Duty and citizenship: The social contract, By Babatunde Fashola

That is why I have exercised the latitude given to me to choose my topic, to title my speech: Duty and Citizenship: The Social Contract. Justice Idigbe was a dutiful citizen and worthy Nigerian patriot. When I was invited to intervene at his memorial lecture earlier this year, I was asked to review his judgement in the case of Bucknor-MacLean vs Inlaks report in (1980) 8 11 SC 1. That case for me demonstrated Justice Idigbe’s humanity, compassion, sense of justice and fairness to his fellow citizens.

On the face of it, it looked like just another case about the interpretation of Section 14 of the Registration of Titles Act, and the matter seemed foreclosed because the Supreme Court had decided cases like Shell BP Petroleum Company v Jammal Engineering Nigeria Ltd 1974 (1 ALL NLR 542) and Owunmi v Paterson Zochonis & Co Nigeria Ltd 1974 (1 ALL NLR 107.). These cases had decided that any transfer of title under the Registration of Titles Act must use the Forms prescribed under the Act to be valid.

I can only imagine what Justice Idigbe was thinking? The people who came to challenge the validity of the interest created in land under the Act, were successors of the person who created the interest. In other words, they sought to nullify an interest they had created by relying on a non-compliance that they had been part of after collecting money. It smelt of fraud at the worst and inequity at its fairest.

Justice Idigbe would have none of it and proceeded to persuade a full panel of the Supreme Court to reverse their previous decisions which were binding precedents and constraints to doing justice in the case under consideration.

Needless to say, all his brother Justices unanimously agreed with him. Idigbe, JSC enforced the law by using the law and this is one of our duties as citizens; and I will talk about this later.

It can be tempting for some to think about when another Idigbe will come and also to think that probably they don’t make them like that anymore. As an optimist those thoughts don’t find a place with me. In the faces I see in this hall, many more Idigbes and indeed better versions of him will emerge for the sake of Nigeria.

How then does all this connect with the topic of Duty, Citizenship and the Social Contract? I believe that many of us are familiar with the concept of the social contract first propounded by a Swiss philosopher, Jean-Jacques Rousseau, sometime in 1762 about the relationship between the state, and the Government on one hand, and the citizen on the other hand.

That contract implied confers certain expectations and benefits on citizens in exchange for certain service to be performed by the state in the conduct of their affairs. These expectations and benefits are expressed as rights, some of which are classified as fundamental and set out in the case of Nigeria, in Chapter 4 Section 24 of the 1999 Constitution as amended.

Those rights which are fundamental, are expressly conferred on “every person” as listed in Sections 33, 34,35,36,38,39,40 while there are other rights, which inure to the benefit of citizens of Nigeria only, which are conferred on “Every Citizen” as distinct from “Every Person” are to be found in:

The point to make at this stage about these rights is that they are enforceable in the same way as those other fundamental rights, except with the added bonus that Section 46 (4) (b) also confers additional benefits on citizens only, where they are indigent, to get financial assistance to engage a legal practitioner.

Now let me state in an advisory way that if the University of Benin has not incorporated citizenship and the duties that pertain to that status in her constitutional law class, it would be helpful to do so without further delay in the interest of national development.

This is the heart and matter of the social contract. Citizens enjoying certain rights over and above every person, as I have shown earlier. But those rights do not come alone, they come with duties, spelt out in Section 24.

My constitutional law curriculum did not teach me citizenship and was silent about my duties. Happily, it left me in no doubt about what my rights were, and limitations on them prescribed in Chapter IV (Fundamental Rights) of the constitution. But large sections of Nigerians have asserted their rights which is good, but sometimes without the understanding that they had duties, and sometimes without the awareness that those rights are not absolute.

This has not been helped by the rapidly multiplying tribe of so called “constitutional lawyers” and experts whose knowledge of the constitution probably does not extend beyond the sections pertaining to Rights in the Constitution. This is not helpful for our National Development, and I will attempt to demonstrate this shortly.

But permit me to quickly pivot to the issue of citizenship.

I will adopt for my purpose, the definition contained on Merriam-Webster’s Dictionary which defines a citizen as a:

“native or naturalised person who owes allegiance to a government and is entitled to protection from it.”

