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SUMMARY OF FACTS
1. The communication alleges that the military government of Nigeria has
been directly involved in oil production through the state oil company, the
Nigerian National Petroleum Company (NNPC), the majority shareholder in a
consortium with Shell Petroleum Development Corporation (SPDC), and that
these operations have caused environmental degradation and health problems
resulting from the contamination of the environment among the Ogoni people.
2. The communication alleges that the oil consortium has exploited oil
reserves in Ogoniland with no regard for the health or environment of the
local communities, disposing toxic wastes into the environment and local
waterways in violation of applicable international environmental standards.
The consortium also neglected and/or failed to maintain its facilities
causing numerous avoidable spills in the proximity of villages. The
resulting contamination of water, soil and air has had serious short- and
long-term health impacts, including skin infections, gastrointestinal and
respiratory ailments, increased risk of cancers, and neurological and
reproductive problems.
3. The communication alleges that the Nigerian government has condoned and
facilitated these violations by placing the legal and military powers of the
state at the disposal of the oil companies. The communication contains a
memo from the Rivers State Internal Security Task Force, calling for 'ruthless
military operations'.
4. The communication alleges that the government has neither monitored the
operations of the oil companies nor required safety measures that are
standard procedure within the industry. The government has withheld from the
Ogoni communities information on the dangers created by oil activities.
Ogoni communities have not been involved in the decisions affecting the
development of Ogoniland.
5. The government has not required oil companies or its own agencies to
produce basic health and environmental impact studies regarding hazardous
operations and materials relating to oil production, despite the obvious
health and environmental crisis in Ogoniland. The government has even
refused to permit scientists and environmental organisations from entering
Ogoniland to undertake such studies. The government has also ignored the
concerns of Ogoni communities regarding oil development, and has responded
to protests with massive violence and executions of Ogoni leaders.
6. The communication alleges that the Nigerian government does not require
oil companies to consult communities before beginning operations, even if
the operations pose direct threats to community or individual lands.
7. The communication alleges that in the course of the last three years,
Nigerian security forces have attacked, burned and destroyed several Ogoni
villages and homes under the pretext of dislodging officials and supporters
of the Movement of the Survival of Ogoni People (MOSOP). These attacks have
come in response to MOSOP's non-violent campaign in opposition to the
destruction of their environment by oil companies. Some of the attacks have
involved uniformed combined forces of the police, the army, the air force,
and the navy, armed with armoured tanks and other sophisticated weapons. In
other instances, the attacks have been conducted by unidentified gunmen,
mostly at night. The military-
1. type methods and the calibre of weapons used in such attacks strongly
suggest the involvement of the Nigerian security forces. The complete
failure of the government of Nigeria to investigate these attacks, let alone
punish the perpetrators, further implicates the Nigerian authorities.
8. The Nigerian army has admitted its role in the ruthless operations which
have left thousands of villagers homeless. The admission is recorded in
several memos exchanged between officials of the SPDC and the Rivers State
Internal Security Task Force, which has devoted itself to the suppression of
the Ogoni campaign. One such memo calls for 'ruthless military operations'
and 'wasting operations coupled with psychological tactics of displacement'.
At a public meeting recorded on video, Major Okuntimo, head of the Task
Force, described the repeated invasion of Ogoni villages by his troops, how
unarmed villagers running from the troops were shot from behind, and the
homes of suspected MOSOP activists were ransacked and destroyed. He stated
his commitment to rid the communities of members and supporters of MOSOP.
9. The communication alleges that the Nigerian government has destroyed and
threatened Ogoni food sources through a variety of means. The government has
participated in irresponsible oil development that has poisoned much of the
soil and water upon which Ogoni farming and fishing depended. In their raids
on villages, Nigerian security forces have destroyed crops and killed farm
animals. The security forces have created a state of terror and insecurity
that has made it impossible for many Ogoni villagers to return to their
fields and animals. The destruction of farm lands, rivers, crops and animals
has created malnutrition and starvation among certain Ogoni communities.
THE COMPLAINT
10. The communication alleges violations of articles 2, 4,14,16,18(1), 21
and 24 of the African Charter.
