Content uploaded by Eghosa Ekhator
Author content
All content in this area was uploaded by Eghosa Ekhator on May 04, 2016
Content may be subject to copyright.
A preview of the PDF is not available
Improving Access to Environmental Justice under the African Charter on Human and Peoples’ Rights: The Roles of NGOs in Nigeria
Abstract
Nigeria is a signatory to the African Charter on Human and Peoples’ Rights(‘African Charter’). The African Charter was domesticated into Nigerian law via the instrumentality of the African Charter on Human and Peoples’ Rights
(Enforcement and Ratification) Act 1983.1 The abundance of case law in Nigeria
on the African Charter suggests that the domestication of the charter has
broadened the domestic enforcement rights. Accordingly, the charter has both
international and human rights ramifications for environmental justice in Nigeria.Despite the importance of the charter to human rights enforcement,
environmental justice is still very much a pipe dream in Nigeria. The reasons
for this conundrum include the weak regulatory regime in the oil and gas industry,
the lack of political will by regulatory agencies to enforce oil and gas laws and
regulations, the endemic corruption and judicial obstacles amongst others.This paper will focus on the various strategies used by non-governmental
organisations (NGOs) to improve access to environmental justice by stakeholdersvia the instrumentality of the African Charter. Furthermore, it will provide acritique of the oil and gas industry in Nigeria where environmental injustice ordegradation arising mainly from the activities of the oil multinational corporations(oil MNCs) are localised.
Notwithstanding the institutional barriers to environmental justice in Nigeria,NGOs have utilised the provisions of the African Charter to improve access toenvironmental justice for victims of the activities of the oil and gas multinationalcorporations (oil MNCs) operating in the Niger Delta region of Nigeria.
... • Environmental justice doctrine has flourished globally, especially in places with a history of environmental degradation (Ekhator, 2014). • The environmental justice paradigm has become a global movement that is no longer limited to the experiences of ethnic minorities in the United States (Sikor and Newell, 2014;Agyeman, 2014;Martinez-Alier et al., 2016). ...
... • Here, access or control and ownership of natural resources by the inhabitants of the Niger Delta region (where the oil and gas industry is located) are the underlying factors in the environmental justice paradigm in Nigeria. (Ekhator 2014). ...
... • Thus, it can be argued that the environmental justice paradigm is now a global movement which is no longer localised to the experiences of the ethnic minorities in the USA. (Ekhator 2014) • The ambit of environmental justice in Africa is wider, with issues pertaining to access to natural resources being a major component (Ako in • Hence, it has been suggested that 'Africans seek to exist side-by-side and peacefully with nature and treat it with judicious concern for its worth, survival and sustainability. Again, the African traditional viewpoint is more cosmically humble, more respectful of other people, and more cautious in its attitude to plants, animals, and inanimate things and to the various invincible forces in the world. ...
Environmental justice is a new paradigm for achieving healthy and sustainable environment or communities and it is a culmination of more than 500 years of struggle by people of colour in the USA to achieve this (Ekhator 2014). Historically, environmental justice emerged as a counter measure to the discontent and inherent racism entrenched in government policies in the Deep South of the USA in the 1960s and 1970s. The significance of the doctrine varies depending on the context or the country in focus (Ekhator 2017). However, it is now applied to a widening spectrum of serious social concerns, particularly those related to communities that suffer from social inequity attributed to environmental inequalities (Ako 2009). The environmental justice doctrine has flourished and it has spread to all corners of the world, especially areas with a history of environmental abuse or degradation. Countries to which the doctrine has diffused include Nigeria, South Africa, and India, amongst others.
This presentation focuses on the environmental justice paradigm in the Global South and highlights some of the recent trends and developments in this sphere. Some of the issues that will be in focus in this presentation include the conceptualisation of environmental justice doctrine from Global South perspectives, role of sub-regional and regional courts/mechanisms in the promotion of environmental justice, collaboration between western-based NGOs and NGOs in the Global South, the utility of the right to environment as one of the strategies of promoting environmental justice in the Global South and the role of environmental justice paradigm in the conceptualisation of climate litigation jurisprudence in the Global South.
Thus, in essence, this presentation argues that ‘from its origins in grassroots activism and engaged sociological scholarship, primarily in the USA, environmental justice research has generated what is now a vast, multi-disciplinary literature encompassing a wide range of issues and politics’ in the Global South (Holifield, Chakraborty & Walker 2017).
