3.

1 Pollution as a Constitutional Violation: Gbemre’s

Case:

Environmental pollution is generally known to have hazardous impact on

life. In the Nigerian constitution there is no fundamental right particularly

related to protection of our environment. However the 1999 constitution1

which guarantees our 'fundamental human rights and freedoms' and the

fundamental principles of state policy found in chapter two of our

Constitution, has given a safeguard against degradation of our

environment. It can rightly be said that a combined interpretation of

section 20 and section 33 and 34 is the constitutional basis for protection

of 'right to environment' under the Nigerian Constitution. Section 33

states that every citizen has the right to protection from action

detrimental to the life liberty, body, reputation, or property, except in

accordance with law. So under no circumstance should one deprive

another of life except in the carrying out of a sentence by the court. The

constitution2 also posits that no person shall be deprived of life or personal

liberty, save in accordance with law. These two articles together play a

major role in the constitutional guarantee against environmental

degradation which ultimately ends in deprivation of right to life. A

combination of both sections when critically looked at delineates oil

pollution as an intentional deprivation of our right to a "clean poison-free,

pollution-free healthy environment”. In the case of Gabcikovo-Nagymaros,

1 Chapter 4 of the 1999 constitution

2 Section 34 of the 1999 constitution

Judge Weeramantry of the International Court of Justice stated that ‘the

protection of the environment is likewise, a vital part of contemporary

human rights doctrine, for it is sine qua non for numerous human rights

such as the right to health and the right to life itself……... as damage to

the environment can impair and undermine all the human rights spoken of

in the Universal Declaration and other human rights instruments.3

Environmental degradation has an adverse effect on the quality of life, the

enjoyment of life, the guaranteed fundamental human rights and

ultimately the achievement of sustainable development4.The centre of

concern in the attainment of sustainable development in any region

should be the well being of human beings. Ten years after the execution

of human rights campaigner Ken Saro-Wiwa and eight of his colleagues by

the Nigerian government, the issues of human rights and environmental

devastation in the oil-producing Niger Delta remain unresolved. There has

been a worldwide increase in the number of lawsuits against oil

companies for human rights violations and environmental destruction5 and

Nigeria has not been left out of this positive march. Despite the return to

civilian rule in 1999 and pledges by oil companies to implement voluntary

corporate responsibility standards, new reports by Environmental Rights

Action and Amnesty International document only limited action to correct

abuses and deliver benefits to the residents of the oil producing areas.6

3 Retrieved from http://www.icjcij.org/docket/files/92/7383.pdf Separate Opinion of Judge Weeramantry p. 91-

92

4 Retrieved from http://www.foe.co.uk/resource/reports/gas_flaring_nigeria.pdf on 25th october 2009

5 Gary, I., and T.L. Karl (2003). Bottom of the barrel: Africa’s oil boom and the poor

6 Oil extraction and health in the Niger Delta (2008)

3.0.1 Gbemre v. shell Petroleum Development Company:

In the landmark case of Gbemre v. shell Petroleum Development

Company, Mr Jonah Gbemre sought the following reliefs;

1. A declaration that the constitutionally guaranteed fundamental

rights to life and dignity of human person provided in sections 33(1) and

34(1) of the Constitution of the Federal Republic of Nigeria, 1999 and

reinforced by Articles 4, 16 and 24 of the African Charter on Human and

Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Vol. 1, Laws of

the Federation of Nigeria, 2004 inevitably includes the right to clean,

poison-free, pollution-free and healthy environment.

2. A declaration that the actions of the first and second defendants in

continuing to flare gas in the course of their oil exploration and production

activities in the applicant’s community is a violation of the applicant’s

fundamental rights to life (including healthy environment) and dignity of

human person guaranteed by sections 33(1) and 34(1) of the Constitution

of the Federal Republic of Nigeria, 1999 and reinforced by Articles 4, 16

and 24 of the African Charter on Human and Peoples Rights (Ratification

and Enforcement) Act, Cap. A9, Vol. 1, Laws of the Federation of Nigeria,

2004.
3. A declaration that the failure of the first and second defendants to

carry out environmental impact assessment in the applicant’s community

concerning the effects of their gas flaring activities is a violation of section

2(2) of the Environmental Impact Assessment Act, Cap. E12, Vol. 6, Laws

of the Federation of Nigeria, 2004 and contributed to the violation of the

applicant’s said fundamental rights to life and dignity of human person.

