ENVIRONMENTAL PROTECTION: THE NEGLECT, WHICH WAY?

Abstract

Environment, being an existential right a man has, we cannot therefore, over emphasize the worthiness of promoting its preservation and the implication as well as the benefits of putting efforts for its protection. Civil obligation actually arises from the duty of care everyone owes his neighbor like it is stated in the rule in Ryland v. Fetcher and others. Based on this fact, this paper therefore took a quick look at the measures at protecting the environment, especially in Nigeria. This research also focused particularly on the various barriers that have hampered the enforceability of environmental protection here in Nigeria and by so doing, this paper pointed some factors as: non-justiciability clause, implementation of treaties, jurisdictional issues arising from environmental litigation, inadequate remedy, lifespan of litigation in Nigeria, Cost of litigation, inadequate punishment, inadequate funding and corruption amongst other factors. It is believed that a better environmental protection regime is possible in Nigeria which are: stricter penalties for environmental crimes, repeal and amendment of obsolete laws, creation of environmental courts, mitigate the obstacles of locus standi, proper training for enforcement personnel, effective environmental monitoring, adequate funding of relevantre gulatory agencies and bodies, environmental law protection awareness. It is believed that a better environmental protection regime is possible in Nigeria and this paper seeks to bring us as nearly as possible to that point.

INTRODUCTION

Man cannot be divorced from his environment. Global concerns about the environmental impact of human   practices   cannot   be   overstated.   These   concerns   culminated   into   some   controversial environmental ethical theories that birthed the enactment of several environmental rules and regulations to help curb human excesses and balance interests as people relate to the environment. 

Section 37 NESREA Act has defined Environment to comprise  of the following: ...air,  land, water including  all  humans,  animals  or  plants  that  lives  there  and  the  relationship  they  share  amongst themselves or any other elements which are released into the county’s waters. In Attorney  General of Lagos State v. Attorney  General of the Federation and Ors, the  Supreme Court defined Environment as connoting the ecological  surroundings, for example, water, air, land and air, in which humans, plants and animals’ dwell and thrive. 

Nigeria today, just as every other clime, is suffering her own portion of challenges to the environment which includes: oil spillage, deforestation, climate changes and all sorts of mining activities, all of which can result in loss of lives or livelihood, diseases, and violation of human rights, which has caused some serious uncertainties for the present generations and for posterity in a bid to tackling environmental degradation and other worldwide environmental concerns.

In Nigeria today, there are many international treaties  ratified  by  the  National  Assembly  as  well  as  Local  laws,  all  aimed  at  bringing  Nigeria  to international best practice in dealing with the Environment. However, the allowance of these laws in Nigeria have experienced inadequacies, such as delay in the concluding environmental cases the courts with heavy caseloads  touching  different locus  standi.  All these factors and more affect the judicial enforcements of these environmental rights as well as obligations to the detriment of affected persons. 

In this paper, we shall begin by critically analyzing  the concept of environmental  protection in Nigeria while  paying  careful  attention  to  the  barriers   that  have  affected  the  enforcement  of  cases  on environmental  violations  all in  a bid to establishing  its current standpoint and finding a workable way out where loop holes are detected.

Conceptual Framework: In the course of this research, here are a few concepts that will be recurring very frequently and for the purposes of this research, their meaning shall be as follows: 

Environment: Eagle,in his  works, stated that the idea of Environment manifests Profound ambiguity  that cannot be explained  away  by  a  single  definition. However, it literally connotes the combination of conditions affecting organisms, the atmosphere including non-living things. Oruonye and Ahmed, in their own views, saw the environment as: The combination of external physical conditions such as Air, water, soil and plants that affects and influence the growth, development and survival of living organism.

