THE UNITED NATIONS CONVENTION ON CLIMATE CHANGE MECHANISM

FOR EMISSION REDUCTION; EFFICACY IN NIGERIA)

BY

STELLA ANETOR (MRS)

ABSTRACT

It is a United Nation global initiative aimed at stabilizing greenhouse gas

concentration at a level that would prevent human induced interference
with climate system. This became necessary due to the unprecedented
and complexity of the problems associated with climate change the global
environment.

The

United

Nation

Framework

on

Climate

Change

Convention (UNFCCC) and its Kyoto Protocol; and through its designed
mechanism

for

implementation

emission

trading,

the

Joint

implementation mechanism (JI) and the clean development mechanism

(CDM) -focus on four principal core areas to achieve this objective to
include adaptation, mitigation, capacity building and financing. The CDM
allows the developed countries to meet their emission reduction targets
by investing and participating in emission reduction in the developing
countries that do not possess the well with all to engage in such projects.
The developed countries are in turn expected to finance the developing
countries and transfer technology to them to enable them succeed in their
adaptation and mitigation projects in this regard. China has bagged about

1,243 CDM projects. Nigeria on the other hand has recorded only 4 CDM
projects.

This inefficacy of the Kyoto protocol in Nigeria is not unconnected with the
unwillingness of the developed countries to transfer their technology to
the developing countries as well as financing the adaptation and
mitigation plan of the developing countries on the one hand and the
dependant of Nigeria and other developing countries on foreign fund and
technology under the protocol to act on the other hand. Again while the
convention

constituted

an

essential

foundation

for

international

cooperation on climate change, the obligations of parties are largely

aspirational as the convention only encouraged action but does not
compel same. It reward actions but does not penalized inaction.
This paper seeks to discuss the Kyoto protocol, what it referred to as
human- induced interference with the climate system an act the
convention is out to address; and x-ray the policies and adaptable statutes
on the point in Nigeria with a view to revealing constraint to the efficacy of
the convention in Nigeria especially with specific reference to the CDM
which Nigeria as a non annex 1 party is obligated to implement
domestically.
It will make recommendations where necessary and will contribute that
Nigeria has enough existing statutes to cope with the need of the Kyoto
protocol if properly implemented and that there is no basis for foreign
interference in Nigeria in the guise of emission reduction. Nigeria and
other developing countries should learn to dependent on what they can
offer to help the situation domestically and not to see the protocol as a

means of negotiating for fund and technology transfer as these facilities

are not entirely without ideological implications.

INTRODUCTION
The unprecedented and complexity of problems associated with climate
change has led to the establishment of the United Nation Framework
Convention on Climate Change (UNFCCC) in 1992 at the Rio de Janeiro
United Nation Conference on Environmental and Development (UNCED)
and its Kyoto protocol of 1997. The protocol aimed at creating legally
binding obligations for developed countries to reduce their greenhouse
gas emission. The protocol has designed the CDM among other to achieve
its objective by setting a binding target for Annex 1 Parties and which
target allows the developed countries to participate in emission reduction
projects in the developing countries. Climate change and its associated
consequence have been attributed to the emission of greenhouse gases
by highly developed and industrialised countries through their industrial
activities since the break of the industrial revolution.
Although Nigeria in particular and other African countries are not
highly industrialised and therefore could not be held accountable for effect
of greenhouse gases, they cannot be entirely exonerated. Nigeria thrives
in the business of gas flaring a very potential source of greenhouse gas

in the atmosphere. The unsustainable use of forest resources in Nigeria

and

other

African

countries

in

general

by

way

of

irresponsible

deforestation cannot also be divorced from the causes of climate change.

These forests have the power of capturing or sinking the green house
carbon dioxide thereby reducing its effect on the climate system. This
carbon dioxide is one of the most stable and abundant green house gases
in the atmosphere; and its effect on society cannot be over exaggerated.
Nigeria is not insulated from these effects.
The Honourable Federal Minister of Environment in Nigeria Hajia
Hadiza Mailafia enumerated some of the effect of climate change in
Nigeria to include increasing occurrence of flood, erosion and desert
encroachment

in

an

alarming

and

unimaginable

scales;

and

the

agricultural and health sector are not left out leading to social unrest and
distortions of sustainable livelihood. 1 Relating also to the effect of climate
change in Nigeria Engr. Bawuro Yahaya of the Federal Ministry of
Environment Abuja has this to say:2
Climate change is no longer just an environmental issue but also a
developmental issue due to the resultant disruption of economic activities.
It poses a great threat to the global environment and equally to the long
term national and international development efforts towards creating a
healthier more prosperous and sustainable world. The devastating effects
of climate change on the vulnerable states of Africa are particularly
alarming. Although, Nigeria like most developing countries in general and
Africa in particular are not responsible for the actions that have brought
about global warming our people are not insulated from the effects which
have impacted on food, water, energy and security.3
1

. RotimiAjaiyi reports that the Honourable Minister of the Federal Republic of

Nigeria at the 17 Session of the Conference of Parties to the Unfccc and 7 th
section of the conference of parties serving as the meeting of parties to the
Kyoto protocol at Durban in South Africa on the 7 th of December 2012
enumerated these effect of climate change in Nigeria together with policies that
have been put in place to curb the effect in her statement at the conference.
http://www.vanguardngr.com/2011/11/climate-watch-cop-17-nigeria
%e2%80%99s-position-on-negotiation/. Accessed on 29th June 2013.
2

. Special Climate Change Unit (Sccu) National Environmental, Economic &Developmet

Study (NEEDS) for Climate Change in Nigeria Final Draft; Sept. 2010;
http://www.vanguard.com/2011/11/climate-watch-cop-17. Accessed 29th June 2013.
3
. Ibid.

