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THE GRUNDNORM RESURRECTED: EMPLOYING KELSEN'S PURE THEORY IN

THE PUNISHMENT OF HIGH TREASON IN GHANA

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 THE GRUNDNORM RESURRECTED: EMPLOYING KELSEN’S PURE THEORY IN
THE PUNISHMENT OF HIGH TREASON IN GHANA
Kenneth N.O. Ghartey1
Abstract
Under Kelsen’s Pure Theory of Law, a legal order is essentially a system of norms and all other
norms within any such system draw their validity from a supreme norm called the basic norm or
grundnorm. Upon a successful revolution or coup d’etat, a new basic norm is substituted for the
previously existing basic norm. The fact of collective and habitual obedience by the citizenry to
the new authority and its ability to make valid additions and changes to other norms within the
legal order show the emergence of this new grundnorm. The basis of validity then of all norms
that are left untouched within the new legal order are thus rooted in the new grundnorm created
on the attainment of general efficacy of the legal order as a whole.
Article 3 of the 1992 Constitution criminalises acts leading to the suspension, overthrow
or abrogation of that Constitution by any violent or other unlawful means as high treason. It
further enjoins all citizens of Ghana to do all in their power to restore the Constitution after it
has been suspended, overthrown or abrogated. It would seem from the foregoing therefore that
the framers of the Constitution envisaged the continuing validity of the Constitution as the
grundnorm even through a period of effective revolution which replaces this Constitution in
blatant disregard to Kelsen’s Pure Theory. Some would argue therefore that in the punishment
of high treason upon restoration of the previously suspended Constitution, Kelsen’s Pure Theory
would have no role whatsoever in a prosecutor’s arguments. This however cannot be so. This
article would show that Kelsen’s Theory can be used by a prosecutor to still give validity to the
punishment of high treason by a consideration of what is law in 3 time frames viz. the pre-
revolutionary period, the period of the revolution and the subsequent restoration/reinstatement
period. This proposition avoids the needless and debatable concept of the continuing validity of
the old constitution after a revolution.
____________________________________________________________________________

1
BSc. Land Econ (Hons), KNUST, LLB Candidate (Faculty of Law, UG)
Page
1.0 Kelsen’s Legal Order2
Generally, Kelsen’s normativism posits that the law or legal order is a system of legal norms;
that these legal norms are all traceable to a basic norm3. It is the traceability of these individual
legal norms to this basic norm that imparts validity to the former. This validity is proven by
showing that the particular norms have been created in accordance with the basic norm/
grundnorm4.

The norms within Kelsen’s conception of a legal order are thus not necessarily of co-ordinate
status. They are however interconnected and together draw their validity from the basic norm.
We may thus picture the legal order as a hierarchy with the basic norm sitting atop the system
imparting validity to all the individual legal norms. In our Ghanaian context we may consider the
basic norm to be the 1992 Constitution as it represents the highest level of positive law5. Every
law or legal action must conform to the 1992 Constitution for it to remain valid. Here the
Constitution is considered in its material sense6. But as Kelsen’s Pure Theory explains, it is not
the material Constitution that is itself the grundnorm. It is the presupposition of its validity that
constitutes it as the grundnorm7. This presupposition allows us to distinguish what persons have
the authority to create new norms, in what ways binding norms may be created and also by what
means the validity of norms shall be measured.

Here is how Kelsen himself presents the argument: “... if we ask why a particular act of
compulsion ─ the fact, for instance, that one man has denied another of his freedom by
imprisoning him ─ is an act of law and belongs to a particular legal order, the answer is, that this
act was prescribed by a certain individual norm, a judicial decision. If we ask further, why this
2
This accounts does not in any way attempt to justify the soundness or otherwise of Kelsen Pure Theory of Law. It
only seeks to present a background against which the reader would consider this author’s arguments in attempting
to justify the use of the construct in the punishment of the crime of high treason following a successful revolution
and then after the decline of that new order itself.
3
Kelsen H., Pure Theory of Law (1934-1935), Vols 50 and 51 L.Q.R
4
Kelsen H., General Theory of Law and State (1946), (Harvard University Press)
5
See article 1(2) of the Constitution which provides that “This Constitution shall be the supreme law of Ghana and
any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the
inconsistency, be void”.
6
When the Constitution is considered in this ‘material sense’ we are referring simply to the physical document
itself.
2

