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« BARRISTER OLANREWAJU SIKIRU ADEWOYE LAUNCHES HIS BOOK “LEGAL FRAMEWORD FOR ANIMAL RIGHTS AND GAME MANAGEMENT IN NIGERIA”,2007LEGAL SANCTION FOR THE ABUSE OF FLORA AND FAUNA IN NIGERIA »LIABILITY FOR ENVIRONMENTAL POLLUTION IN NIGERIA-BY BARRISTER SIKIRU OLANREWAJU ADEWOYE
By BARRISTER SIKIRU OLANREWAJU ADEWOYE
LIABILITY FOR ENVIRONMENTAL POLLUTION IN NIGERIA *
INTRODUCTION
In a bid to do justice to this work, efforts would be made to define key words that feature in this topic, that is, Liability, Environment and Nigeria whilst the discourse on liability for environmental pollution will be trichotomised into Land, Air and Water resources. However, the scope of pollution will be extended to include environmental abuses in their varying degrees which discourse on pollution alone cannot adequately address. The consideration of combined effects of pollution and abuse will confer justification on the letter and spirit of the extant legislations on the major components of environment.
Liability is the quality or state of being legally obligated or accountable; legal responsibility to another or to society, enforceable by civil remedy or criminal punishment1. Liability is the synonym of duty, the correlative of right. It is the opposite of privilege or liberty. It is also the correlative of power and the opposite of immunity. It is the bond of necessity that exists between the wrongdoer and the remedy of the wrong. Kinds of liability include but not limited to accomplice liability, derivative liability, joint and several liability, vicarious liability, penal liability and strict liability.
Environment is defined by the Chambers Dictionary2 as surroundings; external conditions influencing development or growth of people, animal or plants, living or working conditions. Man is both creature and moulders of his environment which gives him the opportunity for intellectual, moral, social and spiritual growth. Man has acquired the power to transform his environment in countless ways and on an unprecedented scale.
* Sikiru Olanrewaju Adewoye, LL.B: B.L.: LL.M. Author and Legal Practitioner of Temitope Chambers, 22, Fajuyi Road, M.K.O. Abiola House, Ekotedo, Ibadan, Oyo State, Nigeria.
1. Black’s Law Dictionary 7th Edition P. 925
2. See page 541 of the Dictionary’s Edition first published in 1988
The environment has also been defined as the totality of physical, economic, cultural aesthetic and social circumstances and factors which surround and affect the desirability and value of property or which also affects the quality of the people’s lives.2a However, the definition offered by Section 38 of the Federal Environmental Protection Agency Act, 19883 shall be adopted for the purpose of this work. The Act4 defines Environment to include water, air, land and all plants and human beings or animals living therein and the inter-relationships which exist among these or any two of them.
The Act5 recognizes the striking similarities between human beings and animals by the use of the disjunctive word being adopted as alternative6. It is also recognition of the status of human beings as higher animals.
In essence, Environment encompasses all our lives and livings which we can feel and touch and, individually or collectively pass judgments on any consequential impact on it. In other words, the discourse on the abuse of environment which impacts directly on human beings will be considered as being applicable to animals for all intents and purposes.
Abuse according to the Black’s Law Dictionary7 means to depart from legal or reasonable use in dealing with a person or thing; to misuse, to injure a person or damage a thing. Indiscriminate disposal of domestic, commercial and industrial wastes are examples of environmental abuse. Uncontrolled use of the environment is precipitating enormous danger to human existence.
2a. Black’s Law Dictionary 5th Edition 1979 p. 479
3. Federal Environment Protection Agency Act 1988 was enacted under military government as a Decree and same was amended in 1992 by another Decree- Federal Environmental Protection Agency (Amendment) Decree 1992.
4. At the exit of the military government and the enthronement of Democracy which heralded Democratic government on the 29th May 1999 automatically changed the nomenclature of Decrees to Acts of National Assembly.
5. Ibid. The Act has now been adopted and repeated in the chapter 4 of volume 6 of the 2004 Laws of Federation
6. See section 38 of the 1988 Decree and section 41 of the 2004 Act.
7. See page 10 of the Blacks Law Dictionary, 7th Edition published in of Federation 1999 and edited by Bryan A. Garner
Nigeria’s peculiarity of her heterogeneity of people with diverse languages and cultures qualifies Nigeria as a state. Nigeria has a total area of 923,768 square kilometers with the land of 910,755 square kilometers, water, 13,000 square kilometers. The terrain of southern lowlands is merged into central hills and plateau. There are mountains in South East, plains in North with 12% of forests and woodlands and 23% of meadows and pastures8.
Human beings, animals and plant interact with over 140 million9 people in the symbiotic relationship with the entire ecosystem in the attendant competition with the environment for both economic and domestic survival, urban development, pollution, medicine and recreation.
The legislation regulating inter-relationships which exist among water, air, land, plants, humans and animals abound in the Nigeria statute books. These laws which seek to protect the Nigerian environment are enacted with respect to their relevance to specific environmental activities without necessarily making any reference to their subjects as Environment.
Federal Environmental Protection Agency Act, 199010 (hereinafter simply referred to as “FEPA”) appears to be the only legislation with a clear nomenclature of Environment, the subject matter of which other legislation complement with a view to achieving desired results. Before the promulgation of FEPA, Nigeria did not embark on aggressive environmental policies until late 80’s due to the abuse of environment arising from oil boom, commercial and industrial activities especially the Koko toxic wastes which incidents inevitably justified the introduction of strict environmental statutes.
8. See introduction pages of 2004 Diary of Nigerian National Petroleum Corporation.
9. Nigeria population was estimated at over 140 million vide the last population census exercise conducted in 2006.
10. The Act which is cap 131 of the Laws of the Federation of Nigeria 1990 legally changed the nomenclature of FEPA from Decree to Act part of the Acts of National Assembly though under a military president Gen. Ibrahim Badamosi Babangida. The Act was amended by 1992 Act No. 59, further amended in 1999 Act No 14 and now amended by the 2004 Act Cap. F10.
It suffices to state that some of these environment related legislation have been in existence before the promulgation of FEPA Act in 1988 and some, before Nigerian Independence for example the Criminal Code11 and Penal Code12 and Wild Animals Preservation Ordinance 195813.
The environment is undoubtedly nature’s most benevolent contribution to human existence on earth. However, the choice of Land, Water and Air resources as major components of environment in relation to this work is not unconnected with the inevitable interaction and interrelationship among plant, animal and human beings in each of the three components as well as the attendant abuses by man through indiscriminate disposal of domestic, commercial and industrial wastes which in effect bring diseases and epidemic.
Inevitably, conflicts exist between the protectors of the environment and the forces of economic and industrial developments. The recent happenings in Nigeria and the world at large point to the scourge of environmental abuses and the attendant vices. In this connection, important international laws have emerged from international efforts towards a more prudent care for environmental consequences particularly in relation to modern science and technology and sovereign right of a state to exploit resources.
The Oil war in Persian Gulf and the resultant effect on the loss of marine life, damage to ecosystem and atmospheric pollution remain evergreen and Nigeria is not immuned from abuse of environment and the resultant damage, loss, injury, degradation attributable to the abuses.
11. Cap C38 of Criminal Code Act Laws of the Federation 2004
12. Cap P3 (Northern States) Federal provisions Act 2004
13. It became operational on the 1st day of June 1958 as Cap 221 Laws of the Federation of Nigeria and Lagos 1958. It consolidated the previous 13 ordinances from 1916-1958.
Regrettably, Nigerian government is not doing much in the wholesome arrest of this ugly situation by its lackluster implementation of the extant laws and various governmental policies on the protection of environment. The government should as a matter of exigency adopt policies that are welfare oriented and should be designed to meet the basic necessities capable of guaranteeing public utilities and good standard of living.