4. A declaration that the provisions of section 3(2) (a) (b) of the

Associated Gas Re-Injection Act, Cap. A25, Vol. 1, Laws of the Federation

of Nigeria, 2004 and section 1 of the Associated Gas Re-Injection

(Continued Flaring of Gas) Regulations S.1. 43 of 1984 under which

continued flaring of gas in Nigeria may be allowed are inconsistent with

the applicant’s rights to life and/or dignity of human person enshrined in

sections 33(1) and 34(1) of the Constitution of the Federal Republic of

Nigeria, 1999 and Articles 4, 16 and 24 of the African Charter on Human

and Peoples Rights (Ratification and Enforcement) Act, Cap. A9, Vol. 1,

Laws of the Federation of Nigeria, 2004 and are therefore

unconstitutional, null and void by virtue of section 1(3) of the same

Constitution.

5. An order of perpetual injunction restraining the first and second

defendants by themselves or by their agents, servants, contractors or

workers or otherwise howsoever from further flaring of gas in the

applicant’s said community.

The grounds on which the aforestated reliefs were sought include;

1. By virtue of the provisions of sections 33(1) and 34(1) of the

Constitution of the Federal Republic of Nigeria, 1999, the applicant has

fundamental rights to life and dignity of human person.

2. Also by virtue of Articles 4, 16 and 24 of the African Charter on

Human and Peoples Rights (Ratification and Enforcement) Act, Cap. A9,

Vol. 1, Laws of the Federation of Nigeria, 2004, the applicant have the

right to respect for their lives and dignity of their persons and to enjoy the

best attainable state of physical and mental health as well as right to a

general satisfactory environment favourable to their development.

3. The first and second defendants’ gas flaring activities in the

applicant’s community (Iwherekan Community) in Delta State in the Niger

Delta area of Nigeria are in violation of the applicant’s said fundamental

rights to life and dignity of human person and to a healthy life in a healthy

environment.7 The particulars of facts of the violations are contained in

7 a first generation right which is well established in international law and existing
international instruments. This right has made a definite contribution to environmental
the verifying affidavit in support of this application and shall be relied

upon at the hearing of this application.

4. No environmental impact assessment was carried out by the first

and second defendants concerning their gas flaring activities in the

applicant’s community as required by section 2(2) of the Environmental

Impact Assessment Act, Cap. E12, Vol. 6, Laws of the Federation of

Nigeria, 2004 and this contributed to the unrestrained, mindless flaring of

gas by the first and second defendants in the applicant’s community

aforestated in violation of their fundamental rights.

5. No valid Ministerial Gas Flaring Certificates were obtained by any of

the first and second defendants authorising gas flaring in the applicant’s

said community in violation of section 3(2) of the Associated Gas Re-

Injection Act, Cap. A25, Vol. 1, Laws of the Federation of Nigeria, 2004.

6. In any event, the provisions of section 3(2) of the Associated Gas

Re-Injection Act, Cap. A25, Vol. 1, Laws of the Federation of Nigeria, 2004

and section 1 of the Associated Gas Re-Injection (Continued Flaring of

Gas) Regulations S.1. 43 of 1984 under which gas flaring in Nigeria may

be continued are inconsistent with the provisions of sections 33(1) and

34(1) of the Constitution of the Federal Republic of Nigeria, 1999 and

protection globally.
Articles 4, 16 and 24 of the African Charter on Human and Peoples Rights

(Ratification and Enforcement) Act, Cap. A9, Vol. 1, Laws of the Federation

of Nigeria, 2004 and are therefore unconstitutional, null and void.

7. The provisions of both section 21(1) (2) of the Federal

Environmental Protection Agency Act, Cap. F10, Vol. 6, Laws of the

Federation of Nigeria, 2004 and section 4(1) of the Associated Gas Re-

Injection Act, Cap. A25, Vol. 1, Laws of the Federation of Nigeria, 2004

makes the gas flaring activities of the first and second defendants a crime

the continuation of which should be discouraged and restrained by the

court.8

The fact that the case was decided in favour of the plaintiff evinces a

gradual shift in attitude of the Nigerian Judiciary from placing higher

priority on the profits from crude oil exploration over environmental

protection to human rights approaches to environmental protection. The

fact that the judiciary in many African countries have started recognising

the connection between human rights and environmental protection is a

welcome development which was started by Tanzania9.

