Annual Survey of International & Comparative Law Volume 15 | Issue 1 Article 2 2009 Environmental Protection in Nigeria: Two Decades After the Koko Incident Dr. S. Gozie Ogbodo Follow this and additional works at: http://digitalcommons.law.ggu.edu/annlsurvey Part of the Environmental Law Commons Recommended Citation Ogbodo, Dr. S. Gozie (2009) "Environmental Protection in Nigeria: Two Decades After the Koko Incident," Annual Survey of International & Comparative Law: Vol. 15: Iss. 1, Article 2. Available at: http://digitalcommons.law.ggu.edu/annlsurvey/vol15/iss1/2 This Article is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Annual Survey of International & Comparative Law by an authorized administrator of GGU Law Digital Commons. For more information, please contact [email protected]. Ogbodo: Two Decades After the Koko Incident ENVIRONMENTAL PROTECTION IN NIGERIA: TWO DECADES AFTER THE KOKO INCIDENT DR. S. GOZIE OGBODO* I. INTRODUCTION Prior to June 1988, Nigeria responded to most environmental problems on an ad hoc basis.l Although the Nigerian Criminal Code2 contained some provlSlons in the with respect to certain environmental infringements, such as the pollution of water sources, the burial of corpses within a hundred yards of residential home, and the sale, possession or manufacture of matches with white phosphorus,3 the code lacked any concrete national legislation dealing specifically with the ever-increasing pollution caused specifically by hazardous waste.4 Environmental legislative provisions in existence at the time were enacted in direct response to problems associated with the newly industrializing economy and the discovery and processing of oil.s * S. Gozie Ogbodo, LL. B (Hons), LL M. (U.S.A), S. 1. D (U.S.A) B.L., Lecturer, Faculty of Law, University of Benin, Benin City, Nigeria. Formerly, Adjunct Professor, Golden Gate University, San Francisco, California. Email: [email protected]. I. lkharia1e, M. ''The Koko Incident, the Environment and the Law", in The Law and the Environment in Nigeria, Shyllon, F., ed. (lbadan, Vintage Publishers, 1989), pp. 73-75. 2. Cap 77 Laws of the Federation of Nigeria, 1990. See Atsegbua, L, et ai., Environmental Law in Nigeria: Theory and Practice, Ababa Press 2004, 4. 3. Nigeria Criminal Code, sections pp. 245 - 248. 4. Ola, C. S., Town and Country Planning and Environmental Laws in Nigeria, 2nd ed. (lbadan, University Press, 1984), p. 165, cited in Atsegbua, L, et ai, supra, p 5. 5. Ibid, p. 56: Such environmental laws included the Oil in Navigable Waters Act 1968, Oil in Navigable Waters Regulation 1968, Petroleum Act 1969, Petroleum (Drilling and Production) Regulation 1969, Petroleum Drilling and Production (Amendment) Regulation 1973, Petroleum Refining Regulation 1974, the Oil Pipeline Act 1956, the Factories Act. Published by GGU Law Digital Commons, 2009 1 2 AnnualANNUAL Survey of International SURVEY & OF Comparative INT'L Law,& COMPo Vol. 15 [2009], LAW Iss. 1, Art.[Vol. 2 XV The discovery of toxic waste dumped in Koko, at remote part of southern Nigeria, in June 1988, and the attendant media and public outcry prompted the government to react swiftly. Through diplomatic channels, the Nigerian government succeeded in getting the Italian government and the Italian company·that was the culprit to lift the toxic waste out of the country. The Nigerian government followed this action by organizing an international workshop6 on the environment. The result was the formulation of a national policy on the environment.7 Consequently, the Federal Environmental Protection Agency 1988 (FEPA) was created and charged with the administration and enforcement of the environmental law.8 In addition, the government enacted the Harmful Waste (Special Criminal Provisions) Act, 1988, to deal specifically with illegal dumping of harmful waste.9 This article appraises the post-Koko environmental protection laws in Nigeria, with a view to assessing environmental protection mechanisms in the country. In particular, the focus is on hazardous waste!O protection under the current dispensation. Part II will examine the relevant conceptual/definitional issues. Part III will review the existing legal regimes in the country, including applicable national, regional, and international laws, as well as the common!! and case laws12 applicable in the country. Part IV will review the enforcement agencies and provisions and enforcement challenges. Part V will proffer recommendations in light of recent developments in the field of environmental law . II. CONCEPTUAL/DEFINITIONAL ISSUES In the aftermath of the 1988 Koko incident, Nigeria developed a comprehensive national policy on the environment. Prior to this incident, environmental legislation was covered under unrelated laws on distinct 6. The Nigerian government in collaboration with the United Nations Environmental Program (UNEP) organized the workshop from September 12 - 16, 1988. See also Aina, E. D. A and Adedipe, N. O. ed., the Making of the Nigeria Environmental Policy (Ibadan, University Press, 1991), p. 311, cited in Atsegbua, L, et af., supra, p. 57. 