Table of Contents
Introduction
For decades, gas flaring in Nigeria’s oil-producing communities was treated as an unavoidable consequence of petroleum exploration. Entire communities lived with constant flames, polluted air, and environmental degradation, while the practice continued with the backing of both multinational oil companies and government regulation.
In 2005, one individual from a small Niger Delta community challenged this reality.
This article examines the case of Jonah Gbemre v. Shell Petroleum Development Company of Nigeria Ltd & Others, a landmark decision in which a single community member successfully took on a multinational oil company and the Federal Government of Nigeria. The judgment marked the first time a Nigerian court declared gas flaring unconstitutional, affirming that economic activity, even one central to the national economy must give way where it violates fundamental human rights.
The Gist of the Matter
Jonah Gbemre was a resident of Iwherekan, a community in Delta State located within Nigeria’s oil-producing Niger Delta region. Like many communities in the area, Iwherekan had for years been subjected to continuous gas flaring arising from oil exploration activities conducted nearby.
Gas flaring involves the burning of excess natural gas during oil production. In Nigeria, the practice had long been permitted under petroleum regulations, despite its well-documented environmental and health consequences. Communities exposed to flaring frequently complained of respiratory illnesses, acid rain, damage to farmland, and general environmental degradation.
The Battle Begins
Against this, Gbemre approached the Federal High Court, Benin Judicial Division, not as a corporation or an interest group, but as an individual acting on his own behalf and on behalf of members of his community. He instituted an action against:
- Shell Petroleum Development Company of Nigeria Ltd, the operator responsible for gas flaring activities in the area;
- The Nigerian National Petroleum Corporation (NNPC), as a joint venture partner in Nigeria’s oil operations; and
- The Attorney-General of the Federation, representing the Federal Government of Nigeria.
The action was brought as a Fundamental Rights Enforcement proceeding. Rather than framing the dispute purely as an environmental or regulatory issue, the applicant grounded his case squarely in constitutional law. He argued that the continuous flaring of gas in and around his community violated rights guaranteed under the 1999 Constitution of the Federal Republic of Nigeria and under international human rights instruments applicable in Nigeria.
What Jonah Gbemre Argued
Specifically, the Applicant, Jonah Gbemre, contended that gas flaring violated his right to life and his right to the dignity of the human person. He further argued that statutory provisions and regulations that permitted gas flaring were inconsistent with the Constitution and should, to that extent, be declared invalid.
What Shell Argued
For the Respondents, Shell, the case raised uncomfortable questions. Gas flaring was not only widespread; it was deeply embedded in Nigeria’s petroleum framework and economic structure. The Respondents argued, among other things, that petroleum operations were regulated by existing laws that permitted gas flaring and that the court ought not to interfere with matters involving national economic policy and resource control.
At its core, the case presented a stark imbalance of power: a single community member on one side, and a multinational oil company alongside the Federal Government on the other.
What the Trial Court Held
The matter was heard by the Federal High Court, Benin Judicial Division, presided over by Justice C.V. Nwokorie. After considering the affidavits and arguments placed before it, the court delivered its judgment on November 2005.
The court held that the continuous gas flaring carried out by the respondents in the Iwherekan community violated the applicant’s fundamental right to life as guaranteed under section 33(1) of the 1999 Constitution and his right to the dignity of the human person under section 34(1) of the Constitution.
In reaching this conclusion, the court emphasized that the constitutional right to life is not limited to mere existence but includes the right to live in an environment that does not endanger health or wellbeing. The court further held that practices that expose individuals to toxic substances and environmental hazards are incompatible with human dignity.
Importantly, the court addressed the argument that gas flaring was permitted under existing petroleum laws and regulations. It held that subsidiary legislation and administrative regulations cannot override or diminish rights guaranteed by the Constitution. To the extent that any statutory provisions or regulations allowed gas flaring in a manner that violated constitutional rights, the court declared them inconsistent with the Constitution and therefore invalid.
The court accordingly granted declaratory and injunctive reliefs, including orders directing the oil companies to cease gas flaring in the Iwherekan community. It also held that the Federal Government had an obligation to bring its regulatory framework into conformity with constitutional and human-rights standards.
Significance of the Judgment
While the judgment did not purport to end gas flaring nationwide, its implications were profound. For the first time, a Nigerian court had unequivocally stated that gas flaring, as practiced, was unconstitutional when it infringed on fundamental rights.
The decision represented a judicial acknowledgment that economic convenience and regulatory tradition cannot justify the violation of constitutionally protected rights.
The significance of Jonah Gbemre v. Shell Petroleum Development Company of Nigeria Ltd & Others lies not in the identity of the applicant, but in what he represented. Gbemre was not a powerful figure, nor did he possess economic leverage or political influence. His strength lay solely in the law and in his willingness to invoke it.
Conclusion
In a country where oil has long been treated as untouchable, the case marked a rare moment when the judiciary asserted constitutional supremacy over economic practice. It demonstrated that even industries central to national revenue are subject to the limits imposed by fundamental rights.
The case also underscored an important principle: the Constitution is not suspended in oil-producing communities. The rights to life and dignity guaranteed therein apply equally, regardless of geography or economic significance.
While the broader struggle against environmental degradation in the Niger Delta continues, this case remains a powerful legal precedent. It is frequently cited in discussions on environmental justice, constitutional law, and human rights in Nigeria and beyond.
As an underdog story, it stands apart from many others. It was not a contest of wealth or influence, but of principle. One individual, armed with the Constitution, confronted a multinational corporation and the Federal Government, and secured a judgment that reshaped legal discourse on environmental rights in Nigeria. In a system where power often appears insulated from accountability, the case serves as a reminder that the courts can still function as a forum where even the wea
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Written by Oladeji Ibukunoluwa
