THE CATHOLIC UNIVERSITY OF

EASTERN AFRICA
FACULTY OF LAW, DEPARTMENT OF
PRIVATE LAW
CLS: 301
PRESENTED TO: DANSTAN OMARI
PRESENTED BY: ERIC MJ GONA1
REGESTRATION # 1018655
ON 26TH, MARCH 2013.

1 LL.B ongoing The Catholic University of Eastern Africa

1

Contents
1.0INTRODUCTION....................................................................................................... 3
1.1

DEFINITION OF SOCIAL CONTRACTS (PART 1).......................................................3

1.2

HISTORY OF SOCIAL CONTRACTS........................................................................4

1.3

PROPONENTS OF THE SOCIAL CONTRACT THEORY...............................................6

a)

Hugo Grotius........................................................................................................ 6

b)

Thomas Hobbes..................................................................................................... 7

c)

John Locke........................................................................................................... 8

d)

Jean-Jacques Rousseau............................................................................................ 9

e)

John Rawls......................................................................................................... 10

1.4

THE CONSTITUTION OF A COUNTRY AS A SOCIAL CONTRACT.............................10

1.5
SOCIAL CONTRACT PARAMETERS IN THE CONSTITUTION OF THE REPUBLIC OF
KENYA...................................................................................................................... 12
1.6

SOCIAL CONTRACT IN THE MODERN WORLD.....................................................13

1.7

LIMITATIONS OF THE SOCIAL CONTRACT THEORY.............................................14

1.8
THE MARCH 4TH, KENYAN ELECTIONS AND ITS NEXUS TO SOCIAL CONTRACT
THEORY (PART 2)........................................................................................................ 15
1.9

RESPONSIBILITIES/DUTIES OF AN ELECTED GOVERNMENT TO ITS PEOPLE..........15

a.

Security............................................................................................................. 16

b.

Infrastructure....................................................................................................... 16

c.

Employment opportunities...................................................................................... 16

d.

Health care......................................................................................................... 16

e.

Equitable share of resources.................................................................................... 17

f.

Impose sanctions/ punishments................................................................................ 17

g.

Rule fairly without bias or discriminations..................................................................17

h.

Non dictatorial..................................................................................................... 17

1.10

OBLIGATIONS OF THE CITIZEN/PERSONS TO THE STATE......................................17

1.11

REMEDIES FOR WHEN THE GOVERNMENT IS IN EXCESS.....................................18

1.12

REMEDIES FOR WHEN THE CITIZEN IS IN EXCESS...............................................20

1.13

CONCLUSION................................................................................................... 21

1.14

REFRENCES...................................................................................................... 22

1.0 INTRODUCTION
The paper will be divided in two parts, first it is going to dwell on the precious meaning of social
contracts from a point if law, the history of social contracts (its origin), the proponents of the
theory and their views on it. The second part will finally look at its relation with the just
concluded Kenyan elections of 4th March 2013. Thereafter a conclusion shall be drawn.

1.1 DEFINITION OF SOCIAL CONTRACTS (PART 1)

Social contract is a convention between men that aims to discard the state of nature. Under state
of nature people live without government or written laws. People live under principles of justice
that all normal people can see through reason, they include right to life, liberty and estates. Most
people seek to follow these principles but the problem is lack of explicit written laws that leads
to uncertainty and difficulty to resolve disputes.
And a solution to the problems under state of nature becomes a social contract where people
agree to obey the state, let the state make and enforce laws and people pay the state for its
services. The state sets up legislatures, impartial judges and enforcers. The governments duty is
to protect everyones rights and if the government violates the social contract, people may
overthrow it.
A social contract is explained as The act of individuals surrendering their freedoms and submit
to the authority of the ruler/government in exchange for protection of their remaining rights.
This government will then make laws, laws that are binding to all persons within its jurisdiction.
The laws are not coerced unto any citizen since any individual after seeing how the state
conducts itself can choose to leave, taking their property with them or stay. Staying implies an
agreement to abide by the laws and abide by the punishment that they mete out.
Plato explained social contract in relation to justice stating the following What men would most
want is to be able to commit injustices against others without the fear of reprisal, and what they
most want to avoid is being treated unjustly by others without being able to do injustice in return.