7
Kelsen H,. Pure Theory of Law (1967), (University of California Press)
Page
individual norm is valid, the answer is that it was constituted according to the penal statute book.
If we enquire as to the validity of the penal statute book, we are confronted by the State’s
constitution, which has prescribed rules and procedure for the creation of the penal statute book
by a competent authority. If we further ask as to the validity of the constitution on which repose
all the laws and act which they have sanctioned, we come probably to a still older constitutional
and finally to an historically original one, set up by some single usurper or by some kind of
corporate body. It is the fundamental presupposition of our recognition founded on this
constitution that that which the original authors declared to be their will should be regarded as
valid norm”.8

It is easy to see how Kelsen’s concept of law as a coercive order9 can be built on the above
examination of his normative order. Thus the basic norm within our legal order may be
considered to be the 1992 Constitution because there exists a collective recognition of its
position as the highest level of positive law to which all other individual norms must conform.
The presupposition of validity of the constitution as a foremost ‘regulating’ norm built on that
collective recognition is however what truly represents the Kelsenian grundnorm; because the
basic norm is not a positive legal norm. A positive legal norm is valid because it is created in a
certain way by a legal act, but the basic norm is valid only “because it is presupposed to be valid;
and it is presupposed to be valid because without this presupposition, no human act could be
interpreted as a legal, especially as a norm-creating act”10. We see thus, the fundamental
importance of the basic norm to Kelsen’s Pure Theory construct. It confers norm-creating power
by which the whole legal order is itself constructed and the elements therein renewed or changed.

2.0 The Basic Norm upon a Revolution

Kelsen’s basic norm, and its relation to all other individual legal norms, assumes an interesting
position in relation to the phenomenon of revolutions. Kelsen contends that where a group of
individuals successfully seize power by force and are thus able to remove the hitherto legitimate
government, the old legal order ceases and is replaced with a new order. The substitution of the

8
Kelsen H., Pure Theory of Law (1934-1935), Vols 50 and 51 L.Q.R
9
Seen for example in his General Theory of Law and State (1946), (Harvard University Press)
3

10
Kelsen H., General Theory of Law and State (1946), (Harvard University Press).
Page
old legal order with the new one is premised on the condition that the new order begins to be
efficacious because by and large people behave in conformity with the new order11. It is this “by
and large” conformity to the new order that makes it a valid order. This is so because the leaders
of the revolution achieve such collective obedience by the citizenry enough to give general
efficacy to the individual rules in the legal system as an amalgamated composite in order that
they are thereafter for all purposes considered to have duly assumed the reins of governmental
power. If the revolutionary attempt were to fail by being unable to attain the desired efficacy12,
then the acts undertaken constitute an illegal act under the original “constitution” as for example
the crime of treason.

The fact of collective and habitual conformity and the new government’s ability to make
accepted changes to norms within the legal order will show the emergence of a new grundnorm.
The basis of validity then of all rules that are left untouched within the legal order is thus rooted
in the new presupposition of the will of the revolutionary power as supreme law. And this
presupposition is itself created on the attainment of general efficacy by the new legal order as a
whole. All norms of the old order are thus regarded as invalid because the old constitution on
which they were based has lost its efficacy13. It is true that many of the norms after revolutions
remain ‘untouched’ and are the ‘same’ norms that thereafter exist under the new legal order.
These new norms are however only identical in content and are “new” norms in the Kelsen sense
since the basis of their validity rests in a new supposition of another basic norm.

It is the focus of this article to examine the possibility of punishing high treason after a
successful revolution which is itself later replaced by the erstwhile constitution i.e. a situation
where the new replaces the old; effectively followed by a situation where the old seems yet again
to replace the new. Some would contend that Kelsen’s Pure Theory would not admit of the
validity of counterrevolutions in which the “new” order is again replaced by the “old” order. An
attempt is made to show how the “old” can again replace the “new”.