... Principle 10 of the Declaration was the first internationally agreed commitment that recognised the rights of people to hold their governments to account for environmental policies and laws. 29 It calls upon states to ensure that each individual has access to information, public participation in decision making in environmental matters. 30 Access to information, public participation, and access to justice are keys to more transparent, inclusive, and accountable decision-making in matters affecting the environment. ...
The journey through the development of the right to clean, safe and sustainable environment has not been an easy ride. Since the first attempt to link human right and the environment began in 1972 at Stockholm, the United Nations has tried to sustain the temple of the agitations through various soft laws and treaties aimed at encouraging states in the domestication and implementation of national laws protective of the right to the environment. This journey came to a successful climax when the United Nations General Assembly in 28 July 2022 resolved officially recognising the right to clean, healthy and sustainable environment as a universal human right. This paper is an analytical survey of the progressive development of environmental rights at international law through the 5 decades (1972-2022) and the impact it has made at regional and domestic levels as well as how it has inspired the world into greener human rights.
... In practice, affected stakeholders face a range of legal and practical barriers in accessing judicial remedy, including meeting the burden of proof, the costs of accessing legal advice, and the availability of class or group actions. 138 Consequently, NGOs have pushed for the advancement of this principle in the energy policy regime due to its strong emphasis on judicial grievance mechanisms with optimism that it will help to further the objectives of the HBRA framework. ...
This article addresses the potential widespread conflict between the development of energy access projects and human rights risks and violations in Africa. While this conflict is well known in the continent of Africa due largely to the need to increase energy access, solutions to tackle it are scarce. This article proposes using the United Nations (UN) Human Rights-Based Approach (HRBA) strategically to create a new framework to conceptualize and solve such conflict. For this purpose, it analyses the effectiveness of the HRBA framework, whilst highlighting some of the challenges facing its implementation in African countries. The article concludes that until human rights risks and violations – considered to be ‘energy injustice’ concerns – are mainstreamed through the HRBA framework and its principles into the plan and development of energy access projects, the conflict will continue to rise and may become another dilemma similar to the environmental protection and energy development discourse in Africa.
... This deliberate strategy of NEITI's engagement with CSOs can be linked to a coalition of CSOs efforts to fuel by "Publish What You Pay" campaign that sensitized the Nigerian people on the inherent benefits accruing from EITI operations to the extractive companies, government and Nigerian public. In addition, CSOs have been active in providing inputs and the NIETI boards (management) have been giving out training and support to strengthen the capacity of CSOs' effective participation in the NEITI in the country Eghosa [41]. ...
Background: Nigeria is blessed with abundant natural resources, which accounts for over 65% of her total tax revenue, motivated mostly by an upsurge in export earnings from the oil and gas sector. Most of the resource-based conflicts are caught up by the unfair and inequitable distribution of benefits accruing to resources. The government and some acclaimed elite, in alliance with foreign corporations, enjoy the gains and benefits of the exploited resource. Meanwhile, the host-communities face the devastating and undesirable environmental impacts with discrepancy between indigenous traditional laws and state laws that define ownership of natural resources in a federal structure has led to controversial relations among states in Nigeria. Objectives: The paper took an extensive look at the politics of natural resource governance in Nigeria and explored broadly the themes through which the causative link between natural resources and conflicts can be distinguished. The study further explores the role of good governance of natural resources in promoting socioeconomic and people-centred development in Nigeria. Methods: The paper relied solely on secondary sources of data, focusing on the three main variables: conflict, politics and power. Results: The study revealed among others that the political economy of natural resources as embedded within the broader global power relations has not been properly explored by the Nigerian government. Conclusion: The paper therefore concludes that regulation must be attached to reflect on the principles of good governance, especially democracy, rule of law, transparency and accountability, as well as efficient and equitable management and distribution of resource revenues.
