Abstract
Environmental laws and regulations must be enacted for sustainability and improvement of Nigerian environment. This paper analyzes and articulates the impact of environmental governance in Nigeria and the reasons for making environmental offences criminal in nature. It also focuses on the effectiveness of criminalizing environmental offences in Nigeria and the challenges it has faced such as the over creation of environmental agency, duplication of functions, conflicts of authority, jurisdiction and so much more. It also reviewed the koko toxic waste of 1988 which brought about the formation of Nigeria environmental laws today and in turn made environmental offences criminal. The writer also took a step forward by looking into the Harmful waste act of 1988 and analyzing few of its provisions. With all these explained, it is the conclusion of the writer that there is need for urgent focus on making environmental offences criminal in other to comply with the provisions of the respective statutes and make the society a much better place to live.
INTRODUCTION
It is of utmost importance to start by defining the term Environment and Crime in its simplest form.
WHAT IS AN ENVIRONMENT?
The term environment has never been confined to a particular definition, as legal definitions of the environment reflect scientific categorization and groupings as well as political acts that incorporate cultural and economic considerations. While a basic scientific approach to the definition of the environment sees an environment into the atmosphere, atmospheric deposition, soils and sediments, water quality, biology and humans, it is transformed by political processes into legal definitions found in treaties and other legal instruments.[2]A working definition would be that an environment “is the components of the earth consisting of land, water and air including all layers of the atmosphere, all organic and inorganic matter and living organism, the built environment and the interacting natural systems.
Now, Environmental law is the regulation of human activities affecting the physical and biological environment, “a set of rules for managing the interface between humans and …the larger ecological systems within which human social and economic systems are nested[3]. It is concerned, with impacts on the natural environment and then on the human health effects resulting from such impacts. As a result of its impact on human health arose the concept of environmental crime.
CRIME
Crime can be classified into two main groups namely crime mala in se and crimes mala prohibita. While the former embraces act that are immoral or wrong in themselves such as murder, burglary, rape. The latter embraces things prohibited by statue as infringing on the right of others thou no moral turpitude may attach.Crimes mala prohibita constitute only crimes that are prohibited by statutes and as such does environmental crime falls into.[4]
The basis of environmental crime in Nigeria can be found in her constitution;[5] section 20[6], which provided that the State is empowered to protect and improve the environment and safeguard the water, air and land, forest and wildlife of Nigeria. In addition to this, section 2 of the Environmental Impact Assessment Act[7] provides that the public or private sector of the economy shall not undertake or embark on or authorize projects or activities without prior consideration of the effect on the environment.
Now the Federal Government of Nigeria has promulgated various laws and Regulations to safeguard the Nigerian environment. These include:
- National Environmental Protection (Effluent Limitation) Regulations:
- National Environmental Protection (Pollution Abatement in Industries and Facilities Generating Wastes) Regulations; and
- National Environmental Protection (Management of Solid and Hazardous Wastes) Regulations.
- Environmental Impact Assessment Act of 1992 (EIA Act).
- Harmful Wastes (Special Criminal Provisions etc.) Act of 1988 (Harmful Wastes Act).
The Federal Ministry of Environment (FME) administers and enforces environmental laws in Nigeria[8]. It took over this function in 1999 from the Federal Environmental Protection Agency (FEPA), which was created under the FEPA Act. FEPA was later absorbed and its functions taken over by the FME in 1999.
The EIA Act was promulgated principally to enable the prior consideration of environmental impact assessment of public or private projects. Any person planning a project/activity which may have an impact on the environment is statutorily required to prepare an EIA Report, and the Report must set out the potential impact of the activity on the environment and plans for preventing/mitigating the same, as well as clean up plans. All such Reports must be approved by the FME. Attached to the EIA Act is a schedule of activities and industries for which environmental impact assessments are mandatory. These include Agriculture, Airport, Drainage and Irrigation, Land Reclamation, Fisheries, Forestry, Housing, Industry, Infrastructure, Ports, Mining, Petroleum, Power Generation and Transmission, Quarries, Railways, Transportation, Resort and Recreational Development, Waste Treatment and Disposal, and Water Supply.
