ENVIRONMENTAL DEGRADATION AND OIL SPILLAGES: AN INDICTMENT TO ENVIRONMENTAL LAW AND HUMAN RIGHTS

CHAPTER TWO

HUMAN RIGHTS AND ENVIRONMENTAL LAW CONCEPT

2.1 The Concept of Human Rights

Human rights according to UNESCO1 are neither a new morality, nor a lay religion and are much more than a language common to all mankind. Human rights have been recognized to be those rights that are very essential to the realization of human aspirations, without them life is meaningless and may be regarded as nasty, brutish and short.According to Arnold Lien, human rights are universal rights attaching to the human being wherever he appears without regard to time, place, colour, sex, parentage or environment.2 Conceived in this regard human rights are derived from the inherent dignity of the human person. They are rights accruing to an individual because he is a human being.

In the case of Ransome Kuti & Ors v. A.G of the Federation & Ors3 Kayode Esho, JSC (as he then was) noted that human rights are those rights that adhere to human beings as such and they stand tall above the ordinary laws of the land. In Enakero & Ors v. Abacha & Ors4, a distinction was properly drawn between the two terms. In that case, the court postulated that due to the development of constitutional law, differences have emerged between fundamental rights and human rights.Human rights were developed from and out of the wider concept of natural rights. They are rights, which every civilized society must accept as belonging to each person as a human being.According to the court, fundamental right remains in the realm of domestic law. Human rights have been categorized under three generations.5 First generation, second generation and third generation of human rights.

First generation refers to traditional civiland political liberties. Such rights include, freedom of speech, of religion and of press and freedom from torture. These rights are meant to ensure a duty of non-interference by of government against individuals. They are the “classical” human rights found in many bills of rights of the constitutions of many countries. The second generation of rights generally requires affirmative government action or their realization, these are social and economic rights that are often styled as “group rights” or “collective rights” and they pertain to the well-being of the whole society. Unlike the first generation, which has been perceived as individual entitlement, these are collective. Examples include the right of education, to work, to social security, food, to self-determination, and adequate standard of living.

The third generation of rights is the most recently recognized category. This category has been distinguished from other categories of human rights because their realization is not dependent upon both affirmation and negative duties of the state, but upon the behavior of each individual. Rights in this category include, right of development, right to peace and right to a healthy environment.

Summarily a proper reading of Enahoro & Ors v. Abacha & Ors6 reveals that when these human rights are enshrined in the constitution, they usually referred to as fundamental rights.7 What makes them fundamental is that the constitution declared them to be so, and not because the rights are inherently fundamental. These fundamental rights8 are therefore an aspect of human rights and should be correctly seen in that light and must be properly distinguished from human rights.9

2.2 The Environmental Right Concept

Environmental rights are a new generation of rights, which include right to a clean environment10, which is one of the rights in the third categories of human rights. Black’s Law Dictionary11 defines environment as the totality of physical, economic, aesthetic and social circumstances and factors which surround and affect the desirability and value of property or which also affects the quality of people’s lives.

Similarly, Section 37 of the NESREA Act12 states that the environment includes water, air, land and all plants and human beings, or animals living therein and the inter-relationships, which exist among these or any of them.

The above definition came into existence as a result of the need to protect the environment for this present generation and for the posterity to inherit. Above all, the definition indicates the need to protect human health, safety and interest, which requires the maintenance of a certain level of environmental standard as a result of human use and enjoyment of nature. Therefore, a healthy and clean environment becomes a human right.13

The right to environment completes the other rights guaranteed to each human being. The requirement of a healthy and balanced environment and of the environmentally sound management of natural resources is a condition for the implementation of other fundamental rights enshrined in Section 33 to 44 of the 1999 Constitution of the Federal Republic of Nigeria.

The NESREA Act is the primary law on environmental protection in Nigeria,14 and it is pertinent to note that the powers of the agency do not extend to environmental degradation arising from the oil and gas sector. This is so because section 8(g), (k), (n), (s) of the NESREA Act clearly ousts the agency’s jurisdiction from environmental degradation arising from the oil and gas sector (dominated and controlled by foreign oil companies) which is the thrust of this thesis.

