CONSTITUTIONAL RIGHTS TO ENVIRONMENTAL HUMAN DIGNITY IN NIGERIA

CONSTITUTIONAL RIGHTS TO ENVIRONMENTAL HUMAN DIGNITY IN NIGERIA A BRIEF SYNOPSIS PRESENTED BY JOPE DAYO APRIL 13, 2018

INTRODUCTION • IN MANY COUNTRIES ENVIRONMENTAL PROTECTION IS AN ESTABLISHED HUMAN RIGHT, WHILE IN A SELECT FEW COUNTRIES SUCH HUMAN RIGHT MAY NOT BE STATUTORILY ENFORCEABLE. • ONE OF SUCH COUNTRIES IS NIGERIA—WHERE THE FEDERAL HIGH COURT OF NIGERIA IN BENIN CITY IN GBEMRE V. SHELL PETROLEUM DEVELOPMENT COMPANY (2005)—HELD THAT GAS-FLARING BY SHELL IN THE NIGER-DELTA: • IS A “GROSS VIOLATION OF THE CONSTITUTIONALLY GUARANTEED RIGHTS TO LIFE AND DIGNITY” • DESPITE THE RULING IN 2005, MORE ASSOCIATED GAS CONTINUES TO BE FLARED BY SHELL AND OTHER OIL & GAS EXPLORATION COMPANIES IN NIGERIA THAN ANYWHERE ELSE IN THE WORLD; CONTRARY TO THE FEDERAL REPUBLIC OF NIGERIA CONSTITUTION AND THE AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS.

GBEMRE V. SPDC ET AL. (NGHC 2005) • GBEMRE BROUGHT HIS SUIT IN THE FEDERAL HIGH COURT OF NIGERIA, BENIN JUDICIAL DIVISION AGAINST SHELL AND OTHER DEFENDANTS ON BEHALF OF HIMSELF AND THE IWHEREKAN COMMUNITY IN DELTA STATE, NIGERIA, SEEKING A DECLARATORY INJUNCTION FROM THE COURT ON SEVERAL ISSUES RELATED TO THE CONTINUED AND INCESSANT GAS-FLARING IN THE IWHEREKAN COMMUNITY— IN VIOLATION OF THE RIGHT TO LIFE, AND A CLEAN, HEALTHY, POLLUTION-FREE ENVIRONMENT AND DIGNITY OF HUMAN PERSON. • THE COURT RULED IN GBEMRE’S FAVOR AND DECLARED THAT: • SHELL’S CONTINUED FLARING OF GAS IN THE IWHEREKAN COMMUNITY SHOULD BE STOPPED BY APRIL 2007; AND • THE ATTORNEY GENERAL AND THE MINISTRY OF JUSTICE SHOULD PUT IN PLACE NECESSARY PROCESSES FOR THE ENACTMENT OF A BILL BY THE NATIONAL ASSEMBLY IN ACCORDANCE WITH THE PROVISIONS ON FUNDAMENTAL RIGHTS

THE NIGERIAN CONSTITUTION • THE 1999 CONSTITUTION OF NIGERIA STATES THAT: • EVERY PERSON HAS A RIGHT TO LIFE, AND NO ONE SHALL BE DEPRIVED INTENTIONALLY OF HIS LIFE, SAVE IN EXECUTION OF THE SENTENCE OF A COURT IN RESPECT OF A CRIMINAL OFFENCE OF WHICH HE HAS BEEN FOUND GUILTY IN NIGERIA SECTION 33 (1)(A) • EVERY INDIVIDUAL IS ENTITLED TO RESPECT FOR THE DIGNITY OF HIS PERSON, AND ACCORDINGLY— NO PERSON SHALL BE SUBJECT TO TORTURE OR TO INHUMAN OR DEGRADING TREATMENT - SECTION 34 (1)(A) • NIGERIA INCORPORATED INTO ITS’ BODY OF LAW THE AFRICAN CHARTER ON HUMAN AND PEOPLE’S RIGHTS VIA RATIFICATION. THE AFRICAN CHARTER STATES THAT NO ONE MAY BE ARBITRARILY DEPRIVED OF THEIR RIGHTS, SPECIFICALLY THE CHARTER STATES THAT: • EVERY INDIVIDUAL SHALL HAVE THE RIGHT TO ENJOY THE BEST ATTAINABLE STATE OF PHYSICAL AND MENTAL HEALTH – ARTICLE 16 (1) • ALL PEOPLES SHALL HAVE THE RIGHT TO A GENERAL SATISFACTORY ENVIRONMENT FAVORABLE TO THEIR DEVELOPMENT - ARTICLE 24