Justice then is the conventional result of the laws and covenants that man makes in order to avoid
these extremes2
To Plato justice is the state of a well regulated soul and it entails obedience to the state and the
laws that sustain it, therefore justice emanates from a social contract where after surrendering our
freedoms to a ruler we expect fair treatment to each from that elected power.
Therefore from the above explanations we can actually see that a social contracts calls for duties
and obligations on both parties involved3 and can be explained as a binding contract since as we
shall see later on what punishment can be passed to a government for failing to fulfill its duties,
as well as the consequences that come to an individual that does not follow the laid down laws.

1.2 HISTORY OF SOCIAL CONTRACTS

Social contract theory developed at the transition period from feudalism to capitalism where the
feudal system based on absolutism and the absolute right of kings was being fought. The theory
came as a means of explaining and justifying the existence of governments that is governments
should come from the will of the people. The theory was thus invented to challenge the system of

2 Platos dialogue Republic book ii

3 The state and the people
4

absolutism that existed in the monarchies. Later, the theory was reflected in the English
Revolution4, the French Revolution5 and the American Declaration of Independence6.
Thomas Hobbes was of the view that the only way to address the question of life being short,
brutal is to create law. That law should create a government, whose primary purpose is to create
law and order and security for the people. The government created must enter into a social
contract with the people, the contract is for the provision of rights, services and protection of the
people on the part of government and on the part of people is to obey and fund that government
through taxes. The government must be accountable to its people7.
This view by Thomas Hobbes shows that at the time there was no law and order and many
injustices occurred as a result of no government. Man faced threats from every angle hence
making life solitary, poor, nasty, brutish and short in the absence of political order and law.
Social contract therefore is the belief that government is an agreement between the people who
surrender their natural rights in return of protection to life, liberty, property and protect
themselves from their own brutish instincts and to make possible the satisfaction of certain
human desires.
4 English Revolution also called the Puritan Revolution, general designation for the
period in English history from 1640 to 1660. It began with the calling of the Long
Parliament by King Charles I and proceeded through two civil wars, the trial and
execution of the king, the republican experiments of Oliver Cromwell, and,
ultimately, the restoration of King Charles II.
5 French Revolution, major transformation of the society and political system of France,
lasting from 1789 to 1799.During the course of the Revolution, France was temporarily
transformed from an absolute monarchy, where the
king monopolized power, to a republic of theoretically free and equal citizens

6 Declaration of Independence, document in American history used by the 13 British

North American colonies to proclaim their independence from Great Britain. The
Declaration of Independence was adopted in final form on July 4, 1776. It can be
divided into three parts: a statement of principle concerning the rights of man and
the legitimacy of revolution, a list of specific grievances against Englands King
George III, and a formal claim of independence
7 Class commentaries by Danstan Omari advocate of the high court of Kenya.
5

The history of social contracts can be traced back to Socrates as described by Plato in crito then
the laws8 will say consider Socrates if we are speaking truly that in your present attempt you are
going to do us an injury. For having brought you into the world and nurtured and educated you
and given you and every other citizen a share in every good we had to give, we further proclaim
to any other Athenian by the liberty which we allow him that if he does not like us when he has
become of age and has seen the ways of the city, and made our acquaintance, he may go where
he pleases and take his goods with him. None of us laws will forbid or interfere with him, but he
who has experienced the manner in which we order justice and administer the state and still
remains has entered into an implied contract that he will do as we command him. And he who
disobeys us is thrice wrong because disobeying us first he disobeys his parents secondly we are
the authors of his education; thirdly because he has made an agreement with us that he will duly
obey our commands and he neither obeys them nor convinces us that our commands are unjust
and we do not rudely impose them, but give him the alternative of obeying or convincing us that
is what we offer and he does neither
From the onset we said that a social contract involves an agreement between two parties that is
the state and the people, Socrates here portrays the duties and responsibilities of the two by
accepting his sentence to hung and not to flee since he believes it is his obligation to respect the
government and its laws since that government is what made him (provided laws for having a
legitimate son, security, health care). On the other hand we see one of the duties of government
coming out as well; the duty to punish an individual that is in excess of the laid down laws. This
means that Socrates accepted to drink poison as representing a sophisticated argument for
observing social contracts.
So the need to have security, and services resulted in the creation of social contracts and thus saw
the development of that aspect to what we have now and refer to as democracy. This I say
because every citizen is involved in the elective process of choosing their government.

