MAKERERE UNIVERSITY - SCHOOL OF LAW

A critical examination of the impact of Kelsen’s theory of extra-constitutional change and

SHISA ROBERT

LECTURERS

Dr. KABUMBA BUSINGYE

1.0 INTRODUCTION.

Constitutionalism, and precisely constitutional development, represents a significant

turn in the field of public law in Uganda. Constitutional development occurs, through

formal adoption and amendment of constitutions. Constitutions are the highest created

norms of a state which enable the organs of the state to operate within their defined

jurisdictions.1 According to Kelsen, Constitutions provide for modifications by prescribed

procedures. When modifications take place other than as prescribed, these

modifications are considered to be extra-constitutional changes hence a revolution.

‘A revolution is every not legitimate change of the constitution or its replacement by

another constitution. What is important is that the valid Constitution has been changed

or replaced in a manner not prescribed by the Constitution as valid.2

According to Kelsen, a legal order consists of a hierarchy of norms, each deriving its

validity as a rule of law from a superior norm. The validity of the first constitution is the

final postulate upon which the validity of all the norms of a legal order depends. 3 Kelsen

considers that; if the usurper retains any part of the old legal order it becomes a valid

new legal order having proven its own Grundnorm which self-validates a new order.

Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu, [1966] 1 EA

514, hereinafter referred to as Ex-parte Matovu is a decision of the High Court of

Uganda in which Hans Kelsen's theories were considered in determining the legal

validity of Uganda's 1966 Constitution. This followed, a coup d'état by Apollo Milton

Obote suspending the 1962 Constitution, eventually leading to its abolition.4

1
Prof (Dr.) Saurabh Chaturvedi, Judicial reasoning in revolutionary cases, 1955-2001: analysis of cases. Page 1.
2
Hans Kelsen, ‘The Pure Theory of Law”, London, University of California Press Berkeley 1970, Page 209
3
Hans Kelsen, General Theory of Law and State, Cambridge: Massachusetts, Harvard University Press 1946 Pg 115
4
https://en.wikipedia.org/wiki/Uganda_v_Commissioner_of_Prisons,_Ex_Parte_Matovu Access 15/10/18, 9:11am
SHISA ROBERT Page 2

2.0 BACKGROUND

Uganda’s serpentine post-independence voyage has had an effect on its Constitutional

development landscape leaving it speckled with three constitutions in less than 8 years

of independence from Britain i.e. The 1962, 1966 and the 1967 constitution. A growing

body of scholarship also shows that the overtly political actors of society i.e.

Legislatures, Executives, Political partisans, and even the People – continually engage

in the informal creation, maintenance, and transformation of constitutional meaning.

2.1 Antecedents to the 1966 crisis. The 1962 constitution had numerous

shortcomings and greatly contributed to the political problems of post-colonial Uganda.

In the first instance, the 1962 Constitution failed to curb Buganda’s dominance: under

Article 74 (1), (2), and schedule 7 wherein Buganda federal powers were enormous.5

In 1964, a Bill was tabled in Parliament providing for a referendum on the counties of

Buyaga, Bugangaizi and Buwekula then of Buganda but claimed by Bunyoro. This

culminated in two of the counties opting to secede from Buganda and revert back to the

Bunyoro Kingdom. Sir Edward Mutesa II, was placed in an invidious position of signing

the two acts pertaining to the "lost counties". It was upon accusations of dereliction of

duty, that Obote suspended the 1962 constitution and took over all powers of State,

thus giving rise to what came to be known as the 1966 Crisis.6

2.2 Uganda v. Commissioner of Prisons, Ex Parte Matovu, [1966]. The Facts.

The applicant was arrested under the Deportation Act on May 22, 1966, and then

released and detained again on July 16, 1966, under Emergency legislation which was

brought into force after his first arrest. On 11th August 1966, the applicant was served in

5
1962 Independence Constitution, Schedule 7, Entebbe National Archives, C10736/ DGc 230 III, pp.10-13
6
https://ottawa.mofa.go.ug/data-smenu-11-Political-History-of-Uganda.html Accessed 12/10/18 at 10:54am
SHISA ROBERT Page 3

prison with a detention order and a statement specifying in general terms the grounds

for his detention. A series of events took place which resulted in a resolution by the

National Assembly abolishing the 1962 Constitution and adopting the 1966 Constitution.