The statement of Engr. Bawuro Yahaya is with respect not entirely

correct. It is either he is ignorant or he is pretending not to know that
activities such as deforestation, gas flaring to mention a few which Nigeria
and other developing countries are engaged in contributes to the
concentration of greenhouse gases in the atmosphere. Nigeria now rates
the highest gas flaring country in the world second to Russia.4
Nigeria has in order to fight this global menace join the rest of the
world to sign the UNFCCC and its Kyoto protocol. Nigeria ratified the
convention on 10thDecember 2004. Although a Non-Annex 1 party, it has
obligation to ensure reduction of these gases at domestic level.
Accordingly measures have been put in place to ensure positive results
though no specific enactment has been made pursuant to the convention.
The Honourable Minister in a statement which incorporates plans to
address the issues and effect of climate change in Nigeria announced the
following policies:5
a.

The Climate Bill which is aimed at institutionalizing climate change

governance in Nigeria.

b.

National Policy Framework on Climate Change.

c.

National Adaptation Strategy and Plans of Action (NASPA) on climate

change

in
Nigeria.

d.

The Redd + programme which recently been approved by the

United

Nation

to

the tune of over $4m in the first instance to further its forestation
programme.
4

. Friends of the Earth; Nigeria flares about 400 million tons of carbon dioxide every
year: http://www.foei.org/en/get-involved/take-action/archchived-cyberaction/stopflaring/a-valuable-resource-goes-up-in-smoke. Accessed 29th June 2013.
5
. Ibid note 1

e.

The renewable energy initiatives.

f.

The solar farm project in Kaduna

She mentioned also at the community level a number of local

governments are involved in the global initiatives on climate change and
climate resilient activities.
Nigeria also has adopted the other two convention of Rio conference of
1992 pursuant to is identifying with the collective crusade on noninterference with the climate system:
-

The Convention on Biodiversity.

The Convention to Combat Desertification.

There also exist statutes on this field of works which are adaptable
pursuant to the reduction of emission of greenhouse gases. They include
but not limited to the following: National Park Service Act 2004,
Endangered

Species

(Control

of

International

Trade)

Environmental (Access to Genetic Resources and Benefit

Act;

National

Sharing)

Regulation 2009.6, National Environmental (Ozone Layer Protection)

Regulation 2009 and the Associated Gas Re Injection Act 1969 as
amended in 1985 to mention a few.
Nigeria like other developing countries rested the implementation of all of
these policies on the CDM funding target for developed countries. This
reasoning

and

others

makes

the

CDM

unattractive

leading

to

enforceability problems.7
The protocol was however seen to be ineffective in its goals and as a
result the Bali Action Plan (BAP) was negotiated and adopted to replace
the protocol and to facilitate the set out objective of the protocol through
6

Statutory instrument No. 30 of 2009. Cited in Aigbokhaevbo V. O. ; Combating

environmental crimes in Nigeria: A daunting uncertainty; Nail Journal of Environmental
Law Vol.1 2011.
7
. Heirich Boll stiftung; Nigerias Commitments On Climate Change Agreements:
http://www.unfccc.int/national-report/napa/item2719.php. Accessed 29th June 2013.

the CDM. United States has refused to ratify and countries like Canada
and Japan who have ratified are opting out8. Other countries too are likely
to still opt out. Reasons being that every country is concerned with the
benefit to achieve in the CDM. Whereas Nigeria and other developing
countries see the CDM as a jackpot, some of the developed countries who
have the responsibility under the protocol to finance and to transfer
technology to the developing countries see it as a burden. United States
indeed insists that every country should bear its own cross in the crusade
of the emission reduction.9 In all Nigeria success in Kyoto protocol in term
CDM projects is very low and not commendable.
The following sub heads promised a detailed discussion of the Unfccc, its
Kyoto protocol and efficacy in Nigeria.
Historical Background of TheUnfccc And Its Kyoto Protocol:
The overt effect of greenhouse gases in the world societies today which
were believed to be human induced necessitated the adoption of the
Unfcccand its Kyoto protocol. The concentration of greenhouse gases in
the atmosphere was believed also to have increased greatly since the
beginning of the era of the industrial revolution. According to professor
Atsegbua10, the amount of carbondioxide in the atmosphere has changed
in the past 150 years. It has increased from 280 ppmv (part per million by
volume) at the time of the industrial revolution to 367 ppmv today. He
compared the presence ofcarbon dioxide and the effect of other
greenhouse gases and said:
Other green house gases are less common than
carbon dioxide in the atmosphere but have more
8

. Commentaries and analysis; Unfcc and its Kyoto protocol:

https://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Climate_Change .

