AN APPRAISAL OF HUMAN RIGHT AND ENVIRONMENTAL DEGRADATION OF OGONI LAND IN NIGERIA
The right to healthy environment is closely integrated in the basic concept of human right, namely the „dignity inherent to all members of the human family„‟ But an environment depredated by pollution and defaced by the destruction of all beauty and variety as in the case of Ogoni land in Nigeria ,is harmful to physical and moral health There is of course an integrals link between the right to healthy environment and other human right in general .oil development has been going on in the Niger Delta area of Nigeria since 1957 and it comes at certain cost to the oil communities ,the magnitude of which remains highly debatable .the task of assessing the precise impact of oil development in the Niger Delta region is daunting and often an impossible one. For most of the studies done so far including the UNEP report commissioned August 2011 are highly controversial. As they appear to largely influenced. Thus a study undertaken by environmental or human rights ,NGOS for example, will lump most of the social and environmental problems in the are on oil development ,while report of the oil companies always insist that their operation are conducted with the highest environmental standard and that oil development is not responsible for most of the environmental problems .Another most popular factor for the inability to determine the impact of oil development in the area, are farming ,fishing .forestry and other activities .these activities combined with oil and gas development and the fragile nature of Niger Delta environment, pose great environmental dangers to the area and which in turn affect the socio-economic life of the people ,which affect the right to life, health, work, dignities of human person ,privacy of the home ,education, among other rights .however it is sad to know that the right to healthy environment is yet to be enforceable in Nigeria ,as well as some other jurisdictions. In this project the writer intend to show the in evitable interrelationship between the right to a healthy Environment, which in the broader sense includes the right to information ,right to participate in decision making by people likely to be affected by such decision and right to available and effective demostic remedies to victim (such right is not yet understood and entrenched in the Bill of right of many jurisdiction) the attainment of all the entrenched right ,such as right to life, dignity of human person, right to health etc, that may be expressly guaranteed under the Bill of right in some jurisdiction .It is intended to show that since 1972 Stockholm conference and all the conventions, protocol and treaties signed pursuant thereto. .It can be shown that not many jurisdiction have it entrenched in their bill of right, the courts have to a very large extend recognize and uphelp the right to a healthy environment as a basic fundamental human right without which all other right Cannot be enjoyed. The project examine the impact of non inclusion of right to environment in the fundamental right in section of the 1999 constitution as amended.
CHAPTER ONE GENERAL INTRODUCTION
1.1 Background to the Study
Ogoni people are one of the many indigenous people in Nigeria, in the region of Southeast Nigeria shared common related Environmental problems with the Ijaw people of Niger Delta. But Ogonis are not listed in the list of people historically belonging to Niger Delta. They number about one million (1,000,000) people and live in a 404 square-mile (11050km2) referred to Ogoni land. They rose to international attention after a massive public protest campaign against Shell Oil, led by the Movement for the Survival of the Ogoni People (MOSOP). Ogoni land sits between Port Harcourt, the oil capital of Nigeria and home to Shell Nigeria and Bonny Island where the main oil-export terminals are located-most Ogoni settlements are near the main river that connects Port Harcourt to the Atlantic Ocean or along other tidal creeks.
Traditionally, the Niger Delta was a fertile region important for food production. The Ogoni were a thriving ethnic nationality. Shell had to leave Ogoni land in 1993 and has not been there since. In early 2011, the Nigerian National Petroleum Corporation (NNPC) announced it planned to restart oil production in Ogoni land on behalf of the Shell Joint Venture. The Ogoni made clear that NNPC is not welcome either.1
As anger in Delta grew, government and oil companies became convinced that action should be taken to prevent a real uprising; they turned to UNEP, an independent,
1 https://ift.tt/2tTZFUI August 24. accessed on the 14th June, 2014
outside institution. State and federal governments agreed on the project plan. The project was started in 2010. The aim was to map all polluted sites in the land so that a plan for clean-up could be constructed. The project was paid by Shell as a UN institution. The people have been victims of human Right violations for many years. In 15 years period from 1976-1991, there were reportedly 2,976 oil spills of about 2.1 million barrels of oil, the once alluvial soil of Niger Delta is no longer viable for agricultural use and attributes to wide spread land degradation and groundwater tested high levels of hydrocarbons or contaminated with benzene. In May 1994, nine activities from the movement, among them Ken Saro-Wiwa were denied due process, upon found equity were hanged, the trail were criticized by human Right; as violation of their Rights under chapter IV 1999 constitution of the Federal Republic of Nigeria.
