ENVIRONMENTAL POLLUTION AND HUMAN RIGHTS IN NIGERIA: SOME

REFLECTIONS ON THE LINKAGES AND THE NEED FOR EFFECTIVE

ENFORCEMENT OF ENVIRONMENTAL REGULATIONS.

By

Emeka Polycarp Amechi*

Publication citation: (2012/1) 18 (1) The Nigerian Journal of Contemporary Law 93-129.

Abstract

Nigeria is presently experiencing adverse pollution as a result of mostly industrial activities within its environs. Such pollution has had dire consequences not only for its environment, but also, for the enjoyment of human health and well-being by Nigerian citizens. This paper reflects on the interrelationship between environmental pollution and human rights guaranteed under Nigerian laws. It finds a mutual, albeit adverse linkage between environmental pollution and the enjoyment of human rights in Nigeria. It further finds that the adverse effects of environmental pollution is not restricted to the erosion of the enjoyment of human rights, but also, the non-attainment of other sustainable development objectives in Nigeria including poverty reduction. The paper therefore calls for the effective enforcement of environmental regulations in order to enhance the achievement of sustainable development in Nigeria.

I: INTRODUCTION

Environmental pollution is the ‘introduction by man directly or indirectly of substances or

energy into the environment resulting in such deleterious effects such as harm to living

resources, hazards to human health, hindrance to marine activities including fishing, impairment

of quality for use of seawater and reduction of amenities.’1 Environmental pollution is usually a

1* PhD (Wits). Environmental Law Consultant and Lecturer, Department of Private and Property Law, University of Lagos, Akoka. This paper is an updated and modified version of Environmental pollution and Human Rights in Nigeria, a Research Report submitted by this author in November 2004, in partial fulfilment of the requirements of

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by-product of industrialisation, which is now generally considered as one of the major indices of

global and national development. Nigeria as a developing country has since its independence

emphasised industrialisation as a major means of improving the quality of life of its citizenry.2

Being a resource-rich but financially poor country, successive governments in Nigeria have

made the attraction of foreign investments a top priority, as a means of powering its

industrialisation drive.3 To achieve this, Nigeria like other developing nations, has resorted to

creating an enabling environment that will ensure either the attraction of foreign investments

from developed nations or the competitiveness of their industries vis-à-vis developed nations.

However, its quest to attract foreign investment has entailed in most instances, the lack of

adequate care for the environment, thereby leading to pollution and other forms of environmental

degradation by transnational companies (TNCs) operating in Nigeria.4 This is evidenced by the

activities of these TNC companies in the Nigerian oil industry. This should not be construed to

mean that the indigenous oil companies have better environmental records as they are equally

guilty of engaging in polluting activities, nor does it imply that other industrial sectors in Nigeria

do not have their share of environmental degradation as witnessed by the numerous complaints

of communities living around their facilities.5

the Degree of Master of Laws (LLM) in the Oliver Schreiner School of Law, Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg. P.C. Blocker & M.H. Maranowski, “Survey on Quality of Refinery Effluents in Western “Europe’ (1971) 25 Petroleum Review 30. 2 See Ifeanyi Anago, Environmental Assessment as a Tool for Sustainable Development: The Nigerian Experience, FIG XXII International Congress, Washington D.C. USA, 19-26 APRIL 2002, at pp 2-4. Available at http://www.fig.net/pub/ fig_2002/Ts10-3/TS10_3_anago.pdf.3 Ibid.4 See Modupe T. Odubela & Isaac I. Omoniyi, “Compliance Monitoring in Nigerian Industries” Fourth International Conference on Environmental Enforcement, p.1. Available at http://www.inece.org/4thvol/odubela& omoniyi.pdf; and Richard L. Herz, “Litigating Environmental Abuses under the Alien Tort Claims Act: A Practical Assessment” (2000) 40 Vanderbilt J.I.L. 545 at 547-549. 5 For example, the host community of the Kaduna industrial complex have been complaining about the unhygienic state of River Kaduna, their only source of portable water, caused by the discharge of industrial effluent and toxic water into the river by the cluster of textile mills in the complex. See Anago op cit note 2 at 8; Emeka Ezekiel, ”In Mpampe, residents contend with noise, dust” The Punch, Thursday, 24 June 2010, at p38 (detailing the environmental degrading activities of stone-mining companies in Mpampe, a satellite town in Bwari Area Council of the Federal Capital Territory (FCT), Abuja); and Simeon Nwakaudu, “Much ado about red eyes, rice chaff” The

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The above emphasis on the oil TNCs and indeed in most of this article is due to the fact that their

polluting activities is widely reported and hence provides a better understanding of the adverse

consequences of environmental pollution. In addition, the oil sector is the most vibrant industrial

sector in Nigeria and accounts for over 95 per cent of exports and over 77 per cent of Federal

government revenue.6 In addition, a feature of the oil industry in Nigeria is its domination by

TNCs, a trend which the recent Petroleum Industry Bill before the National Assembly is seeking

to reverse.7 This domination does not translate to the TNCs using and adhering to the same

environmental standards applicable in their countries of origin. Instead, the TNC who were

attracted to invest in the oil sector through a combination of easy access to oil, cheap labour and

lower environmental standards have been known to adopt operating standards that will not pass

the barest minimum form of mandatory environmental standards in their home countries.8 The

TNCs with their enormous political and financial clout usually justify adopting such operating

standards on the need to provide jobs and developmental opportunities to the communities.9 The

plight of the hapless communities is not helped by the fact that in most instances, the government

of Nigeria is not able to stop or control the activities of these TNCs who usually threaten job cuts

Guardian, Monday, 28 June 2010, at p13 (detailing environmental degradation by a local rice company).6 See Hon. John Udeh, Petroleum Revenue Management: the Nigerian Perspective, Workshop on Petroleum Revenue Management, (Oil, Gas, Mining and Chemical Department of the WBG and ESMAP) Washington D.C., October 23-24, 2002, at p. 2. Available at http://www.esrthinsittute.columbia.edu/igsd/STP/Oil%20revenue%20 management?General%20oil%20documents/Nigeria/Nigeria%20petroluem%revenue%management%20Udepaper.pdf. 7 The Bill seeks to reform the oil and gas industry in order to improve on the general efficiency of the sector. See The Petroleum Industry Draft Bill 2009. Available at http://www.nnpcgroup.com/Portals/0/pdf/PIBDrapftBill2008.pdf.8 See Sam Olukoya, “Environmental Justice from the Niger Delta to the World Conference Against Racism” CorpWATCH 30 August 2001, available at http://www.corpwatch.org/issues/PRT.jsp?articleid=18; Joshua Eaton, “The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment” (1997) 15 Boston University International LJ 261 at 266-270; and Koriambanya S.A. Carew, ”David And Goliath: Giving The Indigenous People of the Niger Delta a Smooth Pebble -- Environmental Law, Human Rights and Re--Defining The Value Of Life” (2002) 7 Drake Journal of Agricultural Law 493 at 496-498.9 See Browen Manby, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities (Human Rights Watch, January 1999) 52-53.

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and loss of revenue when asked to adopt cleaner production methods as it would involve heavy

financial expenditure that will render their operations uneconomical.10

Environmental pollution usually has adverse effects on human rights because of the negative

implications for the enjoyment of human health and well-being. History has shown that major

environmental pollution is usually followed by violations of fundamental human rights, and in

countries where environmental pollutions especially by TNCs are condoned, human rights

violations records are usually high.11 For instance, the Bhopal gas incident in India, the Asbestos

crisis in South Africa, and the numerous oil spills in Nigeria, all have one thing in common -

they are usually accompanied by massive loss of lives, ailments and destruction of properties. It

is worth noting that both the Bhopal gas incident and the Asbestos crisis were occasioned by the

activities of TNCs that shifted to India and South Africa respectively to avoid compliance with

the tough laws regulating their activities in their home countries.12

This paper reflects on the linkages between environmental pollution and violations of human

rights as well as the need for the enforcement of environmental regulations in Nigeria. The focus

of this paper is on those rights that are most likely to be affected by adverse environmental

10 See Anago supra note 2 at 4; Alison Lindsay Shinsato, “Increasing the Accountability of Transnational Corporations for Environmental Harms: The Petroleum Industry in Nigeria” (2005) 4 (1) Northwestern Journal of International Human Rights 185 at 189; Andy Rowell, “Oil Companies Threaten Nigeria over Reform” Oilchange International, 24 February 2010, available at http://priceofoil.org/2010/02/24/oil-companies-threaten-nigeria-over-reforms/; and Adegoke Adegoroye, “The Challenge of Environmental Enforcement in Africa: The Nigerian Experience” Third International Conference on Environmental Enforcement, at 49-50, available at http://www.inece.org/3rdvol1/pdf/ Adegoro.pdf.11 See David Hunter, James Salzman & Durwood Zaelke (eds), International Environmental Law & Policy 2ed (Foundation Press: New York, 2002) 1281. 12 See L. Feris, “The Asbestos Crisis-the Need for Strict Liability for Environmental Damage” (1999) Acta Juridica 287 at 289-291.

