Improper Abandonement Of Oil (5)

One of such projects is the Escravos gas project. This project is the first major project to gather and utilize Nigeria’s offshore gas for both local and export use. It is a joint venture between NNPC (60%) and Chevron Texaco (40%) to recover associated gas from offshore fields. The project is located at Escravos, Delta State, Nigeria and it will extract Liquefied Petroleum Gas (LNG) from AG, and exports it via pipeline, to an offshore floating and offloading vessel (FSO). It commenced operations in 1997 and its first shipment of LPG was in September of the same year.
Another project is the Oso NGL Project. It is a joint venture between NNPC (49%) and Exxon Mobil (51%). The project will convert associated wet gas into natural gas liquids (NGLs) and its current production capacity is 50,000 barrels per day. There is also the Trans-Saharan Gas pipeline, which will be 4,000km long, and will link Nigerian Gas fields through Mail to Ben-Saf on the Algerian coast. Gas produced from the field will be sold to the European Market. The cost of the project is estimated at $7 billion, and is expected to develop the Natural Gas market and infrastructure in the Northern part of Nigeria.

Another one is the East Area Gas Project (EAGP) owned by Mobil Producing Nigeria. The EAGP will gather all gas produced from the East area fields, for re-injection and storage. Liquids will also be extracted from the gas, by an offshore NGL plant before it is re-injected.
The above-mentioned projects are only some of the natural gas projects in Nigeria. It is very important therefore, that more gas projects are developed existing ones improved and also something should be done about the shortcomings of the NLNG and WAGP. This is because it will help the efforts by the Government and oil companies to end gas flaring.

In the next detailed research, discussion was restricted to dealing with fundamental questions of Human Rights and Unprecedented Ruling of the Federal High Court in Nigeria.

GAS FLARING: THE USE OF HUMAN RIGHTS

The practice of gas flaring has been attacked by various writers and, is deemed to b against the human rights of the people living next to them. This is because it breeds grave environmental and health risks to these people and their communities. Gas flaring in Nigeria operates on a much larger scale, than is done anywhere else in the world, and the trend is not without its negative effects.

Flaring in Nigeria is said to contribute more greenhouse gas emissions than all other sources in sub-Saharan Africa combined, which as a result leads to global warming. Peter Roderick, Co-director of the Climate Justice Program, is quoted as saying the following “.The appalling waste or greenhouse gases in one of the world’s poorest countries are a violation of Human Rights of those living subjected to the flaring.

Other effects of gas flaring are that, it exposes Niger Delta residents to an increased risk of premature deaths, child respiratory illness, asthma and cancer. Human Rights are used here to mean the Fundamental Rights of the people, guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (hereafter the 1999 Constitution). In a newspaper report, the following was said;
Fundamental rights are those inalienable rights of individuals which has been recognized, accepted and entrenched in the constitutions of civilized nations. It is the minimal accepted standard of respect for individuals that cannot be arbitrarily denied or deprived them of without consequences.

In Nigeria, these rights are contained in Chapter 4 of the 1999 Constitution, and their provisions can be enforced against violators in any law court in Nigeria. These rights have also been recognized by international instruments e.g. The African Charter on Human and Peoples Right (which provides for the right to a clean and healthy environment), the Universal Declaration of Human Rights etc.

Nigeria has incorporated into its law the African Charter on Human and People’s Right. The law is known as the African Charter on Human and People’s Right (Ratifications and Enforcement) Act Cap A9, Vol. 1 Laws of the Federation of Nigeria 2004. It is important, in that, it unequivocally provides for rights that protect the environment and human rights, these rights are justifiable in Nigerian courts. Section 20 of the 1999 constitution, which has similar provisions, states the following: “The state shall protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria”. This section and the entire discussant under which it falls, is however non-justifiable. A citizen cannot bring an action for the breach of its provisions.