Accessed 29th

June 2012.
9
. Ibid.
10

. Atsegbua L. et al Environmental Law in Nigeria Theory and Practice (Benin city:

Ambik Press, 2012), p 273

potent effects. Nitrous oxide, for example, is

only one thousandth as common as carbondioxide, but is 200 3000 times effective
attrapping heat and remains in the atmosphere
far longer than carbon dioxide. Chlorophorocarbons,
which were not present in the atmosphere
at all, prior to the industrial revolution, have
warming effects ranging from 3,000 to 13,000
times than that of carbon dioxide, and persist
for up to 400 years.11
Another source has said of the effect too as follows:
The climate system would take time to
respond to stabilization in the atmospheric
concentration of carbon dioxide. Temperature
stabilization would be expected within
a few centuries. Sea level rise due to
thermal expansion would be expected
to continue for centuries to millennia.
Additional sea level rise due to ice melting
would be expected to continue for
several millennia.12
The above position would be made worse if there is continuance of
addition of these greenhouse gases to the atmosphere through dangerous
human induced interference with the climate system. As a result at the
Earth Summit in 1992 the UNFCCC was adopted and opened to
signatories. This treaty which came into force in 1994 created a
dichotomy among its members according to their commitments and
capacity to act13. And so there is the Annex 1 parties, Annex 11 parties,
Economies in Transition (EIT) parties and Non-Annex 1 parties a category
to which Nigeria and most developing countries belong. As a follow up, its
Kyoto protocol was adopted in 1997 to create target for its Annex 1 parties
and to bind them to act.

11

. Ibid

12

. A talk on stabilization of greenhouse gases concentration at the Earth

Summit, held in Rio de Janeiro 1992 on the need to have a treaty to stabilize
greenhouse gases.

https://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Cl
imate_Change. accessed 29th June 2013.
13

. AigbokhaevboV. O.; International Environmental Law Principles: Sustainability

Challenges, p.156

The basic and ultimate aim of this treaty is to prevent dangerous human
interference with the climate system. In order to effectively do this, the
Kyoto protocol established three mechanisms for implementation emission trading, the Joint implementation mechanism (JI) and the clean
development mechanism CDM14.The JI and CDM are said to be two projectbased mechanisms which feed the carbon market15.
Whereas the JI enables industrialized countries to carry out joint
implementation projects with other developed countries, the CDM involves
investment in sustainable development projects that reduce emissions in
developing countries. The carbon market is a key tool for reducing
emissions worldwide. The CDM creates targets for parties to reduce
emission of greenhouse gases. By itNon- Annex 1 parties which basically
are developing countries are to engage in adaptation and mitigation
projects to enable them cope with the already effects of climate change
and the Annex 1 parties which are the developed countries are to engage
in the transfer of technology to the developing countries to facilitate those
projects, finance these project and at the same time engage in
environmental friendly emission reduction projects in the developing
countries.
However the implementation of the goals of the CDM by the Kyoto
protocol was seen to be gravitating towards the realm of fantasy.

The

corollary was a meeting of the Conference of Parties (COP) in Bali in the

year 2007 to discuss a lasting and a future effort at controlling the impact
of climate change around the world. The COP saw the need to negotiate a
new global treaty to replace the Kyoto protocol. As a result the Bali Action
14

. The Mechanisms Under the Kyoto protocol: Emission Trading. The Clean Development
Mechanism and Joint Implementation;
http://www.unfccc.int/kyoto_protocol/mechanisms/item/1673.php.Accessed 29th June
2013.
15
. Ibid.

Plan (BAP) was established16. Its mandate was a cooperative effort in

reduction of emission of greenhouse gases with a view to providing
financial support to the developing countries in this regard. This financial
support is focused on the four core areas of the CDM viz: adaptation,
mitigation, capacity building and technology transfer. 17
Greenhouse Gases: These are dangerous gases whose presence and
concentration in the atmosphere has been attributed to the cause of
climate change. Climate change would result in global warming, ice
melting, flooding, loss of biodiversity, shortage of agricultural products to
mention a few. They have been said to be induced by human activities
which will result in the emission of four principal greenhouse gases 18:
carbon-dioxide, methane, nitrous oxide and

the halocarbons (a group

of gases containing fluorine, chlorineandbromine). In all of the gases the

report says carbon dioxide is the most abundant in the atmosphere.19
Causes of Green House Gases: The emission of gases from industrial
activities since the beginning of the industrial revolution has been
attributed to the cause of the dangerous greenhouse gases in the
atmosphere. This also has been linked with the activities of the highly
industrialized economies of the world. Hence the Kyoto protocol has
through the CDM stock them with the duty to transfer technology to the
developing countries to enable engage in project that would help them
adapt to the ill of climate change which has resulted from their industrial
activities over the years.
Indeed Engr. Bawuro of the federal ministry of environment has said
that Nigeria in particular and other African nations in general though not
16

. International efforts for green house gas reduction and climate change:
http://www.unfccc.int/national-reports/napa/item 2719.php. Accessed 29th June 2013.
17
. Ibid.
18
. Ibid note 10. p.272.
19
. Ibid.

insulated from the impact of climate change are not responsible for the
actions that has brought about global warming one of the indices of
climate change.20 This position cannot be applauded. Today Nigeria is
rated the highest gas flarer in the world second to Russia.21
Gas flaring is one of the dangerous human induced interference that
constantly add to the concentration of carbon dioxide in the atmosphere an act the Kyoto protocol is out to prevent.
Deforestation As A Cause Of Green House Gases: Deforestation is
the removal of the forest cover which include trees, shrubs, mangrove,
grasses to mention a few. Forest in Nigeria and in most African countries is
an enviable endowment. This forest has the power of sinking the
atmospheric greenhouse gas carbon-dioxide through a biological process
of photosynthesis which takes place in green plants. During the process
carbon dioxide from the atmosphere is taken in by plants and oxygen
which supports live is given out. In this way the forest acts as a sink to
carbon-dioxide thereby capturing the gas from the atmosphere into the
forest.
As a result of the need for development and urbanisation as well as
other uses of the forest resource, the forest has been unsustainably
encroached thereby relieving it of its activities of storing this dangerous
carbon-dioxide. The fall out of this is that a lot of carbon dioxide which
would have been stored in the forest but for the interference of man are
now let loose into the air thereby increasing the concentration of this gas
in the atmosphere though very minimal just about 2.0 GTC (Gigations of
Carbon)22. The Kyoto protocol too recognises that although every country
20

. A report on what Nigeria position should be at the negotiation table in Durban in

south Africa
21
. Ibid not 4.
22
. Atsegbua ibid p. 273

in the world has in one way or other contributed to the concentration of

green house gases in the atmosphere and by extension has contributed to
climate change, their contribution is of varying degrees hence the
dichotomy in parties commitment in the protocol.

