The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Communication No. 155/96, African Commission on Human and Peoples' Rights.

The Communication to the commission alleged that the government of Nigeria had been directly involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People. The Social and Economic Rights Action Center for Economic and Social Rights v. Nigeria, Communication No. 155/96, African Commission on Human and Peoples' Rights.

Summary of Facts:

The Communication to the commission alleged that the government of Nigeria had been directly involved in oil production through the State oil company, the Nigerian National Petroleum Company (NNPC), the majority shareholder in a consortium with Shell Petroleum Development Corporation (SPDC), and that these operations caused environmental degradation and health problems resulting from the contamination of the environment among the Ogoni People. The Communication alleged that the oil consortium has exploited oil reserves in Ogoniland with no regard for the health or environment of the local communities, disposing toxic wastes into the environment and local waterways in violation of applicable international environmental standards. The consortium also neglected and/or failed to maintain its facilities causing numerous avoidable spills in the proximity of villages. The resulting contamination of water, soil and air has had serious short and long-term health impacts, including skin infections, gastrointestinal and respiratory ailments, and increased risk of cancers, and neurological and reproductive problems.

The Communication also alleged that the Nigerian Government has condoned and facilitated these violations by placing the legal and military powers of the State at the disposal of the oil companies. The Communication alleged that the Government neither monitored operations of the oil companies nor required safety measures that are standard procedure within the industry and further that it withheld from Ogoni Communities information on the dangers created by oil activities. The Government did not require oil companies or its own agencies to produce basic health and environmental impact studies regarding hazardous operations and materials relating to oil production, despite the obvious health and environmental crisis in Ogoniland and refused to permit scientists and environmental organisations from entering Ogoniland to undertake such studies. The Communication also alleged that the Nigerian government did not require oil companies to consult communities before beginning operations, even if the operations posed direct threats to community or individual lands.

The Communication further alleged that in the course of the last three years, Nigerian security forces have attacked, burned and destroyed several Ogoni villages and homes under the pretext of dislodging officials and supporters of the Movement of the Survival of Ogoni People (MOSOP). Some of the attacks have involved uniformed combined forces of the police, the army, the air-force, and the navy, armed with armoured tanks and other sophisticated weapons. In other instances, the attacks were conducted by unidentified gunmen, mostly at night. The Government of Nigeria has not investigated these attacks.

The Communication alleged that the Nigerian government has destroyed and threatened Ogoni food sources through a variety of means. The government has participated in irresponsible oil development that has poisoned much of the soil and water upon which Ogoni farming and fishing depended. In their raids on villages, Nigerian security forces have destroyed crops and killed farm animals. The security forces have created a state of terror and insecurity that has made it impossible for many Ogoni villagers to return to their fields and animals. The destruction of farmlands, rivers, crops and animals has created malnutrition and starvation among certain Ogoni Communities.

The communication alleges violations of Articles 2, 4, 14, 16, 18, 21, and 24 of the African Charter.

Finding of Commission

All of the requirements governing admissibility in article 56 of the African Charter were satisfied. Article 56(5) requires that local remedies, if any, be exhausted, unless these are unduly prolonged. In this case no domestic court actions were brought to halt the alleged violations. The commission found that while the law of torts may provide a cause of action to some affected individuals, positive rights such as the right to food, housing, and development did not exist in Nigerian domestic law, and the law governing class action was not well developed in Nigeria. As these rights are not well provided for in domestic law potential conflict does not arise between a domestic and an international decision. Similarly, if the right is not well provided for, there cannot be effective remedies, or any remedies at all. Ogoniland had received extensive international attention and it was therefore not possible to argue that the Nigerian government did not have ample notice and, over the past several decades, more than sufficient opportunity to give domestic remedies.

The Commission held that it must read Article 56(1) in the light of its duty to ensure the protection of the human and peoples' rights under the conditions laid down by the Charter. The Commission will not require the Complainant to seize the domestic courts in the case of each individual complaint where it is impractical or undesirable, such as where there are a large number of individual victims. In these situations, because of the seriousness of the alleged human rights violations and the great numbers of people involved, such remedies as might theoretically exist in the domestic courts are judged to be effectively unavailable. The Commission therefore declared the communication admissible.

Right to health and clean environment

The Complainants alleged that the Nigerian government had violated the right to health and the right to clean environment as recognized under articles 16 and 24 of the African Charter. Article 16 of the African Charter reads:

  • Every individual shall have the right to enjoy the best attainable state of physical and mental health.
  • States Parties to the present Charter shall take the necessary measures to protect the health of their people and to ensure that they receive medical attention when they are sick.

Article 24 of the African Charter reads:

  • "All peoples shall have the right to a general satisfactory environment favourable to their development."

The Commission held that these rights recognise the importance of a clean and safe environment that is closely linked to economic and social rights in so far as the environment affects the quality of life and safety of the individual. The right to a general satisfactory environment or the right to a healthy environment obliges the State to take reasonable and other measures to prevent pollution and ecological degradation, to promote conservation, and to secure an ecologically sustainable development and use of natural resources. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), to which Nigeria is a party, requires governments to take necessary steps for the improvement of all aspects of environmental and industrial hygiene. Reduced to their most basic level, however, the rights to health and a healthy environment serve to prohibit governments from directly threatening the health and environment of their citizens.

