ENVIRONMENTAL DEGRADATION AND NIGERIA’S LEGAL APPROACH

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

The significance of upholding human rights within any legal system cannot be overstated. One key lesson from globalization and the emerging international economic order is the growing recognition that enforcing human rights forms a vital foundation for achieving sustainable development, both nationally and globally. In this regard, when considering the concept and essence of sustainable development and its objectives, the role of a legal system extends beyond safeguarding civil liberties. It also involves establishing a conducive environment in which economic progress and social equity can thrive.

Nigeria has ratified numerous human rights treaties designed to establish universally applicable standards. Many of these standards, particularly in contemporary times, go beyond the realm of civil liberties. They serve as essential precursors to the fulfillment of socio-economic, cultural, and solidarity rights, thereby facilitating sustainable development. These rights essentially constitute the foundation of the new international economic and legal order, giving rise to the concept of sustainable development, which “environmental law” aims to advance.

Within environmental law, ontological and historical dimensions exist. These dimensions reflect a mother-child relationship or an evolutionary theory. It is recognized that second- and third-generation human rights which evolved from first-generation rights and draw from natural law are now being codified with established minimum standards. International law elevates these standards, while municipal law gives them practical effect. Consequently, awareness has emerged regarding environmental rights, including the right to a clean and healthy environment, the right to development, the right to participate in development and approval processes, the right to environmental information, the right to compensation, and the right of access to justice. These rights are, however, corollaries of the right to life.

Building on this progress, in 2012, the United Nations Environment Programme (UNEP) and the United Nations Office of the High Commissioner for Human Rights (OHCHR) enhanced their cooperation on the intersection of human rights and environmental protection during the United Nations Conference on Sustainable Development. That same year, the United Nations Human Rights Council, under its special procedures, appointed an Independent Expert on human rights obligations related to the enjoyment of a safe, clean, healthy, and sustainable environment, designating Professor Knox for the role. As part of his duties, in 2014, the Independent Expert held a regional consultation on the constitution of environmental rights in Johannesburg, South Africa. This consultation was organized by the United Nations Independent Expert on human rights and environment, UNEP, and the Legal Resource Centre (LRC)

This study therefore examines the standard of addressing environmental degradation and environmental rights in Nigeria, along with the challenges of enforceability, with the goal of developing an enhanced legal framework for the effective application of environmental rights in the country. It seeks to assess the extent to which Nigeria’s legal system implements and enforces these natural law rights.

1.2 Statement of the Problem

Nigerian citizens and advocacy groups have expressed significant concern over the environmental crisis and the societal response to corporate practices that fail to mitigate environmental degradation and hazards stemming from industrial operations. A recent UNEP report on environmental pollution in Nigeria’s Niger Delta region, coupled with ongoing conflicts among host communities, federal agencies, and the industrial sector, provides a clear illustration of human rights issues linked to environmental protection. This situation is especially prominent in the oil and gas industry.

Additionally, the 2006 United States Department of State report highlighted Nigeria’s deeply troubling record of human rights violations, including those related to the environment. The harmful effects of environmental degradation on people and how these effects amount to human rights violations have long been recognized. The US report further noted that human rights conditions in Nigeria, along with remedial measures, fall short of universal minimum standards, particularly those in the International Bill of Rights and the African Charter on Human and Peoples’ Rights.

Unfortunately, access to justice in environmental litigation in Nigeria remains inadequate. This stems from difficulties in establishing the connection between human rights and environmental protection, as well as procedural and technical obstacles arising from judicial attitudes and other related issues. The challenge of enforcing environmental rights due to insufficient awareness of relevant norms is a key concern that this paper aims to address.

Various theories and jurisprudential perspectives classify environmental rights among non-derogable rights. It is indisputable that the dangers caused by environmental degradation represent some of the most severe human rights violations, spanning multiple dimensions within the broader environmental crisis. Key findings from this research indicate that environmental rights norms in Nigeria require reform to operate effectively, necessitating legislative and judicial interventions to introduce and implement such reforms.

1.3 Objectives of Study

The objectives of this 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.

- To identify domestic mechanisms for upholding the enforcement of environmental rights.

- To appraise the effectiveness of domestic mechanisms with a view to making recommendations, including enforcement mechanisms for the identified rights.

1.4 Scope and Limitation of Study

This study on human rights standards is not a broad examination of human rights in general. It specifically concentrates on the enforceability of human rights norms in environmental protection within Nigeria. The work therefore conducts a detailed analysis and evaluation of environmental rights. It does not address the rights of individuals involved in the criminal justice system, such as the rights of accused persons or the protection of witnesses. It also excludes private initiatives and contributions by non-governmental organizations. Furthermore, it does not cover human rights institutions like the National Human Rights Commission, nor the oversight functions of the National Assembly and State Assemblies. These topics warrant separate, in-depth research.

1.5 Research Methodology

A doctrinal research methodology was adopted for this study. The research therefore relies extensively on secondary source materials, including case law, textbooks, journal articles, conference papers, internet resources, and other legal literature.