It is interesting to note that, there had been no judgment in Nigeria, which pronounced upon the legality of Gas flaring or the human rights of affected persons (to their benefit) , until recently. In the Next section, we will examine the judgment and some relevant laws, which affirm the Human/Fundamental rights of citizens living in communities scourged by Gas Flaring.

THE NOVEMBER 14TH JUDGMENT OF THE FEDERAL HIGH COURT OF NIGERIA.AN OASIS

This judgment, (the first of it’s kind) was given by the Benin Federal High Court, on November 14th 2005, in the case of Mr. Jonah Gbemre v. Shell Petroleum Development Company Nigeria Ltd, Nigerian National Petroleum Corporation and Attorney General of the Federation ( hereinafter called the Jonah Gbemre case).

This case was filed by communities from across the Niger Delta, in the Federal High court of Nigeria, against Shell, Exxon Mobil, Chevron Texaco, Totalfina (Elf) and Agip Joint Venture Companies, the NNPC and the Nigerian Government, to stop gas flaring”. However because of the copious unwieldy list of members, the court granted leave to the applicant (Mr. Jonah Gbemre) to commence the proceedings for himself and as representing the other members, individuals and residents of Iwherekan community in Delta State of Nigeria.
The applicants sought an order enforcing or securing the enforcement of their fundamental rights to life and dignity of human person, as provided for by sections 33(1) and 34(1) of the 1999 Constitution, and Articles 4, 16 and 24 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act.

Section 33 (1) of the 1999 Constitution, states the following:

Every person has a right to life, and no one shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

Section 34 (1) of the 1999 Constitution, provides as follows:

“every individual is entitled to respect for the dignity of his person and accordingly:
(a) no person shall be subjected to torture or to inhuman or degrading treatment.
(b) no person shall be subjected to torture or to inhuman or degrading treatment.
(c) no person shall be held slavery or servitude
(d) no person shall b required to perform forced or compulsory labour.

Both section 33 and above fall under chapter 4 of the 1999 constitution. Section 46(1) of the 1999 Constitution and under the same chapter provides as follows:

Any person who alleges that any of the provisions of this chapter been, is being or likely to be contravened in any state in relation to him, may apply to a High Court in that state for redress.

Article (4) of the African Charter (supra) also provides the following:

Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.

Article (16) of the African Charter states the following:

Every individual shall have the right to enjoy the best attainable state of physical and mental health. State parties to the present charter shall take the necessary measures to protect the health of their people and to ensure that they receive m

edical attention when they are sick.

Article 24 of the African Charter provides: “All people shall have the right to a general satisfactory environment favourable to their development”. The applicant sought a declaration that the above laws included their right to a clean poison free, pollution free and healthy environment. They also sought a declaration on the following:

(a) That the actions of the 1st and 2nd respondents in continuing to flare gas in applicant’s community constitutes a violation of their fundamental rights guaranteed in the above mentioned laws (i.e. the 1999 constitution and the African charter).

(b) That the failure of the 1st and 2nd respondents to carry out environmental impact assessment in the Applicant’s community concerning the effects of their gas flaring activities was a violation of section 2 (2) of the Environmental Impact Assessment Act. The said section requires that an environmental impact assessment be done in accordance with the provisions of the Act, where a proposed project activity is likely to significantly affect the environment.

(c) That no valid ministerial certificates have been obtained by the 1st and 2nd respondents, authorizing their gas flaring, and that accordingly, they were acting in violation of section 3(2) of the Associated Gas Re-injection Act.

(d) That the provisions of section 3 (2) (supra) and section (1) of the Associated Gas Re-injection (Continued Flaring of Gas Regulations); under which gas flaring may be continued, are inconsistent with the provisions of the African Charter and the 1999 Constitution, mentioned above.

(e) That the 1st and 2nd respondents in continuing to flare gas in their community, exposes them to serious ailments such as respiratory disease, premature death, asthma, and such negative impacts on the environment as, climate change, Acid rain etc.

(f) That the 1st and 2nd Respondents have no right to continue to engage in gas flaring, in violation of their right to life and to a clean and healthy environment.

