‘It took 13 years to go through the legal process and clearly before we started this, corporations felt they could almost operate with impunity. But now I think the legal landscape has changed,’ Ken Saro-Wiwa Jnr told CAW after the landmark settlement in the case brought by 10 plaintiffs, drawn mainly from the relatives of Ken Saro-Wiwa and the eight Ogoni activists executed in 1995 by General Sani Abacha's military government. They accused Shell of having collaborated in the executions.

Jennie Green, the attorney who instituted the lawsuit in 1996 under the American Alien Tort Claims Act, echoed the views of Saro-Wiwa Jnr: ‘This was,’ she said, ‘one of the first cases to charge a multinational corporation with human rights violations, and this settlement confirms that multinational corporations can no longer act with the impunity they once enjoyed.’

The settlement was reached on the eve of the trial in a federal court in New York, after three weeks of intensive negotiations. Though Shell and its Nigerian subsidiary, Shell Petroleum Development Company, did not accept responsibility for the execution of Ken Saro-Wiwa and his comrades or the violence that swept Ogoniland in southern Nigeria in the 1990s, the oil giant nonetheless agreed to pay US$15.51 million in recognition of the tragic events that culminated in the deaths of Saro-Wiwa and the others.

Explaining why Shell settled out of court, Malcolm Brinded, a Shell director, said: ‘While we were prepared to go to court to clear our name, we believe the right way forward is to focus on the future for the Ogoni people.’ According to Saro-Wiwa Jnr, out of the $US515.5 million settlement, US$5 million will be used to set up a trust called Kiisi – meaning ‘progress’ in the Ogoni Gokana language – to support educational and other initiatives in the Niger Delta.

‘I think in the end, [the settlement] enables us to draw a line under the past and actually face the future with something tangible, some hope that this is the beginning of a better engagement between all the stakeholders in this issue... so that we can move on with our lives,’ he told CNN.

He said, ‘The settlement gives the bulk of [the money] to a trust and that trust is going to fund some particular development initiatives decided by the Ogoni people themselves.’ In addition, he revealed, ‘Shell has admitted that there are environmental challenges and it is committed to doing a study to ascertain what the damage is with a view to remediating the environmental problems... But this case was purely about human rights violation.’

Regarding the broader implications of the case for the Niger Delta as a whole (President Yar'Adua's government has stepped up strong-arm activities in recent weeks in the Delta by sending heavily armed soldiers to deal with insurgents there, resulting in many deaths, including those of innocent locals), Saro-Wiwa Jnr said: ‘I think this [case] sends out a message to the wider Niger Delta that dialogue is important, that it is a way to achieve some of the things that [we] actually want individually and collectively...

‘We don't want a situation where violence is rewarded and non-violence is punished. The Ogoni people have always prosecuted their struggle in a non-violent way and we fervently believe that that is the way to go. The government is committed to dialogue ... and all the stakeholders have to come together to find a mutually beneficial arrangement--it can't just be on the terms of the corporations.’

THE LAWSUIT

In the lawsuit, the plaintiffs accused Shell of conspiring with Abacha's government to capture and execute the ‘Ogoni Nine’. They alleged that Shell was also responsible for other human rights violations, including working with Nigeria's army to torture and kill Ogoni activists. The plaintiffs claimed Shell provided the army with vehicles, patrol boats, and ammunition, and also helped to plan raids and conduct terror campaigns against Ogoni villages.

After the settlement was announced, ecstatic supporters of the Ogoni cause said the fact that Shell had serried out of court suggested the oil giant had been anxious about the evidence that would have been presented in court. ‘Shell knew the case was overwhelming against them, so they bought their way out of a trial,’ said Stephen Kretzmann, director of Oil Change International.

Professor Dennis Brutus of the Centre for Civil Society in South Africa agreed: ‘It was a bungled operation,’ he said. ‘Saro-Wiwa was the target of three bungled attempts. Evidence has emerged that Abacha's regime acted on instructions [from outside the government].’

