INTRODUCTION
Oil exploration involves labyrinth, intricate organization and
sophisticated technology. The technology
involved in extracting crude from oil wells, the process of refining, the
myriad of pipes interlacing each other through which the refined oil are
transported to various depots, the combustible nature of refined oil, the
possibility of spill, are what make up-stream and down-stream activities
hazardous to both animate and inanimate objects within a given environment. In
this case a criminal negligence (where there are certainly evidence of
impending environmental catastrophes) may be alleged where the oil prospecting
company or even the supervisory authority remained docile and allowed such a
spillage to fester thereby making the environment hazardous to the health of
human beings and the environment.
A spill may be a natural occurrence perhaps because oil pipe lines laid
in difficult terrain got burst as a result of dotage or natural force brings
them into contact with hard objects. Or
it may arise as a result of intentional activities of oil bunkers or sheer
sabotage. In all these circumstances a criminal process should be activated
where a criminal negligence can be framed against those who ought to have taken
preventive steps to nib
in the bud the resultant spillage from degenerating into a certainly life
threatening hazard. In line with this
proposition this paper argues that in the enforcement of environmental laws in
Nigeria there seems to be too much emphasis on remedial technique even where
there exist a clear case of criminal negligence by those who ought to have
taken urgent steps to prevent a spillage from degeneration and demands that the penal technique method should
equally be employed in the enforcement of environmental laws in Nigeria.
Exploration of oil in Nigeria and the
indigenous people.
Whereas oil exploration has yielded huge financial gains for the nation
as the revenue from that sector accounts for about 90% of the national income,
the host communities of the oil prospecting companies have had one tale or the
other to tell arising from pollution of water bodies in riverine areas were
fishing is the primary occupation of the natives, to destruction of vast farm
lands by oil spillage, and pollution of communities.
There
is no gain-saying the fact that land formed an integral component of a peoples’
economy. In the not too distant period
land in Nigeria was held in fee-simple.
In that epoch land belonged to the community, and not to a single
individual. Landlessness was not a
common feature in land ownership. It meant that land owners owned everything
attached and beneath the land. The legal implication of this can be found in
the Latin maxim quid quid plantaatur solo
solo cedit (what is found on the land belonged to the land). This meant
that land owners had the right to protect their lands from any sort of
degradation through civil action or criminal process or through street power.
As
at 1956 when the first oil deposit in large commercial quantity was discovered
in Oloribiri, a small town in the then Eastern Region, later Rivers State and,
now Bayelsa State, the prevailed land tenure system was based on
fee-simple. This period predated the
United Nations General Assembly resolution on permanent sovereignty over
natural resources. This resolution was actually intended to put to a stop the
rapacious plunder of the economic resources of colonialized nations by the
colonial power. That resolution became
the basis for nations to assume full and total control of resources within
their territories. In effect, national
governments were pitched against communities whose lands harbour mineral
resources – over degradation of their
environment arising from mineral expropriation.
The
ongoing crisis or conflicts in the Niger Delta region of Nigeria today can only
be fully appreciated with the study of the nature, background and stages of the
said crisis or conflicts. The foregoing is intended to demonstrate that the
struggles which have characterized expropriation of mineral resources in the
Niger Delta and the resistance by the ethnic nationalities of the region
centered mainly on the economic survival of the people and, how this important
indices in human existence can be guaranteed and protected.
A case for Penal Technique in the
enforcement of Environmental law in Nigeria.
As
pointed out above, upstream activities are hazardous with great
potentials of degrading the environment with its attendant consequences on the
health and means of livelihood of the communities. It is not as if oil
extracting companies in Nigeria are unmindful of the danger posed to host
communities as a result of degradation and despoliation of the environment
arising from oil exploration but it seems that their nonchalant attitude
towards taking preventive measure to curtail pollution is because the
consequence arising from spillage is
centered mainly on remedial approach based on corporate social
responsibilities of oil companies to the neglect of the penal technique method.
Definitely, individuals would not mind where the proffered remedy is remedial
to be borne by the corporation without any individual responsibility in terms
of just deserts or retribution. For instance, following the Ogoni dispute the then Nigerian
President Olusegun Obasanjo appointed
two peace envoys for the region – Fr.
Mathew Kukah for the Ogoni dispute
with shell, and Ken Wiwa, the son to
the slain Ogoni leader, Ken Saro Wiwa, for the region as a
whole. The focus of this peace envoys
was on how to open the region to socio-economic development. Also about 65
Nobel Laureates composed with the Commission of Nobel Laureates on Peace,
Equity and Development in the Niger Delta region of Nigeria in an effort to
proffer solutions to the lingering crisis in the region focused on remedial approach of revenue and compensation.
This is a clear indication that enforcement of environmental law in Nigeria has
remained focused on non-criminal sanctions.
Currently,
in international law there are few notable agreements that seek to protect the
environment from serious degradation.
Protocol I to the Geneva Conventions includes a prohibition on ‘methods
or means of warfare which are intended or may be expected to cause widespread,
long-term, and severe damage to the natural environment.’ This convention has
remained in the front burner of any discussion on the natural environment. The convention is said to have provided the
impetus for questioning the use of Agent Orange in Vietnam and the setting
ablaze of oil wells in Iraq during the first Gulf War.
Though
no one has been charged for violating the above Protocol, where conviction is
sought the Statute of International
Criminal Court (‘ICC’) can serve as basis for criminal responsibility. There are also other mandates of criminal
sanctions for the violation of certain environmental norms. An example, is the International
Convention for the Prevention of
Pollution from Ships (‘Marpol’) and the Convention on the Prevention of
(‘London Convention’). Also the
Convention on International Trade in Endangered Species (‘CITES’) contains some
criminal implementation provisions. There is also the Basel Convention on the
Control of Trans-boundary Movements of Hazardous Wastes and their Disposal.
Parties to the Basel Convention consider that illegal traffic in hazardous
wastes or other wastes is criminal. The Convention on Prevention of Marine
Pollution by dumping of waste and other Matters of 1975 binds members
individually and collectively and by virtue of Article 22 parties to the
Convention are directed to promote the effective control of all sources of
pollution of the marine environment and to take practical steps to prevent the
pollution of the sea by dumping of harmful waste which may affect health,
injure living resources and marine life or damage amenities. The Council of
Europe adopted a convention on the protection of the environment through
criminal law.
Apart
from emphasis of corporate responsibility of environmental law violations in
Nigeria, the penalty provided for enforcement of environmental laws in Nigeria can be described as a slap on the wrist. For instance under the Environmental
Impact Assessment Act (EIA) the punishment for failure to conduct proper assessment of the potential impacts whether
positive or negative, of a proposed project on the natural environment in the
case of individual is a fine of N200,000 or five years imprisonment
and in the case of a firm or corporation to a fine of not less than N50,000 and not more than N1, 000,000. Also under the Oil in Navigable Water Regulation 1968 which objective is to
protect Nigeria’s waters from pollution, the Master of the Ship or Occupier has
responsibility under Section 3 of the Act to prevent discharge of cruel oil
into Nigerian waters. Sadly, the criminal sanctions under the Act is only N200,000.00
Conclusion
Finally,
it is submitted that sanctions in terms
of monetary compensation may be adequate if they are imposed before the
degeneration of pollution into a life threatening hazard. Otherwise, it amounts to making mockery of enforcing preventive law when a pollution has actually
caused huge damage to both humans and the eco-system of the people. It is
hereby recommended that attitude towards
enforcing environmental legislation in Nigeria should change from too much emphasis
on monetary compensation to one of
serious enforcement of retributive law.
