A CONSTITUTIONAL PROMISE WITHOUT A REMEDY: THE NON-JUSTICIABILITY OF ENVIRONMENTAL RIGHTS IN NIGERIA

In Ogoni land, Nigeria, hydrocarbon contamination has been found as deep as 5 meters underground, contaminating groundwater that ends up in our kitchens with benzene, a known carcinogen that the World Health Organization has classified as safe only in trace amounts[1]. United Nations Environmental Program’s 2011 assessment found concentrations of petroleum hydrocarbons in groundwater at some sites exceeding 1 million micrograms per liter, compared to the Nigerian regulatory standard of 600 micrograms per liter, which is over 1,600 times the legal limit[2]. Communities in that locality have been drinking this water for years. Yet, under the very constitution intended to safeguard them, no court can compel the Nigerian government to act, because the duty to protect the environment is not one the judiciary is permitted to enforce.

Beyond the people of Ogoni land, several parts of the country have unsustainable environmental conditions that violate the people’s environmental rights. The unenforceability of these rights and the resulting effects is not due to an oversight in the legislation. The Nigerian Constitution[3] explicitly provides that the state is obligated to protect and improve the environment, yet it ousts the courts’ jurisdiction to enforce that very obligation.

The result is a constitutional right without a constitutional remedy. Nigerian courts have at times attempted to circumvent this restriction by linking environmental rights to the justiciable right to life under Chapter 4 of the Constitution. While this approach is unarguably an ingenious workaround, it remains inconsistent and indirect.

This article examines the non-justiciability of environmental rights under Nigerian constitutional law, the judicial workarounds that have emerged, and a comparative comparison with other jurisdictions. It does not attempt a comprehensive survey of Nigerian environmental legislation; rather, it focuses specifically on the constitutional enforcement gap. Ultimately, it argues that the non-justiciability of environmental rights has rendered the provisions of Section 20 of the Constitution a toothless bulldog, and that to achieve the rationale behind environmental laws, a balance must be struck between the laws and their enforceability in the courts.

HISTORICAL DEVELOPMENT OF ENVIRONMENTAL LAW IN NIGERIA

Before 1988, environmental protection was not formally included in Nigerian law; the laws available at the time were largely English common law governing civil and criminal matters. Therefore, any effect those laws had on environmental protection was merely coincidental. “The country, furthermore, had no ‘national environmental law or policy’, or other ‘legal mechanism in place to check the emerging environmental problems’, and environmental problems were consequently addressed in an ad hoc and fragmented manner.” Consequently, between August 1987 and May 1988, five ships transported 3,800 tons of hazardous waste, collected from various European countries and the United States to Koko in the then Bendel State, now Delta State, Nigeria. Nigerian authorities did not learn about this until it came to the attention of Nigerian students studying in Pisa, Italy, who immediately wrote to news organizations in Nigeria, informing them of the development and providing copies of Italian news outlets’ stories on the issue. By June 5, 1988, the story was all over the media, with pictures of stacks of drums, shipping containers, steel casks, and bags marked ‘radioactive’.[4]

The media frenzy prompted an investigation by the Nigerian government, which then sent the toxic waste cargo back to Italy. The Italian government was obliged to help with the Koko clean-up, with support from other countries. It became evident that the incident had occurred due to the lack of environmental protection policies in Nigeria; therefore, the government was spurred to establish the country’s first national environmental protection agency, the Federal Environmental Protection Agency (FEPA). The FEPA Decree consolidated fragmented regulatory regimes under a single authority and mandated the new institution to develop a National Environmental Policy, outlining broad policies for the protection and conservation of the environment. These, together with other decrees promulgated by a series of military governments, were compiled into the Laws of the Federation of Nigeria at the inception of democracy in May 1999, thereby giving them the same status as subsequent Acts of the National Assembly. The most recently enacted environmental protection legislation is the National Environmental Standards and Regulations Enforcement Agency Establishment Act (NESREA), which is a Nigerian federal government agency under the Federal Ministry of Environment.

The environmental right was first recognized alongside other socio-economic rights in the 1979 Constitution, and the constitutional drafting committee drew inspiration from the Indian Constitution’s Directive Principles of State Policy to provide the government with an ideological and developmental compass. This was reiterated in the 1999 amendment to the Constitution, which established the Fundamental Objectives and Directive Principles of State Policy (Chapter 2). Section 20 provides that the state must protect and improve the environment and safeguard the water, land, vegetation, and wildlife in Nigeria; this section is therefore the Grundnorm of all other environmental protection laws.

