The Ogoni Nine–Shell settlement: Victory, but justice deferred?

'And as I was going, I was just thinking how the war have spoiled my town Dukana, uselessed many people, killed many others, killed my mama and my wife, Agnes, my beautiful young wife with J.J.C and now it have made me like porson wey get leprosy because I have no town again.

'And I was thinking how I was prouding before to go to soza and call myself Sozaboy. But now if anybody say anything about war or even fight, I will just run and run and run and run and run. Believe me yours sincerely.' Ken Saro-Wiwa, Sozaboy

Thirteen years ago, Ken Saro-Wiwa Jr and the families of the eight other Ogoni men who had been murdered by the Nigerian state in 1995, together with two other Ogonis, began three separate law suits against Royal Dutch Petroleum, Shell Petroleum Development Corporation (SPDC) and Brian Anderson, the former CEO of the SPDC. The plaintiffs accused Shell of human rights abuses against the Ogoni people, of arming the Nigerian army and of being complicit in the extrajudicial killing of the Ogoni Nine in 1995. The trial against Shell was due to start on 26 May, but was then delayed indefinitely. On Tuesday 9 June 2009, we learned that Shell had settled the case out of court for a sum of $15.5 million, which included a $5 million contribution to a trust for the Ogoni people. The settlement was offered with no admission of liability from the defendant. While the settlement is being seen as a victory for human rights, it raises a number of worrying issues in law suits by local indigenous communities against multinationals who are committing human rights violations and environmental crimes.

It is impossible to separate the actions of the oil multinationals operating across the Niger Delta from the actions of the Nigerian government in the region. The relationship between the two, though complex, is based on profit over and above any other consideration. In exchange for the oil removed from the Niger Delta, the oil companies, with the support of the Nigerian state, have left behind an ecological disaster, reducing whole towns and villages to rubble, causing death by fire and pollution, and leaving behind the guns of the Nigerian military. Shell and the other oil companies in the region have one of the worst environmental records in the world. This includes pollution of the air and drinking water, the degradation of farm land, damage to aquatic life, the disruption of drainage systems, and oil fires, which have left people dead and with horrific burn injuries and no medical care. The causes of the damage to the environment are oil spills from pipelines and flow stations – with many of the former running through villages and in front of people's homes – and gas flaring, which produces toxic gases and releases poisons into the atmosphere.

The late Professor Claude Ake, who was killed in a plane crash in 1996, used the term 'the militarisation of commerce' to describe the relationship between Shell and the Nigerian military government. What he was referring to was the unholy alliance which led to the collaboration between Shell and the military in planning the death of Ken Saro-Wiwa and the Ogoni Nine and thousands of others that have been maimed and killed since 1990. Though Ake was referring to the military government of the late Sani Abacha, little has changed since 1995, despite the country's so-called 'democracy'. On the contrary: more violence has been unleashed under the governments of Olusegun Obasanjo and Umaru Yar’Adua than under military dictatorships. Only a month ago the Joint Task Force for the Niger Delta (JTF) of the Nigerian military, under the pretext of rooting out militants who were supposed to be hiding in the creeks, launched a violent, sustained attack of collective punishment on communities in the region, this time on the Warri South West communities. The numbers of the dead are not yet known, but estimates run between a few hundred and a few thousand, with some 25,000 displaced. Young men are particularly at risk. They are the ones who in the past have being picked up by the JTF on the pretence that they are militants, when in fact their only crime is that they are just young men.

It is in this context that we need to view the settlement agreed between the families of the Ogoni Nine and Shell. The emotional drain on the plaintiffs in this case cannot be underestimated and at some point they all need to be able to rebuild their lives and look to the future. There is also no doubt that this is a victory in that it brought a multinational to the brink of trial. This is no small feat. It is representative of an emerging movement that has successfully called multinationals to account for their actions. The case adds to the legal precedent set by the Bowoto v. Chevron trial last year (the plaintiffs lost the case), and reinforces the fact that US-registered companies who commit atrocities overseas can be brought to trial, even if justice is not meted out in every case. At the same time, we need to be aware that despite the courts in Nigeria awarding $1.5 billion against Shell to the Ijaw Aborigene of Bayelsa State, Shell has so far refused to pay out. This is clearly a reflection of the complete disdain and lack of respect shown by multinational companies towards decisions of the courts in Nigeria.

This case was brought by the families of the Ogoni Nine and not on behalf of the Ogoni people. How much of a victory is this, and what are the implications for the other law suits against Shell and possibly other oil companies operating in Nigeria? The sum of $15.5 million, while constituting a considerable amount to the plaintiffs, is but a drop in the ocean of oil for Shell. Although legally the settlement includes a non-admission of guilt by Shell, there is some grounds for celebration by the Ogoni Nine, since the general public will draw its own conclusions as to the significance of Shell's out-of-court settlement. But the settlement also sends out the message that oil companies can seemingly buy impunity for the price of one day’s worth of Ogoni, Ijaw or Itsekiri oil.

While the families of the Ogoni Nine can celebrate a partial victory and breathe a sigh of relief from the fact that the years of anxiety and hard work in bringing the case to court are now over, it is hard not to think that there will remain a bitter after-taste of polluted waters, poisoned rivers, noxious gases, toxic fumes and destroyed communities living under stress and exploitation – a burden to be borne by the Ogoni people over decades. The destruction of their communities and environment has to be laid at the doors of both multinational corporations like Shell and the Nigerian state.

That Shell were forced to pay – albeit without an admission of guilt – is a victory of sorts. But we should be careful, in the euphoria of the moment, not to confuse that victory with justice. It is justice neither for the families of the Ogoni Nine or for the Ogoni people. That struggle for justice, and the bringing to justice of those who carry out such crimes, remains the task of the day. Like the Ogoni struggle begun by Ken Saro-Wiwa – which became the inspiration for other Niger Delta nationalities to demand justice and equity from the oil companies and Nigerian State – this trial was also an inspiration to others and as such was always bigger than just the plaintiffs' case. We should remember that right now both the military violence and environmental abuse continue to destroy people's lives. The final question is whether Shell, Elf, Mobil and Chevron will now be motivated to clean up their mess, or will things simply remain the same?

There are a number of other outstanding cases against Shell in Nigeria, including a class action suit by the Ogoni people. It is unlikely that they will be offered an out-of-court settlement and we owe a duty to the Ogoni people to ensure that justice is done, and seen to be done, by ensuring widespread public discussion about and support for their struggles for justice.

'Sleep Well, Ken
And smile at your killers
For though a few feet underground
The struggle you started continues'
Danson Kahyana

* Sokari Ekine blogs at Black Looks.
* Firoze Manji is editor in chief of Pambazuka News.
* Details of the trial and settlement can be viewed at wiwavshell.org/wiwa-v-shell-victory-settlement/.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/