CHAPTER ONE

GENERAL INTRODUCTION

1.1       Background of the Research

The importance of observing human rights in any legal system and its significance cannot be overemphasized. Notably, one of the lessons of globalization and the new international economic order is the increasing awareness that the enforcement of human rights is a cornerstone in the realization of sustainable development, nationally and internationally. To this end, looking at the concept and nature of sustainable development, and what it professes, the importance of a legal system lies not only in ensuring civil liberties but in addition creating a viable environment where economic development and social equity can be enjoyed.

Nigeria has ratified plethora of human rights treaties that seek to set globally applied standards. Some of these standards, especially in recent times are not limited to civil liberty domain rather they serve as prelude to the realization of both socio-economic, cultural and solidarity rights which make room for the realization of sustainable development . These rights in essence form the new international economic and legal order and thus emerges the concept of sustainable development which “environmental law’’ seeks to promote.

Within the context of environmental law however, are the ontological and historical dimensions. These dimensions depict a mother-child correlation or evolution theory. It is established that human rights of the second and third generations which of course, are developed from that of the first generation, all as reminiscent of natural law, are now being codified with minimum standards. These standards are raised by international law and made tangible by municipal law. Thus, emerges the consciousness that there are environmental rights, such as the right to a clean and healthy environment, the right to development, the right to participate in the developmental and approval process, the right to environmental information, the right to compensation and the right of access to justice. They are however, the corollaries of the right to life.

In addition to this development, in 2012, the United Nations Environment Programme (UNEP) and the United Nations Office of the High Commissioner for Human Rights (OHCHR) have strengthened their collaboration in the field of the nexus between human rights and environmental protection during the United Nations conference on sustainable development. In the same year, the United Nations Human Rights Council as part of its special procedures appointed an Independent Expert on human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment and appointed Professor Knox to this position. In line with his appointment as an Independent Expert and as a part of his obligation, in 2014, at the regional level, a consultation was made by the Independent Expert on the constitution of environmental rights at Johannesburg, South Africa. The consultation was convened by the United Nations Independent Expert on human rights and environment and the United Nations Environment Programme (UNEP) and the legal Resource Centre (LPC).1

This study therefore analyses the standard of observation of environmental degradation, environmental rights in Nigeria, and challenges of enforceability in order to develop an improved legal framework for applicability of environmental rights in Nigeria. We would seek to determine to what extent Nigerian legal system implements and enforces these natural law rights.

1.2Statement of Problem

There has been much concern by Nigerian citizens and advocacy groups who have raised issues and cast aspersion on the environmental impasse and the reaction of people towards corporate attitude in curbing environmental degradation and hazards resulting from industrial activities. A recent report by the United Nations Environment Programme (UNEP) on the pollution of environment in the Niger-Delta area of Nigeria, as well as the serial conflicts between host communities, federal agencies and the industrial community, illustrates a lucid account of human rights problems in relation to environmental protection. This looms large in the oil and gas industry2. In addition,

1See details at UNEP Compendium on Human Rights and the Environment. Selected International

Legal Materials and Cases. Centre for International Environmental Law (CIEL) 2014. Prof Knox was appointed originally as an Independent Expert but on March 26,2015 by a resolution by consensus adopted by the Human Rights Council, his title was changed from an Independent Expert to a Special Rapporteur.Sequel to this change, his mandate was renewed for another three years until March 2018.

2UNEP, Report of the United Nations Pollution of the Niger Delta (UNNC Doc at NC, 2011); H.I. Inyang, “Environmental Pollution of the Niger Delta: Challenges and Solutions”,(Materials of the Senate Committee on Environment and Ecology) a keynote lecture at the Joint Biannual Intersectoral Summit on Niger Delta Environment Economic Development and Human Rights, organized by the Senate Committee on Environment and Ecology, Federal Republic of Nigeria, International Society of Environmental Geotechnology, Washington D.C., USA and International Institute for Humanitarian and Environmental Law, (Nigeria: Port Harcourt,Dec.2010).

the Report by the United States Department of States (2006) indicates that Nigeria has had a very alarming human rights violation record. The report listed amongst others, environmental related human rights violation.

The impact of environmental degradation on humans and how such impact constitutes violation of human rights has since been established. The US Department Report did also state that human rights conditions in Nigeria and the control measure are below the minimum standards of universal norms particularly that of International Bill of Rights, including the African Charter on Human and Peoples Rights3. Unfortunately, the access to justice in environmental litigation in Nigeria is not applauded. Reasons being that the enforcement of environmental rights is faced with challenges of establishing the linkage between human rights and environmental protection, procedural and technical problems caused by judicial attitude among other associated problems. The problem of enforceability of environmental rights posed by lack of knowledge of environmental rights norms is indeed, a problem which this paper aspires to solve.

Several theories and jurisprudence have considered environmental rights among the rights that fall within the domain of non-derogable law. It is undeniable that hazards posed by environmental degradation constitute one of the most heinous human rights violations and it is dimensional. It centers within the web of environmental crisis. Our crucial findings are that environmental rights norms in Nigeria need a reform to function effectively and legislative and judicial actions are needed to introduce and activate such reform.

1.3Objectives of Study

The objectives of the present study are:

·         To examine the enforceability of human rights norms in environmental protection in Nigeria.

·         To identify international human rights standards and the complementary municipal laws in Nigeria.

3US Department of State, Country Report on Human Rights Practices, 2006 (Washington DC Bureau for Democracy Human Rights and Labour 2006).

