Confronting the Constitutional Challenges to Realizing the Right to Development of the Niger Delta Communities in Nigeria

Abstract

This chapter seeks to examine the role of law, legislative, regional and multilateral instruments towards confronting the challenges to realizing the right to development of the Niger Delta communities in Nigeria. Such enabling instrument as African Charter on Human and Peoples’ Rights creates legal obligations for African States to implement the right to development. In other words, legal and constitutional protection of the right to development is very important either directly through the inclusion of the right to development in the constitutional bill of rights, or indirectly by ensuring applicability and justiciability of the African Charter in domestic law. This is a cue for the Nigerian government to follow. Inspite of these enabling instruments, the potential of the right to development in Nigeria remains largely untapped. In Africa, and by extension Nigeria, the right to development enjoys a legal status equal to all other human rights (Note 1). This is due to its inclusion in the African Charter on Human and Peoples’ Rights, though the practice of implementation remains hitherto unexplored, nor its potentials as an instrument to protect the well being of the population exhausted (Note 2). This chapter shall review domestic, regional and global instruments of the right to development, examining the case law of the African commission on Human and Peoples’ Right, as well as the duty of the Nigerian government to take into account the right to development of the Niger Delta in furtherance of their international obligations. The African Charter is an innovative and unique regional document that substantially departs from the narrow formulations of other regional and universal human rights instruments, particularly by the insertion of the group and peoples’ rights (Note 3). This work investigates the challenges and constraints to realizing the right to development of the Niger Delta communities of Nigeria amidst the regional, as well as international instruments that guarantee such a right. By constraints and challenges it is meant problem of constitutionalism that assails the opportunity for the involvement of the people of the Niger Delta in whatever decision that concerns their development and restoration of the environment and ecology. It seeks to situate human beings, rather than growth, at the centre of the development process. (Note 4) The right to development appeared in a number of important soft law instruments such as the World Conference on Human Rights Vienna Declaration, The Millennium Declaration, and the Rio+20 Outcome Document (Note 5). These documents were adopted by consensus, not by split vote, yet provided insufficient evidence of a genuine legal conviction supporting the right to development, nor a move towards law making on the right to development. They are therefore mere recommendations lacking in authentic legal force.