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ROADMAP TO AN EFFECTIVE LEGAL REGIME OF ENVIRONMENTAL PROTECTION IN NIGERIA: PRESENTATION MADE BY BARR.

CHIMA WILLIAMS1 HEAD OF LEGAL RESOURCES/DEMOCRACY OUTREACH, ENVIRONMENTAL RIGHTS ACTION/FRIENDS OF THE EARTH NIGERIA AT THE 1ST INTERNATIONAL CONFERENCE ORGANIZED BY ACADEMIA FOR GREEN AFRICA ON THE 19TH 21ST DAY OF OCTOBER, 2010 AT CONSTANTIAL HOTEL, BENIN CITY, NIGERIA. INTRODUCTION At this juncture of the Nigerian national life it is disheartening to note the myriads of environmental problems besetting us as a people despite the huge efforts with huge financial consequences by successive administrations in tackling these problems, many of them man made arising from the placement of priorities by operators whose activities impacts negatively on the environment and the people. Profits in most cases are placed above humans by both government managers and company operators alike! It is with this hindsight and most especially having worked with vulnerable and negatively impacted communities across Nigeria over the years that I make this attempt at drawing up a roadmap to an effective legal regime of environmental protection in Nigeria. To properly situate issues and create a clearer picture of the issues at stake in this instance, I will attempt a review of the definition of environment. The word environment has over one thousand definitions but for our purpose here we will look at a few of such definitions thus: (i) Environment is: (1) The circumstances, objects or conditions by which one is surrounded. (2) Surrounding conditions or forces that influence or change as: (a) The whole complex of factors (as soil, climate and living things), that determines the form and survival of an organism or ecological community. (b) The social and cultural conditions that influence the life of a person or human community2 (ii) Environment - under the environmental protection Act 1990, Section I (2) the environment consists of all or any of the following media, namely: the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man made structures above or below ground3 (iii) Environment External conditions and surroundings, especially those that affect the quality of life of plants, animals, and human beings. In agriculture the environment includes the air, soil, and weather conditions 4 (iv) Environment The natural surroundings of an organism, which include everything, living and nonliving, that affects the organism5 (v) Environment The environment is defined broadly to include the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archaeological, historic or aesthetic significance, existing patterns of population concentration, distribution, or growth, existing community or neighborhood character, and human health6

Barr. Chima Williams is also the National Focal Person Green Alliance Nigeria, Country Focal Person Green Actors of West Africa and has made cases for environmental protection both nationally and internationally including at the European Parliament in Brussels, United Nations in Geneva and recently as a lead presenter at the International Bar Association, Annual Conference held in Vancouver, Canada etc. 2 Websters new encyclopedic dictionary (revised edition) 1995 at page 336. 3 The Osborns concise law dictionary (Eight Edition) (Sweet and Maxwell) 1993 at page 131. 4 Mauna Kea Weather Center Meteorology Glossary/Dictionary. See http://mkwc.ifa.hawaii.edu/glossary/index.cgi? letter=e) 5 PLANETPALS ECOLOGY DICTIONARY see http://www.planetpals.com/ecodictionary.html) 6 Universal glossary of land use terms and phrases 1998 Land Use Law Center Pace University School of Law. See http://www.nymir.org/zoning/glossary.html#seqra

(vi) Environment environment includes water, air, land and all plants and human beings or animals living therein and the inter relationship which exist among these or any of them7. The import of all the definitions proffered above to my mind is that the environment is our life and its preservation and or protection is the key to mans survival on the planet earth. THE PROBLEM In suggesting a roadmap for an effective legal regime of environmental protection in Nigeria, the first question to my mind that needs to be tackled will be: why has Nigeria despite having created several environmental agencies and departments and with the full compliment of a Ministry, still grappling with the issue of environmental protection? To me, despite the existence of all the agencies and departments and even the introduction of commissions as is on the works by the National Assembly to oversee aspects of our national life that has to do with the environment and enjoyment of its provisions, there will still continue to exist a lacuna that unless and until it is plugged in will continue to grapple with the issue of our relationship with the environment. When a people lack the power or are confused as to their powers to enforce the protection of any of their rights, such rights especially where it is within the domain of the mighty and powerful will in most cases be trampled upon. The above explains the Nigerian Environmental Protection situation today. First, the grundnorm law of the land the constitution of the Federal Republic of Nigeria 1999 a document of military origin has reduced the issue of environment to a mere what ought instead of what is8. Worse still all that the provision states is The state shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria It is copiously silent on how these noble objectives will be actualized or enforced. Secondly, most issues and actions that directly or indirectly impacts negatively on the environment from the human angle are listed under the exclusive legislative list of the constitution thereby removing the opportunity for States to look at issues of environmental protection from their peculiar standpoint. Enforcement under this setting becomes herculean for ordinary Nigerian citizens especially the rural dwellers who are the most impacted by any attack on the environment because of their vulnerability. Section 251(1)(e) and (n)9 grants exclusive jurisdiction to the Federal High Court an elitist court that resides in the States capitals where they exist to entertain matters arising from operations of companies incorporated under the Companies and Allied Matters Act and matters relating to Mines and Minerals (including oil fields, oil mining, geological surveys and natural gas) among others. Section 315(1)(a) and (5)(d)10 which has transformed the Land Use Decree a military document to an Act of Parliament and saved it. These provisions inhibit individuals and communities from accessing environmental justice.
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Section 38, paragraph 7 of the defunct Federal Environmental Protection Agency Act as amended by Decree No. 86 of 1992, the only environmental protection law ever made in Nigeria. 8 Under the 1999 constitution of the Federal Republic of Nigeria, environment is mentioned albeit in passing in that the only provision on the environment is section 20 of the Constitution of the Federal Republic of Nigeria, 1999 which is under the FUNDAMENTAL OBJECTIVE AND DIRECTIVE PRINCIPLE OF STATE POLICY CHAPTER OF THE CONSTITUTION an unenforceable provision. 9 Constitution of the Federal Republic of Nigeria 1999. 10 Supra.