Prior to this, the President and Vice-President were deprived of offices, contrary to the

1962 Constitution and divested of their authorities by the Prime Minister with the

consent of his cabinet. After the 1966 Constitution was adopted a state of emergency

was declared and the Emergency Powers (Detention) Regulations 1966, were made.

Issues.
On September 9, 1966, habeas corpus proceedings were taken out in the High Court on

behalf of the applicant. Despite formal defects it was possible to frame the constitutional

issues to be referred to a bench of three judges of the High Court for interpretation,

namely, whether the application failed for non-compliance with Art. 32 of the

Constitution and the Constitutional Cases (Procedure) Act; whether the emergency

powers invoked to detain the applicant were ultra vires the Constitution or were properly

exercised, and whether the constitutional rights of a person detained under emergency

laws as preserved by Art. 31 of the Constitution, had been contravened.7

It was held inter alia as follows;-

a) That the court could raise the question of the validity of the 1966 Constitution

because it was relevant to the issues under consideration;

b) That the Judges were bound by the judicial oath to administer justice according to

the Constitution as by law established and it was an essential part of their duty to

be satisfied that the constitution was established according to law and was valid;

c) That any decision by the Judiciary as to the legality of the government could be far

reaching, disastrous and wrong because the question was a political one to be

7
Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu, [1966] 1 EA 514
SHISA ROBERT Page 4

resolved by the executive and legislature which accountable to the constituencies,

but a decision on the validity of the Constitution was within competence;

d) The Court held that; ″Applying the Kelsenian principles, which form the basis of the

judgment of the Supreme Court of Pakistan in state v Dosso, our deliberate and

considered view is that the 1966 Constitution is a legally valid constitution and the

supreme law of Uganda; and that the 1962 Constitution having been abolished as a result

of a victorious revolution in law does no longer exist nor does it now form part of the Laws

of Uganda, it having been deprived of its de facto and de jure validity. The 1966

Constitution, we hold, is a new legal order and has been effective since April 14, 1966.″8

3.0 The impact of Kelsen’s theory upon Uganda’s Constitutional development.

45 years after his death, Hans Kelsen (1881-1973) remains one of the most discussed

and influential legal philosophers of our time. In his main work,9 Kelsen argues that a

successful revolution could create a new basic norm and, therefore, the supporting

plank for a “new legal order”. Once the revolution was shown to be efficacious in

nullifying the old basic norm, it had to be regarded as a law-creating fact giving validity

to a “new legal order”.10 This has impacted as follows;-

Clothing the 1966 constitution in Legality. By upholding the validity of the ‘Pigeon-hole’

constitution of 1966 in the case of Ex-parte Matovu, the court relying on Kelsen’s theory

legalized an illegal constitution. The court in doing so ‘clothed the patently illegal actions

of government in a shroud of legitimacy and thus aided the erosion of its own power’11.

8
Uganda v. Commissioner of Prisons, Ex Parte Michael Matovu, [1966] 1 EA 514.
9
Hans Kelsen, General Theory of Law and State 1945, Boston: Harvard University Press, 1999.
10
Venkatesan, V. (2007) Coups and courts. http://www.hinduonnet.com/fline/stories/20071207501201600.htm.
11
Christopher Mbazira; Democracy and Good Governance: An Assessment of the Findings of Uganda’s Country
Self-Assessment Report under the African Peer Review Mechanism; Human Rights & Peace Centre, 2008.
SHISA ROBERT Page 5

This has been responsible for the consistent failure to uphold the theory of the Rule of