Corporate Social Responsibility (CSR) has been tagged as “one of the buzzwords of the millennium” due to its growing popularity in contemporary discourse among corporations and individuals. On the other hand, climate change has emerged as one of the most pressing global challenges due to its adverse effects on the environment. The oil and gas industry plays a pivotal role in climate change as a result of high emissions of greenhouse gases due to the heavy reliance on fossil fuels. This dissertation examines the Corporate Social Responsibility of oil majors in addressing climate change in Nigeria due to the impact of their activities on the environment. The aim of this dissertation is specific in analysing the legal and regulatory frameworks governing the CSR of oil majors towards addressing climate change in Nigeria. The doctrinal research methodology which undertakes library-based desk research of literature and investigations into primary and secondary sources of law was adopted for this research. The study relied on the primary and secondary sources of law including statutory provisions and case laws, written texts by scholars and reports from reputable institutions. The research observed that the CSR of oil majors in Nigeria places more emphasis on philanthropy rather than environmental protection and climate change mitigation. This is due to the wide perception of what CSR entails in the country and also due to the nature of the legal and regulatory frameworks governing the CSR of oil majors in Nigeria. The research revealed that the 1999 Constitution of the Federal Republic of Nigeria (as amended) does not expressly provide for the rights of its citizens to a clean, safe and healthy environment. It is merely an obligation as provided under the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the constitution and as such lacks any legal enforcement whatsoever as can be seen from the combined reading of sections 20 and 6(6)(c) of the Constitution. The research observed some gaps in the legal and regulatory frameworks governing the CSR of oil majors in addressing climate change in Nigeria when compared to international conventions and best practices. This dissertation finds that there is an inadequacy of law governing the CSR of oil majors in addressing climate change in Nigeria and concludes by providing recommendations that can help gear the CSR of oil majors in Nigeria towards environmental protection and climate change mitigation as opposed to mere philanthropic gestures.
Keywords: Corporate Social Responsibility (CSR), Oil Majors, Climate Change, Nigeria.
"Advances in Environmental Law" is a ground-breaking exploration of the ever-evolving field of environmental jurisprudence, providing a comprehensive examination of key themes such as Environmental Law, Climate Law, European Law, Globalization, Indigenous Peoples, Right to Clean Environment, Environmental Litigation, Clean Energy, Sustainable Development, and Environmental Policy. Authored by leading experts in the field, this book serves as a vital resource for legal professionals, policymakers, academics, and anyone passionate about the intersection of law and environmental sustainability. Foreworded by eminent and high stature legal scientist, Prof. Dr. Anatoly Getman, who is State honoured esteemed Rector of Ukraine’s the only National Law University in the name of Yaroslav the Wise, this book begins by dissecting the foundations of Environmental Law, offering a detailed analysis of international and domestic legal frameworks that shape environmental governance. It delves into the intricate web of treaties, conventions, and agreements that guide nations in their commitment to preserving the planet's health. A significant focus is placed on Climate Law, exploring the legal mechanisms designed to address the urgent challenges of climate change. The book navigates through international climate agreements, domestic legislation, and the role of environmental courts in shaping policies aimed at mitigating and adapting to the impacts of a changing climate. In the context of European Law, the book investigates the specific legal frameworks within the European Union that govern environmental protection and sustainability. It explores landmark cases and legislative developments that have shaped the continent's approach to ecological conservation and climate action. Globalization emerges as a key theme, with the book scrutinizing the legal implications of interconnected economies on environmental practices. It addresses the challenges and opportunities presented by the globalized nature of environmental issues, emphasizing the need for transnational cooperation and legal instruments. Indigenous Peoples' rights and their role in environmental governance are explored in depth, recognizing the unique perspectives and contributions of indigenous communities in environmental conservation. The book critically examines legal frameworks that safeguard indigenous knowledge and territories. The Right to a Clean Environment is a fundamental principle underpinning the book's exploration. It discusses the evolution of this right and its implications for legal systems worldwide, emphasizing its role in shaping environmental policies and promoting justice. Environmental Litigation is scrutinized as a powerful tool for advocacy and accountability. The book analyses landmark environmental cases, shedding light on the role of the judiciary in influencing environmental policies and holding violators accountable. Clean Energy and Sustainable Development are discussed in the context of legal frameworks that promote the transition to environmentally friendly practices. The book examines the role of law in incentivizing clean energy initiatives and fostering sustainable development. Environmental Policy is a recurring theme throughout the book, with a focus on the development, implementation, and evaluation of policies aimed at addressing pressing environmental challenges. Thus, the "Advances in Environmental Law" is a timely and authoritative work that not only captures the current state of environmental jurisprudence but also paves the way for future developments in the field. With its interdisciplinary approach and emphasis on global perspectives, this book is an invaluable resource for anyone seeking a deeper understanding of the intricate interplay between law, the environment, and sustainable development.
