Whilst no climate litigation has been brought by citizen(s) challenging Nigeria’s climate policy, a claim could be filed based on breach of human rights, particularly the right to a healthy environment and the right to life.
Article 24 of the African Charter on Human and Peoples’ Rights states that ‘all peoples shall have the rights to a general satisfactory environment favourable to their development.’ This can be invoked in Nigerian domestic courts as the Charter has been domesticated into Nigerian law (Social and Economic Rights Action Centre and Another v Nigeria). The Nigerian Supreme Court has held that the provisions of the African Charter are enforceable before Nigerian courts (Abacha v Fawehinmi). Secondly, Section 33 of the Nigerian Constitution guarantees the right to life, which implicitly includes a right to a clean and healthy environment and the government has a duty to protect and not to threaten or violate this right (Centre for Oil Pollution Watch V. NNPC).
For standing, any person can file personal, representative, and public interest suits in the enforcement of the fundamental human rights provisions of the Constitution and African Charter. Additionally, no human rights case may be dismissed or struck out for want of locus standi. (Paragraph 3 of the Preamble of the Fundamental Rights (Enforcement Procedure) Rules (2009).
If found to be in violation of the rights above, a court may declare the climate law incompatible with human rights provisions of the Nigerian Constitution and the African Charter on Human and People’s Rights, and consequently invalidate it (Sec. 1(3) Nigerian Constitution). The court only declares an incompatibility and does not order replacement of the law, rather it is left for the executive and legislative branches to revise the law and bring it in compliance with the Constitution and the Charter.
A possible reason for the lack of litigation could be the absence of a legislative instrument focusing on climate change that would be the subject of such challenge. While there exists a Climate Change Policy Response and Strategy, it is merely directional and not enforceable in court.
Cases Mentioned
For more country specific context and relevant national climate change law see: https://climate-laws.org/geographies/nigeria
This country report has been produced by Iona McEntee, C2LI Senior Research Assistant and Lydia Omuko-Jung, C2LI Legal Analyst with the collaboration of Uzuazo Etemire, C2LI National Raporteur for Nigeria. The summary is based on Uzuazo Etemire, “Climate Change Litigation in Nigeria: Challenges and Oppportunities” in F. Sindico and M. Moise Mbengue, Comparative Climate Change Litigation: Beyond the Usual Suspects, Springer, 2021.