The instructions were revealed in an interview by Lt-Col Paul Okuntimo, who was put in charge of the Abacha government's efforts to crush opposition to Shell operations in the Niger Delta. ‘We needed financial resources and Shell provided these,’ Okuntimo claimed, but Shell has denied his allegations.

However, a report by a Nigerian government official investigation headed by Justice Oputa (also known as the Human Rights Violations Investigation Commission) has acknowledged that ‘the protection given to oil companies led to the systematic and generalised violations and abuses which occurred in the Niger Delta during the dark period of military rule in the country’.

The report further stated that ‘because of easy oil money, the “oil boom” became a national curse, an 'oil doom'. Ecological devastation, poverty and neglect by state governments and the oil companies combined to create a typical situation of internal colonialism, as the case of the Ogonis [shows].’

Such ‘internal colonialism’ has been facilitated by the continuity of state laws such as the 1978 Land Use Act, granting automatic ownership of oil-rich lands to the government on ‘discovery’ of natural resources.

The spotlight on Ogoniland was primarily due to the work of Ken Saro-Wiwa, a civic leader, environmental activist, and Nobel Peace Prize nominee. He was the force behind the Movement for the Survival of the Ogoni People (MOSOP), a non-violent group that fought for the protection of the environment and human rights in Ogoniland.

MOSOP also wanted just political representation, social services, and financial compensation for the exploitation of the natural resources, as well as ecological degradation, in Ogoniland.

In 1990, MOSOP presented to the government the Ogoni Bill of Rights, a civil society document advocating for multi-stakeholder processes and interests regarding the finite natural resources in the area. When this elicited violent responses from the military government, MOSOP embarked on a massive public mobilisation on 4 January 1993, that witnessed 300,000 Ogonis protesting against the policies of oil companies such as Shell.

Shell proceeded to withdraw from the region, and this affected oil production there, which trickled to a record low. The military were ordered to ‘restore order’. In early May 1993, Lt-Col Okuntimo issued a confidential memo to the Rivets State Internal Security Task Force, stating matter-of-factly:

‘Shell operations still impossible unless ruthless military operations are undertaken for smooth economic activities to commence. Recommendations: Wasting operations during MOSOP and other gatherings making constant military presence justifiable ... Wasting targets cutting across communities and leadership cadres especially vocal individuals of various groups.’

Five days later, Saro-Wiwa presciently stated: ‘This is it. They are going to arrest us all and execute us. All for Shell.’ Twelve days later, he and eight others were arrested. At the trial, Saro-Wiwa proclaimed that ‘Shell too is on trial’, but the company rejected his claims.

At the time, five oil fields in Ogoniland were producing just 30,000 barrels a day, a pittance compared to the yields of other fields. Shell and the other oil companies (Shell has been operating in Nigeria since 1953 – prior to independence) feared that the failure to halt the powerful force of the Ogonis' non-violent resistance would be contagious, and might seriously affect the oil business in the country as a whole.

In Nigeria, oil was first discovered in Ogoniland. From the late 1950s to 1993, Shell raked in over $30 billion, extracting 900 million barrels from 400 square miles in Ogoniland, home to over 500,000 people. Ogoniland is one of nine provinces making up the Niger Delta, a 70,000 square kilometre coastal plain that forms the heart of Nigeria's oil economy, yielding an average of 2.4 million barrels of light crude each day.

As the Ogoni protests raged on, Gen Abacha offered Saro-Wiwa a ministerial appointment in exchange for dropping the campaign against Shell. Wiwa turned down the offer.

Not surprisingly, the lawsuit filed in the USA against Shell was spearheaded by Wiwa's brother, Dr Owens Wiwa; by Wiwa's son Saro-Wiwa Jnr; and other victims through the vehicle of the Alien Tort Claims Act (ATCA), which allows foreign citizens who are victims of human rights violations to file cases in US courts for torts committed in foreign lands.