Law in Uganda. Prof. Kanyeihamba explains that the Rule of Law is’ the absence of

tyrannical and arbitrary rule’.12 The ruling also contributed to the legitimization of coup

detats and revolutions in post-colonial Uganda. The Udoma panel in the Ex-parte

Matovu case effectively provided legal cover for what was plainly a coup d’etat.13 Later

on, the 1971 Ugandan coup d'état was executed by General Idi Amin and the 3rd

constitution was partially suspended by virtue of Legal Notice No. 1 of 1971.14 In

particular, since the notice suspended Article 1 (supremacy) of the 1967 constitution, it

paved for the way for the President to rule by Decree.15 As revealed in Appendix i-ii, the

Judicuary was fully engaged in validating coups and changes in legal order. Although

the 1967 Republican Constitution remained the supreme law and the main legal

reference point, its suspensions, disregard and amendments to it by successive

governments allowed them to hold on to power and to eroded any possibility of

transferring it through constitutional processes. Judicial independence is a crucial

pillar on which constitutionalism should be anchored but the Ex-parte Matovu case

adversely impacted on it hence affecting Constitutional development for over 28 years.

Invalidation and nullification of “Old legal orders”. The Principle of legitimacy contends

that the validity of legal norms may be limited in time and it is important to notice that

the end as well as the beginning of this validity is determined only by the order to which

they belong. They remain valid as long as they have not been invalidated in the way

which the legal order itself determines.16 In 1979, Iddi Amin, too, was overthrown by a

combination of Ugandan and Tanzanian forces, hence the legitimacy of the Legal order

12
G.W Kanyeihamba; The Political and Constitutional History of Uganda; Centenary Publishing House; June 2002.
13
https://news.mak.ac.ug/sites/default/files/downloads/Makerere-Prof-Oloka-Onyango-12thNov2015.pdf
14
Mukholi, David (1995). A Complete Guide to Uganda's Fourth Constitution: History, Politics, and the Law.
15
Bruno, Ayebare (16 June 2016). "Constitutional Law Notes II". ayebarebruno.blogspot.co.uk.
16
Hans Kelsen, General Theory of Law and State 1945, Boston: Harvard University Press, 1999, page 220.
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under Amin was effectively invalidated upon his overthrow. Legal Notice No. 1 of 1979

nullified Legal Notice No. 1 of 1971, and recognised the 1967 Constitution as once

again supreme, but also suspended parts of it and transferred numerous Executive

powers to the incoming President Yusuf Lule.17 Therefore, in the series of coups and

changes after 1966, the same principle used to recognise new legal order as

propounded in Ex-parte Matovu was used to invalidate old legal orders hence creating a

pattern of Invalidation and nullification in the Constitutional development of Uganda.

Separation of powers and the rule of law. Structural principles exist that determine

the forms of constitutionalism. The principle of separation of powers is premised on the

basis that when a single person or group has a lot of power, it can portend calamity to

citizens. The doctrine requires that the principal institutions of state i.e. Executive,

Legislature and Judiciary, should be clearly divided in order to safeguard citizens’

liberties and guard against tyranny. The abrogation of the 1962 constitution, abolition of

kingdoms and declaring Uganda a Republic in 1967 placed immense power upon the

person of the President and such powers were bound to be abused. According to

Benwell etel (2004)18, when the legislative and executive powers are united in the same

person, or in the same body of magistrates, there can be no liberty... there is no liberty if

the powers of judging is not separated from the legislative and executive... there would

be an end to everything, if the same man or the same body... were to exercise those

three powers’. Chapter 4 of the Constitution19 and in particular Article 23, regulates and

protects a person’s right to liberty and guards against abuse. It is clear from the above

background that the promulgation of the Constitution was intended to heal the wounds

caused prior to its enactment. The query is whether the same Article still serves its role.

