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Kiobel Writ: Shell bribed witnesses in Ogoni 9 trial

Already during the trial in 1995 two witnesses testified that they had been bribed to make incriminating statements in exchange for money and a job at Shell. In their statements Nkpah and Danwi named a number of other witnesses who were bribed by Shell and the regime…: Separate extract: “We knew that Shell, the prosecutor and the members of the tribunal were working hand in glove with each other. 

By John Donovan

The numbered paragraphs below are extracted from the 138 page Esther Kiobel Writ served on multiple Royal Dutch Shell companies on 28 June 2017. More information about the latest litigation, this time in the Dutch Courts, is provided after the extracts. As can be seen in the footnotes, the allegations are supported by voluminous evidence.  

Shell and the Abacha regime operated in tandem

Extracts begin

8.6 Shell contributed to the outcome of the Ogoni 9 trial

8.6.1 Shell was involved in the bribery of witnesses

  1. Already during the trial in 1995 two witnesses testified that they had been bribed to make incriminating statements in exchange for money and a job at Shell. Charles Danwi and Naayone Nkpah made a statement under oath on video on 16 and 27 February 1995 respectively, which was submitted as an affidavit to the Civil Disturbances Tribunal.409 The Tribunal however disregarded the evidence.
  2. In their statements Nkpah and Danwi named a number of other witnesses who were bribed by Shell and the regime, that is Celestine Meabe, Kevin Badara,410 Limpa Bah, Peter Fii, Saturday Iye and David Keenom (exhibit 45: Public Deposition Naayone Nkpah, 19 March 2004, pp. 19-22; exhibit 21: Affidavit Charles Danwi, 16 February 1995).411 The false statements of these bribed witnesses were decisive in the conviction of the Ogoni 9.412
  3. The statements of Danwi and Nkpah show that shortly after the murders of the traditional Ogoni leaders they were pressured by the main prosecution witnesses Alhaji Kobani (the brother of the murdered Edward Kobani) and Priscilla Vikue413 to sign a false statement in which they accused the since apprehended MOSOP and NYCOP leaders of the murders.414 Initially they refused to do this, whereupon they were placed under house arrest for some time. Danwi testified that he was then promised the following:

    “I was promise[d] that after the case in Court I will be given a house any place in the country, a Contract from Shell and OMPADEC and some amount of money to buy my musical instrument. […] On another date of meeting in Kobani’s House, representative from Shell, OMPADEC, security agents, Govt officials and the Kobani, Orage and Badey’s family were present and they all agreed. The family gave some money say that the money come from Govt. and Shell. In my case I was given N 30,000,- from Shell and Govt.”415

  4. Nkpah testified to the same effect and in his fuller statement in the American Kiobel case also said who was involved in the bribery. Apart from Alhaji Kobani and some other family members of the murdered Ogoni chiefs, they were also various representatives of the regime and the oil industry, among them Shell’s lawyer O.C.J. Okocha.416 Nkpah was also promised a house, 30,000 naira and a contract at Shell, OMPADEC or the government.417 In his deposition he said that Celestine Meabe had asked Alhaji Kobani where the 30,000 naira came from, to which Kobani replied:

    “This money come from Shell, government of Nigeria. This is why the chairman, the lawyer representative is here.”.418

  5. Kobani introduced this Shell lawyer to Nkpah as O.C.J. Okocha.419 Nkpah also said that Kobani had told him that “anything that is being given to us […] basically is from the government and the Shell and Ubadek [OMPADEC]”.420
  6.  Just like Danwi, in exchange for signing the false testimony Nkpah was given a job in the transport section of the municipality of Gokana where, in addition to the 30,000 naira, he received a monthly salary without actually being employed.421
  7. Gani Fawehinmi, the suspects’ lawyer, introduced Danwi’s statement on the second day of the Ogoni 9 trial (on 21 February 1995):

