Things Fall Apart: The Challenges of Oil Exploration and Pollution

in the Niger Delta Region of Nigeria.1

1 Submitted to the SOAS School of Law, School of Oriental and AfricanStudies, University of London in partial fulfillment for the award ofBachelor of Laws (LLB) degree.

Abstract

Nigeria is Africa’s largest oil exporter and the world’s 10th

largest oil producer, accounting for more than 2 million

barrels a day2. Oil revenues climaxed to $50.3 billion in 2011

and accounted for more than 70 per cent of government

revenues.3 Yet this has not trickled down to its citizens, not

even to the Niger Deltans, the generators of the wealth. Their

plight is a good example of an environmental injustice as

argued by this essay hence the reason this essay made a

deliberate effort to explore these problems by escalating them

to a debatable level. The essay achieved this by first

introducing the readers to Nigeria, looking at the colonial

and post-colonial history of the country, the emergence of its

first mineral laws, the ‘great mandate’ to explore for oil and

its discovery by these early explorers especially Shell D’Arcy

which later became Shell Development Company of Nigeria

Limited (SPDC). Throughout this essay I will use the term

‘Shell’ to refer to the company. This is followed by the study

of the negligent attitude of these explorers towards the

environment and their environmental degradation of the Niger

Delta in their greedy pursuit for profit. Some of these

2 See ‘Energy Information Administration: Country Brief Analysis’ at http://www.eia.doe.gov/emeu/cabs/nigeria/oil.html.3 See ‘The Uncomfortable Truth of Elusive Economic Development: Nigeria’s Century Old Failures and Prospects for a New Nigeria’, a speech delivered on March 6, 2014 as a keynote address by Oby Ezekwesili to the members of All Progressives Congress in Abuja, Nigeria.

degradations tackled by this essay include oil spills, gas

flaring, pipeline explosions, deforestation, land

appropriation as well as health, socio-cultural and economic

problems that followed them. The essay looked at these

problems side by side with the oppositions and uprisings by

the locals to protest these injustices and concluded by

looking at the efforts made so far by the Nigerian government

to ensure that justice is done to all the stakeholders.

Introduction

Oil and Nigeria are synonymous. This is not just because of

the immense wealth it brought to the nation but also because

of the controversial role it continues to play in the

degradation of the Nigerian ecosystem. Since the execution of

Ken Saro-Wiwa in 1995 by the military junta of Sani Abacha,

Nigeria has also become a buzzword amongst the

environmentalists worldwide. The discovery of oil in 1957 was

a giant step for the nation, sadly the immense wealth it

generated so far has not only fuelled conflicts, greed and

destructions but has also completely devastated the beautiful

ecosystem of the Niger Delta. The story and consequences of

this destruction is the central theme of this essay.

Country Profile

Nigeria is a federation of 36 states and a Federal Capital

Territory, Abuja. It is located in West Africa and shares

boundary with the Republic of Benin in the west, Chad and

Cameroon in the east, Niger in the north while the whole of

the south faces the Atlantic Ocean. It was colonised by the

British and became independent in 1960. It has a total area of

923,768 km which is about 356,669 square miles making it the

world's 32nd-largest country. It has a coastline of at least

853 km. In 1914, the present day Nigeria was formed by the

amalgamation of the Northern and Southern Protectorates. The

two main rivers are the Niger and Benue both of which empty

into the Niger Delta, one of the world's largest river deltas

and the location of a large area of Central African Mangroves.

It is in this area that the story of this essay is set.

The Niger Delta

The Niger Delta was once known as the Oil Rivers when it used

to be a major producer of Palm Oil. It began life in 1885 as

the British Oil Rivers Protectorate under the administration

of the Royal Niger Company headed by Sir George Goldie until

it was expanded and renamed the Niger Coast Protectorate in

19004. In today’s Nigeria, the Niger Delta region extends to

about 70,000 km² making up about 7.5% of Nigeria’s landmass.

Some 31 million people from more than 40 ethnic groups call

the region their home.5 This region is the reason Nigeria is a

big producer of petroleum. It is estimated that about 38

billion barrels of crude oil still reside in the region and

since 1975, the region has accounted for more than 75% of

Nigeria's export earnings. In fact, oil and natural gas

4 Richard Dowden ‘Africa: Altered States, Ordinary Miracles’ (Portobello 2008).5 Ibid.

extraction comprise about 97 per cent of Nigeria’s foreign

exchange revenues today.

Sadly, from day one, the Niger Delta was conceived as a

national cake to be exploited and looted. This orgy of

exploitation and looting preceded the discovery of oil in the

region. From the time of Sir George Goldie and his Royal Niger

Company, most of the commercial activities in the region were

designed to profit the colonial masters. No concern or

attention was ever paid to the welfare and plight of the

locals or the devastating impact of these activities on their

environment. When it comes to sustainable development, caution

was simply thrown to the wind. By the time Sir George Goldie

and the Royal Niger Company left the scene, it was an

environmental disaster. But the story did not end there.

Goldie’s successor Sir Fredrick Lord Lugard competed fiercely

to outdo him and his first act was an Act to widen the

exploitation.

