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Opinions of Monday, 11 September 2017

Columnist: Edem Duncan Nuhoho

The social contract through the eyes of Denkyira Obuasi after the dust has settled


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A few months ago we all woke up to the horrific news of the lynching of Major Adams Mahama by a group of people in Denkyera Obuasi. It was a dastardly act, a very shameful act which did not depict the civilized society we believe and hope to live in.

But embedded in that horrendous act is a reflection of who we are as a people. “Instant Justice” as it is called - though in the proper sense of the act it is “instant injustice” - has been with us for time immemorial.

The atrocious act committed against Major Adams Mahama was condemned by all and sundry and in our hypocritical nature pretended it was the first time an incident like that had happened. Now that the dust has settled and the weeping has lasted for the night, the morning as come for us to reflect on the issues on the way forward. We as a people have to occupy our minds with certain questions and interrogate certain issues so as to say 'never again' to such barbaric dastardly acts of meting out “Instant Injustice” to our fellow human beings in an era of law and order.

The Questions we should be asking as a people are:

Why would the citizenry resort to “instant Injustice” instead of handing over a suspected criminal to the law enforcement agencies?

Is it that the people do not trust the law enforcement agencies?

Have the police, the foremost law enforcement agency, reneged on its duties? Have they lost the war on crime?

Do the people feel the need to defend and protect themselves through any means possible without recourse to the police?

Has the social contract between the people (governed) and the government been breached and what remedy is available to the citizenry when successive governments breach and continue to breach this social contract?

The aim of this article is to place the social contract theory on law and government in modern society so as to ask the question whether the social contract has been breached and whether there is a remedy for its breach.

The social contract argument typically posits that individuals have consented either explicitly or tacitly to surrender some of their freedoms and submit to the authority of the ruler or magistrate (or to the decision of a majority) in exchange for protection of their remaining rights.

Thomas Hobbes famously said that in a state of nature “human life” would be solitary poor, nasty, brutish and short in the absence of political order and law, everyone would have unlimited natural freedoms, including the “right to all things” and thus the freedom to plunder, rape and murder. There would be endless “war of all against all” (bellum omnium contra omnes).

To avoid this, free men contract with each other to establish a political community, i.e. civil society, through a social contract in which they all gain security in return for subjecting themselves to an absolute sovereign, one man or an assembly of men.

Alternatively, John Locke and Jean Jacques Rousseau have argued that we gain civil rights in return for accepting the obligation to respect and defend the rights of others, giving up some of our freedoms to do so. The central assertion of social contract approaches is that law and political order are not natural, but are instead human creations. The social contract and the political order it creates is simply a means towards an end- the benefit of the individuals involved- and legitimate only to the extent that they fulfil their part of the agreement.

We the people of Ghana signed our own social contract in 1992, evident in the Preamble to the Constitution 1992, which states

“We the People of Ghana in Exercise of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; in a spirit of friendship and peace with all peoples of the world; and in solemn declaration and affirmation of our commitment to; freedom, justice, probity and accountability; the principle that all powers of Government spring from the sovereign Will of the People;

The Principle of Universal Adult Suffrage;

The Rule of law

The protection and preservation of Fundamental Human Rights and Freedoms, Unity and Stability for our Nation;

DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION”.

The preamble to the constitution 1992 is the basis upon which the constitution was adopted, enacted and given to each other as the Grundnorm and it is also the source of all other laws and authority; it is what establishes government and other constitutional bodies.

The constitution apart from being a living organism and the hope and aspiration of the people in the words of Sowah JSC in Tuffour v. Attorney General is also per its Preamble, a social contract between Government and the governed.

What happened when the benefit of the social contract becomes the preserve of the minority movers and shakers of society?

We live in a country where until the evils in society affects “bigman” nothing is done about it.

We live in a country where when you are a victim of a crime, you are to provide transport to the police to visit the crime scene, you are to provide suspects to the police among other things because they do not have the resources to conduct effective investigation but they have resources to buy four wheel drives for Senior officers of the service.

We live in a country where those who have the primary duty to protect us (the police) look on while crimes are being committed; the only answer the police can give is “the crime is under investigation”. Investigations never end in this country. If the police decide to prosecute the case, this takes forever in the judicial system and yes, the wheels of Justice may grind slowly but it will always come to an end but then Justice delayed is Justice denied.

We live in a country where the people who have the primary duty to protect us (the police) have shown time again that they are incapable of protecting and preserving the fundamental Human Rights and Freedoms. Should the citizenry be blamed for trying to protect themselves and since the Justice that is administered by the Judiciary emanates from the people, can the people be faulted if they decide to administer their own justice because the social contract has been breached?

According to Hobbes, citizens are not obligated to submit to the government when it is too weak to act effectively to suppress factionalism and civil unrest.

According to other social contract theorists, when the government fails to secure their natural rights (Locke) or satisfy the best interests of society (called the general will in Rousseau) citizens can withdraw them.

Has the citizenry rescinded the social contract and decided to administer their own form of Justice? The Jury is still out on that answer.

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