The Environment has been defined as “the physical and cultural spaces in which the human species live, reproduce and die. It consists of the water, the atmosphere, land and all living and non-living things that inhabit these spaces. It goes without saying; therefore, that humankind cannot survive without the environment. Scholars like Laski, see “Rights” as “those conditions of social life without which no man can seek, in general to be himself at his best. It goes without saying that damage to the environment can impair all the “human rights” spoken of in the Universal Declaration of Human Rights and other international human rights instruments.
At present, more than 100 constitutions of the world have made express provisions for the right to a healthful environment or right to an environment free of pollution or in some instances the expression right to a sound ecology may be employed. It is worthy of note, that none of these constitutions or even international human rights instruments have attempted to offer an operational definition of the right to a healthful environment. Also, the inability to provide a widely acceptable definition of the term “Environmental Rights” does not mean it does not exist. This paper seeks to discuss environmental rights, as well as the prospects of the legal enforcement on the right to clean and healthy environment in Nigeria.
2.0 WHAT ARE ENVIRONMENTAL RIGHTS?
Environmental Rights can also be defined as basic rights without which life on earth will be hazardous and indeed, meaningless. It includes right to clean air, clean water, good soil, right to a balanced and healthy ecology, etc. as stated earlier, a number of countries have incorporated environmental rights into their laws, but have violated these rights continually.
Myriam Lorenzen describes environmental rights as inclusive of many right; the right to a clean and safe environment is the most basic one, while others include the right to act to protect the environment as well as the right to information, to access to justice, and to participate in environmental decision making.
The Stockholm Conference of 1972 served as the first platform where issues, as concerning the environment and economic development were discussed, with wide range of participants from both developed and developing nations. The Conference laid the foundation for the emergence of the concept of sustainable development as a satisfactory resolution to the environment versus development dilemma. The Conference led to the establishment of the United Nations Environment Programme (UNEP), as well as several other national environment protection agencies and international meetings that culminated in environmental friendly resolutions and instruments. An important part of the Declaration adopted at the end of the Conference stated in part:
The natural resources of the earth must be safeguarded for the benefit of present and future generations through careful planning or management, and the capacity of the earth to produce vital renewable resources must be maintained and wherever practicable, restored or improved.
Human rights monitoring bodies, and international, regional and national courts, are increasingly recognizing ‘poor environmental quality’ as a causal factor in violations of human rights. The most common examples include pollution of water, soil and air, resulting in violations variously of rights to an adequate standard of living, to adequate food, to water, to adequate housing, to health and to life.
The UN Committee on Economic, Social and Cultural Rights has also clarified that the right to health under Article 12 of the International Covenant on Economic, Social and Cultural Rights extends to the underlying determinants of health, including “a healthy environment”. Nigeria is a party to the Covenant.
The Committee has also clarified that a state’s obligation under Article 12 (2) (b) extends to “the prevention and reduction of the population’s exposure to harmful substances such as harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health”.
The African Charter on Human and Peoples’ Rights (African Charter), to which Nigeria is a party, also recognizes, in Article 24, the right of all peoples to a “general satisfactory environment favourable to their development”. This right is more widely known as the right to a healthy environment.
The African Commission on Human and Peoples’ Rights (African Commission) has stated that Article 24 of the African Charter imposes clear obligations upon a government: “It requires the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources.
The South African constitution, also guarantees the right to a healthy environment to its citizenry by virtue of Article 24, thereof which states that:
Everyone has the right:
a. To an environment that is not harmful to their health or wellbeing; and
b. To have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that
i. Prevent pollution and ecological degradation;
ii. Promote conservation; and
iii. Secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development.
The 1999 Constitution provides for environmental protection as a State objective and indeed provides for it in the Chapter II on Fundamental Objectives and Directive Principle of State Policy. Section 20 expressly contains provision on environmental protection and states as follows:
The State shall protect and improve the environment and safeguard the water, air, land, forest and wildlife in Nigeria.
The protection of the environment is essential for the realization of human rights, as only humans, who enjoy an environment, free of pollution, can enjoy these rights. The right to living in a clean and healthy environment is therefore crucial to the existence of man.
2.1 Nigerian statutes protecting the Right to a healthy Environment
In Nigeria, the legislature has enacted various statutes for the protection of the right to clean and healthy environment in Nigeria. Some of these statutes include:
i. NATIONAL ENVIRONMENTAL STANDARDS AND REGULATION ENFORCEMENT AGENCY (NESREA) ACT 2007
The National Environment Standards and Regulation Enforcement Agency (NESREA) Act of 2007 replaced the Federal Environmental Protection Agency (FEPA) Act. It is an embodiment of laws and regulations which focus on the protection and sustainable development of the environment and its natural resources. The following sections are worth noting:-
• Section 7 provides authority to ensure compliance with environmental laws, local and international, on environmental sanitation and pollution prevention and control through monitory and regulatory measures.