It is worthy of note that the NESREA Act that ought to have embodied laws that will ensure sustainable development of the environment, legal right of the inhabitants of the Niger-Delta region, who are pitiable victims, punishment and damages against the culprits, which consist mainly of foreign oil companies, clearly excludes environmental degradation from the oil and gas sector by virtue of Section 8 (supra). Thus, it is my humble opinion that the extant NESREA Act is useless and it constitutes an embarrassment to the environment and people of Niger-Delta, Nigeria, and the world at large. It shows that our lawmakers (National Assembly members) do not have the interest of the environment and the people they represent at heart.

In the light of the above, we will have to consider other laws or enactments that seek to ensure the sustainable development of the environment, ‘legal right’ of the inhabitants of Niger-Delta who are pitiable victims, punishment and damages against the culprits, which consist mainly of foreign oil companies.

The Nigeria Constitution and Environmental Right

The 1999 Constitution of the Federal Republic of Nigeria15 will be examined in relation to the provision on environmental protection and environmental rights created therein under this subhead.

The 1999 constitution is the Supreme law of the land, which is above all other law. In Adisa v. Oyinlola,16 Onu JSC held the constitution being the supreme law of the land stands above other enactments, statutes, or laws and the provisions cannot be made subjects to any other act or enactment except by direct and clear (other constitutional) provision to that effect.

Section 20 of the Constitution17 popularly known as the environmental objective provides that,

the state shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria.

The above being a provision under chapter II of the Constitution is ordinarily by a narrow interpretation of Section 6(6)(c) of the constitution of 1999 non-justiciable.

Section 6(6) provides,

the judicial powers vested in accordance with the foregoing provisions of the section – (c) shall not, except as otherwise provided by this constitution extend to any issue or question as to whether any actor omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in Chapter II of this constitution.

Professor Atsegbua18 quoted the constitution drafting committee as saying that the inclusion of section 6(6)(c), which is generally understood as making Chapter II non-justiciable, was based on the argument that unlike first generation rights which impose restraints on the state, the other generations of human rights, require positive steps on the part of the state to secure material means for their enjoyment. It is frustrating and lamentable that the express provision19 of the people’s right to a protected environment is made an integral part of the fundamental objective principles of state policy with the ultimate result that the provision is not justiciable.The question, then comes, the constitution as the supreme law of the land is it approbating and reprobating by virtue of Section 20 and Section 6(6)(c)? In light of the above, it is in the affirmative and the only way to surmount this barrier is through constitutional amendment and judicial activism.

At this juncture, we shall now take a cursory look at other laws made by the National Assembly in combating the menacing problems of environmental degradation as a result of oil spillages and gas flaring. The following will be considered:

• Associated Gas Re-Injection Act; Cap 26 LFN 1990
• Oil in Navigable Waters Act
• Harmful Waste (Special Criminal Provisions) Act Cap 165, LFN 1990
• Environmental Impact Assessment Act 1992

Associated Gas Re-Injection Act

The Associated Gas re-injection Act of 1979 contains provisions, which govern the utilization and conservation of natural gas by laying down penalties such as forfeiture of oil prospecting license or oil mining lease in case of breach.

Oil in Navigable Waters Act

It has been said that20 the most comprehensive legislation in Nigeria on oil pollution is the Oil in Navigable Waters Act. It created the following ‘anti-pollution’ offences, namely:

1. Discharge of oil into prohibited sea areas
2. Discharge of oil into Nigerian waters
3. Failure to install oil pollution prevention equipment on ships
4. Failure to keep records of oil matter
5. Failure to harbor authority to provide oil reception facilities
6. Failure to report presence of oil in harbor water.

This Act also provided for a number of penalties for a person found guilty of offences of discharging oil into prohibited seas, discharging oil into Nigerian territorial waters and failure to equip a ship with the approved pollution prevention or reduction equipment in section 5, 7 and 10.

Harmful Waste (Special Criminal Provisions) Act

This Act was enacted to penalize the carrying, dumping, depositing or causing to be carried deposited or dumped or being in possession for purposes stated in aforesaid, of any harmful waste.

