COURT DISMISS APPLICATION BY SENEGALESE NGO ALLEGING THE IMPORTATION OF ‘TOXIC FUEL’ INTO THE COUNTRY VIOLATED THE RIGHTS OF CITIZENS

The ECOWAS Court of Justice has dismissed an application brought by a Senegalese Non-governmental Organisation (NGO), La Ligue Senegalaise des droits d l’Homme,  alleging that the importation of toxic fuel into the country without appropriate government oversight violated the  right of the citizens to a healthy environnent.

In dismissing the case on 17th July 2022, the Court ruled the suit inadmissible as the Applicant does not have the capacity to initiate such action in the Court as it did not satisfy the requirement as an NGO to file the action.

The Court relied on Article 10(d) of its 1991 Protocol as amended by the Additional Protocol A/SP.1/01/05 which set out the criteria for accessing the Court and provides that “in order to substantiate a legal action alleging the violation of human rights, it is necessary that the Applicant is a victim and that the Respondent State is responsible for the alleged violations.”

The Court acknowledged that a Non-Governmental Organization (NGO), duly registered in its country, can bring an action on behalf of the victim for the violation of human rights without the need to demonstrate that it has a specific mandate from the victim.

However, the Court held that to act in public interest, such an NGO must prove that “there is a public interest worthy of protection that has allegedly been violated and the matter in question is judicially actionable, adding that the action is not brought for the personal benefit of the Applicant i.e. that the benefits claimed should not be for the Applicant’s own benefit”.

In the present case, the Court “found that the Applicant brought this action, merely claiming the violation of human rights relating to a healthy environment, life and health, and the right to a fair trial, by the Respondent State, without particularizing any victim or group of victims”.

In the instant case, the Court noted that the Applicant had asked the Court to order the Republic of Senegal to pay the amount of 50,000,000 FCFA, as compensation in its favour and not for a particular victim nor a group of persons.

It also held that it has jurisdiction to entertain the case since the violation of human rights was cited as the justification.

Among the violations alleged by the Applicant were its right to a healthy environment, right to health, right to life, right to a fair trial, based on the contention that the International Standards governing the right to health and the right to a healthy environment limit the sulfur content of fuels to 10 parts per million (ppm), while countries in sub-Saharan Africa tolerate an average of 2000 ppm.

The Applicant through its lawyer,   Assane Dioma NDYANE relied on “ Dirty Diesel”, a report prepared by Public  Eye, a Swiss NGO, which found that a sample taken from a Senegalese filling station belonging to the Vitol Company contains 2940 ppm which contributed to the increased high level of fine particles in the environment.

In the report, the Swiss NGO had complained about “the faulty legislation of certain African countries, including Senegal, in terms of the distribution of gasoline and diesel.

In particular, the NGO alleged that average level of fine particles in Dakar is seven times higher than the recommendations of the World Health Organization (WHO) and that the State has not taken any measures to ban the import of the said fuel with such a high level of toxicity.

The Applicant alleged that the State was aware of the health hazard posed by the product but has not taken measures to end its import thereby violating the rights of Senegalese citizens, particularly their right to health and a healthy environment.

But the Respondent State, the Republic of Senegal denied all the allegations of the Applicant on the ground that there is a mechanism in place to  ensure that petroleum products imported into the country complied with international standards and that all such products brought in the market are subject to control.

The Respondent concluded that the state of Senegal did not violate the rights alleged by the Applicant and urged the Court to dismiss the application as unfounded.

On the panel in the  case were Justices Edward Amoako Asante, (Presiding), Januaria Costa Silva, Judge Rapporteur and Keikura Bangura, member.