasad,. On may 19th 200, the an armed group pf forces burst into parliament, Suva-Fiji, and took captive of the prime minister and other members of the cabinet and government of Fiji. Negotiations for their release dragged on and disturbances created a situation absence of law and order. On that same day the commander of military forces abrogated the constitution and established an interim military government, imposing martial law later, the latter was replaced by an interim civilian government, but no elections were held. The court of appeal held that the interim government had failed to prove support of the masses .five volumes of affidavits were filed by the members shoeing they did not support the government and very little evidence was provided in support of the government and so the court held that the interim government was not valid and the 1997/8 was still valid. 

  CONCLUSION In the first instance, I indicated the scenarios under which the kelsen theory was upheld in various nations and how it subsequently affected their politics in as far as the arms of government with emphasis on the judiciary and legislature are concerned and its upon such evidence availed by decide cases that I can elaborate the efficacy of the doctrine of a revolution in law. However, basing on the later argument conspicuous in cases such as Asma Jilan v Gov’t of Punjab we see an eventual rejection of the judgment formerly made in the Dosso case and this according to me, illustrates the inefficacy of the kelsen theory. And in a nutshell, the kelsenian theory’s failure to clearly and unequivocally determine measure for a regime’s efficacy is inter alia, a reason for its criticism by various authors such as H.L.A Hart but nevertheless; the extent of its efficacy too, shouldn’t be undermined as well expatiated above. 

 BIBLIOGRAPHY 

 Modern Theories of Law, Oxford University press, 1933 (page 33) 

 Uganda v commissioner of prisons ex-parte Matovu (1966) E.A 514 

 1966 interim constitution. Interim in the sense that it was sort of preparatory for the later 1967 constitution. 

 De facto, having effect though may not be necessarily recognized 

 De jure; existing in accordance to the law 

 Introduction to jurisprudence 5th edition by Lord Lloyds of Hampstead and M.D.A Freeman. 

  A breach of a norm, consider civil law; a tort; 

 Black’s law dictionary 9th edition by Bryan A. Garner 

  Prof. wole Soyinka V Abacha and anor [1994] 

 Institute francais de recherché en Afrique- Nigeria during the years of Abacha [1993-1998]

  Asman jilan V gov’t of Punjab , PLD [1972] S.C 139 

 State V Dosso, PLD 1958 S.C 533 

 Clause 2 of The jurisdiction of courts (removal of doubts) order 1972 

 Mitchel V DPP. LRC (CONST.) A.C NO.1 [1986] 53

  Hughes P. pp.72,74 

 Mustafa Ibrahim case [1964] CLR 227

  Asman jilan V gov’t of Punjab , PLD [1972] S.C 139 

 State V Dosso, PLD 1958 S.C 533 

 Exodus of law-by Yusuf kiwanda The Exodus of law and legal methods-Yusuf kiwanda