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impacts occasioned by pollution. It starts by discussing the effects of environmental pollution on

some specific human rights guaranteed in the Nigerian Constitution and other human rights

instruments in Nigeria. This will be followed by a discussion of the various legal instruments

adopted in Nigeria to regulate environmental pollution. This is important, as the realisation of the

objectives contained in these instruments will consequently enhance the enjoyment of human

rights. This paper further discusses the need for the effective enforcement of environmental

regulations in Nigeria, especially in the light of the need to achieve poverty reduction objectives

including the millennium development goals (MDGs) in Nigeria. Finally, the paper concludes

with recommendations on measures that will enhance the effective enforcement of

environmental regulations in Nigeria.

II. LINKAGES BETWEEN ENVIRONMENTAL POLLUTION AND HUMAN RIGHTS

VIOLATIONS IN NIGERIA

It is apparent from the decisions and comments of several human rights bodies and

commentators that human rights and environmental protection are intricately linked and not

mutually exclusive.13 Hence, it follows that the degradation of the environment through polluting

13 See Dinah Shelton, “Human Rights, Environmental Protection, and the Right to Environment” (1991) 28 Stanford JIL 103; Richard Desgagne, “Integrating Environmental Values into the European Convention on Human Rights” (1995) 89 American JIL 263; Dinah Shelton, Human Rights, Health and Environmental Protection: Linkages in Law and Practice, A Background Paper for the World Health Organisation (WHO, 2002) 1. Available at http://www.who.int/hhr/information/en/series_1%20%20%20Human_Roghts_Health_Environmental%20protection_Shelton.pdf, (hereinafter Shelton II); Michael R Anderson, “Individual Rights to Environmental Protection in India” in Alan E. Boyle & Michael Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, Oxford, 1996) 199; Sumudu Atapattu, “The Right to a Healthy Life or the Right to Die Polluted?: The Emergence of a Human Right to a Healthy Environment Under International Law” (Winter, 2002) 16 Tulane Envtl. L J 65 at 74; Dinah Shelton, The Links Between International Human Rights Guarantees and Environmental Protection, University of Chicago Center for International Studies, 16 April 2004, available at http://internationalstudies.uchicago.edu/ environmentalrights/Shelton.pdf; United Nations General Assembly, Need to Ensure a Healthy Environment for the Well-being of Individuals, A/Res/45/94, 68th Plenary Meeting, 14 December 1990, available at http://www.un.org/documents/ga/res/a45r094.htm; and Oludayo G. Amokaye, “Human

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activities would adversely affect the enjoyment of human rights within a community. This is

exemplified by the fact that in countries where the environment is heavily polluted, the rate of

human rights violations is usually high. Likewise, in countries with high rate of human rights

abuses, the environment cannot be protected from pollution and other environmental abuses as

the citizens will not be able to raise environmental concerns effectively.14 The linkage between

environmental pollution and violation of human rights is best illustrated by the poor

environmental performance of both the apartheid and military regimes in both South Africa and

Nigeria respectively, as well as the autocratic regimes of the erstwhile Soviet Union and the

Eastern Communist Bloc.15 It is pertinent to note that virtually all the human rights guaranteed in

the Nigerian Constitution, as well as those rights guaranteed under relevant international or

regional instruments, to which Nigeria is a party, are usually adversely affected either directly or

indirectly in the event of environmental pollution. However, the degree to which these rights are

affected varies. For example, while the right to life and the right to health are usually affected by

environmental pollution, the same does not apply in all cases to either the right to fair hearing, or

personal liberty. In fact, the latter rights are affected albeit indirectly, by the conducts of security

forces sent to contain agitations by host communities for a safe environment. Specific rights

affected by environmental pollution in Nigeria include:

Rights and Environmental Protection: The Necessary Connection” (2007) 1 (1) UNILAG Journal of Human Rights Law 89 at 96-99. See also Subash Kumar v State of Bihar [1991] 1 SCC 598; Dr M Farooque v Bangladesh [1997] 49 DLR 1; and Judgement Concerning the Gabcikovo-Nagymaros Project, International Court of Justice, 25 September 1997, [1998] 37 ILM 162 at 204 (per Justice Weeramantry). 14 See Hunter et al, supra note 11 at 1281.15 See Government of the Republic of South Africa, Millennium Development Goals Country Report 2005 (Pretoria, 2005) 45-46. Available at http://www.undp.org.za/mdgcr.doc. 45-46; Raewyn Peart & Jessica Wilson, “Environmental Policy-making in the New South Africa” (1998) 5 SAJELP 237 at 238-240; and Eatonop cit note 8 at 266-271; and James C. Kraska, “Global and Going Nowhere: Sustainable Development, Global Governance & Liberal Democracy” (2006) 34 Denver J. Int’l L. & Policy 247 at 279-302.

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(a) The Right to Life

The right to life is the most fundamental of all human rights.16 The right is provided among the

fundamental rights in Chapter IV of the Constitution of the Federal Republic of Nigeria.17 The

provisions of that Chapter, it has been held is immutable to the extent of the non-immutability of

the Constitution itself and must be observed by both the State and every person in Nigeria.18

Section 33(1) provides that ‘[e]very person has a right to life, and no one shall be deprived

intentionally of his life, save in the execution of the sentence of a court in respect of a criminal

offence of which he has been found guilty in Nigeria.’ Section 33(2) provides for limited

circumstances under which this right can be infringed.19 The effect of Section 33 is that arbitrary

deprivation of life either by the State or any person in Nigeria is prohibited.20

The enjoyment of this right from the environmental point of view presupposes the enjoyment of

the highest attainable level of environmental quality. As aptly pointed out by the Indian Supreme

Court in Subash Kumar v State of Bihar, this right does not mean the right to any kind of life but

includes the right to live in a healthy environment.21 Environmental pollution endangers the lives

of present and possible future generations. This is because without the services provided by the

16 See Kehinde M. Mowoe, Constitutional Law in Nigeria (Malthouse Press Limited, 2008) 281.17 Constitution of the Federal Republic of Nigeria, Federal Republic of Nigeria Official Gazette No.27, Vol.86, Lagos-5th May 1999 (hereinafter Nigerian Constitution).18 See Ransome-Kuti v Attorney-General, Federation [2001] FWLR (Pt. 80) 1643 at para.1 & 1653 at para.17. See also Akulega v Benue State Civil Service Commission [2002] FWLR (Pt. 123) 261at para10.19 These include when death results from the use of reasonably force in either the defence of property or self-defence, to effect lawful arrest or prevent the escape of lawfully detained person, or suppression of riot, insurrection or mutiny.20 See Nosiru Bello v Attorney General of Oyo State [1986] 5 NWLR (Pt. 45). 828.21 Supra note 13. See also United Nations General Assembly, Historical Responsibility of States for the Preservation of nature for Present and Future Generations, A/Res/35/8, 49th Plenary Meeting, 30 October 30, 1980, available at http://www.un.org/documents/ga/res/35/a35r8e.pdf. (The General Assembly determined that the preservation of nature is ‘a prerequisite for the normal life of man’)

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environment, often conceived as ‘free of charge’, such as air, water, food, and a habitable

climate, human beings cannot survive, let alone enjoy their right to life.22 The Bhopal Gas

incident and the Asbestos crisis and more recently, the lead poisoning in Zamfara State as a

result of illegal gold mining activities, have shown that environmental pollution does affect

human life adversely.23 It is in recognition of this that several human right bodies and national

courts have found a violation of this right in cases of environmental pollution.24 Such recognition

is also evident in Jonah Gbemre v Shell Petroleum Development Company of Nigeria and 2

Others,25 where the Federal High Court held that the actions of the 1st and 2nd respondents in

continuing to flare gas in the course of their oil exploration and production activities in the

Applicant’s community was a gross violation of their constitutionally guaranteed rights to life

(including a healthy environment).26

The adverse effects of environmentally polluting activities on human health and well-being have

made the enjoyment of this right illusory for many Nigerians.27 For instance, lead poisoning

resulting from the activities of illegal gold miners in the Northern region of Nigeria has

22 See Atapattu supra note 13 at 97.23 See Isah Ibrahim “11 Zamfara children lose sight, 1015 on treatment from lead poisoning” The Guardian, 8 February 2010 ( reporting that 11 children have been confirmed blind, 1,015 on treatment while several others have died from lead poisoning). 24 See Jonah Razzaque, Human Rights and the Environment: Development at the National Level, South Asia and Africa, Background Paper No.4, Joint UNEP-OHCHR Expert Seminar on Human Rights and the Environment, 14-16 January 2002, Geneva, at pp 4-8, available at http://www.uchchr.ch/ environment/bp4.html; and Carl Bruch, Wole Coker & Chris VanArsdale, “Constitutional Environmental Law: Giving Force to Fundamental Principles in Africa” (2001) 26 Columbia J. Envtl. Law 145-60. For Human Right bodies, see Communication 155/96, Social and Economic Rights Action Center (SERAC) and another v Federal Republic of Nigeria, Decision of the African Commission on Human Rights, p14 at para 67; Yanomani v Brazil, Case 7615 (Brazil), [1985] Inter-Am. CHR, Annual Report 24, OEA/Ser,L/V/11.66, DOC. 10, Rev. 1; and Communication No. 67/1980, EHP v Canada [1990] 2 Selected Decisions of the Human Rights Committee 20. 25 Unreported Suit No.FHC/B/CS/53/05. Delivered on 14 November 2005.26 Ibid, at paras 3-4.27 See Jennifer Huang, “Natural Gas Burns and Communities Cry Foul II: Markets Define Policy” Newsdesk.org, 12 November 2002, available at http://www.artsandmedia.net/cgi-bin/dc/newsdesk/2002/11/12_flaring_2?t-; and British Broadcasting Corporation (BBC) “Nigeria Oil Blaze Kills 50” BBC News, 1 October 2000, available at http://www.news.bbc.co.uk/hi/english/world/Africa/newsid_1048000/1048376.htm.33k.