PROCEDURE
11. The communication was received by the Commission on 14 March 1996. The
documents were sent with a video.
12. On 13 August 1996 letters acknowledging receipt of the communication
were sent to both complainants.
13. On 13 August 1996, a copy of the communication was sent to the
government of Nigeria.
14. At the 20th ordinary session held in Grand Bay, Mauritius, in October
1996, the Commission declared the communication admissible, and decided that
it would be taken up with the relevant authorities by the planned mission to
Nigeria.
15. On 10 December 1996, the Secretariat sent a note verbale and letters to
this effect to the government and the complainants respectively.
16. At its 21st ordinary session held in April 1997, the Commission
postponed taking a decision on the merits to the next session, pending the
receipt of written submissions from the complainants to assist it in its
decision. The Commission also awaits further analysis of its report of the
mission to Nigeria.
17. On 22 May 1997, the complainants were informed of the Commission's
decision, while the state was informed on 28 May 1997.
18. At the 22nd ordinary session, the Commission postponed taking a decision
on the case pending the discussion of the Nigerian mission report.
19. At the 23rd ordinary session held in Banjul, The Gambia, the Commission
postponed consideration of the case to the next session owing to lack of
time.
20. On 25 June 1998, the Secretariat of the Commission sent letters to all
parties concerned informing them of the status of the communication.
21. At the 24th ordinary session, the Commission postponed consideration of
the above communication to the next session.
22. On 26 November 1998, the parties were informed of the Commission's
decision.
23. At the 25th ordinary session of the Commission held in Bujumbura,
Burundi, the Commission further postponed consideration of this
communication to the 26th ordinary session.
24. The above decision was conveyed through separate letters of 11 May 1999
to the parties.
25. At its 26th ordinary session held in Kigali, Rwanda, the Commission
deferred taking a decision on the merits of the case to the next session.
26. This decision was communicated to the parties on 24 January 2000.
27. Following the request of the Nigerian authorities through a note verbale
of 16 February 2000 on the status of pending communications, the Secretariat,
among other things, informed the government that this communication was set
down for a decision on the merits at the next session.
28. At the 27th ordinary session of the Commission, held in Algeria from 27
April to 11 May 2000, the Commission deferred further consideration of the
case to the 28th ordinary session.
29. The above decision was communicated to the parties on 12 July 2000.
30. At the 28th ordinary session of the Commission held in Cotonou, Benin,
from 26 October to 6 November 2000, the Commission deferred further
consideration of the case to the next session. During that session, the
respondent state submitted a note verbale describing the actions taken by
the government of the Federal Republic of Nigeria in respect of all the
communications filed against it, including the present one. In respect of
the instant communication, the note verbale admitted the gravamen of the
complaints but went on to describe the remedial measures being taken by the
new civilian administration. They included:
Establishing, for the first time in the history of Nigeria, a Federal
Ministry of Environment with adequate resources to address
environment-related issues prevalent in Nigeria and as a matter of priority
in the Niger delta area
Enacting into law the establishment of the Niger Delta Development
Commission (NDDC) with adequate funding to address the environmental and
social problems of the Niger delta area and other oil producing areas of
Nigeria
Inaugurating the Judicial Commission of Inquiry to investigate the issues
of human rights violations. In addition, the representatives of the Ogoni
people have submitted petitions to the Commission of Inquiry on these issues
and these are presently being reviewed in Nigeria as a top priority.
31. The above decision was communicated to the parties on 14 November 2000.
32. At the 29th ordinary session held in Tripoli, Libya, from 23 April to 7
May 2001, the Commission decided to defer the final consideration of the
case to the next session to be held in Banjul, The Gambia, in October 2001.
33. The above decision was communicated to the parties on 6 June 2001.
34. At its 30th session held in Banjul, The Gambia, from 13 to 27 October
2001, the African Commission reached a decision on the merits of this
communication.
LAW ADMISSIBILITY
35. Article 56 of the African Charter governs admissibility. All of the
conditions of this article are met by the present communication. Only the
exhaustion of local remedies requires close scrutiny.
36. Article 56(5) requires that local remedies, if any, be exhausted, unless
these are unduly prolonged.