Poverty is a fundamental problem of environmental protection. In Nigeria, poverty has been identified by government and the people as the critical problem of our time. Between 1980 and 1985, after the crash of the crude oil market on which Nigeria depended for most of her income and foreign exchange, a drastic increase in poverty became the order of the day. The current global recession13a that has led to the low price of crude oil is more severe and devastating. In other words, the on-going global economic meltdown is not helping matters as far as poverty is concerned. Our rapidly urbanizing world cannot claim to be harmonious, if slum-dwellers do not enjoy opportunities to find jobs and improve their living conditions. Nor will it be harmonious, if the growth and expansion of urban areas come at the expense of the natural environment.
According to the United Nations Development Programme (UNDP) release in 1992, there was an estimate of more than 38 million people in Nigeria wallowing in absolute poverty and the number has been on the increase as economic growth and development suffered a serious decline. The growth of the population to over 140 million and the recent fall in prices of crude oil to more than 4 U.S. Dollars14 give a steady dose of poor economic news.
13a. It is an unfortunate pressures on world economies. A global dwindling fortunes in financial stock and energy markets bringing about excruciating economic downturn.
14. The Guardian, Thursday, March 3, 2009 Page 21
The excruciating consequence of poverty as much felt in the rural areas in terms of environmental degradation and pollution through indiscriminate tree felling for firewood, poaching and other wildlife depleting activities. In urban areas, anti-environment friendly activities are largely due to their state and standing in the society. As of 200514a, slightly more than one third of the urban population in developing regions lived in slum conditions. In sub-Saharan Africa, the proportion was over 60 percent meaning that they do not have access to water, sanitation and other challenges of urbanization.
An average of Nigerian does not see anything wrong in urinating or defecating in public places. In the face of such challenge, the argument has always been that the government has failed in its duties to the citizenry as no provision was made for their convenience while in transit.
In Nigeria, a distance of 100 kilometers may not have a single public toilet. One then wonders, where the teeming Nigerian population of over 140 million who are engaged in one activity or the other answer the call of nature as and when necessary. In the face of such defence, our environment becomes the poorer for it as some land and environment in Nigeria are characterized by a stench likened to that emitting from an open grave.
The above situation may make no sense to an average African who readily finds it convenient to cash in on the peculiar position of African countries as developing nations. However, the development in other developing nations are worthy of emulation. In China, for example, it is an offence for anybody to urinate in public glare. Recently, a Chinese was convicted of the offence and sentenced to death15.
14a. the Guardian of Monday, October 6, 2008. Page 35
15. Credited to Professor Margaref T. Okoroduch – Fubara in a discourse between the author and the learned professor on
Thursday, 5th March 2009.
The question that may be asked rhetorically is whether Nigeria is so poor as to be incapable of providing basic infrastructures and amenities for its citizens? The proceeds from crude oil even at this level of global financial crisis does not impair the country’s discharge of constitutional functions in terms of provisions of basic amenities, the issue of withdrawal of subsidy on petroleum products notwithstanding.
The problems attributable to environment protection are true reflection of government’s inexcusable failure to do things right in terms of enduring policy and enforcement of environment related statutes. While we are still feeling the pains of the said experience of koko toxic wastes dump in Nigeria, another one has just been discovered to have been dumped at Alaba market16 in Lagos yet unnoticed by our inefficient surveillance system until we are awaken from our slumber by most virile and business like foreign organization – Green peace’s vital information on the location of the dump.
It is pertinent to note that Koko Toxic wastes Dump which ought to have served as an eye opener to Nigeria was never taken advantage of. This first event which revealed our nations inefficient nature of surveillance system was too soon forgotten. This blame can only be put at the door step of the federal government whose business it is to manage Nigeria’s Airspace through its Agency, Nigeria Airspace Management Agency (NAMA).
No better word than inefficiency can be used to describe the NAMA whose Air Traffic Controllers (ATC) workers handling the nation’s new radars at the nation’s major international airports at Abuja, Lagos, Portharcourt and Kano could not detect the country of departure of the toxic wastes and point of destination in Alaba market, Nigeria.
16. Aired on Nigerian Television Authority Network News of Wednesday, 4th March 2009.
There are four major radar sites located in Lagos, Abuja, Kano, and Portharcourt and secondary radar spots at Obubura, Ilorin, Maiduguri and Talata Marafa17. The primary radar has a range of 65 nautical miles while the secondary has a range of 250 nautical ranges. The aim of these radars is for the coverage areas to overlap and provide total coverage of the country yet inefficient in the discovery of the toxic electronics Dump at Lagos market.
The report17a had it that many of the second-hand electronics items like television sets, computers and electrical appliances shipped from abroad contained toxic substances and/or poisonous chemicals like mercury, cadmium etc. From the United Kingdom, dangerous electronics because of their toxic nature were shipped into Alaba Market, Lagos, Nigeria rather than these dangerous electronics being recycled, at the Hampshire country’s recycling site in Basingstoke.
However, before it was taken for recycling Sky News17b which teamed up with Greenpeace17c in the investigation team found an old television, noted its barcode and product number and, with the help of a qualified engineer, removed a vital working part, rendering it useless and a satellite tracker then inserted into the television.
At the said recycling site, the television with tracker was sold along with other electronic appliances to BJ Electronics which also sold it to a dealer. The television with the aid of the tracker was traced to Alaba in Nigeria. Most of the imported electronic items had poisonous materials with toxic contents like Dioxins known to be carcinogenic and can cause endocrine disruption.
17. The Guardian, Tuesday, March 3, 2009 page 47
17a Nigerian Tribune Monday, 9th March, 2009 Page 13
17b it is a rolling TV news channel providing 24 hour news coverage including the latest breaking news.
17c is an independent global campaigning organistation that act to change attitude and behaviour, to protect and conserve the environment
Cadmium is capable of causing damage to the kidney. Children who are known to enjoy playing with handy electronics are exposed to these toxic contents and suffer various health hazards on account of such exposure.
Aside from the foregoing, the current energy crisis plaguing Nigeria is taking toll not only on industrial and economic productivity but also on the biodiversity which underpins the well-being of human societies and their economies hence the call by World Conservation Congress (WCC) for deep cut in greenhouse gas emission by 2050.
There is no gainsaying the fact that Nigeria is not immuned from the global awareness of citizen’s right to a safe environment notwithstanding its state of legal order on the relevant international conventions in terms of adoption as municipal laws the legal propriety of which shall be discussed in the concluding part of this paper.
One of the very first references to any form of individual right to a healthy environment can be found in principle 1 of the United Nations Declaration on Human Environment which provides thus:
“Man has the fundamental right to freedom equality and adequate conditions of life in an environment of a quality that permits a life of dignity and well being”17d.
In the same category is the United Nations Convention on civil and political Rights which recognizes the right to life which is relation to the right to a decent environment can only be enforced when the threat of environment degradation actually threatens human life17e.
17d the United Nations Conference in the Human Environment, Stockholm Conference 1972
17e Article 6(i) of the United Nations Convention on civil and political Rights
The United Nations Convention in Economic, Social and Cultural Rights provides for the right of everyone to an adequate standard of living and to a continuous improvement of living conditions, coupled with the right of people to the highest attainable standard of physical and mental health, the realization of which will be attained through an improvement of all aspects of environmental hygiene17f.
Article 2(i) of the ECOSOC Rights renders these rights inefficient by allowing for a progressive achievement by states of these through all appropriate means and to the maximum of available resources.
The African Charter on Human and peoples Rights17g is more pungent in this regard of Right to safe environment. Article 24 of the African charter provides thus:
“all peoples shall have the right to a general satisfactory environment favourable to their environment”.