Counsel for the Applicant (B.E.I Nwofor, SAN) argued that section 33(1) of the 1999 Constitution guaranteed the right to life and proceeded to the Black’s Law Dictionary for the definition of life, since the constitution does not provide for such a definition, and neither does the Interpretation Act in any of its sections.

The Black Law Dictionary defines life as follows:

(a) The sum of all the forces by which death is resisted.
(b) The state of the humans in which its organs are capable of performing their functions
(c) All personal rights and the enjoyment of the faculties.

He submitted that this definition gives a wide meaning to the right to life, and not just a narrow meaning of the right. He stated further that the right is not just to have one’s head cut or guillotined, but also more significantly, that it includes the right of a human being to have his organs function properly and to enjoyment of all his facilities. He argued that the 1st and 2nd Respondents were engaged in massive gas flaring in the Applicants community (Iwherekan), and that this flaring poisons and pollutes the air, water, food and vegetation in that community and cause terminal diseases as chronic bronchitis, cancer, painful breathing etc. He also argued that the right to life will only have meaning if the things that endanger it are removed and that this massive flaring has the effect of endangering and diminishing life and does not lead to its full enjoyment, and that accordingly the Respondents by their actions have violated the right to life of the Applicants. Learned counsel for the Applicants also insisted that the 1st and 2nd Respondents had no valid ministerial certificates, permitting them to flare gas and that their actions are thus punishable under section 4 of the Associated Gas Re-injection Act (supra), which makes such act an offence and the violators liable to necessary penalties prescribed thereof.

On the issue of breach of the right to dignity of the human person, the learned counsel for the Applicants referred to section 34(1) of the 1999 constitution which came up for interpretation by the court in the case of Uzuokwu v. Ezeonu which came and submitted that the right to dignity of human person indulges the right not to inflict any inhuman or degrading treatment – which includes infliction of not only severe bodily harm, but also, mental anguish and suffering. Tobi JCA in the above case defined the word “inhuman” as “the opposite of “human” and that if followed that inhuman treatment is a barbarous, uncouth and cruel treatment, which has no human feeling on the part of the person inflicting the barbarity or cruelty”.

The word dignity conveys the meaning or connotation or being degraded at least in one’s exalted estimation of his societal status or societal standing.

.And that the court has jurisdiction to give broad and liberal interpretation to the constitution, particularly when the rights of the individual are involved in respect of matters provided for in the constitution.

Nasir J.C.A, in the same case made the following statements:
The phrase “inhuman treatment” means in my opinion, any barbarous or cruel act, or acting without feelings for suffering of the other and the “person” includes not only the physical body but includes the “psyche” and other mental attributes.

The learned SAN, also contended, that section 3 of the Associated Gas Re-injection Act as well as the Regulations made under, are inconsistent with the rights to life and dignity as guaranteed in section 33 and 34 of the 1999 constitution respectively. He also stated that where there is inconsistency of any Act with the provisions of the constitution will prevail and the Act would be null and void to the extent of its inconsistence. Counsel for the Applicants stated further that this inconsistency lies in the fact that the constitution having guaranteed rights to life, (which includes rights to a healthy environment) some cannot be whittled down by an Act of the National Assembly, which allows for continuation of gas flaring which pollutes the air, water and food. He argues that both statues could not stand side by side. The learned counsel stated also that the Honourabe Attorney General of the Federation and Minister of Justice (3rd Respondents) was joined in the suit t come and explain and justify the constitutionality of the above enactment. The AG did not however turn up and so the learned SAN thereby urged the court to declare the Associated Gas Re-injection Act null and void.

