Introduction
Legal theory provides various lenses through which to understand the nature and function of law. One of the most influential positivist theories of the twentieth century is Hans Kelsen's 'Pure Theory of Law'. This theory offers a structural analysis of legal systems, explaining validity through a hierarchy of norms. The 1995 Constitution of the Republic of Uganda, particularly its third article, presents an interesting case study for the application of Kelsen's ideas. Article 3 expressly forbids the unconstitutional overthrow of the government and establishes a duty for citizens to defend the constitutional order. This essay will discuss Article 3 of the Ugandan Constitution by applying the core concepts of Kelsen's theory. It will argue that while Article 3 is a clear attempt to legally entrench the 1995 Constitution as the supreme and perpetual source of law, Kelsen's theory, particularly his concepts of the Grundnorm and the principle of effectiveness, suggests that the ultimate validity of any legal order rests on its factual effectiveness, potentially limiting the power of such a provision in the face of a successful revolution.
Kelsen’s Pure Theory of Law
Hans Kelsen (1934) sought to create a 'pure' theory of law, meaning a theory free from non-legal elements such as morality, sociology, and politics. For Kelsen, law is a system of norms, where a 'norm' is an 'ought' proposition. The validity of any single norm is not derived from its moral content but from a higher norm within the legal system. This creates a hierarchical structure, or Stufenbau, where each norm is validated by the one above it. For example, a local by-law is valid because it was created under the authority of an Act of Parliament, which is in turn valid because it was passed in accordance with the procedures laid out in the constitution.
This chain of validity cannot continue indefinitely. At the top of the pyramid sits the Grundnorm, or 'basic norm'. The Grundnorm is not a positive law created by a legal act; it is a presupposition or a hypothesis that is necessary to view the system as a whole as legally valid. As Riddall (2002, p. 248) explains, it is the fundamental assumption that the historically first constitution ought to be obeyed. For the Ugandan legal system, the Grundnorm could be stated as 'the 1995 Constitution is valid and its provisions ought to be followed'. Every law in Uganda ultimately traces its validity back to this presupposed norm.
A crucial element of Kelsen's theory is the principle of effectiveness. For a legal order to be considered valid, it must be, by and large, effective. This means that the rules of the system must be generally obeyed by the population. If a legal order ceases to be effective, it ceases to be a valid legal order. This leads to Kelsen's controversial analysis of revolutions. A revolution, in Kelsenian terms, is any change to the constitutional order that is not provided for within that order itself (Kelsen, 1967). If a revolutionary group successfully overthrows the government and their new rules become effective, then the old legal order, including its constitution, loses its validity. A new Grundnorm is then presupposed to validate the new, effective legal order. The legality of the new regime is therefore dependent on its success, not on its conformity with the previous constitution.
Article 3 of the 1995 Ugandan Constitution
The 1995 Constitution of the Republic of Uganda was drafted following a long period of political and constitutional instability. It contains provisions that are clearly designed to prevent a recurrence of this history. Article 3 is the most prominent of these, as it directly addresses the issue of unconstitutional changes of government. The key provisions state:
> 3. Defence of the Constitution. > (1) It is prohibited for any person or group of persons to take or retain control of the Government of Uganda, except in accordance with the provisions of this Constitution. > (2) Any person who, singly or in concert with others, by any violent or other unlawful means, suspends, overthrows, abrogates or amends this Constitution or any part of it or attempts to do any such act, commits the offence of treason and shall be punished according to law. > … > (4) All citizens of Uganda shall have the right and the duty at all times— > (a) to defend this Constitution and, in particular, to resist any person or group of persons seeking to overthrow the established constitutional order; and > (b) to do all in their power to restore this Constitution after it has been suspended, overthrown, abrogated or amended contrary to its provisions. > (5) Any person or group of persons who, as required by clause (4) of this article, resists the suspension, overthrow, abrogation or amendment of this Constitution commits no offence. > (6) Where a person is punished for any act done under clause (4) of this article, the punishment shall, on the restoration of this Constitution, be considered void from the time it was imposed, and that person shall be taken to be absolved from all liabilities arising out of the punishment.