11
Kelsen H., General Theory of Law and State (1946), (Harvard University Press), p.118
12
What constitutes the desired level of effectiveness for an act of revolution to constitute a change of the basic
norm is debatable. It is not within the scope of this article to consider that matter. The sole interest is that the
efficaciousness desired is achieved by whatever parameter that is set or desirable for that purpose.
4

13
Kelsen H., General Theory of Law and State (1946), (Harvard University Press), p.118
Page
3.0 High Treason under Ghanaian Law
High Treason is criminalised under article 3(3) of the 1992 Constitution and section 180 of the
Criminal Offences Act, 1960 (Act 29). Section 180 of the Act 29 provides as follows:
(1) Whoever commits treason shall be liable to suffer death.
(2) For the purposes of this section, "treason" shall have the
meaning assigned to it by clause (3) of Article 3 of the Constitution.
For our purposes we shall concentrate on the constitutional provision which states that
3. (3) Any person who-
(a) by himself or in concert with others by any violent or
other unlawful means, suspends or overthrows or
abrogates this Constitution or any part of it, or attempts
to do any such act; or
(b) aids and abets in any manner any person referred to in
paragraph (a) of this clause;
commits the offence of high treason and shall, upon conviction, be
sentenced to suffer death.

It is noticeable that article 3(3) of the 1992 Constitution foresees a situation where the
revolutionaries are able to achieve their ends and yet still criminalises their acts. It is immaterial,
in the way Article 3(3) is rendered, that the revolutionaries are able to suspend, overthrow or
abrogate the Constitution and achieve the effectiveness which within Kelsen’s construct would
clothe them with legitimacy. Their acts still remain criminal under the old order which they have
overthrown and which under the Pure Theory has ceased to exist because it has lost its
legitimacy.

It would seem from the foregoing therefore that the framers of the 1992 Constitution envisaged
the continuing validity of the legal supposition of the Constitution as supreme law even through
a period of effective revolution in blatant disregard to Kelsen’s Pure Theory and how it views a
revolution. Under the Constitution therefore leaders of revolutions will be punished after
5
Page
restoration because “the grundnorm did not die”. Some14 would therefore argue that in an
argument for the punishment of high treason upon restoration of the previously suspended
Constitution, Kelsen’s Pure Theory could have no role whatsoever in the prosecutor’s arguments.
They rely on the Ghanaian Supreme Court’s posture in the case of Sallah v. Attorney-General15.
Indeed in the Sallah case, our Supreme Court refused to admit of the Kelsenian revolutionary
construct in deciding the matter16before them; which involved decisions that were taken by
successful revolutionary powers relating to acts that had taken place under a previous
constitutional order.

4.0 The continuing validity of the Constitution in a revolution

It is arguable and plausibly so that it was the intendment of the framers of our present Ghana
constitution that the validity of the Constitution cannot even be interrupted by a period of
effective revolution. Indeed the rest of Article 3 of the 1992 Constitution provides as follows:
3. (4) All citizens of Ghana have the right and duty at all times –
(a) to defend this Constitution, and in particular, to resist
any person or group of persons seeking to commit any
of the acts referred to in clause (3) of this article; and
(b) to do all in their power to restore this Constitution after
it has been suspended, overthrown, or abrogate as referred
to in clause (3) of this article.
(5) Any person or group of persons who suppresses or resists the
Suspension, overthrow or abrogation of this Constitution as referred
to in clause (3) of this article, commits no offence.
(6) Where a person referred to in clause (5) of this article is punished
for any act done under that clause, the punishment shall, on the
restoration of this Constitution, be taken to be void from the time it was
imposed and he shall, from that time, be taken to be absolved from all
liabilities arising out of the punishment.
(7) The Supreme Court shall, on application by or on behalf of a person

14
This position was put forward principally by Mr. Cletus Banseh and supported by Ms. Janat Appiah-Yeboah,
students of the Faculty of Law, University of Ghana 2012 Class in a Jurisprudence class discussion initiated by Prof.
Kofi Quashigah, Dean of The Faculty. It is indeed their arguments that prompted this article.
15
[1970] GLR 55
16
The facts of the Sallah case are not necessary for the present discussion. The case is only put forward to show an
6

example of the Supreme Court’s posture on the use of Kelsen’s Pure Theory in arguing matters before it.
Page
 who has suffered any punishment or loss to which clause (6) of this article
relates, award him adequate compensation, which shall be charged on the
Consolidated Fund, in respect of any suffering or loss incurred as a result
of any suffering or loss incurred as a result of the punishment.

