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UC Law Environmental Journal

Abstract

In most common law systems, environmental liability has developed from actions under tort to fundamental rights actions. In between this development, legislatures in common law countries have enacted and amended statutes that stipulate environmental liability and enforcement.1 It is logical to imagine that an unhealthy environment will have negative impacts on lives and property, which are protected fundamental rights in most countries. It is also desirable for a system to have multiple avenues available for the enforcement of sound environmental practices and processes. This Article examines whether environmental rights can be enforced via fundamental rights action under Chapter IV of the Nigerian Constitution.2 It examines environmental liability from a human rights perspective and analyzes constitutional, statutory, and judicial precedents with a view of determining what the state of the law in Nigeria is on the subject. The Article concludes that, though the right to a clean and protected environment is not explicitly listed as a Chapter IV constitutional right, environmental rights are still enforceable as fundamental rights in Nigeria. An Applicant seeking to enforce public interest environmental rights can do so as a fundamental right to life and/or property action under Chapter IV by pleading facts and furnishing evidence showing how the environmental act or omission being complained of has deprived, or is likely to deprive, persons of their lives and immovable property. The Written Address in support of the Application will contain arguments linking the facts and evidence furnished to Sections 33 and 43 of the Nigerian Constitution, which are Chapter IV rights to life and immovable property, respectively. Additionally, arguments in the Written Address can be further bolstered by reference to the relevant provisions of the African Charter on Peoples and Human Rights (Ratification and Enforcement) Act3 which also contains rights described as “Fundamental Rights” by the Fundamental Rights (Enforcement Procedure) Rules.4 Another route for enforcement of environmental rights as a fundamental rights action is by bringing an African Charter Act action to enforce the fundamental right to general satisfactory environment which is (alongside other rights therein) described as a fundamental right by the Fundamental Rights (Enforcement Procedure) Rules.

Part I briefly examines Environmental Liability in Nigeria; Part II deals with Environmental Liability under Fundamental Rights Actions in other jurisdictions. Part III discusses Fundamental Rights under Chapter IV of the Nigerian Constitution; Part IV examines the topic of Bringing a Public Interest Environmental Action as a Chapter IV Suit in Nigeria; Part V examines bringing an environmental action at the ECOWAS court; Part VI provides the Way Forward; and Part VII concludes that the right to a clean environment is enforceable as a fundamental right in Nigeria.

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