The intention behind Article 3 is unambiguous. It aims to establish the 1995 Constitution as the supreme and perpetual legal authority, rendering any unconstitutional seizure of power illegal from the outset. It not only criminalises such acts as treason but also empowers and obligates citizens to resist them, providing legal protection for those who do so.
A Kelsenian Analysis of Article 3
Applying Kelsen's theory to Article 3 reveals a fundamental tension between the aspirations of the constitutional text and the realities of legal validity as described by Kelsen. Initially, Kelsen's hierarchy of norms helps to explain the status of the Constitution. Within the current Ugandan legal order, the 1995 Constitution is the highest positive law, and Article 3 acts as a key provision to defend this status. It declares the Constitution as the only legitimate path to power.
However, the main conflict arises when considering a successful revolution. Article 3 is an attempt to legally 'coup-proof' the Constitution. It declares that even if a coup is successful, the act remains illegal and punishable. From a Kelsenian perspective, this provision holds legal force only as long as the 1995 Constitution itself is part of a "by and large effective" legal order. If a revolutionary government were to seize power and successfully establish control, such that its new decrees were generally obeyed, Kelsen's theory would posit that the Grundnorm has shifted. The old constitution, including Article 3, would cease to be legally valid and would become a mere historical document. The new regime's laws would become the new valid legal order, validated by a new presupposed Grundnorm.
This perspective was famously applied in Uganda itself in the case of Uganda v Commissioner of Prisons, Ex parte Matovu [1966] E.A. 514. The case followed the 1966 crisis where Prime Minister Milton Obote unconstitutionally suspended the 1962 Constitution and introduced a new one. The High Court, explicitly citing Kelsen, held that the new 1966 Constitution was legally valid because the revolution had been successful and the new order was effective. The court essentially recognised a change in the Grundnorm. Article 3 of the 1995 Constitution can be seen as a direct legislative response to the Matovu decision, attempting to create a legal rule that would prevent a court from ever again legitimising a coup based on its effectiveness (Odoki, 2013).
Yet, from a strict Kelsenian standpoint, Article 3 cannot logically prevent its own invalidation. It is a norm within a system, and if the entire system is effectively replaced, its norms are replaced too. Article 3(6), which purports to void punishments issued under a usurper's regime once the constitution is restored, is particularly problematic. Kelsen's theory implies that during the usurper's effective rule, the 1995 Constitution was not law. To then use that same constitution to retrospectively invalidate acts that were legal under the de facto legal order of the time creates a paradox. The restoration of the constitution would itself be another change in the basic norm, a 'counter-revolution', which then establishes its own criteria for legality.
Conclusion
In conclusion, Kelsen's Pure Theory of Law provides a powerful, if stark, analytical tool for discussing Article 3 of the Ugandan Constitution. The theory helps to situate the Constitution at the apex of the legal hierarchy, with its validity presupposed by the Grundnorm. Article 3 represents a robust attempt to protect this constitutional order by legally prohibiting and criminalising any action that seeks to overthrow it. However, Kelsen's principle of effectiveness provides a critical counterpoint. It suggests that law cannot guarantee its own survival in the face of a successful revolution that establishes a new, effective order. The historical precedent set in Ex parte Matovu demonstrates that Ugandan courts have in the past used Kelsen's theory to legitimise an unconstitutional change of power. While Article 3 was designed to prevent such an outcome from happening again, Kelsen’s theory argues that the ultimate source of legal validity lies not in the text of the law itself, but in the social and political fact of its general effectiveness. Therefore, while Article 3 is a vital declaration of constitutional principle, its legal force is ultimately conditional on the continued existence of the political order it seeks to defend.
References
Kelsen, H. (1934) Reine Rechtslehre [Pure Theory of Law]. F. Deuticke.
Kelsen, H. (1967) Pure Theory of Law. (M. Knight, Trans.). University of California Press.
Odoki, B. J. (2013) The Search for a National Consensus: The Making of the 1995 Uganda Constitution. Fountain Publishers.
Riddall, J. G. (2002) Jurisprudence. 2nd edn. Oxford University Press.
The Constitution of the Republic of Uganda, 1995.
Uganda v Commissioner of Prisons, Ex parte Matovu [1966] E.A. 514.