• Section 8 (1)(K) empowers the Agency to make and review regulations on air and water quality, effluent limitations, control of harmful substances and other forms of environmental pollution and sanitation.
ii. HYDROCARBON OIL REFINERIES ACT, CAP H5, LFN 2004.
The Hydrocarbon Oil Refineries Act is concerned with the licensing and control of refining activities. Relevant sections include the following:-
• Section 1 which prohibits unlicensed refining of hydrocarbon oils of any kind in places other than a refinery.
• Section 9 which requires refineries to maintain pollution prevention facilities.
iii. ASSOCIATED GAS RE-INJECTION ACT, CAP 20, LFN 2004.
The Associated Gas Re-Injection Act deals with the gas flaring activities of oil and gas companies in Nigeria. The following sections are relevant to pollution prevention:-
• Section 3 (1) which prohibits, without lawful permission, any oil and gas company from flaring gas in Nigeria.
• Section 4 which stipulates the penalty for breach of permit conditions.
iv. PETROLEUM ACT, CAP P10, LFN 2004.
The Petroleum Act and its Regulations remain the primary legislation on oil and gas activities in Nigeria. It promotes public safety and environmental protection. The following sections are relevant:
• Section 9 (1) (b) provides authority to make regulations on operations for the prevention of air and water pollution.
Apart from the Statutes mentioned above, other laws which also control the right to a healthy environment include: The Environmental Sanitation Law, which focuses on the protection and sanitation of the environment. Also, The Environmental Pollution Law, and many others.
3.0 ENFORCEMENT OF CHAPTER II RIGHTS UNDER THE FUNDAMENTAL OBJECTIVES AND DIRECTIVE PRINCIPLES OF STATE POLICY
Environmental Rights is provided for, by virtue of section 20 of the 1999 Constitution of Nigeria. However, the enforcement of this section of the constitution has been made non-justiciable, by virtue of section 6 (6) (c) of the constitution. A cursory look at the provisions relating to the fundamental objectives and directive principles would reveal the fact that it spans through political, economic, social, educational, foreign policy, environmental, cultural, mass media and ethical objectives including duties of citizens.
The main aim of section 20 is to ensure a healthy environment for Nigerian citizens. The protection of the environment is essential for the realization of human rights because human rights can only be enjoyed in an environment that is free of pollution. However laudable the provision of section 20 in the Constitution, the question is whether an individual or aggrieved person has a right or the locus to approach the court to enforce the provision of section 20. The answer to this provision is provided for in section 6 (6) (c), which states that:
The judicial powers vested in accordance with the foregoing provisions of this section shall not except as otherwise provided by this constitution, extend to any issue or question as to whether any act or omission by any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter II of this constitution.
It thus means that section 6 (6) (c) has denied courts the power to adjudicate on any issue having to do with the enforceability of the provision of section 20 of the Constitution. This provision was interpreted by the court in the case of Okogie (Trustees of Roman Catholic Schools) and Others v Attorney-General of Lagos. The Court of Appeal, considering Chapter II of the Constitution stated that:
“While section 13 of the Constitution makes it a duty and responsibility of the judiciary among other organs of government, to conform to and apply the provisions of Chapter II, section 6 (6) (c) of the same Constitution makes it clear that no court has jurisdiction to pronounce on any decision as to whether any organ of government has acted or is acting in conformity with the Fundamental Objectives and Directive Principles of State Policy. It is clear therefore that section 13 has not made Chapter II of the Constitution justiciable. I am of the opinion that the obligation of the judiciary to observe the provisions of Chapter II is limited to interpreting the general provisions of Constitution or any other statute in such a way that the provisions of the Chapter are observed, but this is subject to the express provisions of the Constitution.”
Commenting on the justification of Section 20 of the 1999 Constitution, Wonika noted:
“Section 20 of the 1999 constitution of the Federal Republic of Nigeria states that, states shall protect and improve the environment and safeguard the water, air, forest and wildlife of Nigeria even at that it is important to note that, this provision as non-justiciable as it forms part of the Fundamental Objectives and Directive Principle of State Policy in chapter II of the constitution the implication of which is that no Nigerian citizen can go to the court to enforce his/her rights in respect of a violation or threatened violation of such provision. The fear of enshrining human and environmental rights in Nigeria is in the possibility of multiplicity of suits against the Federal Government.”
It would therefore appear that a combined reading of section 20 and section 6 (6) (c) of the constitution shows that there is no express provision for the right to a healthy environment. The implication of this is that activities likely to cause environmental devastation and human rights abuse cannot be challenged in court because it is not enforceable.
4.0 LEGAL PROSPECTS OF THE ENFORCEMENT OF A RIGHT TO A HEALTHY ENVIRONMENT
In lieu of recent developments, the right to a clean and healthy environment can be enforced through two main mediums, namely:
i. The African Charter on Human and Peoples’ Rights
ii. Chapter IV of the 1999 Constitution.
4.1 The African Charter on Human and Peoples’ Right
The African Charter on Human and Peoples’ Right was adopted on the 19th of January 1981 by the Organization for African Unity (OAU) (now the African Union). The Charter became part of Nigerian law by virtue of the adoption and domestication as African Charter on Human and Peoples’ Right (Application and Enforcement) Act Cap 10, Laws of Federation of Nigeria 1990.