In a landmark decision in favour of the plaintiff, The Court made the

following declaratory order:

8 Gbemre v. Shell Petroleum Development company FHC/B/CS/153/2005

9 Palmer, A., & Robb, C., International Environmental Law in National

Courts, Vol. 4, Cambridge University Press, 2004 p. 454
1. That the constitutionally guaranteed fundamental rights to life and

dignity of human

persons provided by Sections 33(1) and 34(1) of the Constitution of the

Federal

Republic of Nigeria, 1999 and reinforced by Act. 4, 16 and 24 of the

African Charter

on Human Procedure Rules (Procedure and Enforcement) Act Cap A9 Vol.1

Laws

of the Federation of Nigeria, 2004 inevitably includes the right to clean

poison-free,

pollution free and healthy environment.

2. That the actions of the 1st and 2nd Respondent in continuing to flare

gas in the course

of their oil exploration and production activities in the Applicant’s

community is a

violation of their fundamental right to life (including healthy environment)

and

dignity of human persons guaranteed by the Constitution and the African

Charter.

3. That the provisions of Section 3(2)(a) and (b) of the Associated Gas

Reinjection Act,
Cap A 25 Vol. 1, Laws of the Federation of Nigeria 2004 and Section 1 of

the

Associated Gas Reinjection (continued flaring of gas) Regulations Section

1.43 of

1984 under which the continued flaring of gas in Nigeria maybe permitted

are

inconsistent with the Applicant’s Right to life and/or dignity of human

person

enshrined in the constitution and the African Charter and are therefore

unconstitutional, null and void by virtue of Section 1(3) of the Nigerian

Constitution.

Gbemre v. Shell is a precedent setting case in Nigeria; it was the first

judicial authority to

declare that gas flaring is illegal, unconstitutional, a breach of the

fundamental human right

to life and it should cease. Cases relating to environmental degradation in

Nigeria are not new to the judiciary but what makes the Gbemre case

special is the fact that the decision was the first of its kind. It was the first

cases where the court took more consideration of the environment rather

than potential loss of revenue and investment.

Between 1990 and 2004, there have been several oil related cases filed in

the courts in
Nigeria alleging pollution from oil exploration, loss of income, loss of

property,

contamination of drinking water leading to water borne diseases ETC. In

the cases of Shell

v. Tiebo VII,10 Shell v. Isaiah11, Seismograph services v. Mark12, Ogiale v.

Shell13, Shell v.Ambah.14 The general characteristics that runs through all

the above mentioned cases are; they are all claims for compensation for

the operation of oil companies in their local communities, they are usually

oil spillage claims for loss of income from fishing and farming, pollution of

drinking water, damage to farmlands and crops, and damage to health as

a result of water-borne diseases.15 The courts in their various judgements

refrained from making orders for the remediation of damages done to the

physical environment, the land, and water resources. However, in the

case of Shell v. Farah16, apart from asking for compensation, the plaintiffs

specifically asked the court to make an order for the rehabilitation of their

damaged land. The court was creative I deciding this case because quite

unlike other oil spillage cases in Nigeria where conflicting expert evidence

is given for both parties, the court resolved the conflict by appointing two

10 1996] 4 NWLR (Pt 445) 657.

11 [1997] 6 NWLR (Pt 508) 236.

12 [1993] 7 NWLR (Pt 304) 203

13 1997] 1 NWLR (Pt 480) 148.

14 [1999] 3 NWLR (Pt 593) 1.

15 Oluwatoyin Adejonwo-Osho. The Evolution of Human Right Approaches to Environmental Protection in

Nigeria (2008) p 11

16[1995] 3 NWLR (Pt 382) 148

independent experts to assist the court in coming to a decision whether

the affected land had been rehabilitated to its pre-impact conditions. Shell

v. Farah prepared the way for change, it is the first case where the

plaintiff prayed the court for compensation and remediation of damaged

land and both claims were awarded accordingly.

Despite Justice Nwokorie's laudable decision, shell displayed a total

disregard for the Nigerian Justice system as it was discovered that no

detailed phase-out scheme had been submitted. It was discovered on the

30th of April 2007 by Mr Jonah Gbemre's legal representative that Justice

Nwokorie had been removed from the case by having been transferred to

another court district in the far-northern State of Katsina, that the court

file was not available, and that no representatives of Shell, NNPC or the

government had turned up.17 The act of shell and NNPC was an obvious

mockery of the Nigerian justice system as the once famous decision by

Justice Nwokorie was rendered ineffective.