Classification of Parties Under The Unfcc:

In other to achieve the goals of the Kyoto protocol, the convention
classified its 195 members to the convention into four different
categories23: Annex 1 parties, Annex 11 parties, annex B parties and NonAnnex 1 parties.
Annex 1 Parties: This include developed (industrialised) countries and
Economies in Transition (EIT) ie the former Centrally-Plan Soviet Union
Economies Russia and Eastern Europe. The European Union also falls
under the class.

Annex 1 parties are under obligation in the Kyoto

protocol to finance and to transfer technology to developing countries to

assist them achieve the CDM goals of adaptation and mitigation, capacity
building and financing. The rational was to reflect the historical
contribution of the developed countries to the concentration of green
house gases in the atmosphere, climate change and its associated
adverse effect. A source said of this rational as follows 24:
Despite not being responsible for the problem
of global warming, developing countries are
23

. Classification of Parties and their commitments:http://en.wikipedia.org/w/index.php?

title=united_nation_framework_convention_on_climate_change&action=edit&section=1.
Accessed 29th June 2013.
24
. Commitments for annex 1 parties under paragraph 1(b)(i) of the Bali Action Plan:
Evaluating developed countries historical climate debt to developing countries;
submission by the Republic of Boliva to the AWG-LCA: http://unfccc/files/kyotoprotocol/application/pdf/bolivia250. accessed 29th June 2013

among the worst affected by its impacts.

The historical emission of developed countries,
as well as denying developing countries the
atmospheric space they need for development,
are harming the poor countries and people
who live daily with rising cost, damages
and lost of opportunities for development.
These impacts are the directly result of
current atmospheric concentrations which
have been caused predominantly by
emission from developed countries.
Developed countries are thus responsible
for compensating the developing countries
for their contribution to the adverse effect
of climate change as part of an
adaptation debt owed by the developed
countries to the developing countries.25
Annex 11 Parties: These are members of the Organisation for Economic
Cooperation and Development (OECD). They are about twelve in number.
Like the Annex 1 parties, they are also under obligation to provide
financial support to EIT and developing countries in order to help them
mitigate and also adapt to climate change.
Annex B Parties: These are members of Annex 1 parties with first or
second round target to the Kyoto protocol. The first round target is 2008
2012 the second round target is 2013 2020.
Non-Annex 1 Parties: These are developing countries. They also include
the least developed countries that are given special status under the
treaty to assist them to mitigate and adapt to the effect of climate
change.
The Kyoto Protocol and the Clean Development Mechanism(CDM):
The CDM is one of the Kyoto designed mechanisms to enable it achieve its
goal of preventing human interference with the climate system through
the reduction of greenhouse gases that would increase their concentration
in the atmosphere. Although there are other designed mechanism for the
implementation of the Kyoto protocol, such as the Joint implementation
25

. Ibid.

mechanism (JI) and the Emission trading mechanism (ETM), it is the CDM
that directly deals with the Non-Annex 1 countries which affects Nigeria
and other developing countries of Africa. By the CDM, Annex 1 parties are
allowed to invest in sustainable development projects that reduce
emissions in developing countries.The CDM and the JI of the Kyoto
protocol are designed to feed the carbon market. 26According to a source in
order to qualify to participate in the carbon market Annex 1 parties must
meet the some requirement which include but not limited to the
following:27

a.

they must have ratified the Kyoto Protocol

b.

they must have calculated their assigned amount in terms of tonnes

of

carbon
equivalent emissions.

c.

they must have in place a national system for estimating emissions

and

removals
of green house gases with their territory.

d.

they must have in place a national registry to record and track the
creation
and movement of ERUs, CERs, AAUs and RMUs and must
annually

report

such

information to the secretariat.

e.

they must annually report information on emissions and the

secretariat.

26

27

. Ibid.

Ibid note 14.

The CDM in essence is designed to be beneficial to both the

developed and the developing countries while at the same time complying
with their target under the protocol. It has been summarised as follows:
The CDM is one of the market-based mechanisms
under the UNFCCC/Kyoto Protocol which
provides for industrialized countries to
invest in emission-reducing projects in
developing countries and to use the CERs
credits towards their own compliance with
the emission limitation targets set forth by the
Kyoto Protocol.28
Nigeira The Unfccc, Its Kyoto Protocol And The CDM:
Although Nigerian is rated the highest gas flaring country in the world 29,
and

also

has

engaged

in

other

acts

capable

of

increasing

the

concentration of greenhouse gas in the atmosphere such as the

unsustainable use of forest resources a resource with potential value of
carbon sink, and by extension has contributed to climate change, Engr.
Bawuro Yahayaof the Federal Ministry Of Environment, Abuja has said that
Nigeria in particular and African countries in general are not responsible
for the acts that has resulted in climate change. And because Nigeria is
not insulated from the effect of climate change it has to join the rest of the
world to fight its effect and eradication. As a result Nigeria on 10 th
December, 2004ratified the Unfccc. Nigeria is listed as a Non-Annex 1
party under the convention. This means that Nigeria is one of the parties
to benefit from the carbon market by way of developed countries
investment in sustainable and environmental friendly CDM developmental
projects in Nigeria. Nigeria like the rest of Non-Annex 1 parties has a duty
to adapt to the effect of climate change and to mitigate it; and to allow
transfer of technology from the developed countries that will help it invest
28