Any person who fails to comply with the provisions of the EIA Act commits an offence and is liable on conviction[9], in the case of an individual, to a fine or to a term of imprisonment for up to five years; and fines are also imposed on guilty firms or corporations.
Furthermore, the FEPA Act[10] empowers the FME to require the production for examination of any license or permit granted to any person, to enter and search any land or building, and to arrest any person whom they have reason to believe has violated any environmental regulation.
The approach of regulatory agencies is the prevention of environmental damages, the regulation of potentially harmful activities and the punishment of willful harmful damage whenever this occurs. The environmental agencies also adopt the approach of engaging individuals and communities at risk of potential environmental damage in dialogue. The EIA approval process adopted by the FME involves a system of public hearings during the EIA evaluation process and interested members of the public are invited to such hearings.
Correspondingly, the“Koko Toxic Waste Dump[11]” which allowed Nigeria to have a nationally unified law/national policies and programme on the Environment which eventually led to the promulgation of the two basic Decrees which are the Harmful Waste (Special Criminal Provisions, etc.) Act[12]and The Environmental impact assessment,[13]criminalizes activities involving the sale, purchase, transportation, importation, deposit, or storage of harmful waste, either singly or in conjunction with others on Nigeria’s soil, air, or sea.
Subsequently, the Handful Waste(special criminal provisions etc.) Act was enacted with the purpose of preventing future occurrence of the koko toxic waste 1988 incident. It has 16 sections and it prohibited activities relating to harmful waste which any personal or corporate body carries or deposit with any lawful authority would be held liable for.[14] The act went forward to criminalize any person either personal or corporate who is a party to the existence of such harmful waste either by counseling or procuring the commission of such harmful waste will be deemed to have committed such offence[15].
Section 4 and [16]5 provided for instances where the facts constituting the crime actually committed are a probable consequence of a rendered counsel. It also prohibits anyone who aids in the escape of any guilty person. The act provides in section 6 a life imprisonment punishment or fine for persons found guilty of section 1-5 and 7 of this act[17].
Section 7 looks at the act of corporate body that is to be held liable. The act provides that whoever is in the knowledge of such crime either the director, managing director or secretary or any person acting in their position is liable as well as the corporate body itself.
The rest part of the act goes to discuss the miscellaneous part of the act such as Exclusion of immunity, power to search and arrest, civil liability and as much as Jurisdiction.
Jurisprudentially, the South African court, has recently applied and enforced criminal sanctions to environmental crimes in the case of State vs Blue Platinum Ventures and Maponya.[18]This is a landmark case that will be distilled in order to synthesize how the court considered and applied the law where both perpetrators were held criminally liable.The judgement in this case stresses the seriousness of law-makers and the government in protecting the environment from constant harm and degradation especially by individuals and companies.
THE EFFECTIVENESS OF CRIMINALIZING ENVIRONMENTAL OFFENCES IN NIGERIA.
The whole essence of criminalizing environmental offences has been owed largely to the devastating effects environmental hazards if not properly guided. For this purpose, Section 20 of the 1999 CFRN expressly contains provision on environmental protection and states as follows: The state shall protect and improve the environment and safeguard the water, air, land, forest and wild life in Nigeria.
The main aim of section 20[19] is to ensure a healthy environment for Nigerian citizens. The protection of the environment is essential for the realization of human rights because human rights can only be enjoyed in an environment that is free of pollution.[20]
Therefore,to ascertain if criminalizing environmental laws has been effective, we must look at the already created laws if they are sufficient to cover these offences. If these laws are sufficient the question as to how effective has these laws been implemented in our environment. Meanwhile if they are not sufficient then the need to create more laws to cover those lacuna will then come into view.
