Constitutional right to a healthy environment and human rights approaches to environmental protection in Nigeria: Gbemre v. Shell Revisited

Review of European Community and International Environmental Law

Volumn 16, Issue 3, 2007, Pages 312-320

  Ebeku, Kaniye S A ^a  

^a UNIVERSITY OF NICOSIA   (Cyprus)

Author keywords

[No Author keywords available]

Indexed keywords

CONSTITUTIONAL REFORM; DECISION MAKING; DEVELOPMENT STRATEGY; ENVIRONMENTAL JUSTICE; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; HUMAN RIGHTS;

AFRICA; NIGERIA; SUB-SAHARAN AFRICA; WEST AFRICA;

EID: 38349144657     PISSN: 09628797     EISSN: 14679388     Source Type: Journal    
DOI: 10.1111/j.1467-9388.2007.00570.x     Document Type: Article

References (88)

1. J. Jersch, Infernal Combustion (OneWorldTV, 2005), available at .
2. For more information, see K.S.A. Ebeku, 'The Right to a Satisfactory Environment and the African Commission', 3:1 African Human Rights Journal (2003), 149.
3. See also F.Z. Ksentini, Human Rights and the Environment (E/CN.4/ Sub.2/1994/9/Corr.1, 13 September 1994), Annex III.
4. E.B. Weiss, In Fairness to Future Generations: International Law, Common Patrimony, and Intergenerational Equity (Transnational Publications, 1989), Appendix B.
5. Some national constitutions combine these two approaches, and in a few cases (e.g. in Nigeria) such a constitutional duty to protect the environment is unjusticiable - i.e. it cannot be enforced by the action of an aggrieved citizen. Note that some older national constitutions were recently amended to incorporate the right to a healthy/clean environment (see below).
6. The provisions of the national constitutions referred to in this article can be found in R. Wolfrum and R. Grote (eds), Constitutions of the Countries of the World (Oceana Publications, 2005). Note that this publication is arranged in various binders and constantly updated.
7. Constitution of the Republic of Mali 1992 (promulgated by Decree No 92-073 on 25 February 1992), Article 15, states 'Every person has the right to a healthy environment. The protection and defense of the environment and the promotion of the quality of life are a duty for all and the state'.
8. Constitution of the Democratic Republic of Congo (DRC) 2005 (adopted by referendum on 18 December 2005), Article 53, states 'All persons have the right to a healthy environment that is favourable to their development. They have the duty to defend it. The state ensures the protection of the environment and the health of the population'. Note that the Constitution of the Republic of Congo (also known as Congo Brazzaville) 1992 (adopted by referendum by the Congolese people on 15 March 1992), Article 46 similarly provides 'Each citizen shall have the right to a healthy, satisfactory, and enduring environment and the duty to defend it. The State shall strive for the protection and the conservation of the environment'.
9. Constitution of the Republic of Malawi 1994 (enacted by the Republic of Malawi (Constitution) Act, 1994 (No 20 of 1994)), Section 13(d), states 'The State shall actively promote the welfare and development of the people of Malawi by progressively adopting and implementing policies and legislation aimed at achieving the following goals ... To manage the environment responsibly in order to - (i) prevent the degradation of the environment; (ii) provide a healthy living and working environment for the people of Malawi; (iii) accord full recognition to the rights of future generations by means of environmental protection and sustainable development of natural resources; and (iv) conserve and enhance the biological diversity of Malawi'.
10. Constitution of the Republic of Uganda 1995 (adopted by the Ugandan Constituent Assembly on 22 September 1995), Section 39, states 'Every Ugandan has a right to a clean and healthy environment'. See also the National Objectives and Directive Principles of State Policy incorporated into the 1995 Constitution of the Republic of Uganda, Section XXXVII: '(i) The State shall promote sustainable development and public awareness of the need to manage land, air, water resources in a balanced and sustainable manner for the present and future generations. (ii) The utilization of the natural resources of Uganda shall be managed in such a way as to meet the development and environmental needs of present and future generations of Ugandans; and in particular, the State shall take all possible measures to prevent or minimize damage and destruction to land, air and water resources resulting from pollution or other causes. (iii) The State shall promote and implement energy policies that will ensure that people's basic needs and those of environmental preservation are met. (iv) The State, including local governments, shall - (a) create and develop parks, reserves and recreation areas and ensure the conservation of natural resources; (b) promote the rational use of natural resources so as to safeguard and protect the bio-diversity of Uganda'.