First Mineral Acts

Following the creation of the modern day Nigeria in 1914, the

first Governor-General Fredrick Lord Lugard passed the Mineral

Oil Ordinance No.17 of 1914. This would later be amended in

1925, 1950 and 1958 and was specifically passed to regulate

the right to oil exploration in Nigeria. The Act restricted

this right to only British Oil companies thereby favouring the

present day Shell.6 However, some of the early oil companies

6 Jedrzej George Frynas ‘Oil in Nigeria: Conflict and Litigation Between Oil Companies and Village Communities’ (Lit 2000). See also Toyin Falola, ‘The Illusion of

were able to circumvent this Act. For instance, Socony-Vacuum

which later became Mobile Nigeria was allowed to enter Nigeria

in 1955 by first registering in Nigeria and hiring a British

chairman and majority British Board of Directors.7 This

restrictive provision would later be repealed by s2 of the

Mineral Oils (Amendment) Act 1958.

Being a British company Shell was highly favoured by these

legislations and the British colonial government was prepared

to do everything including tampering with the legislation to

favour the company. For instance, in the early 1950’s,

Nigeria’s colonial government with the full authority of the

British Secretary of State for the Colonies agreed to increase

the size of Shell’s Oil Prospecting Licence8 from 500 sq. miles

to 2000 sq. miles. With further assistance, Shell firmly

established its base in the Niger Delta where it would later

discover and drill the first oil wells in Oloibiri town in

December 1957 and would began to export oil in commercial

quantities in 1958.9

By the eve of Nigeria’s independence on October 1, 1960, Shell

has firmly established its root and tentacles in the Niger

Delta region and held the majority of oil licences. This

position allowed Shell to retain a dominant position in

Economic Development’ in Toyin Falola (ed), Britain and Nigeria: Explotation or Development (ZED Books 1987).7 See Frynas, supra note 5.8 Ibid.9 Ike Okonta and Oronto Douglas, ‘When Citizens Revolt: The Nigerian Elites, Big Oil and theOgoni Struggle for Self-Determination’ (Ist edn, Africa World Press, 2008).

Nigeria to date.10 Today, Shell’s venture accounted for an

estimated 39.6% of Nigeria’s total crude oil production

compared with Mobil’s 20%, Chevron’s 17.5%, Agip’s 6.7%, Elf’s

5.0% and Texaco’s 3.1%. Shell’s dominance explains why the

company is at the epicentre of the oil controversy in Nigeria

than other oil companies. In fact, Shell is likely to remain

the dominant player in the Nigerian oil industry given the

company’s recent offshore oil discoveries, particularly the

Bonga oil field whose estimated future production capacity is

350,000 barrels/day.11 It is for this reason that Shell is

picked as a case study of this essay. The rest of the essay

situates in context the devastating impact of Shell and other

oil companies’ activities in the region.

Environmental Problems of the Pollution

The Niger Delta region of Nigeria has a rich but delicate

ecology. It is the largest wetland in Africa comprising of

four ecological zones of coastal barrier islands, mangroves,

freshwater swamp forests and lowland rainforests. The area is

also abundant in freshwater. The locals reside in the rural

areas where most of the onshore activities of the oil

exploration take place. It is on this already stretched

ecosystem that the locals depend for their survival. That

survival is daily threatened by the activities of the oil

companies mentioned at the outset. Flooding has also been a

major problem in the Niger Delta region.12 This has an adverse10 Ibid.11 Ibid.12 For more information on the impact of flooding in the region see World Bank ‘Defining an Environmental Development Strategy for the Niger Delta’ 49. Vol 1.

impact on the environment of the region too and coupled with

other factors could actually make it very difficult to help in

determining the exact impact of the oil activities in the

region. Therefore any fair and impartial analysis of the

impact of oil exploration activities in the region must also

account for this naturally-occurring environmental problem. I

am not aware of any conclusive study on the exact impact of

the oil exploration in the Niger Delta when placed side by

side with the naturally-occurring environmental issues

highlighted above but the available research suggests strongly

that oil exploration is the main cause of the environmental

degradation.13 Below are some of the ways oil explorations

affect the environment of the Niger Delta area.

Oil spills: The amount of oil spills in the Niger Delta region

of Nigeria is alarming. Sadly, an accurate record of an exact

amount of the spill is elusive. The most reliable record is an

estimate and that will do no good here. But suffice it to say

that oil spills occur every day in Nigeria but they are not

reported or when reported at all, they are grossly

underreported. By the estimate of the Nigerian National

Petroleum Corporation (NNPC) about 2300 cubic meters of oil

are spilled in 300 different incidents annually14. However, I

must point out quickly that this estimate may not be reliable13 Osy Ogbodo, ‘The Role of Public Participation in Environmental Decision Process: To What Extent Would an Improvement in the Statutory Provisions Relating to Public Participation In Nigeria’s Environmental Law Lead to Better Protection for the Environment?’ (LL.M thesis, University of Dundee 2009).14 See ‘The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria’s Oil Producing Communities’ (Human Rights Watch, 1999).

since it is based on an estimate supplied by the oil companies

themselves: Nemo iudex in causa sua!

A preferable estimate is from the Department of Petroleum

Resources (DPR). According to DPR, between 1976 and 1996, a

total of 4,835 incidents led to a spillage of about 2,446,322

barrels (102.7 million US gallons), of which an estimated

1,896,930 barrels (79.7 million US gallons; 77 per cent) were

lost to the environment.15 The largest spill to be recorded in

the country was that of an offshore well blowout in January

1980 when an estimated 200,000 barrels of oil (8.4 million US

gallons) spilled into the Atlantic Ocean. This incident caused

by faulty Texaco equipment destroyed about 340 hectares of

Mangroves.16 Faulty equipment is not the only cause of oil

spills in the region. Human acts like sabotage is also a

contributory factor, however a comparative analysis of the

causes of these oil spills suggests that faulty equipment is

more to be blamed than human sabotage. It is estimated that

sabotage only accounted for 2% of these spills while equipment

failure accounted for about 50%.17

According to a local regulation issued by the DPR, oil

companies are responsible for clean-up of the environment

after the spills; however this is not often the case. Even

when they do, the affected lands are not properly remediated.15 Ibid. See also Department of Petroleum Resources Environmental Guidelinesand Standards for the Petroleum Industry in Nigeria, 1991, as amended in 2002.16 Ibid.17 For a full analysis of oil spill incidents in the region see ‘S. A Awobanjo, ‘An Analysis of Oil Spill Incidents in Nigeria: 1976-1980 in The Petroleum Industry and the Nigerian Environment: Processing of an International Seminar Sponsored by the Nigeria National Petroleum Company 60-61 (1981).