·         To identify domestic mechanisms for upholding the enforcement of environmental rights

·         To appraise the effectiveness of domestic mechanisms with a view to making recommendations which include enforcement mechanisms of the rights so identified.

1.4       Scope and Limitation of Study

This study on human rights standards is not a general work on human rights. It strictly focuses on the subject matter of enforceability of human rights norms in environmental protection in Nigeria. This work therefore critically researches and evaluates environmental rights. It does not deal with the rights of everybody who finds oneself embroiled in the criminal justice system. Accordingly, the subjects of “accused person’s rights” and “protection of witnesses” are not part of this work. It does not also cover the work of private initiatives and contributions of non-governmental organizations. Another area that this work does not also cover is the human rights institutions such as the National Human Rights Commission and the oversight role of the National Assembly and States Assemblies. These areas need further research.

1.5       Research Methodology

We adopted a doctrinal research methodology for this research. The study therefore placed huge reliance on secondary source materials namely: case laws, textbooks, journal articles, conference papers, internet and other legal literature were utilized.

1.6       Research Questions

1.         What are the ontological nature as well as the nexus of human rights and the environmental protection?

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

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

4.         To what extent can human rights norms be used to enhance the advancement of environmental human rights in environmental protection in Nigeria?

1.7       Literature Review

Human rights and environmental protection have been extensively discussed in existing literature, from both international and domestic legal perspectives. Danfebbo Derrihas identified that in some jurisdictions environmental matters such as oil and gas pollution are strictly regarded as human rights matters and are treated as such. But referring to Section 6(6) (c) of the 1999 Constitution of Nigeria, he pointedly emphasizes that such matters in Nigeria are merely considered as objectives of government and are non-justiciable4.Danfebbo’s argument is one sided because he failed to mention the fact that the Fundamental Rights (Enforcement Procedure Rules) 2009 together with the African Charter have created access to justice in environmental litigation. In other words, he should have paid less attention to section 6 (6) (c) of the 1999 Constitution which restricts access to justice.

In Nwabuokwu’sview5, environmental human rights appear to be the right word for categorizing standards and norms of human rights in this dimension. Those rights though used interchangeably as countable and uncountable terms, represent a class interest, or community concern. To say that environment has a right might be a misconceived statement. But to say that human beings have a right to a clean, safe, sound and healthy environment constitutes a correct expression of environmental human rights. Nwabuokwu’s view is narrow because his major concern was to identify the rights without addressing the issue of enforceability.

Ladan’s6 paper on “Access to Environmental Justice in Oil Pollution and Gas Flaring Cases as a Human Right Issue in Nigeria” has a significant and inevitable role in seeing that statutory mechanisms for the enforcement of human rights become tangible machinery of law. He noted as follows:

4D. K. Derri, “Litigation Problems in Compensation Claims for Oil and Gas Operations in Nigeria’’, in Festus Emiri and Gowon Deinjuomo, Law and Petroleum Industry in Nigeria – Current Challenges (Malthouse Law Books, 2009) p. 30 .

5    I. Nwabuokwu, “The Role of International Law in the Development of Environmental Protection”, Ibid. p.339.

6M.T. Ladan, “Access to Environmental Justice in Oil Pollution and gas Flaring Cases as a Human Rights Issue in Nigeria”. A paper presented at a training workshop for Federal Ministry of Justice lawyers organized by the Institute for Oil and Gas Law Abuja, November 2011.

The strongest argument for a human right to the Environment focuses not environmental quality, but on Procedural rights including access to justice among others in environmental matters.…the main advantage of focusing on procedural rights like access to Effective justice is that it enables individuals and NGO’s to enforce

Domestic environmental laws that may help them shape domestic Environmental policy. Ladan was right in adding that the Fundamental Rights (Enforcement Procedure Rules) 2009 has brought a latest trend on the liberalization of Locus standi. However, He gave less attention to the salient provisions of the African Charter on environmental rights.

Amechi in his article noted that the Fundamental Rights ( Enforcement Procedure) Rules is a welcome development in promoting access to court for victims of environmental degradation in Nigeria. He further asserted that the African Charter by virtue of domestication has force of law and forms part of existing legislation, but he added that Article 24 of the African Charter on the “right to general satisfactory environment necessary for development” is subject to chapter four of the 1999 Constitution of the Federal Republic of Nigeria 7.we do not agree with him because he failed to mention the fact that the African Charter has constitutional flavour.

Abddulkadir and Sambo while examining human rights and environmental protection accepted the linkage between the two concepts. They went further to posit that the 1999 Constitution of the Federal Republic of Nigeria made a remarkable achievement by providing for environmental protection but added that section 6 (6) (c) of the 1999 Constitution of the Federal Republic of Nigeria divests the said section 20 of any enforceability8. Their view that the 1999 Constitution does not expressly provide for the right to clean and healthy environment is correct but they failed to realize the fact that by implication, the right to a clean environment is a corollary of the right to life provided under section 36 of the same Constitution. In other words, the right to life also connotes the right to live in a clean and safe environment; it is for our judiciary to liberally adopt same.

7E.PAmechi, “Litigating Right to Healthy Environment in Nigeria: An Examination of the Impacts of the Fundamental Rights ( Enforcement Procedure) Rules 2009,in Ensuring Access to Justice for Victims of Environmental Degradation”, Law, Environment and Development Journal, 2010,pp 322-332.

8A.BAbdulakadir and A.O. Sambo, “Human Rights and Environmental Protection: The Nigerian constitution Examined”. Nigerian Constitution Examined”. Nigerian Journal of Food and Drug law, vol.2 2009, pp.61-73.

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