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A recent United States’ Supreme Court ruling dismissing the civil suit Ogoni people instituted against Shell Petroleum Development Company compounds their woes and opens the floodgate for more environmental and human rights abuses

|  By Maureen Chigbo  |  Apr. 29, 2013 @ 001:00 GMT

EVER since crude oil was discovered in Nigeria more than 50 years ego, the people of Ogoniland could not have imagined that they would bear the brunt of the country’s main source of revenue. The people must have expected that the exploitation of the rich natural resource in their environment would bring them development and prosperity.

But alas, it has been a very painful experience for the people and worse, the world which has benefitted from their God-given natural resource, especially the federal government of Nigerian, have looked on while they suffer the worst kind of environmental degradation, murder, torture of its people in the hands of the Nigerian government security forces in connivance with international oil companies operating in Ogoni, in particular Shell Petroleum Development Company, SPDC.

Apart from the sordid tales of the complicity of Shell Nigeria in environmental and human rights abuses in Ogoniland, the people have not gotten appropriate relief to the damage they suffer in the loss of flora and fauna even though they have tried in so many ways to bring their plight to attention of the world. Their case is made even worse now with the ruling of a United States, US, Supreme Court dismissing the case some Ogoni people brought to it against Shell.

The momentum which human rights activists gained when a Dutch Court recently ruled that Shell was culpable in damaging farmlands of some farmers in the Niger Delta through oil spillage was shattered by the US Supreme Court on Wednesday, April 17, with the dismissal of the suit  Kiobel instituted against Royal Dutch Petroleum Co. This severe blow to the victims of human rights abuses in the Niger Delta, has severely limited the reach of the Alien Tort Statute, ATS, a law enacted in 1789.

“I think it was unforunate to get that sort of judgement coming from the US. I think the US has lost its eminent position as the standard bearer of human rights in the world with this sort of judgement that seeks to restrict/constrict the frontiers of justice and reduces the space for human rights protection. The increasing dominance of corporations/corporate power in the third world and the prevalence of human rights-related abuses in their activities really need some restraining force for good and that was what the Kiobel Vs Shell Case sought to do. Nevertheless, the fact that this case took them to this point is a warning signal to international businesses that they are under our continuing scrutiny and it can no longer be business as usual,” Legborsi Saro Pyagbara,president the Movement for the Survival of the Ogoni People, MOSOP, told Realnews.  He said the judgement was unfortunate coming from the US.

Amnesty international believes that the court’s decision significantly reduces access to the U.S. courts for all survivors of human rights abuses committed abroad, a radical departure from its own precedent and a decision that Amnesty International believes flies in the face of the trend toward enhancing accountability for serious human rights violations.

“The case of Kiobel v. Royal Dutch Petroleum Co was brought by members of the Ogoni community in the Niger Delta in relation to human rights violations committed against them and their families in the mid-1990s by the military government in power in Nigeria at the time. Today’s court decision dashed the hopes not only of the Ogoni survivors, but of the countless others who might have benefited from a law that enabled people to challenge human rights abuses that had gone unpunished elsewhere,” said Michael Bochenek, Amnesty International director of Law and Policy. He added: “The ruling is a startling reversal of years of progress toward ensuring that those who commit or are complicit in the worst abuses are not beyond the reach of the law because of where they operate.”

The plaintiffs had alleged that Shell was complicit in these abuses, which include extrajudicial killings, torture, rape, and crimes against humanity. They had hoped to secure justice by taking a civil action against Shell under the ATS. The Supreme Court ruled that the ATS does not apply to conduct that occurs in countries outside the USA. ATS is a law that for thirty years has been relied upon by survivors of human rights abuses around the world as a means to obtain a measure of redress, according to Amnesty International.

Bochenek said: “It’s especially critical that multinational companies and other actors who are able to operate freely across borders are not shielded from the law’s reach. In fact, they often benefit from the protection of laws that apply extraterritorially. But when survivors of abuses try to pursue justice beyond borders, they encounter formidable obstacles. Today’s decision closes the courthouse doors for many.

“Until today, the ATS stood as a critical defense against human rights abuses – the possibility that a case could be heard in US courts under ATS sent a message that the US would not serve as a safe haven for human rights abusers. Today, the Supreme Court has effectively put the law on the side of human rights abusers, adding to survivors’ already difficult pursuit of accountability.”

Amnesty International statement could not have been more explicit in the trauma Ogoni people will be going through with the US Supreme Court ruling. Their very source of hope has been dashed and now Shell Nigeria which has always gotten off lightly with its human rights abuses and environmental degradation will have more guts to dehumanise the people of Ogoniland.