For instance, in 1997, a spill caused by faulty Shell

equipment left a vast area of Koko Creek Station in a very

fragile state. What followed was an eyesore. Shell did clean

up the mess but by throwing contaminated soil into a pit.

During the next rainy season, the flood regurgitated the whole

contaminated soil and the buried oil re-surfaced back and

contaminated the local source of water, rivers and farmlands.18

But there is also another problem. This is ‘Formation Water’

or ‘Produced Water’ Pollution. Produced water is a term used

in the oil industry to describe water that is produced as a

by-product along with the oil and gas. Oil and gas reservoirs

often have water as well as hydrocarbons, sometimes in a zone

that lies under the hydrocarbons, and sometimes in the same

zone with the oil and gas. Oil wells sometimes produce large

volumes of water with the oil, while gas wells tend to produce

water in smaller proportion. To achieve maximum oil recovery,

water-flooding is often implemented, in which water is

injected into the reservoirs to help force the oil to the

production wells. The injected water eventually reaches the

production wells, and so in the later stages of water-

flooding, the produced water proportion of the total

production increases.19 Historically, produced water was

disposed of in large evaporation ponds. However, this has

become an increasingly unacceptable disposal method from both

environmental and social perspectives. Produced water is

considered an industrial waste and coal seam gas (CSG)

18 Environmental Rights Action: Shell’s Double Barrel Attack, Environmental Rights Action Field Report No. 12, August 17, 1998.19 EPA [2012], ‘Basic Information about Injection Wells’.

producers are now required to employ beneficial re-uses for

produced water.20 Produced Water Pollution is a major problem

in the Niger Delta21 and one of the least regulated areas too

hence the impunity by which the oil companies flout the

regulations surrounding the issue. Being an industrial waste,

repeated call by environmentalist for the oil companies in the

region to employ beneficial re-uses for produced water has

fallen on deaf ears.

The true cost of the environmental impact of oil spills would

never be known. But, it should be added that such spills in

more advanced parts of the world like the one in the Gulf of

Mexico have shown to have the potential to cause an enormous

amount of damage to the ecosystem. Also, the impact on the

local people cannot be over emphasised. Their source of water,

fish, food, oxygen, energy and other means of sustenance and

livelihood are severely compromised bearing in mind that these

activities take place mainly in rural areas where most of the

inhabitants are subsistence farmers. The implication of this

is anger and further entrenchment of poverty, and social

unrest often as a last resort. Besides, the implication of

water contamination can be dire indeed. It is estimated that

the January 1998 Mobil oil spill in the region led to water

poisoning that killed over 100 people.22

Gas flaring: Gas flaring is another major environmental

problem in the Niger Delta. Presently Nigeria flares more gas

20 EPA [2013], ‘Oil and Gas Extraction Effluent Guidelines’.21 See The Price of Oil, supra note 13, at 63.22 See The Price of Oil, supra note 13, at 66.

than any other country in the world23. Gas flaring is the

process of burning excess gas produced as a result of

underground drilling for oil. It is estimated that about 75

per cent of total gas productions in Nigeria is flared.

Another 95 per cent of the associated gas which is a by-

product of crude oil extraction from reservoirs in which oil

and gas are mixed are also flared.24 The amount of gas flared

in the Niger Delta which would be sufficient to meet the

entire gas need of West Africa forms the largest single source

of greenhouse gas emissions on the planet.25 This is a

monumental tragedy that has wrecked lives and destroyed farms

and the ecosystem in the region. Shell is the greatest

culprit, hence the reason it is today at the centre of payback

from the discontented indigenes of the region.

Just like there is a serious dearth of a comprehensive study

on the effects of oil pollution in the region, there is also a

dearth of data on the environmental impact of gas flaring in

the region. However, from the little evidence we have, the

impact cannot be overemphasised. The impact is not only

localised, it is also nationalised and internationalised as

gas flaring constitute one of the greatest source of the

Greenhouse Gas Emission in the world. This is a major cause of

global warming.26 It is also responsible for acid rain which23 See Ugochukwu Chimeiri ‘Gas Flaring Fuels Desertification in the North’ [2010], 1, BMA, <http:// http://biodiversitymedia.ning.com/profiles/blogs/gas-flaring-fuels> accessed 1 April 2014.24 Obinna Okafor, ‘Environmental Laws and Factors Affecting Them in Nigeria:Case Study of Gas Flaring in Niger Delta (M.Sc. thesis, Wageningen University 2011). 25 Ibid26 Ibid.

destroys metal sheets used widely in the region for roofing

houses. It could also impact on health as it has been observed

to have a correlation with some health issues like asthma,

bronchitis and other respiratory problems. Gas flaring has

also altered the lifestyle of nocturnal animals in the region

who are not able to operate due to constant light provided by

the gas flaring. Some of these nocturnal animals hunted by the

locals are also chased further away from the region by the

lights from these flares.27

Pipeline fires: Although pipeline fires in the Niger Delta are

often as a result of human sabotage, the blame should also go

to the oil companies for their negligence in laying pipelines

in such a shallow and accessible level that the locals are

able to have access and sabotage them. The oil companies are

also negligent to the extent that they often show

lackadaisical attitude towards repairing or replacing tired

and worn-out pipelines. These pipelines would eventually

succumb to the pressure of age and began to leak, attracting

the poor locals who are looking for a way to make easy money.