NON-JUSTICIABILITY OF ENVIRONMENTAL RIGHTS.

In A.G. Ondo State v. A.G. Federation[5], it was held that rights under the Fundamental Objectives and Directive Principles of State Policy are not enforceable except as otherwise provided by the Constitution.

The words “except as otherwise provided by the Constitution” served as a narrow exception for very few of the provisions of Chapter II. This means that where the Constitution provides for similar rights in Chapter II but in another part of the Constitution, the court can assume jurisdiction and adjudicate such matters. However, after a perusal of the provisions of Chapter II of the Constitution, very few of the provisions in Chapter II were restated in other parts of the Constitution. Also, the decision of the court in this case relies on the provision of Section 6(6) of the Constitution, where the extent of the powers of the judiciary is defined, with subsection 6(c) ousting the jurisdiction of the court to sit on matters pertaining to the provisions of Chapter 2. 

The lack of binding effect of Section 20 of the Nigerian Constitution poses a significant legal challenge to the enforcement of environmental rights in the country. ‘Unlike other fundamental rights, the Nigerian Constitution does not explicitly provide for the right to a healthy and clean environment. Additionally, the enforcement of environmental laws is legally limited to NESREA and state environmental agencies, leaving non-governmental organizations and private citizens without the locus standi to pursue legal action against public environmental degradation based on principles of sustainable development.’ This restriction is fatal, as it limits the possibility of achieving true environmental justice.

This remains one of the most ironic legal principles in the constitution because it creates a constitutional right while simultaneously eliminating the possibility of obtaining a constitutional remedy for a breach by the government or public agencies. This is a continuous legal limbo that individuals, legal professionals, and the courts of law have repeatedly found themselves in, as there are, in fact, case laws to back this principle, as seen in the cases of A.G. Ondo State v A.G. Federation[6] and Okogie Ors v the A.G. of Lagos State[7]

THE ATTEMPT OF THE JUDICIARY TO ENFORCE ENVIRONMENTAL RIGHTS

 It has, however, been argued that the right to a good environment is a fundamental human right, such as the right to life. A polluted and degraded environment can breach a person’s right to life by cutting a life short. Thus, where a person’s right to a good environment is breached, an action can be brought in court under the fundamental right to life provided for in section 33 of the Constitution of Nigeria. Section 33(1) provides that: “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offense of which he has been found guilty in Nigeria.”

This attempt is seen in the case of Gbemre v SPDC Nigeria Ltd. & Others.[8] The applicant, Jonah Gbemre, represented himself and the Iwherekan Community in Delta State, Nigeria, against Shell Petroleum Development Company Nigeria Ltd, Nigerian Petroleum Corporation, and the Government of Nigeria. The applicants brought the case to address the health and environmental effects of gas flaring during petroleum extraction. The applicants asked the court to enforce their constitutional rights to life and the dignity of the human person, which were violated by the gas flaring generated by the project. The Court ultimately determined that the applicant properly instituted the case in a representative capacity on his own behalf and on behalf of the community members seeking the enforcement of their fundamental rights. The Court declared that the Constitutional fundamental rights to life and dignity of the person “inevitably includes the rights to a clean, poison-free, pollution-free healthy environment.”[9]

Also, through the African Charter[10], particularly Article 24, the courts also bypass the non-justiciability of Chapter 2. This follows the rationale that, per the Supreme Court’s decision in Abacha and Others v. Gani Fawehinmi[11], the African Charter is part of Nigerian law and, like all other laws, must be upheld by the court. Article 24 imposes clear obligations on the government. It compels the state to take reasonable measures to combat environmental problems to secure more sustainable development and use of our natural resources.

While these are undeniably ingenious ways to circumvent the combined reading of sections 20 and 6(6) (c), they do not eliminate the non-justiciability of laws enacted to protect the people and to serve as an instrument of checks and balances for the government. Therefore, it begs the question: should the provisions of Chapter 2 of the Constitution simply be made justiciable? To reach an applaudable answer, it is pertinent to do a comparative analysis of the same issue in other jurisdictions.