1.6 Research Questions

1. What is the ontological nature and the nexus between human rights and environmental protection?

2. To what extent does Nigerian law guarantee the enforceability of human rights norms in protecting the environment from degradation and hazards?

3. To what level are rules derived from human rights norms in environmental protection directly and practically enforceable in Nigeria?

4. To what extent can human rights norms be utilized to advance environmental human rights in the context of environmental protection in Nigeria?

1.7 Literature Review

Human rights and environmental protection have received extensive scholarly attention from both international and domestic legal viewpoints. Danfebbo Derri has observed that in certain jurisdictions, environmental issues such as oil and gas pollution are treated strictly as human rights matters. However, with reference to Section 6(6)(c) of the 1999 Constitution of Nigeria, he stresses that such issues in Nigeria are regarded merely as government objectives and are non-justiciable. Derri’s argument is one-sided, as it overlooks the fact that the Fundamental Rights (Enforcement Procedure) Rules 2009, alongside the African Charter, have facilitated access to justice in environmental litigation. In other words, less emphasis should be placed on Section 6(6)(c) of the 1999 Constitution, which limits access to justice.

According to Nwabuokwu, the term “environmental human rights” appropriately categorizes the relevant standards and norms in this area. Although these rights are sometimes used interchangeably in countable and uncountable senses, they represent collective or community interests. Speaking of the environment itself having rights may be misguided; rather, the accurate formulation is that human beings possess a right to a clean, safe, sound, and healthy environment. Nwabuokwu’s perspective is limited because it primarily identifies the rights without sufficiently addressing enforceability.

Ladan’s paper on “Access to Environmental Justice in Oil Pollution and Gas Flaring Cases as a Human Rights Issue in Nigeria” plays a crucial role in transforming statutory mechanisms for human rights enforcement into practical legal tools. He observed that the strongest case for a human right to the environment emphasizes procedural rights such as access to justice in environmental matters rather than solely environmental quality. The primary benefit of this focus is that it empowers individuals and NGOs to enforce domestic environmental laws, thereby influencing national environmental policy. Ladan correctly noted that the Fundamental Rights (Enforcement Procedure) Rules 2009 have liberalized locus standi. However, he devoted insufficient attention to the key environmental rights provisions in the African Charter.

Amechi welcomed the Fundamental Rights (Enforcement Procedure) Rules as a positive step toward improving court access for victims of environmental degradation in Nigeria. He acknowledged that the domesticated African Charter has the force of law and integrates into existing legislation. Nevertheless, he viewed Article 24 of the African Charter which guarantees the right to a general satisfactory environment favorable to development as subordinate to Chapter IV of the 1999 Constitution. This position is not fully accepted here, as it neglects the constitutional character of the African Charter.

Abdulkadir and Sambo acknowledged the interconnection between human rights and environmental protection. They commended the 1999 Constitution for including environmental protection provisions but argued that Section 6(6)(c) removes enforceability from Section 20. Their observation that the Constitution does not explicitly provide for the right to a clean and healthy environment is accurate; however, they overlooked that this right arises by implication as a corollary of the right to life under Section 36. In essence, the right to life encompasses the right to exist in a clean and safe environment, and the judiciary should interpret it liberally.

Ijaiya and Joseph reviewed challenges to enforcing environmental rights in Nigeria, citing issues such as inadequate funding, corruption, poor governance, and weak constitutional provisions. They echoed earlier views on Section 20 of the 1999 Constitution but similarly failed to recognize its limited contribution to enforceability.

Musa and Bappah thoroughly analyzed the relationship between human rights and the environment but concluded that the attempt in Section 20 faces enforceability barriers. They did not propose concrete enforcement solutions.

Maheshwara Swamy, in Chapter Three of his textbook on environmental law, explores fundamental human rights and environmental values through a jurisprudential lens, drawing primarily from Indian jurisprudence and international human rights and environmental law. The case law and theories presented by Swamy confirm the practical linkage among human rights, sustainable development, and the environment. This is supported by Principle 1 of the Stockholm Declaration and Principle 4 of the Rio Declaration.

Principle 1 of the Stockholm Declaration states that man has the fundamental right to freedom, equality, and adequate conditions of life in an environment of quality that permits a life of dignity and well-being. It further imposes a solemn responsibility to protect and improve the environment for present and future generations, condemning policies of apartheid, racial segregation, discrimination, colonialism, or other forms of oppression and foreign domination.

Principle 4 of the Rio Declaration provides that, to achieve sustainable development, environmental protection shall form an integral part of the development process and cannot be considered in isolation from it.

Principles 4 and 25 of the Rio Declaration highlight the inseparable connection between human rights and the environment as core elements of sustainable development. Principle 25 specifically declares that peace, development, and environmental protection are interdependent and indivisible. This underscores the indivisibility of human rights as a universal principle affecting all aspects of human existence, including economic and social dimensions. As David Kinsley notes, human rights must engage with the power of the global economy while ensuring that power serves human rights goals.

Salazar-Duran emphasizes that recognizing the environment as a human right would transform the adjudication of environmental cases, including available mechanisms and remedies. A human rights-based approach offers more effective means of securing compensation for victims of environmental violations.