Any mistake like cooking, smoking, gun fire etc. would trigger

fire and cause a monumental damage to humans, animals and the

ecosystem. There are many instances of this in the region.

Recently, some indigenes of the region tried scooping leaking

petroleum products from a ruptured pipeline. A fire was

accidentally ignited roasting about 1200 of them to death.

This incident occurred on October 15, 1998 in Jesse. Those

27 See Rufus Idris, ‘Impacts of Oil Spillage and Gas Flaring on the Population and Distribution of Birds in Niger Delta Region of Nigeria’ available at http://www.africanbirdsclub.org.

lucky to survive were severely injured and disfigured for

life. Sadly, the leak had earlier been reported to the NNPC

but nothing was done about it.28

Deforestation: Deforestation is a major environmental problem

associated with oil exploration especially if that exploration

occurs onshore which it does most of the times in the Niger

Delta. During the process of oil exploration and production a

considerable amount of both arable land and protected forests

are cleared and lost forever.29 This occurs when the lands and

forests are cleared for seismic surveys and laying of oil

pipelines. Sadly, sustainable development is not often

considered and never an option if considered. It is estimated

that about one per cent of the mangrove forests in River

State, one of the states in the Niger Delta region have been

permanently lost due to Shell negligence.30 It is also

important to note that deforestation for seismic purposes

leads to soil erosion. In fact, soil erosion is one of the

major environmental problems in the Niger Delta.

Land Deprivation: There is also a related issue of land

deprivation in the region. This problem is also blamed on

Nigerian land law which contributed in worsening the

situation. The Land Use Decree 1978 transplanted into the 1999

28 See Doifie Ola and David Eighemhenrio, ‘Wasting Lives: Official Negligence Results in Grave Tragedy, Report for the Environmental Rights Action on the Jesse Disaster in Idjerhe Clan in Urhobo’ availbale online at http://www.waado.org/Environment/IdjerheFire/idjerhe_ERA_Ola.html.29 Seismic survey is a cost effective way of exploration for oil compared todrilling but the downside of this is the amount of flora and fauna lost to it. In fact, it will take something in the region of 30 years for a mangrove forest to recover from a seismic deforestation.30 See Ogbodo, supra note 12.

Constitution of Nigeria gave the Federal Government of Nigeria

the full ownership and rights to all the land in Nigeria. This

of course includes the Niger Delta and to complicate the

situation, compensation for land taken over by the government

is based on the value of the crops on the land at the time of

acquisition and not on the value of the land itself! By this

power, the Government of Nigeria was able to acquire virtually

all the lands in the Niger Delta and sold them to the oil

companies. With the means of livelihood of these people taken

away from them and no compensation coming their way, poverty

sets in and idleness becomes a way of life. When they ask for

reparation and compensation they get sudden visit from

soldiers to deal ruthlessly with the ‘trouble makers’.31

Health problems: In addition to the obvious impact of the oil

exploration in the Niger Delta, there are also other impacts

that are not very obvious to human eyes, yet have a

devastating impact on the life of the locals. We have already

talked about water poisoning, but there is also a related

problem of food poisoning. One of the negative impacts of gas

flaring is the production of acid rain. These would eventually

settle on food crops and pose a serious danger when harvested

and consumed. This would need a little more explanation. When

acid rain contaminates water source, farm products or even

washing water, it leads to many health and environmental

issues. Contaminated water is sipped into the soil to deposit

excessive acid in the soil. This would later compromise the

31 Oluwatoyin Frederick Idowu ‘Niger Delta Crisis: Implication for Society and Organisational Effectiveness’ [2012] BJASS 7.

quality of the soil and impact negatively on food harvest.

This could lead to crop failure, reduction in food quality or

introduce carcinogenic substances into the food cycle. If it

contaminates washing water, it could also affect clothes and

lead to various skin problems including dermatitis. In fact,

gas faring could introduce harmful toxins into the atmosphere.

This would be recycled into the oxygen cycle and eventually

lead to contamination of the oxygen which in turn could cause

diseases such as lung cancer, lung damage and even blood

diseases like leukaemia.32

Due to serious dearth or suppression of facts, I was not able

to come across a comprehensive data on the health impact of

the oil exploration activities in the Niger Delta, but one

thing is obvious, diseases and sicknesses occurring in the

region are consistent with ones acknowledged by experts as the

effect of oil exploration activities on humans.33 These effects

are also consistent with ailments found elsewhere in the world

where oil exploration takes place. Some of these ailments

include nausea, headaches and skin irritations. It is also

accepted by experts that fumes from gas flaring could

aggravate asthma and other respiratory problems.

