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Kiobel Writ: Ogoni Civil Disturbances Special Tribunal

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Unloveable Shell…

For instance, two witnesses… made statements under oath in which they said that they had been offered money and a job by the regime and Shell in exchange for incriminating testimony… 

By John Donovan

The numbered paragraphs below are extracted from the English translation of a 138 page Writ of Summons served on Royal Dutch Shell companies on 28 June 2017 by Dutch Human Rights law firm Prakken d’Oliveira. They represent four widows including Esther Kiobel who hold Shell liable for the murder of their husbands individual Ogoni leaders now known collectively as the ‘Ogoni Nine‘. MOSOP Chairman Ken Saro-Wiwa was one of the group. For the purpose of this online publication, the footnotes are indicated in red text.

THE OGONI 9 SHOW TRIAL

4.3 Ogoni Civil Disturbances Special Tribunal

84. On 4 November 1994 the Ogoni Civil Disturbances Special Tribunal was set up by decree by President Abacha and was appointed to try Kiobel and his fellow detainees for the murder of the four Ogoni leaders.80 Abacha relied on a law from 1987 in which the government is permitted to set up a special tribunal when civil disturbances occur that stands outside the normal legal system.81 The Special Tribunal was authorised to sentence people to death for acts committed before the tribunal was set up; it had to impose the death penalty when murder was proven, and was allowed to have the death penalty put into effect without the possibility of appeal.82 Any sentence was simply submitted to a military commission (Armed Forces Ruling Council), not to an ordinary independent court.83 The tribunal consisted of three members personally appointed by Abacha: two judges – presiding Justice Ibrahim Nadhi Auta84 and Justice Etowa Enyong Arikpo – and a military member, Lieutenant Colonel Hammid Ibrahim Ali.85

85. The setting up of the tribunal led to alarmed reactions worldwide. The UN rapporteur for extrajudicial, summary or arbitrary executions expressed his concerns about the Special Tribunal in his report of 14 December 1994 as follows:

“special jurisdictions, especially when set up to deal speedily with situations of unrest, very often entail serious restrictions of the safeguards and guarantees for defendants, particularly when they face the death penalty. The Special Rapporteur therefore calls upon the authorities of Nigeria to ensure that proceedings before the special tribunal conform to the standards for fair trial proceedings as contained in pertinent international instruments.”86

86. The European Parliament also expressed criticism of the trial, and requested the immediate release of “Ken Saro-Wiwa and other political union leaders, who have been detained because of their struggle for justice and democracy in Nigeria” and “in particular demands that Nigeria release the 28 persons concerned unconditionally and no longer use force to suppress the protests.”87

87. The Law Society of England and Wales and the Bar Human Rights Committee of England and Wales delegated Michael Birnbaum as an independent observer. He published a damning report (exhibit 255) – while the trial was still in progress – in which he wrote about the obvious political motivations behind the setting up of the tribunal:

“There is no sensible pragmatic reason for the appointment of a [Special Tribunal] other than the desire of the Federal Military Government that any trial relating to the Giokoo killings should take place before a tribunal which it hopes will favour the prosecution and a desire to avoid the scrutiny of its case by the ordinary courts”.88

88. The first group of suspects, consisting of Saro-Wiwa, Mitee, Kiobel, Kpuinen and Bera, was only officially indicted on 28 January 1995.89 This was months after false evidence was obtained 90 and just 11 days before the tribunal’s opening session. The indictments show that Kiobel, Saro-Wiwa and Mitee were suspected of inciting the murders91 and that Kpuinen and Bera were suspected of committing the murders. On 28 February 1995 two further groups of five suspects, including Nordu Eawo and Paul Levula, were officially accused of participating in the murders.92

89. Birnbaum believed that the summaries of the evidentiary material drawn up by the prosecutor provided insufficient reason to suppose that the suspects had committed an offence, a requirement referred to in the Civil Disturbances Decree of 1987 for letting a trial start.93 For example, Birnbaum qualifies the summary of the evidence against Kiobel as “misleading and tendentious”.94 This conclusion was confirmed when the prosecutor only passed the full statements of the witnesses to the defence on 29 March 1995, when the trial had long since begun, following continued pressure.95 Birnbaum concluded that the indictment was mainly based on a single statement, that of the brother of one of the murdered leaders, Alhaji Kobani.96 From Kobani’s statement the prosecutor inferred that Kiobel had goaded the crowd, which would make him responsible for the murders.97 The other evidentiary material however is consistent with Kiobel’s own statement that he simply tried to calm things down.98 Different exculpatory statements, by Gbenemene Bagia among them, were ignored by the prosecutor and different defence witnesses were not allowed to give evidence.99 Despite the fact that the summaries of the evidence provided insufficient reasons to suppose that the suspects had committed an offence, Judge Auta allowed the trial to begin.