The justification for a national policy on environmental issues is based on the dire need to articulate and gear all efforts towards ensuring a sound and healthy environment. This can be achieved by unequivocal expression of government’s aspirations in that regard and directing the relevant agencies on appropriate steps to undertake in making the aspirations a reality.
The government of Nigeria must ensure that the sad events of 1978 alleged importation of chlorofluorocarbon’s and other banned chemicals into the country, that is, the 1988 furtive dumping of toxic waste at koko involving an Italian firm and the recent dumping of Toxic Electronics at Alaba, Lagos are not repeated.
17f. See Articles 11 and 12 of the UN Convention on Economic, Social and Cultural Rights
17g. Adopted by member states of the Organization of African Unity O.A.U in Nairobi, Kenya 1981 and came into force on 21st October 1986.
It is imperative that the government makes a tough and decisive stance on importation of materials. Agencies of government such as standards Organization of Nigeria, NESREA17h saddled with the responsibility of inspecting imported items and ensuring their compliance with safety standards with a view to lifting it from its present state of the biggest market of the developing countries for second-hand items and the consumer of harmful products when the country already has it’s reputation dented by brazen corruption and rulership infirmity.
Nigerian government should be more responsive and alive to the realities of modern trend in curbing the scourge of environmental pollution associated with modern technologies and industrial growth, climate change, liquid and solid wastes dump. The perpetrators of Koko Toxic wastes dump went scot free due to the absence of law prescribing deterring punishment.
The perpetrators of the Alaba Toxic electronics dump would not be lucky this time if unmasked, having regard to the promulgation of Harmful Wastes (Special Criminal Provisions e.t.c.) Decree 198818 creating liability for any person who engages in any of the prohibited activities and prescribed punishment of life imprisonment on conviction.19
Pollution is not a modern phenomenon. It is not even peculiar to man, and may indeed precede him. Pollution by man in the 20th Century is a reflection of population growth, development of technology and the resulting improvement in living standard and consumption habit closely associated with economic growth.
17h. National Environmental Standards and Regulations Enforcement Agency.
18. Now Act of the National Assembly CAP H1, Laws of the Federation 2004
19. See sections 1, 6 and 7 of the Harmful Waste (Special Provisions e.t.c) Act 2004
The developments in the laws relating to the environment have in the past and in the modern times drawn an essential correlation between environmental protection and the citizens’ right to a safe environment. The impacts of deleterious acts on the environment from terrestrial, marine and coastal life to the ecological balance of natural areas, the biosphere, plant and animal life, from which man derives his sustenance became things of concern.
The communities of the world imposed social control by the various governments with judicial process as an indispensable aspect of governmental machinery for the protection of environment. The judicial process of a particular social system is normally the sum of the peculiar circumstances of the particular society. It is shaped by the fundamental necessities and habits of whole peoples.20
In the pre colonial Nigeria, there was an absence of specialized judicial structures such as courts; professional judges imply non-performance of their customary functions of council of elders. The council of elders sits in judgment over such cases of general concern. The traditional Nigerian societies, whether centralised or segmentary were not just a hoard of men without order in the management of their affairs. It was an intricate procedure which took their characteristics from the very nature of the particular societies. This procedure had existed and functioned to uphold law and order in traditional Nigerian Societies.
In the traditional Nigerian societies, the laws were simple and known to virtually everyone. The societies were communalistic in which the duty to ensure obedience to the laws was the duty of all especially with respect to members of the same lineage.
20. Diamond, Primitive Law (London: Watts & Co. 1950) page 174
In traditional Nigerian societies, the relationship between the civil and supernatural life was very strong. Almost every aspect of civil life was regulated by the deities hence the prevalence of myriads of taboos.21 The fertility of the land, the riches and safety of the hunting grounds and fishing ponds, the fertility of the woman, the health of the populace were all under the influence of the deities whose whims and caprices determined and regulated the fortunes of the society in these and many other respects.22
In some Yoruba traditional societies for example, it is a taboo for the members of “Alapa” family to kill any kind of snake.23 For Onikoyi family, it is a taboo to kill or eat “Okete” – A giant rat.24 A member of “Oluoje” family must not eat some species of birds like “Ega” – “Quella bird”, Orofo.24a In most Northern states, it is forbidden to eat any kind of snail and other wild animals.
In some traditional Yoruba societies, it is also a taboo to cut or use any
part of some species of plant and all these are contingent upon historical antecedents of each of the forbidden species. Absolute care was taken to prevent infractions on the taboos which are attached to these deities and beliefs. Any breach of these taboos was therefore regarded as offences which affect the welfare of the whole community and was therefore punished as a crime against the whole community.
21. Reflections on the judicial process in Traditional Africa A paper written by Kofi Quashigah. A lecturer in-law, University of Nigeria page 10.
22. Ibid
23 history had it that the progenitor or ancestor of Alapa family was a great hunter whose hunting was unique in the sense that he usually turned to a phyton (A giant snake) to hunt animals until one fateful day when one of his wives out of mischief destroyed the pot in which he prepared a charm responsible for his charge from human being to a snake and vice versa. Alapa, on return from the hunting expedition, met his pot broken and could not change to a human being and since then remained a snake. It is believed that a member of that family who eats any kind of snake has eaten the flesh of his father and no snake dare bite any member of that family.
24. A giant rat is also called ponchedrat. Yoruba call it Okete. Ibo call it Okeohia and Hausa call it Gafiya
24a. A kind of green wild pigeon.
LAND RESOURCES
Out of the Nigeria’s total area of 923,768 square kilometers, land covers approximately 910.758 square kilometers with the remaining occupied by water. Nigeria is also blessed with abundant terrestrial resources in flora and fauna.
In the pre colonial Nigeria, the concept of liability for the abuse of land resources is often at the discretion of the traditional chiefs or rulers. The repository of discretion is contingent upon the needs of a given community and the availability of land resources. In other words, the traditional rules guiding the use of land resources in terms of exploitation of flora and fauna are determined by the traditional chiefs/rulers.
Some of these traditional rules, due to their long usage as legacies handed down from generations to generations have, in many communities in Yorubaland assumed the status of Native Law and Custom and for which no derogation is allowed without the appropriate sanctions determinable by the traditional chiefs.
In Yorubaland, traditional rulers would sometime put certain forests rich in valuable flora and fauna under reserve whilst any dealing with such forests are strictly supervised by elders or spiritualists of the community. The areas are sometimes under strict traditional rules.
Some of these traditional rules are reflected in some Yoruba sayings, proverbs, cognomens and the historical antecedents of the existence of given community. For example, Yoruba would say “Eni ti n’se igbonse ko mo ja ewe owu nu’di, eni to se igbonse to ja’we owu nu’di bope titi oju aso ni’pon eni naa”25 meaning that – “no one plucks cotton’s leave for cleaning after defecation without the spell of nudity.”
Water polution and hazardous wastes (Environmental law)
25. It is one of the wise sayings in Yorubaland explaining the calamity that will befall anyone who misuses the Cotton’s plant leaves. It is believed that the plant produces raw materials for making of Cloth. The plant produces cotton which is processed into threads used for wearing cloth.
The above gives a traditional rule of keeping the sanctity of cotton plant and for which anybody who breaches the rules becomes a wrongdoer. This has nothing to do with any immediate physical sanction. In this connection, the wrongdoer himself would know that he is liable for the predicted misfortune of nudity.
1989 Supplement to Water Polution and Hazardous Wasts (Environmental Law, 2A)
The essence of being liable for a wrong doing is to desist from doing it and much is achieved by the taunting spirit of being liable hence the assurance of a virile and healthy environment.
