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Olanrewaju Fagbohun, a Research Professor of Law
at the Nigerian Institute of Advanced Legal Studies, University of Lagos,
speaks on environmental agencies and enforcement of environmental laws in
Nigeria.

There are numerous laws
guiding the use of our environment in Nigeria. Do you think they are having the
necessary impact?

It is true that there are numerous laws aimed at environmental
protection in Nigeria. Regrettably, it cannot be said that they are having the
necessary impact. Nigeria spans some 924,000 square kilometres. The country is
endowed with rich environment and natural resource base. These are continually
being destroyed, degraded and desecrated. What is odd is that in terms of talk,
Nigeria has remained a key player in all global environmental initiatives. In
terms of concrete actions, however, we still have a long way to go.

Is it a case of weak
environmental laws, or weak enforcers, or both?

The problem is that there is a weak link between the law and
enforcement of the laws. There are many reasons for this, the major one is
corruption; next to this is inconsistencies in some of our laws; then, weak
capacity. Also the unrealistic nature of some of the laws, and by this I mean
when targets are ridiculously high or fines are too low. There is also the
problem of weak capacity and unnecessary conflicts between implementing
institutions. These are the serious threats, gaps and barriers to enforcement.

Do you think there is a
need to review the NESREA Act so it would be up to date with current
environmental challenges?

I would not say there is a need to review the National
Environmental Standard and Regulations Enforcement Agency (NESREA) Act, which
is the legislation that repealed the Federal Environmental Protection Agency
(FEPA) Act. Rather, I would say we should be more proactive in enforcement. Let
there be a clear signal that it is not the status of the “individual” that
would determine whether a law will or will not be enforced.

In fairness to NESREA, I must say that the agency under the able
leadership of Dr. Ngeri Benebo has been doing a lot in recent times, not only
in sensitising the populace on environmental dangers, but also in trying to
push the frontiers of effective enforcement. These efforts need to be continued
and broadened.

There are lots of
agencies saddled with environmental responsibilities, yet we still have
pollution problems. What do you think is responsible?

You are correct in saying there are too many agencies saddled
with environmental responsibilities and yet, we are having increased problems
with pollution. The problems is not so much with the different agencies,
rather, it is the failure to properly integrate, harmonise and interface their
activities.

We are all agreed that the Federal Ministry of Environment is
the primary body saddled with environmental protection, but then, you find out
that the Department of Petroleum Resources (DPR) in the case of the oil and gas
sector is saddled with the functions of environmental regulation of oil and gas
activities while NESREA (which is the Ministry’s real enforcement arm) has no
role to play. What we should have had in that kind of situation is proper
delineation of functions. Let the DPR regulate technical issues in the sector;
NESREA enforce compliance with environmental requirements; while the National
Oil Spill Detection and Response Agency (NOSDRA) takes charge of emergency
response and clean-up. They will coordinate their activities to avoid
duplication through inter-agency consultations. This synergy is unfortunately
lacking in our system and is an appropriate loophole for potential offenders to
exploit.

How would third party
involvement help in setting better environmental standards?

There are too many obstacles for the participation of Civil
Society and non-governmental organisations. There is a need for government to
realise that it cannot do it alone. There is serious lack of access to justice.
There is an urgent need for the obstacles placed in the way of third parties to
be removed.

Let us start to seriously rethink issues relating to standing,
pre-action notice and time limitation in the way they apply to environmental
issues. The philosophy and theoretical considerations underpinning these
concepts are not applicable to environmental issues.

What in your opinion do
you think is the best way to tackle environmental problems as it relates to
monitoring and enforcement?

The best way to tackle environmental crisis of monitoring and
enforcement is for the system to be structured in such a way that all
stakeholders will be able to play their roles effectively. The citizens
(public) are there to act as a watchdog for the agencies of the Executive arm
of government and keep them on their toes. Right now, the civil society is not
able to play that role.

The judiciary is also largely bound to rules and concepts that
do not allow them the freedom to distinguish between environmental issues and
other issues. A number of our judges have been sensitised, but, they are still
hemmed in by old rules.