In terms of the socio-cultural and economic impact of the oil

activities, the lives of the inhabitants of the region have

been completely altered and devastated. The communities in the

region are closely-knitted one. Due to compulsory and forced

32 See Ogbodo, supra note 12.33 A deeper analysis of this was done by R. Edwards and I. Whyte in their joint paper ‘The Sea Empress Oil Spill: Environmental Impact and Recovery’.It can be accessed online at http://www.itopf.com/seaemp.pdf.

land acquisition by the Nigerian Government and seismic

activities by the oil companies, these closely-knitted

communities have been displaced and forced to abandon their

homelands and what binds them together. In the process, they

have lost everything; their culture, their foods, their

language, their brotherhood, their gods, their ancestors, dead

ones and loved ones and in fact everything including the hope

they are clinging to.34 This is a tragedy that could only be

understood if described poetically in the words of W. B Yeats

in his poem ‘The Second Coming’;

Turning and turning in the widening gyre

The falcon cannot hear the falconer;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.35

What happened and still happening is a clear example of

environmental injustice, nonchalant attitude towards

sustainable development and a complete lack of respect for the

future generations and that hurts. The oil activities

completely destroyed their traditional way of living, their

means of livelihood and sustenance. As if that is not enough,

the communities have in the last 50 years witnessed a

population explosion they are not used to due to oil money34 See Ogbodo, supra note 12.35 The poem can be accessed online.

attracting migration from other parts of the country. This

population explosion has a direct effect on inflation in the

region. As one writer puts it: ‘this influx of people into

the region has escalated inflation due to the high

availability of disposable income. This thereby creates more

economic hardship for the majority of local inhabitants who

are not employed by the oil companies’.36

This situation has led to anger on the parts of the locals

culminating in their taking the law into their hands by taking

up arms against the oil companies in order to resolve the

situation themselves: Do It Yourself! It was in this context

that a guerrilla group known as the Movement for the Survival

of Ogoni People (MOSOP) was born. I will give MOSOP its own

subheading but before then I must point out that opposition

and uprising against oil exploration activities in the region

actually began right from the day oil was discovered in the

region. I had already pointed out that profit and never

sustainable development was and is still the overriding

interest of the oil companies in the Niger Delta. Due to its

colonial privileges, these oil companies especially Shell,

Mobil, Chevron and Agip resorted to wanton exploitation of the

people and their environment, destroying forests, farmlands,

and constructing oil pipelines without any regard to the

wellbeing and safety of the locals’ rights to life, privacy

and the enjoyment of their environment. It was against this

background that the first uprising in the region was triggered

in the early 1965 when the trio of Isaac Boro, Sam Owonaru and

36 See Ogbodo, supra note 12

Nottingham Dick founded the WXYZ to deal with the injustice

and ‘their continued atrocities to our people and their wicked

reluctance to improve the lot of the people they were bound to

be associated with for long’.37 The trio demanded in strong

terms that the oil companies pay adequate compensation to the

locals in respect of ‘inadequate damages paid to natives for

cash crops and economic trees destroyed during operation’.38

The trio headed by Isaac Boro would later take it further in

February 1966 when they declared an independent Niger Delta

Republic and a state of emergency in the region suspending all

oil contracts between the Nigerian State and oil companies in

the region and ordering the companies to renegotiate with the

new Republic.39 Unfortunately, the new republic did not last

long. The Nigerian army, using pontoon boats provided by

Shell, wasted no time in crushing the rebellion. This event

would later repeat itself again when the Ogonis under the

MOSOP took up arms against Shell.

The emergence of MOSOP and others

Until Shell finally ceased operating in Ogoni in 1993, there

had always been protests against its activities by the Ogoni

people. These protests were led by various groups but the most

prominent was the Movement for the Survival of Ogoni People

(MOSOP). MOSOP was responsible for the protest at Bomu where

37 Karl Maier, ‘This House has Fallen: Midnight in Nigeria’ (BBS Public Affairs 2000).38 Ibid.39 Akpobio Onduka, ‘Environmental Conflicts: The Case of The Niger Delta’ [2001] <http:// http://.waado.org/nigerdelta/essays/resourcecontrol/Onduku.html> accessed 1April 2014.

Ogoni villagers protested against pipeline construction by

Shell which prompted the withdrawal of the sub-contractor firm

Willbros in April 1993.40 This protest was crucial in sparking

off numerous other anti-oil protests in various parts of the

region and the defining moment is rooted in the ‘Ogoni Bill of

Rights’ of October 1990 that helped popularise the demands and

plight of the Niger Delta people.41

In the Bill, the Ogonis asserted their rights to self-

determination, environmental, social and economic justice. The

oil question was very prominent in the Bill while several

other points dealt with the exploration of oil, the

distribution of the revenue it generated and the poverty and

neglect of Ogonis. The Ogoni people’s frustration was brought

home by the following words from the Bill: “In over 30 years

of oil mining, the Ogoni…has provided the Nigerian nation with

a total revenue estimated at over…thirty billion dollars. That

in return for the above contribution, the Ogoni people have

received nothing”.42 The creation of MOSOP followed shortly

after this and became the main organ voicing the demands

articulated in the Bill of Rights.

In July 1992 Ken Saro-Wiwa, as the MOSOP spokesperson

addressed the United Nations Working Group on Indigenous40 This event was described in a report for Shell in Nigeria prepared by Shell’s sub-contractor Willbros. More can be read at ‘Review of Events Leading to the Withdrawal of Workforce from the Bomu Area’ Willbros West Africa Inc. for Shell Petroleum Development Company Nigeria, 3 May 1993.41 The ‘Ogoni Bill of Rights’ is not a legal document, just a series of demands presented to the oil companies operating in Ogoni land. The Bill was signed by the Ogoni Elders and Traditional Rulers and can be accessed at < http:// http://www.mosop.org/ogoni_bill_of_rights.html>.42 Ibid.