According to Owens Wiwa: ‘Shell is involved in Nigerian politics up to their neck. If they had threatened to withdraw from Nigeria unless Ken was released, he would have been alive today. There is no question about that.’

Brian Andersen, the then head of Shell Nigeria, admits approaching Owens Wiwa with ‘the possibility that [Shell] would be prepared to put in some aid ... in exchange for the undertaking to soften their official stance’ on reparations. Owens Wiwa, however, claims that Andersen pledged ‘to get Ken and the others freed if we stopped the protest campaign abroad’.

‘I was very shocked,’ Owens said. ‘Even if I had wanted to, I didn't have the power to control the international environmental protests.’

DAMAGING OIL SPILLS

Currently, 10-14 per cent of Shell's global production (700,000-I million barrels per day) is sourced from Nigeria, where Shell has 90 oil fields, 73 flow stations, 1,000 producing wells, two export terminals (Bonny and Forcados), and 6,000 km of overland pipelines and flowlines, passing through villages.

The pipelines are old and rusted, and more than 6,000 oil spills have occurred since 1976, oozing black sludge into the soil and surface (drinking) water, polluting the fisheries and farmland of the Niger Delta, the habitat of 40 ethnic groups – some 20-30 million people.

Unfortunately, less than 25 per cent of spills are ‘remediated’ – remediation often amounts to nothing more than turning the soil over. But worse than the oil spills is gas flaring: After Russia, Nigeria leads the world in flaring natural gas – some 24 billion cubic metres annually.

Over 100 million Nigerians suffer from the lack of constant electricity. But while the oil companies claim "the first challenge is often to find or create a market for this gas", the flares – 100 columns of fire (as at December 2008) emitting toxic chemicals as well as tremendous heat and the noise equivalent to that of a jet taking off, 24 hours a day – continue to burn right next to communities that have no electricity.

Since 1970, the oil companies have burned over US$72 billion in natural gas (about US$2.5 billion each year). Ironically, almost 60 per cent of the fine that is imposed on the oil companies by the government for gas flaring – initially N0.50 per one million cubic feet (estimated in recent years to be US$150,000-US$370,000 per annum), is paid by the Nigerian National Petroleum Corporation (NNPC) as the local partner in the joint ventures with Shell, Chevron, ExxonMobil, Total and Agip.

Although much has been made of the Exxon Valdez oil spill that occurred in Prince William Sound, Alaska, on 24 March 1989, the Niger Delta experiences the equivalent of an ‘Exxon Valdez oil spill’ each year, with ecological degradation economically valued at $5 billion per annum, a fact that has been acknowledged by the Nigerian government.

Oil income accounts for 80 per cent of Nigerian government revenue, 13 per cent of which is allocated to the Niger Delta. But life in the Delta is characterised by poverty, shocking child mortality rates, ecological degradation and close to 80 per cent unemployment. Meanwhile, each day massive tankers continue to line up at Bonny Island to cart away millions of barrels of Nigeria's world famous ‘Bonny Light’ brand of oil: One of the world's highest grades, marked by its easy-to-refine low sulphur content.

Bonny Island has been a trading port for Western-bound colonial trade since the early 1600s. Not much has changed. And as a former British trade commissioner wrote in a confidential memo to the Foreign Office in 1963: ‘Nigerian politicians... will probably be among the last people in the world to realise that it is sometimes desirable not to exploit a country's natural resources. In the longer run, Shell/BP is going to have to consider very carefully how it should explain publicly the large outflow of capital... It will no doubt come as something of a shock to Nigerians when they find that the company is remitting large sums of money to Europe.’

For Nigeria, the road to (S)hell is still paved with bloody intentions.

BROUGHT TO YOU BY PAMBAZUKA NEWS

* This article first appeared in New African (July 2009).
* Khadija Sharife is a journalist and visiting scholar at the Centre for Civil Society (CCS). She is based in South Africa.
* Please send comments to [email protected] or comment online at Pambazuka News.