As can be seen from the definition, it envisages a two-way relationship, as I postulated about the social contract. The definition says that a citizen as a native or naturalised person “owes” a debt or duty of allegiance, which entitles the person, to a right of protection.

Very interestingly, the definition puts the “allegiance” or “duty/debt” before the “protection” or “right.” This is the first impact on National Development that I alluded to. The question to ask in our relationship as citizens, is whether we have consciously acknowledged that we owe a debt/duty of allegiance to Nigeria in our relationship with her when we assert our rights?

Have we asked for our rights first instead of discharging our allegiance? Indeed, what constitutes our allegiance to our country? But before I proceed further, let me highlight a few examples of some of the protection that citizenship has afforded us in recent times.

During the Covid-19 pandemic, we all recall that the Nigerian Government closed the international borders to all traffic as many other Governments did in their countries in order to contain the pandemic. But I recall vividly that whilst some countries, for fear of spreading the virus further, refused entry to their own citizens, Nigeria’s government granted entry to Nigerian citizens who were returning home even at the risk of bringing in the virus to the country.

That was, for me, a profound expression of citizen protection offered by our country, in contrast to the seeming status of statelessness other countries dealt to their citizens when they refused them entry at that time of extreme vulnerability. During the outbreak of war between Russia/Ukraine, Nigeria arranged the evacuation and return to Nigeria of her citizens caught in the war. She had no business with citizens of other countries. But did this and many similar acts resonate with us? Or were they just what was expected of our country and government?

Put differently, were we more focused on those instances where government and the state dropped the ball, and there are such instances, that we missed the significance of those instances where government protected us?

On the domestic front, how many of us have been saved from criminals, by law enforcement, or have had the fire brigade come to put out fire in our homes or places of business, or benefited from healthcare in a government facility?

These are instances of government offering its protection in exchange for our allegiance, even if admittedly there is scope for improvement. The question is whether we understand that these acts are acts of protection because we are citizens, and are we aware of our allegiance when we get these services?

Ladies and gentlemen, permit me to then proceed to what makes us citizens. The answer is to be found in the provisions of Sections 25-32 of the constitution as amended in 2023; and I must repeat my advice that this should be taught in constitutional law class, and I dare say from primary school in a manner that people of that level can understand it.

As we have seen from our Merriam-Webster’s definition of citizenship there are two broad types of citizens; native and naturalised. This is largely applicable in many countries of the world where citizenship is conferred on people who are naturalised citizens, and the Nigerian constitution also provides for naturalised citizenship as is provided for in Section 27 of the constitution.

While this class of citizenship does not derive from being a native and has some limitations for example such persons cannot be President of Nigeria under Section 131(a) of the constitution, their duty of allegiance is no less than those of native citizens.

It is therefore about native citizens I wish to speak, but before I do so, the limitation that naturalised citizens have, is itself another subject of education that commands the teaching of the broad subject in all our schools. Going back to native citizens, there are two broad classes on the subject, classified under the Latin phrases jus soli and jus sanguinis.

The former refers to citizens by birth acquired from being born in the territory of the state or country while the latter refers to citizenship of birth by having one or both parents who are native to that state or country.

Nigeria has adopted the sanguinis route in 25 (1)(a)(b) about people born before 1960, the date of independence, such that if you were born in Nigeria before that date with parents or grandparents who belonged to a community indigenous to Nigeria you were automatically a Nigerian citizen by birth.

And in section 25(1)(c), the sanguinis right to citizenship by birth is reinforced by providing that even if you were born outside Nigeria to at least one parent who is Nigerian, you were a Nigerian citizen by birth.

This explains why under the 1999 Constitution, Nigerians, for the first time, could have dual citizenship under Section 28(1) of the constitution because they may have been born in countries where the jus soli applies to Nigerian parents.

But this protection of dual citizenship is not afforded to those who acquired citizenship of Nigeria by registration or naturalisation; on the contrary only citizens by birth, jus sanguinis, can be dual citizens under our constitution.

Having discussed some of the rights of citizens, the basis and nature of citizenship albeit very briefly, I now proceed to examine our duties as citizens. These are set out in the provisions of section 24(a) – (f) of the constitution. But before I examine them, I wish to point out two things which appear instructive to me.