Apart from cotton plant, other terrestrial environment that inhabits groves or forests rich in sacred plants and animals benefit immensely from these traditional rules, for example, the taboos associated with land resources which include “Igbo Oro” – “Oro’s grove”,26 “eran abohun”, that is, sacred animals27 such as “Kunnugba/Ira” – “hartebeest”,28 “Agbonrin” “Red fronted gazelle”,29 “Ajanaku” – Elephant30 and host of others have all contributed to the concept of liability as far as terrestrial resources are concerned.
Aside from the foregoing customary liability, the statute books in operation then created in clear terms some liabilities for the abuse of terrestrial resources.
26. Oro is a kind of masquerade who makes a unique sound with an item in its hands during its festival that is performed by its worshippers annually. It is usually paraded in the night when all women are expected to retire into their domains.
27. Some animals in Yorubaland are considered sacred due to the peculiarly of their habitat, spiritual religious attachments or values or powers inherent in their existence. Some of these sacred animals are not to be killed except it is extremely necessary and cannot be killed without appeasing gods afterwards.
28. The animal is an ungulate. It is a big size animal which resembles horse with its mane and resembles buffalo from the front. Mane is a longer hair growth in back or neck of a horse.
29. It is a medium size animal in the category of ungulate and Bovidae. Ungulates are animals which have hoofs and Bovidae include the antelopes, hartebeest and suidal.
30. Elephant is the biggest terrestrial mammal. It has true hair in its body and feed its young on milk by means of teats.
In the colonial Nigeria, Wild Animals Preservation Ordinance 195831 was promulgated to protect wildlife species and their habitats. Certain liabilities were created under Sections 4, 5, 6, 7 – 13, 14, 15, 17, 18 whilst Section 39 of the Ordinance provided sanctions or penalties for the liabilities inherent in the aforestated sections of the Ordinance.
In the absence of Section 39 of the Ordinance, offences created or restraints imposed by the aforestated sections of the Ordinance would have been merely directory and thereby make nonsense of any liability in law as same suggests a waiver.
In respect of forests as a product of flora being renewable resources of vital importance to the nation’s social and economic wellbeing. The forested land provides enormous proportion of the country’s food, fiber, energy, water, wildlife and fish, recreation and aesthetic values.
Some environmental problems relating to forest resources have been identified to include population growth, economic expansionist policy and activity, logging or timber exploitation, farming, urbanization, bush burning, firewood collection, grazing, infrastructural development and a host of others.
The legal protection of the forests started by the promulgation of Forestry Ordinance in 1901, and then came the 1958 Forestry Ordinance32 and the Forestry Laws of the states of Federation. The Ordinance made provisions for dealings with the country’s 458 forest reserves with a total area of 28,907 square miles, that is, 7.7% of the total area of Nigeria with a view to preserving and controlling the forests. However, the main objective was the production of the maximum of forest essential for the general well-being of the country.
31. Ibid.
32. Cap 72 Laws of the Federation of Nigeria and Lagos 1958
The Ordinance made culpable anybody that engaged in activities capable of causing forest degradation or destruction such as unlawful taking of forest products, uprooting, burning, stripping off the bark or leaves from a tree, setting fire to grass and other products thereby created legal inabilities for any indulgence in the anti-forest activities aforesaid.
In relation to animal species, the Diseases of Animals Ordinance 194833 and later 195834 also provided some liabilities for the abuse of flora as an integral part of an environment vide its section 735 in terms of the prevention of the introduction and spread of infectious or contagious diseases among animals through not helpful in terms of liability and punishments.
The 1958 Ordinance36 did not make any provision for the punishment of the offender or wrong doer but the Regulation made there under vide the exercise of powers to make regulations by the Governor-general-in-Council and Governor-in-Council under Sections 3 and 4 of the Ordinance provided punishment of $50 or 6 months imprisonment vide its section 21.
Pursuant to section 20(1) of the Ordinance, twenty eight game reserves were declared with the then Federal territory of Lagos having just one, that is, Ikoyi Game Reserve. Eighteen were declared in the Northern Region and eight in both Western and Eastern Region. It is noteworthy that these game reserves have metamorphosed into fully developed eight National Parks, twenty two proposed National Parks and five game reserves across the nation’s six geopolitical zones and they provide suitable environment to the nation’s flora and fauna.
33. Cap 54, Laws of Nigeria 1948
34. Cap 55, Laws of Nigeria 1958
35. Provides that proceeding in respect of an offence against my regulations under this ordinance alleged to have been committed by any person may be taken before the appropriate court having jurisdiction in the place where that person is for the time being.
36. Ibid
Despite the uncertainty surrounding the Diseases of Animals Ordinance 195837 in terms of the scope and extent of liability of offenders, the Criminal Code Ordinance38 came handy and provided a criminal liability for the offences relating to the introduction and spread of infections or contagious diseases among animals under its special head of communicating Infectious Diseases to Animals thereby criminalizing the act of any wrong doer vide its Section 456 which provides thus:
“Any person who willfully and unlawfully causes, or is concerned in causing, or attempts to cause any infectious disease to be communicated to or among any animal or animals capable of being stolen is guilty of a felony, and is liable to imprisonment for seven years” Here the animal within the contemplation of the law is one capable of being stolen. This requirement presupposes domestic animals or wild animals in captivity or captured alive from their natural environment”.
In this category is Section 247(b) of the Criminal Code where it is provided thus:
“Any person who 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 imprisonment for six months”.
37. Ibid
38. Now Criminal Code Act Cap C38 Laws of the Federation 2004
The foregoing sections of the law impose obligation which breach attracts punishment thereby making liable any person who engages in the spread of infection of any disease.
Aside from the above, there are some liabilities relating to the environmental hazards arising from drought, desert encroachment, soil erosion, flood and other natural disasters such as hurricanes, blizzards, tornadoes, thunderstorms, hail, lightning, fog, forest fire.
Although these disasters are natural but some are the fallouts of ruinous hands of man and the government has taken drastic measure in forestalling these unfortunate events that are not independent of man.
Desertification39 being basically a physical process by which, the plant cover, species diversity and primary productivity of and/or semi-arid ecosystem is drastically reduced. In Nigeria, desertification became very popular after the episode of the Sahelian drought of the 1970’s. About 140,000 square kilometers representing 15% of the Country was affected whilst about 67,255 square kilometers of Sokoto State is said to be under siege and about 64,125 square kilometers of Borno State was also affected40.
Desertification which can also occur as a result of natural shifting of climatic zones is not totally immuned from human activities of deforestation, bush burning and overgrazing for example bush burning, tree felling, logging are dealing a devastating blow to the environment hence the promulgation of law regulating these nefarious activities of man.
39. Desertification is defined in page 438 of the Chambers Dictionary 1999 Edition as the deterioration or reversion of land to desert condition, owing to over-grazing, erosion e.t.c.
40. Lord Advocate-A journal of the Law Students’ Society, University of Ibadan, volume 1, 2004 P. 61
The destruction of forests has aggravated soil erosion in many parts of the south. For instance, Imo, Anambra, Enugu, Benue and Ondo States are in the throes of severe gully erosion. In Ukwulobia and Agulu-Nanka areas of Anambra State, thousands of people have been displaced from their homes following landslides and gully erosions that have cut off many areas41.
In the northern states, desert encroachment has taken over Sokoto, Kebbi, Katsina, Kano, Jigawa, Bauchi, Yobe and Borno States. Further southwards, rapid moving desert conditions have caught up with Adamawa, Gombe, Kwara, Kogi, Nasarawa, Niger and Plateau States. What used to be Guinea and Sahel Savanna landscape of the country has practically been affected by desertification.
Under the aforesaid Forestry Laws and the recent amendments introduced by some States with Ondo State assuming leadership role in terms of enduring improvements that accord with modern realities the future of forests conservation is almost assured in that the law introduced a new and welcome ideas into forest management that accords with the Nation’s Agricultural Policy made in 1988 which policy was patterned along the Forest Ordinance42.