The judiciary, an important branch of government responsible for legal interpretation, dispute resolution, and justice administration, holds a crucial role in national environmental protection. Courts play a key role in safeguarding a nation's environment by interpreting constitutional provisions related to environmental protection and other legislative frameworks. The effectiveness of a country's environmental protection is contingent on the assertiveness, creativity, and innovation of its judiciary in interpreting laws, policies, and regulations designed for environmental preservation. The widely held belief is that the judiciary, more than any other institution, is best positioned to adjudicate, inform, guide, and lead in environmental protection. A proactive, inventive, and inspirational judiciary motivates the executive and legislative branches to implement pertinent environmental laws, policies, and regulations. This study utilizes a doctrinal research methodology to comprehensively review and compare the environmental protection frameworks in Nigeria, India, and Canada. The focus is on constitutional provisions related to environmental protection and judicial interpretations, particularly in the context of Environmental Impact Assessment (EIA) laws. While explicit constitutional provisions on environmental protection are absent in Canada, India, and Nigeria, the courts in India and Canada have demonstrated creative interpretation of their constitutions to safeguard the environment. Notably, in India, environmental protection falls under the non-adjudicable Directive Principles of State Policy (DPSP).
1. Abstract: This paper is primarily centered on interaction between the advancement of the East African Crude Oil Pipeline (herein after the EACOP) on one hand and aspects of human rights on the other hand. This paper shall seek to borrow ideas from land rights, environmental rights and other right based narratives in demonstrating how and why the EACOP project is not only the most exciting socioeconomic but also a project giving room for opposing phenomenological discourses most of which are hinged upon ideas of human rights. This analysis shall therefore adopt a comparative as well as a reflective research design in asserting that in as much as the project is economically viable, lesson must be picked from other developing regions where similar projects have culminated into detrimental consequences upon the communities.
Environmental litigation and enforcement of environmental rights remain a global challenge to sustainability, especially in developing countries such as Nigeria. The increasing rates of industrial activities have led to increase in production of hazardous substances posing threat to lives of the inhabitants of the environment. Victims of environmental harm most times find it difficult to protect and enforce their environmental rights. Proving environmental harm such as damages to property in litigation to enforce rights of compensation or restoration for damages suffered becomes difficult due to locus standi technicalities and undue delays during trials. Sometimes victims are faced with financial constraint in pursuing the course of justice which involves retaining the services of a lawyer and expert witnesses. This paper, therefore, examines the prospects and challenges to proving environmental harm in litigation. This paper employs doctrinal legal research methodology and content analysis of both primary and secondary sources in relation to proving environmental harm in litigation. On this premise, this paper recommends the application of the principle of Res Ipsa Loquitur in trials of environmental cases. Proving environmental harm for the enforcement of environmental rights by victims, should be totally devoid of technicalities of law during trials. This will in turn promote the course of justice in cases dealing with environmental harm.
INTRODUCTION Is there a human right to security from climate change? A recent ruling by the Federal High Court of Nigeria suggests that there is. Royal Dutch/Shell Group (Shell) and the other companies that produce oil in Nigeria have engaged for decades in a practice called “gas flaring,” in which natural gas released during oil extraction is burned off, discharging large clouds of greenhouse gases and other pollutants into the atmosphere. Citing the climatic and other environmental impacts of gas flaring on their community, Nigerians living near the flares filed a lawsuit charging that the practice violates their fundamental rights to life and dignity guaranteed under the Nigerian constitution. In a ruling on November 14, 2005, the Federal High Court of Nigeria agreed and ordered Shell and the Nigerian National Petroleum Corporation “to take immediate steps to stop the further flaring of gas” in the plaintiffs' community. Although the court's ruling thus far has had little practical effect – the oil companies have yet to comply and are appealing the order – it opens up intriguing possibilities for crafting legal approaches to the problem of climate change. Little analysis of the plaintiffs' climate change claim accompanied the Nigerian court's ruling, but the notion that actions that contribute substantially to climate change may violate fundamental constitutional or human rights is intuitively appealing.