We see from the foregoing that the defence of the Constitution is both the right and duty of every
Ghanaian citizen. The provisions of article 3 are an incentive for patriotic citizens to stage
counter revolutions where there is a successful revolution that overthrows the Constitution.
Under the Kelsenian construct, the 1992 Constitution would have lost its legitimacy and the so-
called usurpers of power would have actually assumed for themselves legitimacy following the
desired level of efficacy; i.e. the by and large conformity to the new presupposition of their
ultimate power.

Save the Sallah17 case it would seem that our Ghanaian Supreme Court has not been clearly
presented with an opportunity to consider Kelsen’s take on the effect of revolutions in a legal
order. Indeed, aside Archer J.A. (as he then was), all the other justices of the Court declined or
failed to consider the Attorney-General’s argument founded on Kelsen’s General Theory of Law
and State. It is true that Archer J.A. (as he then was) went further to consider the points raised by
the Honourable Attorney General on the matter but note what the learned judge says of Kelsen’s
Theory in his judgment:
“…It seems to me that when Kelsen speaks of his Norms and Basic Norm, the reader must appreciate what
he means... His ‘norm’ is not the equivalent of the English word ‘standard’ but according to him norm is
referable to the concept of law as an ‘ought’. The Basic Norm he describes in German as ‘Grundnorm,’
that is the highest norm from which all norms derive their validity. In countries with written Constitutions,
Kelsen will identify the written Constitution as the Basic Norm. Where there is no written Constitution, it
is not easy to say where the Basic Norm is. He advocates that the basic norm should be regarded as an
‘Initial Hypothesis’ which in a latter comment he regards as a ‘Fiction.’ In Ghana, the courts of law do not
rely on fictions in constructing statutes nor do they apply fictions in resolving disputes between parties.
Suppose we apply this juristic reasoning to the present case, it follows that when the Proclamation
suspended the 1960 Constitution, the old Basic Norm disappeared [emphasis mine]. What was the new
Basic Norm? Was it the Proclamation? It was not because it was not a Constitution. How then do we
trace the Basic Norm? Is the Basic Norm the people of Ghana who supported the Armed Forces and the
7

17
[1970] GLR 55
Page
 Police or is the Basic Norm to be detected from the armored cars at Burma Camp? ... Kelsen is of the view
that the basic norm cannot be a Divine God but it seems that in Ghana, under our new Constitution, we
have made it quite clear in the Preamble, that the constitution has been enacted in the name if Almighty
God from whom all authority is derived. I think Kelsen’s doctrine is opposed to what the people of Ghana
have enacted. We should not also forget that Kelsen originally wrote his ‘Pure Theory of Law’ with civil
law countries in mind and on the continent of Europe where ideology was in the ascendancy and
monarchies had been replaced permanently by Republics. What happened here in Ghana on 24 February
1966 was just the beginning of a revolution which culminated in the promulgation of the 1969 Constitution
which annulled or revoked the 1960 Constitution. I do not therefore think that Kelsen’s General Theory of
Law and State can help us in ascertaining whether or not the Proclamation of 24 February 1966 was our
new ‘Grundnorm’ for laws existing before that date…”18

Indeed, the learned judge added that:

“If we were to rely on Kelsen’s ‘Grundnorm’ we shall, like the Greek Sisyphus in Taratarus, be condemned
to push a heavy stone up to the summit of a hill just to roll down to the bottom of the hill for us to push it
up again19… No system of jurisprudence, however popular, be it analytical positivism, the Pure Theory, or
the Historical, can assist the courts in this country in their interpretation of the Constitution. All the famous
jurists we know were influenced in their theories by their own respective observations and experience in
the countries in which they lived and wrote their theories. We should not be hamstrung by writings of these
jurists although we admire their learning and their originality in thinking, for Constitutio est tutissima
cassis sub clypeo constitutionis nemo decipitur (The constitution is the safest helmet; under the shield of
the Constitution, no one is deceived). Moreover constitutio est exercitus judicum tutissimus ductor (The
20
constitution is the safest leader of the army of judges – not esoteric legal philosophies).”

Sticking to the Supreme Court position in Sallah therefore it would seem that only a plain
language interpretation could be placed on clauses (4), (5) and (6) of article 3 of the 1992
Constitution. There would be no place for Kelsen’s General Theory of Law and State.