The new Forest law43 of the State empowers the Governor of the State to set apart specific forest lands as government forest reserves and protected forests and some make provisions for afforestation.”44
41. The Guardian, Tuesday, July 17th 2007 Page 77.
42. Ibid.
43. For example cap 40 Laws of Oyo State 1978 and reproduced as Cap 50 of the 2004 Laws of Oyo State of Nigeria.
44. Imo State Tree planting Edit 1986, Iseyin (Control and Collection of Revenue from private forest Estates Bye Law 1984)
Under the Ondo State Control of Bush Burning Edict No 4 1989, indiscriminate bush burning is expressly prohibited so that any person who violates the provision of the Edict is liable to a term of five years imprisonment without an option of five for the secured offender45.
The other subsections also crate some clear liabilities for the breach of any provision of the Edict and all these in sharp response to the environmental hazards created by man.
The Imo State Land and Water Resources Conservation (Erosion prevention) Edict 198646 deals with factors causing soil degradation, inappropriate farming practices and bush burning. The Edict incorporated Quarries Decree 196947 and creates liability for contravention of the law vide its section 8(3) and prescribes penalties of 6-12 months imprisonment and fine of N500-N1,000 as well as additional fine for the continuation of the offence.
The Abia Local Government (Establishment Instrument etc) 1977 and Lagos State Environmental Pollution Edict48 1989 are also instructive. The former has positive implication for soil (land) resources conservation through the preservation of the natural vegetation whilst the latter provides for the control of pollution and protection of the environment from abuse hence the creation of liability by the provisions of section 25(1) with the punishment of a fine.
Abia State Environmental Protection Agency Edict 1994 addresses generally the protection of the State’s fragile ecology, management of land degradation and watershed rehabilitation and created liability for contravention vide its section 21(8)(a) and (b) where it provides thus:
45. Section 1 of the Edict (Now Law)
46. Now Law of Imo State
47. Decree No 26 of 1969
48. It is now Law of Abia State
“Any person who contravenes, attempts to, contravene or aids or abets or counsels or procures any other person to contravene these general provisions of the section dealing with the protection of the State’s fragile ecology, management of land degradation and watershed rehabilitation shall be guilty of an offence and liable on conviction to a time not exceeding N10,000;00 or to imprisonment for a term of five years or both. Where the offender is a body corporate, organisation or company, it shall be liable to pay a fine not exceeding N500, 000”.
It is necessary to state that some of these laws mirror the dictates of some International Conventions. These conventions to which Nigeria is a signatory include Convention on Biological Diversity 1992,49 United Nations Convention to Combat Desertification (UNCCD),50 Convention on International Trade in Endangered species of Fauna and Flora (CITES) 1973,51 Convention for the protection of Fauna and Flora of Africa 1993 and 1949,52 African Convention on the conservation of Nature and Natural Resources, 1968,53 Convention for the Prevention of Marine Pollution from Land – Based Sources 1974,54 Convention on the Conservation of Migratory species of Wild Animals, 1979.55
49. This convention was produced at the 1992 Earth’s summit at Rio de Janeiro Nigeria like many other countries is signatory to and has ratified the convention that came into force on the 29th day of December 1993.
50. The aim of the convention is to prevent land from further degradation. It has been ratified in 179 countries in Africa.
51. CITES is an agreement between 167 member states. Nigeria acceded to this convention on 1st July, 1975.
52. This convention which was the initiative of Great Britain was ratified by the majority of countries responsible for administration of African territories.
53. Nigeria adopted this convention on 7th day of May 1974
54. This International Agreement was signed in March 1974 and it was meant to argument earlier agreements controlling the dumping of wastes at sea.
55. This convention was established in June, 1979 in Bonn but came into force on the 1st January 1983.
In ensuring the effectiveness of the Forestry law and Nation’s Agricultural Policy, the structure created by colonial law on the use of Forest Attendant, Forest Guard, Forest Ranger and Forest superintendent appear not to have been comprehensively utilized in the implementation of the law seeking to protect the Nation’s Forest products.
The whole essence of promulgation of any law is to avoid its breach with a view to achieving a designed goal, then the issue of liability comes in to bring into bear the rationale for and dire need of ensuring compliance with the law.
The work of Forest Attendant which includes the following cannot be over emphasized in ensuring compliance with the Forest law:
1. Performing, under supervision, routine manual work in a plant nursery, garden, plantation, forest or sanctuary;
2. Cleaning and maintaining access routes and boundaries;
3. Collecting the required materials for herbariums;
4. Preparing soul mixtures for nursery root;
5. Tending nursery stocks and ornaments in gardens;
6. Preparing wild animals carcasses for display;
7. Feeding zoo animals; and
8. Performing simple record, stores or manuals duties in a plant nursery; Garden, plantation, forest or sanctuary.
Paying lip service to the above accounted for the failure of President Obasanjo’s Agricultural policy of tree planting christened National Tree Nursery Development (NTND) in 2001 as was entrusted into the hands of wrong persons whose orientation and background are shorn of any of the above functions, what is more, that policy not backed with effective law makes nonsense the concept of liability as same remains a toothless bulldog till date.
It appears Forest Guards are given recognition in the Forest Law and National Parks Act but the performance of their duties which include Policing and Patrolling Forests to ensure compliance with the relevant Forest Regulations, passing hammering forest products, measuring forest products for assessment of fees and royalties and conduct simple investigation of forest offence remain haphazard.
The above duties appear most instrumental and important to the realization of the objectives of the Nation’s Agricultural Policy but news from the Nations eight National parks are nothing to write home about in terms of record of apprehension of offenders when the said laws made liabilities for anti-forest activities clear in its varying degrees particularly having regard to the provisions of Sections 37, 38 and 39 of the National Parks Service Act 1999.
The sections aforesaid create penalties for he various which offences include hunting in the parks, use of weapons, introduction of wild animals without consent, permission of entry of domestic animals and plants in the parks, prospecting for generic materials in the parks as well as aiding and abetting of offences.
However, the effort of the present Old Oyo National Park’s Director56 is commendable in ensuring that liabilities under the law are not for window dressing as his vigilance and commitment to work have led to several arrests of offenders who have made our National Parks a haven of their dastardly acts. Between 2006-2008, a total number of 357 arrests were made for limiting, grazing, logging, honey harvesting, illegal exploration inside the park of natural resources and fishing.56a
56. Alhaji Saka Oladimeji Abdulslam
56a. Nigerian Tribune, Wednesday 24 December 2008.
As for Forest Ranger whose responsibilities should be to carry out periodical inspections of sawmills to ensure that only authorized logs are being numbered, writing periodical reports of patrol inspection in Forest Reserves and advising the Local Government on Security of Forest Reserves, the law has not really taken into cognizance these salient functions and most Local Government Laws are bereft of this requirements capable of guaranteeing healthy environment.
It is pertinent to note that environment is not seen only from the angle of promotion of public health or welfare but also in the use and value with particular reference to the development and productive capacity of the nations human, animal or plant life. In this connection, the law dealing with the management preservation and conservation of the nation’s resources particularly on the propagation of fish and wildlife are worthy of consideration.
Although, the Federal Environmental Protection Agency Act57 appears comprehensive in this regard particularly as it relates to National Environmental Standards on Water and Air Quality. May it be noted that FEPA which has recently been rechristened National Environmental Standards and Regulations Enforcement Agency58 (NESREA) affords no serious change required by the realities of Nigeria’s environment.
The change only affects the name and not the substance or content of the law which has though, been reviewed in a bid to bring it in accordance with modern realities of how environment should be. The law deserves more radical approach in this direction of changing with the tides of time.
