The political question and litigating loss and damage: any hope for victims of climate change induced impacts in Nigeria?

Abstract

There is the urgency in finding solutions to this global problem and this requires bold actions from governments, the private sector and civil societies. This paper conducts an x-ray of political questions relating to climate change issues. This can be achieved by making departure from the provisions of section 6(6)(c) of the Nigerian Constitution by proactive interpretation of sections 13, 14(2), 20 and Item 60(a) of the Exclusive Legislative List of the said Constitution. The philosophical underpinning of this preposition is to enable the courts avoid injustice and absurdity in addressing claims for loss and damages linked to climate change induced impacts.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Various Intergovernmental Panel on Climate Change (IPCC) reports, 1986 to 2015.

2 See the various IPCC’s reports, 1986 to 2015.

3 Adam Abbas. ‘Climate Change and Forced Migration from Ngala and Kala-Balge LGAs, N.E. Borno State, Nigeria’ In Pirasteh S., Li J. (eds) Global Changes and Natural Disaster Management: Geo-information Technologies (Springer 2017), 141–151.

4 See Duhaime’s Law Dictionary available at www.duhaime.org (accessed on 17 January 2020).

5 U.S. (1 Cranch) 137 [1803].

6 Id at 177.

7 Baker v Carr 369 U.S.186, 217 (1962).

8 Japan Whaling Association v American Cetacean Society 478 U.S. 221, 230 [1986].

9 495 U.S. 385, 394 [1990].

10 LM Seidman ‘The Secret Life of the Political Question Doctrine’ J. Marshal Law Review (2004) vol.37 441 at 442.

11 Nat Stern, ‘Don't Answer That: Revisiting the Political Question Doctrine in State Courts’ [2018] 21(1) Journal of Constitutional Law, 153–206.

12 529 F.3d 548, 557 (5th Cir.2008).

13 418 U.S. 208, 215 (1974).

14 Ibid.

15 Ibid. at 170.

16 [7 HOW] 1 12L. Ed. 58 1[1849]. The case was a result of the crisis in Rhode Island known as Dorr Rebellion which resulted in the passage of two separate constitutions i.e. the declaration Martial Law and the promise of military intervention by President John Tyler. The court was asked to settle the critical constitutional issue about the nature of the republican government.

17 369 US 186 [1962].

18 Id at p. 217 FN 5.

19 395 US 486 [1969].

20 See Baker’s case p.217.

21 JH Choper, ‘The Political Question Doctrine: Suggested Criteria’ (2005) Duke Law Journal, vol. 54 1457 at 1459.

22 See R.E. Barkow, ‘More Supreme than Court? The fall of the Political Question Doctrine and the Rise of Judicial Supremacy’ (2002) Columbia Law Review vol. 102 237 at 240. See also M Tushnet, ‘Law & Prudence in the Law of Justiciability : The Transformation & Disappearance of the Political Question’ (2002) North Carolina Law Review vol. 80 1203 at 1233.

23 418 US 683 [1974].

24 Id at pp. 696–697.

25 479 F. 3d 1- (Court of Appeals, District of Columbia Circuit 2007).

26 Id at 197–99.

27 569 F. Supp. 2d 1315 (Ct. Intl. Trade 2008).

28 Id at 1320–1321

29 607 F.3d 836 (D.C. Cir. 2010).

30 That is that the factory is involved in the production of materials for chemical weapons.

31 Id at 848. See also the case of Zivotofsky v Clinton 132 S. Ct. 1421 [2012].

32 C World, D Hunter, M Powers: Climate Change and the Law (San Francisco: Lexis Nexis, 2009). p. 498.

33 37 ELR 20239 No. No. C06-05755, (ND Cal. 09/17/2007).

34 Supra.

35 549 US 497 [2007].

36 Massachusetts v EPA available at https://bollotpedia.org/Massachusettsv Environmental-Protection-Agency (accessed on 12 January, 2020).

37 Ibid.

38 684 F. 3d 102 ( D.C. Cir. 2012).

39 Supra.

40 582 F. 3d. 309 (2nd Cir. 2009).

41 Can, 14 F. 3d. at 163. It is worthy to note that the reversal of the district court’s decision on political question shows the vulnerable state of the doctrine. See also RE Barkow ‘More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy’ (2002) Columbia Law Review 102, 237.

42 American Electric Power Co. Inc. et al v Connecticut et al 564 US [2011]. It is noteworthy that when this case came before the courts EPA had not made regulations regulating carbon dioxide and greenhouse gases emissions hence the contention of the plaintiff that the federal common law should continue to apply until regulations are made by EPA under CAA which did not displace federal common law of nuisance. This position was rejected by USSC and maintained that relevant question for displacement purposes is ‘whether the field has been occupied, not whether it has been occupied in a particular manner’.