37. One purpose of the exhaustion of local remedies requirement is to give
the domestic courts an opportunity to decide upon cases before they are
brought to an international forum, thus avoiding contradictory judgments of
law at the national and international levels. Where a right is not covered
by domestic law, it is unlikely that the case will be heard. Thus the
potential of conflict does not arise. Likewise, if the right is not
acknowledged, there cannot be effective remedial action or any remedial
action at all.
38. Another rationale for the exhaustion requirement is that a government
should be notified of a human rights violation in order to have the
opportunity to remedy such violation before being called to account by an
international tribunal. (See the Commission's decision on communications
25/89, 47/90, 56/91 and 100/93 [Free Legal Assitance Group and Others v
Zaire (2000) AHRLR 74 (ACHPR 1995)]). The exhaustion of domestic remedies
requirement should be properly understood to ensure that the state concerned
has ample opportunity to remedy the situation pertaining to the applicant's
complaint. It is unnecessary here to recount the international attention
that Ogoniland has received as proof that the Nigerian government has had
ample notice and, over the past several decades, more than sufficient
opportunity to rectify the situation.
39. Requiring the exhaustion of local remedies also ensures that the African
Commission does not become a tribunal of first instance for cases for which
an effective domestic remedy exists.
40. The present communication does not contain any information on domestic
court actions brought by the complainants to halt the violations alleged.
However, on numerous occasions the Commission brought the complaint to the
attention of the government at the time, but no response was made to the
Commission's requests. In such cases the Commission has held that in the
absence of a substantive response from the respondent state it must decide
on the facts provided by the complainants and treat them as given. (See
communications 25/89, 47/90, 56/91, 100/93 [Free Legal Assistance Croup and
Others v Zaire (2000) AHRLR 74 (ACHPR 1995)], 60/91 Constitutional Right
Project (in respect of Akamu) v Nigeria [(2000) AHRLR 180 (ACHPR 1995)] and
communication 101/93 Civil Liberties Organisation v Nigeria [(2000) AHRLR
186 (ACHPR 1995)]).
41. The Commission takes cognisance of the fact that the Federal Republic of
Nigeria has incorporated the African Charter on Human and Peoples' Rights
into its domestic law with the result that all the rights contained therein
can be invoked in Nigerian courts including those violations alleged by the
complainants. However, the Commission is aware that at the time of
submitting this communication, the then military government of Nigeria had
enacted various decrees ousting the jurisdiction of the courts and thus
depriving the people in Nigeria of the right to seek redress in the courts
for acts of government that violate their fundamental human rights[FN1]. In
such instances, and as in the instant communication, the Commission is of
the view that no adequate domestic remedies are existent
--------------------------------------------------------------------------------
[FN1] See The Constitution (Suspension and Modification) Decree 1993.
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42. It should also be noted that the new government in their note verbale
referenced 127/2000 submitted at the 28th session of the Commission held in
Cotonou, Benin, admitted to the violations committed then by stating, there
is no denying the fact that a lot of atrocities were and are still being
committed by the oil companies in Ogoni Land and indeed in the Niger Delta
area.
The Commission therefore declared the communication admissible.
MERITS
43. The present communication alleges a concerted violation of a wide range
of rights guaranteed under the African Charter for Human and Peoples' Rights.
Before we venture into the inquiry whether the government of Nigeria has
violated the said rights as alleged in the complaint, it would be proper to
establish what is generally expected of governments under the Charter and
more specifically vis-a-vis the rights themselves.
44. Internationally accepted ideas of the various obligations engendered by
human rights indicate that all rights both civil and political rights and
social and economic generate at least four levels of duties for a state
that undertakes to adhere to a rights regime, namely the duty to respect,
protect, promote and fulfill these rights. These obligations universally
apply to all rights and entail a combination of negative and positive duties.
As a human rights instrument, the African Charter is not alien to these
concepts and the order in which they are dealt with here is chosen as a
matter of convenience and should in no way imply the priority accorded to
them. Each level of obligation is equally relevant to the rights in question.