The Respondents on their own part, denied practically, all the claims made by the respondents and in turn made various claims against them, which include the following that Mr. Jonah Gbemre, did not have authority to represent members of the Iwherekan community, that Fundamental Rights Enforcement Proceedings are applicable only to an injured individual, and not to one who is well and healthy, that the 1st Respondents do not flare gas at Iwherekan, and that the only facilities they have there are pipelines, that the activities of the Respondents in Relation to gas, exploration and processing has not caused any pollution of the air or any of such ailments as claimed by the appellants, that their operations have in no way affected the fundamental rights of the Applicant alleged and that these oil and gas activities are carried out in accordance with good oil field practice as permitted by the laws of the Federal Republic of Nigeria, that at the time they commenced operations in the area, they were not required by law in force to carry out environmental impact assessment and that there has been no oil and gas development in the community that would warrant such, that the first Respondent has a flare certificate wherever it has a flare site, and that they do not have a flare site in Iwherekan amongst others.

The learned counsel for the Respondents, Chief T. J. Okpoko, SAN and his assistants, however failed to adequately defend the claims they

made and they kept requesting several adjournment’s and even filed different motions on Notice for stay of proceedings at the Court of Appeal, Benin Division. All these they did in a bid to frustrate the High Court and delay it, in rendering justice in the case.

The Federal High Court in Benin, acting through its learned judge, Justice C.V. Nwokorie denied the Respondents their last application for adjournment, whereupon the lead counsel for the 1st and 2nd Respondent and all his junior Assistants walked out of the court, without observing the usual courtesy of bowing to the Bench.

Owing to the reaction of the Respondents, the learned judge adjourned the case for judgment. This judgment was then given on the 14th day of November 2005. Justice C.V. Nwokorie declared Nigerian Law to be unconstitutional, and ordered the Attorney General to meet with the federal Executive council, in order to bring the law into line with present day practice, rules and regulations governing oil and gas activities. The Federal High Court also ordered the Oil Companies and their workers to stop gas flaring the Nigeria Delta as it violates guaranteed constitutional rights to life and dignity.

The judge also held the following:
(a) That Mr. Jonah Gbemre had authority to represent himself and the community;

(b) That the fundamental rights to life and dignity of the human person, as guaranteed by sections 33 and 34, respectively of the 1999 constitution inevitably includes the rights to clean, poison free pollution – free healthy environment.

(c) That the Respondents continuous Act of gas flaring amounted to a gross violation of their (the communities) fundamental rights to life (including healthy environment) and dignity of human person as enshrined in the constitution.

(d) That failure of the respondents to carry out Environmental Impact Assessment in the Applicants community amounted to a clear violation of section 2 (2) of the Environmental Impact Assessment Act (supra) and also contributes to a further violation of their human rights.

(e) The court, apart from holding that specific sections of the Associated Gas Re-Injection Act and of the Regulations made under it, were inconsistent with the Applicants rights to life and dignity guaranteed under the constitution, also declared that the above laws were inconsistent with the African Charter on Human and peoples Rights (Ratification and enforcement) Act supra.

This decision by the Federal High Court, follows the unprecedented Ruling given by the African Commission on Human and peoples Right, in the case of, the social and Economic Rights Action Center for Economic and social Rights v. Nigeria, where Nigeria was found to have breached the rights to environment under Article (24) to life under Article (4) to health under Article (16), amongst other.

The provisions of the African charter (supra), reinforce the provisions of the 1999 constitution, in relation to the rights to life and dignity. The judge, also put a restraint upon the Respondents, their servant or workers, from engaging in further flaring of Gas in the Applicant’s community and stated that they are to take immediate steps to stop further flaring of gas in that community. The judge therefore dismissed the case put forwarded by the 1st and 2nd Respondents, as well as their various preliminary objections, and declared that they lacked merit.

This judgment is an Oasis, because of the fact that it is unprecedented, and is a Major Victory for the host communities that have for long been exposed to the negative impacts of flaring. Rev. Nnimmo Bassey, Executive Director of Environmental Rights Actions (ERA) has said this of the judgment:
For the first time, a court of competence has boldly declared that Shell, Chevron, and the other Oil Corporations have been engaged in illegal activities here for decades.we expect this judgment to be respected and that for once the oil corporations will accept the truth and bring their sinful flaring activities to a halt.