7. Ibid., p. 7. 8. Ibid., p. 8. See also the Federal Environmental Protection Act, 1988. It is noteworthy that the FEPA Act has been repealed by the National Environmental Standards and Regulations Enforcement Agency (Establishment) Act, 2007. 9. Ibid., p. 8. 10. Hazardous Waste is the class of waste that is dangerous to treat, keep or dispose of. It is intrinsically dangerous to human life swallowed, inhaled or if it contacts the skin. II. These are sources derivable from the law of torts, specifically; actions in negligence, actions in nuisance, actions in trespass and strict liability. 12. These are sources derivable from the interpretative functions of the court . http://digitalcommons.law.ggu.edu/annlsurvey/vol15/iss1/2 2 2009] TWOOgbodo: DECADES Two Decades AFfER After THEthe Koko KOKO Incident INCIDENT 3 topics, for example, "wild animals," "sanitation," "National Parks," and "domestic personal hygiene."'3 A. DEFINITION OF ENVIRONMENT The term "Environment" has been given different definitions. Black's Law Dictionary'4 defines it as: "the totality of physical, economic, cultural, aesthetic, and, social circumstances and factors which surround and affect the desirability and value of property and which also affect the quality of peoples' lives." The English Dictionary'S defines the word as "the conditions under which any person or thing lives or is developed; the subtotal (I think it says sum-total) of influences which modify and determine the development of life or character." Under one Nigerian law,'6 environment is defined as "the components of the earth," and includes: (a) land, water and air, including all layers of the atmosphere, (b) all organic and inorganic matter and living organisms and, (c) the interacting natural systems that include components referred to in paragraphs (a) and (b). The first two definitions cover broad concept of "environment." In that respect, they embrace "everything within and around man that may have effect on or be affected by man; in other words, human environment as contrasted with physical environment."I7 This more expansive concept of environment is synonymous with the human environment.'s The definition under Nigerian law covers a narrower concept of "environment." This concept restricts the meaning "to the physical or natural environment, comprising God given natural resources, natural elements and natural environment whether or not modified by man."19 13. Atsegbua, L. et aI., note 2, supra. See also Ajai, 0 Law, Judiciary and the Environment in Nigeria, Perspectives in Law and Justice, Umezuilke I. A. and Nweze, C. C. ed. (Fourth Dimension Publishers), p. 240. 14. 61h edition, cited in Atsegbua, L. et al., supra. IS. Cited in Ajai, 0, supra. 16. Environmental Impact Assessment Decree of Nigeria No. 86 of 1992. 17. Ajai, 0., Law, Judiciary and the Environment in Nigeria, supra. 18. Ibid. 19. Ibid. Published by GGU Law Digital Commons, 2009 3 4 AnnualANNUAL Survey of InternationalSURVEY & OF Comparative INT'L Law,& COMPo Vol. 15 [2009], LAW Iss. 1, [Vol.Art. 2 XV This narrower concept of environment is, therefore, synonymous with the physical or natural environment.2o B. ENVIRONMENTAL LAW The concept of environmental law refers to the integrated rules and principles; i.e., legal norms, the purpose of which is to achieve environmental conservation.21 Under Nigerian law, environmental law includes all the sources of Nigerian law that impact the environment. As a federation, there are numerous sources of environmental law including the Constitution,22 International treaties, state laws, local government laws, and common law. These sources shall be more closely examined in Part III. C. ENVIRONMENTAL PROTECTION The chief beneficiary of environmental law is mankind since the law is designed to "improve mankind's living conditions."23 Generally speaking, mankind benefits because environmental protection aims to saving mankind from itself. Unless legal checks and balances are imposed on mankind's present activities, future generations may unduly suffer for present generation's reckless environmentally damaging activity. Another goal of environmental protection is anchored on the principle that the "polluter pays."24 Under this principle, the polluter must be held liable for the consequences of his actions. This principle involves holding the polluter liable for compensatory