. Heinrich Boll Stiftung Nigeria; Clean Development Mechanism:

http://unfcc.int/national-reports/napa/item2719.php. Accessed 29th June 2013.
29
. ibid note 4.

in adaptation and mitigation projects as well as allow foreign investment

in this regard.
Pursuant to Nigeria status as a Non Annex 1 party it has some
corresponding obligations also under the Kyoto protocol. They include but
not limited to the following:30
-

to produce for key national communications

to produce four in-depth review/summaries

to produce a demonstrable progress report and

to produce a global climate observing system (GCOs) report.

As part of plans to address climate change and the greenhouse reduction

goal in tune with the demands of the CDM, Nigeria has put in place some
environmental policies to include the following31:
-

The climate change bill which is aimed at institutionalizing climate

change
governance in Nigeria.
-

The national policy framework in climate change.

National Adaptation Strategy and Plans of Action (NASPA) on climate

change

in
Nigeria.

The Nigerian Redd programme which has recently been approved by

the

United
Nations to the tune of over $4m in the first instance to further its
forestation
programme.

30

The renewable energy initiatives.

. Heirich Boll foundation Nigeria; W:www.boellnigeria.org. Accessed 29 th June 2013.

.These policies formed part of the speech of the Honourable Minister of the Federal
Republic of Nigeria at the 17 Session of the Conference of Parties to the Unfccc and 7 th
section of the conference of parties serving as the meeting of parties to the Kyoto
protocol at Durban in South Africa on the 7th of December 2012.
31

The solar farm project in Kaduna.

It has also been said that at the community level, a number of local
government are involved in the global initiatives on climate change and
climate resilient activities.32
Back home and outside the Unfccc and its Kyoto protocol and the CDM,
Nigerian has some national policies and statutes in places which if well
implemented would address the problems of climate change. They
include:
National Policy on Drought and Desertification
Drought Preparedness Plan
National Policy on Erosion, Flood Control and Coastal Zone
Management
National Forest Policy
National Park Service Act 2004
Endangered Species (Control of International Trade) Act 2004
National Environmental (Access to Genetic Resources and Benefit
Sharing)
-

Regulation 2009.33
National Environmental (Ozone Layer Protection) Regulation 2009 34;
Associated Gas Re-Injection Act 1979 As Amended in 1985; all to

mention a few.
For the purpose of this paper, only a few of the above mentioned statutes
will be discussed.
National Policy on Drought and Desertification:

Climate change

intensifies drought and desertification in part of the country that are prone
to this environmental problem.

The policy therefore emphasis on

equipped relevant agencies, institutions and citizens to adequately collect,

analyse and use climate data effectively to ameliorate and combat
drought and desertification. Specifically it provided among others for the
strengthening of agencies, institutions and facilities for the collection and
analysis of meteorological and hydrological as well as for dissemination of
information; upgrading the existing national early warning facilities for
32
33
34

. Ibid.
. Ibid note 6.
. Ibid.

more efficient service delivery. Indeed this policy is clearly in tune with the
Unfccc demands on information. Access to information has been stressed
by

the

Unfccc

as

one

of

the

key

indices

to

fighting

climate

change.Aigbokhaevbo V. O. is quoted on this point as follow: 35

Access to information is stressed by the 1992
Unfccc, the 1979 kyoto protocol to the Unfccc
reiterated the importance of education, training
and public awareness of issues relating to climate
change.
Experience however has shown that this policy is only effective on paper
because the power to act after warning of imminent danger of climate
change has been given is not the hands of the agencies. 36 It is not enough
to make policies. They must be enforced for it to give desired result.
The National Forest Policy: The policy focus toward ensuring
sustainable forest management, promoting participatory process of
development,

facilitating

private

sector-forestry

development

and

adopting and integrated approach to forestry development. This policy

also is only effective on paper as today in Nigeria one of most
unsustainably utilized resources is forest resources. This is because the
state has neglected the enforcement of the policy.
National Park Service Act: One of the statutes that flew from the
national forest policy is the National Park Service Act. The main thrust of
this act is to preserve, protect wildlife, plant and vegetation in national
parks and related matters.

However the Act did not provide for any

measure to encourage sustainable resource management. This has led to

the unsustainable use of the forest resources by even encroachment into
National Parks without consequence. This Act if well enforced will serve

35

. Ibid note 13 at p. 157.

. In the recent flood disaster that ravaged parts of Nigeria there was enough warning
from this department and even from foreign bodies. However there was no corresponding
agency in place to act until the dreaded evil took place.
36

the same purpose as Redd under the mitigation initiative of the Kyoto
protocol CDM37.
National Environmental (Access to Genetic Resources and Benefit
Sharing) Regulation 2009:
According to Aigbokhaevbo V. O., 38 this statutes insist on the conservation,
monitoring and stipulates that a person shall not engage in any activity
that may adversely impact on any ecosystem leading to the extinction of
any exotic species or leading to unsustainable use of natural resources
without an environmental impact statement (italics and underline are
mine). The statute provided for maximum penalty for violation to the tune
N10m and N1m for everyday the violation persist in the case of an
individual, and N100mtogether with additional N1m for everyday of
violation in the case of corporate violators. This statute would have gone a
long way in addressing some of the problems which the Unfccc,its Kyoto
protocol and the CDM and now the BaliAction Plan (BAP) seek to address if
it

were

allowed

exist

beyond

the

paper

and

well

implemented.

