By Nonso Anyasi
Political historians have conjectured that our society is built on the foundation of a social contract wherein every individual member enters into a contract with his fellow man to give up a measure of his hitherto sovereign liberty, whilst submitting to the overbearing dominion of a new sovereign who in turn contracts with its subject to provide a conducive environment for them to survive in the absence of their surrendered liberty.
This social contract theory entails the existence of several layers of contract between several persons. First, a contract exists between man and his fellow man for each to surrender a measure of their individual liberties. Another contract exists between this man and his sovereign; with the individual man contracting to be bound by the authority of the sovereign;while the sovereign in return, contracts to govern the individual man and provide amenities which the individual is incapable of providing for himself due to his surrendered liberty. These dual contracts were harmonized in order for the society to exist at optimal levels. Hence, an aggregation of the dual contract entails each collective member of the society giving up a measure of his liberty in return for certain benefits from government (sovereign).
In legal parlance, a contract is made up of an offer, acceptance, consideration, and an intention to enter into legal relations. When these four elements are present, a valid contract which can be enforced by the courts exists. However, even the law recognizes that man still retains a little measure of liberty which he does not surrender to his sovereign. Hence, it is possible for contracting parties to agree to oust the jurisdiction of the courts in enforcing the contracts they enter into upon a breach thereof. Such ouster clauses could either be express or implied. A contractual document which implores the parties to explore all means of alternative dispute resolution before resorting to litigation has impliedly ousted the jurisdiction of the courts to enforce a breach unless a condition precedent is fulfilled.
A contract, once entered into can be expressed to be binding on not only the actual parties who signed the contract, but also upon their agents, privies, and successors-in-titles. Hence, a contract can be expressed to be binding on the children and successors of the person who signs the contractual document.
The 1999 Constitution of the Federal Republic of Nigeria is contractual document between the Government of Nigeria and the citizens of Nigeria. It is a document which fulfils all elements of a valid, binding, and enforceable contract highlighted above. It is an ideal social contract between one Nigerian and another, and also between Nigerians and their government. The Nigerian constitution was crafted by the craftiest and most cunning legal minds in the employ of the Federal Government. Hence, it is little wonder that the important parts that set out the fundamental objectives and directive principles of state policy were declared to be non-justiceable and unenforceable by virtue of Section 6 (6)(c) of the Constitution.
Upon the conception of the political entity known and referred to as the Federal Republic of Nigeria, the various peoples of the different indigenous communities which make up the Federal Republic of Nigeria agreed to surrender their individual sovereignty and live together under an aggregated sovereign as one indivisible and indissoluble sovereign state by virtue of Section 2(1) CFRN 1999. They chose to live as a democratic nation, and retained control of their collective sovereignty, rather than assigning same to an imperious ruler. Hence, by virtue of Section 14(2)(a) CFRN 1999, ownership rights of Nigeria’s sovereignty is vested in the people, and it is declared that it is from the people that any government can derive all its power and authority, through the constitution. The effect of Section 14(2)(a) CFRN 1999, as foremost Constitutional Lawyer, Professor Ben Nwabueze posits, is that any government which cannot trace its source of power to the people lacks the fundamental ingredient to exercise sovereign rights on behalf of the people.
Consequently, in exercising the collective sovereign rights vested in the people, Nigerians need to elect their representatives who will occupy governmental positions and make laws and policies on their behalf. This is consummated when democratic elections take place, and Nigerians have their say on who is to represent them formulate directive policies for the country. However, does the sovereign duty of an average Nigerian end at the polls? Or does he have an extra civic role to perform?
At the onset of this treatise, we postulated that dual contracts exists in every society: between man and his fellow man; and between man and his sovereign government. The contractual relationship between a Nigerian and his fellow citizen is codified by Section 14(2)(a) CFRN which declares every Nigerian to be a joint-holder of sovereignty together with his fellow Nigerian. Hence, a Nigerian owes his fellow Nigerian certain civil obligations, which arise as a consequence of the surrender of individual liberties and the ensuing social contract.