In Nigeria, due to the provisions of section 20 which gives every state the right to safeguard the water, air, land, forest and wild life of her territory, almost every state has a governing board regulating environmental activities. Some of these bodies includes:
- Forestry Research Institute of Nigeria (FRIN) [21]
- National Biosafety Management Agency (NBMA)
- National Environmental Standards and Regulations Enforcement Agency (NESREA) National Oil Spill Detection and Response Agency (NOSDRA)
- Abuja Environmental Protection Board (AEPB)
- National Emergency Management Agency (NEMA)
- Nigeria Hydro-logical Services Agency (NIHSA)
- River basin Authority (Federal Ministry of Water Resources)
- Federal Environmental Protection Agency Abuja
- Environmental Protection Board Lagos State Government
- Environmental Health Officers Registration Council of Nigeria
- Nigerian Conservation Foundation (NCF)
- National Emergency Management Agency
- Delta State Environmental Protection Agency
- Federal Ministry of Environment.
Now considering the fact that in Nigeria, a country with 36 states has over 50 environmental agencies and all with the objective of reducing environmental hazards in the nation. It is evident that these agencies are yet to function effectively as we still have lots of increasing environmental hazardous cases within the nation.
Aside from the creation of these agencies, there are sufficient statutes or Acts created with the same goal of reducing environmental hazards. Such laws include:
Table 1: Some Federal Environmental Legislations in Nigeria
| Legislation | Provisions |
| Endangered Species (Control of International Trade and Traffic Act Cap 1081 LFN 1990. | Conservation and management of the country’s wildlife and protection of endangered species. |
| Land Use Act Cap 202 LFN 1990 | Covers the use of land and vested all land in each State to the State Governors for rational allocation. |
| National Guidelines and Standards for Environmental Pollution Control of 1991 | Monitor and control industrial and urban pollution. |
| National Effluent Limitations S.I. 8 of 1991 | Compulsory installation of anti-pollution equipment, effluent treatment and discharges. |
| Pollution abatement in industries and facilities generating waste regulation S.I 9 of 1991. | Impose restrictions on the release of toxic substances and stipulate requirements for monitoring pollution. |
| Waste management regulations S.I 15 of 1991 | Regulate the collection, treatment and disposal of solid and hazardous wastes from municipal and industrial sources. |
| Environmental impact assessment Decree No. 86 of 1992 (EIA) | Requires mandatory environmental impact assessment for major developmental projects. |
| Associated Gas Re-injection Act Cap 26 LFN 1990 and regulation | General ban on gas flaring. No company to flare gas without permission. |
| The petroleum Act Cap 350, LFN 1990 | Regulations for the prevention of pollution of water course and the atmosphere. |
Source: Babsal And Co., (1998) and Omorogbe, (2001).
Besides the federal environmental legislation that cover the whole country, State governments also make legislation to cater for their environmental problems and peculiarities. For example some State governments have recently reintroduced the compulsory monthly environmental sanitation exercise. These states are Lagos, Oyo, Ebonyi, Kano and Kebbi[22]. The reintroduction was made possible by passing the environmental sanitation laws through the various State legislatures. Also the reintroduction was to rescue the environment from impending degradation prompted by indiscriminate disposal of filth which is posing great health hazard to the environment.
In the northern States of Jigawa, Kano, Katsina, Zamfara, Sokoto and Kebbi there is the grazing reserve law[23].
This law creates grazing reserves and prohibit hunting, bush burning cutting grasses or farming in the reserves. In Bauchi State, there is the Edict No. 4 of 1996 which prohibited rampant cutting of trees and mass transportation of fire wood and charcoal outside the state.
After looking at all the measures put in place for the success of the reduction of environmental hazards, one will wonder why there have been slow improvements.
A significant issue affecting regulation enforcement in Nigeria is lack of technical capacity among the staff responsible for the enforcement of the regulations as well as inadequate institutional framework; both legal and administrative, which has made regulatory enforcement in Nigeria inefficient and ineffective.
Secondly there are as many agencies as there are regulations; and the functions and jurisdictions of the agencies often overlap, leading to conflict between them and confusion in the public as to which agency to respond to, leading ultimately to regulatory failure.
