ENFORCEMENT OF HUMAN RIGHTS NORMS IN ENVIRONMENTAL PROTECTION IN NIGERIA

ABSTRACT

This   research   work   examined   the   enforceability   of   human   rights   norms   in environmental protection. And critically reviews the functionality of human rights law in environmental protection and how it can be made to drive enforceability in order to reduce the impact of environmental stressors.  The work treats the legal literature and theory of Environmental  law and  Human  rights  –and   factors  of enforcement  of human rights law in Nigeria .It establishes that several theories have emerged, and a plethora of them have considered environmental human rights to be those rights that are within the  realm  of  non-  derogablerights.  Making  reference  to  the  impact  of international law stressors such as sovereignty, requirement of municipal ratification with particular reference to section 12 of 1999 Constitution of  the Federal Republic of Nigeria  as amended  and the conservative  and narrow interpretations  of human rights   law  provisions  that  stress  the  enforceability  of  human  rights  norms  in environmental   protection,   the  paper   surveys   and   maintains   a  well-   balanced assessment of specific instruments such as, in the global setting, the United Nations Declaration on the Right to Development (1986), the United Nations Charter (1945)”, among others; and in the regional setting, the African Charter on Human and Peoples Rights (1981) as domesticated in Nigeria by Cap.10 LFN 1983 and subsequently by Cap    A9    LFN    2004    among    others,    and    significantly,    the    Fundamental Rights(Enforcement Procedure) Rules (2009) and the 1999 Constitution of the Federal Republic of Nigeria  as amended, including their policy consciousness, functionality and limitations. The key question that needs an answer is whether and to what extent Nigerian  law  guarantees  applicability  of  human  rights  norms  in  environmental protection?  In an attempt to answer this question, weexamined  the extent to which domestic  laws reflect the aspirations of globalenvironmental  norms and means  by which   they   are   structured.   The   problem   is   settled   with   an   answer   to   a fundamentalquestion.  First, to what level of enforceability are the policies emanating from these non- derogable laws, directly and practically implemented and applicable in Nigeria? This study therefore discovers that even with the applicability of African Charter on Human and Peoples Rightsamongst other associated lawswhich have been enhanced  by the  provisions  of  the  Fundamental  Rights  (Enforcement  Procedure) Rules             (2009),              compliance  to,  and  enforcement ofenvironmentalrightsinNigeriaremainschallenging.

CHAPTER ONE GENERAL INTRODUCTION

1.1       Background of the Research

The importance of observing human rights in any legal system and its significance cannot be overemphasized.  Notably, one of the lessons of  globalization and the new international economic order is the increasing awareness that the enforcement of human rights is a cornerstone  in the  realization  of sustainable  development, nationally and internationally.  To this end, looking at the concept and nature of sustainable development, and what it professes, the importance of a legal system lies not only in ensuring civil liberties but in addition creating a viable environment where economic development and social equity can be enjoyed.

Nigeria  has  ratified  plethora  of human  rights  treaties  that  seek  to  set  globally applied  standards.  Some  of these  standards,  especially  in recent  times  are  not limited to civil liberty domain rather they serve as prelude to the realization of both socio-economic, cultural and solidarity rights which make room for the realization of sustainable development .  These rights in essence  form the new international economic and legal order and thus emerges the concept of sustainable development which “environmental law’’ seeks to promote.

Within  the  context  of  environmental  law  however,  are  the  ontological  and historical  dimensions.  These  dimensions  depict  a  mother-child  correlation  or evolution  theory.  It  is  established  that  human  rights  of  the  second  and  third generations which of course, are developed from that of the first generation, all as reminiscent of natural law, are now being codified with minimum standards. These standards areraised by international law and made tangible by municipal law. Thus, emerges the consciousness that there are environmental rights, such as the right to a clean and healthy environment, the right to development, the right to participate in the developmental and  approval process, the right to environmental  information, the right to compensation and the right of access to justice.  They are however, the corollaries of the right to life.