90. Birnbaum described the judicial process of the tribunal as contrary to different fundamental rights of the suspects, in the first place their right to a fair trial:

“it is my view that the breaches of fundamental rights I have identified are so serious as to arouse grave concern that any trial before this tribunal will be fundamentally flawed and unfair.”100

91. His standpoint was supported by the following findings:

a) The tribunal was not independent and was under the supervision of the government.101

b)  The tribunal was biased in favour of the government and the public prosecutor. For example, the tribunal allowed the cases of 11 suspects against whom the prosecutor had submitted no concrete evidence and granted the prosecutor permission, for the same tribunal, to conduct three cases simultaneously with regard to different groups of suspects on the basis of the same evidentiary material.102 This for example meant that it could happen that a suspect had no chance to refute a witness statement given in one of the other two cases.103 The right to hear both sides was therefore violated. The tribunal also stated that it was up to President Abacha to decide how many trials would be instigated. This was a flagrant violation of the tribunal’s duty to protect individuals against the power of the state.104 In additional, legitimate questions regarding the tribunal’s jurisdiction were ignored by the judges. Although the law required that an investigation committee is appointed by the president and there was no indication that this had taken place, judge Auta simply stated that the defence could not prove that the president had not done this.105

c)  The suspects were not permitted to speak to a lawyer before the start of the trial. Even after the start of the trial they were only allowed to speak to a lawyer in the presence of Lieutenant Colonel Okuntimo.106 In any event Okuntimo played a conspicuously big part during the trial.107

d)  Different suspects were detained for months without charge, some even for nine months (including Kiobel).108

e)  No forensic investigation was carried out into the murders.109

f)  There was convincing evidence of intimidation of the suspects’ lawyers by Okuntimo’s security forces.110

g)  Witnesses proved unreliable, but were used nonetheless.111 For instance, two witnesses, Charles Danwi and Naayone Nkpah, made statements under oath in which they said that they had been offered money and a job by the regime and Shell in exchange for incriminating testimony.112 As explained in greater detail in chapter 8.6.1 this exculpatory evidence was not admitted by the tribunal.

h) There was no opportunity of an appeal, which was especially severe given the good chance that the death penalty would be imposed.113

92. The suspects’ lawyers were thwarted at every stage.114 During the session on 7 June 1995 Alhaji (‘Fatai’) Oso, Kiobel’s lawyer, had the opportunity to question Alhaji Kobani.115 He wanted to confront Kobani with the statements he had made at the press conference on 22 May 1994, but said that the subpoena to obtain the video tape had been rejected by the tribunal clerk.116 The prosecutor denied that it was in possession of video recordings of the press conference. Judge Auta concluded that the defence was not allowed to introduce any evidence at this stage of the trial.117 On 19 June 1995 Judge Auta allowed Oso’s request, but two days later this proved a Pyrrhic victory; Komo’s Chief Press Secretary (Fidelis Agbiki) testified before the tribunal that the tape on which the press conference had been recorded had been used for other recordings.118

93. According to lawyer Oso, the crucial video tape had been deliberately withheld. Lawyer Falana shared this conclusion:

“In the circumstance, Sir, I urge your Lordship to come to the only irresistible inference which is that there is a conspiracy between the official media of this State and the government that is prosecuting the accused persons to deny them fair hearing.”119

94. This argument was rejected by Judge Auta and the video would ultimately never be shown in the courtroom. The lawyers saw in this yet more evidence of flagrant violations of fundamental rights in a political trial whose outcome had been decided in advance.