8 The state
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1.3 PROPONENTS OF THE SOCIAL CONTRACT THEORY

The philosophical ideas of the social contract is dated back to Hugo Grotius (1583-1645),
Thomas Hobbes (1588-1679), John Locke (1632-1704), Jean Jacques Rousseau (1712-88) and,
more recently, John Rawls who wrote in the second half of the 20th Century.

a) Hugo Grotius
Hugo Grotius used social contract as a justification of absolute obedience of the people to the
government and a basis for legally binding and stable relations among states. Grotius said that
social contract had preceded the constitution of each state by means of people choosing the form
of government which they considered suitable for them. However, Grotius believed that once
they had transferred their right of government to the ruler, they forfeited the right to control the
ruler however bad their government was. Grotius thus denied the concept of the government for
the sake of the governed. To Grotius once the government is in power it becomes absolute and
can exercise its functions in whichever manner

b) Thomas Hobbes

He believed that all human beings are necessarily and exclusively self-interested, all men pursue
only what they perceive to be in their own individually considered best interest( they respond by
being drawn to that which they desire and repelled by that to which they are averse).
According to Hobbes the justification for political obligation is this; given that men are naturally
self interested, yet they are rational, they will choose to submit to the authority of a sovereign in
order to be able to live in a civil society which is conducive to their own interests.
Hobbes argues for this by imagining man in their natural state/state of nature. He claims that here
men are more or less equal to one another, there are limited resources and yet there is no power

able to force men to cooperate. Given these conditions he concludes that the state of nature
would be unbearably brutal.
Since in the state of nature every person is in fear of losing his life to another, they have no
capacity to ensure the long term satisfaction of their needs or desires. But this situation is not
hopeless as men are rational beings and can see a way out of the state of nature by recognizing
the laws of nature which shows them the means by which to escape the state of nature and create
a civil society.
To Hobbes the creation of a social contract will provide the human with a life other than that
available to them in a state of nature. This contract is constituted by two distinguishable
contracts, firstly they must agree to establish society by collectively and reciprocally renouncing
the rights they had against one another in the state of nature. Second they must imbue someone
or assembly of persons with the authority and power to enforce the initial contract.
Simply put Hobbes was of the view that for them to escape the state of nature they must agree to
live together under common laws, and create an enforcement mechanism for the social contract
and the laws that constitute it. Society becomes possible since whereas in the state of nature there
was no power able to control them all now there is an artificially and conventionally superior and
more powerful person who can force them to cooperate. This power he referred to as the
sovereign must have absolute authority in order for the contract to be successful.

c) John Locke

John Locke on the other hand accepted much of Hobbes social contract theory but argued that
sovereignty resided in the people for whom governments were trustees and that such government
could be legitimately overthrown if they failed to discharge their functions to the people. He
attempted to erect effective safeguards against violations of natural law by the government.
Locke said that the sovereign did not take all rights; the principal rights remained with the
people. Lockes social contract was devoted to sovereignty and law. Sovereignty derived from
the peoples will. This will remained with the people. He argued that sovereignty did not reside