In  addition  to  this  development,  in  2012,  the  United  Nations  Environment Programme (UNEP) and the United Nations Office of the High Commissioner for Human Rights (OHCHR) have strengthened their collaboration in the field of the

nexus  between  human  rights  and  environmental  protection  during  the  United Nations  conference  on  sustainable  development.  In  the  same  year,  the  United Nations  Human  Rights  Council  as part  of  its  special  procedures  appointed  an Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment and appointed Professor Knox to this position. In line with his appointment as an Independent Expert and as a part of his obligation,  in  2014,  at  the  regional  level,  a   consultation  was  made  by  the Independent Expert on the constitution of  environmental rights at Johannesburg, South Africa. The consultation was convened by the United Nations Independent Expert on human  rights and  environment  and the United  Nations  Environment

Programme(UNEP) and the legal Resource Centre (LPC).1

This studytherefore analyzes the standard of observation of environmental rights in Nigeria,  and challenges  of enforceability  in order to develop  animproved  legal framework for applicability of environmental rights in Nigeria. We would seek to determine  to what extent  Nigerian  legal system  implements  and enforces  these natural law rights.

1.2       Statement of Problem

There has been much concern by Nigerian citizens and advocacy groups who have raised issues and cast aspersion on the environmental  impasseand  thereaction of people towards corporate attitude in curbing environmental hazards resulting from industrial activities.A recent report by the United Nations EnvironmentProgramme (UNEP) on the pollution of environment in the Niger-Delta area of Nigeria, as well as the serial conflicts between host communities, federal agencies and the industrial community,  illustrates  a lucid  account  of human rights problems  in relation to

environmental protection. This looms large in the oil and gas industry2. In addition,

1See details at UNEP Compendium on Human Rights and the Environment. Selected International Legal Materials and Cases. Centre for International Environmental Law (CIEL) 2014. Prof Knox was appointed originally as an Independent  Expert but on March 26,2015 by a resolution by consensus adopted by the Human Rights Council, his title was changed  from an Independent Expert to a Special Rapporteur.Sequel to this change, his mandate was renewed for another three years until March 2018.

2UNEP, Report of the United Nations Pollution of the Niger Delta (UNNC Doc at NC, 2011); H.I.

Inyang, “Environmental Pollution of the Niger Delta: Challenges and Solutions”,(Materials of the Senate Committee on Environment and Ecology) a keynote lecture at the Joint Biannual Intersectoral Summit on Niger Delta Environment Economic Development and Human Rights, organized by the Senate Committee on Environment and Ecology, Federal Republic of Nigeria, International Society of Environmental Geotechnology, Washington D.C., USA and International Institute for Humanitarian and Environmental Law, (Nigeria: Port Harcourt,Dec.2010).

the Report by the United States Department of States (2006) indicates that Nigeria has had a very alarming human rights violation record. The report listed amongst others, environmental related human rights violation.

The  impact  of  environmental  degradation  on  humans  and  how  such  impact constitutes   violation   of  human  rights   has  since  been  established.   The  US Department Report did also state that human rights conditions in Nigeria and the control measure are below the minimum standards of universal norms  particularly that of International Bill of Rights, including the African Charter on Human and

Peoples Rights3. Unfortunately, the access to justice in environmental litigation in

Nigeria is not applauded.  Reasons being that the enforcement  of  environmental rights is faced with challenges of establishing the linkage between human rights and  environmental  protection,  procedural  and   technical  problems  caused  by judicial attitude among other associated  problems.The  problem of enforceability ofenvironmental rights posed by lack of knowledge of environmentalrights norms is indeed, a problem which this paper aspires to solve.

Several theories and jurisprudence have consideredenvironmental rights among the rights  that  fall  within  the  domain  of  non-derogable  law.  It  is  undeniable  that hazards posed by environmental  degradation  constitute one  of  the most heinous human  rights  violations  and  it  is  dimensional.   Itcenters  within  the  web  of environmental  crisis.  Our crucial  findings  arethat  environmental  rightsnorms  in Nigeria need a reform to function effectively and legislative and judicial actions are needed to introduce and activate such reform.

1.3        Objectives of Study

The objectives of the present study are:

      To examine  the enforceability  of human rights norms in  environmental protection in Nigeria.

    To identify international  human rights standards and the complementary

municipal laws in Nigeria.

3 US Department of State, Country Report on Human Rights Practices, 2006 (Washington DC Bureau for Democracy Human Rights and Labour 2006).

      To  identify  domestic  mechanisms  for  upholding  the  enforcement   of environmental rights

      To  appraise  the  effectiveness  of domestic  mechanisms  with  a  view  to making recommendations  which include enforcement mechanisms of the rights so identified.