17
Bruno, Ayebare (16 June 2016). "Constitutional Law Notes II". ayebarebruno.blogspot.co.uk. Retrieved 12/10/18.
18
https://jocom.mak.ac.ug/news/executive-undermines-autonomy-ugandan-parliament
19
The Constitution of The Republic of Uganda 1995.
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“Jettisoning formalism to the winds” is a famous phrase in the Ex-parte Matovu

case that has contributed to constitutional development through the growth of public

interest litigation. In the first instance, the Court overlooked what would ordinarily be

grave errors in the original application by Michael Matovu. It considered that the liberty

of a citizen was at stake and decided to let substance prevail over form. This case,

eventually laid the seed for Article 126(2) (e) of the 1995 Constitution which now

compels our courts to administer substantive justice without undue regard to

technicalities. In this way, Public Interest Litigation was made much easier to pursue. 20

The case of Edward Frederick Ssempebwa21 is a constitutional case decided after

Matovu not to be detained by the formalism of legal technicalities and to decide that the

purported changes to the constitution were improper. Justice Mulenga JSC22 took it

further that the right to present a constitutional petition was not vested only in the

person who suffered the injury but also in any other person. In Brigadier Henry

Tumukunde v. Attorney General and Electoral Commission, Justice Kanyeihamba held

that “... any decree, order or action” of Parliament or an official could be challenged if it

adversely affected a citizen. His ruling represented the growing influence of Exparte

Matovu in setting the stage for a gradual movement away from the swift dismissal of

significant constitutional cases on flimsy technical grounds.23 Since the 1995

Constitution, there has been a tendency to view the Judiciary as the primary institution

responsible for securing and advancing constitutional rights/values.

The political question doctrine first appeared in Uganda in Uganda v Commissioner of

Prisons, Ex-parte Matovu.24 The political question doctrine obliges courts to set aside

20
Makerere-Prof-Oloka-Onyango-Inaugural-Professorial-Lecture-12thNov2015.pdf -Page 34.
21
Edward Frederick Ssempebwa v. The Attorney General, Miscellaneous Application No.90 of 1986.
22
Ismail Serugo -V- KCC & Attorney General [Constitutional Appeal No. 2 of 1998]
23
https://observer.ug/viewpoint/41130-courts-should-overrule-ghostly-political-question.
24
[1966] EA 514.
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certain government actions and decisions from judicial review. Prior to engaging in

Kelsenian analysis, the Court had to decide whether it had the legal power to make

such a determination. The rule appears to have been that courts have no jurisdiction

over matters which arise within the constitution and legal powers of the Legislature or

the Executive. Even in cases, where courts feel obliged to intervene, they do so with the

greatest reluctance.25 I argue that In Ex parte Matovu, Chief Justice Udo Udoma

reverted to the same principle. Thus, even in the 1969 case of Opolot v. Attorney General26,

the court held that the Ugandan president could dismiss at will officers in government service,

and no court could overturn such action. In the Severino petition,27 the Court noted that judicial

interference with the power of Parliament "would amount to this Court interfering with the

legitimate internal workings of Parliament". Although the holding made no reference to the

doctrine, it was proof that the doctrine retained legal currency. The question is whether

a juristic error at law should negate or mitigate future legal and constitutional

engagements as was the case in Uganda until Edward Frederick Ssempebwa v. AG. It

is reasonable to link the Political Question Doctrine to the decided cases of R v

Besweri28 and Katikiro V AG29 in which an “Act of State” was not challengeable in courts

of law in pre-independent Uganda.