in the state but with the people, and that the state was supreme, but only if it was bound by civil
and natural law.
Locke believed in the governed as the basis of sovereignty and the state as the guarantor of
individuals liberty. To Locke, under social contract power was surrendered not to the sovereign
but to the community. He said there and there only was a political society where everyone in the
society had quitted his natural power, resigned it up into the hands of the community.
Locke used the phrase there and there only to emphasize the importance of the WILL of the
people in forming a political society. Thus, every member of the community surrendered his
natural power with free will explicitly or implicitly and resigned it into the hands of the
community in exchange for the discharge of functions to the people, hence a political society
becomes with power to preserve property and punish offences. However, the power cannot be
more than that the people had in a state of nature before they entered into a society and gave it to
the community for nobody can give more than what he has. The term community as is used by
John Locke above signifies the government of the people by the people for the people, thus
community rights should prevail over individual rights and the rights are surrendered into
community because the sovereign is the people and only comes from the people. Thus, hands of
the community mean the governor who is governing by the WILL of the people.
From the idealism of John Locke on social contract, one notes some important parameters that
are closely associated with the government and its people. John Locke argued that, all men are
created equal with natural rights and the purpose of the government is to protect these natural
rights. John Locke contended more that the source of government authority is the consent of the
governed (the people), and the right of revolution is reserved for the governed. Thus, from a state
of nature men have passed to a state of society, by means of a contract in which they undertake to
respect each other and live in peace (pactum unionis). And the second pact comes in, people thus
united undertake to obey a government they have chosen (pactum subjectionis). John Locke
recognized both pactum unionis and pactum subjectionis.
These parameters of social contract theory of John Locke denote that the government is the
outcome of the peoples consent and, thus, legitimacy of the government should remain in the
WILL of the people.
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d) Jean-Jacques Rousseau
Rousseau claims that life begun in a state of nature and over time progressed into a civil society.
To him the state of nature was a peaceful and quixotic time; people lived solitary uncomplicated
lives as there few needs were easily satisfied by nature, due to the abundance of nature and the
small size of the population.
Competition was non-existent and people rarely saw each other and much less had cause of
conflict or fear. He further goes to claim that these morally pure persons were naturally endowed
with the capacity for pity and therefore were not inclined to bring harm to one another. As time
elapsed humanity faced certain changes as the overall population increased.
Due to population increase the means by which people could satisfy their needs had to change as
well. People slowly began to live together in small families, and then in small communities.
Division of labor was introduced both within and between the families, and discoveries and
inventions made life easier giving rise to leisure time.
Leisure time inevitably led people to make comparisons between themselves and others resulting
in public values. Most importantly was the invention of private property, for Rousseau the
invention of property constitutes humanities fall from grace out of the state of nature.
The invention of private property created social classes and those with property saw it wise to
create a government that would protect private property from those that do not have it but can
see that they can acquire it by force.
So government gets established by contract which purposes to guarantee equality and protection
for all, even though it is true purpose is to fossilize the very inequalities that private property has
produced.
In other words he saw the creation of government as one that was to protect the interests of the
few that had become stronger and richer as a result of the development of private property.
Rousseaus social contract theory forms a single consistent view of our moral and political
situation.
10

We are endowed with freedom and equality by nature but our nature has been corrupted by our
contingent social history. We can overcome this corruption by invoking our free will to
reconstitute ourselves politically along strongly democratic principles which is good for us both
individually and collectively.

e) John Rawls

Proposed a contractarian approach that has a decidedly Kantian flavor, in A Theory of Justice
(1971), whereby rational people in a hypothetical "original position", setting aside their
individual preferences and capacities under a "veil of ignorance", would agree to certain general
principles of justice and legal organization. This idea is also used as a game-theoretical
formalization of the notion of fairness.