1.4       Scope and Limitation of Study

This study on human rights standards is not a general work on human rights.  It strictly focuses on the subject matter of enforceability of human rights  norms in environmental protection in Nigeria. This work therefore critically researches and evaluates environmental rights. It does not deal with the rights of everybody who finds oneself embroiled in the criminal justice system. Accordingly, the subjects of “accused person’s rights” and “protection of witnesses” are not part of this work. It does  not  also  cover  the  work  of  private  initiatives  and  contributions  of  non- governmental organizations. Another area that this work does not also cover is the human rights institutions such as the National Human Rights Commission and the oversight role of the National Assembly and States Assemblies. These areas need further research.

1.5       Research Methodology

We adopted a doctrinal research methodology for this research.  The study therefore placed huge reliance on secondary source materials  namely:  case  laws,  textbooks, journal articles, conference papers, internet and other legal literature were utilized.

1.6       Research Questions

1.   What is the ontological nature as well as the nexus of human rights and  the environment?

2.   To what extent does Nigerian law guarantee the enforceability of human rights norms in environmental protection?

3.   To  what  level  of  enforceability  arethe  rules  emanating  from  human  rights norms  in  environmental  protection  directly  and  practically  enforceable  in Nigeria?

4.   To what extent can human rights norms be used to enhance the advancement of environmental human rights in Nigeria?

1.7       Literature Review

Human rights and environmental  protection  have been extensively discussed  in existing literature, from both international and domestic legal perspectives. DanfebboDerrihas identified that in some jurisdictions environmental matters such as oil and gas pollution are strictly regarded as human rights matters and are treated as such. But referring to Section 6(6) (c) of the 1999 Constitution of Nigeria, he pointedly  emphasizes  that  such  matters  in  Nigeria  are  merely  considered  as

objectives  of  government  and  are  non-justiciable4.Danfebbo’s  argument  is  one

sided  because  he  failed   to  mention  the  fact  that  the  Fundamental   Rights (Enforcement  Procedure  Rules)  2009  together  with  the  African  Charter  have created access to justice in environmental litigation. In other words, he should have paid less attention  to section 6 (6) (c) of the 1999  Constitution  which restricts access to justice.

In Nwabuokwu’sview5, environmental human rights appear to be the right word for categorizing  standards  and norms of human rights in this dimension.  Those  rights though used interchangeably as countable and uncountable terms,  represent  a class interest,  or  community  concern.  To  say that  environment  has  a right  might  be a misconceived statement. But to say that human beings have a right to a clean, safe, sound  and  healthy environment  constitutes  a correct  expression  of  environmental human rights.Nwabuokwu’s view is narrow because his major concern was to identify the rights without addressing the issue of enforceability.

Ladan’s6  paper on “Access to Environmental Justice in Oil Pollution and Gas Flaring Cases as a Human  Right Issue in Nigeria”has  a significant  and  inevitable  role in seeing  that  statutory  mechanisms  for  the  enforcement  of  human  rights  become

tangible machinery of law. He noted as follows:

4D. K. Derri, “Litigation Problems in Compensation Claims for Oil and Gas Operations in Nigeria’’, in Festus Emiri and Gowon Deinjuomo, Law and Petroleum Industry in Nigeria – Current Challenges (Malthouse Law Books, 2009) p. 30 .

5  I. Nwabuokwu, “The Role of International Law in the Development of Environmental Protection”,

Ibid. p.339.

6M.T. Ladan, “Access to Environmental Justice in Oil Pollution and gas Flaring Cases as a Human Rights Issue in Nigeria”. A paper presented at a training workshop for Federal Ministry of Justice lawyers organized by the Institute for Oil and Gas Law Abuja, November 2011.

The strongest argument for a human right to theEnvironment focuses not  environmental quality,but  on  Procedural rights including access to justice amongothers in environmental matters.…the main advantage of focusing on procedural rights like access toEffective justice is that it enables individuals and NGO’s to enforce

Domestic  environmental  laws  that  may help  them  shape  domestic  Environmental policy.Ladan   was  right   in  adding  that  the  Fundamental   Rights  (Enforcement Procedure  Rules)  2009  has  brought  a  latest  trend  on  the  liberalization  of  Locus standi.However, He gave less attention to the salient provisions of the African Charter on environmental rights.