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reportedly led to the death of many children.28 Also in the Niger Delta region of Nigeria, which

has the worst polluted environment in Nigeria as a result of the activities of oil companies, there

have been reports of illnesses, strange ailments and deaths among the inhabitants. These result

from consumption of water, fish and crops polluted by oil-based activities.29 Furthermore, the

frequent oil spillages resulting sometimes from poorly maintained pipelines criss-crossing the

entire region is usually accompanied by raging infernos that have consumed so many lives. 30

Death has also resulted from the activities of security forces that were sent ostensibly to contain

communal violence and maintain peace and security in the Niger Delta, but were allegedly being

used to contain agitations by indigenes who are either protesting the degradation of their

environment by the polluting activities of oil companies or demanding control of their natural

resources.31 Recently, in its efforts to flush out militants in the region, it was reported that the

Joint Taskforce on the Niger-Delta (JTF) killed more than 20 civilians at Ayakoromor

community while battling the Niger Delta Liberation Force, a militant group led by John Togo.32

28 See Nicholas Tattersall & Joe Brock, ‘Lead poisoning kills 400 more Nigerian children’ Reuters, 7 March 2011; Abiodun Oluwarotimi, ‘UN Raises Alarm Over Continuous Lead Poisoning in Nigeria’ The Leadership, 13 November 2011, available at http://www.leadership.ng/nga/articles/8199/2011/11/13/un_raises_alarm_over_ continuous_lead_poisoning_nigeria.html; and Anonymous, ‘Illegal mining kills 400, leaves 2,000 kids with lead poisoning in Nigeria’ Vanguard, 29 October 2011. •29 See Sam Olukoya, “Environmental Justice from the Niger Delta to the World Conference Against Racism” CorpWATCH, 30 August 2001, available at http://www.corpwatch.org/issues/PRT.jsp?articleid=18, Amnesty International, Nigeria: Petroleum, Pollution and Poverty in the Niger Delta (Amnesty International Publications, London, 2009) 21-22, available at http://www.amnesty.org/en/library/asset/AFR44/017/2009/en/e2415061-da5c-44f8-a73c-a7a4766ee21d/afr440172009en.pdf; and SPDC v Chief Caiphas Enoch and two others [1992] 8 NWLR (Part 259) 253, where five children were alleged to have died from drinking water polluted by the defendant (Shell). 30 See BBC News supra note 27; Environmental Right Action (ERA), Wasting Lives: Official Negligence Results in Grave tragedy at Idjerhe, Niger Delta, Nigeria ERA Field Report No 17, 20 October 1998, available at http://www.essentialaction,org/shell/era/erafield17.html, (reporting the worst pipeline fire incident in Nigeria that claimed over 500 lives); Anonymous, “Nigeria: Death Toll in Pipeline Fire Rise to 125” ANN NEWS, 25 June 2003, available at http://www.africhome.com/annews/categories/culture/EPVyVEFyVANjGsKYRM.shtml, (reporting the incident at Onicha-Amaiyi village, 40km south of Umuahia, capital of Abia State).31 The erstwhile RSISTF was alleged to be notorious for extra judicial executions, indiscriminate shootings, arbitrary arrests and detentions, floggings, rapes, lootings and extortions. See Human Rights Watch, THE OGONI CRISIS: A Case-Study of Military Repression in South Eastern Nigeria, Vol. 7, No.5 (July 1995) 11-25 & 29-34. Available at http://www.hrw.org/legacy/reports/1995/Nigeria.htm. For more information on such alleged killings, see |Human Rights Watch, THE NIGER DELTA: No Democratic Dividend (HRW, October 2002), available at reliefweb.int/.../6146118D21ACF7FF85256C600076D219-hrw-nga-22oct.pdf. 32 Some put the civilian casualty at 150 people. See Emma Amaize, “Ayakoromor villagers discover more corpses” Vanguard, 6 December 2010 at p5.

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(b) The Right to Health

The enjoyment of this right like the right to life also requires the enjoyment of the highest

attainable standard of environmental quality. This has been recognised by the United Nations

(UN) General Assembly in Resolution 45/94 that all individuals are entitled to live in an

environment adequate for their health and well-being.33 Similarly, the World Health Organization

(WHO) enjoins States to take measures to protect people against threats to their health and

environment.34 The right to health is not among the fundamental rights guaranteed under Chapter

IV of the Nigerian Constitution. However, snippets of what may amount to this right can be

found under Chapter II, dealing with the Fundamental Objectives and Directive Principles of

State Policy.35 It is pertinent to note that while the Constitution places a mandatory duty on the

State to direct its policies towards achieving the fundamental objectives, it does not place any

corresponding right on the citizens to enforce the provisions of this chapter in the event of non-

compliance by the State.36 Despite the omission of this right from recognised constitutional rights

in Nigeria, the right is provided by virtue of the African Charter on Human and Peoples’

(Ratification and Enforcement) Act, which domesticates the provisions of the Banjul Charter in

Nigeria.37 By virtue of this domestication, the provisions of the Banjul Charter have been given

33 Supra note 13.34 See World Health Organisation (WHO), Our Planet Our Healthy: Report of the WHO Commission on Health and Environment (WHO: Geneva, 1992).35 S 17(3) (b) & (c) on the social objectives of the State provide that the State shall direct its policy towards ensuring ‘the health, safety and welfare of all persons in employment are safeguarded and not endangered or abused’ and ‘there are adequate medical and health facilities for all persons.36 See Nigerian Constitution supra note 17 at s 6(6) (c); and Okogie (Trustees of Roman Catholic Schools) and other v Attorney-General, Lagos State (1981) 2 NCLR 337. For an equivalent decision in the India, see State of Madras v Champakam Dorairajan [1951] AIR 226 at 252; and Mohd Nanif Qureshi v State of Bihar [1958] AIR 731. However, the Indian courts have adopted a different approach to the justiciability of the Directive Principles of State Policy in 1980s. See Anderson supra note 13 at 214-216.37 African Charter on Human and Peoples’ (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria, 2004. (Hereinafter African Charter Ratification Act).

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full recognition and effect and shall be applied by all authorities and persons exercising

legislative, executive or judicial powers in Nigeria.38 In addition, the provisions of the Banjul

Charter create rights, benefits and obligations not only between citizens and member states

themselves, but also, between the citizens themselves. Thus, individual citizens are entitled, as of

right, to take the benefit of the treaty and seek for its enforcements in their favour when infringed

or threatened by either the Government or private persons.39 The justiciability of the socio-

economic provisions of the Act has been enhanced by the adoption of the Fundamental Rights

(Enforcement Procedure) Rules 2009,40 which defines fundamental right as including “any of the

rights stipulated in the African Charter on Human and Peoples’ Rights (Ratification and

Enforcement) Act.”41 By this definition, it can be argued that the Rules laid to rest any lingering

doubt regarding the justiciability of the socio-economic provisions of the Act.42

Environmental pollution has an adverse effect on the enjoyment of the right to health.43 When the

effect is long term, this usually leads to controversy as to whether the pollution complained of, is

the cause of the illness.44 The effect of environmental pollution on the right to health has been

38 Ibid, at s 1; and Abacha v Fawehinmi (2000) FWLR (Pt. 4) at 548-549, para 7. 39 Abacha case ibid, at 565-566, paras. 25-26.40 Entered into force on 1 December 2009. (Hereinafter FREP Rules2009).41 Order 1 (2).42 For arguments regarding the justiciability of the socio-economic provisions of the Act, see Hakeem O. Yusuf, “Oil on troubled waters: Multinational corporations and realising human rights in the developing world, with specific reference to Nigeria” (2008) 8 African Human Rights Law Journal 79 at 81 & 93-96; Solomon T. Ebobrah, “The Future of Economic, Social and Cultural Rights Litigation in Nigeria” (2007) 1 (2) Review of Nigerian Law and Practice 108 at 114-124; and Obiajulu Nnamuchi, “Kleptocracy and Its Many Faces: The Challenges of Justiciability of The Right to Health Care in Nigeria” (2008) 52 (1) Journal of African Law at 15-19. But see Lawrence Atsegbua et al, Environmental Law in Nigeria: Theory and Practice (Lagos: Ababa Press Ltd, 2004) 143, (arguing that since any conflict between the provisions of Article 24 of the Charter and Section 20 of the 1999 Constitution of the Federal Republic of Nigeria will be resolved in favour of the Constitution, and that it is doubtful if the Charter can be used to elevate environmental rights from non–justiciable rights to justiciable rights).43 In South Africa, even though most of the asbestos mining companies left in the late 1980, former workers and member of host communities are still suffering various illnesses that have been traced to the pollution. See Feris supra note 12 at 860 & 863.44 Huang op cit note 27 at 2.

