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A Fresh Perspective on the Human Right to Political Participation and Environmental Decision-Making in Nigeria

Document Cited in Related
Vincent
DOI10.3366/ajicl.2018.0249
Published date01 November 2018
Pages565-584
Date01 November 2018
INTRODUCTION

Accounts of significant environmental pollution and degradation from developmental and industrial activities in parts of Nigeria, especially by major actors in the country's extractive industry, are common.1 The human rights crisis engendered by this phenomenon, as it relates to members of the communities whose immediate environment are being degraded, is also real and severe. For instance, the exploration of crude oil in Nigeria has resulted in extensive gas flaring, massive oil spills (devastating water bodies, forests, farm lands and biodiversity) and persistent noise, light and air pollution in the relevant communities.2

In fact, a recent environmental assessment by the United Nations Environmental Programme (UNEP) of Ogoniland3 found that the level of environmental damage caused by the oil exploration activities of Shell in Ogoniland was severe and virtually unparalleled elsewhere. According to UNEP, ‘the environmental restoration of Ogoniland could prove to be the world's most wide-ranging and long-term oil clean-up exercise ever undertaken.’4 Undeniably, such environmental degradation in the country has over the years eroded the livelihoods of many – pushing them further into poverty and amplifying their failed expectation of economic benefit from oil exploration activities in their communities. It has also resulted in serious negative implications for public health and the right of affected communities to practise their culture and religion where such is tied to nature.5 And as expected, this dire situation has amplified public frustrations in the Niger Delta, resulting in increased tension and frequent violence in the region.6

In all these affected communities and researchers hold the view that, among others, the above negative implications of oil exploration in the Niger Delta have been aided and sustained largely by the inadequacy of extant environmental legal regimes to ensure transparency and public participation in environmental decision-making processes as they relate to petroleum development.7 Stressing the point, Afinotan and Ojakorotu have suggested that ‘[s]ince state officials manipulate and monopolise oil policy … to the exclusion of others, especially the oil bearing communities, frequent frictions and disagreements become inevitable.’8 Although this situation is well known with respect to oil and gas exploration in the Niger Delta, it is not exclusive to it. A similar pattern of public exclusion from environmental decision-making processes has also been recorded with respect to other extractive industrial activities such as the mining of bitumen which also creates environmental concerns.9

This issue remains critical, as public participation in (environmental) decision-making and governance has been widely recognised as, among others, having the potential to engender high-quality (environmental) decisions which ultimately help to ensure sustainable development that fosters human well-being and protects the environment.10 In addition, it is commonly accepted as fundamental to realising or securing several substantive human rights, such as the rights to cultural and religious practices,11 health and a satisfactory environment,12 most of which are arguably impaired or even denied communities suffering major environmental degradation. Moreover, direct public participation in governance is, as the concept of democracy entails, a fundamental component of a truly democratic government.13 And despite the demands that ensuring public participation may place on state resources, its ‘benefits vastly outweigh its disbenefits’.14

Considering the above, a number of international and regional legal regimes, which Nigeria – formally a democracy – is party to, expressly or by implication, require state parties to guarantee domestically the human right to political participation.15 Essentially, this right potentially opens the door for the governed to take their rightful place, together with the government, at the table of decision-making, including as it relates to environmental issues. In this respect, Fox puts it well:

All of human rights law presents a challenge to traditional notions of State sovereignty. In this sense the right to political participation is unexceptional. […] For most of recent history ‘the sovereign’ has been that person or group actually wielding political power. The right to participation rejects this de facto control test by asserting that the mass of citizens is the ultimate repository of sovereignty.16