1.4 THE CONSTITUTION OF A COUNTRY AS A SOCIAL CONTRACT

Hans Kelsen (1881-1973) regards a constitution as the basic norm or grundnorm in a legal
system through which some other rules derive efficacy. The grundnorm has no rule behind it. A
grundnorm is said to be accepted when it has secured for itself a minimum effectiveness. That
happens when a certain number of persons are willing to abide by it. Thus, a constitution
becomes effective through peoples consent and willingness to abide by it. This is done through
social contract, and as such, a constitution is considered to be a contract. It is often said that a
constitution is a contract between the ruler and the ruled, however, there is no evidence that
rulers and the ruled sit together and negotiate a contract called constitution.
A Constitution of a country is the most important legal document, and has been described as the
great law before which all other laws of a society must bow. It is a flame of dynamic power that
infuses the nations life, orders its being and moulds its future. All in all a Constitution is a
political document crystallizing national consensus on the modalities of how the State is going to
rule and within what limitations. It comprises a collection of the basic rules that govern a country
and hence all other legal rules in the country derive their authority from it. All the laws, by-laws,

11

rules and regulations find their legitimacy from the Constitution. In this sense, the legitimacy of
State policy and sovereign existence emanates from the Constitution.
Being the supreme law of the land, the Constitution of a country has also been regarded as the
social contract. It is the contract between the rulers and the ruled and therefore it is more than
just a document as it embodies the wishes and aspirations of the country 9. As the Constitution of
a country is a document that signifies the social contract between the rulers and the ruled, it must
be voluntarily agreed upon by the countrys people for their common good and well-being. An
ideal Constitution of a nation implies prior participation of the people in constitution making and
therefore it should be a document that bears all the blessings of the people.
The former President of the United Republic of Tanzania Benjamin W. Mkapa in his speeches on
the rule of law and good governance in Tanzania stressed on the will of the people to be ruled
and ruler to respect that will of the people. To him, this agreement differentiates human
communities from animal communities he stated. The law is the bundle of principles and
customs regulating the relationship between individuals, an individual and the society, an
individual and the government, and between the society and the government and in democratic
countries like Tanzania, the basis for the legitimacy of the law is the WILL of the people through
parliamentary representatives10.
However, it is contended that most constitutions of African States; and especially former British
colonies lack legitimacy, and are highly contested because, despite their facilitation of smooth
transitions to administrations, they did not involve the people 11. In a modern sense, a constitution
may be defined to mean a product of national consensus forming the basis of the organisation of
the people in their state. People decide on the basis for their co-existence which is then reflected
in the constitution, based on the relationship of the state and the citizens on one side, and to
communities in the other side. The constitution must come from the people, the people are the
9 The preamble of the Kenyan constitution
10 See MKAPA, Benjamin W, (2003) Utawala wa Sheria na Haki ya Kuishi Uwazi na Ukweli,
Mkuki na Nyota,DSM, at p13

11 Kenyan independence constitution

12

authority, and thus, the constitution is the people themselves. The term authority may be ascribed
into political legitimacy and legal authority. Political legitimacy means that a constitution must
be accepted and respected by the people while legal authority means that the constitution is
deriving from effective legal process and organs, thus, a national consensus.

1.5 SOCIAL CONTRACT PARAMETERS IN THE CONSTITUTION OF

THE REPUBLIC OF KENYA
Article 1 (1) states that All sovereign power belongs to the people of Kenya and shall be
exercised only in accordance with this Constitution. Article 1 (2) goes further to say The
people may exercise their sovereign power either directly or through their democratically elected
representatives. In other words the source of power is the people and that the state derives its
authorities from the people. Sovereignty is imposed upon the people as they have the right to
vote for the leaders of their choice.
Also people are constitutionally given the freedom to participate in public affairs. This may be in
the form of peaceably and unarmed, to assemble, to demonstrate, to picket, and to present
petitions to public authorities12.
Every citizen is free to make political choices, which includes the right13

To form, or participate in forming, a political party;