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recognised by various commentators and human right bodies.45 As rightly observed by Kiss, “an

environment degraded by pollution and defaced by destruction of all beauty and variety is as

contrary to satisfactory living conditions and development as the fundamental ecologic equilibria

is harmful to physical and mental health.”46 Presently, there have been several reports of various

ailments being experienced by inhabitants of host communities of environmentally polluting

industries.47 For instance, it was reported that the inhabitants of Erovie in the Niger Delta began

to experience health problems soon after Shell injected a million litres of waste into an

abandoned oil well in 1999. Many who consumed crops or drank water from swamps in the area

complained of vomiting, dizziness, stomach-ache, and cough. Within two months, 93 people had

died from this mysterious illness. It was further alleged that despite the denial of Shell and the

Nigerian government that the substance was harmful,48 independent tests by two Nigerian

universities and three laboratories indicated that the substance was toxic. All the tests confirmed

poisonous concentrations of lead, zinc and mercury in the dumped substance.49 In addition, the

lead poisoning saga at Zamfara State has led to ailments such as acute fever, convulsions, loss of

consciousness and blindness, with anaemia, renal failure and brain damage.50

(c) The Right to a Healthy Environment

45 See M C Mehta v Union of India and others (1996) JT 631. (Ordered cessation of operation of polluting factory, whose activities had adverse effects on health of residents); SERAC case supra note 24 at 10, para 54; and Arrondelle v United Kingdom, App. No. 7889/77 [1983] 5 Eur. HR Report 118. 46 Alexandre Kiss, “Concept and Possible Implications of the Right to Environment” in Kathleen Mahoney & Paul Mahoney (eds) Human Rights in the Twenty first Century: A Global Challenge (Martinus Nijhoff, 1993) 551 at 55347 See Huang supra note 27 at 2; Manby supra note 9 at 8 & 11; Ezekiel supra note 5 and Nwakaudu supra note 5.48 See Olukoya supra note 29.49Ibid. 50 See Isa supra note 23; and Oluwarotimi supra note 28.

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Whenever pollution occurs, the environment is usually affected and hence, far from being ideal

for human health and well-being. It is therefore apparent that for the enjoyment of this right, the

highest attainable standard of environmental quality that is necessary to human life and that of

other living organisms is needed. This involves among others things, refraining from impairing

the environment through pollution.51 This is implicit in the statement of Justice Davide Jr. in the

Minors Oposa case,52 that ‘the right to a balanced and healthful ecology carries with it the

correlative duty to refrain from impairing the environment…. The said right implies, among

many other things, the judicious management and conservation of the country’s forests. Without

such forests, the ecological or environmental balance would be irreversibly disrupted.’53 The

right does not fall under fundamental rights provided under Chapter IV of the Nigerian

Constitution but the non-justiciable Chapter II of the Constitution which provides in section 20

that ‘the State shall protect and improve the environment and safeguard the water, air and land,

forest and wild life of Nigeria.’ However, the right is recognised in Nigeria by virtue of Article

24 of the African Charter Ratification Act which provides that ‘All peoples shall have the right to

a general satisfactory environment favourable to their development.’ Hence, the above argument

regarding the justiciability of socio-economic rights in Nigeria equally applies to the

justiciability of the right to a healthy environment in Nigeria.

Despite the recognition of the right, the activities of polluting industries have made the

realisation of this right unattainable in Nigeria.54 The predicament of the inhabitants of the Niger

Delta is exceptional and merits a special mention. Presently, oil discharges from poorly

51 See Atapattu supra note 13 at 97.52 The Philippines: Supreme Court Decision in Minor Oposa v Secretary of the Department of Environment and Natural Resources (DENR) [1994] 33 ILM 173. 53 Ibid, at 188. See also SERAC case supra note 24 at 11, para. 54.54 See Nwakaudu supra note 5; Anago supra note 2; and Ezekiel supra note 5.

13

maintained pipelines, ‘blow-outs’ from oil wells, and dumping of untreated drilling and refining

wastes destroy farmlands, which form the major means of livelihood for rural farmers. In

addition, these pollutants not only adversely affected streams, rivers and swamps that are the

only source of water for the inhabitants, but also, destroyed fish resources and the fishing rights

of the villagers.55 Furthermore, the several pipeline fire incidents are usually accompanied by

devastation of farmlands, communal forests and other properties.56 The incessant flaring of gas

by oil companies not only contributes significantly to global ‘greenhouse gases’ emission, but

also, as believed by locals, damages their health and homes as well as reduces their crop

production.57

(d) The Right to Property

Environmental pollution also affects the enjoyment of the right to property, a fundamental right

in Nigeria.58 Section 43 of the Nigerian Constitution provides for the right of every citizen to

acquire and own immovable property anywhere in Nigeria. Section 44 provides that no moveable

property or any interest in an immovable property shall be taken possession or acquired

compulsorily in any part of Nigeria without the payment of prompt compensation. The

conditions under which this right can be restricted are provided under section 44 (2) and (3). 59

55 See Olukoya supra note 29; Manby supra note 9 at 6-9; and Eaton supra note 8 at 266-268.56 See note BBC News supra note 27; ANN News supra note 30; and ERA supra note 30. See also George Osodi, “NIGERIA: Oil Spill Blaze in Ogoni Burns Farms, Pollutes Streams” OCHA IRIN 1 September 2003. Available at http://www.news.biafranigeriaworld.com/archive/2003/sep/08/0045.html.57 See Huang supra note 27; Manby supra note 9 at 11-12; and Environmental Rights Action/Friends of the Earth Nigeria and Climate Justice Programme, Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity (Amsterdam, The Netherland, June 2005) 24-26. 58 See SERAC case supra note 24 at 12, para. 6; Robin Churchill “Environmental Rights in Existing Human Rights Treaties” in Boyle & Anderson (ed) supra note 13 at 92-93; and Hunter et al supra note 11 at 1310-1312.59 These include where such restriction inter alia, involves the imposition or enforcement of any tax, rate, duty and penalties or forfeitures for the breach of any law; relates to leases, tenancies or other rights and obligations arising out of contract; relates to the vesting and administration of estates of bankrupt, insane or deceased persons, and corporate or unincorporated bodies in the course of winding-up; relates to the execution of court orders or

14

Thus, it is apparent that the Nigerian Constitution prohibits not only compulsory acquisition of

right or interest in property without compensation, but also, arbitrary deprivation of property or

interest in property. Chaskalson et al describes arbitrary deprivation as one that is simply on the

will of the party effecting the deprivation.60 While environmental pollution may affect the use of

property, it is questionable when it can amount to arbitrary deprivation of property or interest in

property. It is submitted that the effects of environmental pollution can only amount to arbitrary

deprivation for which compensation is payable, when it is to such a degree that the owner’s

property or interest thereof has been permanently deprived. Thus, in such a situation, it will be

deemed that there is a permanent transfer to the polluter.61

In Nigeria, this right is violated by environmental pollution in two ways. Firstly, through the

direct effects of such pollution on property. This is peculiar to all parts of Nigeria where

pollution has laid waste or diminished the value of properties like houses, farmlands, cars etc. 62

This is more so in the Niger Delta region, where oil pollutions and attendant fire incidents have

destroyed farmlands, fishing rights as well as caused acid rain that corrodes motor vehicles and

roofing sheets.63 Secondly, in the Niger Delta region, the activities of Government security forces

involved in the burning and demolition of houses and other properties under the guise of tackling

militants show a clear violation of this right.64 This is evident in the recent operation of the JTF

judgement; involves the taking of possession of property that is injurious to the health of human beings, plants or animals; and relates to enemy property, trusts and trustees, and limitation of action. In addition, all minerals, mineral oils and natural gas in, under or upon any land, territorial waters and the Exclusive Economic Zone of Nigeria are vested in the Federal Republic of Nigeria. 60 Chaskalson, Kentridge, Klaaren, Marcus, Spitz & Woolman Constitutional Law in South Africa Revision Service 2, 1998 (Juta & Co: Johannesburg 2003) 31: 15.61 See Harksen v Lane NO [1997] 11 BCLR 1489 (CC) at paras 34-36, (South Africa).62 Most industries discharged their untreated waste into poorly maintained drainage systems. During the rainy season, these drainages overflows, and the resulting floodwater usually contain high percentage of chemicals that damage houses, farmlands and vehicles.63 See Osodi supra note 56.64 Human Right Watch supra note 31. See also SERAC case supra note 24 at 11, para. 54; 12, para. 59; & 13, para. 61.