Section 15 defines harmful waste as;

any injuries, poisonous toxic or noxious substance and, in particular includes nuclear waste, emitting any radioactive substance if the waste in such quantity whether with any other consignment of the same or of different substance as to subject any person to the risk of death, fatal injury or incurable impairment of physical and mental healthy; in a container shall not by itself be taken to exclude any, risk which might be expected to arise from the harmful waste.

The penalty for the contravention of the offence according to section 8(1) is life imprisonment. Similarly section 6(a)(6) of this Act provided also that any person found guilty of a crime under section 1 to 5 of the Act shall on conviction be sentenced to imprisonment for life, and in addition forfeit any carrier, including, aircraft, vehicle, container and any other thing whatsoever used in the transportation or importation of the harmful waste, and any land, on which the harmful waste was deposited or dumped will also be forfeited. Oil and gas pollutants apparently come within the definition of harmful wastes and under the Act in view of their harmful, hazardous and toxic capabilities.21

The Act states22 that where any damage has been caused by any harmful waste which has been deposited or dumped on any land or territorial waters or contiguous zone or exclusive economic zone of Nigeria or its inland waterways, any person who deposited, dumped or imported shall be liable for the damage. The Act further went ahead to give a symbolic definition, “damage” to includes the death of, or injury to any person including any diseases and any impairment of physical or mental condition.23

Environmental degradation resulting from oil and gas in Niger-Delta as stated at the genesis of this work has led to the death of many and an alarming disease rate announced in Niger-Delta. This has made some writers to conclude that oil is a curse rather than a blessing to the people. This writer do not share this belief and still strongly believes that oil is a blessing to the people of the Niger-Delta, but the Federal Government of Nigeria and the foreign or multi-national oil companies in collaboration has turned oil to be a curse to the people of Niger-Delta rather than the blessing Jehovah God made it to be.

The Nigerian Environmental Impact Assessment Act (EIA Act)24

This Act came in to prevent oil and gas exploration and other mining and dredging activities, etc, without due consideration of their environment impact. The EIA Act is packed full with sections imposing fines and penalties to enforce compliance. Section 2(1) of the Act provides that,

The public or private sector of the economy shall not undertake, embark or authorize projects or activities without prior consideration, at an early state, of their environmental compliance.25

Section 4 also spells out the mineral content of an EIA.26 It has been stated27 that the primary aim of an EIA is to ensure that as far as possible, negative impacts of development projects are predicted and addressed before the project is commenced.

The EIA Act provides that before a decision is taken on the activity for which the information is provided, there should be opportunity for comments by government agencies, members of the public, interested groups and experts in any relevant discipline to make comments on EIA of the activity.28 Mandatory study lists are those which Environmental Impact Assessment must be conducted in accordance with the conditions set out in the Act or any Regulation made there under, these project are listed in the schedule to the act and they fall within the requirements of the Act. In pursuance of section 13 of the EIA Act, nineteen areas are listed, petroleum and mining are among them. Thus what this means is that before any petroleum or mining operation is carried out, environmental impact assessment must be conducted to ensure that as far as possible negative impacts of development projects are predicted and addressed or the machinery to remedy the possible negative impacts put in place.

Section14 provides the cases where environmental assessment is required and section15 likewise states where environmental assessment is not required. Flowing from the above section of EIA Act considered so far which is relevant to this research, it can then be concluded that before oil and gas activities are carried out in the Niger-Delta region, environmental impact assessment need to be carried out and the result treated with all sense of responsibility.

2.4 The Impediments Confronting Judicial Enforcement of Environmental Laws in Nigeria

The basic problems with the judicial enforcement of environmental laws include:

1. Absolute dependency on oil and gas sector
2. The issues of non-justiciability
3. The interest issue
4. The futility of environmental laws
5. Nonchalant attitude of the legislature

(a) Oil – Absolute dependency on oil and gas sector:

Oil and gas is of critical importance because of its high market value in the world today. Nigeria is the fifth largest oil producer in OPEC.29

The courts are only trying to protect the source that is feeding the whole country but this should have been done in a way that will make the multi-national oil companies to pay damages and clean up degraded environment.