The consummation of sovereignty by democratic elections is a civil right (albeit not a fundamental human right) which accrues to Nigerians who are so qualified to exercise that right. Nigerians donate power and authority to those who will exercise sovereign freewill on their behalf by participating in elections, either by contesting for political office, or by voting for a preferred candidate. The right to participate in an election, or franchise rights is sometimes erroneously misconstrued as a fundamental human right. In fact, it is not a “right” strictu sensu, but a “liberty”. It cannot be said to be a fundamental right because it is not a right which is available to every human being, neither does it define the existence of a citizen as a human being. It is a mere civil right or liberty simpliciter which is available to only persons who have met the prerequisites to exercise that liberty, such as being of a certain age and possession of a voters card. Consequently, there is no provision in Chapter IV of the Constitution which guarantees a fundamental right to vote and be voted for.
Elections in Nigeria are conducted by the secret ballot. It is an oft-quoted aphorism that a citizen’s vote is personal to him, but this is an illogical submission which is unfounded in realism. A citizens’ choice of candidate may be his personal choice, but the entire electoral process and the outcome of the elections is not personal to anybody. Electioneering as a governmental process is a collective effort in which the social contract existing amongst citizens is once again activated. When there are two or more candidates for an elective post, it is the candidate who secures the highest vote that will constitute the government of the day. The policies which an elected representative will implement will be binding on everyone, including those who did not participate in the elections, and those who did not vote for the winner.
It is trite knowledge that a public office holder owes his constituents a moral duty to be accountable. However, it is sad that this theoretical duty of accountability has not attained the status of de jure application. It has been watered down by the provisions of Section 6(6)(c) of the Constitution which elevates the policies, actions, and inactions of elected representatives away from the jurisdiction of our courts. An aggrieved Nigerian is therefore precluded from dragging his elected representatives to the courts to account for failure to exercise the aggregated sovereignty delegated to him in conformity with the provisions of the constitution. It is little wonder why our leaders are fond of ignoring the collective wishes and welfare of the electorates whom they were elected to govern, because they know that no tangible consequence will flow from a breach of public trust.
This institutionalized insensitivity of Nigerian leaders to the plight of their elected representatives is one which appears to have no other practical remedy except through the process of a change of government. Dissatisfied Nigerians are left with no choice than to wait for the tenure of the elected representatives to end before they repeat the process of electing another representative who may likely neglect their collective needs in favour of his own personal benefits. Despite the numerous calls by several well-meaning person and organizations for our leaders to be accountable to their electorates, our leaders have appeared to develop a thick skin to such pleas.
It is trite law that every Nigerian has a right to be governed properly. This right entails a corresponding duty to elect representatives who will govern them properly. However, this right to good governance does not exist in isolation. It is co-dependent on the civil right of other Nigerians to elect representatives to govern them properly. Where the candidate elected by the populace does not govern his constituents properly, the right to good governance of his constituents would be jeopardized. Since the constitution has prevented Nigerians from going after leaders who have failed in their legal duty to be accountable, Nigerians should begin to hold fellow Nigerian electorates accountable under the aggregated sovereignty which they gave up vide the Nigerian social contract.
How can this be possible? Nigerians should begin to take responsibility for their votes. Any citizen who gives his seal of acceptance to a candidate contesting for an elective position by voting for the candidate has held out the said candidate to be capable of representing the best interests of the electorate. When the majority of the electorate elect an incompetent person, they have deprived the minority who didn’t vote for the incompetent winner the opportunity of being governed properly by the other candidates who contested for the election. There is also a very imminent risk that the non-performing leader may be re-elected into that position by the same set of voters who are complacent with his inadequacies.
The social contract which binds the electorates together as citizens under a commonwealth should be activated to create a duty of accountability to the ballot. Electoral contestants should be held accountable to their constituents, whilst voters should be accountable to their votes and fellow voters. A voter owes his neighbour a duty to elect credible leaders who will implement good policies for the good of the commonwealth. Without this duty of reciprocal accountability, voters will feel justified in supporting a non-performing government. The activation of reciprocal voter accountability will keep all political actors on their toes, as the electorates would be liable to account for non-performing votes, whilst the elected representatives would stand the ever-present threat of abdicating their offices in favour of a candidate who is more willing to perform.
Nonso Anyasi is a Public Policy Analyst.