COMPARATIVE ANALYSIS OF THE INDIAN JURISDICTION

Like the Nigerian legal system, the Indian Constitution[12] separates the justiciable fundamental rights from the non-justiciable economic, social, and cultural rights, which form the directive principles, as under Chapter 2 of the Nigerian Constitution.  Article 37 of the Indian Constitution states that the provisions of the Directive Principles “shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country, and it shall be the duty of the state to apply these principles in making laws”.

Indian courts are known for their consistency in judicial activism; hence, it is no surprise that they have adopted a means to give teeth and efficacy to these otherwise non-justiciable principles. In the case of Unnikrishnan v. State of AP[13], an Indian court held that notwithstanding the fact that a right does not fall under the fundamental rights declared justiciable by the Constitution, such a right could be treated as fundamental. This decision follows an earlier decision by the Supreme Court of India in the case of State of Kerala v. N. M. Thomas that neither the fundamental rights nor the economic, social and cultural rights are superior to others: “what is fundamental in the governance of a country cannot be less significant than what is significant in the life of the individual’[14]

Furthermore, India uses public interest litigation (PIL). It is a power given to a court through judicial activism. It is litigation done specifically for public interest where ‘legal representation is provided for previously unrepresented groups like the poor, racial minorities, unorganized consumers, citizens who were passionate about environmental issues, etc.’[15] ‘The strict formalities of the laws are relaxed to achieve the interest of justice. In 1979, Kapila Hingorani filed a petition in the famous ‘Hussainara Khatoon’ case. This case was filed in the SC before a Bench led by Justice P N Bhagwati. The court permitted Hingorani to pursue a case in which she had no personal locus standi, making PILs a permanent fixture in Indian jurisprudence.[16]

RECOMMENDATION AND CONCLUSION

There is no need to amend section 6(6)c because making the provisions of Chapter 2 justiciable could do more harm than good; the judiciary would be flooded with numerous cases, and the administration of justice would be severely affected. Also, there are situations where, whilst the government is taking steps toward environmental protection, it lacks the resources to support its goals. The institutional risks of reversing the no-justiciability rule make it infeasible to achieve environmental justice.

Rather, a more balanced approach is to strengthen the bridge established by the Gbemre case. Currently, courts remain very inconsistent in their interpretation, following the reasoning in the case. There is no Supreme Court decision; therefore, there is no binding precedent for all courts to follow, since the Gbemre case is a High Court decision.

Finally, there is a need to develop a threshold for when environmental harm is severe enough to engage the right to life, to ensure that this opportunity is not taken for granted and misused. To achieve this, there will need to be thorough education of the public on their rights, and judges should also be made aware of these developments so they can exercise judicial activism in their judgments, as seen in the Indian jurisdiction, where PIL has been consistently used across all courts to ensure everyone is represented. This being done in Nigeria would be of great use to people who bear most of the brunt of the severe harm caused by the oil spillages and gas flaring in the Niger-Delta, for instance, because they are small settlements and most likely underrepresented.

In conclusion, this article moves from the simple but troubling fact that the people of Ogoni land are facing issues despite the government’s promise to protect them to tracing that promise to Section 20 of the Constitution, which is rendered unenforceable by Section 6(6) (c). Nigerian courts haven’t been entirely silent about this unenforceability, as seen in Gbemre’s case, but what good is one decision that is poorly followed and inconsistently applied?

India’s system then shows that the indirect route can be built into something sturdier, and there will be no need to call for justiciability, as doing so could even lead to greater institutional risks. Instead, a call is made for a balanced approach that could strengthen what the courts have begun, and, with time, would become a doctrine.

REFERENCE(S):

TABLE OF CASES

• G. Ondo State v. A.G. Federation (2002) 9 NWLR (pt.772) 222
• Archbishop Olubunmi Okogie (Trustees of Roman Catholic Schools) and Ors v the Attorney General of Lagos State (1981) 1 NCLR 218 HC
• Abacha v Fawehinmi(2000) 6 NWLR (Pt 660) 228 (SC)
• Gbemre v Shell Petroleum Development Corp Nigeria Ltd(2005) AHRLR 151 (NgHC 2005)  Hussainara Khatoon v State of Bihar (1979) 3 SCC 90
• State of Kerala v NM Thomas(1976) 2 SCC 310
• Unni Krishnan v State of Andhra Pradesh(1993) 1 SCC 645

