Wk 3 SERAC v Nigeria Ed Doc

8/10/2019 Wk 3 SERAC v Nigeria Ed Doc

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The Social and Economic Rights Action Center and the Center for Economic andSocial Rights v. Nigeria, African Commission on Human and Peoples' Rights,

Comm. No. !!"#$ %& (.

Summar) of *acts+

The Communication alleges that the military government of Nigeria has been directlyinvolved in oil production through the State oil company, the Nigerian National PetroleumCompany (NNPC), the majority shareholder in a consortium with Shell Petroleum

evelopment Corporation (SP C), and that these operations have caused environmentaldegradation and health problems resulting from the contamination of the environment amongthe !goni People"

The Communication alleges that the oil consortium has e#ploited oil reserves in!goniland with no regard for the health or environment of the local communities, disposingto#ic wastes into the environment and local waterways in violation of applicable international

environmental standards" The consortium also neglected and$or failed to maintain its facilitiescausing numerous avoidable spills in the pro#imity of villages" The resulting contaminationof water, soil and air has had serious short and long%term health impacts, including s&ininfections, gastrointestinal and respiratory ailments, and increased ris& of cancers, andneurological and reproductive problems"

The Communication alleges that the Nigerian 'overnment has condoned andfacilitated these violations by placing the legal and military powers of the State at thedisposal of the oil companies" The Communication contains a memo from the ivers State

nternal Security Tas& *orce, calling for +ruthless military operations+"

The Communication alleges that the 'overnment has neither monitored operations of the oil companies nor re uired safety measures that are standard procedure within theindustry" The 'overnment has withheld from !goni Communities information on thedangers created by oil activities" !goni Communities have not been involved in the decisionsaffecting the development of !goniland"

The 'overnment has not re uired oil companies or its own agencies to produce basichealth and environmental impact studies regarding ha-ardous operations and materialsrelating to oil production, despite the obvious health and environmental crisis in !goniland"The government has even refused to permit scientists and environmental organisations fromentering !goniland to underta&e such studies" The government has also ignored the concernsof !goni Communities regarding oil development, and has responded to protests withmassive violence and e#ecutions of !goni leaders"

The Communication alleges that the Nigerian government does not re uire oilcompanies to consult communities before beginning operations, even if the operations posedirect threats to community or individual lands"


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rights violations" This decision was issued a year later"@

A-

34" The Commission ta&es cognisance of the fact that the *ederal epublic of Nigeria

has incorporated the 0frican Charter on 1uman and PeoplesA ights into its domestic lawwith the result that all the rights contained therein can be invo&ed in Nigerian courtsincluding those violations alleged by the Complainants" 1owever, the Commission isaware that at the time of submitting this communication, the then .ilitary government of

Nigeria had enacted various decrees ousting the jurisdiction of the courts and thusdepriving the people in Nigeria of the right to see& redress in the courts for acts of government that violate their fundamental human rights" n such instances, and as in theinstant communication, the Commission is of the view that no ade uate domesticremedies are e#istent"

32" t should also be noted that the new government in their Note Berbale referenced42 $2::: submitted at the 26 th session of the Commission held in Cotonou, 9enin,admitted to the violations committed then by stating, +there is no denying the fact that alot of atrocities were and are still being committed by the oil companies in !goni Dandand indeed in the Niger elta area+"

erits

3E" The present Communication alleges a concerted violation of a wide range of rightsguaranteed under the 0frican Charter for 1uman and PeoplesA ights" 9efore we ventureinto the in uiry whether the 'overnment of Nigeria has violated the said rights as allegedin the Complaint, it would be proper to establish what is generally e#pected ofgovernments under the Charter and more specifically vis%F%vis the rights themselves"

33" nternationally accepted ideas of the various obligations engendered by human rightsindicate that all rights%both civil and political rights and social and economic%generate atleast four levels of duties for a State that underta&es to adhere to a rights regime, namelythe duty to >SP>CT , P !T>CT , P !.!T> , and *GD* D these rights" These obligationsuniversally apply to all rights and entail a combination of negative and positive duties" 0sa human rights instrument, the 0frican Charter is not alien to these concepts and the order in which they are dealt with here is chosen as a matter of convenience and in no wayshould it imply the priority accorded to them" >ach layer of obligation is e ually relevantto the rights in uestion"