57. Ibid
58. NESREA was created by National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007
The Endangered Species Act 199059 offers a fairly comprehensive legal framework for the protection and use of animal species particularly those threatened with extinction being completely prohibited and others with licence or permit. The aspect relevant to this work is Section 5 which creates liabilities for the violation of any of the sections of the Act and prescribes liberal punishment of N1, 000 fine and forfeiture.
Interestingly, the Petroleum Act (Drilling and Production) Regulations 199060 attempts to but does not create liability for the cutting of trees without the consent of the state authority in the sense that the provision of Sections 21 and 2561 are merely directory and create no liability. The rationale for this is not far fetched because forestry matter is largely seen as the business of State Governments.
WATER RESOURCES
Earth’s abundance of water in its liquid form is another terrestrial phenomenon. It is an enigma in that it is both simple and complex. Water is essential to life, making up about 80% by weight of all living things, oceans covers about 71.4% of the earth, giving them a major role in climate control.
Indeed, oceans and atmosphere are practically and constantly exchanging heat, water, gases and momentum in the form of wind and waves. They also work together carrying solar heat away from the Tropics towards the poles, thus, moderating global temperatures. In fact, for most organisms to survive, temperatures must stay within the range that allows water to remain in liquid.
59. Cap 108 Laws of Federation 1990 but reproduced in 2004 Laws of the Federation.
60. Cap 350 Laws of Federation 1990 and reproduced under the 2004 Laws of the federation cap.
61. Section 25 enjoins the license to adopt all practicable precautions to prevent pollution of inland water systems as well as the territorial of Nigeria or the high seas by oil, mad, or other fluids or substance capable of causing harm or destruction to fresh water or marine life. If any such pollution occurs, the license or lessee must take prompt steps to control and of possible end it.
Water performs important functions in any given environment. Water can store a lot of heat without a substantial rise in temperature, thus, helping to moderate climate, water expounds when it freezes, causing ice to float and form an insulating layer. If like other substance, water became more dense as it froze, the lakes, the rivers and the seas would solidify from the bottom up, entombing everything in ice, water is highly transparent, enabling light-dependant organisms to survive at considerable depths, water molecules produce surface tension, creating an elastic skin. This tension enables insects to scamper about on a pond causes water to form into droplets and contributes to the capillary effect which helps water to hydrate the tallest plants and water is most efficient solvent known. It is able to carry in solution oxygen, carbon dioxide, salts, minerals and many other vital substances.
In the pre-colonial Nigeria, abuse of water environment was well recognised and this goes to show that pollution of aquatic environment is not a recent phenomenon. It was generally believed that fluid or oil though useful in some respect, may also act as pollutants particularly palm oil. In one of the Yoruba sayings, it is always expressed thus: “Epo kinkin b’oju omi je – meaning a drop of oil spoils the surface of a river. The literal meaning of this is that a discharge of oily substance soils the water environment and depending on how hazardous the oily substance is, depletion of water resources is the end result of such discharge.
In the colonial Nigeria, there were no controls in the real sense of legislation except for manatee. The expatriates’ population was negligible and fishing for sport was not as extensive as that of wildlife. There were no fishing reserves and the powers under section 42 of the wild Animals Preservation Ordinance were not generally used thereby making liability under the Ordinance a mute point. Some of the powers include that to make close seasons, limit devices, fix meshes and all these came under fishing organisation.
Notwithstanding the above, various native authorities made local fishing rules under their general powers whilst section 16 of the Ordinance in creating liability prohibited the use of poisons and explosives, albeit, for geographical consideration.
Owing to this, enforcement was very difficult and prosecution very rare notwithstanding the establishment of fisheries Service for the investigation of new methods of catching, growing and preserving fish and with the general co-ordination of fisheries development.
Nigeria has demonstrated a serious legislative effort in protecting her waters and aquatic resources from the adverse effect of environmental abuse hence the promulgation of FEPA on National Environmental Standards on water quality wherein the Agency was enjoined by the provisions of Section 15 to take into consideration such factors as
“the use and value for public water supplies,
propagation of fish and wildlife, recreational
purposes, agricultural, industrial and other
legitimate uses”.
The above is a reflection of the Nation’s Agricultural Policy 1988 and National Policy of the Environment, 1989 when the government planned or proposed inter alia, the use of the River Basin concept for water management, control of sources of pollution erosion or floods, conservation and improvement of water quality conditions and ecological systems of the water bodies for fishes and other fauna and flora.
Flood being a body of water which rises to overflow land which is not normally submerged has dealt a devastating blow to the nation’s environment. Flood occurs when an abnormally large quantity of water which cannot be accommodated within the channel is supplied to an area not usually under water.
Some floods result in major disasters involving structural and erosion damage, disruption of socio-economic activities, transport, communication, loss of lives and property, displacement of people destruction of agricultural land and contamination of food, water and the environment in general. The sad experience of such disasters in the 70’s and 80’s particularly in Ilorin and Kano would wished to be forgotten in a jiffy lest the terrible experience of Ogunpa River on the 30th August, 1980.
The control of water pollution and conservation of the nation’s water resources are dealt with by a number of Federal and State statutes thereby creating liabilities which are designed to forestall the abuse of environment.
The provision of Section 247 of the Criminal Code prohibits fouling of water when it provides thus:
“Any person who corrupts or fouls the water of nay spring, steam, 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. This liability is very clear”.
The combined effects of sections 1-3, 5, 6 and 17 of Oil in Navigable Waters Act 1999 create liability for the discharge of oil into designated sea areas and provide penalty for specified offences as well as the enforcement of the International Convention for the prevention of pollution of the sea by oil.
As for Petroleum Act (Drilling and Production) Regulations which section 25 offers what may be described as “advice” creates no liability when it provides that a license or lessee shall take practicable precautions to avoid pollution of inland water systems as well as the territorial waters of Nigeria or the high seas by oil, mud, or other fluids or substances capable of causing harm or destruction to fresh water or marine life. If any such pollution occurs, the licensee or lessee must take prompt steps to control and if possible end it.
In the category of directory laws are the Quarries Act 1969, National Environmental Protection (pollution Abatement in Industries and facilities generating waste) Regulations, 1991, River Basins Development Authorities Act 1990. These laws create no liability.
However, situation is different with the Harmful Waste (special Criminal Provisions, etc) Act (cap 165, 1990) which prohibits the carrying, depositing and dumping of harmful waster on any land, territorial waters and matters relating thereto. Sections 1-5 of the Act create liability and prescribes penalty of life imprisonment on conviction.
Aside from the foregoing, Nigeria is a state party to many International Conventions relating to aquatic environment. For example, Convention on the Continental shelf 1958, Convention on Fishing and Conservation of the Living Resources of the High Seas 1958, Convention Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water 1963, the Treaty Regarding Navigating and Economic Co-operation Between the States of the Niger Basin, 1963, Agreement Concerning the River Nigeria Commission and the Navigation and Transport on the River Niger Basin, 1964, Convention for the Prevention of Pollution of the Sea by Oil, 1954, Convention on the prevention of Marine Pollutions by Dumping of wastes and other matter, 1972, Convention on the Control of Trans-boundary movements of Hazardous wastes and their disposals, 1989, Convention for the prevention of pollution from ships (MARPOL) 1973, Convention of the High Seas 1958, United Nations Convention on the law of the sea 1982, Ramsar Convention on Wetlands of International Importance 1971, International Whaling Convention 1931 and Antarctic Treaty 1961.
