Derogation of Human Rights During Proclamation of State of Emergency Under The 1999 Nigerian Constitution

Abstract

The protection of fundamental human rights is a major requirement of constitutional democracy in Nigeria. Nonetheless, extraordinary circumstances such as war, insurgency, or widespread breakdown of public order may necessitate the temporary restriction of certain rights. The aim of this paper is to discuss the derogation of human rights during the proclamation of State of emergency under the Nigerian Constitution. It is the argument of the paper that the entire system of the legal regulation of emergency is aimed at providing measures to protect and assure the human rights and citizens’ rights when they are in one or more localities or the whole country faced with war, imminent danger of invasion, actual breakdown of public order and public safety threatening the lives, health and property of the citizens. It further argues that although emergency powers are necessary for maintaining national security and public order, their existence must be subject to constitutional limits, legislative oversight and judicial review. The paper reveals that the constitutional provisions abrogating or restricting human rights and civil rights in certain cases relate to national defence, national security, social order and safety, social morality and community health. The paper adopts the doctrinal methodology. In applying this methodology, the paper draws upon primary sources, including the Constitution of the Federal Republic of Nigeria 1999 (as amended), particularly sections 305 and 45, the fundamental rights provisions contained in Chapter IV, judicial decisions of Nigerian courts, and relevant international instruments such as the International Covenant on Civil and Political Rights 1966 and the African Charter on Human and Peoples' Rights 1981. These are complemented by secondary sources comprising scholarly monographs, journal articles, and commentaries that engage with the theoretical foundations of human rights and the jurisprudence of emergency powers. It is the conclusion of the paper that emergency constitutional provisions are necessary because they enable the state to respond effectively to crises while keeping the exercise of emergency powers within the rule of law and human rights framework. Derogation of human rights during a state of emergency in Nigeria is constitutionally limited but strictly regulated. It recommends that the provisions governing emergency powers under the Nigerian Constitution should be strengthened to clearly define the scope and limits of derogation of fundamental rights during a state of emergency.

Keywords: Derogation, Constitution, Human rights, Proclamation, State of emergency

DOI: 10.7176/JLPG/151-05

Publication date: April 28^th 2026