 Generally,  Environment  is  a  wide expression  which includes  all  elements,  whether physical  or  non-physical, including living things and non-living things. It includes interrelating sets of elements; 

Environmental Protection: for the purposes of this research, refers  to any act that is geared towards the maintenance of or restoration of the quality of the ecosystem such as the prevention of unwanted changes to the ecosystems and their constituent parts

Environmental Damage: The Harmful Waste Act defines damage to include: The death of or injury to any person including any disease and any impairment of physical or mental condition. This is in addition to physical damage to property, the  dumping  or  depositing  of harmful  wastes and substance,  is  capable  of causing  damage  to both person and property, the proof of which gives right to an action under nuisance in civil liability. By the above definition, environmental damage refers to more than just damage to the physical elements alone  but  also  to  none  physical  elements  that  are  found  in  the  natural  space  for  the  survival  and flourishing of all animate and inanimate objects.

Protection: according to the United Nations Environmental Programme (UNEP) in 2014,can be seen to be a series of acts by the government or a body takes to accomplish the application of the criteria and due compliance within a regulated community. Accordingly,  protection  will  simply  connote  action  that  is  taken  by  a  government,  through  any institution  or  body  that is  empowered  by  law  to  guard  against  violations  of  environmental  laws  to constrain the masses to obey the law or other regulations, as the case may be:

Legal Framework of Environmental Protection in Nigeria: 

Under the Constitution of the Federal Republic of Nigeria, one of the Fundamental objectives and Directive principles of states policy, provides this, that the State shall protect and improve  the environment and safeguard the water, air and land, forest and wild life of Nigeria. The  constitution,  being  the grund-normof  the  country,  makes  emphasis  that  it  is  the responsibility of the state to safeguard the environment and improve the quality of water, air, land, forest and wildlife for the good of its citizens. It is however noteworthy that the same constitution, makes this section non-justiciable in the court of law.

Criminal Code Act: Here, this Act is Nigeria’s major law on crimes. It prescribes punishment for various proscribed activities or omissions constituting a crime in Nigeria.It sets out punishments for its violation. Section 244 to 247 of this Actdeals with environmental issues including fouling and debasing the waterways, springs or streams making them unsafe for their ordinary purposes; vitiating the air as to make it poisonous to the life and health of persons  and also spreading the infection of any disease dangerous to life of humans and animals.  Section 349 to 350 also prohibits the shipping of dangerous goods that are destructive in nature.

National Environmental Standards and Regulatory Enforcement Agency (NESRAE) Act, The  Agency came  into force in 2007, this Act repealed the Federal Environmental  Protection Agency (FEPA) Actand also substituted it as the major statute regulating environmental protection in Nigeria. The Act embodies laws and rules which is focused on protection of the environment and all of its natural resources   as  well   as   ensure  sustainable   development.  The   Act  created  a  regulatory   agency (NESREA).The  Act also  provides criminal  sanctions  to persons  who violates its  provisions  and also  provides for compensation for victims of environmental violations. Example, Section 20 of the Act, provides that:

"A person who violates the quality of Nigeria's air resources  commits  an offence and shall  be liable  to a fine not exceeding N200,000 or to imprisonment  for a term  not exceeding one year or to both such fine and imprisonment  and an additional fine of N20,000  for  every  day  the  offence  subsists;  and  when  committed  by  a  body corporate, the body corporate shall  be liable  to a fine not exceeding N2,000,000 and N50,000 for every day the offence subsists". 

Harmful Waste (Special  Criminal Provisions) Act: This Act penalizes the act of dumping or causing to be dumped, without any due authorization, harmful waste  substances  on  the environment   or  in  the  territorial   waters  or  inland  waterways  of  the country. Corporate bodies found in violation of the provisions of this Act, they too will be liable  to be prosecuted accordingly  and duly fined. Punishment for the violation of the provisions of this Act is life imprisonment.

Noteworthy is the fact that diplomatic immunity does not stand as a  defence to offences committed under this Act.Crime committed under this Act is one for which the Federal High Court has exclusive jurisdiction

National Biosafety Management Agency Act, 2015: The  Act  came  into  force  to  control  the  management  and control  of  infectious  microorganisms  and hazardous  biological   materials.   The  Act  instituted  the  National  Biosafety  Management  Agency (NBMA)  as  the  Agency empowered  by  law  to  ensure  the effective controlof all  parts of Nigeria’s Biosafety. The  Act further penalizes  the bringing  into the country or releasing  into the environment, either  for  experimental  or  commercial   purpose

es  any  genetically  modified  organism   without  the authorization  of  the  Agency.  And the  contravention  of  this  will  cause the  offender to  be  liable  to imprisonment  or a fine as the case may be.

