Emphasis on Remedial Approach to the Neglect of Penal Technique Method in the Enforcement of Environmental Laws in Nigeria

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.

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