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 are raised 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 study therefore analyses the standard of observation of environmental degradation, environmental rights in Nigeria, and challenges of enforceability in order to develop an improved 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 impasse and the reaction of people towards corporate attitude in curbing environmental degradation and hazards resulting from industrial activities. A recent report by the United Nations Environment Programme (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 of environmental rights posed by lack of knowledge of environmental rights norms is indeed, a problem which this paper aspires to solve.
Several theories and jurisprudence have considered environmental 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. It centers within the web of environmental crisis. Our crucial findings are that environmental rights norms 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.
3US 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
- What are the ontological nature as well as the nexus of human rights and the environmental protection?
- To what extent does Nigerian law guarantee the enforceability of human rights norms in environmental protection from degradation and hazards?
- To what level of enforceability are the rules emanating from human rights norms in environmental protection directly and practically enforceable in Nigeria?
- To what extent can human rights norms be used to enhance the advancement of environmental human rights in environmental protection 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. Danfebbo Derrihas 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 .
- 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 the Environment focuses not environmental quality, but on Procedural rights including access to justice among others in environmental matters.…the main advantage of focusing on procedural rights like access to Effective 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 flavour.
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.O. Sambo, “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 analysed 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.
Maheshwara Swamy, 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 provides Man has the fundamental rights to freedom, equality and adequate conditions of life, in an environment of 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
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.
- 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). 13United 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 is accurate in buttressing 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 the significance 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.
- 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 fourth 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 time to 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
- 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 African Charter impose upon the African Commission an important task. International law and human rights must be responsive to African circumstances. Clearly, collective rights, environmental rights, and economic and social rights are essential elements of human rights in Africa. The African Commission will apply any of the diverse rights contained in the African Charter. It welcomes this opportunity to make clear that there is no right in 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.
- Anthony “Beyond the Paper Tiger: The Challenge of a Human Rights Court in Africa” (1997) 32 Texas International Law Journal, 511.
- A. Odinkalu “The Role of Case and Complaints Procedures in the Reform of the African Regional
Human Rights System” (, 2001) 2 African Human Rights Law Journal 225; C.A. Odinkalu, “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
- 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
- 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 that human 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)
- 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
- 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’s view 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 rights enforcement. 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 swell Muzan 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
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 , 33-34.
In F.O. Akaakar’s perspective,33 whilst comparing the case of F.B. Farah and ors. v Shell Petroleum 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. She also 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.
- 3 NWLR (Pt.382).
35 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.