[FN2]
--------------------------------------------------------------------------------
[FN2] See generally, Asbjorn Eide 'Economic, Social and Cultural Rights As
Human Rights' in Asbjorn Eide, Catarina Krause and Allan Rosas (eds),
Economic, Social, and Cultural Rights: A Textbook (1995) 21 -40.
--------------------------------------------------------------------------------
45. Firstly, the obligation to respect entails that the state should refrain
from interfering in the enjoyment of all fundamental rights; it should
respect right-holders, their freedoms, autonomy, resources, and liberty of
their action. [FN3] With respect to socio-economic rights, this means that
the state is obliged to respect the free use of resources owned or at the
disposal of the individual alone or in any form of association with others,
including the household or the family, for the purpose of rights-related
needs. And with regard to a collective group, the resources belonging to it
should be respected, as it has to use the same resources to satisfy its
needs.
--------------------------------------------------------------------------------
[FN3] Krysztof Drzewicki 'Internationalization of Human Rights and their
Juridization' in Raija Hanski and Markku Suksi (eds), An Introduction to the
International Protection of Human Rights: A Textbook (1999) 31.
--------------------------------------------------------------------------------
46. Secondly, the state is obliged to protect right-holders against other
subjects by legislation and provision of effective remedies.[FN4] This
obligation requires the state to take measures to protect beneficiaries of
the protected rights against political, economic and social interferences.
Protection generally entails the creation and maintenance of an atmosphere
or framework by an effective interplay of laws and regulations so that
individuals will be able to freely realise their rights and freedoms. This
corresponds to a large degree with the third obligation of the state to
promote the enjoyment of all human rights. The state should make sure that
individuals are able to exercise their rights and freedoms, for example, by
promoting tolerance, raising awareness, and even building infrastructures.
--------------------------------------------------------------------------------
[FN4[ Drzewicki, ibid.
--------------------------------------------------------------------------------
47. The last obligation requires the state to fulfill the rights and
freedoms it freely undertook under the various human rights regimes. It is
more of a positive expectation on the part of the state to move its
machinery towards the actual realisation of the rights. This also
corresponds to a large degree with the duty to promote mentioned in the
preceding paragraph. It could comprise the direct provision of basic needs
such as food or resources that can be used for food (direct food aid or
social security).[FN5]
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[FN5] See Eide, in Eide, Krause and Rosas, op cit 38.
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48. Thus states are generally burdened with the above set of duties when
they commit themselves under human rights instruments. Emphasising the
all-embracing nature of the obligations, the International Covenant on
Economic, Social and Cultural Rights, for instance, under article 2(1),
stipulates explicitly that states 'undertake to take steps ... by all
appropriate means, including particularly the adoption of legislative
measures'. Depending on the type of rights under consideration, the level of
emphasis in the application of these duties varies. Sometimes the need
meaningfully to enjoy some of the rights demands a concerted action from the
state in terms of more than one of the said duties. Whether the government
of Nigeria has, by its conduct, violated the provisions of the African
Charter as claimed by the complainants is examined below.
49. In accordance with articles 60 and 61 of the African Charter, this
communication is examined in the light of the provisions of the African
Charter and the relevant international and regional human rights instruments
and principles. The Commission thanks the two human rights NGOs which
brought the matter under its purview: the Social and Economic Rights Action
Centre (Nigeria) and the Centre for Economic and Social Rights (USA). This
is a demonstration of the usefulness to the Commission and individuals of
actio popularis, which is wisely allowed under the African Charter. It is a
matter of regret that the only written response from the government of
Nigeria is an admission of the gravity of the complaints which is contained
in a note verbale and which we have reproduced above at paragraph 30. In the
circumstances, the Commission is compelled to proceed with the examination
of the matter on the basis of the uncon-tested allegations of the
complainants, which are consequently accepted by the Commission.
50. The complainants allege that the Nigerian government violated the right
to health and the right to a clean environment as recognised under articles
16 and 24 of the African Charter by failing to fulfil the minimum duties
required by these rights. This, the complainants allege, the government has
done by:
Directly participating in the contamination of air, water and soil and
thereby harming the health of the Ogoni population
Failing to protect the Ogoni population from the harm caused by the NNPC
Shell Consortium but instead using its security forces to facilitate the
damage
Failing to provide or permit studies of potential or actual environmental
and health risks caused by the oil operations, article 16 of the African
Charter reads:
Every individual shall have the right to enjoy the best attainable state of
physical and mental health. (2) States parties to the present Charter shall
take the necessary measures to protect the health of their people and to
ensure that they receive medical attention when they are sick.