STATUTORY PROVISIONS • THE 1985 ASSOCIATED GAS RE-INJECTION ACT STATES THAT: • EVERY COMPANY PRODUCING OIL AND GAS IN NIGERIA SHALL SUBMIT TO THE MINISTER DETAILED PROGRAMS AND PLANS FOR EITHER (A) THE IMPLEMENTATION OF PROGRAMS RELATING TO THE RE -INJECTION OF ALL PRODUCED ASSOCIATED GAS; OR (B) SCHEMES FOR THE VIABLE UTILIZATION OF ALL PRODUCED ASSOCIATED GAS; • NO COMPANY ENGAGED IN THE PRODUCTION OF OIL OR GAS SHALL AFTER 1 JANUARY, 1984 FLARE GAS PRODUCED IN ASSOCIATION WITH OIL WITHOUT THE PERMISSION IN WRITING OF THE MINISTER; • IF A COMPANY IS PERMITTED TO CONTINUE TO FLARE GAS IN THE PARTICULAR FIELD OR FIELDS, THE COMPANY SHAL PAY SUCH SUM AS THE MINISTER MAY FROM TIME TO TIME PRESCRIBE FOR EVERY 28. 317 STANDARD CUBIC METER (SCM) OF GAS FLARED • LIKEWISE, THE 1992 ENVIRONMENTAL IMPACT ASSESSMENT (EIA) DECREE NO. 86 ALSO STATES THAT: • BEFORE EMBARKING ON ANY PROPOSED PROJECT, AN APPLICATION IN WRITING TO THE AGENCY IS REQUIRED, SO THAT SUBJECT ACTIVITIES CAN BE QUICKLY AND SURELY IDENTIFIED AND ENVIRONMENTAL ASSESSMENT APPLIED AS THE ACTIVITIES ARE BEING PLANNED. • UNDER THE EIA ACT § 3 (1), RELEVANT SIGNIFICANT ENVIRONMENTAL ISSUES SHALL BE IDENTIFIED AND STUDIED BEFORE COMMENCING OR EMBARKING ON ANY PROJECT OR ACTIVITY COVERED BY THE PROVISIONS OF THIS DECREE OR COVERED BY THE AGENCY OR LIKELY TO HAVE SERIOUS

THE AFTERMATH • DESPITE THE ENVIRONMENTAL CONSTITUTIONAL RIGHTS AFFORDED TO THE NIGER-DELTA PEOPLE—HOST COMMUNITIES SUCH AS IWHEREKAN—WHOSE MAJOR OCCUPATION IS FARMING AND FISHING, THE HOST COMMUNITIES CONTINUE TO BE DEVASTATED BY INCESSANT OIL SPILLS AND EFFECTS OF GAS-FLARING • OVER THE PAST 50 YEARS, THERE HAVE BEEN 5, 000 MAJOR OIL SPILLS IN THE NIGER DELTA – WHICH IS LIKE HAVING 1 “EXXON VALDEZ SPILL” EACH YEAR OVER THE PAST 50 YEARS. • CONSEQUENTLY, THE ECOSYSTEM IN THE NIGER-DELTA HAS A POOR YIELD IN CULTIVATION AS WELL AS A DEARTH IN THE POPULATION OF WILD LIFE SUCH AS SNAILS, SNAKES AND AQUATIC LIFE • SIMILARLY, THE NIGER-DELTA COMMUNITIES ARE AFFECTED BY ACID RAIN THAT DAMAGES CROPS AND SOILS, AND ALSO SUFFER FROM RESPIRATORY DISEASES AND CANCERS THAT ARE DIRECTLY CAUSED BY TOXINS/ GHGS EMITTED INTO THE