Thirdly is the fact that environmental protection processes and mechanisms are scattered in different pieces of legislation. There is no composite environmental law of Nigeria. The only attempt at having a uniform environmental protection law was the attempt with FEPA Federal Environmental Protection Agency Act as amended by Decree No. 86 of 1992. The FEPA Act was retained by the 1999 Constitution but latter repealed by the NESREA Act 2007. The above has posed identification problems for both judges, lawyers and litigants alike. These legislations has hidden in between sections or even sub sections that deals with issues that are squarely within the confines of environmental management and protection. Perhaps, to buttress the above point, I will cite just two instances thus: the AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS11 under its S. 24 provides that All peoples shall have the right to a general satisfactory environment favorable to their development Equally, the CRIMINAL CODE CAP. 77 LFN 1990 an enforceable statutory legislation in Nigeria have provided in its Sections 245 and 247 thus: Section 245 Any person who corrupts or fouls the water of any spring, stream, well, tank, reservoir, or place, so as to render it less fit for the purpose for which it is ordinarily used, is guilty of a misdemeanor, and is liable to imprisonment for six months Section 247 Any person who: (a) vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighborhood, or passing along a public way; or (b) does any act which is and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, whether human or animal; is guilty of a misdemeanor, and is liable to imprison for six months These provisions should ordinarily be encapsulated in an environmental management and protection law of Nigeria. Fourthly is the issue of proof in environmental protection related cases such as pollution and damages etc. The technical nature of these issues are such that its proof requires a lot of scientific survey and analysis to establish. This goes with high cost indices which makes its proof very expensive considering the Nigerian poverty index. How many Nigerians can afford the high cost of such research? This empowers the high and mighty to continue to deal with the environment without thinking about the future of the yet unborn Nigerians! It is important to note here that those who mostly negatively impact on our environment are extractive industries operators who in their operational activities/practices destroy and pollutes the peoples environment, source of livelihood, create health problems. When this happens, the individuals and communities are faced with the high cost of pursuing judicial redress from the Federal High Courts. Even where such individuals or communities are able to secure judgments in their favor, because these matters falls within the exclusive legislative lists of the constitution, the only enforcement institutions are Federal institutions which are in most cases out of touch with the realities in the local communities. Enforcement of such judgments becomes a herculean task. In such situations, the vulnerable communities and individuals are forced to either renegotiate the judgment conditions or have a judgment but with no remedy. THE ROADMAP The whole issue of the environment and its relationship with the society ie the government, the citizens and corporate bodies are encapsulated in the Federal Environmental Protection Agency Act {now incorporated into NESREA} which under its sections 15 21 set out the Nigerian National Environmental standards. Lofty as these standards may be or sound, however, the critical question is do we have a mechanism for the enforcement of these standards in Nigeria to engender environmental protection or justice in the country?
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which is an enforceable charter in Nigeria under the AFRICAN CHARTER ON HUMAN AND PEOPLES RIGHTS (RATIFICATION AND ENFORCEMENT) ACT CAP 10 LFN 1990

When we talk of environmental protection, we are only talking about the responsibilities of all the forces that impact on the environment in terms of the government, the citizens and corporate bodies. How far do any of these groups act in consonance with accepted standards of environmental protection in order to preserve the environment for the common good of mankind? It is my considered opinion that for effective protection of the environment each of the three main actors on the environment ie the government, citizens and corporate bodies owe a duty to preserve the environment and these can be achieved through the following ways: (1) (2) (3) The government can ensure protection through legislations, effective monitoring and enforcement / implementation of such legislations. The citizens can ensure protection by being watchdogs to ensure non defiance of the stated regulations and where not complied with, that offenders are brought to book. The corporate bodies can ensure protection by compliance with the stated regulations.