Environmental impact assessment of an oil producing company will

definitely reveal gas flaring and all its impact. And if this statute were to
be enforced, such a company should not even exist at all except there are
procedures put in place to absorb such waste such as associated gas
gathering plants to prevent any flare. This is what the Unfccc and Kyoto
protocol CDM seek to achieve in developing countries. The Annex 1
parties of the Unfccc and the Kyoto protocol are the owners of the
multinational oil companies that operate in Nigeria and elsewhere in the
Africa. Nigeria therefore does not need the CDM facilities to contribute to
reduction of greenhouse gas.
37

. Under the mitigation plan of the Kyoto protocol mechanism for enforcement, Nigeria and other tropical
forest countries in the Unfccc which are basically African countries were to as part of their commitment abstain
from deforestation and activities that will operate to degrade the forest. This was the whole rational behind the
REDD.
38

. Ibid note 6

In violation of this statute most companies have existed in Nigeria without

such environmental impact assessment with impunity. This attitude of
making laws without enforcement, go to show that Nigeria through its
laws is a toothless bull dog. This law alone has the potency of cleansing
the environment if these violators were made to pay the maximum fine
and even jailed on grounds of such violation. This is what obtains under
the Environmental Protection Agency (EPA) of United States 39. Under the
United States EPA, even corporations managers have been jailed on
grounds of environmental laws infractions 40. America has insisted that it
has plans in place to reduce greenhouse gas domestically outside the
Kyoto protocol. It has resisted ratification of the convention till date41.
National Environmental (Ozone Layer Protection) Regulation
2009:
This statute prohibits the importation, manufacture in part or in whole,
install,
offer for sale, sell or buy any or refurbished facilities intended to be used
for the production of any ozone depleting substance unless for the
recovery and recycling of any such substance already in use. 42 Penalty is
prescribed for violations although they are not adequate and they hardly
ever enforced. This statute by its dictates will rid the atmosphere of
greenhouse gases outside the Kyoto protocol arrangement if well
enforced.
Associated Gas Re-Injection Act 1979 As Amended in 1985:
The basic aim of this statute is to phase out gas flaring. This statute which
is propelled towards reduction of greenhouse gas existed long before the
Unfccc global initiative to stabilize greenhouse gases. Earlier in 1969 the
military administration of Genral Yakubu Gowon announced a deadline for
39

. Omaka C. A. Jurisprudence of Polluter Pay Principles and Environmental Criminal

Enforcement: Philosophical Issues in Nigerian Public Laws p.47
40
. Ibid.
41
. Commentaries and analysis; Unfcc and its Kyoto protocol:
https://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Climate_Change . Accessed 29th June
2013.
42
. Ibid

gas flaring in Nigeria which deadline could not stand because the Nigeria
government has continued to allow itself to be influenced by economic
consideration and the multinational who are stakeholders in this oil
industry have taken advantage of the weakness of the government to
coerce it into pushing back the deadline it sets to stop gas flaring 43. This
dead line was then shifted to 1979 and to ensure visibility of the date a
statute was enacted the Associated Gas Re-Injection Act 1979 as
amended in 1985.
This statute place the deadline on 1st of April 1980. Apart from the
fact that the penalties prescribed by this statute encourage violation of
the statute than obedience, the bane of this statute is that it gave the
Minister the discretion to issue certificate of continued flare when a
specific amount is paid. The corollary is that since 1980 till date the
Minister has continued to issue certificate of continue flare and has
continued to be docile as regard the enforcement of the law. The case of
Jonah Gbemre v SPDC44 complemented the statute when it held that gas
flaring is illegal. Today Nigeria control about a hundred gas flaring site and
has been rated the highest gas flaring country in the world 45. This paper
sees this position alone as enough incentive for foreign investors and not
really the need to reduce greenhouse gases.
If the Nigerian government has since 1969 insisted on the deadline
and force these multinationals to comply by absorbing their waste or go,
Nigeria would have been a better place today and so much greenhouse
gas would have been averted thereby reducing its interference on the
climate system an act the Unfccc is out to achieve. There would therefore
be no incentive for foreign interference in the guise of stabilization or
43

. Olukoya s.; Nigeria: inefficient gas flaring remains unchecked:

http://www.corpwatch.org/article.php?id=14892. Accessed 29th June 2013. See also
Friends of the Earth: Flare-Out Deadline: A Moving Target.; http://jikobmu.de/english/service/host-country-information/doc/672.php. accessed 29th June 2013.
44
. Suit No. FHC/3/C5/53/05 (Unreported) .
45
. Ibid, note 43.