95. The witness statements of Nkpah and Danwi, in which they stated that they had been bribed by Shell and the regime, were not admitted by the tribunal.120 As this evidence was crucial for Kiobel’s defence, lawyer Oso announced that he felt compelled to discontinue this.121 When Judge Auta asked Kiobel what he thought of this, he replied as follows:

“I cannot force him, equally I will not accept any other person than that one. If justice is to be done, I plead the Tribunal has to look into that. Let that video tape be played for the whole world to see. So that whatever decision you take would be seen to be just.”122

96. On 22 June 1995 lawyer Amaechina announced that all the lawyers were withdrawing permanently out of protest.123

Footnotes

80 M. Birnbaum, Nigeria Fundamental Rights Denied, Report of the trial of Ken Saro-Wiwa and Others, June 1995 (exhibit 225), para. 4.16 para. 4.16.

81 Ibid, appendices 2 and 3 for 1987 Decree and decree of establishment Abacha.

82 Ibid, paras. 1.6, 18.5-18..

83 Ibid, para. 8.14.

84 Ibrahim Auta is currently Chief Judge of the Federal High Court of Nigeria, see the website of the Federal Judicial Service Commission : http://fjsc.gov.ng/hon-justice-ibrahim-ndahi-autaofr/ <accesed 24 April 2017>.

85 M. Birnbaum, Nigeria Fundamental Rights Denied, Report of the trial of Ken Saro-Wiwa and Others, June 1995 (exhibit 255), para. 9.6-9.7; African Commission on Human and Peoples rights, Nigeria: International Pen and Others (on behalf of Saro-Wiwa) v Nigeria (2000) AHRLR 212 (ACHPR 1998) (exhibit 217).

86 Report by the Special Rapporteur, Mr. Bacre Waly Ndiaye, submitted pursuant to Commission on Human Rights resolution 1994/82, E/CN.4/1995/61, 14 December 1994, p. 77 (exhibit 236).

87 European Parliament, Resolution on the violations of human rights in Nigeria, 16 February 1995 (exhibit 229). 88 M. Birnbaum, Nigeria Fundamental Rights Denied, Report of the trial of Ken Saro-Wiwa and Others, June 1995 (exhibit 255), para. 2.4 (1).

89 Summons to accused to Barinem Nubari Kiobel, 28 January 1995 (exhibit 178).

90 Birnbaum (exhibit 255), para. 9.16

91 Birnbaum (exhibit 255), para. 1.5: “to have counselled and procured (that is encouraged)”, 5.1.

92 Birnbaum (exhibit 255), para. 1.5. Group A consists of: 1. Ken Saro Wiwa; 2. Ledum Mitee; 3. Barinem Kiobel; 4. John Kpuinen and 5. Baribor Bera. Group B consists of: 6. Pogbara Afa; 7. Saturday Dobee; 8. Monday Donwin; 9. Felix Nuate; 10. Nordu Eawo. Group C consists of: 11. Paul Levula; 12. Joseph Kpante; 13. Michael Vizor; 14. Daniel Gbokoo; 15. Albert Kagbara.

93 Birnbaum, para. 1.17, and appendices 2 and 3 for 1987 Decree and decree of establishment Abacha: Decree No. 2 1987, section 4:
“1. The trial of offences under this Decree shall commence by way of an application, supported by a summary of evidence or affidavit made to the tribunal by the prosecutor.
2. Where after the perusal of the application and the summary of evidence, affidavit or any further evidence in such form as the Tribunal May consider necessary, the tribunal is satisfied that any person appears to have committed an offence referred to in this Decree, it shall cause that person to be brought before the tribunal on such date and at such time as it May direct.

94 Birnbaum (exhibit 255), para. 22.12.

95 Exhibit 184: Transcripts 29 March 1995, p. 2; Birnbaum (exhibit 255), para. 10.7.

96 Exhibit 177: Submissions Fawehinmi regarding the application for bail.

97 Exhibit 186: Transcripts 22 May 1995, p. 71; Birnbaum (exhibit 255), para. 22.10.

98 Birnbaum (exhibit 255), para. 23.15: “The evidence against Kiobel appears consistent with the claim that he was trying to stop the violence”; exhibit 174: Counter-affidavit Barinem Kiobel, undated.