All the above Conventions to which Nigeria is signatory have contributed immensely to the development of Nigeria’s municipal laws promulgated albeit leaving to many yet to be adopted and thereby creating doubt on their applicably in the enforcement of the country’s law and order. The first port of call is the position of the Apex Court in the case of Gani Fawehinmi V Sanni Abacha62 when the learned Justices of the Supreme Court in interpreting the applicability of international instrument like the African charter held thus:
“We cannot afford to be immuned from
the progressive movements manifesting
themselves in international agreements,
treaties, resolutions, protocols, and
other similar understandings as well as in
the respectable and respected voices of our
learned brethren in the performance of their
adjudicating roles in other jurisdiction”.
62. (1996) a NWLR pt 475, 710 CA see also Gani V Abacha (2000)6 NWLR pt 660, 228 S.C
The Sea Fisheries Act (cap 337 Laws of Federation 1990) makes provisions under Sections 1, 8, 9 and 10 for the regulation of motor fishing within the Nigerian territorial waters which provisions create liability when they prohibit certain method of fishing like the use of any explosive or noxious or poisonous water. Punishment of 6 months imprisonment or N200 fine or both are provided for.
Following the Federal enactment, some State and Local Governments promulgated some important laws seeking to protect aquatic environment from abuse. The Abia State Environmental Protection Agency Edict 1994 establishes a state water quality effluent limitations standard. Section 17(i) mandates the Agency to set an interim goal to make all state water safe for marine resources which non compliance by virtue of section 17(3) constitutes a liability and fine not exceeding N500,000;00.
In Ogun State, the Fishing (prohibition of certain modes of fishing) Edict 1986 makes liability for the contravention of the provisions relating to the prohibition for the use of fishing nets with less than 4-5 centimeters for fishing purpose in any stream, lake or river in the State.
The Awo nets draw nets exceeding 365.8 meters lengthwise or having a mesh of less than 7.6 centimeters in the wing and 5.1 centimeters in the lag when same measured across a hold with the net stretched are equally prohibited. The Edict also prohibits the use of explosives, poison or electrical devices in the State.
The Lagos State Environmental Pollution Control Edict, 1989 prohibits the use of Gamalin 20 or any herbicide or insecticide or other chemicals to kill or whatever purpose in rivers, lakes, or streams within the state, without first obtaining written approval of the Ministry of the Environmental and Physical Planning.
The penalty for chemical fishing under the Lagos State Edict is a fine not exceeding one hundred Thousand Naira and a fine not exceeding N500, 000:00 for corporation or nay incorporated body. All these penalties are products of liability created by the law.
The Imo State Local Government Edict, 1976 prohibits, restrict or regulate the capture, killing or sale of fish of the kind specified in the bye law.
AIR RESOURCES
Space is dangerous place filled with lethal radiation and meteoroids. The earth is protected by amazing arm or from a powerful magnetic field and a custom-made atmosphere. Earth’s atmosphere provides additional protection. An outer layer of the atmosphere, the stratosphere, contains a form of oxygen called ozone, which absorbs up to 99% of incoming ultraviolet (UV) radiation.
Thus, the ozone layer helps to protect many forms of life, including humans and plankton from dangerous radiation. The amount of stratospheric ozone is not fixed but indirectly proportional to the intensity of UV radiation, making the ozone layer, a dynamic efficient shield.
The atmosphere also protects us from a daily barrage of millions of meteoroids, ranging in size from tiny particles to boulders. Fortunately, by far the majority of these burns up in the atmosphere, becoming bright flashes of light called meteors.
Earth’s shields do not block radiation that is essential to life, such as heat and visible light. The atmosphere even helps to distribute the heat around the globe and at night the atmosphere acts as a blanket, slowing the escape of heat.
The air in this respect is considered in terms of earth’s atmosphere where mixture of gases that permeate the earth is breathed by humans, plants and animals. The atmosphere being a mixture of different gases and aerosols performs more function than for purpose of breathing for living organisms in that information and science technology have found a convenience in it for transportation, navigation, satellite transmission and telecommunication. The atmospheric activities are most influenced by human and non-human activities from both land and sea.
In the pre-colonial Nigeria, the earth’s atmosphere was not without attention in terms of interaction with it by human activities. In Yorubaland, it is the saying that “Gbese o pani bi ojo owo yi pe, ki’na o to pani eefin ni koko pa eniyan” –meaning- indebtedness does not kill faster than reminders of same, smoke kills before fire”. This underscores how injurious air pollution could be.
The effect of emission of noxious substance into the atmosphere was well captured by the foregoing saying and its relevance to the modern day realities cannot be doubted.
The Colonial Nigeria did not have adequate legislative control of air pollution save for what the Criminal Code which was enacted on 1st June, 1916 offered in Section 247 when it provides thus:
“(a) Any person who 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 imprisonment for six months”.
The post-colonial legal books are replete with legislations on the control and regulation of air quality. Section 17 of the FEPA mandates the Agency to establish criteria, guidelines, specifications and standards to protect and enhance the quality of Nigeria’s air resources so as to promote the public health or welfare and the normal development and productive capacity of the nation’s human, animal or plant life.
To achieve the above, the Act places premium on:
(a) minimum essential air quality standards for human, animal or plant health;
(b) the control of concentration of substance in the air which separately or in combination are likely to result in damage or deterioration of property or of human, animal and plant health;
(c) the most appropriate means to prevent and combat various forms of atmospheric pollution;
(d) controls for atmospheric pollution originating from energy sources including that produced by aircraft and other self propelled vehicles and in factories and power generating stations;
(e) standards applicable to emission from any new mobile source which in the Agency’s judgment causes or contributes to our pollution which may reasonably be anticipated to endanger public health or welfare; and
(f) the use of appropriate means to reduce emission to permissible levels.
The FEPA itself creates liabilities under the Act for any violation whilst the first point of call on relevant statutes is the Associated Gas Re-Injection Act 1979. This law provides for utilization and conservation of natural gas and its sections 3 and 4 provides for penalties in case of liability or want of compliance with the law.
The Factories Act 1987 was enacted to ensure pollution – free environment at the workplace and adjoining surroundings. It provides that factories which emit dust, fumes, or other impurities of such a character and to such an extent that is injurious or offensive to the employees, in the manufacturing or production process, must take all practicable measures to protect the employees against inhalation of the dust, fumes, or other impurity.
In this connection, Lagos State which witnesses a considerable number of manufacturing companies has taken care of the abuse in its State Environmental Pollution Control Edict 1989. Section 15(i) of the Edict prohibits the discharge into the air of any inadequately filtered and purified gaseous waste containing substances injurious to life and property whilst subsection 2 provides that person on the Lagos metropolis must not burn any type of refuse, bush, weed, grass, tyres, cables without obtaining a written permission from the State Ministry of Environment.
The legal responsibility placed on FEPA in the preservation of the nation’s air resources is not limited to air quality standards and strategies but also relates to the protection of the ozone from depletion.
There is no gainsaying the fact that Nigeria has experienced a colossal abuse of her environment right from its existence and that the various tiers of government have, tremendously, tackled the scourge through promulgation of legislations which legislations or statutes are however so kind to remind us of the ignoble impact of such abuses and accordingly create liabilities thereto. These liabilities have come to stay with the hope of steady improvement in their actualization vide an enduring enforcement of the relevant laws.
The fact that environment related laws are intrinsically worthwhile pricks the public conscience in accepting what legal liabilities created by the laws offer in terms of punishments and penalties to offenders notwithstanding the seemingly strangeness of legal order on environment arising from recent global awareness of the abuse of environment.
Although Nigeria being signatory to considerable number of international treaties has paid lip service to the promulgation of the constitutionally recognised laws at the National level to reflect most of these international treaties in the Country.