Article 24 of the African Charter reads: 'All peoples shall have the right
to a general satisfactory environment favourable to their development.'
51. These rights recognise the importance of a clean and safe environment
that is closely linked to economic and social rights in so far as the
environment affects the quality of life and safety of the individual.[FN6]
As has been rightly observed by Alexander Kiss:
An environment degraded by pollution and defaced by the destruction of all
beauty and variety is as contrary to satisfactory living conditions and the
development of personality as the breakdown of the fundamental ecologic
equilibria is harmful to physical and moral health.[FN7]
--------------------------------------------------------------------------------
[FN6] See also General Comment no 14 (2000) of the Committee on Economic,
Social and Cultural Rights.
[FN7] Alexander Kiss 'Concept and Possible Implications of the Right to
Environment' in Kathleen E Mahoney and Paul Mahoney (eds), Human Rights in
the Twenty-first Century: A Clobal Challenge, 553.
--------------------------------------------------------------------------------
52. The right to a general satisfactory environment, as guaranteed under
article 24 of the African Charter or the right to a healthy environment, as
it is widely known, therefore imposes clear obligations upon a government.
It requires the state to take reasonable and other measures to prevent
pollution and ecological degradation, to promote conservation, and to secure
an ecologically sustainable development and use of natural resources.
Article 12 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR), to which Nigeria is a party, requires governments to take
necessary steps for the improvement of all aspects of environmental and
industrial hygiene. The right to enjoy the best attainable state of physical
and mental health enunciated in article 16(1) of the African Charter and the
right to a generally satisfactory environment favourable to development (article
[24]) already noted, obligate governments to desist from directly
threatening the health and environment of their citizens. The state is under
an obligation to respect these rights and this largely entails
non-interventionist conduct from the state; for example, to desist from
carrying out, sponsoring or tolerating any practice, policy or legal
measures violating the integrity of the individual.[FN8]
--------------------------------------------------------------------------------
[FN8] See Scott Leckie 'The Right to Housing' in Economic, Social and
Cultural Rights, Eide, Krause and Rosas (eds), Martinus Nijhoff Publishers
(1995).
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53. Government compliance with the spirit of articles 16 and 24 of the
African Charter must also include ordering or at least permitting
independent scientific monitoring of threatened environments, requiring and
publicising environmental and social impact studies prior to any major
industrial development, undertaking appropriate monitoring and providing
information to those communities exposed to hazardous materials and
activities and providing meaningful opportunities for individuals to be
heard and to participate in the development decisions affecting their
communities.
54. We now examine the conduct of the government of Nigeria in relation to
articles 16 and 24 of the African Charter. Undoubtedly and admittedly, the
government of Nigeria, through NNPC has the right to produce oil, the income
from which will be used to fulfil the economic and social rights of
Nigerians. However, the care that should have been taken as outlined in the
preceding paragraph and which would have protected the rights of the victims
of the violations complained of was not taken. To exacerbate the situation,
the security forces of the government engaged in conduct in violation of the
rights of the Ogonis by attacking, burning and destroying several Ogoni
villages and homes.
55. The complainants also allege a violation of article 21 of the African
Charter by the government of Nigeria. The complainants allege that the
military government of Nigeria was involved in oil production and thus did
not monitor or regulate the operations of the oil companies and in so doing
paved the way for the oil consortiums to exploit oil reserves in Ogoniland.
Furthermore, in all their dealings with the oil consortiums, the government
did not involve the Ogoni communities in the decisions that affected the
development of Ogoniland. The destructive and selfish role played by oil
development in Ogoniland, along with repressive tactics of the Nigerian
government, and the lack of material benefits accruing to the local
population,[FN9] may well be said to constitute a violation of article 21.