99 Birnbaum, (exhibit 255), para. 22.12. See also para. 10.7: “Further, the summary in relation to Kiobel was unfair: it exaggerated the effect of the evidence against him and omitted crucial evidence in his favour.”

100 Birnbaum (exhibit 255), para. 2.6.

101 Birnbaum (exhibit 225), para. 2.4 (1); The Secretary-General of the United Nations says of this “The fact that the judges were appointed by the Executive calls seriously into question the independence and impartiality of the tribunal. […] the presence of a military officer on the tribunal is contrary to the standard of impartiality and independence set out in article 7(1)(d) and article 26 of the African Charter of Human and Peoples’ Rights and article 14(1) of the International Covenant on Civil and Political Rights)”, see Note by the Secretary General on the Situation of Human Rights in Nigeria, 22 October 1996, A/51/538 (exhibit 234), p. 20.

102 Birnbaum (exhibit 225), para. 2.4 (2).

103 Birnbaum (exhibit 225), para. 11.28-11.39.

104 Birnbaum (exhibit 255), para. 11.40.

105 Birnbaum (exhibit 225), paras. 11.12-11.13.

106 Birnbaum (exhibit 255), para. 2.4 (3); exhibit 233: Letter dated 23 May 1996 from the Secretary-General addressed to the President of the General Assembly, 28 May 1996, A/50/960 (exhibit 233), p. 14; Transcripts 23 February 1995 (exhibit 181), p. 25: A. Oso; “Another very major constraint is the Military Camp. Lt. Col. Paul Okuntimo would not allow us to see our clients”

107 Birnbaum (exhibit 255), para. 13.1 – 13.12. See also chapter 8.5.3.

108 Birnbaum (exhibit 255), para. 2.4 (4); Letter dated 23 May 1996 from the Secretary-General addressed to the President of the General Assembly, 28 May 1996, A/50/960 (exhibit 233), p. 14

109 Birnbaum (exhibit 255), para. 1.19.

110 Birnbaum (exhibit 255), para. 2.4 (5), 16.4; Letter dated 23 May 1996 from the Secretary-General addressed to the President of the General Assembly, 28 May 1996, A/50/960 (exhibit 233), p. 14

111 Birnbaum (exhibit 255), para. 1.19.

112 See section 8.6.1

113 Birnbaum (exhibit 255), para. 2.4 (6), 18.8-18.10; Letter dated 23 May 1996 from the Secretary-General addressed to the President of the General Assembly, 28 May 1996, A/50/960 (exhibit 233), p. 7.

114 The defence lawyers were Femi Falana, Uche Onyeagucha, Olisa Agbakoba, Gani Fawehinmi, Alhaji (‘Fatai’) Oso, Oronto Douglas, Emmanuel Ukala and Nnaemeka Amaechina.

115 Exhibit Fout! Verwijzingsbron niet gevonden.: Transcripts 7 June 1995.

116 Transcripts 7 June 1995 (exhibit 190), p. 67; exhibit 191: Transcripts 18 June 1995, p. 3; Mitee also said that it was at least remarkable that the secretariat decided on such a request, and not the tribunal itself, see Transcripts 7 June 1995 (exhibit 190), p. 68

117 Transcripts 7 June 1995 (exhibit 190), p. 73; Judge Auta went along with this, see p. 74.

118 Exhibit 192: Transcripts 21 June 1995, p. 3-5.

119 Transcripts 21 June 1995 (exhibit 192), p. 8.

120 Letter dated 23 May 1996 from the Secretary-General addressed to the President of the General Assembly, 28 May 1996, A/50/960 (exhibit 233), p. 15.

121 Transcripts 21 June 1995 (exhibit 192), p. 15; Public Deposition Esther Kiobel, vol. II, 5 December 2003 (exhibit 37), p. 297.

122 Exhibit 193: Transcripts 22 June 1995, p. 4.

123 Transcripts 22 June 1995 (exhibit 193), pp. 2-3.

Footnotes end

Disclosure: The lead claimant Esther Kiobel, Channa Samkalden of the Dutch human rights law firm Prakken d’Oliveira representing the widows, and the acclaimed human rights organisation Amnesty International, have all acknowledged the involvement of John Donovan in bringing this case.

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here

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