15

codenamed ‘Operation Restore Hope’ which led to the displacement of about 200 villagers who

are now being housed in a refugee camp.65

(e) Right to Privacy

Environmental pollution also adversely affects the enjoyment of the right to privacy. As stated

by the European Court on Human Right in Lopez Ostra v Spain, “…severe environmental

pollution may affect individuals’ well-being and prevent them from enjoying their homes in such

a way as to affect their private and family life adversely, without, however, seriously

endangering their health.”66 The right to privacy is provided under Section 37 of the Nigerian

Constitution, which states that ‘the privacy of citizens, their homes, correspondence, telephone

conversations and telegraphic communications is hereby guaranteed and protected.’ This right is

usually violated when noise, smells or polluting fumes from industrial activities, makes it

practically impossible to enjoy privacy or family life. Most often, the victims of such pollutions

are forced by illness or discomforts associated with the pollution to abandoned their homes.67 For

instance, most of the inhabitants of Erovie in the Niger Delta region of Nigeria had to abandon

their homes for the sake of their health and well-being, due to the mysterious diseases and

subsequent deaths associated with Shell’s dumping of toxic wastes in their community.68 In

addition, the destruction of houses by the erstwhile RSISTF and other security forces also violate

this right.69

65 See Amaize supra note 32.66 Lopez-Ostra v Spain, App. No. 16798/90, (1994) 20 Eur. HR Report 303. See also SERAC case supra note 24 at 13, paras. 61-62.67 Ibid.68 Olukoya supra note 29. 69 See SERAC case supra note 24 at 13, paras. 61-62; and Human Right Watch supra note 31.

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(f) Right to Equality

Section 42 of the Nigerian Constitution provides that “no Nigerian shall be subjected to

discrimination in any form on account of ethnicity, sex, religion or political opinion.” The right

will be violated when a particular section of the community bears the brunt of environmental

pollution than others. When this occurs, it has been described as ‘environmental racism.’70 The

term which originated in the United States encompasses the view that people of colour are

exposed to a disproportionate degree of environmental risks compared to whites, and that the

reason for this, is racism and classism in the acts which cause such risks.71 This arises due inter

alia, to siting of activities that bear environmental risks,72 and the promulgation and enforcement

of environmental laws and decisions as to cleanup of polluted sites.73 Some elements of

environmental racism are manifested in Nigeria as activities that bear environmental risks such

as landfills are usually sited in poorer neighbourhoods.74 An examination of some plush suburbs

in Lagos State like Ikoyi and Victoria Island and poorer suburbs like Ajegunle and Ketu will

reveal that most industrial and municipal waste disposal sites are located in the midst of the latter

with the attendant negative health consequences for the inhabitants. In addition, environmental

regulations are more likely to be enforced by regulatory agencies where the polluter’s activities

affect the plush suburbs. However, such actions or inactions are not predicated on racism but

70 See V. Been, “Locally Undesirable Land Uses in Minority Neighbourhood: Disproportionate Siting or Market Dynamics?” (1994) 103 Yale LJ 1384 at 1384.71 Ibid.72 For instance, there is the widely held view that that locally-undesirable land uses (LULU’s), like waste disposal sites and industries emitting hazardous emissions are sited disproportionately in neighbourhoods which have, on average, a higher percentage of racial minorities and which are poorer than communities which do not have LULUs. See Been supra note 67 at 1384; and D. Kevin “Environmental Racism’ and Locally Undesirable Land Uses: A Critique of Environmental Justice Theories and Remedies” (1997) 8 Villanova Environmental LJ 121 at 126.73 Kevin ibid.74 However, in some instances, it is poor Nigerians in the hope of either employment or patronage that site their homes or business beside such industrial complexes. Despite this, it is apparent that such complexes can never be sited even remotely near the plush suburbs.

17

classism and location in Nigeria. Thus, for our purpose, we will use the term ‘environmental

injustice’ to refer to such situation.

For the inhabitants of the Niger Delta, especially the rural communities, their awkward situation

is not due to poverty, but as a result of the ‘black gold’ that is the crude oil flowing beneath their

land. Environmental injustice was brought to bear on them by oil companies involved in oil

exploration and production activities in their communities.75 Several regulations enacted to

ensure that these oil companies operate in an environmentally friendly manner, as well as the

prompt cleanup of polluted sites were never enforced.76 The effect is that the region is now a

spectacle of polluted streams and fishponds, oil-soaked and burnt farmlands, and deforested

lands and other vegetative growths.

(g) Other Rights

Other guaranteed human rights affected by environmental pollution in Nigeria include the rights

to information and public participation. These procedural rights as aptly observed by Shelton,

‘encourage[] an integration of democratic values and promotion of the rule in broad-based

structures of governance.’77, while Hunter et al, describe them as ‘environmental due process’

rights.78 The rights to information and public participation are usually affected in instances of

environmental pollution as experience has shown that most often, the victims are not informed or

fully involved in the decision-making process regarding the location of the polluting facilities or

75 For example, the predicament of the Erovie Community mentioned earlier. See Olukoya supra note 29.76 Infra.77 See Shelton II supra note 13 at 12. 78 Supra note 11 at 1312.

18

activities in their communities.79 The enjoyment of these rights involves inter alia, the right to be

informed without a specific request, of any matter having a negative or potentially negative

impact on the environment.80 The right to information is provided as a fundamental right under

Section 39 of the Nigerian Constitution. The provisions of that section are now being expanded

by the Freedom of Information Bill,81 which is still before the legislature since 1999. While the

right to public participation was not explicitly provided for in the Nigerian Constitution, it is a

necessary corollary of the right to information. In addition, it is provided under the African

Charter, which as earlier noted, is now part and parcel of Nigerian legislation.82

Despite the legal guarantee of these rights, their enjoyment is still elusive especially to the

inhabitants of the Niger Delta. For instance, the inhabitants of Erovie community were never

involved in the decision to grant Shell permission to inject a million litres of oil waste into an

abandoned oil well situated in the Community.83 Furthermore, the activities of the erstwhile

RSISTF and other security forces in the Niger Delta, made the enjoyment of the rights to human

dignity, personal liberty, and fair hearing guaranteed under the Nigerian Constitution,84 illusory

by their acts of flogging, rape, arbitrary arrests and detention, and extra judicial executions.85

III. LEGAL FRAMEWORKS FOR CONTROL OF ENVIRONMENTAL POLLUTION

79 See Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador, Inter-Am. CHR, OEA/SER.L/V/11.96, Doc. 10 Rev. 1 (1997) 81-83. The Commission found that Huaorani Indian’s right to participation and to information provided under the American Convention on Human Rights, were violated by inability of the State to inform them or consult them about oil projects undertaken on their lands.80 Hunter et al supra note 11 at 1316.81 The Bill has been enacted into law. See Freedom of Information Act, 2011.82 See African Charter Ratification Act supra note 37 at art 13.83 See Olukoya supra note 29.84 See Nigerian Constitution supra note 17 at ss 34, 35 & 36 respectively.85 See Human Right Watch supra note 31.

19

It is apparent from the preceding discussion that environmental pollution usually has adverse

effect on the protection and enjoyment of human rights in Nigeria. The question therefore, is to

what extent has Nigeria taken steps to protect its environment from man-made polluting

activities? It should be noted that it was the dumping of toxic waste in Koko, Delta State, in June

1988, and the attendant public outcry due to the adverse environmental and human rights

consequences that galvanised the Federal Government into enacting the Harmful Waste (Special

Criminal Provisions etc.) Act, on 30 November 1988.86 The Act although dealing with a specific

issue, was the first explicit environmental legislation enacted in Nigeria. This Act was followed

by the enactment of the Federal Environmental Protection Agency (FEPA) Act on 30 December

1988.87 The enactment of the FEPA Act marked the advent of a comprehensive and non-

piecemeal approach by the Federal government to the issue of environmental protection.88 This

Act and subsequent amendments facilitated the establishment by the Government through

FEPA,89 of instruments to halt environmental pollution and degradation in form of policies,

standards, guidelines and regulations.90 Furthermore, Nigeria has been active in international and

regional environmental negotiations, and has signed, ratified and acceded to several multilateral

environmental agreements.91

86 Harmful Waste (Special Criminal Provisions etc.) Act Cap H1 Laws of the Federation of Nigeria 2004. (hereinafter Harmful Waste Act)87 The Federal Environmental Protection Agency Act Cap F10 Laws of the Federation of Nigeria 2004. Now replaced by the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act No 25 of 2007. (Hereinafter NESREA Act).88 See E. O. Akanki “Air Pollution Control Law” in J. A. Omotola (ed.) Environmental Law in Nigeria Including Compensation (Faculty of Law, University of Lagos Press: Lagos 1990) 202; Yemi Osibanjo “Some public Law Considerations in Environmental Protection” in Omotola (ed) at 129; Oyelowo Oyewo “The Problem of Environmental Regulation in the Nigerian Federation” in Omotola (ed) at 105; and O.A. Bowen “The Role of Private Citizens in the Enforcement of Environmental Laws” in Omotola (ed) at 153.89 Amended in 1992 by virtue of the Federal Environmental Protection Agency (Amendment) Decree No. 59 of 1992, and further amended by the Federal Environment Protection Agency (Amendment) Decree No. 14 of 1999.90 Some of these instruments include inter alia the revised National Policy on the Environment 1999 that was first released in 1989; the Environmental Impact Assessment Act Cap E12, Laws of the Federation of Nigeria 2004, and sectoral guidelines on environmental impact assessment. 91 As at 2000, Nigeria has signed and ratified 18 multilateral environmental agreements. See Modupe Odubela Compliance/Monitoring/Environmental Standards, at pp5-6. Available at http://www.lead.org.ng/inter-cohort-downloadfiles/odubela%20%28Dr%20(Mrs).doc.