The first is the similarity between the definition of a citizen by Merriam-Webster’s dictionary where it speaks of “allegiance” before it refers to “protection.”

For some reason, the drafters of the constitution have similarly set out our duties first in Section 24, before proclaiming our rights by way of protection in the latter parts of the constitution in Sections 33 – 46.

The second instructive point is that whereas between sections 33 – 46 there are 14 provisions of the constitution dealing with rights and how to benefit from them, Section 24 (a)-(f) which deals with our duties only asks us to do six things.

With regard to section 24(a), I will focus only on the part dealing with the National Flag and the National Anthem and our respect for them, by advocating that we all adhere strictly to the colours of green, white and green on the national flag.

I have seen many flags purporting to be Nigeria’s flag, even in Government offices with a coat of arms placed in the white portion of the flag. This is not the Nigerian flag; on the contrary it is a desecration of our flag and disrespect for it.

Similarly, I have seen attempts to attach colourful frills and embroidery to the flag. Again, in my view, this desecrates rather than respect the flag as we are duty bound under the constitution.

Without offering advertisements on their behalf, I know that the National Orientation Agency (NOA), with offices in all the states of the country, produce and sell authentic Nigerian flags.

The National Anthem is another vexed issue. The best that I can say is that it is the expression of our sovereign might and this is why we will see that at global events, especially sporting events, the anthems of participating or victorious nations are rendered.

While this is a good forum to urgently appeal to the National Assembly to enact legislation to delimit events and occasions at which the national anthem can be rendered, it is my humble view that the National Anthem as the expression of our sovereign presence, should not be rendered for Governors or Ministers as has been the practice, or for the President when he is not performing a state function.

As for what would qualify as a state function, this will be a matter for some consultation, but I do not think that weekly FEC meetings, symposia, and those kinds of events qualify.

Perhaps the place with the greatest improvement in the performance of our duties to Nigeria, lies with regard to section 24(b) which invites us as citizens to “help to enhance the power prestige and good name of Nigeria…”

I say this because I am of the opinion that the most derogatory things about Nigeria have been said by us as citizens rather by than by non-Nigerians, we have described our country in the most negative of terms; and undervalued it by the negative conduct of some of us.

At every occasion when some officials of government have made public appeals for us to stop “demarketing Nigeria” some of the perceptions in response are cynical and misunderstood that government is defending its inefficiency.

The point I make is that we can be angry with our government and with representatives of government, we can condemn them in the strongest of words, after all that is a right to expression subject to the limits of the law of defamation. However, our disagreements, discontent or displeasure with government is no reason to scandalise Nigeria.

Nigeria has not offended us; let me accept that our governments and office holders may have more to do in making us happy. No person who seeks greatness throws stones at their home. Some of the grievance has been expressed in words so the effect that “Nigeria is not a nation.” While I respect the rights of those who hold that view, I hold a different view.

My view is that perhaps we conflate nationhood with the idea of a country. Nigeria is many nations that perhaps need to be forged into one country. Those nationalities are ethnic as they are tribal or religious. They are matters of identity rather than an idea or dream. It is my view that what we need urgently is to forge from those nationalities, a country built on a creed, away from tribe, ethnicity, language or religion.

This would not be easy but it can certainly be done. Can all of that diversity converge around an idea or shared dream that supplants our diverse ethnic, tribal, language and religious identities without extinguishing them?

The question to ask is what is the Nigerian creed? This is a subject for another day, but it seems to me that we must stop valorising the modest successes of other countries while not even acknowledging ours. Why are the dreams of others bigger than our dreams when there are scores of grass to grace and rags to riches stories around us?

I am of the view that unless we begin to own and amplify our stories instead of those of other countries that are even smaller than some of our states, for that long do we fail in our duty “to enhance the power, prestige and good name of Nigeria” for after all, international reputation is public relations from the home front.

As for the duty to respect the dignity of other citizens and the rights and legitimate interests of others and live in unity and harmony and in the spirit of common brotherhood, I would use what now goes on some social media platforms in the name of freedom of expression as the barometer to assess our performance of this duty.

As children, there were some people whose company we kept that our parents disapproved of, and as a parent I have had course to express similar concerns and I believe and it is the experience of many in the gathering as children and parents.

