The settlement of the landmark Wiwa v Shell lawsuit in June 2009 marked a small but significant step forward for the dozen plaintiffs involved.
They charged Shell with complicity in human rights abuses, including crimes against humanity, summary execution, torture and arbitrary detention.
The abuses occurred during military crackdowns in the 1990s, when 300,000 of the minority Ogoni people mobilised under the leadership of writer and activist Ken Saro-Wiwa, to protest at the environmental and social devastation caused by Shell, Chevron and other companies in the oil rich Niger Delta. These were some of the largest protests against an oil company ever seen.
In response, Shell collaborated with the Nigerian military in a campaign of indiscriminate violence in Ogoniland, culminating in the execution of Saro-Wiwa and eight other activists on 10 November 1995.
For the next twelve years, a legal battle was waged in the New York District Court.
The plaintiff’s lawyers assembled a substantial dossier of exhibits, including confidential company memos, emails and witness testimony, illuminating the Shell’s complicit role in human rights abuses committed in Ogoniland.
Detailed evidence of Shell’s close relationship with the military was finally made public in the wake of the settlement, in which Shell agreed to pay US$15.5 million to the plaintiffs.
Behind the scenes was Osamede Okhomina, an oil executive who does not fit the stereotype. He is from the Niger Delta and holds a Masters in Philosophy from Cambridge University.
His company, Energy Equity Resources based in London’s leafy Marble Arch and Victoria Island, Lagos, participated in brokering the settlement of the Wiwa case.
EER helped both parties to fashion the Kiisi Trust, a US$5 million fund created by the settlement funds, which ‘will allow for initiatives in Ogoni for educational endowments, skills development, agricultural development, women’s programs, small enterprise support, and adult literacy’.
A short statement from EER released on the day of the settlement reads:
‘Mr Okhomina emphasized… the importance EER places on the creation of trust funds in allowing local communities to directly share in the benefits of oil production … EER believes this approach offers a brighter future for all concerned and it hopes its contribution to the resolution of this case will be seen in this light.’
It probably came as some relief that EER’s contribution quickly disappeared in the media storm that engulfed Shell. Yet the stance of EER, a much smaller oil and gas exploration company, is worth considering.
The use of ‘trust funds’ in the Niger Delta is a newly emerging response to what the UNDP calls the ‘appalling’ development situation, which although limited in scale may hold more potential than the scores of abandoned community development projects started by Shell and other oil companies.
For over a decade, companies have used ‘strategic philanthropy’ to effectively buy the consent of communities where they extract oil and gas. Following the execution of Saro-Wiwa, and the sinking of Brent Spar, Shell realised the need to repair its global image, which led to the invention of ‘corporate social responsibility’ (CSR).
Today, the failure of CSR in the Niger Delta is an open secret. In 2001, a study of Shell’s community projects showed that out of 81, 20 didn’t exist, 36 were partly successful and only 25 were working effectively.
Despite this, Alice Ajeh, Shell’s international relations manager for Nigeria, based in The Hague, believes that CSR has the answer.
When faced with a flood of emails protesting at Shell Nigeria’s practices, she emphasises that Shell spent US$242 million last year on community development – ‘the largest single investment in communities that Shell companies make anywhere in the world.’
During her time at Shell in Port Harcourt, a leaked confidential report for Shell by WAC Global Services found that these payments were ‘divisive’, increasing conflict and violence, rather than benefiting communities.
Assuming that a portion of Shell’s community development projects actually exist and work, they cannot compensate for the illegal environmental and social devastation caused by the company’s routine oil spills, gas flaring and their over-reliance on the Nigerian security forces.
Whilst not all of the regions problems can be attributed to the company, Shell’s activities clearly exacerbate insecurity, corruption and poverty.
Government security forces are routinely on the payroll of international oil companies, and the same forces are responsible for an unknown number of summary executions, killings, torture and detainment.
According to local rights monitor the Centre for Environment, Human Rights and Development (CEHRD), as recently as December 2009, armed soldiers securing a Shell manifold in K-Dere in Ogoni tortured a man and his wife, severely beating them severely with gun butts and horsewhips till they vomited blood.
These incidents are routinely carried out by security forces paid, fed and housed by Shell.
The Niger Delta is by no means a ‘poor’ economy. Staggering profits are pumped out of the creeks by Shell, Chevron and other companies on a daily basis.
The IMF estimates that Nigeria earned US$75 billion in oil revenue between 2004-7. Yet the Delta region is impoverished by decades of record-breaking graft at all levels of the Nigerian political elite, an ongoing theft that is assisted by multinational oil companies and Western banks.
This week, the Metropolitan Police are charging the associates of former governor of Rivers State James Ibori with helping him launder US$30 million between 2005-7.
Among his frozen assets are funds from a lucrative deal by Ibori’s company, MEX engineering, to supply houseboats to Shell and Chevron.
Scotland Yard suspects corruption in the deal, but the companies deny any wrongdoing.
Despite political opposition and an attempt by Conservative MP Tony Baldry to obstruct the prosecution in the UK, the trial is due to take place at Southwark Crown Court in London and could disclose damaging facts about the deal.
With oil companies and all echelons of the Nigerian government largely believed to be mired in corruption, there is a need for more transparent, independent mechanisms to control and trace oil revenues.
Trust funds like the Kiisi Trust could provide a pragmatic, temporary means of ensuring that village communities benefit from their resources.
What trusts cannot address is the central injustice of the Wiwa case – the human rights impacts of oil companies.
Oil production is still intimately linked to gross violations of human rights.
As Saro-Wiwa stated to the panel that sentenced him to death: ‘The military do not act alone.
They are supported by a gaggle of politicians, lawyers, judges, academics, and businessmen, all of them hiding…’
The Wiwa case demonstrated the ‘power of memory against forgetting’.
As long as companies continue do business at the expense of human rights, they will eventually be exposed, held accountable and forced to make amends.