Amechi in his article noted that the Fundamental   Rights( Enforcement  Procedure) Rules  is  a  welcome  development  in  promoting  access  to  court  for  victims  of environmental degradation in Nigeria. He further asserted that the African Charter by virtue of domestication has force of law and forms part of existing legislation, but he added  that Article 24 of the African  Charter  on the  “right to general  satisfactory environment  necessary  for  development”  is  subject  to  chapter  four  of  the  1999

Constitution of the Federal Republic of Nigeria 7.we do not agree with him because he

failed to mention the fact that the African Charter has constitutional flavor.

Abddulkadir and Sambo while examining human rights and environmental protection accepted the linkage between the two concepts. They went further to  posit that the

1999 Constitution of the Federal Republic of Nigeria made a remarkable achievement by providing for environmental protection but added that section 6 (6) (c) of the 1999

Constitution of the Federal Republic of Nigeria divests the said section 20 of  any enforceability8. Their view that the 1999 Constitution does not expressly provide for the right to clean and healthy environment is correct but they failed to realize the fact that by implication, the right to a clean environment is a corollary of the right to life

provided under section 36 of the same Constitution. In other words, the right to life also connotes the right to live in a clean and safe environment; it is for our judiciary to

liberally adopt same.

7E.PAmechi, “Litigating Right to Healthy Environment in Nigeria:An Examination of the Impacts of the Fundamental Rights ( Enforcement Procedure) Rules 2009,in Ensuring Access to  Justice for Victims of Environmental Degradation”, Law, Environment and Development Journal, 2010,pp 322-

332.

8A.BAbdulakadir and A.OSambo, “Human Rights and Environmental Protection: The Nigerian constitution Examined”. Nigerian Constitution Examined”. Nigerian Journal of Food and Drug law, vol.2 2009, pp.61-73.

Ijaiya and Joseph in their article reviewed the challenges facing the enforcement of environmental rights in Nigeria to include funding, corruption, bad  governance and low level constitutional  provisions9   .In addition,  they reiterated  the same  view as Abdulkadir above by referring to section 20 of the 1999 constitution as few provisions on environmental right to a clean environment in Nigeria, which we have highlighted

that the said section has not added any value to the enforceability of environmental rights in Nigeria.Musa and Bappah on their part properly analyzed  the relationship between human rights and the environment but added  that an attempt made by the Nigerian  Constitution  under  section  20  of  the  1999  Constitution  is  faced  with

enforceability problem10. Thus they failed to proffer enforcement solutions.

MaheshwaraSwamy,   succinctly   dedicated   Chapter   Three   of   his   textbook   on environmental  Law  in  addressing  the  notion  of  fundamental  human  rights  and environmental value system in a jurisprudential context. He has based his research on Indian jurisprudence and international law of human rights and the environment. Case law  and  theories  adduced  by Swamy  testify to  the  functionality  and,  indeed  the inexorable linkage of human rights, sustainable development and the environment.11

This  of  course,  has  been  corroborated   by  the  Principle  1  of  the   Stockholm

Declaration12  and Principle 4 of the Rio Declaration.13

Principle 1 of the Stockholm Declaration providesMan has the fundamental rights to freedom, equality and adequate conditions of life, in an environmentof equality that permits a life of dignity and well- being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. In this respect , policies promoting  or  perpetuating  apartheid  ,  racial  segregation, discrimination, colonial or other forms of oppression and foreign domination stand condemned and must be eliminated’’.

9H.Ijaiya and O.T. Joseph, “ Rethinking Environmental law Enforcement in Nigeria”, Beijing law

Review,2014,pp.306-321.

10A.Musa and H.YBappah, “Issues and Challenges on Environmental Rights: Nigerian Experience” , American International Journal of Science,vol.3,No 5,October,pp.143-144.

11 N. Swamy, Textbook on Environmental Law (Hyderabad: Asian Law House, 2004) p. 45-48.

12United Nations Conference on Human Environment (1972) U.N. Doc.A/.CONF.48/14/Rev.1 at 3 (1973).

13   United Nations Conference on Environment and Development held at Rio de Jainero from June 3-

14, 1992 which reaffirmed the United Nations Conference on Human Environment (the Stockholm

Declaration).

Principle 4 of the Rio Declaration on its part stipulates thus: “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’’.

