CONSEQUENTIALS

I have mentioned all the essentials but there are consequentials, and some of them are important. I should just mention in passing that an Independence Act makes necessary amendments in the Army and Air Force Acts and the Naval Discipline Act and, in a Schedule which does not affect the law of die country concerned, effects a number of other adaptations of United Kingdom laws.

Territory outside Her Majesty's dominions. Soon after the last war, the process of giving more and more self-government, which would obviously culminate in independence, seemed to present a problem the solution of which it was not easy to predict. The greater part of die aggregate area included in the dependent territories consisted of Protectorates and Protected States. How could they be given inde­pendence and remain within the Commonwealth? They are not parts of Her Majesty’s dominions; all powers and jurisdiction vested in the Crown depend upon the right and duty to protect, which is incom­patible with independence. What would take its place? A Protected State has its own Ruler. What would be the relationship between him, as the Head of an independent State, and the Crown? If a Protectorate is governed with a territory which is a Colony, the rights of the United Kingdom to protect could not be transferred to the Govern­ment of the Colony unless the Protectorate were not to share the new status but were to remain a dependency of the territory which had been a Colony. Trust territories presented the same problem as Protectorates. The solution, however, as matters turned out, was simple. The Acts granting independence have, in effect, boldly annexed Protectorates and Trust territories by providing that, on the appointed day, they should become part of Her Majesty’s dominions. That was the course adopted for the Northern territories of the Gold Coast, the greater parts of Nigeria and Sierra Leone and the whole of Tanganyika.

Not quite so straightforward was the related nationality problem, which, in its Ghana context, was fully discussed in an anonymous article in Volume i No. 2 of the Journal of African Law. Most of the inhabitants of Protectorates and Trust territories have the status of British Protected Persons. When a territory ceases to be under Her Majesty’s protection and becomes part of Her Majesty’s dominions, logic and legal principle require that that status should not continue. But Ghana, at die date of independence, had no citizenship law and the British dislike of statelessness is almost as intense as nature’s abhorrence of a vacuum. So Parliament in its wisdom disregarded the technicality and decreed that Ghana’s British Protected Persons should continue to be British Protected Persons unless and until they became citizens of Ghana under Ghana law. The same provision is made for Nigeria, Sierra Leone and Tanganyika but, by comparison, it is of little importance, since citizenship laws were enacted as parts of their constitutions.

Amendment of the Constitution. When a country becomes independent, the means by which the constitution may be amended must be pre­scribed. This is of special importance when there is a communal or minority problem. Machinery probably has to be devised to ensure that safeguards provided for the protection of particular classes of persons cannot easily be removed or prejudiced by the majority.

Experience shows that constitutional devices to protect special interests may not be effective and enduring. Much may depend upon the size and political rights of the community concerned. The classic case of the so-called entrenched clauses in the South Africa Act, 1909, is well known. With the experience of South Africa in mind, the first Schedule to the Ghana Independence Act contained a provision— paragraph 6—to the effect that the existing constitution and any law amending or replacing it should not be repealed or amended otherwise than in such manner as might be specified in the constitution. This has been copied for Nigeria, Sierra Leone and Tanganyika. Amendment

of the constitution of Ghana required a two-thirds majority, and, in regard to a number of specified provisions (including safeguards for Regional Assemblies and boundaries, and for Chiefly rights) Regional approval was necessary, and in most cases the House of Chiefs was entitled to be consulted. All this has already disappeared. The whole constitution and the greater part of the Independence Act, including paragraph 6 in the Schedule, have been revoked; and under the new Constitution little remains of the original safeguards.

In the Regions of Nigeria, in Sierra Leone and in Tanganyika, there is a similar two-thirds majority requirement; and in Sierra Leone if any one of a number of entrenched provisions is affected, the Bill has to be passed in two successive sessions separated by a dissolution. Procedure for amendment of the Constitution of the Federation of Nigeria is more complicated and it absorbs twelve subsections. This, briefly, is the position: any amendment requires two-thirds majorities in the Federal Parliament; alteration of entrenchment sections needs, in addition, supporting resolutions in at least two Regions; for establishment of new Regions and the alteration of Regional bound­aries there is special machinery requiring Regional support; and representation in the Federal Parliament cannot be reduced except with Regional consent.

Not all entrenched provisions are framed specially for the protection of particular communities. Detailed ‘fundamental rights’, now usually based upon the Human Rights Convention, are the order of the day. A Director of Public Prosecutions may have vested in him the entire responsibility for prosecutions, in order to preserve it, so far as practicable, from undue political influence. The method whereby a Judge may be removed from office is laid down. I have discussed this question in detail in another part of this volume. Briefly, the position is that most of the newly independent countries have elected to main­tain the procedure recognized for many years with respect to dependent territories: a judicial enquiry, followed, as a rule, by reference to the Judicial Committee of the Privy Council.