APPRAISAL OF THE CONTEMPORARY JURISPRUDENCE ON THE RIGHT TO ENVIRONMENT: A CASE STUDY OF NIGERIA AND SOUTH AFRICA

ABSTRACT

The thesis explores environmental rights protection in Nigeria and South Africa. The research questions are: Are the identified elements of environmental rights reflected in the law and policy of Nigeria? What role has regulatory bodies, the judiciary and civil society played in promoting and protecting the right to a healthy environment in Nigeria and South Africa? What are the social, political and economic factors affecting the implementation and enforcement of environmental rights in Nigeria and South Africa? What are the obstacles to using legal processes for environmental protection in Nigeria? The objectives of the thesis include: to find out whether there is promotion and protection of the right to a healthy environment in Nigeria and South Africa; to find out the factors, if any, responsible for inefficient and ineffective promotion and protection of the right to a healthy environment; to find out the greatest obstacles to using legal processes for environmental protection in Nigeria and to proffer suggestions to make the promotion and protection of the right to a healthy environment effective and efficient. The research is situated in the historical context of environmental degradation in Nigeria and South Africa, where patterns of environmental degradation and pollution are rooted in decades and centuries of massive natural resource exploitation that benefitted a tiny minority while adversely affecting the majority of citizens. Nigeria and South Africa are the largest economies in Africa and face major environmental challenges. Both countries share the Common Law tradition and are state parties to the African Charter on Human and Peoples‘ Rights. The different approaches to environmental rights protection in their respective constitutions and legislations also provide a fertile ground for comparison. Doctrinal research (documents), interviews and questionnaires provide the data. Data was analysed via descriptive analysis. This thesis finds that framing the right to a healthy environment as a justiciable fundamental right offers many advantages over directive policy principles and it would not hamper development activities that are guided by environmental laws. The advantages include enlarged access to justice in environmental matters; relaxation of rules of legal standing; entrenching public participation in environmental management; increased accountability and adherence to due process by corporations and government; and increasing the importance of environment in the public consciousness. Other advantages include: an enhanced role for human rights bodies; development of environmental rights jurisprudence; and empowering citizens in implementation and enforcement thereby complementing efforts of environmental protection agencies. Findings from the thesis are that although Nigeria has environmental rights in the African Charter on Human and Peoples‘ Rights (Ratification and Enforcement) Act, the absence of a direct, justiciable environmental right in the Nigerian Constitution has rendered the environmental right ineffectual. Factors affecting environmental law enforcement in Nigeria include ignorance of citizens; lack of capacity of environmental agencies, corruption; and lack of political will. In South Africa, the high economic cost of remediating legacy environmental problems,competing socio-economic challenges and the economic and political clout of large corporate polluters are major factors affecting the enjoyment of the environmental right enshrined in the Constitution. Compared to South Africa, Nigeria is weak in public participation, access to justice, environmental data and the development of environmental rights jurisprudence. Major hindrances to using legal processes to achieve environmental protection in Nigeria include: ignorance by the public of the legal framework; inordinate delay in the judicial system; high cost of litigation and restrictive rules of locus standi. These have contributed to a trend in which oil-producing Nigerian communities adversely affected by environmental degradation are suing multinational oil companies in their parent countries. From the survey, majority of legal practitioners are in favour of amending the Nigerian Constitution to make the right to a healthy environment justiciable. They are also in support of interpreting fundamental rights to life, human dignity and property to encompass environmental protection.
CHAPTER ONE GENERAL INTRODUCTION
Background of the Study
In an era of looming global environmental crises from climate change and environmental degradation it is indisputable that the quality of human life is tied to the quality of the environment. The quality of life and man‘s existence is adversely affected by various environmental problems, for which man is the major architect. Those who suffer most from environmental disasters and adverse effects of climate change are the poor, disadvantaged and vulnerable segments of the society and these are found mostly in developing and underdeveloped countries.
The sheer scale of environmental issues at the national and global levels means that national action by itself, while important, is insufficient, and that significant international cooperation is required. Thus environmental protection, like human rights, has evolved through a process of national concern to the stage of internationalisation and globalisation.
A significant development in the global development of environmental law is the articulation of the link between the human rights discourse and environmental jurisprudence. The first formal recognition of the link between the environment and human rights is Principle 1 of the 1972 United Nations Declaration on the Human Environment which declared that man has the ―fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits of a life of dignity and wellbeing…‖ A healthy environment has thus been internationally acknowledged as a prerequisite to the effective enjoyment of human rights.
The growth in the magnitude of environmental problems, increasing awareness of environmental issues, increasing recognition of the importance of the environment to the realisation of the right to life and other human rights, and hence the need to provide for
constitutional environmental protection all contributed to the conceptualization of environment in terms of a right.
Recognition of the right to a healthy or safe environment finds expression in regional human rights treaties1 and constitutional guarantees on the environment. It has also resulted in the development of environmental rights jurisprudence. The growing trend of recognition of constitutional environmental rights is illustrated by a recent study that analysed national constitutions. Out of 192 national constitutions, environmental protection was incorporated in one form or the other in 140 national constitutions with 86 constitutions explicitly recognizing the right to a healthy environment.2
Nigeria and South Africa provide valuable material for in-depth national studies on environmental rights jurisprudence. In the past decades Nigeria and South Africa have experienced major developments in the area of environmental protection. The adoption of a new legal order in South Africa has seen the adoption of a national Constitution that provides for a substantive environmental right. It is worthy to note that the Constitution and framework environmental law was the product of wide ranging consultations at all levels of the society. There has also been a dramatic rise in environmental activism and this has been well documented.3
In Nigeria, the return to democratic rule after almost two decades of unbroken military rule (with its attendant human rights abuses), has seen a rising awareness of human rights and some increase in environmental awareness. The national Constitution, introduced in 1999 at the restoration of democratic civilian rule, followed the post-1972 trend of constitutionalising