Challenges to consolidating constitutionalism. The Ex-parte Matovu event has

continued to define the absence of independence of both the Judiciary and Legislature

in Uganda’s constitutional history from which, we supposed to owe reverence to

constitutionalism. According to Kwaligonza, Henry Byenkya (2009),30 Constraints like

25
Supreme Court (Uganda) Constitutional Appeal No. 1 of 1997.
26
Opolot vs Attorney General (1969) E.A. 631
27
Saverino Twinobusingye vs Attorney General (NO. 47 OF 2011) [2012] UGCC 1 (20 February 2012).
28
R. v Besweri Kiwanuka (1937)
29
Katikiro of Buganda v A.G (1959) E.A 382
30
http://hdl.handle.net/10570/1137 Accessed 14/10/18. 1:22pm
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executive domination, suppression of human rights and freedoms, failure to respect

established law(s) and devaluing them through subjection to individual or party whims,

and abuse of office rationalize the failure to respect the ideal of constitutionalism. The

Public Order Management Act, passed in 2013, grants the Inspector General of Police

wide discretion to permit or disallow public meetings. This reproduces section 32(3) of

the Police Act, declared unconstitutional in Muwanga Kivumbi v. AG (No.9/05) in

essence it re-instated a provision that was nullified by the Courts of law. This is

inconsistent with Articles 29(1d) and 43 (2) of the Constitution. Article 92 of the

Constitution prohibits the passage of legislation to alter the decision of any court.

Constitutionalism is the idea that government should be legally limited in its powers, and

that its authority depends on observance of these limitations but the same has been

elusive since the Exparte Matovu case.

The 1995 Constitution, embraced during the Constituent Assembly in 1994 was

Uganda’s 4th Constitution, and a remarkable enhancement on the 3 constitutions that

preceded it. In its preamble, it is clearly stated that the People of Uganda, Recall their

history which has been characterised by political and constitutional instability and

recognise the struggles against the forces of tyranny, oppression and exploitation. On

the critical issue of the lifting of the age limit, Prof Oloka notes that; “the majority of the

Bench failed to appreciate two central features of the Preamble to the Constitution and

the Democratic Principles enshrined in the National Objectives and Directive Principles

of State Policy. These are the history of political and constitutional instability, which the

Constitution is at pains to ensure is not repeated, and the Democratic Principles that are

supposed to guide the State and its agencies.”31 An examination of how Article 102(b)

came to be inserted into the Constitution reveals that it was intended to pre-empt

31
http://www.monitor.co.ug/OpEd/Commentary/Court-violent-constitutionalism-Uganda-State/lsckz/index.html
S H I S A R O B E R T P a g e 10

political instability prompted by lack of procedure for a peaceful transfer of power.

According to Prof Oloka,32 Responding to the negative aspects of the Matovu decision,

the 1995 Constitution enacted Article 3 which prohibited the illegal taking control of

government. It also characterized any attempt to overthrow the Constitution as an act of

treason, upholding the force and effect of the Constitution. This is among the high level

impacts of the Exparte Matovu case on constitutional development in Uganda but is

also on the verge of change. In his 2013 paper “Towards A New Kind of Politics and

Constitutionalism in (B) Uganda”, Prof Joe Oloka-Onyango, writes that Uganda is in the

grip of a serious case of Presidentialism, brought about by the violation of both the letter

and the spirit of the 1995 Constitution, and placing an opaque shroud over the

possibilities of achieving democratic constitutionalism.

The revival and thirst for constitutionalism. In many respects, the very essence of a

constitution is its function as a “power map”.33 Constitutionalism is "a complex of ideas,

attitudes, and patterns of behavior elaborating the principle that the authority of government

derives from and is limited by a body of fundamental law."34 Kelsen’s theory as propounded

in Exparte Matovu created a strong reminder, that the adoption of a dysfunctional

constitution could provoke violence and political instability to Uganda and to

neighbouring states hence creating a thirst for constitutionalism. It is trite to say that we

live in a time of significant changes in constitutional governance. Constitutional

development in Uganda within the last two decades has shown that modern

constitutional designs can no longer ignore the emerging trend towards the globalisation

of some constitutional law standards. The effect is to enable Ugandan Constitutional

engineers a remarkable opportunity to gradually outgrow and correct many of the

32
https://news.mak.ac.ug/sites/default/files/downloads/Makerere-Prof-Oloka-Onyango-Inaugural-Professorial.
33
James A. Curry Et Al., Constitutional Government: (1997) (Quoting Ivo D. Duchacek, Power Maps (1973)).
34
Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (Unvty of Georgia, 1989).
S H I S A R O B E R T P a g e 11

errors made in the made by the departing colonial powers at independence. The

fundamental idea behind the revival of constitutionalism is the need to ensure that

a constitution does not become an ornamental document that politicians can violate

with impunity but a document to provide a basis for the respect of the rule of law.

