Gbemre v. Shell Petroleum Development Company of Nigeria Ltd. and Others

Mr. Jonah Gbemre, acting for himself and representing the Iwherekan Community in Delta State, Nigeria, instituted a lawsuit against Shell Petroleum Development Company Nigeria Ltd, the Nigerian National Petroleum Corporation (NNPC), and the Attorney General of the Federation. The case challenged the long-standing practice of massive and continuous gas flaring in the community during oil exploration and production carried out by Shell and NNPC, and it targeted the Nigerian government for failing to intervene. The applicants argued that gas flaring had polluted their environment, caused serious health problems, destroyed their means of livelihood, and led to the loss of lives in the community. Central to their claim was the link drawn between gas flaring, the emission of greenhouse gases, and the associated contributions to adverse climate change, which, they contended, were threats to their very survival. The community's legal argument rested on both domestic and international law. They invoked their constitutionally protected rights to life and human dignity under sections 33 and 34 of the 1999 Nigerian Constitution, and reinforced their position with Articles 4, 16, and 24 of the African Charter on Human and Peoples’ Rights. They also relied on provisions of the Environmental Impact Assessment Act and the Federal Environmental Protection Agency Act, pointing out the respondents’ failures to conduct legally required environmental assessments or obtain valid ministerial certificates for gas flaring. Despite objections from the respondents about jurisdiction and the substance of the claims, the Federal High Court, presided over by Justice C.V. Nwokorie, delivered its judgment on November 14, 2005. The Court held that the rights to life and human dignity enshrined in Nigeria’s Constitution and the African Charter inherently include the right to a clean, poison-free, pollution-free, and healthy environment. The judge found that the respondents’ continuous gas flaring was a clear violation of these rights. Furthermore, Shell's failure to carry out an Environmental Impact Assessment was ruled a breach of both the Environmental Impact Assessment Act and the fundamental rights of the applicants. The Court ruled that the legal provisions permitting continued gas flaring were inconsistent with constitutional rights, declaring them unconstitutional, null and void. Shell and NNPC were ordered to immediately cease gas flaring in the Iwherekan community. The Attorney General was expressly ordered to begin the process of amending the Associated Gas Re-Injection Act, ensuring it aligns with Nigeria’s human rights obligations under both the Constitution and the African Charter. Notably, the judge made no award of damages, costs, or compensation.