## Facts

- Jonah Gbemre sued for himself and on behalf of the Iwherekan Community in Delta State, Nigeria.
- Shell Petroleum Development Company Nigeria Ltd. and the Nigerian National Petroleum Corporation conducted long-running gas flaring in and around the community during oil production.
- The applicant alleged the flaring caused severe air, land, and water pollution; heat, noise, and light impacts; and serious health and livelihood risks.
- The applicant asserted violations of constitutional rights to life and dignity (1999 Constitution, §§ 33(1), 34(1)) and of rights protected by the domesticated African Charter (Arts. 4, 16, 24).
- The applicant alleged defendants failed to perform an environmental impact assessment required by the Environmental Impact Assessment Act (EIA Act) § 2(2).
- The application sought declarations and injunctions under the Fundamental Rights (Enforcement Procedure) Rules and challenged statutory and regulatory provisions that authorized continued gas flaring.

## Issues

1. Whether the constitutional rights to life and dignity, read with the African Charter, include a right to a clean, poison-free, pollution-free, and healthy environment.
2. Whether continuing gas flaring in Iwherekan violated those rights.
3. Whether failure to conduct an environmental impact assessment violated the EIA Act and contributed to infringement of fundamental rights.
4. Whether provisions of the Associated Gas Re-Injection Act and its Continued Flaring of Gas Regulations were unconstitutional to the extent they permitted gas flaring inconsistent with rights to life and dignity.

## Decision

- The court granted the application and held the applicant had proper representative standing to sue for the community.
- The court declared that the rights to life and dignity include a right to a clean, poison-free, pollution-free, and healthy environment, reinforced by the African Charter.
- The court declared that Shell’s and NNPC’s continuing gas flaring in the community constituted a gross violation of the community’s rights to life (including a healthy environment) and dignity.
- The court declared that failure to carry out an environmental impact assessment violated the EIA Act and contributed to the infringement of fundamental rights.
- The court declared unconstitutional, to the extent of inconsistency with the Constitution, statutory and regulatory provisions that allowed continued gas flaring.
- The court ordered Shell and NNPC to take immediate steps to stop further gas flaring in the applicant’s community.
- The court ordered the Attorney-General of the Federation to ensure speedy amendment of the Associated Gas Re-Injection Act to align with constitutional and African Charter obligations.
- The court awarded no damages, costs, or compensation.

## Legal Principles

- Constitutional rights to life and dignity may be interpreted to protect conditions necessary for meaningful life, including environmental quality and public health.
- Domesticated treaty rights (here, the African Charter’s rights to life, health, and a satisfactory environment) may reinforce and inform the scope of constitutional fundamental rights.
- Government-authorized industrial activity that causes serious pollution and health risk can constitute a violation of enforceable fundamental rights.
- Where the constitution is supreme, legislation and regulations are void to the extent they permit conduct that infringes constitutional rights.
- Environmental impact assessment duties can function as rights-protecting obligations; noncompliance can be unlawful and may be treated as contributing to fundamental-rights violations.
- Fundamental-rights procedure may allow representative actions when communal harm is alleged.

## Conclusion

The court recognized environmental protection as part of enforceable rights to life and dignity, held that continuous gas flaring and failure to conduct an environmental impact assessment violated those rights, invalidated conflicting legal authorizations for flaring, and ordered cessation of gas flaring in the affected community and legislative amendment to conform with constitutional and Charter obligations.


Gbemre v. Shell Petroleum Dev. Co. Nig. Ltd., Suit No. FHC/B/CS/53/05 (Fed. High Ct. Nig. 2005)