THE RESTRICTIONS ON AND THE DEROGATION FROM THE

FUNDAMENTAL HUMAN RIGHTS

PROVIDED IN SECTIONS 33-46 OF THE 1999 CONSTITUTION.

The derogation from fundamental rights refers to a temporary suspension of certain

rights entrenched in the Constitution. By virtue of Section 45 of the 1999
Constitution, the State is given the right to depart from some fundamental rights
entrenched in the Constitution due to emergency or reasons reasonably justifiable in a
democratic society.

In Nigeria, Chapter IV (Sections 33-46)  guarantees fundamental rights, but also

impose some restrictions as seen in Section 45, which provides for the restriction and
derogation from fundamental rights in Section 37, 38, 39, 40 and 41 in the interest of:

1) Public defense, safety, order, morality, and health.

2) Protecting the rights and freedom of other persons; and

3) Dealing with the situation that exists during the period of emergency.

During this period Section 33, 35 and 36 must not be derogated.

The derogation and restriction from fundamental rights is often justified on grounds of
national security concerns, with the net effect of limiting the enjoyment of those
rights. The Constitution of the Federal Republic of Nigeria, 1999 guarantees
fundamental rights and also sets out certain derogation some of which are based on
national security considerations.
It’s undoubtedly true that the Constitution of the Federal Republic of Nigeria is
supreme and it’s binding on all by virtue of Section 1(1) which provides that:

This Constitution is supreme and it’s provisions shall have binding force on all
authorities and persons throughout the Federal Republic of Nigeria.

It’s stipulated the way and manner an action should be carried out for the smooth
running of the country. Thus, every public or private administration must act in
accordance with the Constitution.

The approaches an appropriate authority can use in restricting some fundamental

rights are:

1) By invoking the State of Emergency

2) By invoking the Quarantine act

STATE OF EMERGENCY:

A state of emergency is a situation in which a government is empowered to perform

actions or impose policies that it would normally not be permitted to undertake. A
government can declare such a state during a natural disaster, civil unrest, armed
conflict, medical pandemic or epidemic, or other bio-security risks.

It can only be implemented by triggering Section 305. In implementing this section,

the President is authorized to unilaterally or at the request of a state governor declared
a state of emergency in certain instances, including when. . .

 there is the actual breakdown of public order and public safety in the Federation
or any part thereof to such extent as to require extraordinary measures to restore
peace and security;
 there is a clear and present danger of an actual breakdown of public order and
public safety in the Federation or any part thereof requiring extraordinary
measures to avert such danger;here is an occurrence or imminent danger, or the
occurrence of any disaster or natural calamity, affecting the community or a
section of the community in the Federation;
 there is any other public danger which clearly constitutes a threat to the existence
of the Federation .

The consequences of declaring a state of emergency may take one of two forms. 
First, the country’s legislature may adopt laws that curtail certain fundamental rights
guaranteed under the Constitution like the COVID-19 Restrictions. It may also allow
the executive to take certain actions that restrict such constitutional rights.  For
instance, the Constitution appears to permit the executive to temporarily suspend the
constitutional protection against forced or compulsory labor “in the event of any
emergency or calamity threatening the life or well-being of the community. It is
conceivable that this authority could be used to ensure that hospitals and health
centers are properly staffed during an outbreak of a deadly infectious disease like
COVID-19.

During this period, certain fundamental human rights can’t be restricted which are:

1) Right to life

2) Right to personal liberty

3) Right to a fair hearing

The Quarantine Act (the Act) is the primary law governing the prevention and
suppression of dangerous infectious diseases. The Act further authorizes the President
to issue regulations for the purpose of preventing or suppressing a dangerous
infectious disease in an infected local area, any other area in Nigeria, or any area
outside of Nigeria, stating as follows:
State governors are accorded the same powers as the President to categorize diseases
as dangerous infectious diseases, declare a particular location an infected local area,
or issue regulations for any of the above-stipulated purposes in the absence of
presidential action on a particular matter. 

It has also been noted that though rights are sacrosanct, however, they can be
derogated in conformity of the Constitution.

The point has further been made that some of the Constitutional ways some human
rights can be restricted most especially during this COVID-19 pandemic includes:
State of emergency and Quarantine Act.

This ways could become successful if the right minds are put into custody of
implementing the law. It is only when people of unquestionably integrity are chosen
to implement the law, that is when citizens rights would no longer be infringed upon,
and there would be effective adherence to the regulations.

In Nigeria, the restriction of movement in case of any disaster or natural calamity affecting
the community or a section of the community in the federation can be done in two approaches
and can’t be done by executive order or directive given by an appropriate authority because
it’s not binding as seen in the case of Faith Okafor v Lagos State Government, and as such
can’t attract criminal sanction. However, an order or directive can become binding when it’s
backed up by a law enacted by the national assembly or State house of Assembly for a state.