ENVIRONMENTAL POLLUTION AND HUMAN RIGHTS IN NIGERIA: REFLECTIONS ON THE LINKAGES AND THE NEED FOR

SOME

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 nonattainment 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 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--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

* 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 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. 1 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.

do not have their share of environmental degradation as witnessed by the numerous complaints of communities living around their facilities.5

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

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 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.

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 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

See Browen Manby, The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigerias Oil Producing Communities (Human Rights Watch, January 1999) 52-53. 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-overreforms/; 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.

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 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

12

See L. Feris, The Asbestos Crisis-the Need for Strict Liability for Environmental Damage (1999) Acta Juridica 287 at 289-291.

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 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
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 i n 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 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. Intl L. & Policy 247 at 279-302.

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:

(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

16 17

See Kehinde M. Mowoe, Constitutional Law in Nigeria (Malthouse Press Limited, 2008) 281. 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.

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 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

19

These include when death results from the use of reasonably force in either the defence of property or selfdefence, 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) 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, 1416 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.

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 Applicants 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 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
25 26

Unreported Suit No.FHC/B/CS/53/05. Delivered on 14 November 2005. 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. 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-da5c44f8-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

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

(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
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. 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).

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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 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

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). 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).

11

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 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

41 42

Order 1 (2). 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 nonjusticiable 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. 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 553 47 See Huang supra note 27 at 2; Manby supra note 9 at 8 & 11; Ezekiel supra note 5 and Nwakaudu supra note 5.

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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

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 countrys 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
48 49

See Olukoya supra note 29. Ibid. 50 See Isa supra note 23; and Oluwarotimi supra note 28. 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.

13

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 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

54 55

See Nwakaudu supra note 5; Anago supra note 2; and Ezekiel supra note 5. 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.

14

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 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
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 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.

15

deprivation for which compensation is payable, when it is to such a degree t hat the owners 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 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
61 62

See Harksen v Lane NO [1997] 11 BCLR 1489 (CC) at paras 34-36, (South Africa). 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. 65 See Amaize supra note 32.

16

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 Shells 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

(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
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. 70 See V. Been, Locally Undesirable Land Uses in Minority Neighbourhood: Disproportionate Siting or Market Dynamics? (1994) 103 Yale LJ 1384 at 1384.

17

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

71 72

Ibid. For instance, there is the widely held view that that locally-undesirable land uses (LULUs), 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. 75 For example, the predicament of the Erovie Community mentioned earlier. See Olukoya supra note 29.

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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 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

76 77

Infra. See Shelton II supra note 13 at 12. 78 Supra note 11 at 1312. 79 See Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Ecuador , InterAm. CHR, OEA/SER.L/V/11.96, Doc. 10 Rev. 1 (1997) 81-83. The Commission found that Huaorani Indians 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.

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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

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

82 83

See African Charter Ratification Act supra note 37 at art 13. 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.

20

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 nonpiecemeal 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

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

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-cohortdownloadfiles/odubela%20%28Dr%20(Mrs).doc. 92 Supra note 17 at s12.

21

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 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

93 94

Supra note 37. 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) 97 Harmful Waste Act supra note 86, s 1.

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

98 99

S 15. 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. 106 Ibid, s 9.

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

107 108

Ibid, s 12. Supra note 87 at ss 1 & 2. 109 S 7.

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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 instead of the Harmful Waste Act that imposes a harsher penalty. It should be noted that the term
110 111

S 8. 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.

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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 inter alia, to make use of relevant enforcement or security agents in order to enforce the
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 r efining wastes. 116 The National Oil Spill Detection and Response Agency (Establishment Act), 2006, s 1(1) 117 S 3.

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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

118 119

S 4. 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 2004 124 The Oil Terminal Dues Act Cap O8 Laws of the Federation of Nigeria 2004.

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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

125 126

The Associated Gas Re-injection Act Cap A25 Laws of the Federation of Nigeria 2004. Revised in 2002. 127 The Petroleum Act Cap P10 Laws of the Federation of Nigeria 2004 128 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 Nigerias 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 SubSaharan 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.

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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. Mller (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.unngls.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.

30

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

135

Ibid, at 119-141. See also Amnesty International supra note 29 at 14; Bakary Kant, 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.

31

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

See Amechi II supra note 134 at 135-157; and Abiodun Fagbemi, Jonathans aide links success of MDGs to agric The Guardian, 3 December 2010. 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-.pdf 141 See Amechi II supra note 134 at 214-216.

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healthy environment to the enjoyment of human rights as well as achievement of other sustainable development objectives including poverty reduction in Nigeria.

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

142 143

Ibid, at 215. 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 Basse y 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).

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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 (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
145 146

See Amechi II supra note 134 at 121-123. 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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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 comprehend the negative implications of a polluting activity. This is evident in the recent uproars generated by NESREAs 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

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), Shells 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.

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agreements with Government.153 With regard to the latter, adopting appropriate statutory instrument will help ensuring compliance by the parties with their obligations under such agreements.154

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. 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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