It is imperative to note that the above especially 2 and 3 cannot be achieved in an atmosphere such as is prevalent in Nigeria where there are dearth of regulations on environmental issues. Therefore, I propose as follows: 1. To make provision for the justiceability and enforceability of environmental rights towards guaranteeing its protection, the on going constitution review and amendment exercise should provide a veritable opportunity for the present government to redress the injustices meted to the Nigerian people over time arising from the denials of rights created by the military constitution foisted on Nigerians without their consent. This can be done by: (a) The introduction of a new Section 6 (7) to the Constitution to make environmental protection the duty of every one thus removing the locus standi problem, (b) All items contained in the Chapter 2 of the 1999 constitution especially Section 20 thereof should be moved to the Chapter 4 of the constitution and modified appropriately. (c) Introduction of new Section 45 to bestow on the people, the right to own and control their resources; (d) Section 315(5)(d) of the 1999 constitution should be expunged and the Land Use Act repealed. (e) Items under Section 251(1)(e) and (n) should be moved from the exclusive legislative list of the constitution to the concurrent legislative list so that both Federal and State Governments and Courts will have power to legislate and adjudicate on matters arising there from. 2. The dearth of comprehensive legislations on environmental issues in this country is a source of great concern to every stake holder on the environment hence at the Environmental Law Reform Conference organized by the Environmental Rights Action/Friends of the Earth Nigeria on the 16th day of April, 2004 in Abuja, Hon. Emeka Atuma, then Chairman House Committee on Environment and Ecology while delivering the key note address, observed thus without mincing words, the principal source of environmental laws in most democratic countries of the world is through legislation. In our country there are a myriad of matters relating to the environment that are urgently waiting to be legislated upon He went further to enumerate such environmental matters waiting to be legislated upon to include: (a) A National Environmental Policy Act which will inter alia encourage productive and enjoyable harmony between man and his environment and to promote efforts that prevent or eliminate damage to the environment and biosphere, and stimulate the health and welfare of our people. (b) An Environmental Law On Our Water Resources, which will regulate the pollution of our waters and make other provisions for the management of our water resources. Furthermore, the agency or authority, as the case may be, will operate at the Local Government level and administer an integrated waste management programmes. (c ) An Environmental Law which will be concerned about the supply and distribution of clean, safe drinking water and handling of sewage. (d) An Environmental Law on the planning of towns and other sub-urban areas which will dwell on matters relating to land development, mining activities and the disposal of toxic substances. (e) An Environmental Law that would regulate the use of insecticides, fungicides, herbicides and rodenticides. (f) An Environmental Law that will regulate ocean dumping, oil spillage and other matters relating thereto... (g) An Environmental Law that will

make provision for the issue of endangered species of fish, wildlife and plants as well. To be included in this law should be those species that are regarded as threatened with extinction as well as those in immediate danger of becoming extinct. This proposed law should contain a list of such threatened species and the imposition of stiff penalties with restriction on hunting, trapping and shooting of any of the species listed in the enactment. (h) An Environmental Education Law, which will provide money for elementary and secondary school programmes, community education programmes and other local educational projects focused on environmental issues. The main focus of this law would be to stimulate public awareness of environmental issues. This law would also make provisions for environmental education advisory panel. (i) An Environmental Law that would set the minimal noise levels that can be tolerated without adversely affecting health. This type of law will establish noise emission standards for commercial products such as motors, air conditioners, construction sites and other industrial concerns. The Environmental Rights Action / Friends of the Earth on its part, after series of research and studies on the Nigerian Environmental Law regime as well as seminars and conferences on the issue identified some areas of law that needs review for the enhancement of the environmental protection milieu of the country. To this end, the ERA / FoEN proposed among others amendment of about nine statutes such as the Oil Pipeline Act, Petroleum Act, Minerals Act, Environmental Impact Assessment Act, Criminal Code, Associated Gas Re-injection Act And Tin (Miscellaneous Provisions) Act and finally proposed the promulgation of the ENVIRONMENTAL PROTECTION LAW and followed this up with the preparation of the PROPOSED ENVIRONMENTAL BILL OF NIGERIA 2004. I will equally note here that I was part of the stakeholder review meeting of the draft Environmental Management Bill of Nigeria proposed by the Federal Ministry of Environment in 2008. There are several bills that are being worked on by the National Assembly. My proposal is that every stakeholder herein and interested in the environmental well being of Nigeria should join hands to ensure that all these bills and relevant laws are harmonized to produce for the first time a NIGERIAN ENVIRONMENTAL MANAGEMENT AND PROTECTION LAW that will be all encapsulating. 3. Being that no matter how beautifully a law is couched, if it lacks coercive force, it cannot ensure compliance and since punitive measures for offenders must be enshrined to act as deterrent to would be offenders, I propose that such law to be enacted as above should have clear provisions on (a) Environmental pollution prohibitions (b) What constitutes Environmental crimes and punishment thereto, (c) What constitutes environmental offences and penalties, (d) enforcement processes and mechanisms. 4. It is equally my humble suggestion that an Environmental Justice Court/Tribunal be created out of every State High court with sole concern on determination of cases arising from environmental protection claims be it civil or criminal. Judges of such courts must be those specially learned in environmental matters. The proceedings in these courts like every other specialized courts must be expediently conducted so that the unnecessary delays accustomed with our regular courts would have been cut off. In all, this presentation will be concluded by urging all the participants herein seated and those who are here in spirit to create avenues for the continued discussions on the ways of effectively protecting our environment for an enhanced human sustenance after all the ENVIRONMENT IS OUR LIFE! Thank you.

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