20

The Nigerian Constitution also lists the duty of the State to protect and improve the environment

among its Fundamental Objectives and Directive Principles of State Policy,92 while Article 24 of

the African Charter Ratification Act provides for the right to a satisfactory environment

favourable to development.93 In addition, some rules of common law have been used in

combating environmental pollution in Nigeria. These rules include the torts of negligence,

nuisance and the rules in Rylands v Fletcher.94 These rules along with other common law rules

that were in force in England as at January 1, 1900 constitute parts and parcel of Nigerian Law.95

The remedies offered by these rules are however, available essentially to an individual claiming

damages for infringement of his or her private rights. However, the fact that a polluter will be

liable for damages under these rules can help in deterring future polluting conducts. The tort of

nuisance offers the most useful common law tools for combating environmental pollution. In

fact, for a long time, it offered the main avenue for redress against pollution in Nigeria and many

Commonwealth countries and has been used in relation to oil pollution, noxious fumes, noise,

interference with leisure activities, excessive vibrations, etc.96

(i) The Harmful Waste Act

This Act was enacted principally to prevent the re-occurrence of the Koko toxic waste incident,

irrespective of whether the toxic waste is imported or produced in Nigeria. It prohibits all

92 Supra note 17 at s12.93 Supra note 37.94 Rylands v Fletcher [1868] LR (3 HL) 330.95 See the Interpretation Act Cap 192 Laws of the Federation of Nigeria 1990, s 32.96 See K. M. Mowoe “Quality of Life and Environmental Pollution and Protection” in Omotola (ed) supra note 88 at 185. See also Abiola v Ijoma (1970) 2 All NLR 268 (excessive noise and smell from poultry); and Tebite v Nigerian Marine and Trading Company Limited (1971) 1 Univ. of Ife LR (Pt. iv) 432. (persistent loud noise and vibrations)

21

activities relating to the purchase, sale, importation, transit, transportation, deposit or storage of

harmful waste without lawful authority.97 The term ‘harmful waste’ is defined under the Act to

mean ‘any injurious, poisonous, toxic or noxious substance and, in particular, includes nuclear

waste emitting any radioactive substance… as to subject any person to the risk of death, fatal

injury, or incurable impairment of physical and mental health.’98 The omnibus definition as

adopted by the Act has been criticised for being long, ambiguous and unclear.99 While this paper

sympathises with this criticism, it is submitted that such an omnibus definition has made it

possible for the provisions of the Act to cover not only known pollutants such as nuclear wastes

and oil drilling and refining wastes, but also, emerging pollutants such as electronic and

electrical wastes (e-waste).100 Criminal liability under the Act is strict.101 For the purpose of

calculating such liability, any person who counsels, aids, or procures another person to commit

any offence under the Act is as guilty as the principal offender.102 The same applies to persons

involved in crimes committed in the prosecution of common purpose.103 Offences under the Act

are punishable with a heavy penalty.104 Where it involves a corporate body, the corporate officers

of such body shall equally be liable unless they can prove that the offence was committed

without their knowledge or not attributable to any neglect on their part.105 The Diplomatic

Immunities and Privileges Act, does not apply to any crime committed under the Act by any

97 Harmful Waste Act supra note 86, s 1.98 S 15. 99 See Theodore Okonkwo, The Law of Environmental Liability (Afrique Environmental Development and Education: Lagos, 2003) 5.100 Presently, there is a bill before the National Assembly seeking to amend the provisions of the HWA in order to adequately regulate the dumping and burning of e-waste in Nigeria. See Harmful Waste (Special Criminal Provisions, etc) (Amendment) Bill 2009. 101 Harmful Waste Act supra note 86, ss 1 & 8. But see ss 5 (accessories after the fact), and 7 (liability of corporate officers).102 Ibid, s 2. It is no excuse that the crime committed was different from the one counselled. See s 4.103 Ibid, s 3.104 For offences under ss 1-5 of the Harmful Waste Act, any person convicted is liable to life imprisonment and shall forfeit any carrier used in the transportation or importation of the harmful waste, and any land on which such waste was deposited or dumped. For attempt, the offender shall be liable only to life imprisonment, see s 8(1).105 Ibid, s 7.

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person.106 In addition, the offender is liable to any personal injury or damage resulting from his

action unless he proves that the damage was due wholly to the fault of the victim or that the

victim voluntarily assumed the risk.107

(ii) National Environmental Standards and Regulation Enforcement Agency (NESREA)

Act

NESREA is the principal environmental legislation in Nigeria. It was designed to provide a

comprehensive and coordinated legal framework for combating environmental degradation

including pollution. It establishes NESREA as the principal enforcement agency for

environmental standards, regulations, rules, laws, policies and guidelines in Nigeria.108

NESREA’s function include enforcing compliance with inter alia laws, guidelines, policies and

standards on environmental matters; provisions of international environmental agreements;

policies, standards, legislation and guidelines on water quality, environmental health and

sanitation, including pollution abatement; any legislation on sound chemical management, safe

use of pesticides and disposal of spent packages thereof; regulations on the importation,

exportation, production, distribution, storage, sale, use, handling and disposal of hazardous

chemicals and waste other than in the oil and gas sector; and environmental regulations and

standards on noise, air, land, seas, oceans and other water bodies other than in the oil and gas

sector.109 In discharging its functions, the Agency is equipped with the power to inter alia

106 Ibid, s 9.107 Ibid, s 12.108 Supra note 87 at ss 1 & 2.109 S 7.

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prohibit processes and use of equipment or technology that undermine environmental quality;

conduct field follow-up compliance with set standards and take procedures prescribed by law

against any violator; and conduct public investigations on pollution and the degradation of

natural resources, except investigations on oil spillage.110 In addition, the Agency is empowered

to make regulations, guidelines and standards on air quality and atmosphere protection, ozone

protection, noise, federal water quality standards, effluents limitations, environmental sanitation,

land resources and watershed protection, and control of hazardous substances.111

Furthermore, the Act prohibits the discharge in such harmful quantity of any hazardous

substance into the environment except where such discharge is permitted under is permitted or

authorized under any law in force in Nigeria.112 Hazardous substance means ‘any chemical,

physical or biological radioactive materials that poses a threat to human health and the

environment or any such substance regulated under international conventions to which Nigeria is

a party or signatory.’113 Where the discharged hazardous substance constitutes harmful waste, the

provisions of the Harmful Waste Act will apply.114 This provision avoids a situation where a

discharger of harmful waste may go ‘forum-shopping’ by electing to be charged under the Act

110 S 8.111 Some of the regulations adopted by the Agency and which are vital to the control of environmental pollution include the National Environmental (Mining and Processing of Coal, Ores and Industrial Minerals) Regulations, S.I. 31 of 2009; the National Environmental (Sanitation and Wastes Control) Regulations, S.I. 29 of 2009; the National Environmental (Chemicals, Pharmaceuticals, Soaps and Detergent Manufacturing Industries) Regulations, S.I. 36 of 2009; the National Environmental (Food, Beverages and Tobacco Sector) Regulations, S.I. 33 of 2009; the National Environmental (Textiles, Wearing Apparel, Leather and Footwear Industry) Regulations , S.I. 34 of 2009; the National Environmental (Wetlands, River Banks and Lake Shores Protection) Regulations, S.I. 26 of 2009; the National Environmental (Watershed, Hilly, Mountainous and Catchment Areas) Regulations, S.I. 27 of 2009; the National Environmental (Ozone Layer Protection) Regulations, S.I. 32 of 2009; the National Environmental (Noise Standards and Control) Regulations, S.I. 35 of 2009; and the National Environmental (Permitting and Licensing Systems) Regulations, S.I. 29 of 2009.112 S 27.113 S 37.114 S 27 (5). See also NESREA Sanitation and Waste Control Regulation, supra note 111 at reg 102.

24

instead of the Harmful Waste Act that imposes a harsher penalty. It should be noted that the term

‘hazardous substance’ as used under the Act is wide and encompasses not only substances that

are deemed ‘harmful waste’ under the Harmful Waste Act, but also, other substances that are not

harmful per se or deemed not harmful under the Harmful Waste Act, but are hazardous when

released into the environment.115

(iii) National Oil Spill, Detection and Response Agency Act (NOSDRA)

The Act seeks to address incidences of oil pollution in Nigeria by establishing the National Oil

Spill, Detection and Response Agency (NOSDRA) with the overall responsibility of detecting

and cleaning oil spill in the country.116 The functions of the Agency include implementing and

revising the National Oil Spill Contingency Plan for Nigeria; formulating and implementing

policies aimed at ensuring the detection, prevention and control of oil spillage; identifying oil

spill and administering any emerging response programme associated with oil spill and pollution

control; creating awareness in communities with oil installations on the hazards to economic and

social activities of tempering with such installations; formulating policy guidelines to regulate

the activities of any non-governmental organisation involved in oils spill detection and clearing;

and formulating guidelines to determine environmental standards to be observed by individuals

or organisations involved in oil business.117 In performing its function, the Agency is empowered

115 For example, while drilling and refining waste from the petroleum industry will certainly come within the definition of harmful waste under the Harmful Waste Act, the same cannot be said for crude oil and other petroleum products. They are not per se waste, and therefore not harmful waste, yet when released into the environment, they are hazardous. This is evident in the erstwhile FEPA Management of Solid and Hazardous Wastes Regulations of 1991 that defined ‘hazardous substances’ to include oil products and drilling and refining wastes.116 The National Oil Spill Detection and Response Agency (Establishment Act), 2006, s 1(1) 117 S 3.