With attention to the relevant socio-political context, the next section of this article will examine the relevant environmental legal regime in Nigeria aimed at ensuring public participation in environmental decision-making processes, as well as the inadequacies of the regime in this regard. Following this, the work will assess the current status of the human right to political participation in relevant supranational legal instruments and its potential to support participation in environmental decision-making. On these bases, the subsequent section of the article will uniquely explore in detail the potential of the human right to political participation – as enshrined in relevant international, regional and domestic laws – to help remedy that legal inadequacy and contribute to addressing public participation needs in an environmental context in Nigeria ENVIRONMENTAL LAW PROVISION FOR PUBLIC PARTICIPATION IN NIGERIA – IN HISTORICAL CONTEXT

Taking a historical view, public participation in decision-making processes was generally part of governance and natural resource administration in many traditional African societies, including those in Nigeria. Indeed, the traditional system of governance that thrived in the south-east of Nigeria amongst the Igbo ethnic group was one where ‘democracy was direct and real’17 and popular participation in decision-making was at the very core of governance.18 The Yoruba ethnic group of the south-west was branded a ‘constitutional monarchy’ that exhibited a clear form of participatory ‘monarchical democracy’ which ‘involved many checks and balances’,19 with the public having real influence and opportunity to shape final decisions that affected them.20 Similar political systems existed among diverse ethnic groups in the middle-belt and south-south/Niger Delta regions.21

However, those largely participatory forms of governance that dotted the Nigerian political landscape were generally eroded by the British colonialists who brought the various groups together to form Nigeria in 1914. Colonial rule foisted on the polity a system of governance essentially characterised by secrecy and public exclusion from decision-making processes to enable them fulfil their mainly exploitative agenda.22 And upon the independence of Nigeria in 1960, this exclusive system of decision-making in governance was broadly retained by successive democratically elected civilian governments,23 and was the ‘trademark’ of the military regimes that gained (through coups d’état) and held power for almost three decades before civilian/democratic government was restored in 1999.24

Despite the above scenario, the federal military government in 1992 enacted the Environmental Impact Assessment (EIA) Decree No. 86 of 1992 (now an Act25) which aims to mainstream environment-related considerations into development projects,26 and should as a general principle provide for adequate public participation in the decision-making process.27 For emphasis, it does not cover – and no other environmental law does – public participation in environmental decision-making at higher strategic levels as it relates to the formulation of environmental policies, plans and programmes. Promulgated into law by a military government more than two decades ago and remaining unamended, the EIA Act contains some participatory provisions and is the major law in this regard in Nigeria. Importantly, the Act in section 2 places restriction on public or private sector projects without prior consideration at an early stage of their environmental impact, and when such proposed projects are subjected to an environmental assessment, the Agency is obliged to ‘give opportunity to … members of the public … to make comments on the’ EIA of the activity.28 But, according to Williams, a key official of Environmental Rights Action/Friends of the Earth, Nigeria, ‘[t]his [i.e. section 7] is the most violated provision of the Act assuming there is any part of it that is observed.’29

Essentially, a similar fate or lack of meaningful observance befalls other participatory provisions of the EIA Act as, to a large extent, they are made subject to the unguarded discretion of the relevant government agencies and unreasonably wide exemptions which have significantly rendered them weak and ineffective.30 For an example, among others, section 14(1)(a) and (c) of the EIA Act allows the President or the Council of the relevant government agency to exclude the application of the Act where it is ‘of the opinion that the environmental effects of the project are likely to be minimal’ or ‘the project is in the interest of public health or safety’, respectively.

Opining that ‘[i]t is difficult to see the practical reasons’ for these exclusions, especially as paragraph (b) of the above provision already reasonably excludes the application of the Act in cases of ‘national emergency’, Omorogbe rightly concludes that they ‘merely provide loopholes’ that have allowed government and developers to avoid compliance with the Act whenever they choose to.31 Thus, for instance, according to reports from community representatives at an EIA workshop organised by a major NGO in Nigeria: ‘[t]hey said that often host communities are not involved in the EIA processes or at best they are invited into a meeting where the corporation will tell them that they have done an EIA and that the projects had been approved for commencement.’32 A similar...

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