3H" 0t a primary level, the obligation to respect entails that the State should refrain frominterfering in the enjoyment of all fundamental rights; it should respect right%holders,their freedoms, autonomy, resources, and liberty of their action" Iith respect to socio%economic rights, this means that the State is obliged to respect the free use of resourcesowned or at the disposal of the individual alone or in any form of association with others,including the household or the family, for the purpose of rights%related needs" 0nd with


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regard to a collective group, the resources belonging to it should be respected, as it has touse the same resources to satisfy its needs"

35" 0t a secondary level, the State is obliged to protect right%holders against othersubjects by legislation and provision of effective remedies" This obligation re uires the

State to ta&e measures to protect beneficiaries of the protected rights against political,economic and social interferences" Protection generally entails the creation andmaintenance of an atmosphere or framewor& by an effective interplay of laws andregulations so that individuals will be able to freely reali-e their rights and freedoms" Thisis very much intertwined with the tertiary obligation of the State to promote theenjoyment of all human rights" The State should ma&e sure that individuals are able toe#ercise their rights and freedoms, for e#ample, by promoting tolerance, raisingawareness, and even building infrastructures"

3 " The last layer of obligation re uires the State to fulfil the rights and freedoms itfreely undertoo& under the various human rights regimes" t is more of a positive

e#pectation on the part of the State to move its machinery towards the actual realisationof the rights" This is also very much intertwined with the duty to promote mentioned inthe preceding paragraph" t could consist in the direct provision of basic needs such asfood or resources that can be used for food (direct food aid or social security)"

38" n accordance with 0rticles 5: and 54 of the 0frican Charter, this communication ise#amined in the light of the provisions of the 0frican Charter and the relevantinternational and regional human rights instruments and principles" The Commissionthan&s the two human rights N'!s who brought the matter under its purviewJ the Socialand >conomic ights 0ction Center (Nigeria) and the Center for >conomic and Social

ights (GS0)" Such is a demonstration of the usefulness to the Commission and

individuals of actio popularis , which is wisely allowed under the 0frican Charter" t is amatter of regret that the only written response from the government of Nigeria is anadmission of the gravamen of the complaints which is contained in a note verbale andwhich we have reproduced above at paragraph E:" n the circumstances, the Commissionis compelled to proceed with the e#amination of the matter on the basis of theuncontested allegations of the Complainants, which are conse uently accepted by theCommission"

H:" The Complainants allege that the Nigerian government violated the right to healthand the right to clean environment as recogni-ed under 0rticles 45 and 23 of the 0fricanCharter by failing to fulfill the minimum duties re uired by these rights" K

0rticle 45 of the 0frican Charter readsJ

very individual shall have the right to enjoy the best attainable state of physical and mental health"

(2) States Parties to the present Charter shall ta&e the necessary measures to


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protect the health of their people and to ensure that they receive medical attentionwhen they are sic&"+

0rticle 23 of the 0frican Charter readsJ

+0ll peoples shall have the right to a general satisfactory environment favourableto their development"+

H4" These rights recognise the importance of a clean and safe environment that is closelylin&ed to economic and social rights in so far as the environment affects the uality of lifeand safety of the individual" 0s has been rightly observed by 0le#ander Liss, +anenvironment degraded by pollution and defaced by the destruction of all beauty andvariety is as contrary to satisfactory living conditions and the development as the

brea&down of the fundamental ecologic e uilibria is harmful to physical and moralhealth"+

