Some key findings of this research include the following:
The Niger Delta situation is indeed still the most critical case of severe environmental degradation and socioeconomic rights abuse in the entire West African sub-region. This is ironic especially as the Niger Delta is in the richest country on the continent (as popularly declared), and a country whose Constitution provides that: “The State shall protect and improve the environment and safeguard the water, air and land, forest and wild life of Nigeria”.320 The Constitution also provides that “governmental actions shall be humane;”321 and that the “exploitation of human or natural resources in any form whatsoever for reasons, other than the good of the community, shall be prevented.”322 The above stated constitutional obligations to protect the environment, prevent exploitation and promote accessibility to justice is significantly limited and “barricaded” by the non-justiciability provision in the same constitution hence even socioeconomic entitlements which citizens require for their development such as the right to adequate shelter, food, water protection, employment, healthcare, and education, to some extent cannot be enforced in Nigeria’s national courts.323
320 Constitution of the Federal Republic of Nigeria, 1999, c 2, s 20.
321 Ibid at s 17 (2) (c).
322 Ibid at (d).
323 The Constitution of the Federal Republic of Nigeria in Section 6 (6) (c) is to the effect that Nigerian citizens cannot obtain redress from the national courts if denied their socioeconomic, developmental and other rights provided for in Chapter II of the constitution. Chapter II of the Constitution is described as Fundamental Objectives and Directive Principles of State Policy which are guidelines to the Federal and State governments of Nigeria to promote social order. As framed, the objectives appear to encompass social inclusiveness with a view to reducing socioeconomic inequality in status and opportunities among individuals and corporate entities but they are non-justiciable.
From the cases instituted at the ECOWAS Court (particularly “Case 2”), the Court made a ground-breaking decision by holding that the non-justiciability of socioeconomic and environmental rights in Nigeria is only a “thesis”324 and that to invoke a lack of justiciability to socioeconomic or environmental rights is unfounded.325 The ECOWAS Court aligns its above position as being consistent with the “restriction and derogation criteria” set by the ICESCR.326 According to the ECOWAS Court, to invoke non-justiciability to socioeconomic or environmental rights is “completely baseless.”327 The ECOWAS Court has done two (2) things by holding the above positions. First the court is holding Nigeria (and the other ECOWAS states) responsible for the international treaties they have acceded to and ratified. Second, the Court is ensuring that Nigeria will have to satisfy the criteria applicable under IHRL to resort to any derogations of environmental and socioeconomic rights. The Court however did not expressly attach any violation or responsibility by the oil companies who carried out business activity in the Niger Delta that resulted in environmental damages.
324 SERAP’s application document before the ECOWAS Court at p1; repeated in the Judgement of the Court: SERAP v. Nigeria & 8 Ors. ECW/CCJ/JUD/18/12 (“Case 2”) at para 18 “It should also be noted that the sources of Law that the Court takes into consideration in performing its mandate of protecting Human Rights are not the Constitutions of Member States, but rather the international instruments to which these States voluntarily bound themselves at the international level, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the African Charter on Human and Peoples’ Rights... Once the concerned right for which the protection is sought before the Court is enshrined in an international instrument that is binding on a Member State, the domestic legislation of that State cannot prevail on the international treaty or covenant, even if it is its own Constitution.” – para 35.
325 Ibid at para 38.
326 The ICESCR provides in Article 5, paragraph 2 that “No restriction upon or derogation from any of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom shall be admitted on the pretext that the present Covenant does not recognize such rights or that it recognizes them to a lesser extent˝. Nigeria has been a party to the ICESCR by adhesion since 29 July 1993.
327 Judgement in “Case 2” supra note 324 at para 38.
In the “difficult” pursuit of environmental and socioeconomic justice for the people of the Niger Delta (and for Nigerians in general), some activist forces have deployed both conventional and innovative ways to further their cause. In their “resistance character” to ameliorate human rights violations in Nigeria, these activist forces have challenged the non-justiciability of environmental and socioeconomic rights (as contained in the Nigerian constitution) by forum shopping for justice both within domestic courts and supranational adjudicatory systems. Even where the outcomes from the cases they instituted before the courts may not be favourable to their pursuits, these activist forces leveraged on their various networks and employed new ways of challenging the status quo. Examples are the utilisation of strategic litigation (as employed by SERAP and LEDAP), the filling of amicus briefs (as employed by Amnesty International in “Case 2”), the use of story-telling and the media (as employed by MOSOP), and worthy of mention is the financial support that these NGOs receive from their local and international funders, without which they won’t be able to finance some of their activities.
More so, these activist forces as “agents of change” are able to float environmental and socioeconomic justice norms to sail into the region as well as the government spaces of the country. On the one hand, they challenged the government into “legal battles” before domestic and supranational courts, and on the other hand they sit with the government officials and stakeholders in meetings and consultations to mutually find solutions (and influence) policies to tackle the environmental and socioeconomic issues in the country.
These activist forces also act as watchdogs and representatives for the people represent (e.g. HOMEF is representing NGOs on the Governing Council set up by Nigeria’s
President for the Ogoni Cleanup and the President of MOSOP is one of the representatives of the Ogoni Stakeholders on the Governing Council),328 to ensure that the decision from the ECOWAS Court is enforced and the promises made by the government to its citizens are fulfilled. These activist forces do the above and still have to garner broad social/popular legitimacy within Nigeria.
The activities of activist forces are not without many criticisms, but their role in the production and the brokering of the “desired kinds of thinking and action”329 on environmental and socioeconomic justice in Nigeria cannot be overemphasized. Activist forces are just as important as the other players (e.g. the United Nations, or in this instance the ECOWAS Court) in the promotion and advancement of environmental and socioeconomic rights in the region. This is supported by a type of “correspondence” that activist forces have generated between the ECOWAS Court system’s norms and goals, and the content and orientation of executive, judicial, and legislative action within Nigeria.
“The broadly constructivist process via which modest alterations in logics of appropriateness and/or conceptions of interest”330 on environmental and socioeconomic justice, have been fostered in Nigeria (at least modestly so, as demonstrated in this thesis), have in nearly every case been brokered and/or facilitated by these activist forces. It is therefore not only worthy but pertinent to recognise the value and contribution
328 Nsima Ekere, “Niger Delta Clean Up: Mr President today inaugurated Nsima Ekere as member of Implementation Committee Governing Council” (4 August 2016), Nsima Ekere (blog), online:
<http://nsimaekere.ng/2016/08/04/niger-delta-clean-mr-president-today-nominated-member-implementation-committee-bot/>.
329 Obiora Chinedu Okafor, The African Human Rights System, Activist Forces and International Institutions (Cambridge: Cambridge University Press, 2007) at 277 – 288.
330 Ibid at 251.
of activist forces in advancing environmental and socioeconomic human rights in Nigeria and beyond.
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