But does this necessarily mean that Kelsen’s Theory could have no place at all in a prosecutor’s
argument in a trial for high treason upon restoration of the previously suspended Constitution?
This is where the issue becomes thorny and I diverge from my colleagues. Yes, it is true that our
courts have shown a posture of not relying on “esoteric legal philosophies” in their resolution of

18
[1970] GLR 55
19
Ibid
8

20
Ibid
Page
‘practical’ everyday matters. Nonetheless, and even if it should be done merely for
jurisprudential juggling, there indeed exists a possibility of employing arguments grounded in
Kelsen’s Theory in the punishment of high treason after the restoration of a hitherto abrogated
Constitution.

5.0 The Alternative Analysis

To properly understand the context in which Kelsen’s Theory would be employed in arguments
for the punishment of high treason after the restoration of a previously abrogated constitution, a
scenario shall be used. It is based on this scenario that the alternative analysis shall proceed.

Our present Constitution came into force on the 7th of January, 1993. A referendum had
previously been held in 1992 to approve the Constitution after it had been completed by the
Constituent Assembly and certain compromises made upon it by the erstwhile military
government. By that referendum, we could already say that the Constitution even before its
coming into force had already started achieving for itself a high place within the then existing
Ghanaian legal order. Soon after 7th January, 1993, the Constitution indeed became the supreme
law of the country and the entire nation was made subject to its provisions, subject of course to
the transitional period within the year 1993 itself.

It is evident from the flurry of constitutional cases that were contested in the Supreme Court
between the years 1993 to 1997 that the Constitution quickly gained for itself the reverence
necessary for legislation that was intended to operate as the highest level of positive law within
our country21. Governmental action and private acts were contested boldly in the courts on
grounds of unconstitutionality relying mostly on the provisions of article 222 of the Constitution.

21
Article 1 of the 1992 Constitution states as follows:
1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare
the powers of government are to be exercised in the manner and within the limits laid down in this
Constitution.
(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent
with any provision of this Constitution shall, to the extent of the inconsistency, be void.
22
Article 2 of the 1992 Constitution states as follows:
9

2. (1) A person who alleges that -

Page
Some of these issues were ground-breaking and others merely political bickering but in all that
we see a new presupposition of the Constitution as regulating every aspect of the Ghanaian’s life
in the new legal order. There is no doubt that by 1997, the presupposition of the Constitution as
supreme law had itself become so rooted within the new constitutional order that whatever the
Kelsenian benchmark for efficacy is, it could safely be said to have achieved it. That
presupposition had in effect no doubt become the grundnorm of the new constitutional order.

Let us further assume that up until the 2004 elections the status quo had remained unchanged i.e.
that the Constitution in its material sense or its presupposition thereof continued to enjoy its
hallowed status. Then during the 2004 elections, there had been disturbances which resulted in
civil strife which eventually came to end in December 2005 by which time a group of rebels had
taken advantage of the strife and overthrown, by force of arms, the government that had won the
2004 elections and which had been sworn into office earlier in January 2005 under the 1992
Constitution. Within the period between January and December 2005 it would be unclear as to
what it is the grundnorm. But let us further say that these rebels by their fighting capture pockets
of the country until they are finally in full control of the country by December 2005.

Post December 2005 it is undoubted that Ghana now has a new rebel government. Pockets of
resistance to this regime continue to exist until December 2006 when all such attempts at
insurrection are fully extinguished by the new junta. Let us say that the junta thereafter purport to

(a) an enactment or anything contained in or done under the authority of that or any other
enactment; or
(b) any act or omission of any person;
is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme
Court for a declaration to that effect.
(2) The Supreme Court shall, for the purposes of a declaration under clause (1) of this article, make such
orders and give such directions as it may consider appropriate for giving effect, or enabling effect to be
given, to the declaration so made.
(3) Any person or group of persons of whom an order or direction is addressed under clause (2) of this
article by the Supreme Court, shall duly obey and carry out the terms of the order or direction.
(4) Failure to obey or carry out the terms of an order or direction made or given under clause (2) of this
article constitutes a high crime under this Constitution and shall, in the case of the President or the Vice-
President, constitute a ground for removal from office under this Constitution.
(5) A person convicted of a high crime under clause (4) of this article shall -
(a) be liable to imprisonment not exceeding ten years without the option of a fine; and
10