The article traces the evolution of FREP rules in Nigeria and highlights the problems which gave rise to FREP Rules, 2009. The article discusses the new rules and acknowledges that their objectives are laudable. For instance, the new Rules had to a large extent solved the thorny issues of how to commence human rights actions, expensive filing costs, service and limitation of action. However, the article notes that it is unusual for Rules of Court to have a preamble. The FREP Rules, 2009, therefore, depart from the usual standard. The fact that the laudable objectives of the FREP Rules are contained in a preamble may minimise their legal effect since preambles do not have the same legal force as substantive provisions. What is more, a number of provisions of the Rules are inconsistent with the provisions of the Constitution of Nigeria, 1999, and stand the risk of being declared null and void to the extent of their inconsistency in adversarial proceedings. There are a few provisions in the FREP Rules, 2009, which may be adverse to the interest of victims of human right violations compared to the FREP Rules, 1979. These include the abolition of application for leave of court and the requirement to front-load evidence together with a written address before commencing an action. These requirements may be counter-productive as counsel will require more time for research. Also, the Court of Appeal decision and the argument that FREP Rules have a constitutional flavour are misconceived and may be counter-productive as it will introduce rigidity into the review of the rule. The challenges posed with the enforcement of human rights in Nigeria are multi-faceted (constitutional, judicial and social). Therefore, a simplistic attempt to solve them through a review of the FREP Rules is surely inadequate. The article calls for legislative intervention to make the provisions of chapter II enforceable and to amend section 12(1) which requires domestication of treaties and conventions as a precondition for their enforcement.
Recent developments in Africa have witnessed the establishment of African Court of Human Rights and African Court of Justice; and the eventual merger of the two Courts as the African Court of Justice and Human Rights. The Courts were established to compliment the protective mandate of African Commission on Human Rights. The establishment of African Human Rights Courts has catapulted scholars into considering whether the option is better for African human rights system or whether it was taken impetuously. The question is imperative in view of the problems that besiege the African Commission. This article considers the foreseeable hurdles that the African Court of Human Rights and the merged Court are likely to face. It points out that the African human rights system was built on a shaky foundation and suggests ways for revamping the system.
Only recently, the jurisdiction of the Court of Justice of the Economic Community of West African States, which was hitherto opened only to Community States, was expanded to allow direct human rights violation claims by individuals. Though the court has since started to function, its impact is yet to be felt - citizens of recalcitrant Community States still live in wanton violation of their rights in most of the States, where national courts are weak and effective remedies for rights violations largely nonexistent. This is consequent upon the failure of Community States to align their national laws with the new legal order represented by the Community Court; national laws and indeed national courts are still very hostile to the court and its judgements, thereby discouraging citizens from attending the court. This Article takes a look at the relevant provisions of the constitutions of Community States and advocates an urgent need for the cooperation to be forged between national legal systems and the community legal system through the amendment of hostile laws, as a prerequisite to the achievement of the virile community legal order.
This article is devoted to the highly important task of mapping, contextualizing and highlighting the significance ofsome of the modest achievements that have been made by domestic human rights NGOs in Nigeria.! As limited as the development of these NGOs into much more popular (and therefore more influential) movements has tended to be, they have nonetheless been able to exert significant, albeit modest, influence within Nigeria.
One of the constitutional challenges of regional integration is how to manage the limitation of national judicial sovereignty of Member States to ensure that community law is recognized as superior to national law and accordingly applied and interpreted by national courts at the instance of community citizens. This challenge arises from the national ordering of legal systems and the fact that States are the primary parties to agreements wherein they limit their sovereignty in favour of the community for its success. This paper examines the enforceability of Economic Community of West African States (ECOWAS) Law in the national courts of the West African States that are state parties of the ECOWAS with the aim of determining how this affects the integration goals of ECOWAS.
of the Revised ECOWAS Treaty
55 Article 4(g) of the Revised ECOWAS Treaty.
56 Article 15(4) of the Revised ECOWAS Treaty.
57 Article 76(2) of the Revised ECOWAS Treaty. See also ECOWAS Community Court of Justice,
Protocol A/P.1/7/91 (adopted 6 July 1991, came into force 5 November 1996, amended by
Supplementary Protocol A/SP.1/01/05 in 2005), article 9(1).
19 Ako, supra note 14, at 433. 20 For an in-depth analysis of Public Regulation of the Oil and Gas Sector in Nigeria see K. Ebeku, Oil and the Niger Delta, People in International Law: Resource Rights, Environmental and Equity Issues
- Ebobrah
Ebobrah, supra note 16, at 114.
19 Ako, supra note 14, at 433.
20 For an in-depth analysis of Public Regulation of the Oil and Gas Sector in Nigeria see K. Ebeku,
Oil and the Niger Delta, People in International Law: Resource Rights, Environmental and Equity
Issues, Köppe (2006); and E. Oshionebo, Regulating Transnational Corporations in Domestic and
International Regimes: An African Case Study, University of Toronto Press (2009).