Assessing the Rio principles, Principles 4 and 25 display the inexorable affinity of human  rights  and  the  environment  as  fundamental  constituents   of   sustainable development.      Principle   25  particularly   states   that   ‘Peace,   development   and environmental   protection   are   interdependent   and   indivisible.     This   isaccurate inbuttressing the notion that indivisibility of human rights is to be precise, a universal sanctity  that  touches  all facets of human  life,  including  the  economic  and  social aspects of human existence.   As David Kinsley puts it, “human rights must embrace the power of the global economy, while insisting that it’s power is harnessed so as to promote  the  goals  of   human  rights”.  Kinsley’s  view  stresses  that  despite  the significance of environmental resources and economic development, the global policy view  is  that  concern  for the overall  goals  of human  rights  must be a paramount

consideration.14Salaza-Duran  while assessing the concept of the ‘right to a  healthy

environment’ is emphatic that recognizing environment as human rights will change the  adjudication  of  environmental  cases,  mechanisms  and  remedies  available  for environmental rights claims. He explains how human rights approach provides a more resourceful  means  of  achieving  compensation  for  victims  of  environmental  law

violations.15MalgosiaFizmaurice   and  Jill  Marshall  on  their  part  have   presented

interesting arguments juxtaposing the idea of the right to a clean environment. While examining the jurisprudence of the European Court of Human Rights to demonstrate how the court has balanced rights and interest, they adduce a number of interesting ideologies such as thesignificance of the right to a clean environment, the difficulty

accompanying such legal notion and what could be done to make it tangible.16

Richard Hiskes argues that in order to sustain formidable human rights standards, the right to clean air, water, and soil should be seen as environmental human rights of

both the present and future generations.  He presents novel conceptualizations that are

14D. Kinley, Civilizing Globalisation (London: Cambridge University Press 2009), p. 9.

15O.  Slazar-Duran  “A  Human  Rights  Approach  to  Corporate  Environmental  Accountability and

Environmental Litigation’’ ( 2008-2009) 43 USFL Rev., 733.

16     M. Fizmaurice and J. Marshall “The Human Rights to a Clean Environment – A Phantom or

Reality’’? (2007) 76 NJIL, 103-151.

central to human rights and environmental justice.17   Suffice it to add that these novel issues are emerging human rights of the third and forth generations.   Klaus Toepfer, Executive  Director  of the  United  Nations  Environment  Programme,  reflected  this approach  in his statement  in 2001.18      He  submitted  that  human  rights  cannot  be secured in a degraded or polluted environment. That the fundamental right to life is threatened by soil degradation and deforestation and by exposures to toxic chemicals,

hazardous wastes and contaminated  drinking water.   He argued that  environmental conditions  clearly help in determining  the extent  to which  people enjoytheir  basic right to life, health, adequate food and housing, and traditional livelihood and culture. He emphasized  that it was timeto recognize  that those who pollute or destroy the natural environment are not just committing a crime against nature, but are violating human rights as well.

Dinah Shelton, while lecturing on the approach-categorization of human rights, posits that  systemic  standards  of  human  rights  or  the  right-based  systems  have  since developed.      Commenting   on   the   right-based   approach,   she   posits   that   the secondrights-based    approach,    most    common    in    international    environmental agreements since 1992, is also instrumentalist, but instead of viewing environmental protection  as an essential  element  of human  rights,  Shelton  views  certain  human rights as essential  elements  to  achieving  environmental  protection,  which  has the principal aim of protecting human  health. According to her, this approach is well- illustrated by the Rio Declaration on Environment and Development, adopted at the conclusion   of  the   1992   Conference   of  Rio  de  Janeiro   on  Environment   and Development. Shelton believes that this formulates a link between human rights and environmental protection largely in procedural terms. Thus, Shelton makes reference to  Principle  10  of  Rio  Declaration   above,  that  access  to   information,   public participation and access to effective judicial and administrative proceedings, including redress  and  remedy,  should  be  guaranteed  because  environmental  issues  are  best handled  with the participation  of all  concerned  citizens,  at the relevant  level. She proves this further by showing  that  these procedural rights contained  in all human

rights  instruments,  are  adopted  in  environmental  texts  in  order  to  have  better

17  R.P. Hiskes‘The Human Rights to a Green Future: Environmental Rights and the Intergenerational

Justice’ (London: CUP, 2009).