(b) not be eligible for election, or for appointment, to any public office for ten years beginning with the
date of the expiration of the term of imprisonment.
Page
abrogate the 1992 Constitution and rule Ghana by military style decrees. Elections are promised
to be held in 2007 but this never materialises. It is now 2009 and yet there are still no new
elections. In the interim the new government passes new laws and modifies several existing ones
and had thus achieved for themselves legitimacy23 evident by apparent ‘by and large’ conformity
of the citizenry to their dictates or will. Under the Kelsenian construct, the old order will lose its
legitimacy and give way to a new order and a new grundnorm is thus birthed. The new
grundnorm is thus the presupposition of the will of the junta as supreme law far above all other
ordinary legislation; which is similarly evident in the ability of new junta to make valid changes
to individual norms existing in the legal order. By this time, going by Kelsen’s Theory all the
existing laws are entirely new laws within the legal order. It does not matter that the old Criminal
Offences Act, 1960 (Act 29) still remains valid. It is not the very same Act of Parliament. Its
contents are identical with the ‘old’ Act 29 but the new Criminal Offences Act, 1960 (Act 29) is
a ‘new’ Act because its validity is now traceable to a new grundnorm. Clearly, the junta for
example has the authority to make valid changes to this legislation or to repeal it altogether. It
cannot therefore be the same legislation as it was under the past civilian government. Its source
of validity is different. It is a new creation; an entirely new thing.

Now let us further say that in their collective distrust for the new military government’s motives,
a group of Ghanaians (let us call them the Patriotic Revolutionaries) start an insurgency in a bid
to restore the abrogated Constitution. The abrogated Constitution actually enjoins them to do just
that24. Going by Kelsen’s Theory however that Constitution is no longer the grundnorm, it has
lost all legitimacy. It is not in existence and cannot by any good reason regulate anything within
the new legal order. These new Patriotic Revolutionaries start an armed campaign against the
military government in mid-2009 and are able by January 2010 to overthrow the military
government and to achieve effectiveness.

23
The word as used here is linked to the principle of effectiveness and has nothing to do with any moral
consideration. They become legitimate only because they have achieved the desired efficacy even if it comes to be
11

so by oppression of the citizenry.

24
See again article 3 of the 1992 Constitution.
Page
Now the revolutionaries pronounce that they have ‘restored’ the 1992 Constitution and quickly
organize elections that usher in a new civilian government in December 2010. In the interim, the
leaders of the military junta are captured and are put before court on charges of high treason
based on article 3 of the ‘1992 Constitution’. Counsel for the accused rebel leaders then may
argue that by Kelsen’s Theory, the 1992 Constitution was effectively overthrown and thus all
subsequent acts undertaken by those leaders had all been legitimate, they being the sole and
legitimate governmental authority within the country during that period. How can a prosecutor
on the other side of the tussle however equally get these men behind bars for their ‘crimes’ still
relying on Kelsen’s Theory?

The possibility is here presented: First, it does not matter at all that the 1992 Constitution itself
proffers its continuous validity within the interim of the military government. By December 2005
when the military government took over power effectively, the Constitution had lost its
legitimacy. The old order had given way to a new order; a new basic norm had been substituted
for the old. This new legal order remained in place until January 2010 when the Patriotic
Revolutionaries also effectively took over power and purported to ‘restore’ the old 1992
Constitution. Here yet again, a new legal order is birthed within Kelsen’s Theory. It is not the
case that the 1992 Constitution, in its material sense, remained valid between December 2005
and January 2010 when the first revolutionaries were in power and before they were themselves
then overthrown by the Patriotic Revolutionaries.