The adoption and incorporation of the Charter as part of Nigerian law made it a fundamental part of the Nigerian legal system, having full force of law, as well as enforcement. This position has been further solidified by the Supreme Court in the case of Fawehinmi v Abacha, where Ejiwumi JSC noted that:
“The Africa Charter on Human and Peoples’ Rights, having been passed into our municipal law, our domestic courts have certainly has the jurisdiction to construe or apply the treaty. It follows then that anyone who felt that his rights as guaranteed or protected by the Charter, have been violated could well resort to its provisions to obtain redress in our domestic courts.”
The question as to whether Environmental Rights can be justiciable was answered by the court in the case of The Social and Economic Rights Action Center and the Center for Economic, and Social Rights v Federal Republic of Nigeria, provided a broad interpretation of the African Charter to incorporate the protection of environment. In this case, the petitioners filed a complaint alleging series of violations of human rights of the Ogoni people. The communication alleged that the Military Government of Nigeria had been directly involved in irresponsible oil development practices in the Ogoni region. In particular, the complaint decried the widespread contamination of soil, water and air; the destruction of homes; the burning of crops and killing of farm animals; and the climate of terror the Ogoni communities had been suffering of, in violation of their rights to health, a healthy environment, housing and food. In terms of the African Charter, these allegations included violations of Articles 2 (non-discriminatory enjoyment of rights), 4 (right to life), 14 (right to property), 16 (right to health), 18 (family rights), 21 (right of peoples to freely dispose of their wealth and natural resources) and 24 (right of peoples to a satisfactory environment).
The Commission found the Nigerian Government and Multinational oil companies to have violated the rights of the people of Ogoni land to access clean water, food, good health and to adequate standard of living. The commission held that: “pollution and environmental degradation to a level humanly unacceptable has made living in Ogoni land a nightmare.”
The Court in this case, showed through its broad interpretation, that the Charter protects the right to a healthy environment of citizens, as being one of the essential aspects of human rights. It also provides an obligation to the government to protect an individual’s right to a healthy environment and also provide for positive activities meant to prevent endangerment of human life.
4.2 Chapter IV of the 1999 Constitution
Chapter IV of the 1999 Constitution also serves as another way of protecting the right to a healthy environment. The Constitution provides a number of rights from which the right to a healthy environment can be derived. Some of which include: The right to life, the right to freedom from discrimination, the right to equality, among others. Thus, courts of various jurisdictions have made use of these rights to enforce and ensure the protection of a clean and healthy environment.
In 2005, the court, in the case of Jonah Gbemre v. Shell Petroleum Development Company of Nigeria Limited, for the first time ever was able to read meaning from the right to life into the right to be free from pollution or activities likely to endanger life.
In this case, Mr. Gbemre in a representative capacity instituted this action for himself and for each and every member of the Iwehereken community in Delta Sate Nigeria against Shell Nigeria, Nigerian National Petroleum Corporation (NNPC) and the Attorney General of the Federation. The Applicants sought amongst other things a declaration that actions of the defendants violate their rights to life and the right to the dignity of their persons and to enjoy the best attainable state of physical and mental health as well as right to a general satisfactory environment favorable to their development.
The court declared that the actions of Shell in continuing to flare gas in the course of their oil exploration and production activities in the applicant’s community is a violation of their fundamental right to life (including healthy environment) and dignity of human persons guaranteed by the Constitution and the African Charter. The court further declared that Shell Nigeria and NNPC were to be restrained from further flaring of gas in the applicant’s community and were to take instantaneous measures to end the further flaring of gas in the applicant’s community.
Also, in the case of Ijaw Aborigines of Bayelsa State v. Shell, the plaintiffs sought an order of the Federal High Court to enforce a payment of US $1.5 billion that Nigeria’s Parliament ordered the company to pay as damages for pollution caused to the plaintiffs. The Court held that Shell was bound to pay the sum and ordered that the company deposit the judgment sum of US $1.5 billion with the Central Bank of Nigeria in the name of the Chief Registrar of the Federal High Court.
The decision of the court in the Gbemre case shows that Nigerian courts have started accepting the fact that fundamental human rights can be infringed on by environmental gas flaring. It also shows that issues concerning environmental rights can be brought under the purview of human rights.
In conclusion, apart from the non-justiciability of Chapter II of the Constitution, another probable reason for the non-enforcement of these rights by the courts is usually down to political reasons, as seen in the unreported case of Allan Ibru v Shell BP, where the judge stated in his opinion that nothing should be done to disturb the operation of trade (i.e. mineral oil) which is the main source of Nigeria’s wealth. However, the recent decisions of the courts, and the broad interpretation of the African Charter and Chapter IV of the 1999 Constitution shows that Environmental rights can now be enforced in Nigeria, under both statutory provisions.
Toba Eribake writes for Lawyard and is an undergraduate of the the Faculty of Law, University of Lagos.