Thirdly, the weakness in the institutional set up of environmental regulations leads to corruption and special interest groups often try to use the regulatory process to advance their own economic position. For example, since 1984, the Federal Government continues to exert both regulatory and administrative pressure on oil companies operating in the Niger Delta region to stop the flaring of gas, yet gas flaring continues and polluters appear content to pay the penalty as it is found to be economically viable to do so[24]
A major challenge to environmental regulation enforcement in Nigeria is that under the Federal system, the 1999 constitution put environmental issues under the exclusive, concurrent and residual list, which implies that all three tiers of government Federal, State and Local can legislate on pollution in their domain.
The result of this arrangement is that it has never been clear as to what level of inter-governmental relationship exist in environmental matters. Also, it is not clear which tier of government has the responsibility to regulate one aspect of environmental pollution within the constitutional framework of Nigeria. Furthermore, it is not clear what happen where there are conflicts or how it should be resolved. Clearly, to achieve effective and efficient environmental management, a clear and cohesive inter-governmental relationship is required, which is currently vague in Nigeria.[25]
CONCLUSION
From the above analysis the it can be drawn that the act of criminalizing environmental offences in Nigeria has not really effective owing to the fact that the law criminalizing environmental offences are sufficient but the man power, structure, conflicts of areas of regulation and agencies that are meant to give life to these laws have been left idle, inefficient and ineffective as such making those offences ineffective.
It is my suggestion that a critical examination be carried out on these areas in other to make laws governing environmental offence effective. This will in turn result in a healthy environment as this is the true essence of making environmental offences a criminal liability and not civil liability.
[1]Adediran Timothy oluwafemi, A Final year student of university of Jos, 08160636741, timex282@gmail.com
[2] P Sands and others, Principles of International Environmental Law (3rd Edition edn, Cambridge University Press 2012) 926, 14.
[3] Jonathan Baert Wiener, ‘Law and the New Ecology: Evolution, Categories, and Consequences, p.2.
[4]Karibi-white, A.G Groundwork of Nigeria criminal law, Nigeria law publications ltd lagos 1986 p.50
[5] Section 20 of the 1999 Constitution of the federal republic of Nigeria as amended
[6](n) 4
[7]1992 (EIA ACT)
[8]https://www.mondaq.com/Nigeria/Energy-and-Natural-Resources/53804/Environment-Law-In-Nigeria accessed monday 1st June 2020.
[9]Section 60 EIA ACT 1992
[10]1999
[11]1988
[12] (1988) Cap. (C49), § 1(1)
[13](n) 4
[14]section 1(1-3) harmful waste (special criminal provisions, etc.) act 1988
[15]section 2(1-3) harmful waste (special criminal provisions, etc.) act 1988
[16] harmful waste (special criminal provisions, etc.) act 1988
[17] (n)14
[18]Rn 126/13 2014
[19](n) 5
[20] See A.B. Abdulkadir, and A.O. Sambo, ‘Human Rights and Environmental Protection: The Nigerian Constitution Examined’ (2009) Journal of Food, Drug and Health Law 61, 73.
[21] John .A Enviromental Agencies in Nigeria, https://www.legit.ng/1177859-list-environmental-agencies-nigeria.html Accessed 1st June 2020.
[22] Suleiman Ladan Environmental Watch Journal Vol. . No. 1, 2007
[23] Idowu, A. A. (2000) “Law and Policy in the management of industrial waste in Nigeria” African Journal of Environmental Studies. Volume 1, number 1 and 2. Development Africa Consortium Port Harcourt, Nigeria
[24] Hay BJ, Astor PH, kaauf, S Seff M, master J, et al. (1996) The Nigerian Environment. National Open University of Nigeria, Africa
[25] Nerry E, Akpofure E (1998) Environmental impact assessment in Nigeria: regulatory background and procedural framework, UNEP EIA Training Resource Manual Case studies from developing countries, Nigeria, Africa.
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