Article 21 provides:
All peoples shall freely dispose of their wealth and natural resources. This
right shall be exercised in the exclusive interest of the people. In no case
shall a people be deprived of it. 2. In case of spoliation the dispossessed
people shall have the right to the lawful recovery of its property as well
as to an adequate compensation. 3. The free disposal of wealth and natural
resources shall be exercised without prejudice to the obligation of
promoting international economic cooperation based on mutual respect,
equitable exchange and the principles of international law. 4. States
parties to the present Charter shall individually and collectively exercise
the right to free disposal of their wealth and natural resources with a view
to strengthening African unity and solidarity. 5. States parties to the
present Charter shall undertake to eliminate all forms of foreign economic
exploitation particularly that practised by international monopolies so as
to enable their peoples to fully benefit from the advantages derived from
their national resources.
--------------------------------------------------------------------------------
[FN9] See a report by the Industry and Energy Operations Division West
Central Africa Department Defining an Environmental Development Strategy for
the Niger Delta Volume 1 - paragraph Β (1.6 - 1.7) at page 2-3.
--------------------------------------------------------------------------------
56. The origin of this provision may be traced to colonialism, during which
the human and material resources of Africa were largely exploited for the
benefit of outside powers, creating tragedy for Africans themselves,
depriving them of their birthright and alienating them from the land. The
aftermath of colonial exploitation has left Africa's precious resources and
people still vulnerable to foreign misappropriation. The drafters of the
Charter obviously wanted to remind African governments of the continent's
painful legacy and restore cooperative economic development to its
traditional place at the heart of African society.
57. Governments have a duty to protect their citizens, not only through
appropriate legislation and effective enforcement, but also by protecting
them from damaging acts that may be perpetrated by private parties (see
Commission Nationale des Droits de I'Homme et des Liberties v Chad) [FN10]
This duty calls for positive action on the part of governments in fulfilling
their obligation under human rights instruments. The practice before other
tribunals also enhances this requirement as is evidenced in the case
Velasquez Rodriguez v Honduras [FN11]. In this landmark judgment, the
Inter-American Court of Human Rights held that when a state allows private
persons or groups to act freely and with impunity to the detriment of the
rights recognised, it would be in clear violation of its obligations to
protect the human rights of its citizens. Similarly, this obligation of the
state is further emphasised in the practice of the European Court of Human
Rights, in X and Y v Netherlands.[FN12] In that case, the Court pronounced
that there was an obligation on authorities to take steps to make sure that
the enjoyment of the rights is not interfered with by any other private
person.
--------------------------------------------------------------------------------
[FN10] Communication 74/92.
[FN11] See Inter-American Court of Human Rights, Velasquez Rodrigeuz case,
judgment of 19 July
1988, Series C, no 4.
[FN 12] 91 ECHR (1985) (Ser A) at 32.
--------------------------------------------------------------------------------
58. The Commission notes that in the present case, despite its obligation to
protect persons against interferences in the enjoyment of their rights, the
government of Nigeria facilitated the destruction of the Ogoniland. Contrary
to its Charter obligations and despite such internationally established
principles, the Nigerian government has given the green light to private
actors, and the oil companies in particular, to devastatingly affect the
well-being of the Ogonis. By any measure of standards, its practice falls
short of the minimum conduct expected of governments, and therefore, is in
violation of article 21 of the African Charter.
59. The complainants also assert that the military government of Nigeria
massively and systematically violated the right to adequate housing of
members of the Ogoni community under article 14 and implicitly recognised by
articles 16 and 18(1) of the African Charter. Article 14 of the Charter
reads:
The right to property shall be guaranteed. It may only be encroached upon in
the interest of public need or in the general interest of the community and
in accordance with the provisions of appropriate laws.
Article 18(1) provides: The family shall be the natural unit and basis of
society. It shall be protected by the state ...
60. Although the right to housing or shelter is not explicitly provided for
under the African Charter, the corollary of the combination of the
provisions protecting the right to enjoy the best attainable state of mental
and physical health, cited under article 16 above, the right to property,
and the protection accorded to the family forbids the wanton destruction of
shelter because when housing is destroyed, property, health and family life
are adversely affected. It is thus noted that the combined effect of
articles 14, 16 and 18(1) reads into the Charter a right to shelter or
housing which the Nigerian government has apparently violated.