18Klaus Toepfer, Official Statement to the 57th Session of the Commission on Human Rights in (2001).

environmental decision-making  and enforcement.  Shelton affirms that the third  and most recent approach views the link as indivisible and inseparable and thus posits the right to a safe and healthy environment as an independent substantive human right. She further states that examples of these are found mainly in international law and in

regional human rights and environmental treaties.19

A.E. Anthony advanced strong support for tangibility of collective human rights  in Africa. He canvassed for dismissal of any thought that certain categories of  human rights were still phantom, and not practically enforceable. Anthony’s analysis of the culture and practice of the African Human Rights Courts with its abundant challenges do not in effect, remove the uniqueness of human rights law, but rather, the system is

amplifying its potency as the law continues to develop.20

Odinkalu has arguably submitted that “the mechanism of the African Charter is not the altogether hopeless beast caricatured by the literature,” and takes a position that the real problem lies in addressing the effectiveness of the system, and preaching for a reform process or forum that is not so state-centred.21This is of course borne out by

the African Human Rights Commission’s case work which has reached an advanced stage. In the SERAC Decision, the Commission holds as follows:

The uniqueness  of the African situation and the special qualities of

the   AfricanCharter   impose   upon   the   African   Commission   an important    task.   International    law   andhuman   rights    must   be responsive   to  African   circumstances.   Clearly,   collective   rights, environmental  rights,  and economic  and social  rights  are essential elements  of humanrights  in Africa.  The  African  Commission  will apply any of the diverse rights  containedin  the African Charter.  It welcomes this opportunity to make clear that there is no rightin the African Charter that cannot be made effective.22

Analysing the standards of human rights, Alan Boyle has argued that ‘environmental rights can be viewed from at least three perspectives,  looking at  the legal stratum.

19D. Shelton, “Human Rights, Health and Environmental Protection: Linkages in Law and Practice’’ (1

WHO’s Health and Human Rights Working Paper Series, 2002) p. 4.

20 A.  Anthony “Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa” (1997) 32

TexasInternational Law Journal, 511.

21 C.A.  Odinkalu “The Role of Case and Complaints Procedures in the Reformof the African Regional Human Rights System” (, 2001) 2 African Human Rights Law Journal 225;   C.AOdinkalu, “Implementing Economic, Social and Cultural Rights”. In M. Evans, and R. Murray (Eds).The African Charter on Human and Peoples, (2002).

22155/96 Social and Economic Rights Action Centre (SERAC) and the Centre for Economicand Social

Rights v Nigeria, 15th Annual Activity Report [in Decisions 2002–2007,IHRDA,  Banjul  2008, pp.277–293, para. 68. seeD. Shelton, op. cit, 225.

First, existing civil and political rights can be used to give individuals, groups and NGOs access to environmental information, judicial remedies and political processes. Legal rights exist to empower  them for facilitating  participation  in  environmental decision-making   and  compelling   governments   to  meet   minimum   standards   of protection for life, private life and property from environmental harm.  He places the second perspective as legal elements that are deployed to treat a decent, healthy or sound  environment  as  an  economic  or  social  right,  comparable  to  those  whose progressive attainment is promoted by the 1966 UN Covenant on Economic Social and  Cultural  Rights.     According  to  him,  the  third  option  is  the  treatment  of environmental   quality  as  a   collective   or  solidarity  right,   giving  communities (‘peoples’) a right to determine how their environment and natural resources should

be protected and managed’.23

While   working   on   this   approach,   seeking   to   ensure   the   enforceability   of environmental human rights, E. Brown Weis and D. Shelton have advanced the view that  tend  to  support  the  UN  Sub-committee  on Human  Rights  objective  towards enhanced status of environmental quality balanced against competing objectives and recognising  the  vital  character  of  the  environment  as  a  basic  condition  of  life, indispensable to the promotion of human dignity and welfare, and to the fulfilment of

other human rights.24

A. E. Ogbuigwe25  while writing on the legal and institutional aspects of flood crisis in the Niger Delta  holds that flooding,  when allowed  to happen, constitutes an  utter threat to life and property – terms which are reminiscent of human rights  violation. Jennifer  Cassel’s view seems to contemplate  the continual existence  of  procedural problems affecting the enforceability of human rights. She submits that in spite of the clear  link between  environmental  harm  and  human  rights  violations,  international human rights  law which contemplates  environmental  destruction  as a violation  of human   rights   has   only  recently   begun   to   emerge,   and   clear   definitions   of

environmental human rights have yet to take its rightful and solidified place in most

23   A. Boyle ‘Human Rights and the Environment: A Reassessment’ (2008) 18 Fordham Environmental

Law Review 471-511 expanded in UNEP Paper Revised, 2010.