The case which was dismissed by the US court started in 1995, when nine activists from the Ogoni community in the Niger Delta (the ‘Ogoni Nine’), including writer and human rights campaigner, Ken Saro-Wiwa, were executed by the military government led by late General Sani Abacha in Nigeria following a politically-motivated prosecution and an unfair trial. The activists had protested against the devastating impact of the oil industry in the region, in particular Shell’s operations there.

A number of lawsuits were filed in the USA by lawyers working with some of the relatives of the executed men, and victims of violence in Ogoniland, to try to hold Shell accountable for its involvement in human rights violations in Ogoniland. The Kiobel case was filed under the Alien Tort Statute, ATS, on behalf of Barinem Kiobel, one of the Ogoni Nine, and eleven others.

In 2010, an appeal court dismissed the case on the grounds that corporations could not be sued for human rights violations under the ATS. The plaintiffs subsequently took their case to the US Supreme Court. In 2009, Shell settled a similar case, Wiwa v. Royal Dutch Petroleum Co., for $15.5 million. The company did not admit any liability.

Mutiu Sumonu, country chair of Shell Nigeria, said “it is not true that we ‘get off lightly’ in court cases.” According to him, “if you cross check, you will remember that Shell agreed to pay the $15.5 million in settlement of the 2009 Wiwa vs Shell suit and has since paid the sum. In the January 30, 2013, ruling, the Dutch court dismissed four of the five suits but found SPDC liable for breach of duty of care in protecting the well head in Ikot Ada. Compensation, if any to be paid will be the subject of another proceeding.”

For more than 13 years, Ogoni activists along with friendly international human rights activists, fought in different courts to bring Shell to book. For a while, it appeared the human rights community stand-up against Shell made a decisive progress when Shell was forced to agree on a settlement out of in one of the cases: Wiwa Versus Shell. This happened after Shell had used all its muscles to torpedo the case failed.  In June 2009, the parties in the case the human rights charges agreed to settle out of court. The charges against the Royal Dutch/Shell company, its Nigerian subsidiary – Shell Petroleum Development Company (SPDC or Shell Nigeria), and Brian Anderson, former head of its Nigerian operations had to do with their complicity in the torture, killing, and other abuses of Ogoni leader Ken Saro-Wiwa and other non-violent Nigerian activists in the mid-1990s in the Ogoni region of the Niger Delta. The settlement, whose terms were made public, provided a total of $15.5 million to compensate the 10 plaintiffs, who included the family members of the deceased victims; establish a trust intended to benefit the Ogoni people and also cover a portion of the plaintiffs’ legal fees and costs. This settlement gave impetus to other cases against the company.

It is not only in court cases that Shell weaves its way out of trouble unscathed. There have been reports that have indicted Shell over its poor environment record. Prominent among the reports are that of United Nations Environment Programme, UNEP and The Platform, which was published recently indicting Shell Nigeria of environmental degradation of the flora and fauna in Ogoniland. The Platform, a London-based non-governmental organisation monitoring the oil and gas industry, gave the damning verdict in its 75-page report.

It said that the Anglo Dutch Shell Petroleum Development Company’s close relationship with the Nigeria military has exposed the company to charges of complicity in the systematic killing and torture of local residents. The report painted a bleak picture of the violence that would surely happen in the Niger Delta, no thanks to the nefarious activities of Shell Petroleum Development Company, SPDC, in the region.

Testimonies and contracts seen by Platform also suggest that Shell regularly assists armed militants with lucrative payments. In one case in 2010, according to Platform, Shell allegedly transferred more than $159,000 to a group linked to militia violence. Also, the report said Shell’s poor community engagement has provided the “catalyst” for major disruption including one incident that shut down a third of Shell’s daily oil production in August 2011.

According to the report, “in the absence of proper supervision and control, Shell contractors, including multinationals like Halliburton, Daewoo and Saipem have replicated many of Shell’s mistakes,” thereby worsening the situation in the region. The report said that Shell’s insensitive actions in the Niger Delta also have global implications. “Basic errors have excerabated violent conflicts in which entire communities have been destroyed. Billions of Naira have been lost in revenues to the government and oil companies sending shock waves through the global economy.

“These are not new phenomena. In 2003, a leaked internal report denounced Shell for its active involvement in the Delta conflict. Then, as now, Shell pledged to improve. But Platform’s report finds that Shell has not taken the necessary steps to de-militarise its operations in the Delta, resolve long standing grievances and respect the human rights of local communities.”  The Platform’s far reaching recommendations to end the siege in Ogoni and Niger Delta as a whole have been largely ignored by the federal government, Shell and other international oil companies operating there.