To participate in the activities of, or recruit members for, a political party;

or
To campaign for a political party or cause

Chapter 4 part I of the Constitution of the Republic of Kenya, 2010 provides for basic rights and
duties to citizens including the right to equality, the right to life and the right to freedom of
conscience. The citizens are duty bound to observe and abide by the constitution and the laws of
the Republic of Kenya These were also stressed by John Locke in his social contract theory.
State Obligations; the state organs of the executive, the legislature, and the judiciary were created
to serve the people of Kenya. They hold their respective power in trust for the people. As
12 Article 37
13 Article 38
13

trustees, the powers of these organs are limited by the constitutional provisions, principles and
laws flowing there from. The primary objective of the government is the welfare of the people
and it shall be accountable to the people.
The authority of the government of Kenya derives from and is concerned with the application
and upholding of the Constitution of the Republic of Kenya. The constitution is the WILL of the
people, and every person is entitled to the right to ensure protection of the constitution 14,
protecting the constitution is impliedly protecting the people.
The Constitution is the pactum unionis of Kenyans. In its article 3(1), the Constitution of the
Republic of Kenya enjoins every citizen an obligation to respect, uphold and defend this
Constitution. This reflects pactum subjectionis concept of John Locke in his social contract
theory.

1.6 SOCIAL CONTRACT IN THE MODERN WORLD

Political power derived from social contract entails such power coming from the people and not
from above, whether from divine law or the grace of God. Thus, social contract theory of John
Locke is a forerunner of democratic theory that is the government of the people, by the people
and for the people. Thus, the modern democratic governments adhering to free and fair election
principles have their basis on social contract theory.
Parliamentary democracy existing in the modern world today is mainly influenced by John
Lockes idealism. His ideas gave theoretical form to the reaction against absolutism and the
preparation of parliamentary democracy. His greatest effect was upon the American and French
revolutions.
John Lockes doctrines of liberty and equality have exercised a strong influence upon the bill of
rights in modern constitutions in many countries. Liberty and equality of an individual are highly
respected and thus protected by the governments. And sovereignty resides in the people as per
John Lockes ideas.
14 Article 3 of the Kenyan constitution
14

1.7 LIMITATIONS OF THE SOCIAL CONTRACT THEORY

The parameters of social contract theory in some instances fail to hold water like in cases where
some states were formed through usurpation or conquest. In such cases there is no free will to be
ruled and the obedience to the government is mandatory. For example, the recent cases in Kenya
and Zimbabwe, there were formed coalition governments of which were not based on the will of
the people but the will of the rulers. Moreover, in some jurisdictions like Tanzania, Kenya and
Uganda rulers come into power by simple majority of the votes, but how will the WILL of the
remaining be protected? Will these persons who voted against the winner be part of the said
social contract?
The answer is simple Kenyans have agreed in their constitution 15 to form the government by
simple majority votes but the government is for all citizens and the objective of this government
is to protect the welfare of the PEOPLE and not the simple majority voters.
An ideal Constitution of a nation implies prior participation of the people in constitutional
making and therefore it should be a document that bears all the blessings of the people and in this
sense the WILL of the minority is also protected as they gave a prior consent to the simple
majority rule system through their constitution. In a broad sense, a constitution is a social
contract implying the aspirations of the people and their government to comply with
constitutional norms. It encompasses constitutional and political ethos, defining democratic
governance, guaranteeing human rights (the minorities being included in the phrase human
rights), and empowering citizenry to use the constitution as a living document that reflects their
needs and aspirations. And this is what constitutionalism means in its broad sense. Thus, from
social contract we retain constitutionalism jurisprudence and human rights contents.

15 Passed on august 2010

15

1.8 THE MARCH 4TH, KENYAN ELECTIONS AND ITS NEXUS TO

SOCIAL CONTRACT THEORY (PART 2)
After every five years the country holds a democratic process of elections where the people of
Kenya get a chance to exercise their constitutionally guaranteed right to elect the candidate of
their choice into government.
In doing so the people surrender their freedom and elect a sovereign to rule over them for a
period of five years until the life of that sovereign is terminated by another election. The people
approve the government to become the owner or the monopoly of violence. Since the
government will be charged with ensuring security it is thought wise to have a government that
has control of weapons.