Peter Roderick, Co-director of the Climate Justice Programme has also commented on the Judgment as follows:

This is a Landmark judgment.we applaud the courage of the judge in giving a clear message that flaring is outdated practice that is not acceptable in Nigeria, we also applaud the courts decision to apply rights guaranteed by the Nigerian constitution to an environmental case for the first time in Nigeria, in line with other countries.

The Federal High Court also summoned the Attorney General and Minister of Justice, the Ministry of State for Petroleum resources as well as the Managing Directors of NNPC, SPDC, and NDDC amongst others, to appear before him on May 31, 2006 to show just how they intend stop gas flaring. The court had also ordered Shell to stop gas flaring in the Iwherekan by April 30, 2007.

This order has however been overturned by the Court of Appeal, on an application by Shell. The said court ordered that no such hearing should take place on that day (May 31st) or any other day, and it granted a stay of execution in that respect thereof.

The Affected communities have however field a notice of appeal against the above ruling of the Court of Appeal, and this is the present state of affairs. Shell has also filed a notice of Appeal challenging the ruling of the Benin High Court, and its action has met with severe criticism and disapproval from Environmental Rights Action (ERA). According to its executive director, Nnimmo Bassey:

This is typical of Shell. It is not known to respect human rights or act in anyway to protect the environment. This is a landmark judgment that confirms its operations have been violating fundamental human rights and the Rights of its host to a dignified life.

The notice of appeal does not however affect the judgment of the Federal High Court, which remains the position until a contrary judgment is given. It is now the hope of many that where such an appeal is before the appellate court, it will hasten to dismiss it and thus reaffirm the position stated by the court of first instance.

It is worth noting, however if this case were to have been brought against Shell (and by extension, other oil companies operating in Nigeria) in more advanced countries, which are totally unbending when it comes to gas flaring, the position would have been different. This point is given strength by a case brought against Shell in the United States. This case is known as United States of America v. Shell Offshore INC and Shell Exploration and Production Company. This case was instituted at the United States District Court, in the Western District of Louisiana (particularly, at the Lafayette-Opelousas Division). Both parties arrived at a Stipulated Civil Settlement and Shell admitted to the claims/allegations made against it by the United States of America that, it had engage in Unauthorized flaring and /or venting of natural gas in excess of small volumes (much of which was economically recoverable) at different locations in the country.

The amounts of Gas alleged to be flared by Shell range from Fifty Thousand Cubic Feet per day to about Six Million Cubic Feet a day, between the years 1975 and 1999. Shell acknowledged that it undertook such flaring and venting without first obtaining permission from Appropriate Authority and that it also failed to state accurately the amounts of natural gas flared or vented from its various units 345. Shell also admitted that it failed to accurately and timely calculate and pay royalties on the natural gas flared and/or vented until it was told to do so. Shell, consequently agree to pay the United State of America Forty-Nine Million Dollars ($49,000,000) minus a credit of One Million, Six Hundred Seventy-Eight Thousand, One Hundred Twenty-four Dollars ($1,678,124) for royalties already paid in full final and complete settlement of all possible claims against it, amongst others.

This attitude expressed by Shell in America, is at odds with the way it is presen

tly acting in Nigeria, in quite similar circumstances, Shell admitted to all claims made by the US government and agreement and agreed to pay it the above enormous amount for breaching its laws. Meanwhile, in Nigeria, all claims made by the communities against Shell were vehemently denied. Shell has chosen not to respect the judgment of the Federal High court and has accordingly filed a notice of appeal against it. It is also quite unimaginable that Shell would show the same respect to the Nigerian Government and admit that it has not paid royalties die or that it did not accurately calculate the amounts of gas, which it flared.

Nonetheless, it is a fervent hope every Nigerian must carry, that some day, Shell and other oil Companies operating in the country, will own up to their liabilities and misdeeds, and indeed be genuinely concerned about reducing gas flaring.