Exceptions and Derogation from the Fundamental Rights

Exceptions and Derogation from the Fundamental Rights

A formidable impediment to optimal enjoyment, protection, and promotion of human rights in Nigeria is also located in the various constitutional limitations and qualifications imposed on these rights. Section 45(1) of the 1999 Constitution, like its predecessor the 1979Constitution,[1]provides a veritable foundation upon which any law invalidating fundamental rights may be justified.

In this article, I noted that for any existing right of a claimant, there is a corresponding duty on another to make the right allowable to the former. By necessary implication, the right of a person is determined at the point where another person’s right begins. There is hardly any rule of law that enjoys universal application without patent limitations or exceptions.

The fundamental human rights provision in our constitution does not depart from this legal proposition. Virtually all the rights have their substantive provisions preceding some qualifications. These qualifications are included with particular respect to the rights of others and the interest of the public.

Accordingly, the constitution has provided situations the fundamental rights can be derogated from and this was enshrined in section 45 of the Nigeria Constitution and it provides thus:

  1. (1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

(a) In the interest of defence, public safety, public order, public morality or public health; or

(b) For the purpose of protecting the rights and freedom or other persons

(2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:

Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36(8) of this Constitution.

(3) In this section, a ” period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution[2].

Section 45(1) opens up wide vista through which the state can trample on the rights of its citizens in an effort to enthrone and superimpose its will on the citizens. It gives unguarded discretion to the government to determine what is reasonably justifiable in a democratic society and what is of public interest. This serves as a pre-emptive defence to the actions of the government that would, otherwise, amount to an infraction of the fundamental rights.

By the foregoing provision, the right to private and family life, freedom of thought, conscience and religion, freedom of expression and the press, right to peaceful assembly and association and right to freedom of movement may be circumscribed or limited.

Also, other human rights constitutionally guaranteed are not sacrosanct or absolute but are expressly and specifically limited. Admittedly, there may be no absolute right without qualifications, but the constitutional provisions limiting the rights guaranteed[3] are somewhat imprecise, indeed nebulous, and as such, constitute a real drawback in the effort to promote human rights.

For instance, what law is “reasonably justifiable in a democratic society “does not enjoy any definition and neither is it capable of any precise articulation.[4] This undoubtedly poses a very grave danger to optimal realization of human rights. In the case of DPP v. Chike Obi[5] which was followed in Queen v. Amalgamated Press[6], the Court held that the sedition law, though it evidently gravely circumscribed the constitutionally guaranteed right of freedom of speech, was “reasonably justified in a democratic society.” It is also on account of the derogation clauses that the Supreme Court held in Medical and Dental Practitioners Disciplinary Tribunal v. Emewulu & Anor[7] that all freedoms are limited by state policy or overriding public interest.

There is also permissible derogation from the rights to life and liberty under this constitution.[8] In periods of declared state of emergency, different forms of infraction of fundamental rights are legitimised. It is important to realize that the derogatory provisions, without necessary checkmating, stand to be abused.

The pathetic point to be made here is that the act of the executive and legislature declaring a state of emergency is beyond the cognizance of judicial review. In Adegbenro v AG Federation,[9] the court held, inter alia, that whether a state of emergency exists or not remains the duty of the legislature to determine.

An alleged breach of fundamental right cannot be valid when a crime is alleged and security agencies arrest to investigate and prosecute the case.[10] It is settled that fundamental rights granted to citizens of the nation are not immutable as held in USMAN & ORS V IGP & ORS.[11]

It is pertinent to state that the fundamental rights provisions in the constitution are not absolute but can be curtailed by appropriate authorities empowered to maintain law and order for the peace and good of the society. The rights can be circumscribed by law in public interest as held in HASSAN V EFCC & ORS.[12]

To demonstrate the amplitude and plenitude of the dangers posed by these nebulous constitutional derogations, reference may be made to the provision of section 33(1) of the 1999 Constitution which guarantees the right to life.

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The section permits derogation from this right, in execution of a sentence of a court with respect to a criminal offense, and goes on to provide that: a person shall not be regarded as having been deprived of his life…if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary –

(a) For the defense of any person from unlawful violence or for the defense of property;

(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(c) For the purpose of suppressing a riot, insurrection or muting[13].

With the characteristic overzealousness of Nigerian security agents especially the police, many of whom are ill-trained and ill-motivated this provision is often abused[14]. This derogation explains the worrisome cases of extra-judicial killings which have been witnessed in Nigeria,[15]and is particularly disturbing because of its wide amplitude.

For instance, death resulting from the use of force is permitted in order to effect lawful arrest or to prevent escape from lawful custody, irrespective of the nature or gravity of the offense for which the arrest is to be made or for which the person was incarcerated. With this type of provision, the police can be said to have been unwittingly licensed to kill[16].


[1]   See, the 1979 Constitution of Nigeria s.41 (1).

[2] Constitution of the Federal Republic of Nigeria, 1999

[3]   See ss. 33-36 (1999 Constitution of Nigeria as amended.

[4]   Many courts have grappled with this problem. See, e.g., Olawoyin v. Attorney Gen. of N. Region, [1961] 1   N.L.R 269; Williams v. Majekodunmi, [1962] 1 N.L.R 413 (Nigeria); Adegbenro v. Attorney   Gen. of the Federation &Ors., [1962] 1 N.L.R. 431 (Nigeria).

[5]    [1961] 1 N.L.R. 186

[6]    [1961] 1 N.L.R. 199

[7]   [2001] 3 S.C.N.J.106.

[8] Ibid S. 45(2)

[9] [1962] NWLR 150


[11] [2018] LPELR-CA/L/854/2017

[12] [2013] LPELR-CA/L/225/2011

[13]    Section 33(2), 1999 Constitution of the Federal Republic of Nigeria.

[14]    See, e.g., U.N. Human Rights Council various reports, in U.N. Human Rights Council, Report of the     Human Rights Council on its Ninth Session, U.N. Doc. A/HRC/9/1-A/HRC/9/27 (Feb.9, 2008). The reports     were discussed in Adejuwon Soyinka, On Death Row, TELL MAGAZINE (Nigeria), Apr. 20, 2009, at 22.

[15]    Examples of extra-judicial killings include the deaths of Dele Udoh, the Nigerian athlete who was brutally    murdered at a road block, Colonel Rindam, NwoguOkere and the six Igbo traders, known as “Apo six.”    For more information on these extra-judicial killings, see Editorial Comment, The Punch, Aug. 13,    2009, at 14; see also Sunday Tribune, May 19, 1991, at 1; News watch, Aug. 24, 2009, at 10-18

[16]    In 2007, authorities claimed that more than eight thousand people had been killed since 2000 in gun duels    with the police. These killings have attracted the condemnation of human rights groups. See The Punch    Editorial, The Punch 14, and Aug. 13, 2009. See also Nigeria: Great Nation,Poor Human Rights,    NEWSWATCH No. 16, Apr. 20, 2009, at 18-26.

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