After January 2010, it is true that the ‘new’ Constitution that is in force is the ‘same’ in all
material senses and in content to the ‘old’ 1992 Constitution. We may even still call it the 1992
Constitution but it is no more the same 1992 Constitution that it was before the first overthrow
under the Kelsen construct. It could remain in pari materia in all senses with the ‘new’ but they
would not be the same thing. The source of the ‘new’ Constitution’s validity lies in the
presupposition of the legitimacy of the will of the Patriotic Revolutionaries and this integrally
changes the nature of this ‘new’ 1992 Constitution. The grundnorm is different. This is indeed a
highly philosophical proposition but it satisfies all the requirements of Kelsen’s Theory.
12
Page
The prosecutor’s argument for the punishment of the first revolutionaries therefore will be based
on the ‘new’ article 3. The old article 3 therefore dies during the first revolution. It no longer has
a place in the discourse. On restoration of the Constitution the grundnorm (the presupposition of
the supremacy of the Constitution), though effectively dead before the restoration, is resurrected.
The ‘new’ article 3’s effect on enforcement may be the same as the ‘old’ article 3 but they are
not the same article. The grundnorm has effectively ‘resurrected’. This is evident by a
consideration of what is law in the 3 time frames within our scenario viz the pre-revolutionary
period, the period of the revolution and the subsequent restoration/reinstatement period. The
coup plotters if they were unsuccessful in the first time frame would have been certainly
prosecuted for high treason. The basic norm then was the 1992 Constitution. However in the
second time frame, they themselves became the legitimate governmental power and there is no
such contest about their commission of high treason. We cannot conceive of the coup plotters
punishing themselves for high treason after they have effectively assumed power in conformity
to the Constitution. The suggestion, if one was to be made, would be preposterous indeed. In the
third time frame, the ‘dead’ grundnorm is resurrected by virtue of the new presupposition of the
supremacy of a new constitution which is in all material senses identical to the very first
constitution that was overthrown in the first time frame. The old Constitution is thus reborn and
takes a new place. We see then that the same effect is achieved without relying on the needless
and rather unrealistic premise of the continuing validity of the Constitution during the period of
revolution in the second time frame.

6.0 The Realism of Article 3 and the Continuing Validity Question: Ekwam v. Pianim (No.
2) Considered
It is clear that the framers of our 1992 Constitution envisaged the continuing validity of the
Constitution during a revolution. This position however seems far-fetched in the context of the
Supreme Court’s position in the case of Ekwam v Pianim25. In that case, the plaintiff brought an
action in Supreme Court for a declaration that under a true and proper interpretation of article
94(2)(c)(i)26 of the 1992 Constitution, the defendant was not qualified to contest the 1996

25
2 G&G (2d) 2140, SC (2 April 1996)
13

26
“A person shall not be qualified to be a member of Parliament if he-
(c) he has been convicted-
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Presidential Elections as a candidate on the ticket of the New Patriotic Party (NPP) by reason of
his having been convicted of an offence involving the security of the state. The defendant had
actually been convicted of preparing to overthrow the Government, contrary to sections 4(1)9(g)
and 8 of the Public Tribunals Law, 1982 (PNDCL 24) in 1983.

It was one of the defendant’s arguments in the Supreme Court that even if he was preparing to
overthrow the Government of Ghana, in doing so he was exercising a lawful and constitutional
right under article 1(3) of the 1979 Constitution27 which would only have meant that his
activities therefore could not be considered treasonous in any way. The Supreme Court in
granting the plaintiff’s application by a majority decision28 apparently refused to accept this
position which evidently could only have been supported on the basis that the 1979 Constitution
had remained valid during the rule of the Provisional National Defence Council which had
spanned no less than twelve uninterrupted years characterised by effective consolidation of
governmental power. Would this have been a reasonable position? Adjabeng JSC who
considered this point more thoroughly and also dissented from the majority’s position had this to
say on the continuous validity question:
“Turning now to the second part of the issue under consideration, that is whether the act of preparing to
overthrow the Government of the PNDC was an act permissible under the 1979 Constitution of Ghana, I
must say that the answer to this question is very simple. The fact is that both at the time of the alleged
commission of the offence and at the conviction of the defendant, the 1979 Constitution had been
suspended by those who had overthrown the said Constitution and the government formed thereunder. So
the reality was that even though article 1(3) of the 1979 Constitution gave the right to every citizen “to
resist any persons seeking to abolish the constitutional order as established under this constitution”, this
right could not be exercised simply because the Constitution which gave that right had been suspended.
Whether it was legally right or not to suspend it is not for us to say here. I think that that is now history. It

(i) for high crime under this Constitution or high treason or treason or for an offence involving
the security of the state, fraud, dishonesty or moral turpitude; or
(ii) for any other offence punishable by death or by a sentence of not less than ten years; or
(iii) for an offence relating to, connected with election under a law in force in Ghana at any time.
27
1. (3) All citizens of Ghana shall have the right to resist any person or persons seeking to abolish the
constitutional order as established by this Constitution should no other remedy be possible.
28
14