TABLE OF LEGISLATIONS

• Constitution of India 1950
• Constitution of the Federal Republic of Nigeria 1999
• Federal Environmental Protection Agency (FEPA) Act 1988 (Decree No 58)
• National Environmental Standards and Regulations Enforcement Agency (NESREA) Establishment Act 2007
• African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) 1520 UNTS 217(Note: “ACHPR” is the standard abbreviation used to refer to this treaty)

BIBLIOGRAPHY

• UNEP, Environmental Assessment of Ogoniland (United Nations Environment Programme 2011)
• Ekhator EO and Anaebo OK, ‘Realizing Substantive Rights to Healthy Environment in Nigeria: A Case for Constitutionalization’ (2015) University of Chester Digital Repository
• Emejuru CT, ‘Human Rights and Environment: Whither Nigeria?’ (2014) Journal of Law, Policy and Globalization
• Faga HP, Aloh F and Uguru U, ‘Is the Non-Justiciability of Economic and Socio-Cultural Rights in the Nigerian Constitution Unassailable? Re-Examining Judicial Bypass from the Lens of South African and Indian Experiences’ (2020) 14 Fiat Justisia 203
• Ladapo OA, ‘The Contribution of Cartoonists to Environmental Debates in Nigeria: The Koko Toxic Waste-Dumping Incident’ in Gisela Parak (ed), Eco-Images: Historical Views and Political Focus (2013) 1 RCC Perspectives 67
• Liu SF, ‘The Koko Incident: Developing International Norms for the Transboundary Movement of Hazardous Waste’ (1992) 8 Journal of Natural Resources and Environmental Law 121
• Okeke GN and Okeke C, ‘The Justiciability of the Non-Justiciable Constitutional Policy of Governance in Nigeria’ (2013) IOSR Journal of Humanities and Social Science
• Waniko DP, ‘Evolution of Environmental Regulation in Nigeria: Past, Present and Future’ (ResearchGate, 2015) researchgate.net accessed 20 August 2026

[1] UNEP, Environmental Assessment of Ogoniland (UNEP 2011)— https://www.unep.org/topics/disasters-and-conflicts/country-presence/nigeria/environmental-assessment-ogoniland-report accessed 20 August 2026

[2] UNEP news release summarizing the report’s key findings: https://www.unep.org/news-and-stories/story/unep-ogoniland-oil-assessment-reveals-extent-environmental-contamination-and accessed 20 August 2026

[3] Constitution of the Federal Republic of Nigeria 1999, s 20.

[4] Ladapo, Oluwafemi Alexander, ‘The Contribution of Cartoonists to Environmental Debates in Nigeria: The Koko Toxic Waste-Dumping Incident,’ edited by Gisela Parak, RCC Perspectives 2013, no. 1, 61, 61.

[5] A.G. Ondo State v. A.G. Federation (2002) 9 NWLR (pt.772) 222.

[6] A.G. Ondo State v. A.G. Federation (2002) 9 NWLR (pt.772) 222.

[7] Archbishop Olubunmi Okogie (Trustees of Roman Catholic Schools) and Ors v the Attorney General of Lagos State (1981) 1 NCLR 218 HC.

[8] Gbemre v Shell Petroleum Development Corp Nigeria Ltd (2005) AHRLR 151 (NgHC 2005).

[9] Emejuturu (no 16) 113.

[10] African Charter on Human and Peoples’ Rights art 27.

[11] Abacha v Fawehinmi (2000) 6 NWLR (Pt 660) 228 (SC).

[12] The Constitution of India Part IV.

[13] Unni Krishnan v State of Andhra Pradesh (1993) 1 SCC 645

[14] Circle of Rights, “Justiciability of ESC Rights – the Indian Experience” University of Minnesota, Human Rights Resource Centre, available at: http://hrlibrary.umn.edu/edumat/IHRIP/circle/justiciability.htm retrieved 22 August 2026.

[15] Law Teacher, ‘Public Interest Litigation’ https://www.lawteacher.net/free-law-essays/litigation-law/public-interest-litigation.php – citethis accessed 22 august 2026.

[16] Hussainara Khatoon v State of Bihar (1979) 3 SCC 90