Articulating the Jurisprudence Surrounding Derogation from Fundamental Rights in the Nigerian Context

Fundamental rights are aspects of human rights which have been given constitutional recognition.  
Despite their prominence, in comparison to the general human rights scheme, the extent of their 
expression is curtailed aimed at enabling their responsible expression vis-a-vis competing rights 
of others and the collective interest of the society. This paper examines the variants and nature of 
derogations from fundamental rights evident in Nigerian Constitution and jurisprudence; with the 
aim of determining the extend of its application and limitations on fundamental rights in Nigeria. 
The paper adopts the doctrinal research method in examining primary and secondary sources of 
law such as: Constitution of the Federal Republic of Nigeria 1999 (as amended), African Charter 
on Human and Peoples’ Right (Ratification and Enforcement) Act 1983, case laws, scholarly text 
in books and journals. The study finds that there are three variants of derogation from fundamental 
rights. These include: general derogation, specific derogation and derogation arising due to 
emergency situation. While these variants of derogation are applicable in various instances, 
depending on the specific fundamental right in question, they all have constitutional flavour. The 
study concludes that derogation from fundamental rights guards against arbitrariness and is 
essential for the optimal functionality of the society. It is herein contended that derogation should 
be retained in the retained in the statute book to the extent that it does not defeat the essence for 
which the fundamental rights were created in the first instance.