43 607 F. 3d. 1049 (5th Cir. 2010).

44 Comer v Murphy Oil USA 593 F.3d.208, 210 n.1 (5th Cir. 2010).

45 The appellate court’s decision in Comer’s case has been criticized. It was argued that the court should have adopted the doctrine of necessity to hear the case i.e. asked the active circuit judges who have recused themselves from the case to consider setting aside their recusal in order to decide the appeal, instead of dismissing the case on the issue of quorum. See Appellate Procedure, Comer v Murphy Oil USA 5th Circuit leaves Panel decision vacated upon loss of En banc Quorum, 124 Harvard Law Review Dec. 17 2010 p. 624.

46 Re Comer 131 S.Ct. 902[2011].

47 Comer v Murphy Oil USA, Inc. 839 F.Supp. 2d 849.

48 See also Kivalina v Exxon Mobil Corp. 663 F. Supp. 2d. 863 [N.D. Cal. 2009] where the trial court dismissed the case on standing and also on political question. Appellate court decided not to reinstate the case. In 2013, the USSC refused to hear the case and this ended the Native village of Kivalina claim for monetary compensation for damages to the village as a result of global warming caused by carbon dioxide emitted by Exxon Mobil Corporation.

49 Case No.:6: 15-cv-01517-TC (9/10/15) available at www.ourchildrentrust.org.

50 C/09/456689/HA ZA 13-1396.

51 The Constitution of the Federal Republic of Nigeria, 1999 (as amended) herein after referred to as the Nigerian Constitution.

52 See sections 4, 5 & 6 of the Nigerian Constitution.

53 See ss. 6(6)(c), 143(10), 188(10) & 215(4), the Constitution.

54 In Onuoha v Okafor (1983) 494, the Nigerian Supreme Court (S.C.) relied on Baker v Carr and laid down two principles by which to determine political questions. The case dealt with the nomination, sponsorship and substitution of a candidate for an elective office. The S.C. held that the nomination and sponsorship of a candidate is a political matter solely within the discretion of the political party concerned and therefore non-justiciable because of the political question doctrine. However, Ugwu v Ararume (2007) 12 NWLR (Pt. 1048) 367 and Amaechi v INEC (2008) 5 NWLR (Pt. 1080) 227, which have similar facts with Onuoha’s case, witnessed a retreat from the political question doctrine and the courts asserted their pre-Onuoha’s duty of determining what the law is.

55 See Alegbe v Oloyo (1983) NSCC 315.

56 See Abaribe v The Speaker Abia State House of Assembly (2000) FWLR (Pt. 9) 1558; Adeleke v Oyo State House of Assembly (2007) All FWLR (Pt. 345) 211; Balarabe Musa v Kaduna State House of Assembly (1984) 5 NCLR 241 Dapianlong v Dariye (2007) 8 NWLR (Pt. 1036) 332; Balonwu v Obi (2007) 5 NWLR (Pt.1028) 488; Alamieyeseyeigha v Igoniwari (No.2) (2007) 7 NWLR (Pt. 1034) 524.

57 Found in Chap. II of the Nigerian Constitution. See in particular sections 13-24. Actions under these sections are non-justiciable by virtue of s.6 (6) (c) of the Nigerian Constitution.

58 Nigeria is not listed under Annex I Parties to the Kyoto Protocol, 1997.

59 International Council on Human Rights Policy, “Climate Change and Human Rights: A Rough Guide” (Versoix, Switzerland: ATAR Roto Press SA, 2008), pp. 97 and 98 available at http://www.ichrp.org/en/projects/136 (Last assessed on 5 January, 2020).

60 Ibid.

61 http://www.premiumtimesng.com, accessed on 15 January 2020.

62 Premium Times, “National Tragedy: Floods kill 53, displace 100,420 People Across Nigeria,” September 20, 2015, Premium Times, http://www.premiumtimesng.com, accessed on 15 January 2020. The funny aspect of these climate related problem is that these reported incidents occurred in the geographic north of Nigeria where annual rainfall is between 100mm and 500 mm per annum and rainfall regime is less than 6 months. The southern part of the country and the coastal states suffer worse cases of flooding, soil erosion, coastal erosion, etc, annually.

63 For purposes of this paper the legal framework shall be limited to the Constitution of the Federal Republic of Nigeria, 1999, as amended.

64 Attempt at answering these two questions are taken simultaneously in the course of this discussion.

65 This provision can be juxtaposed with Article 37 of the Indian Constitution which declares that their Directive Principles are non-justiciable.

66 For instance some of the fundamental rights as provided under Chapter IV of the Nigerian Constitution and Article 24 of African Charter on Human and Peoples Rights. These include: right to life, right to a healthy environment, right to dignity of person, right to acquisition of property, right to family life, etc.