Malgosia Fitzmaurice and Jill Marshall present compelling arguments regarding the right to a clean environment. Drawing on the jurisprudence of the European Court of Human Rights, they examine how the Court balances rights and interests, discussing the importance of the right, associated challenges, and steps needed to make it enforceable.

Richard Hiskes contends that, to maintain strong human rights standards, the rights to clean air, water, and soil should be recognized as environmental human rights belonging to both present and future generations. His work introduces innovative conceptual frameworks central to human rights and environmental justice, representing emerging third- and fourth-generation human rights.

Klaus Toepfer, former Executive Director of UNEP, stated in 2001 that human rights cannot be realized in a degraded or polluted environment. The fundamental right to life is endangered by soil degradation, deforestation, toxic chemicals, hazardous wastes, and contaminated water. Environmental conditions directly influence people’s enjoyment of rights to life, health, food, housing, livelihood, and culture. Polluting or destroying the natural environment constitutes not only a crime against nature but also a violation of human rights.

Dinah Shelton outlines the evolution of rights-based approaches in human rights and environmental law. She identifies a prominent post-1992 instrumentalist approach in international environmental agreements that treats certain human rights as essential tools for achieving environmental protection, primarily to safeguard human health. This is exemplified by the Rio Declaration, which links human rights and environmental protection through procedural means (Principle 10), guaranteeing access to information, public participation, and access to justice. Shelton notes a third, more recent approach that views the linkage as indivisible, recognizing the right to a safe and healthy environment as an independent substantive human right, reflected in various international and regional instruments.

A.E. Anthony strongly supports the practical enforceability of collective human rights in Africa. He rejects notions that certain human rights categories remain illusory and un-enforceable. While acknowledging challenges in the African Human Rights Court system, Anthony argues that these do not diminish the distinctiveness of human rights law but instead demonstrate its growing strength.

Odinkalu argues that the mechanism of the African Charter is not as ineffective as often portrayed. The core issue lies in enhancing the system’s effectiveness through reforms that are less state-centric. This is evidenced by the African Human Rights Commission’s advancing casework. In the SERAC decision, the Commission emphasized the unique African context and the special character of the African Charter, affirming that collective rights, environmental rights, and economic and social rights are integral to human rights in Africa. It declared that no right in the African Charter is inherently ineffective.

Alan Boyle analyzes environmental rights from three legal perspectives. First, existing civil and political rights can provide individuals, groups, and NGOs with access to environmental information, judicial remedies, and political participation to enforce minimum protection standards. Second, environmental quality can be treated as an economic or social right, similar to those progressively realized under the 1966 UN Covenant on Economic, Social and Cultural Rights. Third, it can be viewed as a collective or solidarity right, empowering communities to manage their environment and natural resources.

E. Brown Weiss and D. Shelton support efforts to strengthen the status of environmental quality as a fundamental condition of life, essential for human dignity, welfare, and the realization of other human rights.

A.E. Ogbuigwe argues that unchecked flooding in the Niger Delta poses a severe threat to life and property, amounting to human rights violations. Jennifer Cassel highlights persistent procedural barriers to enforcing environmental human rights. Despite the evident connection between environmental harm and human rights violations, international human rights law has only recently begun addressing environmental destruction as such, with definitions still evolving in many jurisdictions. Cassel clearly explains that environmental damage inevitably harms people dependent on that environment through polluted air causing injury or death, contaminated water leading to illness (including prenatal effects), or climate change disrupting traditional livelihoods and cultures.

Focusing on Nigeria, Emmanuel Onyeabor affirms that, within the 1999 Constitution, environmental rights are human rights linked to constitutional objectives. He cites Section 20 as recognizing citizens’ entitlement to a clean environment but laments its non-justiciability under Chapter II as a major obstacle. Directive principles outline national objectives but lack direct procedural enforcement mechanisms. Although Section 6(6)(c) bars courts from questioning compliance with Chapter II, judicial activism and international instruments like the African Charter can provide enforceability. Onyeabor lists key enforcement challenges including defensive provisions in environmental and petroleum laws, weak compensation regimes, sanctions, locus standi, and jurisdictional issues and advocates judicial activism, relaxed locus standi, and jurisdictional reforms. These obstacles have largely been addressed by the Fundamental Rights (Enforcement Procedure) Rules and the African Charter.

Professor A.L. Swell Muzan examined jurisdictional complexities in remedies for petroleum-related environmental pollution, noting that Nigerian and international law offer a wide array of procedural and substantive remedies in both domestic and international forums. However, jurisdictional issues remain intricate and far-reaching.

F.T. Okorotie criticizes the exclusive jurisdiction of the Federal High Court over oil industry environmental matters, arguing it subtly denies access to justice. Affected local community members often lack the resources to travel long distances or afford high filing costs. Such jurisdictional barriers undermine human rights enforcement and international norms, necessitating reforms aligned with citizens’ realities. Law, as an instrument of social engineering, should accommodate these practical circumstances.

This study addresses environmental remedies through the African Charter’s environmental rights provisions, providing a critical analysis of its salient clauses and constitutional status a gap left unaddressed in much of the existing literature.