On the other hand, the UNEP made far reaching recommendations saying that $1 billion was needed initially to remedy the land in Ogoni, where pollution has eaten deep and will require 30 years for proper remediation to be done to address the problem adequately. The report among other things stated that actions on remediation must start immediately. But the federal government, instead of bringing Shell to book using the UNEP report, set up a technical committee to review it. The committee was given two weeks to turn in its reports but  Nigerians have not heard anything since 2011 when the committee was set up. This has strengthened the belief that the committee was set up in the first place to bury the report permanently at the instance of Shell.

This belief found credence against the background that the chairman of the committee, Diezani Alison-Madueke, who is also the minister of petroleum resources, was an ex-executive director of Shell Nigeria. Other members of the committee were Hadiza Ibrahim Mailafiya, minister of environment (vice-chairman); Ngozi Okonjo-Iweala, minister of finance and coordinating minister for the economy, Godsday Orubebe,  minister of Niger Delta Affairs, Mohammed Adoke, attorney-general of the federation and minister of justice, and Chibuzo Ugwoha, managing director of the Niger Delta Development Commission.

Others were the Peter Idaboh, director-general, National Oil Spill Detection and Response Agency, NOSDRA; Austen Oniwon, former group managing director of the Nigerian National Petroleum Corporation, NNPC, and Sullivan Akachukwu Nwakpo,  special adviser to the President on technical matters. The Ogoni people, led by the Movement for the Survival of Ogoni People, have criticised the federal government’s nonchalance over the UNEP report. However, the office of minister of petroleum resources told Realnews that as a result of the technical committee report the Hydrocarbon Pollution Restoration Project, HYPREP, in the office of the ministry of petroleum resources was set up to remedy Ogoniland and that HYPREP was about to start to work.

Apart from the UNEP and the Platform report, other agencies of the federal have been up against Shell over the 2011 oil spillage in Bonga which devastated the environment. NOSDRA and NIMASA have fined Shell a total of $11.5 billion. But Shell has said that the NOSDRA and the NIMASA fines have no basis in law.

Shell is also of the view that the UNEP report highlighted significant environmental impacts from oil pollution in parts of Ogoniland and called on government, industry and the communities to take action to put an end to all forms of oil contamination (including crude oil theft and illegal refining) and begin a comprehensive clean up. “SPDC has welcomed the report and is advocating more concerted efforts by all stakeholders in the hopes that the report will drive real change in Ogoniland and the wider Niger Delta,” Sunmonu said in an answer to a questionnaire that Realnews sent to Shell.

He also said that many of the most important UNEP recommendations – such as the creation of an Ogoniland Environmental Restoration Authority and an Environmental Restoration Fund for Ogoniland – are directed at the government and require the government to take the lead to co-ordinate the activities of the many stakeholders involved. SPDC said: “It is going ahead to implement aspects of the report relating to its business including, review of Remediation Management System, RMS, retraining of remediation contractors and an inventory of our assets in Ogoniland preparatory to developing a decommissioning plan.”

However, Ledum Mittee, former leader of MOSOP, queried why Shell should choose and pick what it should implement on the recommendations of the UNEP report which talks of remediation and setting up of a fund. Pyagbara is also of the view that the UNEP report cannot be implemented piecemeal. “We are demanding for a total framework depicting roles of Shell, government and other stakeholders. We want a clear framework so that at any point, we know which organisation is doing what. This whole thing goes back to the government which asked for the report. There needs to be a joint effort,” he told Realnews on phone. According to him, “When there was an oil spill in the Gulf of Mexico in 2010, BP did not shirk its duty. We are not supporting a piecemeal implementation of the UNEP report,” Pyagbara said.

Ogoni’s travails have been on since the Royal Dutch Shell, Plc (Shell) began oil production in the Niger Delta region of Nigeria in 1958. The company has a long history of working closely with the Nigerian government to quell popular opposition to its presence in the region. At the request of Shell, and with Shell’s assistance and financing, Nigerian soldiers used deadly force and massive, brutal raids against the Ogoni people throughout the early 1990s to repress a growing movement against the oil company.

The Center for Constitutional Rights, CCR, EarthRights International, ERI and other human rights attorneys sued Shell for human rights violations against the Ogoni.  For the Ogoni and the people of Nigeria, oil companies have brought poverty, environmental devastastion and widespread, severe human rights abuses. Currently, almost 85 percent of oil revenues benefit only one percent of the population while, according to the African Development Bank, more than 70 percent of Nigerians live on less than $1 per day.

Ogoni is home to several environmental treasures, including the third-largest mangrove forest in the world and one of the largest surviving rainforests in Nigeria. Oil drilling by Shell and other oil companies has had a devastating impact on the region’s environment. Consequently, oil spills, gas flaring and deforestation have stripped the land of its environmental resources and ultimately destroying the subsistence farming- and fishing-based economy of the Ogoni.

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