155/96 : Social and Economic Rights Action Center (SERAC) and
Center for Economic and Social Rights (CESR) / Nigeria
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, and
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 operations of the oil
companies nor required safety measures that are standard procedure within the industry. The
government has withheld from 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-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 farmlands, rivers,
crops and animals has created malnutrition and starvation among certain Ogoni communities.
Complaint
10. The communication alleges violations of Articles 2, 4, 14, 16, 18(1), 21, and 24 of the African
Charter.
Procedure
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11. The communication was received by the [African] Commission on 14 March 1996. The
documents were sent with a video.
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12. On 13 August 1996 letters acknowledging receipt of the communication were sent to both
Complainants.
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13. On 13 August 1996, a copy of the communication was sent to the Government of Nigeria.
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14. At the 20 Ordinary Session held in Grand Bay, Mauritius in October 1996, the [African]
Commission declared the communication admissible, and decided that it would be taken up with the
relevant authorities by the planned mission to Nigeria.
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15. On 10 December 1996, the Secretariat sent a Note Verbale and letters to this effect to the
government and the Complainants respectively.
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16. At its 21 Ordinary Session held in April 1997, the [African] Commission postponed taking
decision on the merits to the next session, pending the receipt of written submissions from the
Complainants to assist it in its decision. The [African] Commission also awaits further analysis of its
report of the mission to Nigeria.
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17. On 22 May 1997, the Complainants were informed of the [African] Commission’s decision, while
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the State was informed on 28 May 1997.
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18. At the 22 Ordinary Session, the [African] Commission postponed taking a decision on the case
pending the discussion of the Nigerian mission report.
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19. At the 23 Ordinary Session held in Banjul, The Gambia, the [African] Commission postponed
consideration of the case to the next session due to lack of time.
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20. On 25 June 1998, the Secretariat of the [African] Commission sent letters to all parties
concerned informing them of the status of the communication.
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21. At the 24 Ordinary Session, the [African] Commission postponed consideration of the above
communication to the next session.
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22. On 26 November 1998, the parties were informed of the [African] Commission’s decision.
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23. At the 25 Ordinary Session of the [African] Commission held in Bujumbura, Burundi, the
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[African] Commission further postponed consideration of this communication to the 26 Ordinary
Session.
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24. The above decision was conveyed through separate letters of 11 May 1999 to the parties.
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25. At its 26 Ordinary Session held in Kigali, Rwanda, the [African] Commission deferred taking a
decision on the merits of the case to the next session.
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26. This decision was communicated to the parties on 24 January 2000.
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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.
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28. At the 27 Ordinary Session of the [African] Commission held in Algeria from 27 April to
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11 May 2000, the [African] Commission deferred further consideration of the case to the
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28 Ordinary Session.
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29. The above decision was communicated to the parties on 12 July 2000.
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30. At the 28 Ordinary Session of the [African] Commission held in Cotonou, Benin from
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26 October to 6 November 2000, the [African] Commission deferred further consideration of the
case to the next session. During that session, the Respondent State submitted a Note Verbale stating
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 state the remedial measures
being taken by the new civilian administration and they included:
•
•
•
Establishing for the first time in the history of Nigeria, a Federal Ministry of Environment with
adequate resources to address enviromental 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 related 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 matter.
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31. The above decision was communicated to the parties on 14 November 2000.
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32. At the 29 Ordinary Session held in Tripoli, Libya from 23 April to 7 May 2001, the [African]
Commission decided to defer the final consideration of the case to the next session to be held in
Banjul, the Gambia in October 2001.
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33. The above decision was communicated to the parties on 6 June 2001.
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34. At it 30 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 judgements of law at the national and international levels. Where a right is not well
provided for in domestic law such that no case is likely to be heard, potential conflict does not arise.
Similarly, if the right is not well provided for, there cannot be effective remedies, or any remedies at all.
38. Another rationale for the exhaustion requirement is that a government should have notice 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,
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47/90, 56/91 and 100/93 World Organisation against Torture et al./Zaire: 53 )[sic] . The exhaustion of
domestic remedies requirement should be properly understood as ensuring that the State concerned
has ample opportunity to remedy the situation of which applicants complain. It is not necessary here to
recount the international attention that Ogoniland has received to argue that the Nigerian government
has had ample notice and, over the past several decades, more than sufficient opportunity to give
domestic remedies.
