The Social and Economic Rights Action Center a African Commission on Human and Peoples’ Rights Decision
on Communication 155/96 The Social and Economic Rights Action Center and the Center for Economic and Social Rights / Nigeria Case Summary
Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR)
African Commission on Human and Peoples’ Rights
To life, to property, to health, to family life, to a healthy environment, to development, to food, to an adequate standard of living, of self-determination
On the merits of a March 1996 communication filed by the Social and Economic Rights Action Center (SERAC) and the Center for Economic and Social Rights (CESR), the African Commission on Human and Peoples’ Rights found that the Federal Republic of Nigeria was in violation of articles 2 (equality of rights), 4 (right to life), 14 (right to property), 16 (right to health), 18(1) (right to family life), 21 (peoples’ right to the free disposal of wealth and natural resources) and 24 (right to a healthy environment) of the African Charter on Human and Peoples’ Rights. The communication alleged that the Nigerian government: (a) directly participated in air, water and soil contamination of oil-producing lands, thereby endangering the health of the Ogoni People; (b) failed to protect the Ogoni from harm caused by the Nigerian National Petroleum Company (NNPC) Shell Consortium and instead used its security forces to facilitate the damage; and ( c) failed to provide or permit studies of potential or actual environmental and health risks caused by the oil operations. During a March 1997 site visit, members of the African Commission observed the environmental degradation, and were shown Ogoni villages and homes that had been attacked, burned, and destroyed.
Welcoming the opportunity to “make clear that there is no right in the African Charter that cannot be made effective” and that “international law and human rights must be responsive to African circumstances”, the Commission made a series of particular advances in the economic, social and cultural rights regime. First, the Commission declared that all rights - both civil and political rights and social and economic rights- entail four layers of both negative and positive duties incumbent on a State that undertakes to adhere to a rights regime (i.e. the duty to respect, protect, promote and fulfil these rights). With respect to the duty to respect, the Commission noted that “the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others ... for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.” On the duty to protect, he Commission observed that State protection must include an effective interplay of laws and regulations that found an environment where the individual may fully realize their rights and freedoms. According to the Commission, the duty to promote encompasses the need for the State to promote tolerance, raise awareness and build infrastructures. For the duty to fulfill, the Commission identified a “positive expectation on the part of the State to move its machinery towards the actual realization of the rights.”
Second, the Commission advanced the right to adequate housing on the Continent by stating that, “although the right to housing or shelter is not explicitly provided for under the African Charter, ... when housing is destroyed, property, health, and family life are adversely affected. [T]hus ... the combined effect of Articles 14, 16, and 18(1) reads into the Charter a right to shelter or housing...” Moreover, the Commission extended the right to shelter to “embody the individual’s right to be let alone and to live in peace - whether under a roof or not.” This decision established important legal precedent in the region as it affirmed that the displaced, evicted, and landless each have fundamental rights to shelter and adequate housing.
Third, the Commission became one of the first regional human rights monitoring bodies to find a State in violation of the right to food. Its decision inseparably linked the right to food with the dignity of human beings, the right to health, education, work and political participation. The Commission also reinforced that the State must protect and improve existing food sources, ensure access to adequate food for all citizens, and should not destroy or contaminate food sources or allow private parties to do the same.
Fourth, with respect to the rights to health and a healthy environment, the Commission found that compliance with the spirit of the Charter includes paving the way for independent scientific monitoring of threatened environments, publicizing environmental and social impact studies prior to major industrial developments, environmental monitoring and information-sharing and consultation with stakeholder communities.
Finally, the Commission concretized the necessary role of States to work with and against multinational governments to ensure that social and economic rights are respected protected, promoted, and fulfilled. Observing that “the intervention of multinational corporations may be a potentially positive force for development if the State and the people concerned are ever mindful of the common good and the sacred rights of individuals and communities”, the Commission nonetheless noted that damaging acts may be perpetuated by private parties. The Commission relied upon decisions from two other regional human rights monitoring bodies, the Inter-American Court of Human Rights (Velásquez Rodriguez v. Honduras) and the European Court of Human Rights (X and Y v. Netherlands) to support its holding that the minimum conduct expected of governments is to positively act to protect citizens from private parties seeking to interfere with the enjoyment of their rights.