25

inter alia, to make use of relevant enforcement or security agents in order to enforce the

observance of its policies or any environmental law; and to enter any premises, vessels, depot,

refinery, or factory used in producing, distributing or consuming oil in order to acquire

information and inspect same.118

(iii) Other Legislations

Other environmental regulations or regulations having provisions touching on the control of

environmental pollution in Nigeria include the Environmental Impact Assessment Act that

regulate the operation of activities which may directly or indirectly adversely affect the

environment;119 the Oil in Navigable Waters Act that seeks to prevent the oil pollution of Nigeria

water bodies by ships;120 the Oil Pipeline Act that requires the holder of a pipeline permit to take

all reasonable steps to avoid unnecessary damage to any land entered upon and any buildings,

crops or economic trees thereon;121 the Nigerian Maritime Administration and Safety Agency Act

that tasks the Nigerian Maritime Administration and Safety Agency with preventing and

controlling marine pollution;122 the Nigerian Port Authority Act that mandates the Nigerian Port

Authority to control pollution arising from oil or any other materials from ships using the port

limits or their approaches;123 the Oil Terminal Dues Act that prohibits the discharge of oil or

mixture containing oil from any pipeline or vessel into any part of the Nigerian sea;124 and the

118 S 4.119 Supra note 90.120 The Oil in Navigable Waters Act, Cap O6 Laws of the Federation of Nigeria 2004.121 Oil Pipeline Act, Cap O7 Laws of the Federation of Nigeria 2004.122 The Nigerian Maritime Administration and Safety Agency Act No 75 of 2007, at ss 22(1) (i) & 44(1) respectively.123 The Nigerian Port Authority Act Cap N126 Laws of the Federation of Nigeria 2004124 The Oil Terminal Dues Act Cap O8 Laws of the Federation of Nigeria 2004.

26

Associated Gas Re-injection Act that prohibits the flaring of gas associated with oil production

activities except under a permit issued by the Minister.125

In addition, the Environmental Guidelines and Standards in the Petroleum Industry in Nigeria

(EGASPIN) adopted by Department of Petroleum Resources (DPR),126 not only prohibits the

dumping of wastes from oil production of activities into the environment, but also, provides for

the compulsory installation of pollution abatement facilities by oil companies. The Petroleum

(Drilling and Production) Regulations (Regulations) requires the licensee or lessee to adopt ‘all

practicable precautions including the provision of up-to-date equipment approved by the Director

of Petroleum Resources, to prevent the pollution of inland waters, rivers, water courses, the

territorial waters of Nigeria or the high seas by oil, mud or other fluids or substances which

might contaminate the water, banks or shore line or which might cause harm or destruction to

fresh water or marine life, and where any such pollution occurs or has occurred, shall take

prompt steps to control and, if possible, end it.’127 Similarly, the Petroleum Refining Regulations

require a refining company to adopt "all practicable precautions," including the provision of up

to-date equipment as may be specified by the Director of Petroleum Resources to prevent

pollution of the environment by petroleum or petroleum products.128

125 The Associated Gas Re-injection Act Cap A25 Laws of the Federation of Nigeria 2004.126 Revised in 2002.127 The Petroleum Act Cap P10 Laws of the Federation of Nigeria 2004128 Ibid.

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IV: THE NEED FOR THE ENFORCEMENT OF ENVIRONMENTAL REGULATIONS

IN NIGERIA

From the discussion in the preceding section, it is apparent that the legal frameworks to regulate

environmental pollution exist in Nigeria. The objectives contained in these frameworks are

meant principally to control environmental pollution and other forms of environmental abuses.

Thus, if these objectives were realised, environmental pollution will be minimised, thereby

enhancing the enjoyment of human rights in Nigeria. However, despite the existence of these

regulatory frameworks, Nigerian environment is still heavily polluted.129 The polluted state of the

environment in Nigeria is not unconnected with the ineffective enforcement of these

environmental regulations by appropriate regulatory institutions including the Federal Ministry

of Environment.130 The polluted state of Nigeria’s environment as evident from the earlier

discussion in this paper usually affects adversely the citizens’ enjoyment of guaranteed human

rights. However, it is not only the enjoyment of human rights that is adversely affected as the

achievement of other objectives of sustainable development is equally affected in instances of

environmental pollution in Nigeria. Sustainable development is defined as ‘the development that

meets the needs of the present without compromising the ability of the future generations to meet

129 See United States Agency for International Development (USAID), Nigeria Environmental Analysis: Final Report (ARD Inc, April 2002), available at http://pdf.usaid.gov/pdf_docs/PNACP627.pdf; Japan International Cooperation Agency (JICA), Country Profile on Environment: Nigeria (November 1999) 19, available at http://www.jica.go.jp/english/Global/env/profiles/eggnai.pdf; United Nations Environment Programme, African Environmental Outlook 2: Our Environment, Our Wealth (Nairobi: UNEP, 2006), (hereinafter AEO 2); and United Nations Environment Programme, African Environmental Outlook: Past, Present and Future Perspectives (Nairobi: UNEP, 2002), (hereinafter AEO I). 130 See Emeka Polycarp Amechi, “Poverty, Socio-Political Factors and Degradation of the Environment in Sub-Saharan Africa: The Need for a Holistic Approach to the Protection of the Environment and Realisation of the Right to Environment” (2009) 5 (2) Law, Environment and Development Journal 107; Nelson E. Ojukwu-Ogba, “Legal and Regulatory Instruments on Environmental Pollution in Nigeria: Much Talk, Less Teeth” (2006) 8/9 International Energy law & Taxation Review 201; and Amnesty International supra note 29 at 40-45.

28

their own needs’.131 At the core of this concept is the fact that the right to development does not

exist in the absolute sense but is relative always to its tolerance by the environment.132

Anthropogenic pollution due to its adverse environmental consequences limits the ability of both

the present and future generations in Nigeria from meeting their own needs. Apart from the

adverse effects on social and political development which is implicit from the discussion on the

effects of environmental pollution on human rights, environmental pollution also affects the

ability of Nigerians to attain economic development as evident from the adverse effects on the

attainment of poverty reduction/eradication in the country.133 Environmental pollution negatively

impacts efforts to tackle poverty in two principal ways. Firstly, by adversely affecting directly or

indirectly the enjoyment of the socio-economic, civil and political rights that is essential to the

achievement of sustainable development objectives. Such rights ensure empowerment, voice,

access to social services, and equality before the law. These ingredients are necessary in

promoting the achievement of sustainable development objectives including poverty reduction in

any country.134 Secondly, environmental pollution affects poverty reduction by depleting the

natural resource base on which most Nigerian citizens depend for their sustenance and

131 See World Commission on Environment and Development, OUR COMMON FUTURE (Oxford University Press, 1987) 8. (Popularly called ‘the Bruntland Report.’)132 See Gabcikovo-Nagymaros Project case supra note 13. 133 See Amnesty international supra note 29 at 21-22 & 25-38.134 See Emeka Polycarp Amechi, Millennium Development Goals (MDGs) and Policy Reform: Realising the Right to Environment in Africa (Verlag Dr. Müller (VDM): Saarbrucken, August 2010) 180-181 (hereinafter Amechi II); Jorge Daniel Taillant, Human Rights and Sustainable Development: A view from the Americas (Center for Human Rights and Environment (CEDHA), 2003) available at http://www.cedha.org.ar/docs/doc122-eng.htm; Rachel Kagoiya, “The necessary nexus between sustainable development and human rights” Pambazuka News, Issue 411, 9 December 2008, available at http://www.pambazuka.org/en/category/comment/52568; and Anonymous, “Human Rights Approaches to Sustainable Development” NGLS Roundup, available at http://www.un-ngls.org/orf/pdf/ru90hrsd.pdf. See also United Nations General Assembly Millennium Declaration, A/Res/55/2, 18 September 2000, at para 24; Monterrey Consensus on Financing for Development, A/CONF.198/11, 22 March 2002, at 49, para 2; and the World Summit for Sustainable Development (WSSD) Plan of Implementation, A\COPNF.199\20, 4 September 2002, at paras 5 & 138.