11. Constitution of the Republic of South Africa 1996 (adopted by the South African Constitutional Assembly on 8 May 1996 and approved by the Constitutional Court of South Africa on 4 December 1996: Act 108 of 1996), Section 24, states 'Everyone has the right (a) to an environment that is not harmful to their health or well-being; and (b) to have the environment protected, for the benefit of present and future generations, through reasonable legislative and other measures that (i) prevent pollution and ecological degradation; (ii) promote conservation; and (iii) secure ecologically sustainable development and use of natural resources while promoting justifiable economic and social development'.
12. The Political Constitution of the Republic of Costa Rica 1949 (enacted by the National Constitutional Assembly on 7 November 1949) (as amended by Article 1, Law No 7412, 3 June 1994), Article 50, states 'Every person has the right to a healthy and ecologically balanced environment, being therefore entitled to denounce any acts that may infringe said right and claim redress for the damage caused. The State shall guarantee, defend and preserve that right. The Law shall establish the appropriate responsibilities and penalties'.
13. The Political Constitution of Chile 1980 (approved by plebiscite on 11 September 1980, as amended), Article 19(8), states 'The right to live in an environment free from contamination. It is the duty of the state to watch over the protection of this right and the preservation of nature'.
14. Constitution of the Portuguese Republic 1976 (adopted by the Portuguese Constituent Assembly on 2 April 1976, as amended), Article 66, states: '(1) Everyone has the right to a healthy and ecologically balanced human environment and the duty to defend it. (2) It is the duty of the State, acting through appropriate bodies and having recourse to or taking support on popular initiatives, to: A) Prevent and control pollution, its effects and harmful forms of erosion; b) Order and promote regional planning aimed at achieving a proper location of activities, a balanced social and economic development, and resulting in biologically balanced landscapes; c) Create and develop natural reserves and parks and recreation areas and classify and protect landscapes and sites so as to ensure the conservation of nature and the preservation of cultural assets of historical or artistic interest; d) Promote the rational use of natural resources, safeguarding their capacity for renewal and ecological stability.
15. Constitution of the Republic of Bulgaria 1991 (promulgated by State Gazette No 56 of 13 July 1991, as amended), Article 55, states 'Citizens shall have the right to a healthy and favorable environment corresponding to the established standards and norms. They shall protect the environment'.
16. Constitution of the Republic of Philippines 1987 (adopted by the Constitutional Commission on 12 October 1986), Article II, Section 16, states 'The state shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature'.
17. Constitution of the Republic of India 1949 (enacted by the Constituent Assembly on 26 November 1949, as amended), Articles 48A and 51A(g), state '48A. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. 51A (g). It shall be the duty of every citizen of India ... to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures'.
18. Constitution of the State of Hawaii 1959 (adopted by the people on 27 June 1959, as amended), Article XI, Section 9, states 'Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality, including control of pollution and conservation, protection and enhancement of natural resources. Any person may enforce this right against any party, public or private, through appropriate legal proceedings ...'.
19. Constitution of the State of Massachusetts 1780 (adopted by the people on 2 March 1780, as amended), Article XCVII, states 'The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and aesthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose'.
20. For information, see K.S.A. Ebeku, 'Judicial Contributions to Sustainable Development in Developing Countries: An Overview', 15:3 Environmental Law and Management (2003), 168.
21. For detailed information, see A. Boyle and M.R. Anderson (eds), Human Rights Approaches to Environmental Protection (Clarendon Press, 1998).
22. Ibid.
23. Subhash Kumar v. State of Bihar (1991) AIR 420.
24. Ibid., at 424.
25. See also Rural Litigation and Entitlement Kendra v. State of U.P. (1985) AIR 652 SC.