1.9 RESPONSIBILITIES/DUTIES OF AN ELECTED GOVERNMENT TO

ITS PEOPLE
Generally the government will be tasked with various responsibilities ranging from security
issues to enforcement of public policies that are for the good of the general public, and any act
that the government is to take is to be for the benefit of the people. We cannot list them all but
just look at a few.
An elected government in Kenya has the following duties to achieve for its people:

a. Security
Kenya has had an increase in insecurity since 2007 this started with the disputed elections of that
year which saw thousands die and others being displaced and being forced to live as internally
displaced persons.
A wave of ethnic cleansing was to follow where some people were out to rid the country of a
particular ethnic group. After the two principles agreed to a power sharing deal calm returned
and lives went on.
Even though Kenya was at peace there was a grave threat imposed on its people with the random
bombings that happened after Kenyas operation Linda nchi started.
16

Thus the government that will be sworn in after the hearing of the petition will be tasked with
ensuring maximum security for its people both internally and externally.

b. Infrastructure
The network infrastructure is also expected to improve with a new government in place and the
people are eager to realize this since better infrastructure means economic growth and better
business as investors are to come in. the road network, railway transportation, water and air
transportation are key to achieving this. Currently projects such as the new Lamu port, the Konza
city and the road improvements are under way and a substantial amount is expected to be
disbursed to meet this development strategies.

c. Employment opportunities
The people expect the government to be able to create job opportunities especially for the youths
who are the majority. This is not a farfetched desire as the new projects 16 under way will ensure
that it happens.

d. Health care
A healthy nation is a wealthy nation as its people are more productive this is one of the most
fundamental duty of a government to its people in a social contract, it is expected that certain
health care services such as antenatal, family planning, HIV/AIDS treatment and malaria should
be given to the public at lower prices or at a zero rate.
The government should therefore provide these services for its people and make access to them
easy.

e. Equitable share of resources

The new system of devolved government in Kenya is one that is set to ensure equitable
distribution of resources, from the ground to the top. This system could only be enacted after the
general elections of 4th march.

16 Konza techno hub, Lamu port

17

f. Impose sanctions/ punishments

The state should be able to punish offenders where one does an act of omission or commission;
this fear of such sanctions should be well known by the people and hence would enable the state
to maintain law and order

g. Rule fairly without bias or discriminations

The state should not rule with bias or discriminations on any of its people, the state should be
benevolent, just and impartial in its administration.

h. Non dictatorial
The state should allow for a democratic process and peaceful transition whenever its term comes
to an end, any tyrannical rule from the state or failure to provide for a due democratic process is
a breach of the social contract.

1.10 OBLIGATIONS OF THE CITIZEN/PERSONS TO THE STATE

The first major obligation of the person is to surrender their fundamental rights to the state, this
in Kenya is done and was seen in the just concluded general elections, and the people choose
their leaders in this process and thus granted them the power of the sovereign.
The sovereignty will always lie with the people of Kenya but then it is surrendered onto
government for a period of five years upon which all power lies in that elected government.
Secondly the person is charged with observing and following all the rules/laws that the elected
government will pass through its legislature, or any order that will be given to them by the
elected sovereign.
The sovereign needs to be recognized and accepted by its people otherwise it will not be a
power; therefore recognition by its people is vital for a governments existence.
The individual is expected to pay taxes to the government in order to help it run services
efficiently this is considered an exchange for the services that the government offers its people
such as road networks and so on.

18

The people are to respect the fact that the state is the monopoly of violence and each should
surrender their weapons to the state.

1.11 REMEDIES FOR WHEN THE GOVERNMENT IS IN EXCESS

There are three main remedies namely
a. Judicial review- this is the process by which an administrative action can be challenged
by an aggrieved person in a court of law. Judicial Review is an examination of the
manner in which a decision was made or an act done or not done. This definition is
found in Chief Constable of North Water Police V. Evans [1982] 1 WLR 1155
The purposes of Judicial Review from that definition are as follows:

To prevent excessive exercise of powers by administrative bodies and officials;

To ensure that an individual is given fair treatment by Administrative authorities;
To keep Administrative excesses in check and also to provide a remedy to those
aggrieved as a result of excessive exercise of power by administrative bodies.