4.0 Addressing the contrasting views and conclusion.

J.W. Harris observes that it is not consonant with the role of a judge hired

under one Constitution to accept the authority of any other constitution. 35 However, the

judges are faced with unacknowledged motivations for choices after a coup d’etat.36

A change of government often issues from the threat against the incumbent regime. It

would be impractical to continue with the old order for the case of Ex-President Sir

Edward Mutesa when power and allegiance had shifted to the Prime minister and when

the reversal was impossible. Legal regimes exist depending on the decisions of holders

of the ultimate force. I would additionally argue that, no special premium should be

placed on Article 3 of the 1995 Constitution.37 This Article may have no meaningful

effect in the event of a popular revolution. It is more appealing to believe Kelsen since, a

revolution is a deliberate desecration of the basic norm and revolutionary activity will

certainly violate many other criminal laws like treason. The American, French and

Russian revolutions are illustrations of a change in legal order. In each case, the

existing norm was changed by violent struggle and then the new order is definitely

dictated by the wishes of the victors and much less or non about the wish of the legal

order that the victors defeated. The impact of the Kelsen’s theory as propounded in

Exparte Matovu is very visible and to a great extent, yet to terminate in Uganda.

35
J.W. Harris, ‘When and why does the Grundnorm change” 1971,Cambridge Law Journal at 127
36
Nelson Koala Mkwentla (2001) The legal effect of a coup d’etat on traditional constitutional concepts.
37
The constitution of the Republic of Uganda 1995.
Idi Amin Swears In 6th February 1971: Major-General Idi Amin, Ugandan soldier, dictactor and

head of state, (1971 - 1978), takes the Oath of Office at the colourful ceremony in Kampala

when the new government was sworn in. The ceremony was supervised by the Chief of Justice

Sir Dermont Sheridan. Idi Amin's presidency was to end in disarray, with his troops scattering as

the Tanzanians took over Kampala in 1979. (Photo by Keystone/Getty Images)38

38
https://www.gettyimages.com/detail/news-photo/major-general-idi-amin-ugandan-soldier-dictactor-and-head-
news-photo/3261887
In January 1986, the National Resistance Movement and its military wing, the National Resistance

Army, pioneered originally by 27 young men, triumphantly removed from State power the agents of

dictatorship and fascism. The change we ushered in was, as we have stated before, not a mere change of

guards, but a fundamental change” (Yoweri Kaguta Museveni, 24.10.1987) 39

officer, Maj Gen Jim Muhwezi and Sir Peter Allen on behalf of the then acting Chief Justice George

Masika, together with Chief Registrar Serwano Kulubya during the 1986 swearing-in ceremony at

Parliament. COURTESY PHOTO.40

39
https://minbane.wordpress.com/2017/09/24/httpwp-mep1xtjg-5xv/
40
http://www.monitor.co.ug/News/National/How-events-unfolded-at-the-1986-swearing-in/688334-3048958-
a3rcu0/index.html
According to Justice Ogola,41…..The infamous double invasion of the High Court premises in

December 2005 and 2007 by the elite agents of the army under their nom de guerre (battle

name) of ‘Black Mambas’. The ugly bloody scenes of excessive bare-knuckles force by the

people’s police service cleansing the country’s streets, highways and byways of opposition

pedestrians who choose to walk to work or even worse who dare to walk to freedom.

41
https://www.observer.ug/component/content/article?id=21672:justicejames-ogoola-the-age-of-the-rule-of-
tear-gas&showall=1