Dignity and Environmental Justice in Nigeria: The Case of Gbemre v. Shell

The Niger River is a world-recognized watercourse that spans nearly the entire north-south length of Nigeria. It flows into the equally impressive Niger Delta, which sits in the Gulf of Guinea along the Atlantic Ocean. The Niger Delta, in turn, serves as the largest wetland in Africa, the third largest Mangrove forest in the world, and home to among the continent’s richest array of flora, fauna, and fish. It also serves as home to the Iwherekan, a tribal community that has occupied, fished, and farmed the area for thousands of years. The Niger Delta also happens to sit atop some of the richest oil reserves in the world. In 1956, the Shell Petroleum Development Company of Nigeria (“Shell”) discovered oil in the Niger Delta. Within fifty years, Nigeria became one of the largest oil-producing countries in the world, with production from the Niger Delta leading the way. Currently, oil accounts for approximately ninety percent of foreign exchange earnings and about nine percent of Nigeria’s national GDP. Oil and methane gas are close companions; finding one ordinarily means finding the other. Releasing pressurized petroleum from deep underground is relatively cheap and easy to transport. Methane, however, is more complicated. It has to be captured, condensed, and conveyed in pipelines. Moreover, it is generally more expensive to develop than petroleum. Like separating wheat from chaff, oil companies often harvest the oil but discard the methane in what is commonly called ‘flaring.’ Jonah Gbemre (pronounced “Bem-ree”) is a member of the Iwherekan in Delta State, Nigeria.7 He and his nuclear and extended families have tended soil, crops, and livestock there for generations. Flaring has changed all that. Due to flaring, Mr. Gbemre and his children became sick, livestock suffered, and crop yields diminished. Many other Iwherekan suffered the same fate. Oil spills and flaring within the Niger Delta greatly diminished subsistence farming and fishing among the Iwherekan. This paper tells the remarkable story of the case of Gbemre v. Shell Petroleum-Nigeria, in which the Federal High Court of Nigeria—and in the absence of a constitutionally-protected right to a healthy environment— concluded that illegal flaring of natural gas contravenes a right to dignity guaranteed by the Constitution of Nigeria. In issuing an injunction, the court reasoned that Shell’s flaring of gas in the Niger Delta amounted to a “gross violation” of Gbemre’s and the Iwherekan community’s constitutionally guaranteed rights to dignity. Yet, the case also highlights the limitations posed by enforcing such constitutional rights. Little has changed to control flaring in the Niger Delta. Government officials failed to enforce the court’s ruling. The Nigerian legislature failed to enact regulations to require deep-well injection of natural gases. The presiding judge in Gbemre was transferred to another jurisdiction. Case files disappeared. Hence, flaring continues, largely unabated and as before. This article has five parts. Part I explains some of flaring’s profound adverse effects on human health and the environment in the Niger Delta. Part II outlays relevant statutory and constitutional laws that ultimately came up short. Part III explains the role that human dignity plays in vindicating constitutional rights around the globe, and in Nigeria in particular. Part IV discusses the Gbemre lawsuit in detail and Part V addresses its resonance in a growing body of environmental dignity rights jurisprudence worldwide. We conclude that Gbemre is illustrative of the instructive and important role that viewing environmental injustice through the lens of dignity rights can play in holding corporations accountable for environmental human rights abuses under Nigerian law and elsewhere.