APPRAISAL OF THE CONTEMPORARY JURISPRUDENCE ON THE RIGHT TO ENVIRONMENT: A CASE STUDY OF NIGERIA AND SOUTH AFRICA

CHAPTER ONE GENERAL INTRODUCTION

            Background of the Study

In an era of looming global environmental crises from climate change and environmental degradation it is indisputable that the quality of human life is tied to the quality of the environment. The quality of life and man‘s existence is adversely affected by various environmental problems, for which man is the major architect. Those who suffer most from environmental disasters and adverse effects of climate change are the poor, disadvantaged and vulnerable segments of the society and these are found mostly in developing and underdeveloped countries.

The sheer scale of environmental issues at the national and global levels means that national action by itself, while important, is insufficient, and that significant international cooperation is required. Thus environmental protection, like human rights, has evolved through a process of national concern to the stage of internationalisation and globalisation.

A significant development in the global development of environmental law is the articulation of the link between the human rights discourse and environmental jurisprudence. The first formal recognition of the link between the environment and human rights is Principle 1 of the 1972 United Nations Declaration on the Human Environment which declared that man has  the  ―fundamental  right  to  freedom,  equality  and  adequate  conditions  of  life,  in  an environment of a quality that permits of a life of dignity and wellbeing…‖ A healthy environment has thus been internationally acknowledged as a prerequisite to the effective enjoyment of human rights.

The growth in the magnitude of environmental problems, increasing awareness of environmental issues, increasing recognition of the importance of the environment to the realisation of the right to life and other human rights, and hence the need to provide for constitutional environmental protection all contributed to the conceptualization of environment in terms of a right.

Recognition of the right to a healthy or safe environment finds expression in regional human rights treaties¹ and constitutional guarantees on the environment. It has also resulted in the development of environmental rights jurisprudence. The growing trend of recognition of constitutional environmental rights is illustrated by a recent study that analysed national constitutions. Out of 192 national constitutions, environmental protection was incorporated in one form or the other in 140 national constitutions with 86 constitutions explicitly recognizing the right to a healthy environment.²

Nigeria and South Africa provide valuable material for in-depth national studies on environmental rights jurisprudence. In the past decades Nigeria and South Africa have experienced major developments in the area of environmental protection. The adoption of a new legal order in South Africa has seen the adoption of a national Constitution that provides for a substantive environmental right. It is worthy to note that the Constitution and framework environmental law was the product of wide ranging consultations at all levels of the society. There has also been a dramatic rise in environmental activism and this has been well documented.³