THE AFTERMATH WITH NO AFTERMATH • SHELL TILL DATE CONTINUES TO FLARE GAS IN THE NIGER-DELTA WITHOUT A CERTIFICATE FROM THE PETROLEUM MINISTER TO SHOW THAT IT IS NOT FEASIBLE TO ENGAGE IN GAS RE-INJECTION , PURSUANT TO THE RE-INJECTION ACT. • SHELL CONTINUES TO ALLEGE THAT IT LACKS ADEQUATE RESOURCES TO LIQUEFY GAS FLARES, AN ACTIVITY THAT SHELL AND OTHER OIL AND GAS COMPANIES OPERATING IN NIGERIA HAVE BEEN ABLE TO ACHIEVE IN DEVELOPED COUNTRIES SUCH AS THE US AND CANADA, WHERE SIMILAR OIL EXPLORATION ACTIVITIES ARE CARRIED OUT • THIS FLAGRANT DISREGARD OF THE CONSTITUTIONAL RIGHTS OF THE NIGER-DELTA PEOPLE BY SHELL AND OTHER OIL & GAS MULTINATIONALS OPERATING IN NIGERIA IS PARTLY BECAUSE OF: • THE NIGERIAN GOVERNMENT’S UNWILLINGNESS TO ENACT LEGISLATURE TO ADEQUATELY ENFORCE GAS-FLARING LEGISLATION • THE NIGERIAN GOVERNMENT’S UNWILLINGNESS TO MANDATE THE RE-INJECTION OF ASSOCIATED GAS • THE PENALTIES FOR GAS FLARING VIOLATIONS CONTINUES TO BE DETERMINED AT THE DISCRETION OF A MINSTER THAT IS UNDER THE INDIRECT CONTROL AND/OR INFLUENCE OF SHELL AND ITS GOVERNMENT ALLIES. • CONSEQUENTLY, IT IS APPARENT THAT DESPITE EFFORTS MADE BY INTERNATIONAL AND LOCAL ADVOCACY GROUPS, AS WELL AS DOMESTIC LAWS TO PROTECT NIGERIANS: • SHELL AND OTHER OIL & GAS COMPANIES OPERATING IN NIGERIA CONTINUE TO REFUSE TO RESPECT THE LOCAL REGULATORY AGENCIES, NATIONAL GOVERNMENTS AND THE LAWS OF THE LAND, MAKING IT LOOK LIKE “THE REGULATED HAVE BECOME THE REGULATOR”.

THE AFTERMATH WITH NO AFTERMATH – CONT’D • AT THE 26 TH SESSION OF THE UNITED NATIONS (UN) GENERAL ASSEMBLY, ONE OF THE RECOMMENDATIONS PUT FORTH BEFORE THE UN IS: • TO ENACT INTERNATIONAL TREATIES THAT WILL SERVE AS A UNIFORMLY APPLICABLE PREVENTIVE MEASURE COVERING ENVIRONMENTAL AND HUMAN RIGHTS VIOLATIONS ACROSS THE WORLD RATHER THAN THE CURRENT REGIME, WHICH IS PREMISED UPON INFORMED CONSENT AS A CONDITION TO NEGOTIATE WITH COMMUNITIES WHERE THE OIL AND GAS COMPANIES OPERATE. • FURTHER, IT IS CLEAR THAT WHEN THE JUDICIARY IS UNDULY INFLUENCED BY THE EXECUTIVE ARM OF GOVERNMENT AND OIL COMPANIES, THUS MAKING IT IMPOSSIBLE FOR CITIZENS SUCH AS GBEMRE TO ARBITRATE BETWEEN THE COMMUNITY AND THE OIL COMPANIES TO EFFECT ENVIRONMENTAL JUSTICE: • SERIOUS DOUBTS ARE RAISED AS TO WHETHER THE NIGERIAN GOVERNMENT WILL EVERT ASSERT ITS WILLPOWER TO CEASE FAVORITISM FOR SHELL AND OTHER OIL COMPANIES OPERATING IN NIGERIA OVER ASSERTING THE HUMAN RIGHTS OF ITS CITIZENRY.

CLOSING REMARKS • WHEN THE DIGNITY AND ENVIRONMENTAL RIGHTS AFFORDED TO THE NIGERIAN CITIZENRY IS NOT ASSERTED BY ITS OWN GOVERNMENT—THE ENTITY BEST EQUIPPED TO ASSERT AND PROTECT THE FUNDAMENTAL HUMAN RIGHTS OF ITS PEOPLE FROM EXPLOITATION BY MULTINATIONALS LIKE SHELL—THE EXCUSE OF CORRUPTION AND OTHER FACTORS DOES NOT ABSOLVE MULTINATIONAL OIL & GAS EXPLORATION COMPANIES OPERATING IN THE NIGER-DELTA FROM THE DUTY OF ACTING SOCIALLY RESPONSIBLY TO END GAS-FLARING AND ENVIRONMENTAL DEGRADATION. • HTTPS: //WWW. YOUTUBE. COM/WATCH? V=BQ 2 TBOHWFRC • DESPITE THE JUDICIAL RULING IN GBEMRE, THE FAILURE OF THE NIGERIAN GOVERNMENT TO ASSERT THE RIGHTS OF ITS CITIZENRY HAS RESULTED IN THE STATUS QUO: • “THE REGULATED BECOMING THE REGULATORS” AND FLAGRANTLY ENCUMBERING THE