reduction of emission of greenhouse gases. Ironically the Nigerian

government as well as most African countries in the Unfcccsees it as a
jackpot opportunity to negotiate benefits under the Kyoto in terms of
foreign transfer of technology, and financial support from Annex 1
parties46. They have failed to realise that it is bait another form of
colonialism. Under the mitigation plan of the Kyoto protocol mechanism
for enforcement, Nigeria and other tropical forest countries in the Unfccc
which are basically African countries were to as part of their commitment
abstain from deforestation and activities that will operate to degrade the
forest. This was the whole rational behind the REDD47.
However the hope of the Annex 1 parties were dashed when in 2006
at Bali, a coalition of some African tropical forest countries (Bolivar,
Central African Republic, Costa Rica, Dominican Republic, Nicaragua,
Papua New Guinea and Solomon Islands) came up with the argument for
financial mechanisms and technical support to developing countries to
effectively and significantly reduce emission from deforestation. This
argument has since then created a major recession and has put a damper
on the hopes of the Annex 1 parties. A source summarised it thus:
A Bali, the prospect of payment for carbon locked
up in tropical forests opened the possibility of
substantial transfer of money from the historical
emitters of greenhouse gases to participating
developing countries. Since then, however, a
major global recession has set in, and has put
a damper on these hopes.48
This outreaching demand of these tropical forest countries has led some
Annex 1 parties never to ratify the protocol and others to so say they
46

. The Honourable Minister On Environment was addressing the press in Abuja on what
was to look out for in the 17th conference of parties which held in Durban in South Africa
on 7th of December 2012
47
. Mitigation and Adaptation through REDD;
http://www.guardian.co.uk/environment/2012/sep/10/global-carbon-trading system.
Accessed 29th June 2013.
48
. Bali 2007 conference of parties;
http://www.guardian.co.uk/environment/2012/sep/10/global-carbon-trading
system.Accessed 29th June 2013.

would file out of the Unfccc and its Kyoto protocol 49.

It is part of the

position of the United States that the convention should have created a
target also for developing countries who now are the largest emitters of
carbon dioxide. These largest carbon dioxide emitters in the developing
countries are the multinational oil companies the Annex 1 parties. The
above is a pointer to the fact that the Unfccc is pregnant with some
ideological implications50.
Nigeria can enforce its laws on this point to achieve the same goal
outside the convention and make huge profits while at the same time
complies with the demands of the Kyoto protocol instead of relying on
foreign financial support and technology transfer which will sink this
country again. It can indeed compel these multinationals to absorb their
waste or quit. A case however has been made in favour of the Unfccc that
global environmental challenges are better dealt with through cooperative
and compromise rather than through rigid application of rules. While this
position cannot be faulted, the other side of the coin presents that
international treaties are always poorly enforced and cannot as in this
case yield desired results.
This is not unconnected with the clog of territorial sovereignty of
states which will operate to prevent compelling any state to comply. There
is also the problem of values and cultural relativism. And more so the
49

. The U.S never ratified the protocol. It says that it is an economic issue every
bit of it. Canada formally withdrew in 2011. It says it cannot force its citizens to
pay penalties that would result in wealth transfers out of Canada. In 2010, Japan
say it will not sign up to a second Kyoto term, because it would impose
restrictions on it not faced by its main economic competitors, - China, India and
Indonesia. At the 2012 conference Russia, Ukraine, Belarus and Kazakhstan
raised objections which were ignored by the governing officials. They have
indicated their intentions to withdraw or will not ratify the treaty. Commentaries
and analysis; Unfcc and its Kyoto protocol:
th
https://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Climate_Change.Accessed 29
June 2013.
50

. Their investment would still even go to breach the mitigation initiatives of the Kyoto
protocol because, except these investments will stand in the air or on the seas, they will
still engage in deforestation to have space for such developmental projects. The Unfccc
and its Kyoto protocol seek to discourage deforestation.

convention itself encourages and reward actions but does penalize

inaction. The position taken by the United States government is apt in this
regard. The U.S Climate Change Envoy - ToddStern speaks on the U.S
position thus:
Climate change is not a conventional environmental issue.
It implicates virtually every aspect of a states economy,
so it makes countries nervous about growth and development.
This is an economic issue every bit as it is an environment
one ... the united nation frame work convention on
climate change is a multilateral body concerned with
climate change and can be an inefficient systemfor
enacting international policy. The framework system
includes over 190 countries and because negotiations
are governed by consensus, small groups of countries
can often block progress. 51

Till date the Unfccc have not been able to compel the United States to
ratify the convention. Canada has bolted out and is today negotiating
bilateral relationship with the United States on the climate system with no
consequences of disregarding the Unfccc52.
Again the insistence of Non Annex 1 parties who owns huge resource of
tropical forest on payment by the Annex 1 parties in order for the
developing countries to effectively and significantly reduce emission from
deforestation was seen by the historical greenhouse gas emitters as a
barrier to progress.
The Efficacy Of The Unfccc And Its Kyoto Protocol In Nigeria:
Although Nigeria has bagged four CDM projects 53, its major achievement
so far in responding to the Kyoto protocol and the convention obligations
has been said to be in the production of the first national communication
in November 2003. When this position is compared to what obtains in the
Peoples Republic of China, the conclusion would be that there is nothing to
write home about the efficacy of the convention in Nigeria. Whereas China

51

.Ibid.

52

. Ibid.