26. M.C. Mehta v. Union of India (1988) AIR 1115 SC.
27. M.C. Mehta v. Union of India (Ganga Water Pollution Case) (1988) AIR 1037 SC.
28. M.C. Mehta v. Union of India (1996) 4 SCC 750.
29. Mathur v. Union of India, (1996) 1 SCC 119 (air and water pollution case).
30. Church of God (Full Gospel) in India v. KKR Majestic Colony Welfare Association (2000) AIR 2773 SC.
31. Zia v. WAPDA (1994) PLD 693, available at . (I am grateful to two Pakistani lawyers, Aurangzeb Khan and Mohammad Arshad Iqbal, for sending me (in Nicosia, Cyprus) the printed version of this case from Pakistan).
32. Ibid., at 712-713 per Akhtar J.
33. Mohiuddir Farooque v. Bangladesh and Others (1997) 17 BLD (AD) 1, available at .
34. Ibid., at 33, per Choudhury J.
35. Organización Indígena de Antioquia v. Codechoco y Madarien, Decision of the Third Agrarian Court of the District of Antioquia, Colombia (24 February 1993).
36. noted in Ksentini, n. 2 above, at para. 91.
37. Carlos Roberto García Chacón, Sala Constitucional de la Corte Suprema de Justicia, Decision 3705/93 of 30 June 1993 (unreported).
38. noted in Y.K. Sabharwal, Human Rights and Environment (Supreme Court of India, undated), available at .
39. EHP v. Canada, Communication 67/1980 (UN Doc. CCPR/C/OP/1, 27 October 1982), at 20.
40. International Covenant on Civil and Political Rights (G.A. res. 2200A (XXI), 16 December 1966).
41. See EHP v. Canada, n. 29 above, at 22.
42. Inter-American Commission on Human Rights 5 March 1985, Case No 7615, Yanomami v. Brazil (OEA/Ser L/V/II 66, Doc 10 rev. 1).
43. American Convention on Human Rights (San Jose, 22 November 1969). For more information, see K.S.A. Ebeku, n. 2 above, at 155 (footnote 21).
44. See also a similar decision of the African Commission on Human and Peoples' Rights in Communication 155/96 - The Social and Economic Rights Action Centre and Another v. Nigeria (decided at the thirtieth Ordinary Session held in Banjul, The Gambia 13-27 October 2001), available at .
45. Noted in P.R. Kalas, 'International Environmental Dispute Resolution and the Need for Access by Non-State Entities', 12:2 Colorado Journal of International Environmental Law (2001), 218. Note that the petition was brought by the Confederacion de Nacionalidades Indigenas de la Amazonia Ecuatoriana (CONFENIAE), but the author did not mention the name of the case. For more information, see Report on the Situation of Human Rights in Ecuador (OEA/Ser.L/V/II.96, Doc. 10 rev. 1, 24 April 1997), available at .
46. It is important to mention that the Inter-American Court of Human Rights (whose decision is binding unlike the Inter-American Commission on Human Rights whose decision is recommendatory) also adopts the human rights approach to environmental protection. See, e.g., its decision in The Mayagna (Sumo) Awas Tingni Community Case (Awas Tingni v. Nicaragua), [2001] IACHR 9 (9 August 2001).
47. The Constitution was promulgated into law by the Federal Military Government of Nigeria on 5 May 1999. See Constitution of the Federal Republic of Nigeria (Promulgation) Decree No 24 of 1999 (the Constitution is a schedule thereto).
48. Section 6(6)(c) of the Constitution of the Federal Republic of Nigeria 1999 states 'The judicial powers vested in accordance with the foregoing provisions of this section - shall not except as otherwise provided by this Constitution, extend to any issue or question as to whether any act of (sic) 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 [under which section 20 falls]'.
49. A similar provision in India has been enforced by the courts in several cases. See, e.g., State of Madras v. Champakan Dorairajin (1951) AIR SC 226.
50. Tellis v. Bombay Municipal Council (1987) LRC (Const.) 351 (Ind. SC). See further the cases cited in n. 22 above.
51. See P.D. Okonmah, 'Right to a Clean Environment: The Case for the People of the Oil-Producing Communities in the Nigerian Delta', 41:1 Journal of African Law (1997), 43, esp. at 66.
52. African Charter on Human and Peoples' Rights (Nairobi, 27 June 1981).
53. See also Article 16, which states 'Every individual shall have the right to enjoy the best attainable state of physical and mental health. State Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick'. African Charter on Human and Peoples' Rights, ibid., Ariticle 16.
54. See n. 34 above.
55. A similar conclusion was reached by the Nigerian Supreme Court in Abacha v. Fawehinmi, [2000] 6 NWLR (Pt. 668) 228. The Charter was incorporated into Nigerian domestic law by the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act 1983 (Cap A9, Revised Laws of the Federation of Nigeria (LFN) 2004; formerly Cap 10 LFN 1990).