24E. Brown Weiss, Environmental Change and International Law (Tokyo, 1993) 8; D. Shelton, Human Rights, Environmental Rights and the Right to Environment, (1991) 28 Stanford JIL 103. In A. Boyle, ibid at 11.

25A. Ogbuigwe, Flooding in the Niger Delta: Legal and Institutional Issues’ ( 1998) 1 JCPPL, 70.

procedural jurisdictions.   Cassel elaborately explains, in a most comprehensible and less-clumsy  languages,  the connection  between  environmental  damage  and  human rights.  Cassel submitted that:

The  connection  between  environmental  damage  and  human  rights would seem to be self-apparent. When air is polluted by toxic fumes, people  who  breathe  those  fumes  are  injured,  perhaps  even  killed. When water becomes contaminated, people who drink that water may become  sick,  and  pregnant   women  who  drink  it  may  pass  the contaminants on to their unborn babies. When climate change leads to the melting of the polar caps at previously unheard of rates, peoples that, for millennia, have built their cultures atop that polar ice are left to sink,  along  with  the seals,  penguins,  and polar  bears  that  have nourished   them   for   generations.   In   sum,   anytime   the   natural environment is seriously harmed, people that depend on that harmed

environment are inevitably harmed aswell.26

With  particular  attention  to  Nigeria,  Emmanuel  Onyeabor27while  appraising  the relationship  between  the  protection  of  environment  and  the  promotion  of  human rights within the 1999 Constitution of Nigeria affirms that, by the context of Nigerian Constitution,  environmental  rights are  human rights.  He submits  thathuman  rights standards  for  environmental  wellbeing  are  linked  to  the  constitutional  objectives. Citing Section 20 of the 1999 Constitution28  as recognizing the right of the citizens to

a  clean   environment,   he   also   regrets   that   the   non-justiciability   of  the   said constitutional provision is one of the fundamental challenges of environmental human rights enforcement  in Nigeria.  His  view  is that  the directive  principles  which the provisions   fall  into,  do  not  give  a  procedural   guarantee   for   enforcement   of environmental  human  rights  law  in  Nigeria.  According  to  the  1979  Constitution

Drafting Committee,29  by ‘fundamental principles, they refer to identification to the

ultimate objectives of the nation whilst directive principles of state policy indicate the paths which lead to those objectives. Being that the same Constitution by Section 6(6) (c) erodes the power of courts to question the compliance of  government’s actions with Chapter II of the Constitution, this means that environmental human rights law in the context of Nigerian Constitution is not judicially enforceable, except giving such

potency  by  judicial  activism  which  might  choose  to  invoke  the  provisions  of

26 J. Cassel“ Enforcing Environmental Human Rights: Selected Strategies of US NGOs’ (, 2007) 6 NW. U. J. Int’l Hum. Rts 104.

27E. Onyeabor ‘’Addressing Pitfalls in Environmental Protection Law in the Oil Sector for Effective

Human Rights Protection’’ (2005) 4 EPLR 13-14.

28Under Chapter II of the 1999 Constitution of the Federal Republic of Nigeria as amended.

29Report of the CDC Vol. 1, cited in B. Okere, Fundamental Objectives  and Directive Principles of

State Policy under the Nigerian Constitution 1979-1988 (3 Nig. J.R) 74, in E. Onyeabor, op.cit.p.14.

international   law,   such   as   the   African   Charter.   This   actually   has   informed Onyeabor’sview  that even though those objectives  under Chapter  II  are judicially non-justiciable,  it does not divest them of all legal value.30  He  also listed the key problems of environmental human rights enforcement in Nigeria as including: defence