Impediments/Challenges

There are a number of barriers  that militate against the effective protection of the environment Nigeria,  ranging  from  constitutional  barriers  to  jurisdictional  challenges coupled   insufficient  remedies awarded to victims  of environmental  violations.  The  following are the barriers  examined in this research: 

*Non-Justiciability Clause: the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is described as the grund-norm and the fundamental law of the land and its provisions take precedence over any law, regulations, or polices enacted either by the National Assembly  or state House of Assembly. 

The  1999 Constitution (as amended) recognizes  the importance and need to preserve and better the environment and safeguard the air, land, water, forest and wild life of Nigeria. The responsibility  to protect, preserve, and improve the  environment  as  imposed  on  the  government  by  the  constitution  is  however  limited  the  same constitution to the extent that the said duties are not justiciable.

A term is  said  to be  non-justiciable  where  the Court is  unable  to hear  such a  matter even where  real interest and rights are being violated.

While the duty of government to protect, preserve and safeguard the environment as provided for under chapter 2 of the Constitution, 1999 (as amended) falls within the fundamental objectives and Directive Principles of the government. 

Section 6 (6)(c) of the Constitution oust  the  inherent  powers  and  sanctions  of  a  court  in  Nigeria  to  address  any  violations  on  the constitutional  duties  and  responsibilities   confer  on  government  to  safeguard  and  preserve   the environment.

 However, scholars have of recent advocated the fact that environmental rights should be kept at par with fundamental human rights. In Jonah Gbemre v. Shell Petroleum Development Company of Nigeria Ltd & Ors,the court held that The practice of gas flaring is unconstitutional as it violates the guaranteed fundamental rights of life and dignity of human persons provided in the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples Rights. Due to the crucial  role of safe environment to human existence, it is the writer’s  opinion that issues relating  to protection,  promotion  and Conservation  of the environment  should be  removed  from  the fundamental objective and principles  of the government and be made justiciable as this will make the government  answerable  and liable  for its neglect,  inactive or  active role  in polluting  the environment  especially  in its oil and gas exploration and exploitation in the Niger Delta regions of Nigeria. 

Also, the Government can be held liable in its inaction to curb the issue of desertification ravaging the northeastern part of Nigeria and erosion endangering the lives and livelihood of some part of eastern Nigeria.

*Implementation  of Treaties: According to the Vienna Convention on the Law of Treaties: A treaty is  an international  agreement  concluded between states in  written form and governed by international law, whether embodied in  a single  instrument or  in two or more related instruments and whatever its particular designation.Treaty can also  be called  Convention, Charter,  Protocol, Covenant etc. The fundamental principle of treaties is that they are obligatory on the parties to them and ought to be executed accordingly.Consent of state is a vital factor in treaty formation. Treaties are in this sense agreements between independent states and if states do not give their consent the treaty will not be binding on them.

 However, no treaty to which Nigeria is a signatory becomes law unless is it domesticated by the National Assembly. Therefore, it has no such legal force as to make its provisions justiciable  in our Courts.