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, the [African] Commission on numerous
occasions brought this complaint to the attention of the government at the time but no response was
made to the [African] Commission’s requests. In such cases the [African] 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 World Organisation against Torture et al./Zaire [sic], communication 60/91 Constitutional
Rights Project/Nigeria and communication 101/93 Civil Liberties Organisation/Nigeria).
41. The [African] Commission takes cognisance of the fact that the Federal Republic of Nigeria has
incorporated the African Charter 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 [African] 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
2
government that violate their fundamental human rights . In such instances, and as in the instant
communication, the [African] Commission is of the view that no adequate domestic remedies are
existent (see communication 129/94 Civil Liberties Organisation/Nigeria).
42. It should also be noted that the new government in their Note Verbale referenced 127/2000
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submitted at the 28 session of the [African] 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 [African] 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. 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 [African] Charter and more specifically vis-à-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 fulfil 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 in no way should it imply the priority accorded to them. Each layer of obligation is
3
equally relevant to the rights in question.
45. At a primary level, 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,
4
resources, and liberty of their action. 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 rightsrelated 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.
46. At a secondary level, the State is obliged to protect right-holders against other subjects by
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legislation and provision of effective remedies. 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 realize their rights
and freedoms. This is very much intertwined with the tertiary 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.
47. The last layer of obligation requires the State to fulfil 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 is also very much intertwined with
the duty to promote mentioned in the preceding paragraph. It could consist in the direct provision of
6
basic needs such as food or resources that can be used for food (direct food aid or social security).
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 their obligations,
the International Covenant on Economic, Social, and Cultural Rights , for instance, under Article 2(1)
stipulates exemplarily 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. But sometimes, the need to
meaningfully 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 here below.
49. In accordance with Article 60 and Article 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 [African] Commission thanks the two human
rights NGOs who brought the matter under its purview: the Social and Economic Rights Action Center
(Nigeria) and the Center for Economic and Social Rights (USA). Such is a demonstration of the
usefulness to the [African] 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 gravamen of the complaints which is contained in a Note Verbale and
which we have reproduced above at paragraph 30. In the circumstances, the [African] Commission is
compelled to proceed with the examination of the matter on the basis of the uncontested allegations of
the Complainants, which are consequently accepted by the [African] Commission.
50. The Complainants allege that the Nigerian Government violated the right to health and the right
to clean environment as recognised under Article 16 and Article 24 of the African Charter by failing to
fulfill 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:
“(1) 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
7
individual. 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 as the breakdown of the fundamental ecologic equilibria is harmful to physical
8
and moral health.”
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 general satisfactory environment favourable to development (Article
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16 (3)[sic] already noted obligate governments to desist from directly threatening the health and
environment of their citizens. The state is under an obligation to respect the just noted rights and this
entails largely non-interventionist conduct from the state for example, not from carrying out,
10
sponsoring or tolerating any practice, policy or legal measures violating the integrity of the individual
53. Government compliance with the spirit of Article 16 and Article 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 Article 16 and Article
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. But 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 a 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, closely tied with repressive tactics of the Nigerian Government, and the
11
lack of material benefits accruing to the local population , may well be said to constitute a violation
of Article 21.
Article 21 provides:
1.
2.
3.
4.
5.
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.
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.
The free disposal of wealth and natural resources shall be exercised without prejudice to the
obligation of promoting international economic co-operation based on mutual respect, equitable
exchange and the principles of international law.
States parties [sic] 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.
States Parties [sic] 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.
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 [African] Charter obviously wanted to remind African
governments of the continent’s painful legacy and restore co-operative 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
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private parties (see Union des jeunes avocats c/Chad ). 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 Velàsquez Rodríguez v.
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Honduras . 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
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Human Rights, in X and Y v. Netherlands . In that case, the [European] Court [of Human Rights]
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.
58. The [African] 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 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 21of 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 14of the [African] Charter provides:
“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.”