In Nigeria, though Environmental protection is provided for in chapter II of the 1999 constitution (under fundamental objectives and directive principles of state policy) and not in chapter IV. The Federal High Court Benin has interpreted the constitutionality guaranteed Right to life2 to include the Right to clean, poison-free, pollution-free, healthy environment. In Gbemre v Shell Petroleum Development Company Nigeria Limited and Ors3 the court elevated the status of the Right to environment, to that of a fundamental Right.
2 See section 33(1) of the constitution. 1999 LFN 2004 3 Suit no. FHC/CS/B/153/2005 Unreported, decision given on November 14, 2005.
Africa has made the most outstanding contribution to legal recognition and enforcement of Environmental Rights, this is done through the African Charter on human and people‘s Rights4. It has provided a basis for national legal activity within the African sub-region as held in the case of Fawehinmi v Abacha5 (Per Ogundare JSC) that;
The charter gives to citizens of member states of the Organization of African Unity6 Rights and obligations which Rights and obligations are to be enforced by our courts if they must have a meaning. The charter is a useful tool in Nigeria in achieving the objective of enforcement of the Right to a healthy environment. The basis for Environmental Right enforcement is the 1999 constitution. The constitution under section 20 provides that the state shall protect and;
Improve the environment and safeguard the water, air and land, forest and wild life of Nigerians7
Though the provision is non-justifiable by section 6(6)8 (c) Nigerian Constitution. The Supreme Court held in Attorney-General, Ondo State v Attorney-General of the Federation9 that the National Assembly could legislate on any of the fundamental objectives and Directive principle of State Policy to make it enforceable.
When the United Nations reasons that there must be environmental concern to obtain a god and clear environment to facilitates a high quality life, therefore, the United
4 The African charter came into force on October 21, 1986. 5 (2000) FWLR (pt 4) 557. 6 Now African Union. 7 Section 20 CFRN 1999. 8 1999 (Amended) LFN 2004 9 (2002) a NWLR (pt 772) 222, 272.
Nations Conference on Human Environment and Development held in Stockholm in 1972, attended by 113 nations gave international approval to the principle of sustainable development as a concept that articulates interdependence of environment and development.10 The outstanding impact of the Stockholm Conference was principle 21 stating that:
“States have responsibility to ensure that activities within jurisdiction and control do not cause damage to the environment of other states or areas beyond the limits of their national jurisdiction”.11
Thus the key national legislations including the federal environment protection Act FEPA which has been repealed and replaced by the National Environmental Standards and Regulations Agency (Establishment) Act12. Also by the enactment of the African Charter on human and people‘s Right Act by the national Assembly, Environmental Rights as provided in section 20 of CFRN 1999 have become enforceable in Nigeria. There are challenges with the enforcement mechanisms, and are provided as follows:
1. Public Interest Litigation: The problem with this mechanism is the technical issue of locus standi.
2. Fundamental Right Enforcement Procedure: Here people may encountered technical difficulties in bringing actions in representative capacities.
10 Ladan, M. T. Biodiversity, Environmental Litigation, Human Rights and Access to Environment, Faith Printers and Publishers, 2007, p.20 11 Usman, A. K. Environmental Protection Law and Practices, AJaba Press, Ibadan, 2012, p.136 12 1990 and 2007 respectively.
3. Judicial Intervention: The authority of Gbemre and Shell PDCN Ltd and Ors, is only persuasive as the Federal High Court is a court of coordinate jurisdiction with the other High Court.
4. Pressure Group: The problem here is pressure groups depend mainly on persuasion for success and this is not always very effective.
It is therefore the Hallmark of this research to analyze and provide solutions to the above challenges in Nigeria.
1.2 STATEMENT OF THE PROBLEM
The writer intends to tackle the following problems:
1. Lack of effective mechanism to ensure the representation and participation of minorities and indigenous people in policy and decision making at all level including development projects and programmes.
2. Absence of reviewing in existing land and Environmental legislation, including the mineral Act of 1958, land use Act Decree 1978, and the petroleum Decree of 1969. And the issue of the damaged regions not rehabilitated as provided in article 21.2 and 2.4 of the African Charter on Human and People‘s Rights.
3. The reluctance of Nigerian courts to grant injunctions against companies causing pollution, considering rather the economic impact on the companies and government instead of the need for protection of the environment, property, individual health and, life.