*Jurisdictional  Issues Arising in Environmental Law Litigation: Jurisdiction is the power a court has to adjudicate upon a matter before herIn initiating environmental law related suit, the following jurisdictional issues may vitiate the suit: 

Locus Standi: It is  trite that in  any  lawsuit  instituted in  a  representative  capacity,  there must  be  approval  from  the person or group of persons who are to be represented and the person(s)  representing them should have like -interest in  the cause  of action.  The term locus standidenotes the legal capacity to institute an action in a Court of law. It is a condition upon which a suit can be heard in its merit. Locus standiis a condition precedent a claimant must satisfy before the jurisdiction of a court can be successfully invoke. Despite the laudable objective of the rule of locus standi, the doctrine has been a thorn in environmental litigation in Nigeria. For  instance,  in  the  case  of Oronto  Douglas  v  Shell  Petroleum  Development Company and 5 ors, the plaintiff brought an action under the Environmental Impact Assessment Act.He  claimed  that  the  Act  requires   that  in  certain  specified  projectsthat  may  have  significant environmental impact that an environmental impact assessment be carried out by a proponent before the commencement of that project. He contended that the provisions of the Act had not been complied with by the defendants in respect of the Nigerian Liquefied Natural Gas Project at Bonny. The defendants filed a preliminary objection contending that the plaintiff lacks locus standi in the matter and therefore cannot institute the action. Furthermore, in cases on public nuisance, the court’s undue reliance on locus standi had had a toll on a number of environmental cases.  The general rule  for public  nuisance is  that the Attorney General stands as the rightful plaintiff when it comes to prosecution of a public rightAnother area where locus standi has compounded environmental litigation is in the use of tort of trespass to pursue environmental  claims.  Trespass to land arises  from an unlawful intrusion or interloping with the possession of the plaintiff’s land.The slightest direct physical interference with land in possession of  another  person  is  actionable,  for  example,  walking  on  another  man’s  land.In Onasanya  v. Emmanuel,Omolulu  Thomas  J. held that trespass  is  committed when without lawful justification;  a defendant directly places or projects any material  object upon such land. For action in trespass to arise from the placing of an object on the plaintiffs’ land, such placing must be direct otherwise the action will lie only in nuisance in which case damage must be established to ground liability. However, for the plaintiff to be entitled to sue he must be in possession. But the possession which entitles the plaintiff to sue must be actual and effective possessions in order to maintain an action against anyone except the true owner or one who can trace his title to the true owner.

Statute of Limitation: The rule of Statute of Limitation requires a litigant to institute his action over a right that accrues to him within the time stipulated by law.  Where  a  litigant  instituted  his  action  after  or  outside  the  time prescribed by Statute of Limitation or Limitation Law upon becoming  aware of the wrongdoing being committed  against  him,  his  right  of  action  becomes  terminated  or  extinguished.  Consequently, the jurisdiction of the court cannot properly be invoked. Hence, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time lay down by the limitation  law  for instituting  such an  action  has  elapsed. However, is important  to note that limitation law does not apply to criminal  matters

Pre-Action Notice: Legally, a pre-action notice is some form legal notification or information the law requires that a party must give before commencement of any legal action against such a person. It is usually provided for in legislations establishing certain statutory bodies. Pre-action notice is a procedural requirement that also have effect on jurisdiction.  It actually  gives  notice  to the  beneficiary  to either  amend  or  correct  the alleged act alleged or prepare  for litigation. They are not part of initiating processes but pre-litigation procedures provided for by law. Where it is applicable, it is a precondition which must be fulfilled. The effect of failure to serve a pre-action notice gives such a Defendant the right to insist on such notice first served before the aggrieved can come to Court. The non-service  of a  pre-action  notice  puts the Court's jurisdiction on hold and renders the suit incompetent.For instance, to bring an action in court against the Nigerian National Petroleum Corporation (NNPC) there must be a pre-action notice at least one month before the commencement of the matter.

Inadequate Remedy: Inadequate remedy is a barrier in judicial enforcement of environmental violations. The major remedies that are granted in environmental litigations are basically compensation, damages and/or injunctions. And in  most  cases,  these  remedies  cannot  fully  assuage  the  plaintiffs  to  the  extent  of  the  damage suffered.

*Lifespan of Litigation in Nigeria: Notwithstanding the crucial role of litigation in contemporary society, it is saddled with challenges such as the duration of cases, legal technicalities  and even cost of prosecution.  Cases in Nigeria suffer long term lifespan, some lasting up to 20 yearsand more. This is very worrisome and leaves both the Claimant  and Defendant short changed. So  many  factors  contribute  to the long  duration of  cases  in  Nigeria,  such  as  under-staffed judiciary workers, poor conditions of service, corruption, unscrupulous attitude of lawyers etc, chief among them is interlocutory applications. 