3.1 Impact of Oil Pollution on Public Health in the Niger

Delta

The present state of public health in the Niger Delta is appalling enough

and the fact that oil pollution as left unchecked further worsens this

situation. In addition to the lack of basic public health infrastructure,

medical treatment and consultation in public health facilities, where

17 Retrieved from http://www.climatelaw.org/cases on 14 July 2009

available, are unaffordable to most people in the delta region. This is as a

result of the high cost of health care. For people who subsist

predominantly on small scale farming and fishing, necessary health care

is a luxury which they cannot afford. The Delta’s oil which has the

potential to create wealth and opportunities for its inhabitants has instead

led to diseases and death of many. Flares from nearby oil plants have

caused an epidemic of bronchitis in adults as well as asthma and blurred

vision in children. Medical staff report treating patients with many

ailments and illnesses they believe are related to the products of the gas

flares, including bronchial, chest, rheumatic and eye problems.18 Gas

flares and their soot contain toxic by-products such as benzene, mercury

and chromium, which contribute to lowering the immunity of community

members, in particular children, making them more susceptible to

diseases such as polio and measles19. Despite assistance from various

governmental and non governmental bodies, the situation does not seem

to improve. Repressive military rule, corruption and the theft of public

funds have resulted in substandard public services, including a barely

functioning public health-care system.20 Low-quality public health services,

high user fees, shortages of drugs, equipment and personnel, combined

with persistent high unemployment and poverty rates, contribute to a

18 Quist-Arcon, O. (2007). Gas flaring disrupts life in oil-producing delta.

19 Piller, C., et al. Dark cloud over good works of Gates Foundation . Los Angeles Times, 7 Jan 2007.

20 Hargreaves, S. (2002). Time to right the wrongs: Improving basic health care in Nigeria.
crisis of confidence and affordability in terms of health-care access and

status in the Niger Delta.21

In 2007, Human Rights Watch highlighted that most primary healthcare

centres have no access to even the most basic medical resources and are

in a dilapidated state. Medicines are in short supply and many centres

have been abandoned by disgruntled staff members who have not been

paid by local governments for months.22

The health care situation is so bad that many health and medical

practitioners have emigrated to the United States and Europe in search of

better working conditions. This has resulted in a drastic depletion of

practitioners with the required technical-know-how in various medical

fields. Apart from this, the issue of violence in the Niger Delta which has

been a source of concern leaves many unfortunate victims wounded and

in critical state. In Nigerian cities and the Niger Delta region, ethnic and

religious violence involving members of tribal communities; Christians-

Muslims and government troops have randomly led to the death of many.

Several others are dying installmentally from injuries from such violence,

after becoming displaced from their homes. These ethnic and religious

tensions prevent some group from receiving health care and usually

contribute to disparities in health status.23 The lack of basic health

infrastructure has led to the loss of many lives from these cases. Médecins

21 Chukwuani, C.M., et al. (2006). A baseline survey of the primary health care system in
southeastern Nigeria. Health Policy 77: 182–201.

22 Belinda Otas, Breathing life into Niger Delta clinics, BBC Focus On Africa Magazine p 17 (2009)

23 Tokunbo Awoshakin, Violence as a Public Health Problem in Nigeria (2002)

Sans Frontières (MSF) operates a surgical programme in Port Harcourt.

Over 25 per cent of emergencies treated in May 2006 were for violence-

related injuries. In August 2007, Port Harcourt and surrounding Delta

communities experienced weeks of violence, resulting in the deaths of

dozens of people.24

3.1.1 The Role of the Government:

In Nigeria, the average life expectancy for both men and women is less

than 50, and 24% of children die of malaria before the age of five.25 With

the health sector constantly diminishing, one begins to wonder if the

government even pays attention to these statistics in Nigeria. According

to UNDP, government expenditure on health as a percentage of GDP was

1.3% in 2003, a decline from 2.2% in 2000. In regard to government

expenditure as a percentage of total expenditure on health, the Nigerian

government share declined from 29.1% in 1999 to 25.5% in 2003, lagging

behind many other countries, even those similarly classified by the World

Bank as low income economies. In per capita terms, public spending on

health stands at less than $5, and in some parts of the country can be as

low as $2, far short of the $34 recommended by WHO for low income

countries within the Macroeconomics Commission Report. Apparently, this

level of spending will make it extremely difficult to provide even the most
24 Retrieved from www.doctorswithoutborders.org/news/nigeria.cfm. on 17 sep 2009

25 Retrieved from http://news.bbc.co.uk on 22 oct 2009

basic of services. In addition, there is a concern that the budgeted figures

may not be representative of the actual amount spent on health as there

continues to be a gap between the two figures. Moreover; it is not even

clear whether the budgetary allocations were actually spent on health-

related services or wound up in private hands26. The health care situation

in Nigeria clearly does not represent the meagre budgetary allocation

because the people who need these basic health care facilities do not

have any access to it.

26 Obiajulu Nnamuchi, The right to health in Nigeria Draft Report (2007)