H2" The right to a general satisfactory environment, as guaranteed under 0rticle 23 of the0frican Charter or the right to a healthy environment, as it is widely &nown, thereforeimposes clear obligations upon a government" t re uires the State to ta&e reasonable andother measures to prevent pollution and ecological degradation, to promote conservation,and to secure an ecologically sustainable development and use of natural resources"0rticle 42 of the nternational Covenant on >conomic, Social and Cultural ights( C>SC ), to which Nigeria is a party, re uires governments to ta&e necessary steps forthe improvement of all aspects of environmental and industrial hygiene" The right toenjoy the best attainable state of physical and mental health enunciated in 0rticle 45(4) of the 0frican Charter and the right to a general satisfactory environment favourable todevelopment (0rticle 45(E)) already noted obligate governments to desist from directlythreatening the health and environment of their citi-ens" The State is under an obligationto respect the just noted rights and this entails largely non%interventionist conduct fromthe State for e#ample, not from carrying out, sponsoring or tolerating any practice, policyor legal measures violating the integrity of the individual"

K

Ie now e#amine the conduct of the government of Nigeria in relation to 0rticles45 and 23 of the 0frican Charter" Gndoubtedly and admittedly, the government of

Nigeria, through NNPC has the right to produce oil, the income from which will be usedto fulfil the economic and social rights of Nigerians" 9ut the care that should have beenta&en as outlined in the preceding paragraph and which would have protected the rightsof the victims of the violations complained of was not ta&en" To e#acerbate the situation,the security forces of the government engaged in conduct in violation of the rights of the!gonis by attac&ing, burning and destroying several !goni villages and homes"

The Complainants also allege a violation of 0rticle 24 of the 0frican Charter bythe government of Nigeria" K


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0rticle 24 provides

4" 0ll peoples shall freely dispose of their wealth and natural resources" Thisright shall be e#ercised in the e#clusive interest of the people" n no case shall a

people be deprived of it"

2" n case of spoliation the dispossessed people shall have the right to thelawful recovery of its property as well as to an ade uate compensation"

E" The free disposal of wealth and natural resources shall be e#ercised without prejudice to the obligation of promoting international economic co%operation based on mutual respect, e uitable e#change and the principles of internationallaw"

3" States parties to the present Charter shall individually and collectivelye#ercise the right to free disposal of their wealth and natural resources with a viewto strengthening 0frican unity and solidarity"

H" States Parties to the present Charter shall underta&e to eliminate all forms of foreign economic e#ploitation particularly that practised by internationalmonopolies so as to enable their peoples to fully benefit from the advantagesderived from their national resources"

The origin of this provision may be traced to colonialism, during which thehuman and material resources of 0frica were largely e#ploited for the benefit of outside

powers, creating tragedy for 0fricans themselves, depriving them of their birthright andalienating them from the land" The aftermath of colonial e#ploitation has left 0frica/s

precious resources and people still vulnerable to foreign misappropriation" The drafters of the Charter obviously wanted to remind 0frican governments of the continent/s painfullegacy and restore co%operative economic development to its traditional place at the heartof 0frican Society"

'overnments have a duty to protect their citi-ens, not only through appropriatelegislation and effective enforcement but also by protecting them from damaging acts thatmay be perpetrated by private parties" This duty calls for positive action on part of governments in fulfilling their obligation under human rights instruments" K

The Commission notes that in the present case, despite its obligation to protect persons against interferences in the enjoyment of their rights, the 'overnment of Nigeriafacilitated the destruction of the !goniland" Contrary to its Charter obligations anddespite such internationally established principles, the Nigerian 'overnment has giventhe green light to private actors, and the oil Companies in particular, to devastatinglyaffect the well%being of the !gonis" 9y any measure of standards, its practice falls shortof the minimum conduct e#pected of governments, and therefore, is in violation of 0rticle 24 of the 0frican Charter"


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The Complainants also assert that the .ilitary government of Nigeria massivelyand systematically violated the right to ade uate housing of members of the !gonicommunity under 0rticle 43 and implicitly recognised by 0rticles 45 and 46(4) of the0frican Charter"

0rticle 43 of the Charter readsJ

+The right to property shall be guaranteed" t may only be encroached upon in theinterest of public need or in the general interest of the community and inaccordance with the provisions of appropriate laws"+

