Nigeria’s constitutional reform must address environmental rights

BY COLLINS OKEKE

Nigeria’s national assembly has begun the constitutional amendment process, and as usual, all sorts of areas in the constitution have been proposed for amendment. One area that is often ignored but critical for Nigeria’s survival is the environment. The environment is not just an abstract policy area but the foundation upon which Nigeria’s economy, public health, and social stability rest.

Nowhere is this more evident than in the Niger Delta region, where decades of oil pollution have created one of the world’s most severe environmental crises. Since oil’s discovery in 1958, this once-pristine ecosystem has endured systematic degradation, with conservative estimates indicating between 9 and 13 million barrels of oil released into the environment. Recent data from the National Oil Spill Detection and Response Agency shows that between 2020 and 2021 alone, 822 separate oil spills released 28,003 barrels of oil into sensitive ecosystems.

The human cost of this environmental devastation is immeasurable. Communities across the Niger Delta have seen their water sources contaminated, agricultural lands decimated, and fishing grounds destroyed. Health concerns, including respiratory diseases, skin conditions, and increased cancer rates, plague residents exposed to pollutants. The United Nations Environment Programme has concluded that remediation would require the world’s largest ever environmental cleanup operation, potentially lasting 30 years and costing over $1 billion.

Yet, despite this catastrophe, oil companies frequently escape liability due to a critical constitutional loophole. Section 20 of the Constitution states that “the State shall protect and improve the environment,” but its placement within Chapter 2 (Fundamental Objectives and Directive Principles of State Policy) renders it non-justiciable under Section 6(6)(c) of the Constitution. This means affected communities cannot directly enforce this provision in court.

Nigerian courts have attempted to bridge this gap through creative jurisprudence. In the landmark case Jonah Gbemre v. Shell Petroleum Development Company of Nigeria Ltd & Ors, Suit No. FHC/B/CS/53/05, the Federal High Court held that the constitutional rights to life and dignity “inevitably includes the right to clean, poison-free, pollution-free and healthy environment.” The Supreme Court affirmed this approach in Centre for Oil Pollution Watch (COPW) v. Nigerian National Petroleum Corporation (2019) 5 NWLR (Pt. 1666) 518), explicitly recognizing that oil spills violate the constitutional right to life.

However, these judicial efforts face significant limitations without explicit constitutional backing. Courts must perform interpretative gymnastics to establish that oil pollution violates fundamental rights. Oil companies continue exploiting constitutional ambiguity by arguing that environmental protection remains a non-justiciable policy objective rather than an enforceable right. Communities bear excessive evidentiary burdens to demonstrate how specific instances of pollution directly violate their constitutional rights.

The solution is clear: Nigeria needs a constitutional amendment that explicitly establishes environmental rights—particularly protection from oil pollution—as fundamental human rights directly enforceable under the constitution. This would involve relocating Section 20 from Chapter 2 to Chapter 4 of the Constitution, with language clearly stating that oil pollution and other forms of environmental degradation constitute direct violations of fundamental rights.

This would not be a radical departure from global practice. South Africa, Kenya, Ecuador, Portugal, and Brazil have all incorporated environmental rights into their constitutions’ fundamental rights chapters. These models have proven effective in enhancing accountability for corporate polluters.

As Nigeria confronts multiple challenges requiring constitutional solutions, the environmental crisis in the Niger Delta demands equal attention. By amending the Constitution to explicitly establish oil pollution as a violation of fundamental rights, the National Assembly can deliver long-overdue environmental justice to millions of Nigerians while creating a sustainable framework for the country’s future. Without constitutional protection for the environment, Nigeria’s development will remain fundamentally unstable and unsustainable.

Collins Okeke is an associate partner at Olisa Agbakoba Legal