The Right to a Safe and Clean Environment with regard to Oil Pollution and Climate Change in Nigeria
The position that the right to a safe and clean environment is an absolute right that should be guaranteed in a sane society without any compromise supports the inherent commitment to environmental protection and sustainability. Despite the existence of numerous national laws and international treaties that make provision for this right in Nigeria, the environmental conditions, particularly in the Niger Delta region, keep deteriorating. In July 2022, the United Nations General Assembly acknowledged that a clean, healthy, and sustainable environment is a fundamental human right. Over the past few decades, the country has witnessed climate change, loss of biodiversity, and pollution, which represent some of the biggest threats to humanity, severely affecting the absolute exercise and enjoyment of human rights. Protecting environmental rights is critical for upholding human dignity, as a clean and safe environment is necessary for living a life of dignity and worth. This, therefore, portrays the inextricable link between human rights and fundamental human rights.
As Africa’s largest oil producer, Nigeria confronts considerable environmental issues stemming from extensive oil spills and the impacts of climate change. Given the country’s reliance on oil and its rich reserves, the right to a clean and healthy environment becomes particularly vital. Oil spills not only contribute to environmental degradation but also represent a significant violation of this right, marking a persistent crisis influenced by the lack of justiciability regarding the constitutional right to a clean environment.
This article will explore the causes and consequences of oil pollution, examine the constitutional and legal frameworks that protect the right to a healthy environment in relation to oil pollution, and discuss the challenges associated with enforcing this right.
OIL POLLUTION AND CLIMATE CHANGE IN NIGERIA
Oil pollution and climate change present one of the most significant challenges globally. As I pointed out in the introduction, Nigeria is home to one of the largest oil industries in Africa, and oil extraction has been a major source of revenue for the country. However, this reliance has led to significant environmental concerns. Oil pollution often infiltrates land due to various factors such as corroded pipelines, irresponsible gas flaring by oil companies, illegal refining, and pipeline vandalism. These activities contribute to greenhouse gas (GHG) emissions, primarily carbon dioxide and methane, exacerbating climate change.
The repercussions of oil exploration and exploitation extend to soil degradation, hindering agricultural productivity. The presence of crude oil in the environment can suffocate plants and introduce toxic substances, which disrupt the growth of crops and negatively impact food security.
Oil pollution results in the destruction of land and habitable areas, adversely affecting local flora and fauna. This environmental degradation leads to significant deforestation and ecological imbalance, threatening renewable natural resources and various ecosystem functions. In agricultural regions, the contamination of soil and groundwater poses hazards to biodiversity, particularly affecting fishing activities due to the high levels of pollution. The health implications for communities living in polluted areas are severe. Access to safe drinking water is compromised, leading to increased risks of health issues such as respiratory problems, skin diseases, and other illnesses. The adverse conditions also hinder the livelihoods of those dependent on farming and fishing, creating a cycle of economic and environmental challenges in affected regions.
CONSTITUTIONAL AND LEGAL FRAMEWORK FOR RIGHT TO A SAFE AND CLEAN ENVIRONMENT WITH RESPECT TO OIL SPILLS
The 1999 Constitution of Nigeria, as amended, guarantees citizens the right to a safe and healthy environment, specifically outlined in Section 20 of the Fundamental Objectives and Directive Principles of State Policy, found in Chapter 2 of the Constitution. This section establishes that “the state shall protect and improve the environment and safeguard the water, land, forest, and wildlife in Nigeria,” with the primary aim of ensuring a healthy environment for all Nigerian citizens.
However, it is important to note that the right to a clean and healthy environment as articulated in Chapter 2 is considered non-justiciable. This is due to Section 6(6)(c) of the Constitution, which limits the jurisdiction of courts in matters concerning the enforcement of Section 20. As a result, individuals who are aggrieved by environmental issues do not have the legal standing to seek judicial enforcement of this provision. Essentially, when Sections 20 and 6(6)(c) are read together, the right to a healthy environment is viewed more as an aspiration or guiding principle rather than a legally enforceable right.
In Olafisoye v. Federal Republic of Nigeria, the Supreme Court held, per Niki Tobi JSC, that the non-justiciability of Section 6(6)(c) of the Constitution is neither total nor sacrosanct as the subsection provides a leeway using the words “except as otherwise provided by the Constitution.” This means that if the constitution otherwise provides in another section which makes a section or sections of Chapter 2 justiciable, it will be so interpreted by the courts.
Nonetheless, the non-justiciability of Chapter 2 has certain exceptions aimed at protecting and preserving the environment and its inhabitants. One key exception is that the National Assembly, as the legislative branch of government, has the authority to enact specific legislation that enables the enforcement of the principles laid out in Chapter 2. This means that when laws are passed that align with the subjects covered in Chapter 2, individuals may then enforce their legal rights through the courts.
The Oil Pipeline Act of 2004, particularly sections 9 and 11, empowers individuals whose land has been adversely affected by oil exploration activities to seek legal compensation. This legislation reflects the principles laid out in Section 20 of the Constitution, demonstrating a commitment to addressing grievances related to environmental impacts. In addition, there are exceptions to the non-justiciability rule when aspects of Chapter II of the Constitution are referenced or incorporated within justiciable provisions, such as those in Chapter IV. This relationship underscores the concept of interdependence among rights, aligning with the Vienna Declaration from the 1993 World Conference on Human Rights, which asserts that all human rights are universal, indivisible, interdependent, and interrelated. As a result, socioeconomic rights can be recognized and upheld alongside Fundamental Objective provisions when they are interpreted in conjunction with Fundamental Rights.