*Cost of Litigation: Generally, litigation is expensive and environmental litigation is more expensive. This is because; environmental litigation requires expert evidence and environmental assessment. Sometimes, persons who are direct victims of environmental violations are living below poverty line whose basic concern is rather to make three square meals than pursuing redress to violation of their rights. Again, the call for a special and separate system of environmental enforcement in Nigeria is immediate.

Other Challenges to Effective Environmental Protection Measures:

Other identified challenges that have posed a serious barrier in  the effective environmental protection measures  are as outlined below:

*Inadequate punishments  for environmental  crimes  to  serve  as  deterrence  from environmental violations

*Inadequate funding of requisite  institutions that are  saddled by law to ensure compliance  with environmental laws

Corruption.This has become a great ill that has eaten deep into the fabrics of the society.

*General lack  of  modern  technology  for  policy  implementation.  As the  society  advances  in technological evolution, the need to develop a more effective ways to tackling the environmental need of the society has become pertinent. However, this has still remained a challenge in Nigeria

*Lack of adequate constitutional provision  to compel  environmental  protection by government  and masses alike

Insufficient experts in areas of environmental protection and law

Lack of enforcement powers for some institutions/agencies.

General poor information management in Nigeria

PROSPECTS

In line  with the findings in this research, here are  possible  remedies that when employed will  be for a safer and a more robust environmentally  friendly regime:

*Stricter Penalties  for Environmental Crimes: The  Courts should be  made to encourage exemplary  damages and issue  stricter  punitive measures  on environmental  violators  to  serve  as deterrence  signal  to  polluters  thus  ensuring  a  safe  and friendly environment for all.

*Review Of Obsolete Environmental Laws: The society is dynamic and there is evolution of rights that have in the past not been considered as so. It is  pertinent  that the  legislators  take  a  cue  into  what  is  obtainable  in  other  climes  and the  rising environmental   needs  in  our  own  clime   to  ensure  that  they  make  adequate  provisions  for  all environmental matters including any emerging  rights as the need arises.

*Creation of Environmental Courts: There  is  need  for  special  courts  and  procedural  Rules  on  environmental  litigation.  Environmental disputes are technical  in  nature which  a person  who is untrained may  not handle effectively. Here in most  jurisdiction  in  the Nigerian  Courts, a  judge is  expected to handle every  matter  even when  it  is obvious  that  he  is  professionally   deficient  in  the  area.  For  efficient  adjudication  of  breach  of environmental  standards in  Nigeria,  there is  need for creation  of environmental  courts  to be  presided over by seasoned professionals  with requisite knowledge and experience  in environmental  law matters. Several bottlenecks impede environmental litigation in Nigeria. These include frivolous adjournments, interlocutory appeal procedure, etc. This will also speed up environmental litigation as the court will be focused solely on environmental matters.

*Jettison of Locus Standi: It  is  recommended  that  the  common  law  principle   of  locus standing  should  be  abolished  in environmental  matters litigation,  just like  the case of actions  for enforcement of fundamental rights.With respect to criminal  proceedings for breach of environmental  standards, South African law allows same  to  be  instituted  by  any  person  acting  in  the  interest  of  the  public  or  in  the  interest  of  the environment.There is a need to review the Nigerian law to bring it at par with the laudable statutory provisions in other foreign jurisdictions, like in the case of India.

*Proper Training for Enforcement Personnel: The importance of training of relevant personnel and judicial officers who are empowered by the law to enforce environmental protection cannot be over emphasized. This training is to afford them an opportunity of acquainting themselves with the modern best practices of environmental protection as it is obtainable globally.  It is also meant to keep them up to date in the emerging  areas  of environmental rights and how best to go about the protection of same in our own clime  considering the peculiarity  of the Nigerian environment.

