“Why Constitutional Court Judges in Gabon swore in coup leader.”

There is a cliché on coup de’ tats that says ‘its only treason if you fail”.

The cliché doesn’t have an agreed origination but its essence was captured in the novel “The count of Monte Cristo” by French author Aleixandre Dumas in the 19th Century. Dumas had written in his book that “the difference between treason and patriotism is a matter of dates”.

Dumas was writing following the fall of Napoleon Bonaparte and the re-instatement of the Monarchy through King Louis XVIII. All activities under Napoleon that were previously thought as patriotic were being treated as treasonable. Just a few decades before, all actions carried out by the Monarchy under King Louis XVI, previously treated as patriotic, were considered as treason by revolutionaries.

This political thinking was not new to Dumas and much earlier in the 16th Century, the impish thinker John Harington had written : “Treason doth never prosper: what’s the reason? For if it prosper, none dare call it treason”.

It is now agreed in common political thinking that when it comes to removing regimes from power, ‘If you win you are a patriot – if you lose you are a traitor.’

Legal philosophers have argued over the centuries what the significance of this political thinking is in law. If there is no treason upon a successful overthrowal of a regime, how is the law to grant legitimacy to the new regime? Can the law recognise a successful ‘act of treason’ as a source of constitutional legitimacy to the new leaders ?

A German Judge and legal philosopher by the name Hans Kelsen grappled with these questions in the early 20th Century and stated that the law did not concern itself with politics, history, sociology, morality or ethics when it came to establishing legitimacy of legal systems, especially after the overthrowal of regimes.

Hans Kelsen said all legal systems derive their legitimacy from a basic authority or norm which in Deutsch he called the “Grundnorm”. This norm could be a constitution, for example. Where the people have met and passed a constitution from which all laws derive their legitimacy, then that constitution is the “Grundnorm” in that country.

Legal and political questions arise when that constitution is overthrown. What then is the “Grundnorm”? If as the cliché says it’s only treason when you fail, what is the Grundnorm after a successful coup de’ tat which overthrows the Constitution ?

Kelsen said that what determines the Grundnorm is what the people regard as the source of authority in that society.

For instance, in the days of absolute Kings and Queens, the legality of all laws was dependent on the “will of the sovereign” and the conquest that imposed it. This conquest and the “will of the sovereign” were accepted by all people as the source of authority. That was then the Grundnorm because all laws including the constitution would derive their legitimacy from this conquest and the “will”.

Then came religion and over centuries Kingdoms were created through Crusades and Jihads with the Bible or the Qur’an being the source of all authority. Any constitution, all laws and the authority of the rulers themselves derived their legitimacy from these Holy Books. The Crusades and Jihads and the Holy Books were then the Grundnorm as all authority emanated from them and were accepted by people as such.

But where a sudden and chaotic establishment of a political order occurred, for instance in a popular revolution or a coup de’ tat, the picture was not that clear. So some guidelines had to be developed in legal philosophy to determine what the Grundnorm was. This became necessary because it was important after a revolution or a coup de’ tat to determine what the legitimate authority in the society was since around this answer was the determination whether the people who obeyed the new order were patriots or traitors.

The rules are that firstly, there must be a complete overthrowal of the old legal order. The new order must oust the old one entirely and make it ineffective. All institutions that pledge allegiance to the old order must be viewed by the people as illegitimate.

Secondly, the new order must itself be effective. It must take total control and all power in the society must belong to it. A new regime that fails to establish an effective legal order cannot establish a new Grundnorm. The people must regard all its orders as the only legitimate authority.

These questions faced the Judiciary in Uganda in 1966 when Milton Obote overthrew King Kabaka Mutesa II. After declaring himself president, Obote overthrew the 1962 Constitution and decreed that some institutions like the Judiciary, the civil services, National Assembly and the army set up in 1962 could continue for purposes of continuity.

He then got the National Assembly to pass a new constitution and said all laws were now to derive their authority and all institutions were to derive their legitimacy from the new constitution which came to be known as the 1966 Constitution.

A Chief from the Buganda Kingdom called Michael Matovu was subsequently arrested and detained under emergency laws passed under the 1966 constitution. He challenged the legality of the new constitution and said it was treason.

The courts declined to outlaw the new constitution and said that the 1962 constitution had been overthrown and was no longer valid in Uganda. They said the Obote coup de’ tat had overthown the Kabaka regime and the 1966 Constitution was the only effective law in Uganda. The Grundnorm had changed.

In effect, Obote’s military coup was now constitutional and it was no longer treason. Obedience to Obote and the revolutionary constitution was now an act of patriotism and indeed, the disobedience of the new regime became the treason.

In international law therefor, what ECOWAS is threatening to do to Burkina Faso, Guinea, Mali, Niger and now Gabon is overtaken by events. The Grundnorm in those countries has changed and the new regimes are the only legitimate authorities in those countries.

Now you know why the judges of the constitutional court in Gabon had to swear in the coup leaders. As John Harington said, if treason prospers, who would dare call it treason ?