Populations on the plight of Ogonis and the following

December, MOSOP issued a ‘demand notice’ to Shell, the

Nigerian National Petroleum Corporation and Chevron, giving

them 30 days ultimatum to respond to a list of demands that

included payment of compensation for the damage to their

environment.43 These companies did not respond. This irked

MOSOP and as a result they were declared ‘persona non grata’

during an unprecedented mass protest in Ogoni on 4 January

1993. Shell wisely suspected tension and quickly withdrew its

entire staff from Ogoni. The Ogoni people would later shut

down Shell facilities and engage in series of mass protests

that were met with state violence ‘paid for’ by the oil giants

especially Shell. As a punishment, the Military Government of

Nigeria militarised the entire Ogoni land and arrested Ken

Saro-Wiwa.44 He alongside 8 of his colleagues were later tried

by the Justice Ibrahim Auta Military Tribunal, constituted by

the military dictatorship of General Sanni Abacha and hanged

on November 10, 1995.45 There are strong indications that the

oil companies supported this brutal repression. For instance,

Chevron equipment, such as helicopters and boats, was

reportedly used in attacks on anti-oil protesters in 1998 and

1999.46

43 The Committee for the Defence of Human Rights Lagos, Nigeria published a report titled ‘Ken Saro-Wiwa and the Crises of the Nigerian State’ with an extensive and in-depth analysis of this issue. 44 Joshua Cooper, ‘The Ogoni Struggle for Human Rights and a Civil Society in Nigeria’ in Stephen Zunes, Sarah Beth Asher and Lester Kurtz (eds), Nonviolent Social Movements: A Geographical Perspective (Wiley-Blackwell, 1999).45 See ‘Ken Saro-Wiwa: Not Entirely Innocent’. This is well researched article about events leading to the hanging of Saro-Wiwa. It was published in South African Mail and Guardian Newspaper. The online version could be accessed at http://www.rchive.mg.co.za/NXT/gateway.dll?.46 Energy Information Administration, supra note 1.

Oil exploitation in Ogoni land remains suspended because the

Ogoni people are unyielding in their opposition to the re-

entry of Shell in their communities.47 They demanded justice as

a condition for Shell’s return and the family of the executed

Ken Saro-Wiwa in particular are not relenting in this quest

for justice. Series of litigations, in fact over 30048 of them

have been initiated in this quest for justice culminating in

the famous Wiwa v Shell brought in a US court under the Alien

Tort Act.49 The co-operation between the oil companies and the

military dictatorship was an issue that the Ogonis felt

strongly about and it formed the major part of the

litigation.50

Wiwa v Shell

The Saro-Wiwa family in their quest for justice tried

severally to bring their case to Nigerian court but were

unsuccessfully. It was eventually brought before a US Court

under the Alien Tort Act. The plaintiff’s case was that Shell

acted in concert with the Nigerian government to violate the

rights of the Ogoni people and that of Saro-Wiwa family. The

47 Ibid.48 Apart from Wiwa v Shell, another important victory for the Wiwa family and the Ogoni people is the celebrated ‘The Social and Economic Rights Action Centre and the Centre for Economic and Social Rights v Nigeria [2001]. In this case the African Commission on Human Rights found against the Nigerian Military Government for the violation for the Right to Health of the people as protected by the Article 16 of the African Charter on Human Rights. The Court also found the Government guilty of not protecting the Ogonis from exploitation from despoliation of their natural resources as mandated by Article 21 and acting in connivance with Shell to destroy their crops and to deprive them of their land and by implication denying them the right to decent accommodation and housing.49 See Frynas, supra note 5.50 Xiuli Han, ‘The Wiwa Cases’ (2010) 9 Chinese J. Int’l L433.

alleged violations include torture, cruel, inhuman and

degrading treatment, summary execution, arbitrary arrest and

detention, and crimes against humanity. This case met with

stumbling blocks initially but on 3 June 2009, the US Court of

Appeals for the Second Circuit in New York overturned the

District Court's decision to dismiss Wiwa v. Shell. However,

before the formal proceedings could commence, an out of court

settlement was reached. Shell agreed to settle the matter with

the sum of $15.5 million. This settlement prevented the trial

and shaming of Shell for its alleged involvement in

environmental and human rights violations in the Niger Delta.

The Alien Tort Claims Act (ATCA), originally enacted as part

of the Judiciary Act of 1789, grants original jurisdiction to

United States federal courts over any civil action brought by

an alien for a tort committed in violation of international

law. Only those tortious acts committed in violation of either

the law of nations or a treaty of the United States, such as

state-sponsored torture, are subject to the ATCA.51

The Wiwa settlement has been described as a significant

victory for the Ogoni people and environmentalists. Not

everyone agrees!52 The cost of the litigation and prospect of

negative publicity from the trial (regardless of the verdict)

probably played a role in the defendants’ willingness to51 Ibid.52 For instance, Sokari Ekine and Firoze Manji in their 2009 article titled ‘The Ogoni-Shell Settlement: Victory but Justice Deferred’ argued that the amount will never be enough to right the right done by Shell in Ogoni land.Their argument can be accessed at < http:// http://pambazuka.org/en/category/features/56914>. Accessed 1 April 2014.

