Social Contract: The A-Side Vs. B-Side

I’m  not going to go into Jean-Jacques Rousseau, Thomas Hobbes or John Locke’s various theories of social contract, since we are Lawyers and not Philosophers. I choose to look at social contract in my own slightly more legal way, in relation to our present day. I see social contract, firstly, as a contract between the Government and the Governed, that is, the Citizens; and secondly, between the citizens – our obligations to ourselves and as people generally; social contracts governed by the Constitution.

Ikepo’s Theory of Social Contract

1) Government and the Governed

In my theory, Social Contract in its first role is between the Nigerian Government and the people – the Government offers to govern the people and the people accept and give their consent by voting the Government into office, and the consideration is Government delivering on the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2023)(the Constitution), while the Governed adhere to Section 24 of the Constitution, live in brotherhood with one another and obey the laws of the land; for example, Citizens must declare their incomes and pay tax promptly – see Section 24(f) of the Constitution.

2) Amongst Citizens

In its second role, the social contract is between the citizens amongst themselves, again as provided by Section 24 of the Constitution, that is, to respect other citizens and their rights, live in unity and harmony with others in the spirit of common brotherhood – see Section 24(c) & (d) of the Constitution.

Of course, there can be overlaps where the breach of a duty by a citizen is both against the Government and the citizens. For example, committing murder is not only a breach of the social contract between the Government and the murderer, but against the citizens.

It seems that, whether Government or the people, we have all fallen short of our constitutional/contractual obligations. And, I will tell you how, starting with Government.

Government’s Breach of Social Contract

Successive governments have breached their own part of the contract with the people, by failing to deliver on the objectives of Chapter II of the Constitution. Unfortunately, this social contract between the Government and the Governed is faulty; in the case of a normal contract, there are remedies available for breach of contract, like the court ordering the payment of monetary damages by the defaulting party in the contract, or the equitable remedy of specific performance of the contract, which is simply the court ordering the defaulting party to fulfill the contractual obligations which they have defaulted on. In Pan Bisbilder (Nig) Ltd v First Bank (Nig) Ltd 2000 1 SC 71 per Emmanuel Olayinka Ayoola, JSC, the Supreme Court defined breach of contract thus: “A breach of contract means that the party in breach has acted contrary to the terms of the contract….either by non-performance, or by performing not in accordance with the terms”. Also see the case of Gambaga v Rabiu & Ors (2014) LPELR-41079 (CA) per Abdu Aboki, JCA (as he then was). Obviously, a party suing for breach of contract must prove that there was a breach, and there was an enforceable contract that was breached. See the case of Best (Nig) Ltd v Blackwood Hodge (Nig) Ltd & Ors (2011) LPELR-776.

Here lies part of the problem with the Nigerian social contract, between Government and the people. Even though the terms of the social contract between the Government and the Governed are clearly stated in the Constitution so that there’s no doubt that such a contract exists, and Nigerians have all seen how successive governments have failed to  fulfill their obligations in the social contract with them, whether economic, social or security objectives and so on – that is, the breach of contract is not in doubt, it appears, rather inequitably I might add, that this social contract between the Government and the people isn’t a directly enforceable contract in the case of a breach by Government, as Section 6(6)(c) of the Constitution ousts the jurisdiction of the courts, and prevents the people from suing for damages or specific performance in case of any breach of contract by Government, that is, when the Government fails to perform on Chapter II of the Constitution. There is no immediate direct remedy or compensation for loss, in the event that Government is in breach of this social contract with the people. The only remedy available, is to vote out of office, the Government which has failed to fulfill its contractual obligations at a future election; however, even in this circumstance, there’s no remedy for losses suffered by the people, as damages cannot be recovered. How fair is it, that while Government can enforce the obligations of citizens by letting them face the wrath of the law if they breach the social contract, whether between citizens and Government or citizens amongst themselves, for example, prosecuting a citizen in accordance with the provisions of the Criminal Code or Penal Code, Money Laundering Act etc if he/she steals, citizens do not enjoy this opportunity when Government commits the same crimes – there’s no punishment for breach or accountability on the part of Government.

Citizens’ Breach of Social Contract

Nevertheless, while we are quick to abuse Government for its failures, we often overlook the second aspect of the social contract which encompasses the behaviour of the citizens themselves; as a people, what are we Nigerians like? Though majority of us are still good, decent, hardworking people with the right values, a good number of us have fallen short of the duties imposed on all citizens by Section 24 of the Constitution, along with being barefaced criminals. One of our most popular breaches as a people, is tax evasion. This is sort of vicious cycle, since because of corruption, Nigerians do not really see where Government applies taxes they pay, and so, they are reluctant to pay taxes with their hard-earned money, only to end up in private pockets.