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 underArticle 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 [African] 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 them in a way they find most appropriate to satisfy individual, family, household or
15
community housing needs. 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 land owners, and where such infringements occur, it should act to preclude further
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deprivations as well as guaranteeing access to legal remedies. The right to shelter even goes
further than a roof over one’s head. It extends to embody the individual’s right to be let alone and to
live in peace, whether under a roof or not.
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
17
provision of, and access to, appropriate forms of legal or other protection” . 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
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and increase existing levels of homelessness. 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.
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
trampled upon 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 [African]
Charter which guarantees the inviolability of human beings and everyone’s right to life and integrity of
the person respected. Given the wide spread violations perpetrated by the Government of Nigeria and
by private actors (be it following its clear 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 decisively deal with
the Ogonis, which was illustrated by the wide spread terrorisations [sic] and killings. The pollution and
environmental degradation to a level humanly unacceptable has made it living in the Ogoni land 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 brutalities not only persecuted individuals in
Ogoniland but also the whole of the Ogoni community as a whole. They affected the life of the Ogoni
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society as a whole. The [African] Commission conducted a mission to Nigeria from the 7 to
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14 March 1997 and witnessed first hand the deplorable situation in Ogoniland including the
environmental degradation.
68. The uniqueness of the African situation and the special qualities of the African Charter 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 [African] 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 [African] 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 [African] 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.
Holding
For the above reasons, the [African] Commission,
Finds the Federal Republic of Nigeria in violation of Articles 2, 4, 14, 16, 18(1), 21 and 24 of the African Charter;
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 Securities Task
Force and permitting citizens and independent investigators free access to the territory;
Conducting an investigation into the human rights violations described above and prosecuting
officials of the security forces, NNPC and relevant agencies involved 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 information on health and environmental risks and meaningful access to regulatory and
decision-making bodies to communities 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 Ogoniland;
The 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.
th
th
th
Done at the 30 Ordinary session held in Banjul,The Gambia du 13 au 27 October 2001.
Footnotes
1. Editor's note: The French language version of Communications 25/89, 47/90, 56/91 and 100/93 is more
detailed and contains more paragraphs (64 paragraphs) than the English language version (48 paragraphs in all).
The paragraph referenced here should beparagraph 36, not paragraph 53
2. See The Constitution (Suspension and Modification) Decree 1993.
3. See generally, Asbjørn Eide, “Economic, Social and Cultural Rights As Human Rights” in Asbjørn Eide,
Catarina Krause and Allan Rosas (eds.), Economic, Social, and Cultural Rights: A Textbook, Martinus Nijhoff
Publishers, 1995, pp. 21-40.
4. Krzysztof Drzewicki, “Internationalization of Human Rights and Their Juridization” in Raija Hanski and Markku
Suksi (eds.), Second Revised Edition, An Introduction to the International Protection of Human Rights: A
Textbook , 1999, p. 31.
5. Drzewicki, ibid.
6. Eide, in Eide, Krause and Rosas, op cit., p. 38.
7. See also General Comment No. 14 (2000) of the Committee on Economic, Social and Cultural Rights .
8. Kathleen E. Mahoney and Paul Mahoney, “Human Rights in the Twenty-first Century: A Global Challenge”;
Alexander Kiss “Concept and Possible Implications of the Right to Environment”. p. 553.
9. Editor's note: Article 16 has only two subsections, the Article referenced here should be Article 24
10. See Scott Leckie “The Right to Housing” in Eide, Krause and Rosas, op. cit.
11. 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, para. B(1.6 - 1.7), p. 2-3.
12. Communication 74/92 Commission Nationale des Droits de l’Homme et des Libertes/Chad.
13. See, Inter-American Court of Human Rights, Velàsquez Rodrígeuz (sic) case, judgment of July 19 1988,
Series C, No. 4.
14. 91 ECHR (1985) (Ser. A) at 32.
15. Scott Leckie, “The Right to Housing” in Eide, Krause and Rosas, op cit., 107-123, at p. 113.
16. Ibid, pp. 113-114.
17. See General Comment No.7 (1997) on the right to adequate housing (Article 11(1)): Forced Evictions.
18. Ibid, p. 113.