1.3 AIMS AND OBJECTIVES Having recourse to the problem of this research as mentioned above, the aims and objectives of this research is to appraise and in addition analyze the concept of fundamental human Right and Environmental degradation addressing and proffering solutions to the identified issues and challenge as to the enforcement of the fights of the Ogoni people. 1.4 SCOPE AND LIMITATION OF THE RESEARCH The area of coverage for this research as stated above is to analyze the fundamental human Right enforcement and Environmental degradation (case study on Ogoni land). It will also cover recent cases. 1.5 RESEARCH METHODOLOGY Doctrinal method and also empirical shall be mainly adopted in this research which will entail the consideration of statutes, textbooks of both foreign and local authors, journals, case laws conferences, materials form, collection of facts and data through questionnaires, internet and other relevant materials will be consulted. 1.6 LITERATURE REVIEW Writers and Authors vary in their approaches of Environmental Degradation and Human Rights. Whether Environmental protection is considered as aiming at preservation of the Environmental, or humans are to be protected indirectly as components of the environment which they cannot be isolated.
Ehusani A. Jonathan13 in his appraisal, Fundamental Human Right and a Healthy Environment. He explains how Environmental Degradation Violate Civil and Political Rights. Especially in Ogoni land in Nigeria, where companies, such as Texaco, Agip, Chevron, Shell and Exon have operations14. But the learned writer did not cite Nigerian cases to illustrate the hardship on the aggrieved parties thereby creating a vacuum which this writer intends to fill in.
Another writer Akinsola Ruth B., Chijioke Chinewubeze15 states that the Nigerian Constitution provides for a fundamental Right to life in its Section 33 (1). This constitutionally guaranteed Right to life has been interpreted to include Right to clean, poison-free, solution-free, healthy environment. That is encouraging and it is expected that Court of Appeal and Supreme Court will now this line of reasoning provided different mechanisms that may be adopted in enforcement of Environmental Rights, which include public interest litigation, fundamental Right Enforcement procedure, judicial intervention, and pressure groups it is therefore, the intention of the writer to add more mechanisms to be adopted in the enforcement of Environmental Rights.
The need for constitutional provision of fundamental Right to environment cannot be overemphasized, for Gbemre‟s16 case is not yet a binding authority in Nigeria, therefore cannot be relied upon though may be argued that the Right may be enforce under the African Charter on Human and People‘s Right, but the Right does not enjoy a fundamental Right statute in Nigeria, since not provided for under chapter iv of the 1999
13 Fundamental Human Right to Healthy Environment ABU 2011 Vol. 2 P.158 14 Ibid p.161 15 Ibid p.191 16 (1985) 6SC 245-277, (1985) 5 NWLR (pt. 10) at 299-230
Constitution. In Chief (Mrs.) Olufunmilayo Ransome-Kuti & Ors v. Attorney-General of the Federation17. The court considered the nature of fundamental Right when it said; This is no doubt a Right guaranteed to everyone including the appellant by the constitution. But what is the nature of a Fundamental Right? It is a Right, which stands above the ordinary laws of the land and which infact is antecedent to the political society itself. It is a primary condition to a civilized existence and what has been done by our constitution, since independence, starting with the independence constitution, that is the Nigeria (Constitution) order in councils 1960, up to the present constitution, that is the constitution of the Federal Republic of Nigeria, 1979. (The later does not infact apply to this case; It is the 1963 constitution that applies) is to have these Rights enshrined in constitutions, so that the Rights could be ―immutable‖ to the extent to the ―non immutability‖ of the constitution itself. The effect of the Act ratifying the charter is that it domesticates, the provisions of the charter by making the part of ordinary laws of the land, creating ordinary Rights. Until a constitutional provisions of a fundamental Right to environment. The argument that the provision of a substantive Right toe environment in the constitution will lead to a proliferation of Rights, cannot stand as there is no evidence to substantiate the assertion. The courts are to be commended for being able to enforce fundamental Right though not provided for in the 1999 constitution.
On the other hand, another scholar (Maduka, 1998) catalogued major Environmental problems affecting the Niger Delta region in particular where a compendium of major Environmental problems cut across the entire natural environment, livelihood, aspiration and the entire socio-economic spectrum of the Niger
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AN APPRAISAL OF HUMAN RIGHT AND ENVIRONMENTAL DEGRADATION OF OGONI LAND IN NIGERIA