For many of those who hold government positions and positions of authority, or many of  us who have ‘checked out’ to find greener pastures in other countries, contrary to Sections 1, 15, 24 (a), (b) & (d) of the Constitution which enjoin us to eradicate corrupt practices, abide by the Constitution, render good national service to the Nigeria to develop it and enhance her power, prestige and good name, we have bled the country dry with stealing, looting, bribery and corruption, decisions which are of no benefit to Nigeria, while the ‘Checking-Out Andrews’ are known for despicable crimes like drug trafficking and fraud (wire fraud, ‘419’ etc), in many of the foreign countries they end up in, giving Nigeria a bad name. Back home, kidnapping for ransom , ritual killing, ethnic clashes and other violent crimes, have also become the order of the day in many parts of the country.

When Government provides infrastructure for us, what do we do with it? We destroy it. Take the Eko Bridge in Lagos for example. Recently, we interviewed the former Minister of Works & Housing, H.E. Babatunde Fashola, SAN, and asked when the repairs of the bridge will be completed, so it can be reopened to motorists. We blamed the previous governments for not maintaining the bridge, until it almost collapsed! And then, we blamed the outgone Government for not restoring it on time. But, what about the citizens who were cooking or doing who knows what under the bridge at Apongbon and then Ijora, thereby causing fires and further damage to the bridge in both places, resulting in a further delay in the repairs of the bridge? What about those people who make a living out of stealing all the railings on the bridge?

To compound things, I was more than shocked to see a video of ‘under the bridge’ at Ijora, Lagos. The person doing the video explained that the bottom of the bridge had been heated by miscreants, to extract the iron rods inside the belly of the bridge,  and the affected area looked burnt and black;  one could easily see points where the iron rods had been severed. Concrete and iron rods are combined, to create a strong durable bridge, in order to also withstand heavy load. The iron rods reinforce the bridge, and also ensure that the weight of the load on the bridge are evenly distributed across the bridge; the iron rods also prevent the concrete from crumbling. I ask again, what kind of people are we? Destructive, reckless, wicked, conscienceless, ready to employ any means to make money, even if such means results in costing a host of other people their lives occasioned by bridge collapse, because the iron rod reinforcements are no longer there to support the concrete, having been stolen.

Similarly, last year when we interviewed the former Minister of Transport, H.E. Hon. Rotimi Amaechi, he informed us that every month. funds were wasted on purchasing at least 10,000 clips to replace those stolen from the railway tracks. The ‘clip thieves’ obviously do not care that removing the clips from the tracks can cause trains to derail, and injure or kill train passengers! I remember watching the news one day, and seeing a news clip of people who were arrested for being in possession of these clips; to my shock, not only was an Assistant to a Governor suspected to be involved in this cruel criminal enterprise, a Chinese National, probably one of those involved in the construction of the railway, was amongst those arrested, suspected of being part of a network to steal the clips and resell them.

In these two scenarios of the bridge and the railway track clips, both the Government and the miscreants are guilty of breach of contract; the Government’s failure to secure the lives and property of the people (the bridges, railway and infrastructure belong to all Nigerians); then, these wicked criminal acts perpetrated by citizens, which are certainly not brotherly or positive and useful contributions to the progress and wellbeing of society, as provided by Section 24(c) & (d) of the Constitution.

With an announcement by President Tinubu in his inaugural speech about the removal of fuel subsidy, Marketers immediately created an artificial scarcity by locking up nine out of their ten fuel pumps, so that they can make a huge profit, never mind the suffering and inconvenience that was unleashed on Nigerians. In 2020, during the #EndSARS Protests, miscreants and hoodlums senselessly burnt the brand new buses that Lagos State Government had bought to ease the burden of commuters, and they also destroyed valuable infrastructure like the Lagos High Court (one of our national treasures) and our world class Lagos State DNA & Forensic Laboratory, a beautiful innovation contrived and completed during the tenure of Adeniji Kazeem, SAN as AG, Lagos.Again, I ask, what kind of people are we? Definitely not our brother’s keeper!

Luckily, in this aspect of the social contract, there is punishment for such breaches, but only if perpetrators are caught and brought to justice.

Going Forward

As we have entered into a new phase in Nigeria with the new Tinubu administration, they have the opportunity to lead by example. If Government shows commitment to keeping its own side of the social contract, the people will come to the quick realisation that it is no longer business as usual, and will also start to keep to theirs, seeing an improvement in their circumstances and knowing that there will be consequences if they don’t keep their side of the social contract. If people  see their tax income being ploughed into public education and transport, health care etc, they will be more encouraged to pay taxes to develop the country. A contract must be equitable/fair. You can’t ask Nigerians to tighten their belts, yet Government Officials and Politicians who are meant to be serving the country, are living lavishly. The racket going on in governance, must stop. If people see that public officials who came in without two pennies to rub together when they began their service, now become the richest people in town, building hotels and super structures in their hometowns kitted with ‘state of the art vehicles’ like a Car Sales Showroom, the social contract will continue to be breached or outrightly fail.