56. Federal High Court, Benin 14 November 2005, Unreported Suit No FHC/B/CS/ 53/05, Gbemre v. Shell (Judge C.V. Nwokorie). The officially certified full-text of the judgment in this case can be found at . It should be noted that this case was actively supported by a London-based environmental nongovernmental organization, the Climate Justice Programme.
57. K.S.A. Ebeku, 'Locus standi in Environmental Nuisance Actions: A Perspective from the Commonwealth', 17:1 ELM (2005), 14.
58. K.S.A. Ebeku, 'Judicial Attitudes to Redress for Oil-Related Environmental Damage in Nigeria', 12:2 RECIEL (2003), 199.
59. M.L. Uwais, Recent Development in Nigeria Strengthening Legal and Institutional Framework, Paper presented at the Global Judges Symposium in Johannesburg, South Africa, 18-20 August 2002, available at .
60. Ibid. Note that Chief Justice Uwais retired from the Supreme Court of Nigeria on 12 June 2006 at the age of 70 years.
61. There was also a third, though essentially a nominal, respondent - the Attorney-General of the Federation.
62. See Gbemre v. Shell, n. 43 above, at 4-5.
63. These facts are supported by the findings of a recent report, Gas Flaring in Nigeria: A Human Rights, Environmental and Economic Monstrosity (Friends of the Earth/Environment Justice Programme, 2005), available at .
64. See Gbemre v. Shell, n. 43 above, at 30-31.
65. Among others, the Constitution provides for right to life, right to dignity of the human person, right to personal liberty and right to fair hearing.
66. See Gbemre v. Shell, n. 43 above, at 14-15.
67. Ibid.
68. Ibid., at 31.
69. Warri High Court 26 November 1973, Unreported Suit No W/89/
70. Alar Irou v. Shell-BP Development (Nig.) Ltd.
71. Chinda v. Shell-BP, [1974] 2 RSLR 1.
72. Ogiale v. Shell, [1997] 1 NWLR (Pt. 480) 148. See further, K.S.A.
73. See K.S.A. Ebeku, 'Compensation for Damage Arising from Oil Operations: Shell Petroleum Development Company of Nigeria v. Ambah Revisited', 7 International Energy Law and Taxation Review (2002), 155.
74. Correspondence from Peter Roderick (email) to the author (11 July 2007).
75. Correspondence from B.E.I. Nwofor (email) to the author (6 August 2007).
76. Adopting the human rights approaches to environmental protection must surely be recognized as a bold and courageous step taken by the judge.Ebeku, n. 45 above.
77. See, e.g., Abioye v. Yakubu, [1991] 5 NWLR (Pt. 190) 130.
78. A.-G., Federation v. A.-G., Abia State & 35 Others (Mo. 2), [2002] 6 NWLR (Pt. 764) 542. The practice of inviting amici curiae in important cases is supported by the view of Megarry J that 'argued law is tough law ... [and] by good disputing shall the law be well-known'.
79. See Cordell v. Second Clanfield Properties Ltd, [1967] 2 Ch 9, at 16-17.
80. K.S.A. Ebeku, n. 44 above, at 21 (footnote 70). In India, a similar fast-track procedure under Article 32 of the Indian Constitution of 1949 has been accepted as a proper way of bringing an action to enforce right to the environment as part of the right to life; see Subhash Kumar v. State of Bihar, n. 21 above.
81. See Gbemre v. Shell, n. 43 above, at 17.
82. See K.S.A. Ebeku, 'Legal Remedies for Victims of Environmental Pollution in Nigeria', 2:2 Nigerian Law and Practice Journal (1998), 77.
83. K.S.A. Ebeku, Oil and the Niger Delta People in International Law (Rüdiger Köppe Verlag Publishers, 2006), at 158-170.
84. See Gbemre v. Shell, n. 43 above, at 15 (para. 7).
85. From available information, there are some pending cases, which are based on the Gbemre idea, filed by the same lawyer who filed the Gbemre case; e.g. Ikechukwu Okpara and 3 Others (For themselves and as representing Rumuekpe, Eremah, Akala-olu and Idama Communities in Rivers State) v. Shell Petroleum Development Company of Nigeria Ltd. and 4 Others, Suit No FHC/CS/PH/518/2005 (pending).
86. Study after study suggest that the oil multinational companies operating in the Niger Delta region of Nigeria (including Shell) do not give due consideration to environmental issues; hence their operations frequently occasion environmental damage. See, e.g., J.P. Eaton, 'The Nigerian Tragedy, Environmental Regulation of Transnational Corporations, and the Human Right to a Healthy Environment', 15:1 Boston University International Law Journal (1997), 261.
87. and K.S.A. Ebeku, n. 59 above.
88. In Zia v. WAPDA, n. 23 above, the Supreme Court of Pakistan asserted that 'constitutional rights are higher than legal rights conferred by law be it municipal law or the common law' (at 712, per Akhtar J). The counsel for the applicant in Gbemre case, B.E.I Nwofor (a Senior Advocate of Nigeria (SAN)), must be commended for being the first lawyer in Nigeria to pursue the constitutional human rights approach to environmental protection (he also invoked the legal right to environment in the case). I am also personally indebted to him for providing me with some useful information regarding the Gbemre case.