LIMITATIONS TO RESTRICTIONS AND DEROGATION OF YOUR HUMAN RIGHTS

[Olajire Deborah]

Limitations To Restrictions And Derogation Of Your Human Rights

I’m glad to inform you that the derogation allowed by the Constitution is not a blanket derogation which can be manipulated by unscrupulous leaders to infringe on the rights of the citizens. Those derogations cannot just happen anyhow. The Constitution again specifically provides for the limitations to when the rights of the citizens can be infringed upon, as follows:

1. On Right To Life: You know by now that the Constitution guarantees you the right to life. And you know that nobody can take that life except in the situations mentioned in Chapter 1 above. In addition, life may be taken as per those exceptions allowed under this Section 45 of the Constitution which I have discussed above. But, note, however, that such derogation on right to life is limited to death resulting only from acts of war. So, no government is allowed to make laws permitting taking the lives of the citizens when there is no war, revolt, civil unrest or without any justification. No matter how they want to justify it, such a government will be guilty of murder, genocide or ethnic cleansing.

2. On Right To Fair Hearing: No law is allowed to be made that will make a person guilty of an act which was not a criminal offence at the time it was done. Remember our previous example of a law made in February this year that makes it an offence to drink alcohol. Nobody can be held guilty of that offence if he drank the alcohol in January this year when it was not yet an offence. So, no law is allowed to derogate from this provision no matter the emergency or justification. This is what we call the rule against retroactive application of laws.

3. No law is allowed to impose a penalty heavier than the penalty in force at the time the offence was committed. For instance, let us say that in January this year, the punishment for stealing was a fine of N1,000 which was later changed to 2 years imprisonment in March. Somebody who is charged with stealing in January but arrested in March cannot be sentenced to 2 years but only the N1,000 fine, because that was the punishment for the offence as at the time he committed the crime. So, no law is allowed under any justification whatsoever to derogate from this right.

4. More importantly, periods of emergencies have been categorically defined in Section 305 of the Constitution and these include only:

a. when the country is at war;

b. when it is in imminent danger of invasion or involvement in a state of war;

c. when there is actual breakdown of public order and safety to such extent that it requires extra-ordinary measures to restore peace and security;

d. There is a clear and present danger of breakdown of order which requires extra-ordinary measures to avert it;

e. When there is a disaster or natural calamity affecting the community or a section of the community;

f. When there is any public danger which constitutes a threat to the existence of the Country;

g. When the President receives a request from the Governor of a State to do so, backed with the resolution of two-third majority of the House of Assembly.

Therefore, these are the only recognized cases of emergencies allowing for laws to be made which derogate from your fundamental human rights. Anything outside these situations cannot be an emergency and the Constitution will not allow anybody to fabricate his own emergency for the purpose of derogating from the fundamental rights of the citizens.

5. Lastly, only Sections 33, 35, 37, 38, 39, 40 and 41 are allowed to be derogated from by any law in any case of emergency. This means that the other Sections under fundamental rights cannot be derogated from by any law no matter the emergency or justification. These Sections that cannot be breached are:
a. Section 34 – Right To Dignity Of The Human Person;
b. Section 36 – Right To Fair Hearing;
c. Section 42 – Right To Freedom From Discrimination;
d. Section 43 – Right To Acquire And Own Immovable Property Anywhere In Nigeria;
e. Section 44 – Right To Freedom From Compulsory Acquisition Of Property.

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