Authored By: Rabome Favour Okpoudhu
Edwin Clark University
Abstract
The right to a healthy and safe environment is enshrined in section 20 of the 1999 Constitution of Nigeria (as amended), which stipulates the State’s obligation to protect and improve the environment. However, section 20 is located within Chapter II of the Constitution (Basic Objectives and Policy Guidelines of the State). This article examines the effects of the non-justiciability of environmental rights in Nigeria and highlights the contradiction between the Constitution and the African Charter on Human and Peoples’ Rights, ratified by Nigeria. The article examines the right to a healthy and safe environment as stipulated in the African Charter on Human and Peoples’ Rights and argues that the continued placement of environmental rights under Chapter II undermines environmental justice. In conclusion, the article suggests that the constitutional reform through transferring environmental rights to Chapter IV of the Constitution would ensure effective enforcement and protection of this right.
Introduction
Environmental rights refer to any proclamation of a human right to environmental conditions of a specified quality. It is the right to a healthy environment; the rights of citizens and communities to live in a clean, safe and healthy environment that respects human dignity and promotes sustainable development. In Nigeria, environmental damage has become a serious issue, especially in oil-producing regions like the Niger-Delta. Pollution destroys livelihood, endangers public health and increase social conflicts. Although protecting the environment is essential for human survival, these rights are not adequately safeguarded in Nigeria’s legal framework. A major reason for the lack of protection of the right to a healthy environment is that Chapter II of the 1999 Constitution of Nigeria classifies this right as unenforceable. Therefore, citizens cannot directly hold the government accountable for the breach of such environmental right. Interestingly, Nigeria has ratified/adopted the African Charter on Human and People’s Rights, which provides a legally enforceable right to a healthy environment. This contradiction has led to confusion in the law and weakened efforts to manage environmental issues effectively.
Legal Framework
In Nigeria, the Constitution of the Federal Republic of Nigeria, established in 1999(as amended), is the country’s supreme law and the principal document in determining the legitimacy of any person and authority throughout the Country. As a result, all laws and rights derive their legitimacy and validity from the Constitution.
Section 20 of the Constitution makes provision for the protection of environmental rights. It mandates the state to “protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria.” However, this right is contained under Chapter II of the constitution and by virtue of section 6(6)(c), all the rights contained under this chapter of the constitution are only duties of the state and are non-justiciable. This means that they cannot be enforceable, as opposed to those enforceable rights contained in Chapter IV of the Constitution.
The African Charter on Human and People’s Right (Ratification and Enforcement) Act is a precise instrument that encompasses both the civil and political groups of rights and the social, economic, and cultural rights. The African Charter has been duly adopted and has the force of law in Nigeria. In relation to the topic, the right to a healthy environment is clearly provided for in Article 24 of the ACHPR 1983. It states that all the people shall have right to a general satisfactory environment favourable to their development. This means that environmental right is enforceable where there is a breach.
Judicial precedents, which comes from court decisions that clarify difficult parts of existing laws are also important sources of environmental rights in Nigeria. The unenforceability of the rights enshrined in Chapter II of the Constitution has been affirmed in several cases such as:
Archbishop Okogie v. A.G Lagos State, where the Supreme Court unequivocally stated that Chapter II of the Constitution is non-justiciable, hence cannot be enforced in court.
Also, in the case of A.G Ondo State v. A.G Federation, the Supreme Court reiterated that the Directive Principles of State Policy under Chapter II of the Nigerian Constitution impose a solemn duty on the state to observe these principles, but they are not justiciable.
Effects of Non-Justiciability of Environmental Rights
In Nigeria, environmental law enforcement is inadequate because environmental rights are not enforceable in courts. Regulatory bodies/agencies usually work without proper supervision and companies that violate regulations often escape punishments. This is because the constitutional support for this right is weak, it is seen as mere choice rather than legal duties.
As a result of the weak enforcement of environmental laws, affected communities cannot go directly to courts to enforce various environmental regulations. Those harmed by pollution have to depend on tort law or specific laws, which can be insufficient, costly and complex to enforce. This problem mostly affects vulnerable communities, as they often lack the resources to deal with these challenges.
The justiciability of environmental right is been subjected to circumstances where it can be linked to violating fundamental rights enshrined in Chapter IV. In Gbemre v. Shell, the Federal High Court held that gas flaring violated the applicant’s right to life and dignity, effectively treating a clean environment as part of these rights.
Way Forward
Reclassifying the right to a healthy environment to Chapter IV of the Constitution elevates it to the status of a fundamental right, allowing individuals to seek redress through the courts. This constitutional amendment strengthens government accountability and ensures more consistent enforcement of existing laws. Such an amendment would eliminate the doctrine of non-justiciability, thereby facilitating the enforcement of these rights.
Furthermore, this reform would align Nigeria’s constitution with its international obligations under the African Charter and various environmental treaties. Recognizing environmental rights as fundamental would also strengthen the protection of life and dignity, rights increasingly threatened by environmental degradation.
Conclusion
In Nigeria, the significance of environmental rights is frequently disregarded due to their lack of enforceability within the Constitution. This leads to weak enforcement, limited access to justice, and unfair treatment in environmental matters. Additionally, the discord between the Nigerian Constitution and the African Charter complicates the effective management of environment issues. Since protecting the environment is closely connected to basic human rights, it is important to move environmental rights into Chapter IV of the Constitution. Such an amendment would enhance accountability, assist Nigeria in fulfilling its international obligations, and ensure the preservation of our environment for present and future generations.
Reference(S):
Legislation
African Charter on Human and People’s Rights (Ratification and Enforcement) Act.
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Cases
Archbishop Okogie v. A.G Lagos State (1981) 2 NCLR 337
A.G Ondo State v. A.G Federation (2002) 9 NWLR (Pt. 772) 222
Gbemre v. Shell Petroleum Development Company (2005) FHC/B/CS/53/05
Secondary Sources
Oreoluwa Olu-David and Ngozi Chinwa Ole, ‘Justiciability of Environmental Rights: Whither the Nigerian Law?’ (2023) 3(1) African Journal of Law, Ethics and Education 50.
Olayinka Oluwamuyiwa Ojo, ‘Enforceability of Environmental Rights: A Possible Panacea to Man’s Environmental Imbroglio – Nigeria’s Niger Delta as a Case Study’ (2020) 33(1) Afrika Focus 125, 134.
UN Environment, ‘What Are Environmental Rights?’ (3 February 2018) <http://www.unep.org/explore-topics/environmental-rights-and-governance/what-we-do/advancing-environmental-rights/what> accessed 30 January 2026.