Parents disapproval were often expressed in words like: ‘I don’t want to see you with that person,’ or ‘I don’t want that person to come to this house.’  Children often responded by saying to their parents: ‘But they are my friends,’ to which parents will retort, ‘what do you know about friendship?’

This must sound familiar in homes where parents were attempting to pass on the right societal values of behaviour and conduct as distinct from homes where there may have been a total lack of breeding. I have news for all of us and I regret that it is not good news. Those parents were right then when they scrutinised the companies we kept and they are right today.

Those children they admonished us to keep away from have grown up and their numbers have increased. They have found an identity on social media platforms, and their identity is anonymity. With that identity they concoct the most bizarre of stories in the vilest of languages and dare us to do what we can because they are “trending.”

This is a big platform to breach the duty to respect the dignity of other citizens; this is where they threaten our unity and harmony, and do violence to the spirit of common brotherhood.

But let me be clear, the social media platform is not of itself the problem, it is the family from where they came, and this is where the reform must start to optimise the benefits that social media offers our civilization.

As far as our duty under section 24(d) is concerned about making “positive and useful contribution to the advancement, progress and well-being of the community where we reside,” the preliminary observation to make is that the well-being of our communities is connected to our individual well-being and that of our whole communities.

Communities help to shape conduct and behaviour of those within it and ultimately defines their quality of life. It is no surprise therefore that the constitution demands of us the duty to usefully contribute to the well-being of our community; because in the way that poverty, disease and squalor can be propagated from within a community, so can prosperity, wellness and cleanliness be created from communities.

It is no secret that many Community Development Associations (CDAs) have been formed across the nation to harness the power of citizens for the common good and it is in our interest and indeed a matter of constitutional imperative to take them more seriously.

From within those communities, we can improve our personal and collective security and safety, we can manage refuse and pollution and we can support ourselves without necessarily waiting for the officialdom of government.

Let me pause here to share some of my experiences with you, regarding the Lagos State Environmental Sanitation Law with you. That law was enacted by the State House of Assembly in the undoubted exercise of their constitutional powers.

Parts of the law restricted the movement of residents/citizens for a few hours up till 12 Noon or thereabouts once every month, for the purpose of ensuring that we cleaned our homes and communities to ensure public sanitation and by extension promote public and communal health.

At the time that I was Governor, a European Prime Minister visited Lagos to understudy how this law operated and also how our Government was getting residents to pay taxes.

An African President sought our help by writing to request that we send our refuse and sanitation team to help train their own.

Another African President that some of our people have now found very attractive, sought to meet with me to learn about this sanitation law.

Like the proverbial prophet that has no value at home, the sanitation law and its public health benefit was seen by some only in the limitation to their “rights” of free movement.

Off they went to court in the famous exercise of their rights, seeking to declare the law unconstitutional because it offended their rights under Section 41 (1) which provides that “Every citizen of Nigeria is entitled to move freely throughout Nigeria…”

Clearly, they did not read Section 45 (1) which says that “Nothing in Section…41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society in the interest of…public health…”

Sadly, the court of first instance agreed with them, but happily the Court of Appeal has reversed the decision and upheld the law.

This is how it should be. Individual rights sometimes have to be subjected to the overall interest of our community and nothing is unconstitutional about that if it is reasonable. That is part of the essence of the social contract.

As is to be expected, these protagonists of “rights only” are not done. They have gone to the Supreme Court as they are entitled to do, and we all await the outcome.

This takes me to the duty prescribed by Section 24(e) to “render assistance to appropriate and lawful agencies in the maintenance of law and order;”

This duty is clear enough and perhaps requires no further explanation. The efficiency of investigation depends on what we as citizens offer. Did we see something, hear something or know something?

Are we ready to offer statements and information about what we saw, heard or know in order to assist with law enforcement? This is what gives teeth to investigation and crime prevention for our collective safety.

Our duty under the social contract to assist law enforcement agencies shows that it is a two-way relationship. If we assist them, they can protect us.

Investigation is not a mystery. It is the ability to obtain information from those who know something, saw something, heard something or who did something.