Coram: Edward Wiredu, Ampiah, Adjabeng, Acquah, Atuguba JJSC with Edward Wiredu and Adjabeng JJSC
dissenting
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 is clear, therefore, that it could not have been rightly argued at the time that preparing to overthrow the
PNDC Government was an act permissible under the 1979 Constitution. It would even have been suicidal
29
to so argue having regard to the atmosphere at the time [emphasis mine]”
This seems a more realistic way of approaching the matter on the continuous validity of
constitutions during a period of revolution. Indeed Acquah JSC with whom Ampiah JSC
entirely agreed in the Pianim case had this to say on the same matter:
“The other limb of the defence is that even if, as found by the public tribunal, the defendant had prepared to
overthrow the PNDC Government in 1982, yet in so doing he would have been exercising a lawful
constitutional right conferred on him ; as on all other citizens of Ghana by article 1(3) of the 1979
Constitution... Now is there a factual basis for this defence...? There is no evidence before us that this was
what the defendant professed to do when he prepared to overthrow the government in 1982... At the time
PNDCL 24 was enacted there was no Constitution holding the legislative power in leash and no court could
have declared PNDCL 24 invalid, null and void. Furthermore, article 1(3) of the 1979 Constitution was
then not in force.... Indeed, the framers of the 1979 Constitution fully appreciated that article 1(3) thereof
would be meaningful only where the citizen exercising his right thereunder succeeds in forestalling those
who seek to abolish the constitutional order... Which successful coup d’etat in Ghana had ever restored the
previous Constitution and government which were overthrown? Clearly if a coup d’etat succeeds, the
constitutional safeguards obviously become empty and impotent. And once the PNDC succeeded in
overthrowing the 1979 Constitutional Government and therafter abrogated the Constitution safeguards in
article 1(3) ceased to be operative...”30

It is conceded however that articles 1(3)31 and 332 of the 1979 Constitution which also deal with
the supremacy and defence of that Constitution are worded in different terms than article 3 of its

29
2 G&G (2d) at 2158
30
Extracts from 2 G&G (2d) from pp. 2170 to 2174
31
1. (3) All citizens of Ghana shall have the right to resist any person or persons seeking to abolish the
constitutional order as established by this Constitution should no other remedy be possible.

32
3. (1) Parliament shall have no power to enact a law establishing a one-party state.
(2) Any activity of a person, persons or group of persons which suppresses or seeks to suppress
the lawful political activity of any other person or persons generally or any class of persons shall
be an unlawful act.
(3) Where any activity is found to be unlawful under clause (2) of this article, the Supreme Court
shall, for the first offence,
15

(a) grant an injunction against the person, persons or group of persons, as the case may
be, from carrying on any further the activity complained of; and
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 1992 counterpart. The 1979 provisions both fail to by themselves criminalise high treason and do
not for example expressly require the citizenry to “do all in their power to restore this
Constitution after it has been suspended, overthrown, or abrogated”. The decision in the Pianim
case tells us something about the possible posture of our courts in a matter of this nature. The big
question remains whether Ekwam v. Pianim would be held differently in the light of the different
wording of article 3 of the 1992 Constitution? In a departure from his earlier quoted position on
the continuing validity question, Adjabeng JSC in the Pianim case had this to say: “I do not
think, however that the position would be same now. With the re-enactment and expansion of
article 3(4), (5), (6) and (7) of the present Constitution, of the right given in article 1(3) of the
1979 Constitution, I think that the position would be different if the defendant were to be tried
now of the same offence”33. If the true position however be not what the learned judge proposes,
what would it say for persons who heed to the patriotic call and attempt to resist overthrowers of
our Constitution?

(b) bind the person, persons or group of persons, as the case may be, over to be of good
behaviour for a period of five years;
and for a second or subsequent offence, any such person, persons or group of persons shall be
liable to imprisonment for a term not exceeding ten years and in addition any person so
convicted shall not be eligible for election to Parliament or for election to a local government
council or be eligible to appointment to any public office for a period of ten years beginning from
the date of the expiration of the term of imprisonment.
16

33
2 G&G (2d) at p. 2158
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