*Effective Environmental Monitoring: Effective environmental  monitoring  entails  inspection,  observation  and documenting  of information concerning  the  environment  in  order  to  prevent  it  from  being  damaged  by  the  activities  of  man particularly  those that has to do with high-level  technological gadgets, in  order to plan  for imminent  abuse of its resources and to control the horrible results of environmental negligence. Instruments for environmental monitoring should be made available to relevant institution to allow for an effective implementation  of the task of monitoring. This  will improve  the gathering and analysis  of relevant  data  and for  due  enforcement  of  policies where  any  threat  is  found within  a  given  Local Government Area or State.

*Funding of Relevant Regulatory Agencies and the  Third Tier of Government: Allocation of adequate funds should be to all relevant regulatory agencies and all  levels of government  to  enhance  the  promotion  and  protection  of  the  environment.  As  earlier  stated, these  agencies  are currently  poorly  funded and also  understaffed, thereby making  environmental  protection in  Nigeria  a more cumbersome  task than it ought to be. 

*Environmental protection awareness: With the presence of modern technology  and other  improved methods of information  dissemination, more awareness should be made to every nook and cranny of Nigeria. The national Orientation Agency as  well  as  other  relevant  bodies  should  ensure  that through  these  available  media,  people  are  well informed of the dangerous effect of mismanaging  the environment, by way of action(s) or omission(s), which  will  in  turn  affect the  inhabitants  and that  everyone  should  also  join  force  to  mitigate  these problems.  These orientation  and awareness  should be  organized  at the  grassroot  level  for  effective monitoring and implementation of environmental protection.

Conclusion

This paper reveals that a major factor affecting environmental development in Nigeria is her approach to the enforcement of environmental  rights.  And the approach  of Nigeria  in  tackling  environmental matters  is  influenced  majorly  by  her  cultural  and  political origins  as  well  as  the  nature  of  her environment. 

 Most of the environmental problems facing Nigeria are due to hard natural and climatic conditions while others are as a result of the political instability. Thus, the role of environmental law in the  attempt to tackling  these hitches  remain  negligible,  environmental  law  also  provides  a  structure whereby the results of these environmental glitches may be lessened. 

Flowing from this position, Nigeria needs to make serious and deliberate efforts toward policies that, when implemented, will bring about a safe environment for all. A  cursory  look  through  the  discussions  above  shows  that the  environmental  laws  and  enforcement bodies as created by law is yet to fully resolve the issues of environmental damage in the country. This is either because the provisions of laws have become outdated and not measurable to the environmental degradation in Nigeria. 

Nigerian legal system presently considers and tackles environmental damage by means of extant provisions in our laws which are all subject to the Constitution.However, the courts apply  the  general  rules  of  civil  liability  whenever  they  decide cases  concerning  compensation  for damage, regardless of the fact that the damage is caused by pollution or other sources. The rules of civil liability do not take care of the numerous environmental damage cases. It is however, imperative to lead a legal system to deal with the concern of compensation and restoration in environmental damage cases.

 Despite all the legal provisions  on environmental crimes  in Nigeria, it is obvious that offenders, most of the time, do not assume  criminal  liability  that is  proportional  to the offence and most  of the time get away with payment of meager fines. Identifying environmental crimes and giving it the due legal force by way of codification, will foster environmental regulation and protection in the country.It has been argued that since payment of fines are about the only extent to which corporate bodies can be penalized, achieving a total deterrence may still be a huge challenge as liability of corporate bodies in form of fines may only end up becoming a part of the cost of doing their business.

The rationale  of the environmental  laws is to reduce, prevent, remedy and punish actions that threaten or  damage the environment and those that live  in  it  and it  is  obvious  that the laws in  place  have not prevented the damage of the environment. 

To this regard, environmental  legislations  in Nigeria should be  reviewed especially  in  the  areas  of fines  as  prescribed  punishments  for  offences, also,  experts  in environmental field and personnel should be properly trained before they can be part of the Enforcement agencies.