(b) The issue of Non-justiciability

The Constitution of the Federal Republic of Nigeria, 1999 provides that the state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.30

This above section popularly known as “the Environmental Objective” vests the duty on the state to protect and improve the environment for the good of all its citizenry, but due to the fact that this section 20, being a provision under Chapter II of the Constitution is by virtue of section 6(6)(c) of the 1999 Constitution non-justiciable.

Section 6(6) provides:

The judicial powers vested in accordance with the foregoing provisions of the section (c) shall not, except as otherwise provided by this Constitution, extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the Fundamental Objectives and Directive Principles of State Policy set out in chapter II of this Constitution

This section 6(6)(c) is a stumbling block that prevent the Nigerian courts from enforcing the constitutional provision of section 20. Until this section 6(6)(c) is repealed, section 20 and other provisions in Chapter II of the Constitution31 will continue to be useless. Thus in Archbishop Olubunmi Okogie & Ors v. A.G. Lagos State32, the court in considering Chapter II of the 1979 Constitution33 which is a replica of Chapter II of the 1999 Constitution held that the provisions in that chapter are non-justiciable.This means that the enforcement of these rights cannot be the subject of litigation in court.34

(c) The Futility of Environmental Laws

The discovery and exploitation of oil in commercial quantity necessitated the enactment of laws and regulations to protect the environment from oil pollution. These laws include; Associated Gas Re-Injection Act, CAP 26, LFN 1990, Oil in Navigable Waters Act, CAP 337, LFN 1990, Harmful Waste (Special Criminal Provisions) Act, CAP 165, LFN 1990, the Environmental Impact Assessment Act, 1992 and the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007.35 These above-mentioned laws with the exception of (NESREA) Act are concerned with limited aspects of environmental protection and marred with technicalities that make them unenforceable by the court of law.

The National Environmental Standards And Regulations Enforcement Agency (Establishment) Act is the extant primary law on environmental protection in Nigeria.Section 8(g),(k),(n),(s) of the Act clearly stated that the powers of the agency do not extend to environmental issues arising from the oil and gas sector. Thus in other words, the agency36 lacks jurisdiction over environmental matters emanating from the oil and gas sector, despite the fact that it has been acknowledged that oil spills and natural gas flaring is some of Nigeria’s environmental challenges.37 Thus incapacitation of the court is an affront on the Nigeria environmental laws (NESREA Act) and the judiciary.

However, despite the plethora of laws on environmental protection in Nigeria, the environment has not fared better. A thread that runs through the administrative enforcement of these statutes is the inability to effectively ensure enforcement process to enable the workability of these laws. In addition to the problem of lack of political will to enforce these statutes, the penal sanctions provided for the breach of these laws have been too lenient to have any deterrent effect.38

(d) The Interest Issue:

The level of interest required in environmental cases in order for the court to grant damages to victims are usually too high for the victims, and as a result this prevents the court from doing justice to a lot of cases resulting from oil and gas degradation. This requirement that plaintiff must have a personal or special interest that has been or is most likely to be affected or invaded by the action complained of and the fact that the interest must not be one generally shared with other citizens serves as a great impediments to judicial enforcement of environmental laws in Nigeria. This was clearly espoused in Amos v. Shell BP Petroleum Development Company of Nigeria & Anor39, the plaintiffs in their representative capacity claimed general and special damages for injuries incurred as a result of the defendants blocking of a creek in the course of their petroleum operations. As a result “farms were flooded and damaged, canoes could not bring goods to market or take produce to the outside world, and the whole commercial and agricultural life of the community absolutely stopped. The judge held that this action constituted public nuisance, however without proof over and above that suffered by the general public, the plaintiffs could not succeed in any claim for damages.

This requirement should be watered down so that the unfortunate victims of oil and gas degradation in the Niger-Delta will have an unencumbered access to justice, as it is in countries like United State of America, United Kingdom and India.This is because any man who is denied justice on the basis of any legal technicalities have indirectly been told to lose heart, trust and confidence on the judiciary on one hand and to go and die on the other hand because the environment on which his survival depends has been made unfriendly to him or better put the multi-national oil companies have made Niger-Delta inhabitants and their environment a friendly enemy.