53

. Nigeria has registered another project under the United Nations Framework Convention on
Climate Change (UNFCCC) Clean Development Mechanism (CDM), bringing the total registered
projects for the country to four: The Asuokpu/Umutu Gas Recovery facility. http://www.inewswire.com. Accessed 29th June 2013.

has bagged 1,243 CDM projectsout of about 1739 CDM projects 54, Nigeria
has just only four to show for it. South Africa has 15 and other African
countries have one or two each.
In all of these however there is no information so far as to how
these projects have impacted on the concentration of greenhouse gases
globally in terms of stability, reduction or increase. Nonetheless several
reasons have been attributed to this lack of success on the part of Nigeria
and other African countries on the one hand and huge success record by
China on the other hand. Whereas Nigerian has insisted that Annex 1
parties honour their commitment under the Kyoto protocol 55 and sat back
waiting for financial support and technology transfer from the developed
countries who are already filing out of the Kyoto protocol, the Peoples
Republic of China decided to involve the Asian Development Bank to
render to it technical assistant on the establishment of CDM mechanism
fund in the china which request was acceded. China then put special
governance in place to drive and mobilize the resources. Heinrich Boll
Stiftung Nigeria distinguishing the success recorded by the Peoples
Republic of China says that the major challenges facing the development
of CDM in Nigeria is that there is no appropriate and effective governance
to drive mobilization of resources on a grid platform at internal/external
and public/private levels. The external governance is on the part of the
conference of parties (COP) while internal governance is on the part of the
countrys leadership. This it said was the ingredient that accounted for

54

. http://www.nccrclimate.unibe.ch/conferences/climate_policies/working_papers/Schwank.pdf.
Accessed 29th June 2013.
55

.Heirich Boll stiftung report that Nigeria affirms that financial commitments have not
been met by developed country parties and emphasized the urgent need for these
parties to honour their commitments in accordance with article 4, and in particular
articles 4.3, 4.4 and 4.5 of the convention by providing resources to support adaptation,
mitigation and technology transfer in developing countries. Ibid note 7.

china success with the CDM. An ingredient not found in the Nigerian
case56. The source narrated the history of chinas success:
...the government of the Peoples Republic of China (PRC) requested
technical assistance (Ta) from the Asian Development Bank (ADB) for
establishment of the CDM fund in the PRC. At the request of the
government, ADB sent a mission to the PRC to undertake reconnaissance
about the CDM fund from 18 to 20 January 2006. National experts were
engaged as staff consultants to provide a background analysis concerning
the institutional structure and operational modalities of the proposed CDM
fund. A joint review meeting was held at ADB on 15 17 February 2006
between the government, ADB and staff consultants to discuss the
consultant report. Based on findings of the reconnaissance mission and
staff consultants study the ADB fact-finding mission visited the PRC from
4 to 7 April 2006 and reached agreement with the government regarding
the TAs impact, outcome, outputs, implementation arrangements, cost,
financing arrangement and terms of reference. On the submission of
ADBs

report,

the government

immediately established

and

inter-

ministerial national policy coordination group, headed by the National

Development And Reform Commission (NDRC), to provide oversight for
policy development and decision making on climate change-related
activities. This was the beginning of the success that China has recorded
on CDM to date.57
In a nut shell, the effectiveness of environmental policies in Nigeria as well
as their potentials to support adaptation and mitigation measures of the
Kyoto protocol is yet to be fully realised. Nigeria is ill equipped not only in
term of fund or technology but also in terms to conceptualizing all it takes

56
57

. Ibid note 7.
. Ibid.

to make the Unfccc visible in Nigeria. Obviously it allowed its vision to be

blurred by the vain promises of the Kyoto protocol.
Recommendation:
1.
Nigeria has more than enough laws that would answer to the demands
of the Unfccc and its Kyoto protocol on prevention of human induced
interference on the climate system. It is recommended that Nigeria
look at the enforcement of these laws outside the Kyoto protocol. This
also is

the position of the U.S that led it never to ratify the

convention.
2.
If Nigeria must drive CDM projects home, it should take a clue from
the
3.

China position and not to wait for financial support which is not free.
Nigeria can through the environmental impact assessment provided

for

in the National Environmental (Access to Genetic Resources and

Benefit

Sharing) Regulation 2009 compel the multinational oil

companies which are the same persons coming now to invest in Nigeria in
the guise of CDM reduction target to absorb their waste through these
same proposed technologies and also collect heavy tax on such
associated gathered gas. In this way it will make profits and at the same
time contribute to the reduction of greenhouse gases; instead of allowing
itself to be a debtor to Annex 1 parties in the guise of financial support
and technology transfers.
4.
The procedure of enforcement of the EPA of the United States is
5.

recommended for Nigeria to enforce its environmental laws.

The Associated Gas Re-Injection Act 1979 As Amended in 1985

should be

reviewed

so

that

its

penalties

will

be

in

tune

with

contemporary realities. The discretion given to Minister of Petroleum

under the Act to issue certificate of continue flares when a certain amount
is paid should be removed.
6.
The Nigeria government should put behind economic considerations
as

reason not to act decisively. The multinational are in business and

will

want to comply if Nigeria insists on enforcing its laws. Nigeria too

can survive without the oil.

Conclusively, the Unfccc and its Kyoto protocol global initiative of
preventing

dangerous

interference

with

the

climate

system

and

stabilization of the atmospheric greenhouse gases is a step in the right

direction. However hinging its efficacy on investing on carbon reduction
projection in African nations is seen to be pregnant with ideological
implication and is not supported. The convention enforcement mechanism
should mirror the position of the United States that, states parties should
comply with the Unfccc demands from their domain. The efficacy of the
convention in Nigeria is not encouraging. Nigeria today still controls about
a hundred sites of gas flares and unsustainable utilisation of forest
resources is in the increase in spite of its commitment to the convention
and its Kyoto protocol. Optimistically, unless the above recommendations
are put in place the efficacy of the Unfccc and the Kyoto protocol in
Nigeria will remain of staggering relevance.