Government compliance with the spirit of Articles 16 and 24 of the African Charter must also include ordering or at least permitting independent scientific monitoring of threatened environments, requiring and publicising environmental and social impact studies prior to any major industrial development, undertaking appropriate monitoring and providing information to those communities exposed to hazardous materials and activities and providing meaningful opportunities for individuals to be heard and to participate in the development decisions affecting their communities. The Commission therefore held that the Government of Nigeria had violated Articles 16 and 24 of the African Charter. The Government has not taken steps to protect the Ogoni population from harms done by the NNPC-Shell consortium but has instead actively used its security forces to facilitate and compound the damage. Furthermore, it has not provided nor permitted studies of potential or actual environmental and health risks caused by oil operations in Ogoni Communities. Instead of warding off threats to the peaceful enjoyment by the Ogonis of their protected rights, the government has promoted an atmosphere of terror in a bid to silence the demand for observance of their rights.

Free disposal of wealth and natural resources

Article 21 provides:

  • All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
  • In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation.
  • The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic co-operation based on mutual respect, equitable exchange and the principles of international law.
  • States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity.
  • States Parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practised by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.

The Complainants alleged that the government of Nigeria was involved in oil production and thus did not monitor or regulate the operations of the oil companies and in so doing paved a way for the Oil Consortiums to exploit oil reserves in Ogoniland. Furthermore, in all their dealings with the Oil Consortiums, the government did not involve the Ogoni Communities in the decisions that affected the development of Ogoniland. This constitutes a violation of Article 21. Despite its obligation to protect persons against interferences in the enjoyment of their rights, the Government of Nigeria facilitated the destruction of the Ogoniland.

The right to housing/shelter Article 14 of the Charter reads:

  • "The right to property shall be guaranteed. It may only be encroached upon in the interest of public need or in the general interest of the community and in accordance with the provisions of appropriate laws."

Article 18(1) provides:

  • "The family shall be the natural unit and basis of society. It shall be protected by the State..."

The right to housing or shelter is not explicitly provided for under the African Charter. Nevertheless, the Commission held that the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under Article 16, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health, and family life are adversely affected. The combined effect of Articles 14, 16 and 18 is therefore to read into the Charter a right to shelter or housing.

At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The State's obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs. Its obligations to protect obliges it to prevent the violation of any individual's right to housing by any other individual or non-state actors like landlords, property developers, and land owners, and where such infringements occur, it should act to preclude further deprivations as well as guaranteeing access to legal remedies. The right to shelter also extends to embody the individual's right to be let alone and to live in peace- whether under a roof or not.

The protection of the rights guaranteed in Articles 14, 16 and 18 (1) leads to the same conclusion. As regards the earlier right, and in the case of the Ogoni People, the Government of Nigeria has failed to fulfil these two minimum obligations. The government has destroyed Ogoni houses and villages and then, through its security forces, obstructed, harassed, beaten and, in some cases, shot and killed innocent citizens who have attempted to return to rebuild their ruined homes. These actions constitute massive violations of the right to shelter, in violation of Articles 14, 16, and 18(1) of the African Charter. The particular violation by the Nigerian Government of the right to adequate housing as implicitly protected in the Charter also encompasses the right to protection against forced evictions. The conduct of the Nigerian government clearly demonstrates a violation of this right enjoyed by the Ogonis as a collective right.

The right to food

The Communication argued that the right to food is implicit in the African Charter, in such provisions as the right to life (Art. 4), the right to health (Art. 16) and the right to economic, social and cultural development (Art. 22). The Commission held that the right to food is inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of such other rights as health, education, work and political participation. The African Charter and international law require and bind Nigeria to protect and improve existing food sources and to ensure access to adequate food for all citizens. Without touching on the duty to improve food production and to guarantee access, the minimum core of the right to food requires that the Nigerian Government should not destroy or contaminate food sources. It should not allow private parties to destroy or contaminate food sources, and prevent peoples' efforts to feed themselves. The government's treatment of the Ogonis was found to violate all three minimum duties of the right to food. The government had destroyed food sources through its security forces and State Oil Company; allowed private oil companies to destroy food sources; and, through terror, created significant obstacles to Ogoni communities trying to feed themselves.

The right to life

In the result

The Commission:

1. Appeals to the government of the Federal Republic of Nigeria to ensure protection of the environment, health and livelihood of the people of Ogoniland by:

  • Stopping all attacks on Ogoni communities and leaders by the Rivers State Internal Securities Task Force and permitting citizens and independent investigators free access to the territory;
  • Conducting an investigation into the human rights violations described above and prosecuting officials of the security forces, NNPC and relevant agencies involved in human rights violations;
  • Ensuring adequate compensation to victims of the human rights violations, including relief and resettlement assistance to victims of government sponsored raids, and undertaking a comprehensive cleanup of lands and rivers damaged by oil operations;
  • Ensuring that appropriate environmental and social impact assessments are prepared for any future oil development and that the safe operation of any further oil development is guaranteed through effective and independent oversight bodies for the petroleum industry; and
  • Providing information on health and environmental risks and meaningful access to regulatory and decision-making bodies to communities likely to be affected by oil operations.

2. Urges the government of the Federal Republic of Nigeria to keep the African Commission informed of the outcome of the work of:

  • The Federal Ministry of Environment which was established to address environmental and environment related issues prevalent in Nigeria, and as a matter of priority, in the Niger Delta area including the Ogoni land;
  • The Niger Delta Development Commission (NDDC) enacted into law to address the environmental and other social related problems in the Niger Delta area and other oil producing areas of Nigeria; and
  • The Judicial Commission of Inquiry inaugurated to investigate the issues of human rights violations.
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