The final duty imposed on us as citizens is prescribed in section 24(f) which obligates us to “declare his (our) income honestly to appropriate and lawful agencies and pay his (our) tax promptly.”

I don’t know how many of us realise that payment of tax is a constitutional duty not just one imposed by any ordinary legislation. The highest law of the land compels it, and I am not sure whether we are aware that a deadline of 31st of March every year has been set by another law, in order to enable us understand what “prompt” payment of our taxes actually means.

These are collateral matters to what I wish to address about this duty. Like the other duties that I have discussed, it underlies a two-way relationship between Government and citizens which is the heart of the social contract. In essence nothing is free. Government has no money of its own except that which it collects from citizens directly or on their behalf.

So, when government offers a free service like health or education, or subsidises a service or product like petroleum, it may be free to the recipients, but somebody is paying somewhere. I understand that money is hard to make and much harder to part with, but our quality of life is impacted by how much we pay as taxes to give government the resources to serve us and how easy or expensive it is for government to collect from those who do not want to pay at all, or who do not do so promptly.

I have spoken earlier about the need to develop a creed for our country as an idea or dream different from our ethnic, language, tribal or religious identity. The ingredients for this identity are generously provided in sections 13 -23 of the constitution.

Only a proper class can teach these provisions in addition to those I have urged earlier. My suggestion is that the curriculum be taught not just as lectures but as projects and tasks for teams of students to be challenged with in developing ideas and “dreams” for Nigeria.

There is an amazing lot to work with here.

From the provisions that seek to ensure that, there shall be “no predominance of persons from a few states or from a few ethnic or sectional groups in government..” in Section 14(3), to “loyalty to the nation shall override sectional loyalties…” in section 15(4), to the economic objectives in pursuit of an “efficient dynamic and self-reliant economy…”  in Section 16 (1)(a) and of course “… , the maximum welfare, freedom and happiness of every citizen on the basis of social justice and equality of status and opportunity…” in section 16 (1)(b ), you will agree that there is a lot here around which the ideals and dreams of a country can be propagated.

Ladies and gentlemen, before I conclude, let me place on record my thoughts about section 14(2)(b) of the Constitution which provides that “the security and welfare of the people shall be the primary purpose of government;” This has often been understood or dare I say misunderstood as suggesting that this is the responsibility of a particular level of Government.

The first point I wish to make about this section and the way some of us have perhaps chosen to misunderstand it is that the word “government” used in that section is a small ‘g’ not in capitals.

While this is not a discussion on interpretation of statutes for lawyers, it is helpful to the general public to point out that “government” used in that section refers to all levels of Government and not one level.

Further readings of the responsibilities of Governments set out in the second and fourth schedules of the constitution for Federal, State and Local Governments will show that no particular one of them bears responsibility for “security,” although the Federal Government has responsibility for the Army, Police and Arms.

This is not the same as having sole responsibility for security.

I expect that this point will be further examined in constitutional law classes for the benefit of all of us.

Having reviewed these provisions of the constitution relating to the promise of our state, our duties, our entitlement to citizenship and our rights, I think it must be eminently clear that the social contract is an offer of duties by us, in exchange for the protection of the state and not the other way around.

If I may say so, the country that some of us choose to denigrate with our words and actions really owes us nothing because there is no social contract if we offer no duties.

A food for thought to those citizens by birth who dislike Nigeria is to bring to their attention the fact that citizens of other countries have preferred to call Nigeria their home and treat her with the respect she deserves, and they perform their duties in exchange for Nigeria’s protection.

Almost on a yearly basis, Presidents of Nigeria approve these requests for citizenship by registration or naturalization from citizens of different countries of the world including from those countries that our citizens rank higher than Nigeria.

I know these because as a former Minister I had the privilege of sitting in Federal Executive Council meetings where these requests are considered, debated and approved in their hundreds every year.

This is an example if any is needed that our glass is half full and not half empty.

This is what must commend the life and times of Hon. Justice Chukwunweike Idigbe of blessed and noble memory, to us as citizens. Like him we must offer service and duty in private and public capacities to Nigeria first, before we can expect protections and assertion of rights. This is the proper order for the working of the social contract.

This was a lecture delivered November 1, 2023 at 19th Justice Idigbe Memorial Lecture, University of Benin, Nigeria.