0rticle 46(4) providesJ

+The family shall be the natural unit and basis of society" t shall be protected bythe State"""+

0lthough the right to housing or shelter is not e#plicitly provided for under the0frican Charter, the corollary of the combination of the provisions protecting the right toenjoy the best attainable state of mental and physical health, cited under 0rticle 45 above,the right to property, and the protection accorded to the family forbids the wantondestruction of shelter because when housing is destroyed, property, health, and family lifeare adversely affected" t is thus noted that the combined effect of 0rticles 43, 45 and46(4) reads into the Charter a right to shelter or housing which the Nigerian 'overnmenthas apparently violated"

0t a very minimum, the right to shelter obliges the Nigerian government not todestroy the housing of its citi-ens and not to obstruct efforts by individuals or communities to rebuild lost homes" The StateAs obligation to respect housing rightsre uires it, and thereby all of its organs and agents, to abstain from carrying out,sponsoring or tolerating any practice, policy or legal measure violating the integrity of theindividual or infringing upon his or her freedom to use those material or other resourcesavailable to them in a way they find most appropriate to satisfy individual, family,household or community housing needs" ts obligations to protect obliges it to prevent theviolation of any individualAs right to housing by any other individual or non%state actorsli&e landlords, property developers, and land owners, and where such infringementsoccur, it should act to preclude further deprivations as well as guaranteeing access tolegal remedies" The right to shelter even goes further than a roof over ones head" te#tends to embody the individualAs right to be let alone and to live in peace% whether under a roof or not"

K

The Communication argues that the right to food is implicit in the 0fricanCharter, in such provisions as the right to life (0rt" 3), the right to health (0rt" 45) and theright to economic, social and cultural development (0rt" 22)" 9y its violation of these


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rights, the Nigerian 'overnment trampled upon not only the e#plicitly protected rights but also upon the right to food implicitly guaranteed"

The right to food is inseparably lin&ed to the dignity of human beings and istherefore essential for the enjoyment and fulfilment of such other rights as health,

education, wor& and political participation" The 0frican Charter and international lawre uire and bind Nigeria to protect and improve e#isting food sources and to ensureaccess to ade uate food for all citi-ens" Iithout touching on the duty to improve food

production and to guarantee access, the minimum core of the right to food re uires thatthe Nigerian 'overnment should not destroy or contaminate food sources" t should notallow private parties to destroy or contaminate food sources, and prevent peoples/ effortsto feed themselves"

The government/s treatment of the !gonis has violated all three minimum dutiesof the right to food" K

The Complainants also allege that the Nigerian 'overnment has violated 0rticle 3of the Charter which guarantees the inviolability of human beings and everyoneAs right tolife and integrity of the person respected" K The Security forces were given the greenlight to decisively deal with the !gonis, which was illustrated by the wide spreadterrorisations and &illings" The pollution and environmental degradation to a levelhumanly unacceptable has made it living in the !goni land a nightmare" The survival of the !gonis depended on their land and farms that were destroyed by the directinvolvement of the 'overnment" These and similar brutalities not only persecutedindividuals in !goniland but also the whole of the !goni Community as a whole" Theyaffected the life of the !goni Society as a whole" The Commission conducted a missionto Nigeria from the th M 43th .arch 488 and witnessed first hand the deplorable

situation in !goni land including the environmental degradation"

The uni ueness of the 0frican situation and the special ualities of the 0fricanCharter on 1uman and Peoples/ ights imposes upon the 0frican Commission animportant tas&" nternational law and human rights must be responsive to 0fricancircumstances" Clearly, collective rights, environmental rights, and economic and socialrights are essential elements of human rights in 0frica" K

The Commission does not wish to fault governments that are labouring under difficult circumstances to improve the lives of their people" The situation of the people of !goniland, however, re uires, in the view of the Commission, a reconsideration of the'overnmentAs attitude to the allegations contained in the instant communication" Theintervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common goodand the sacred rights of individuals and communities" K

Wk 3 SERAC v Nigeria Ed Doc

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