Please note that Courts of Law will intervene in public administration in one or more of the
following circumstances i.e. courts of law will review actions of admin bodies in one or more of
the following circumstances

When a body acts ultra vires;

When there is jurisdictional error;
When there is an error of law;
When there is an error of fact;
When there is an abuse of power;
When irrelevant considerations governed the making of a decision;
When there is bias
When there is unfair hearing;
When there is procedural flaw;
When there is irrationality
When a public official or body acts in bad faith;
When there is breach of principles of natural justice.

There are overlaps in these grounds e.g. what amounts to procedural flaw may at the same time
amount to ultra vires. In actual practice any one of the grounds will entitle an aggrieved party to
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apply for judicial review and in actual practice circumstances occasioning judicial review will
involve one or more of those grounds. We dont have to have all the 12 circumstances to apply
for judicial review any one of the grounds will suffice plus the list is not exhaustive. Further
developments on a case by case basis may add more grounds.
Remedies granted under judicial review are
1. Certiorari
2. Mandamus
3. Prohibition

b. Re- election
This is a process by which the life of the current government is brought to an abrupt end. This
can be done through the following ways: Removal of President on grounds of incapacity 17,
removal of President by impeachment18, Vacancy in the office of President if the holder of the
office

Dies;
Resigns, in writing, addressed to the Speaker of the National Assembly; or
Otherwise ceases to hold office under Article 144 or 145 or
Under any other provision of this Constitution

c. Coup dtat
Also known as a coup, a putsch, or an overthrow, is the sudden deposition of a government,
usually by a small group of the existing state establishmenttypically the militaryto depose
the extant government and replace it with another body, civil or military. A coup d'tat is
considered successful when the usurpers establish their dominance. When the coup neither fails
completely nor succeeds, a civil war is a likely consequence.
17 Article 144 (1)
18 Article 145 (1)
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This is not a legal remedy as it is not provided for under the constitution of Kenya 2010, though
it has happened in various states such as Mali19.

1.12 REMEDIES FOR WHEN THE CITIZEN IS IN EXCESS

Where a citizen fails to follow the laid down laws, the government being the monopoly of
violence has the right to impose punishments on that person. In Kenya such punishments are set
out under the penal code cap 63 laws of Kenya.

1.13 CONCLUSION
It is said that social contract theory is exercised through elections of some people to form the
government, but the systems of many elections in the world do not reflect the reality. The major
problem facing many countries is non adherence by the governments to the social contract
principles as propounded by the philosophers of social contract theory. The said principles
require the government and the people to exist under pactum unionis and pactum subjectionis
with due respect and adherence to the duties and rights arising there from.
In every political community of people there is a constitution and the constitution is supposed to
reflect the WILL of the people. And since the constitution is the WILL of the people, it then
enjoins every person to abide the provisions of this constitution, that is, to live according to their
agreed procedures and respect the community. The jurisprudence behind social contract theory is
to promote peace and harmony and as that it is the bed rock of democratic societies.
19 2012-Mar 22nd: Military overthrows Amadou Toumani Tour
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1.14 REFRENCES

Peter, C. M. & Juma, I. H. (1998), Fundamental Rights and Freedoms in Tanzania

(eds), Dar es Salaam, Mkuki na Nyota Publishers.

Benjamin W. Mkapa, (2003), Utawala wa Sheria na Haki ya Kuishi Uwazi na Ukweli,

Dar es Salaam, Mkuki na Nyota

Okoth-Ogendo, W. H. O.; (1991), Constitutions without Constitutionalism: Reflections
on an African Political Paradox. In: Shivji, I. G. (ed); State and Constitutionalism: An
African Debate on Democracy, Human Rights and Constitutionalism; Series No. 1;
Southern African Political Economic Series (SAPES) Trust; Harare-Zimbabwe

Visit http://en.wikipedia.org/wiki/Social_Contract_theories Wikipedia; A Free Internet

Encyclopedia

Social contract theory (internet encyclopedia of philosophy)

Social Contract Theory of John Locke (1932-1704) in the Contemporary World/ selected
works of Daudi Mwita Nyamaka

The constitution of kenya 2010

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