61. At a very minimum, the right to shelter obliges the Nigerian government
not to destroy the housing of its citizens and not to obstruct efforts by
individuals or communities to rebuild lost homes. The state's obligation to
respect housing rights requires it, and thereby all of its organs and agents,
to abstain from carrying out, sponsoring or tolerating any practice, policy
or legal measure violating the integrity of the individual or infringing
upon his or her freedom to use those material or other resources available
to him or her in a way he or she finds most appropriate to satisfy
individual, family, household or community housing needs.[FN13] Its
obligations to protect obliges it to prevent the violation of any
individual's right to housing by any other individual or non-state actors
like landlords, property developers, and landowners, and where such
infringements occur, it should act to preclude further deprivations as well
as guaranteeing access to legal remedies.[FN14] The right to shelter even
goes further than a roof over one's head. It extends to embody the
individual's right to be left alone and to live in peace - whether under a
roof or not.
--------------------------------------------------------------------------------
[FN13] Scott Leckie 'The Right to Housing' in Eide, Krause and Rosas, op at,
107-123, at 113.
[FN14] /b/cM13-114.
--------------------------------------------------------------------------------
62. The protection of the rights guaranteed in articles 14, 16 and 18(1)
leads to the same conclusion. As regards the earlier right, and in the case
of the Ogoni people, the government of Nigeria has failed to fulfil these
two minimum obligations. The government has destroyed Ogoni houses and
villages and then, through its security forces, obstructed, harassed, beaten
and, in some cases, shot and killed innocent citizens who have attempted to
return to rebuild their ruined homes. These actions constitute massive
violations of the right to shelter, in violation of articles 14, 16, and
18(1) of the African Charter.
63. The particular violation by the Nigerian government of the right to
adequate housing as implicitly protected in the Charter also encompasses the
right to protection against forced evictions. The African Commission draws
inspiration from the definition of the term 'forced evictions' by the
Committee on Economic, Social and Cultural Rights which defines this term as
'the permanent removal against their will of individuals, families and/or
communities from the homes and/or which they occupy, without the provision
of, and access to, appropriate forms of legal or other protection'[FN15].
Wherever and whenever they occur, forced evictions are extremely traumatic.
They cause physical, psychological and emotional distress; they entail
losses of means of economic sustenance and increase impoverishment. They can
also cause physical injury and in some cases sporadic deaths. Evictions
break up families and increase existing levels of home-lessness.[FN16] In
this regard, General Comment no 4 (1991) of the Committee on Economic,
Social and Cultural Rights on the right to adequate housing states that'...
all persons should possess a degree of security of tenure which guarantees
legal protection against forced eviction, harassment and other threats.' (E/1992/23,
annex III, paragraph 8(a)). The conduct of the Nigerian government clearly
demonstrates a violation of this right enjoyed by the Ogonis as a collective
right.
--------------------------------------------------------------------------------
[FN15] See General Comment No 7 (1997) on the right to adequate housing (article
11(1)): Forced Evictions.
[FN16] /b/d p 113.
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64. The communication argues that the right to food is implicit in the
African Charter, in such provisions as the right to life (article 4), the
right to health (article 16) and the right to economic, social and cultural
development (article 22). By its violation of these rights, the Nigerian
government disregarded not only the explicitly protected rights but also
upon the right to food implicitly guaranteed.
65. The right to food is inseparably linked to the dignity of human beings
and is therefore essential for the enjoyment and fulfilment of such other
rights as health, education, work and political participation. The African
Charter and international law require and bind Nigeria to protect and
improve existing food sources and to ensure access to adequate food for all
citizens. Without touching on the duty to improve food production and to
guarantee access, the minimum core of the right to food requires that the
Nigerian government should not destroy or contaminate food sources. It
should not allow private parties to destroy or contaminate food sources, and
prevent peoples' efforts to feed themselves.