Even at the level of sub region, the Economic Community of West African States (ECOWAS)’s regulations for the harmonization of laws, policies of the pesticides submitted for adoption in June 2008 still remains haphazard notwithstanding the International Labour Organisation (ILO)’s conservative estimate that workers suffer 270 million occupational accidents and 160 million episodes of work related diseases each year. Out of 2.2 million fatalities, 439,000 are caused by chemicals and of the 160 million related diseases; 35 millions are due to chemicals63.In the same connection, the World Wildlife Fund (WWF) has called on governments to honour their commitments to put in place effective protected areas for wildlife and to adopt a target to achieve net annual zero deforestation by 202064.
The little that has been done by Nigeria in terms of adoption a number of these treaties is highly commendable but more efforts should be geared towards realization of their aims through entrenchment of proper machinery for their enforcement to nip in the bud disease and death as the unfortunate effects of abuse of fresh air and water and impairment of the sustainable use of plants and animals for a safe environment in Nigeria.
Unlike the Kyoto Protocol, Nigeria must act fast now that the United Nations and world delegates are to converge in Poland in early December to deliberate on what a treaty to replace the Kyoto Protocol based on confirmation from the delegates that they are committed to the principle of achieving a 50% reduction from 1990 rates by 2050 in global emissions of green house gases, and that a post-2012 climate treaty will reflect that.
The provisions of Environmental Impact Assessment (EIA) Act65 on the compulsory conduct of an environment impact assessment for all projects and activities that may likely or to a significant extent, affect the environment. In this connection is the activities of Telecommunications companies expressed in the proliferation of masts and base stations in breach of environmental laws and regulations.
63. The Guardian, Monday, May 19th, 2008. Page 57.
64. Ibid.
65. Cap E12, L.F.N. 2004
By the Act, Telecommunication companies are expected to obtain Environmental Impact Statement (EIS) from the Federal Ministry of Environment prior to the erection of masts and base stations. NESREA has taken up the challenge of enforcing the liabilities created by FEPA in the enforcement of the provisions of EIA Act and exercise of powers to prohibit the use of any equipment or machinery that undermines quality.
Nigerians may however take solace in the recent developments in the country in respect of the serious efforts of the federal government at arresting the plague of environmental abuse. One of such is the resolve to enact a gas flaring law which seeks to regulate gas flaring as the major pollutant in the country and which has seemingly defied lasting solution.
In the same category is the oil spillage by the oil companies and other firms in the manufacturing. The government has strengthened the National Environmental Standards and Regulations Enforcement Agency in her quest for renewed commitment to creating a better, safer and cleaner environment. For this purpose, the government has resolved to withdraw operational licenses of oil companies which fail to adhere to environmental safety rules and regulations.
The government has also concluded plan to equip NESREA with three national reference environmental laboratories with one already established in Kano and the other two to be located in Portharcourt and Lagos which laboratories will closely monitor all the effluent discharges to ensure that they meet the standards required of them.
It is our hope that Nigeria will not tarry in the adoption of the ECOWAS policy for the harmonization of laws on pesticides to curb pollution which was to be submitted for adoption in ECOWAS region by the Heads of State in June 2008. The policy came on the heels of the necessity to take responsibility for reducing to a strict absolute minimum, the obnoxious consequences of dangerous chemical products circulating around the world. According to International Labour Organistation66, that of the 2.2 million of men and women lost to chemical fatalities, 439,000 are caused by chemicals and of the 160 million related diseases, 35 million are due to chemicals.
CONCLUSION
In conclusion, it is beyond disputation that Nigeria’s environment has witnessed a large scale pollution and abuse from activities of man. Humans are wiping out about 1% of all other species every year through pollution, farming, urban expansion, over fishing, hunting, poaching, climate change, deforestation, overgrazing, gas flaring, desertification and other forms of environmental vices. According to World Bank’s report, the deserts take up 41% of the earth’s surface and the yearly worldwide economic loss due to desertification is estimated at $42.3 billion67.
It is also not in doubt that Nigeria has promulgated a number of laws seeking to protect her environment particularly with the coming into effect of FEPA having direct bearing on same. These laws create liabilities and provide sanctions where appropriate. The essence of these liabilities so created have not, over the years of their existence, remains haphazard which blame may be placed at the doorstep of the various tiers of government in terms of machineries for the enforcement of the various laws.
Apart from the statutes, there are various government policies and international legal order in terms of conventions, treaties, protocols, agreement, declarations all relating to the protection of environment.
66. The Guardian, Monday, May 19, 2008 page 57.
67. The Guardian, December 15, 1998
One of such policies is tree planting embarked upon by the preceding government and encouraged by the present. It is worthy of note that some state governments are now taking the issue of tree planting seriously. Albeit a good policy, it is respected in breach than its compliance. The tree planting remains one of the most cost-effective ways to address climate change, as trees and forests play a vital role in regulating the climate since they absorb carbon dioxide, containing an estimated 50% more carbon than the atmosphere. Deforestation in turn accounts for over 20% of the carbon dioxide humans generate, rivaling the emissions from other sources.
Finally, environmental pollution and abuse are crimes and ineffectiveness of the relevant laws to curb these problems is largely due to poor governance and insufficient law enforcement. To have a safe environment, there is need for government to set up enabling conditions that include enacting adequate legislation and enforcement and promoting good governance while providing support in terms of fund to responsible projects and initiatives like what REDD stands for in Amazon, Brazil “reduced emissions from deforestation and degradation” where conservation of forests is rewarded in terms of credit, tax incentives and other financial and social supports.
The Nigerian Environmental study/Action Team (NEST) is doing pretty good but it should not rest on its oars in identifying gaps or lapses in any area relating to the environment and sustainable development as it is presently doing in respect of climate change which is affecting the livelihood of Nigerians, increasing the incidence of disasters and heralding new dangers and challenges into the economy.
It should collaborate with other relevant authorities and agencies in identifying more polluted areas particularly to prevent the spread of “Dead Zones”. Today, the number of polluted “dead zones” in the world’s oceans is rising fast and coastal fish stocks are more vulnerable to collapse than previously feared.
The spread of “dead zones” (areas of oxygen-starved water) is emerging as a major threat to coastal ecosystem globally. Marine organisms are more vulnerable. The number of reported hypoxic (low oxygen) zones is growing globally at a rate of 5% a year. The study68 showed that the number of “dead zones” had risen to more than 140 in 2004 from almost none until the late 1970s.
Hundreds of millions of people depend on coastal fisheries for food. Crustaceans such as crabs, lobsters and shrimps are less able to escape from law oxygen waters than fish. What is more, apart from crude oil, Nigeria depends on fisheries and marine environment in order to sustain her economy and external trade.
Poverty eradication is also a key component of environmental protection and government must ensure that it becomes a reality. Poverty may become a thing of the past if the government is sincere about the creation of employment opportunities, support for agriculture, provision of basic infrastructures and amenities, good standard of living for both urban and rural dwellers and above all, an operation of responsive governance.
Adoption of all conventions, agreements, protocols, declarations and treaties relating, affecting or pertaining to wholesome protection of environment from varying degrees of abuse should be adopted and made part of the municipal laws to be seen to be in tune with the happenings around the world.
68. By Raquel Vaguer Suner of the Mediterranean Institute for Advanced Studies in Spain and reported in The Guardian Monday October 6, 2008.
REFERENCES
1. Law of Environmental Protection by Margaret T. Okorodudu – Fubara
2. Legal Framework for Animal Rights and Game Management in Nigeria – Sikiru O. Adewoye.
3. The Lord Justice – A Journal of the Law Students’ Society, University of Ibadan.
4. Awake magazine February 2009 Edition.
5. Guardian Newspapers.
6. Nigerian Tribune
7. Modern Practice Journals of Finance and Investment Law
8. The Nigerian Journal of Public Law Vol.1 1997.
9. St. Mary’s Law Journal Volume 23 NO 1, 1997.
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Thanks for sharing the current situation of Nigerian. I think the Nigerian should make more contribute to protect the environment in this country.
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