settle on the eve of trial. Documents purportedly linking

company officials to the Nigerian government no doubt added to

this concern, and to the likelihood that the defendants would

lose.53 However, it is pertinent that I add that the settlement

did not require the defendants to admit any wrong-doing. About

$4.5 million dollars of the pay-out went to a trust to benefit

the Ogoni people, helping defendants portray the settlement as

a humanitarian gesture rather than an implicit acknowledgement

of fault.54

Nigeria’s Legal Willingness to Reverse the Trend

There is no dearth of environmental legislations in Nigeria to

curb the menace of oil pollution in the Niger Delta. In fact

they are like multitude but what is lacking is the political

will to make these legislations to bite. Corruption is also a

huge obstacle. Due to the nature of this essay, I will

concentrate on just few that are relevant to the topic under

discussion but then I must quickly point out that Nigeria has

not always been a haven for environmental laws. Prior to 1988,

one could only count few environmental laws in the country but

an incident in 1988 changed all that.55 This sudden interest

arose as a result of an illegal dumping of toxic wastes by an

Italian company in the port town of Koko in the Niger Delta.

Following this, the Federal Government of Nigeria enacted a

framework legislation paving way for a comprehensive system of

53 See Han, supra note 49.54 Ibid.55 This incident led to the promulgation of the Federal Government Environmental Protection Agency Act 1988. It would later be amended as Decree No.59 of 1992 and Decree No.14 of 1999.

environmental management in the country and for the first time

Nigeria developed overnight an environmental charter catering

for everything including provisions on regulatory

institutions, pollution control, liability for environmental

crimes as well as a mechanism for the enforcement of all

these. These frameworks were followed shortly by a National

Policy on the Environment, the Harmful Wastes (Special

Criminal Provisions) Act and the Environmental Impact

Assessment Decree of 1992.

Before going further, let me quickly point out that even

though I mentioned earlier that Nigeria has over 100

environmental laws today, I will however concentrate on

handful emanating from the Federal tier since Nigeria is a

federation with three tiers of government.56 The reason for

this is because the 1999 Constitution of the Federal Republic

of Nigeria gave exclusive legislative competence over ‘mines

and minerals, including oil fields, oil mining, geological

surveys and natural gas’ to the Federal government.

The 1999 Constitution: The 1999 Constitution of the Federal

Republic of Nigeria is the suprema lex in Nigeria and any other

law inconsistent with its provisions is null and void.57 It

entrusted the office of the custodian of Nigerian ecosystem on

the Federal Government. Section 20 under the Fundamental

Objectives and Directive principles of State Policy

specifically stated that: “The State shall protect and improve

56 Ss 2 and 3 of the Constitution of the Federal Republic of Nigeria elaborated more on these three tiers of government. 57 Constitution of the Federal Republic of Nigeria 1999, s20.

the environment and safeguard the water, air and land, forest

and wild life of Nigeria.” Section 12 established that

international treaties including environmental treaties

ratified by the National Assembly should be implemented as law

in Nigeria while ss33 and 34 guarantee the rights to life and

human dignity.58 I had earlier pointed out that the same

constitution placed matters relating to ‘mines and minerals,

including oil fields, oil mining, geological surveys and

natural gas’ in the Exclusive List where only the Federal

Government enjoys exclusive jurisdiction. The Nigerian

Government therefore has a constitutional mandate to safeguard

and protect the environment of Nigeria. Similarly, the African

Charter on Human and Peoples’ Right which has been adopted by

Nigeria as part of its law mandated in Article 24 that: “All

people shall have the right to a satisfactory environment

favourable to their development”. I had also earlier mentioned

the National Policy on the Environment which is the main

policy document of Nigeria on environment with a

constitutional backing.

Federal Environmental Protection Agency Act 1988: This is a

very important document as it is the national framework on

environmental management in Nigeria. This Act created the

Federal Environmental Protection Agency (FEPA), which is today

the Federal Ministry of Environment. The Ministry is charged

with the responsibility of protecting and managing the

Nigerian ecosystem and is also empowered by the Act to

establish, or make recommendations to the President of58 Ibid. See also Emmanuel Okon, ‘The Environmental Perspective in the 1999 Nigeria Constitution’ [2003] 5 Environmental Law Review 256.

Nigeria, for the enactment of national guidelines and

standards for water quality, air quality and atmospheric

protection, noise pollution control and other environmental

issues. S20 of the Act prohibits the discharge of hazardous

substances into the air, land and waters of Nigeria and the

Ministry has since responded with the National Management of

Solid and Hazardous Wastes Regulations.

The Environmental Impact Assessment Act 2004: This Act is

remarkable because it introduced public participation in

Environmental decision-making in Nigeria. It is therefore

Aarhus compliant and by implication the first of its kind in

Nigeria to give Nigerians the right of participation in

environmental decision-making process. It was enacted as a

response to the complaints that locals especially the oil-

producing indigenes are not often involved in the decision

making processes that affects their future and environment.

The Act specifically noted that one of its main objectives is

‘to encourage the development of procedures for information

exchange, notification and consultation between organs and

persons when proposed activities are likely to have

significant environmental effects on boundary or trans-state

or on the environment of bordering towns and villages’.

The Environmental Impact Assessment Act is particularly

directed at the regulation of the industrialization process

with due regard to the environment. Its main objective is to

ensure prior consideration of the environmental effects of

projects or activities likely to cause significant impact on

the environment before they are executed. S2 (1) of the Act

specifically demanded that ‘the public or private sector of

the economy shall not undertake or embark or authorise

projects or activities without prior consideration, at an

early stages, of their environmental effects’ while s2 (4)

requires an application in writing to the Ministry before

embarking on projects so that their impact on environment

would be determined. S13 outlines projects that are

compulsorily subject to Environmental Impact Assessment while

s60 created a legal liability for contravention of the

provision.