67 AIR (1951) SC 318.

68 (1991) 1 N.W.L.R. (pt. 169) 525 at 527 as quoted from Hill v. William (Park Lane) Ltd. (1949) A.C. 330 at 546.

69 This was affirmed in the case of Attorney General of Ondo State v. Attorney General of the Federation & Ors [2002] 9 NWLR (pt. 772) 222.

70 S. I. Nwatu, ‘Legal Framework for the Protection of Socio-economic Rights in Nigeria’, (2011–2012) 10 Nigerian Juridical Review, Faculty of Law, University of Nigeria, Enugu Campus, Nigeria, p. 33.

71 Which in this case is in the same shoes with environmental rights under section 20 of the Constitution.

72 (1980) 8 – 11 S.C. 130. See also Obekpa v. COP (1980) 1 NCLR 113.

73 (1984) 1 SCNLR 525 at 602. See also Sofekun v. Akinyemi (1980) 5–7 at 25–27.

74 Op cit, p. 36.

75 Federal Republic of Nigeria (FRN) v. Anache (2004) Vol. 14 WRN 1 S.C.

76 C. Okeke (ed.), “Towards Functional Justice: Seminar Papers of Justice Chukwudifu A. Oputa” (Ibadan: Gold Press Ltd., 2007), p. 5.

77 Unreported Suit No FHC/B/CS/53/05, Federal High Court, Benin 14 November 2005; (2005) AHRLR 151 (NGHC 2005) available at: http://www.chr.up.ac.za/index.php (last assessed 4, January , 2020).

78 Gbemre and ors v. Shell Petroleum Development Company Nigeria Limited and ors, supra.

79 Supra.

80 Ibid.

81 This right is also provided in article 24 of the African Charter on Human and Peoples Rights which has been domesticated in Nigeria.

82 All these plethora of incidents impact negatively on the dignity of human and they display absolute disregard for the dignity of the human person.

83 [1981] 1 N.C.L.R. 218.

84 Made non-justiciable by virtue of section 6(6)(c ) of the Constitution.

85 And in deed other rights guaranteed under Chapter 1V of the Nigerian Constitution. The reason for this is that the impact of climate change on the environment is devastating. So many lives have been lost and more will be lost if the catalysts of climate change is not prevented or reduced to the barest minimum.

86 S. I. Nwatu, ibid, p. 35.

87 The preamble provides the philosophical base of the Constitution and courts have recourse to it in constitutional interpretation. See A.G. Ogun State v. A.G. Federation (1982) 3 NCLR 166.

Additional information

Notes on contributors

Emmanuel Onyeabor

Dr. Emmanuel Onyeabor is a Senior Lecturer in the Department of International & Comparative Law, Faculty of Law University of Nigeria. He earned a B.Ed. degree in Geography, M.Sc. degree in Development Planning, M.Sc. degree in Environmental Management, LLB, LLM and PhD degrees in Law. He teaches Environmental & Planning Law and Climate Change Law & Policy.

Helen U. Agu

Helen U. Agu holds a Doctorate degree in Law with Specialty on Environmental, Conservation, and Climate change Law. Helen is a Lecturer at the Department of International and Comparative Law, University of Nigeria and currently a Visiting Research Scholar at Michigan State University under the Alliance for African Partnership.

Miriam Chinyere Anozie

Miriam Chinyere Anozie is an Associate Professor of Law, Head of Department of Jurisprudence and Legal Theory and Associate Dean of the Faculty of Law, University of Nigeria. She holds the following degrees in Law: LL.B and LL.M from Ahmadu Bello University Zaria and a PhD in Constitutional Law from University of Nigeria. She has expertise in Constitutional Law and Health Law. She was called to the Nigerian Bar in 1984. Miriam is a member of Nigerian Association of Law Teachers (NALT), Nigerian Bar Association (NBA) and The Network of African Constitutional Lawyers. She is currently involved in projects for the protection of the human rights of women and children.

Ike Chime

Ike Chime, LLM Dundee, Lecturer, Department of Property Law, Faculty of Law, University of Nigeria, Enugu Campus, Enugu State, Nigeria; and Solicitor and Advocate of the Supreme Court of Nigeria.

Ndubuisi Nwafor

Ndubuisi Nwafor is a Senior Lecturer in the Department of Property Law, Faculty of Law, University of Nigeria, Enugu Campus. He earned his LLM and PhD from the Glasgow Caledonian University and the University of Stirling Scotland respectively. He teaches International and Humanitarian Law, Commercial Law and Ocean Governance. He is currently a postdoctoral research fellow in the School for Resource and Environmental Studies, Dalhousie University, Halifax, Nova Scotia, Canada.