For instance, the right to a clean and healthy environment, anchored in Chapter II, can be enforced when it is directly connected to the right to life as outlined in Chapter IV. This linkage was affirmed in the case of Jonah Gbemre v. Shell, where the court ruled that gas flaring was unconstitutional due to its infringement on the plaintiff’s rights to life, dignity, and a clean environment. The court emphasized the interconnection between the right to a safe, clean environment and the rights of community residents. Moreover, various regulatory agencies, including the National Environmental Standards and Regulations Enforcement Agency (NESREA) and the National Oil Spills Detection and Response Agency (NOSDRA), along with the Department of Petroleum Resources (DPR), are responsible for overseeing pollution control and mitigating environmental degradation in the country. Despite these established legal frameworks, there remain significant enforcement challenges, particularly in the Niger Delta region, where issues such as oil spills, gas flaring, and deforestation persist as critical environmental concerns.
THE RIGHT TO SAFE AND CLEAN ENVIRONMENT UNDER REGIONAL AND INTERNATIONAL LAW
The right to a safe and clean environment is increasingly recognized within international law through various treaties and conventions. A prominent example is the African Charter on Human and Peoples’ Rights (ACHPR), to which Nigeria is a signatory. Article 24 of the Charter specifically affirms that “All peoples shall have the right to a generally satisfactory environment favourable to their development.” Nigerian courts have interpreted the ACHPR as establishing rights and obligations not only among member states of the Organization of African Unity (now known as the African Union) but also between these states and their individual citizens. There is a suggested relationship between human rights and environmental law, as human rights stem from the inherent dignity of the person, while environmental law addresses the maintenance of that dignity. The Universal Declaration of Human Rights adopted in 1948 emphasizes the right to life and an adequate standard of living, crucial for health and well-being. This emphasis on dignity was further reinforced by the Stockholm Conference of 1972, which asserted that “man has the fundamental right of freedom, equality, and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being.” This marked a significant formal recognition of the right to a healthy environment. Additionally, the Declaration from the United Nations Conference on the Human Environment in Stockholm was reaffirmed in the Rio Declaration on Environment and Development in 1992, which Nigeria also endorsed. The Rio Declaration states that human beings “are entitled to a healthy and productive life in harmony with nature” and establishes that states have a responsibility to prevent environmental damage that could affect other states or areas beyond their national jurisdiction.
The United Nations Framework Convention on Climate Change (UNFCCC) outlines global commitments aimed at combating climate change and its adverse effects. While Nigeria has committed to these international agreements, there has been ongoing criticism regarding the pace and effectiveness of its implementation, particularly concerning climate adaptation and mitigation strategy.
CHALLENGES IN ENFORCEMENT
- Corruption and Weak Institutions: Environmental regulatory agencies in Nigeria encounter significant obstacles such as corruption, underfunding, and limited capacity to effectively monitor and enforce environmental standards. For instance, the National Environmental Standards and Regulations Enforcement Agency (NESREA), which is responsible for enforcing environmental laws, lacks enforcement authority over the oil and gas sector. This limitation prevents NESREA from addressing issues related to pollution, exploration, and exploitation of petroleum and natural gas, thus impeding the pursuit of environmental justice.
- Lack of Political Will: Although Nigeria has established environmental laws, there is often insufficient political will at various government levels to enforce them. A notable example is the non-implementation of Section 8(f) of the NESREA Act of 2007, which empowers NESREA to collaborate with relevant judicial authorities to establish mobile courts for rapidly addressing violations of environmental regulations. Despite the agency’s authority to create these courts, none have been established due to the prevailing lack of political commitment.
- Impact of the Oil Industry: Nigeria’s oil industry is a significant contributor to environmental degradation, causing oil spills, gas flaring, and land contamination. Although laws such as the Oil Pipelines Act and Environmental Impact Assessment (EIA) regulations exist, enforcement within the oil sector is frequently inadequate. The complicity of multinational oil companies, combined with insufficient monitoring and enforcement, has resulted in extensive environmental damage, particularly in the Niger Delta and other oil-producing areas.
- Institutional Challenges: The enforcement of environmental regulations in Nigeria is severely hindered by a lack of essential tools and personnel. The limited implementation of pollution-control regulations can be attributed to inadequate staffing, outdated technology, and a lack of professionalism within enforcement agencies. These institutional challenges significantly restrict the effectiveness of environmental oversight.
CONCLUSION
The right to a safe and clean environment in Nigeria, particularly in relation to oil pollution and climate change, remains a significant challenge. While there is a legal and constitutional framework that recognizes this right, the enforcement is weak, and environmental degradation continues, especially in the oil-producing regions. To address these issues, it is recommended that the institutional framework with respect to environmental rights and enforcement mechanisms should be strengthened. Also, the corporate accountability of oil corporations should be ensured. It is also important that more inclusive policies be adopted that prioritize the health and well-being of citizens.
Contributor