Petroleum Acts 2004: This is the main law that regulates the

exploration and production of petroleum resources in Nigeria.

Section 9 of the Act empowers the Minister to make regulations

for the oil industry including its environmental impacts and

to make regulations on their operations for the prevention of

air and water pollution. In compliance with this, the Ministry

has since come up with the following: Petroleum (Drilling and

Production) Regulations which prohibits the pollution of

inland waters, rivers, water courses, the territorial waters

of Nigeria or the high seas by oil, mud and other substances

which can cause harm or destruction to fresh water or marine

life. Section 17 (1) (b) of this regulation places

restrictions on licensees from using land within fifty yards

of any building, dam, reservoir or public road while ss23 and

27 prohibits, without lawful permission, the cutting down of

trees in forest reserves. This was followed shortly by the

Mineral Oils (Safety) Regulations of which s7 provided for

“good oil field practice” within the oil industry. The

Petroleum Refining Regulations requires the oil companies to

take precautionary measures to prevent pollution on the

environment and to promptly stop such in case of any

occurrence even as it mandated the companies to dispose of

refinery effluent and drainage water in a manner that conforms

to good refining practices.

Oil Pipeline Act 1990: This Act prohibits the construction,

maintenance or operation of an oil pipeline except by an oil

pipeline permit holder. S11 (5) of the Act created a civil

liability on the person who owns or is in charge of an oil

pipeline. He would be liable to pay compensation to anyone who

suffers physical or economic injury as a result of a broken or

leaking pipeline within his domain while s17 (4) establishes

that grant of licenses are subject to regulations concerning

public safety and prevention of land and water pollution. Ss19

and 20 read in conjunction with s11 provides for compensation

to persons whose rights have been affected by environmental

damage through the activities of the permit holder.

Associated Gas Re-Injection Act 2004: This Act deals with gas

flaring problem in the Niger Delta and its main objective is

to compel every company producing oil and gas in Nigeria to

submit preliminary programmes for gas re-injection and

detailed plans for implementation of gas re-injection. S3 (1)

of the Act prohibits, without lawful permission, any oil and

gas company from flaring gas in Nigeria while s4 outlines the

penalty for its violation.

Oil in Navigable Waters Act 2004: This Act is concerned with

the discharging of oil from ships on the high sea and rivers.

S1 (1) prohibits the discharge of oil from a ship into

Nigerian territorial waters or shorelines. S3 made it an

offence for a ship master, occupier of land, or operator of

apparatus for transferring oil to discharge oil into Nigerian

Waters. It also mandated ship owners to install anti-pollution

equipment in their ships. S6 punishes the violation with Two

thousand Naira fine while S7 mandated that the records of

occasions of oil discharge must be maintained by the ship

captain or owners.

Niger Delta Development Commission Act 2004: This Act made a

provision for the use of allocated funds to build

infrastructures, provide scholarship, clean up, develop and

tackle ecological problems in the Niger Delta. S7 (1) (b)

empowers the Commission to plan and to implement projects for

the sustainable development of the region even as it tasked it

to focus on transportation, health, agriculture, fisheries,

urban and housing development, etc. The Act also mandated the

Commission to liaise with the oil and gas companies and other

stakeholders to tackle the problem of spillages, gas flaring

and other related forms of environmental pollution associated

with oil exploration.

Criminal Code Act 1990: Also the Nigerian Criminal Code Act

contains provision meant to deter perpetrators from using

noxious substances to pollute the land, air or sea. S245-248

is of particular interest: ‘Any person who corrupts or fouls

the water of any spring, stream, well, tank, reservoir, or

place, so as to render it less fit for the purpose for which

it is ordinarily used, is guilty of a misdemeanour, and is

liable to imprisonment for six months’.

Conclusion

At this juncture, it is safe to conclude that the eyesore in

the Niger Delta is a manmade one orchestrated by years of

neglect by the Nigerian Government and lackadaisical attitude

of the oil companies towards the region. Part of the problem

boils down to corruption, lack of political will and effective

mechanism to regulate the oil sector. As a result, anarchy

descended, entrenched its position and things began to fall

apart. Today, the situation could only be described as the

survival of the fittest where the anthem for the brave ones is

‘dog eat dog’. Hostage taking, pipeline vandalization and

illegal refineries are now some of the ways the locals have

responded to the situation. Lives have been lost, communities

like Odi razed, oil companies declared ‘persona non grata’

even as productivity and morale are reduced to the barest

minimum amongst the oil workers. Every actor is completely

exhausted in this drama. Even the earnings of both the oil

companies and the Nigerian Government have been reduced and

yet the solution is still very far from sight.59

Against this backdrop, the oil companies should be apportioned

with a huge percentage of the blame for all these mess. For

over fifty years they have behaved irresponsibly and shown no

regard to the concept of Corporate Social Responsibility and

59 See Frynas, supra note 5.

Sustainable Development. They simply threw caution to the wind

and were not farsighted enough to know that every day is for a

thief but one day is for the owner of the house. It has been a

free ride for them and today they are dancing to the tune of

the drum they orchestrated. They stirred up the hornet’s nest

and literally played into the hands of the militants and other

disgruntled elements in the region. These elements are today

claiming to be fighting for the interest of the region.60 How

far this claim goes in the direction of the truth is beyond

the scope of this essay, but one thing is certainly obvious;

when it comes to Niger Delta, the words of Yeats’ echoes

loudly;

Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world.

60 See Frynas, supra note 5.

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