66. The government's treatment of the Ogonis has violated all three minimum
duties of the right to food. The government has destroyed food sources
through its security forces and state oil company; has allowed private oil
companies to destroy food sources; and, through terror, has created
significant obstacles to Ogoni communities trying to feed themselves. The
Nigerian government has again fallen short of what is expected of it as
under the provisions of the African Charter and international human rights
standards, and hence, is in violation of the right to food of the Ogonis.
67. The complainants also allege that the Nigerian government has violated
article 4 of the Charter which guarantees the inviolability of human beings
and everyone's right to life and that the integrity of the person will be
respected. Given the widespread violations perpetrated by the government of
Nigeria and private actors (be it with its blessing or not), the most
fundamental of all human rights, the right to life has been violated. The
security forces were given the green light to deal decisively with the
Ogonis, which was illustrated by the widespread terrorisations and killings.
The pollution and environmental degradation to a level humanly unacceptable
has made living in Ogoniland a nightmare. The survival of the Ogonis
depended on their land and farms that were destroyed by the direct
involvement of the government. These and similar atrocities not only
persecuted individuals in Ogoniland but also the Ogoni community as a whole.
They affected the life of the whole of the Ogoni society. The Commission
conducted a mission to Nigeria from 7 - 14 March 1997 and witnessed
firsthand the deplorable situation in Ogoniland including the environmental
degradation.
68. The uniqueness of the African situation and the special qualities of the
African Charter on Human and Peoples' Rights imposes upon the African
Commission an important task. International law and human rights must be
responsive to African circumstances. Clearly, collective rights,
environmental rights, and economic and social rights are essential elements
of human rights in Africa. The African Commission will apply any of the
diverse rights contained in the African Charter. It welcomes this
opportunity to make clear that there is no right in the African Charter that
cannot be made effective. As indicated in the preceding paragraphs, however,
the Nigerian government did not live up to the minimum expectations of the
African Charter.
69. The Commission does not wish to fault governments that are labouring
under difficult circumstances to improve the lives of their people. The
situation of the people of Ogoniland, however, requires, in the view of the
Commission, a reconsideration of the government's attitude to the
allegations contained in the instant communication. The intervention of
multinational corporations may be a potentially positive force for
development if the state and the people concerned are ever mindful of the
common good and the sacred rights of individuals and communities. The
Commission however takes note of the efforts of the present civilian
administration to redress the atrocities that were committed by the previous
military administration as illustrated in the note verbale referred to in
paragraph 30 of this decision.
FOR THE ABOVE REASONS, THE COMMISSION
Finds the Federal Republic of Nigeria in violation of Articles 2, 4, 14, 16,
18(1), 21 and 24 of the African Charter on Human and Peoples' Rights;
Appeals to the government of the Federal Republic of Nigeria to ensure
protection of the environment, health and livelihood of the people of
Ogoniland by:
Stopping all attacks on Ogoni communities and leaders by the Rivers State
Internal Securiies Task Force and perming citizens and ndependent
investigators free access to the territory; - Conducting an nvestigation
into the human rights violations described above and prosecung officials of
the security forces, NNPC and relevant agencies nvolved in human rights
violations;
Ensuring adequate compensation to victims of the human rights violations,
including relief and resettlement assistance to victims of government
sponsored raids, and undertaking a comprehensive cleanup of lands and rivers
damaged by oil operations;
Ensuring that appropriate environmental and social impact assessments are
prepared for any future oil development and that the safe operation of any
further oil development is guaranteed through effective and independent
oversight bodies for the petroleum industry; and
Providing nformation on health and environmental risks and meaningful
access to regulatory and decision-making bodies to communites likely to be
affected by oil operations.
Urges the government of the Federal Republic of Nigeria to keep the African
Commission informed of the outcome of the work of:
The Federal Ministry of Environment which was established to address
environmental and environment related issues prevalent in Nigeria, and as a
matter of priority, in the Niger Delta area including the Ogoni land;
The Niger Delta Development Commission (NDDC) enacted into law to address
the environmental and other social related problems in the Niger Delta area
and other oil producing areas of Nigeria; and
The Judicial Commission of Inquiry inaugurated to investigate the issues
of human rights violations.
Done at the 30th Ordinary Session, held in Banjul, The Gambia from 13th to
27th October 2001. |
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