(e) Nonchalant Attitude of the Legislature:

The legislative arm in Nigeria is made up of the Senate and the House of Representatives. These two houses are responsible for law making in Nigeria.The National Assembly members have shown by their role in the passing into law the NESREA Act which unambiguously declares in Section 8(g)(k)(n) and (s)40 that the power of the Agency does not extend to environmental issues arising from the oil and gas sector, which means that the Agency lacks jurisdiction over environmental matters emanating from the oil and gas sector. The whole wide world knows that oil spillages and gas flaring is the major environmental challenge41 facing Nigeria particularly the Niger-Delta region of the country.

The Act of the National Assembly passing a law that indirectly and directly puts the citizenry in jeopardy summarized the saying that Nigeria lawmakers are not interested in protecting the God given environment.

As a result of these ouster clauses, the judiciary cannot do otherwise to hear cases brought under the NESREA Act that have to do with oil spillages and natural gas flaring, thus the National Assembly is the greatest impediment confronting judicial enforcement of environmental laws in Nigeria.

1 Inegbedion, N. A. and Odion, J. O., “Constitutional Law in Nigeria”, p. 161 (quoting Umozurike, U. O., Why Human Rights)

2 Atsegbua, L. C. et al, “Environmental Law in Nigeria Theory and Practice”, p. 128 (Quoting from Dakas C. J. Dakas,, “The Implementation of the African Charter on Human and Peoples’ Right in Nigeria”, (1986 – 1990), University of Jos, L. J., Vol. 3, p. 39

3 (9185) 2, NWLR, 16.211 at 230.

4 (1998) 1 HRLRA 424

5 Atsegbua, A. L. “A Critical Appraisal of Environmental Rights under the Nigerian Constitution”, p. 44 0 45, see also Ibid 1, p. 161 – 164.

6 Ibid, 3

7 See Chapter 4 (Section 33 – 44), of the 1999 constitution of Nigeria

8 For details see Ibid 1, p. 162

9 Please note that these fundamental rights are no more “fundamental” than the second and third categories of human rights.

10 Ibid

11 6th ed.

12 National Environmental Standards and Regulations Enforcement Agency (establishment) Act, 2007 hereinafter referred to as NESREA Act

13 See Ibid 2, at 131 – 132 for the recognition of the link between human rights and environmental right by international conventions, e.g. Hague Declaration of 11th March 1989, principal 1 of the Stockholm Declaration and Rio declaration, Rio de Janeiro, 6 June, 1992.

14 For details see Ogbodo, G. S. “National Environmental Standards and Regulations Enforcement Agency (NESREA) Act – A Review” (2008), Vol. 11 (1 & 2) LIBLJ, 144.

15 Hereinafter refers to as the Constitution

16 (2002) 10 WRN 125

17 Chapter II of the Constitution of the Federal Republic of Nigeria 1999, is on the fundamental objectives and directive principle of state policy which includes section 20

18 Ibid 2, p. 138

19 S. 20 of the 1999 Constitution

20 For details See Idowu, A. A. “Environmental Degradation and Human Rights Violations” (1999), MPJFIL, Vol. 3, No. 1. p. 130.

21 Idowu A. A. “Environmental Degradation and Human Rights Violations” (1999) Vol 3. No. 2, MPJFIL, p. 132

22 Section 12(1)

23 S. 12 (2)

24 See S. 2 (2)(3)(4)

25 For details See S. 4 (a) to (h)

26 Ibid, 2, p. 170

27 S. 7

28 OPEC represent Organization of Petroleum Exporting Countries

29 S.20

30 1999 constitution of the Federal Republic of Nigeria

31 (1981) 1 NCLR.337

32 Ibid

33 Ibid

34 32Inegbedion and Odion, Constitutional Law in Nigeria, (Benin: Ameitop Books, 2000), 164

35 Also known as NESREA Act and it repealed the Federal Environmental Protect Act (FEPA) Cap 131 LFN, 1990 on 31st July 2007

36 The agency referred to here is the NESREA Act

37 See http://www.oilgasarticles.com accessed 7/11/2009

38 Akeem Bellow “Environmental Rights in Nigeria: Issues, Problems and Prospect”, (2006) 4 IULJ, p. 76 to 77.

39 (1977) S. C. 109

40 Of the NESREA Act

41 Ibid, 35