mechanisms in environmental and petroleum legislation, weak compensatory regimes, sanctions mechanisms in environmental and petroleum legislation,  locus standi and jurisdiction  problems,  and thus advocates  for judicial  activism, lessening  of strict application of locus standi, and streamlining of jurisdictional issues which could assist in the removal of obstacles to environmental  human rightsenforcement. In our view, these obstacles have been  obviated by virtue of the provisions of the Fundamental Rights  (Enforcement  Procedure  Rules  and  the  African  Charter.  In a similar  vein, Professor AL  swellMuzan whilst examining the complex jurisdictional problems in determining  remedies   for  petroleum  based  environmental   pollution  stated   that Nigerian laws as well as international law recognize a broad range of procedural and substantive remedies available to parties both within domestic Nigerian Courts and in international fora.  He however, recognizes that the implications of jurisdiction, both in narrower and broader perspectives as it  relates to the problems of pollution and

relevant  petroleum  legislation  are  far-reaching  and  complex.31   On  environmental

human rights litigation affected by jurisdictional exclusivity,F.T. Okorotie has opined that the constitutional conferment of exclusive jurisdiction on the Federal High Court with respect to environmental causes pertaining to the oil industry,  or  oil pollution claims has invariably denied those affected access to justice in a very subtle way. In Okorotie’s words, those directly affected by the impacts of oil pollution are indigenes of local communities who do not usually have the  financial resources to travel far through bad roads to attend court sittings  besides high cost of filing papers at the Federal High court.  Okorotie’s view is that these jurisdictional restraints are directly affecting the enforcement of human  rights of most affected citizens and vitiate the international human rights norms, thus advocating for reform that can suit the realities of every citizen’s situation.  The belief is that since law is an instrument  of social

engineering, it should be designed to take care of these realities.32

30Ibid, 14.

31A.  O.  Muzan,  “Jurisdictional Competence and  Remedies  in  Environmental Causes  Relating  to

Petroleum Operations in Nigeria’’, 2005) ((4 EPLR (5) 33-34.

32F. T. Okorotie“Jurisdiction of the Federal High Court Over Oil Pollution and Fundamental Human

Rights matters’’ (2005)3 EPLR [4], 33-34.

In F.O. Akaakar’s perspective,33  whilst comparing the case ofF.B. Farah and ors. v ShellPetroleum Development Company of Nigeria Ltd34 with Rylands v. Fletcher,35  he submitted that Farah’s case demonstrates among other things the deleterious effects of

pollution, such as oil spillages resulting from oil blow out and how  compensation, which  of  course  is  a  fundamental  component  of  environmental    rights,  is  never enough to heal the injury of human rights violation.Shealso suggested an immediate clean up so that if possible, there can be a return to  status quo ante. Her view was

succinctly  corroborated  by AmechiUchegbu,36    who  advocated  for  a  clear  policy

towards the area of pollution and adequate quantum of compensation as the remedy needed to sustain the fundamental standards of human rights.

C.AOmaka37  noted the imperativeness of inserting environmental rights expressly in our Constitution but asserted pointedly that Section 20 of the 1999 Constitution of the Federal  Republic  of  Nigeria  as  amended  has  weakened  the  Enforcement  of  the African Charter. She failed to address the enforceability mechanisms of the African Charter.

We  have  proffered  environmental  remedies  through  the  environmental  rights provisions  in  the  African  Charter.  We  made  a  critical  analysis  of  the  salient provisions of the African Charter and its constitutionality,  thisgap  is what other

existing literature on the subject failed to address.

33F. O. Ayodele-Akaakar “Legal Control of Pollution Rehabilitation: The Poverty of Petroleum Law in Nigeria’’ (an  updated version in  FIDA Journal  before the Court of Appeal No. CA/PH/9/92 on December 7, (1994) FJRSB, p.1.

34 3 NWLR (Pt.382).

35[1886] L.R. 3 HL.330.

36A. Uchegbu “ Criminal and Civil Liabilities for Oil Pollution Damage in the Oil Industry’  and ‘

Legal  Framework  for  Oil  Spill  and  Clean-up  Liability  and  Compensation  in  Nigeria’’  (Lagos,

Department of Jurisprudence and International Law, University of Lagos). See also A. Gberesu ‘’ Determination of Compensation Rate for Oil Production and Other Industrial Activities in Nigeria’’ (Port  Harcourt: The National Seminar on  Pollution Prevention, Control  Technology and Conflict Management in Oil Producing Areas of Nigeria, 1993).

37C.AOmaka “Imperativeness of Insertion of Environmental Right as a Fundamental Right in the

Constitution of the Federal Republic of Nigeria,” vol. 1 No 2.BSUJPPL, 2013, pp.158-160.

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