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livelihood.135 This was exemplified by the plight of the residents of the Ogbodo Community in

River State within the Niger Delta region following the rupturing of a petroleum pipeline on 25

June 2001. As succinctly stated by Amnesty International in a recent Report,

The impact of oil spill and [resultant] fire on livelihood was extensive crops and fishing areas were badly damaged. The riverbank was described as “littered with dead fish and animals”. Other economic activities were also affected. Amnesty International researchers visited the area in 2003, and found the community still suffering the impacts of the oil spill. One man reported that his breeding rabbits died in the fire that followed the spill; another, who earned money from collecting and selling sand for bricklaying, told Amnesty International that the quality of sand deteriorated following the oil spill, reducing his income. Community members stated that children would dive with buckets to collect sand and find the bottom of the river covered with the oil, which then floated to the surface.136

The adverse effects of environmental pollution on the achievement of sustainable development

objectives necessitate the need for the effective enforcement of environmental regulations in

Nigeria. This has assumed greater importance in view of the urgent need to achieve the MDGs

by the year 2015 in the country. The MDGs are eight development goals with time-bound and

quantified targets geared principally towards poverty reduction and sustainable human

development in developing countries.137 Commentators are unanimous that there is a mutual

linkage between the enhancement of the quality of the environment and achievement of the

MDGs in Africa.138 The effect of this linkage is that it will be difficult to achieve the MDGs in a

135 Ibid, at 119-141. See also Amnesty International supra note 29 at 14; Bakary Kanté, “The Environment, the Wealth of the Poor?” Poverty & Environment Times, No. 2, March 2004; and Emmanuel Ajiboye et al, “Poverty, oil exploration and Niger Delta crisis: The response of the youth” (2009) 3 (5) African Journal of Political Science and International Relations 224 at 225-227.136 Supra note 29 at 22.137 They are gleaned from the development goals contained in the Millennium Declaration, which was unanimously adopted in September 2000 at the United Nations (UN) Millennium Summit, reputed to be the largest-ever gathering of Heads of State and Government.138 See Amechi II supra note 134 at 135-157; and Abiodun Fagbemi, “Jonathan’s aide links success of MDGs to agric” The Guardian, 3 December 2010.

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heavily polluted country like Nigeria where most of its inhabitants are dependent on the

wholesomeness of the environment for their livelihood. This has also been recognised by Sam

Godong, the Plateau State MDGs Coordinator, who recently lamented that the impact of mining

activities is threatening the achievements of the MDGs in the State.139 Presently, the findings of

the 2010 UN Millennium Development Goals Report shows that Nigeria is one of the developing

countries that are least likely to achieve to achieve the goals by 2015.140 Hence, there is the need

to enforce environmental regulations in order to ensure the provision of a healthy environment

which together with the institution of other socio-economic and political reforms can help in

achieving sustainable development objectives including poverty reduction.141

V. CONCLUSION

This paper shows that there is a mutual albeit negative linkage between the pollution of the

environment and violations of various human rights in Nigeria. It further shows that this state of

affairs exists despite the abundance of legal frameworks designed to ensure the protection of the

environment from pollution and other environmentally degrading activities in Nigeria. It

therefore advocates for the effective enforcement of environmental regulations in Nigeria in

order to restore or preserve the wholesomeness of the environment. The need for the effective

enforcement of environmental regulations becomes imperative in view of the importance of a

healthy environment to the enjoyment of human rights as well as achievement of other

sustainable development objectives including poverty reduction in Nigeria.

139 See Anonymous “Mining Activities Threaten MDGs in Plateau” Vanguard, 25 August 2010. 140 See United Nations, Millennium Development Goals Report 2010 (New York, 2010). Available at http://www.un.org/millenniumgoals/pdf/MDG%20Report%202010%20En%20r15%20-low%20res%2020100615% 20-.pdf141 See Amechi II supra note 134 at 214-216.

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Measures towards promoting the effective enforcement of environmental regulations require that

the Nigerian Government should not only enforce its environmental regulations and proactively

adopt new ones when the need arises, but also, adequately fund the various environmental

management agencies in Nigeria.142 In addition, the various environmental-line

agencies/ministries should adopt a co-ordinated and collaborative approach towards the

enforcement of environmental regulations. This is necessary as the fragmented nature of

environmental management in Nigeria has in most times led to role-conflicts and rivalries

amongst these bodies thereby weakening enforcement.143 A coordinated and collaborative

approach has been recognised by some environmental legislation in Nigeria.144 The main

problem is that the various agencies lack the political will to implement and enforce such

provisions.

The effective enforcement of environmental regulations also requires the active participation of

private persons including public-spirited individuals or organisations. This is necessary as the

perennial underfunding of the public enforcement agencies in Nigeria has led to a situation

where these agencies lack the scientific, technical or legal expertise necessary in monitoring as

well as enforcing compliance with environmental regulations.145 Private enforcement of

environmental regulation in Nigeria has been boosted by the adoption of the Fundamental Rights

142 Ibid, at 215.143 See USAID supra note 129 at 25-26; Adegoke Adegoroye, “The challenge of Environmental Enforcement in Africa: The Nigerian Experience” INECE Conference Proceedings Volume 1, Third International Conference on Environmental Enforcement, 25-28 April, 1994, Oaxaca, Mexico; and Bassey Udo, “Duplicated regulations complicate environmental protection” NEXT, 26 December 2010. Available at http://234next.com/csp/cms/sites/ Next/Home/561 0268-146/story.csp.144 For example, see NESREA Act supra note 87 at ss 7(a) , 8(o) & 29; NOSDRA Act supra note 116 at 3(h); and NIMASA Act supra note 121 at s 23(3). 145 See Amechi II supra note 134 at 121-123.

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(Enforcement Procedure) Rules 2009.146 The Rules enable victims of environmental pollution

and public-spirited individuals to petition the court for appropriate relief once they can show that

a failure to observe the provisions of environmental regulations adversely affects or threatens the

right to a healthy environment and/or other guaranteed human rights in Nigeria.147 Despite its

utility in the private enforcement of environmental regulations, the provisions of the Rules are

limited by the fact that they are only applicable once a human right has been infringed or

threatened. This may effectively rule out their application in the private enforcement of

environmental regulations for other purposes such as the general protection of the environment

or the promotion of inter-generational equity. The general liberalisation of the locus standi rules

in environmental matters is therefore very important if private citizens are to participate

effectively in the enforcement of environmental regulations in Nigeria.148 This has been provided

under the National Environmental (Mining and Processing of Coals, Ores and Industrial

Minerals) Regulation.149 However, this provision is restrictive as it only applies to the breach of

the Regulation. This paper suggests that similar provision should be imported into the NESREA

Act and other environmental legislation in Nigeria.

Furthermore, there must be public enlightenment by regulatory agencies regarding pollution, its

adverse effects on the environment and on human health and well-being, as well as the remedies

available to persons affected by environmental pollution. The latter enables the effective

utilisation of these remedies by victims, lawyers, NGOs and other persons or organisation

interested in the protection of the environment in Nigeria. Public enlightenment about pollution

is also important as in most instances both the polluters and victims or potential victims may not 146 Supra note 40.147 See the Preamble & order 1(2).148 See Amokaye supra note 13 at 118-120.149 Supra note 111, at reg 8 (4).

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comprehend the negative implications of a polluting activity. This is evident in the recent uproars

generated by NESREA’s bid to ban the important of end-of-life used electrical and electronic

materials.150 It should be noted that when the public lacks understanding regarding the

importance of regulating a particular pollutant, it usually breeds resentment and low support

towards the activities of the regulatory agency in that regard. Presently, both NESREA and

NOSDRA are mandated by their establishing instruments to create public environmental

awareness.151 Owing to their perennial funding problem, it is suggested that these agencies in

discharge of this function should cooperate with relevant NGOs, mass media and institutions of

higher learning.

Finally, enforcement requires the co-operation of the regulated industries. Industries operating in

Nigeria need to cultivate a positive attitude towards the environment and regard environmental

protection as part of their social responsibility to host communities. This has its economic

advantages as it will prevent community unrest thereby enhancing economic activities.152

Cultivating such attitude requires that companies should not only observe environmental

regulations, but must go beyond what is stipulated either unilaterally or enter into negotiated

agreements with Government.153 With regard to the latter, adopting appropriate statutory

150 See Andrew Airahuobhor, “Toxic Waste - NESREA in the Eye of the Storm” Daily Independent, 28 October 2010; Sulaiman Adenekan “Toxic vessel release: Ending the blame game among govt agencies” The Punch, 29 October 2010; and Olukemi Dauda “Toxic ships: Agents of death” The Nation, 14 June 2010;151 See NESREA Act supra note 87 at s 7(1); and NOSDRA Act supra note 116 at s 3(f).152 See World Business Council for Sustainable Development (WBCSD), “Shell’s Improving Social Responsibility Record Makes the Oil Giant Attractive to Investors” LexisNexis 10 November 2003. Available at http://www.wbcsd.org/plugins/Docsearch/details.asp?type=DocDet&DocId=MzAwMA.153 Many oil companies operating in Nigeria when accused of double standards, by allowing practices in Nigeria that would never be permitted in developed countries, retorts by saying that they operating according to local environmental standards. Assuming Nigeria has a low environmental standards, any company that cares about the effect of its operation on the local environment has the moral duty to adopt the highest attainable standard.

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instrument will help ensuring compliance by the parties with their obligations under such

agreements.154

154 For example, see Chapter 8 of the South African National Environmental Management Act No. 107 of 1998 that regulates the conclusion of such agreement between Government and private persons in South Africa.

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