    “My Lord, he [Charles Danwi] is number 22 on the list of witnesses. He has sworn to an Affidavit and he has exhibited what is called a principal statement. He accused the Government [and] Shell Development Company for bribing him with thirty thousand naira (N30.000) and a house. He has made a full disclosure that what they have was not his statement […].”422

  8.  Although Kiobel’s lawyer Alhaji Oso again tried to stress the importance of the bribery on the third day423 and explained that the reliability of the witnesses was the basis of the case,424 Nkpah and Danwi’s affidavits were not admitted as exculpatory evidence.425 At that point, Danwi and Nkpah had already gone into hiding out of fear for repercussions by the regime and could not therefore give evidence to the hearing. Their fear proved to be well-founded: both men were put on the regime’s blacklist.426 Ultimately they were forced to flee Nigeria and they were accepted as refugees in Benin.427
  9. Nkpah is currently living in the United States and is prepared to substantiate his statements in detail as a witness if necessary. Danwi’s current whereabouts are unknown.

8.6.2 Shell maintained direct contact with the judges of the Special Tribunal during the trial

305. Despite the fact that, according to Nigerian law, Shell was an interested party to the proceedings as a result of the watching brief,428 Shell, in full accordance with its custom of inviting highly placed officials of the Nigerian regime to its Residential Area, organised a welcome dinner there for the judges of the Tribunal just prior to the start of the trial. In any case, Judge Auta, chairman of the tribunal, was present at this dinner. Femi Falana, the lawyer who represented Saro-Wiwa at the trial, and Ledum Mitee, one of the suspects, testified to this.429

306. Lawyers Onyeagucha (exhibit 52) and Agbakoba (exhibit 16) have confirmed the contacts between the judges of the Tribunal and Shell. They stated that the judges, who had come to Port Harcourt for the trial, were escorted to the Shell’s Residential Area on Aba Road after court days where they stayed and relaxed in Shells senior staff club:

“We knew that Shell, the prosecutor and the members of the tribunal were working hand in glove with each other. The hearings of the tribunal started between 9 and 10 AM and took until 2 or 3 PM. The judges were subsequently driven away by the military to Shell’s premises at Aba Road. Those judges did not normally live in Port Harcourt and Shell had a really good and modern club. They probably went there for relaxation. I believe that they were also accommodated at Shell’s premises.

[…]

It was baffling to me that Okuntimo, Shell and the Tribunal members were openly cooperating.”430

307. Onyeagucha stated:

“[T]he justices were […] accommodated by Shell. After every day in court, the justices of the Civil Disturbances Tribunal were escorted by Paul Okuntimo and the army to the Shell premises on Aba Road in Port Harcourt. […] The justices of the tribunal were also known to have repeatedly visited the facilities of Shell’s club in the Shell Residential Area.”431

8.6.3 Shell offered to influence the outcome of the trial in exchange for MOSOP ceasing its protest

308. It is evident from the three meetings that Owens Wiwa, Ken Saro-Wiwa’s brother, had with Brian Anderson during the Ogoni 9 trial, that Shell’s primary concern in this period was ts image and its economic interests. Owens Wiwa asked the British High Commissioner to put him in touch with Brian Anderson to discuss his brother’s trial. Owens was then invited for drinks with the British High Commissioner’s residence.432 Olisa Agbakoba, one of the Ogoni 9’s lawyers, was also present.433 There, Owens Wiwa and Agbakoba spoke to Anderson, who offered to do something about the execution of Saro-Wiwa under the condition that MOSOP would stop its international protest against Shell.434 After the meeting at the High Commissioner’s, two other meetings followed between Owens Wiwa and Brian Anderson during which Shell’s proposal was further specified and discussed. According to Owens Wiwa the details of the proposal were as follows:

“When I asked him for his help to secure the release of my brother and other detainees, he had said that we should show goodwill. I said what is the goodwill? And he said three things: one, that I should write a press statement, have it published in Nigerian newspapers, that there are no environmental devastation in Ogoni; the second one was that we should call off the protest – I mean the campaign that was going on against Shell and the Nigerian Government internationally; third, the documentary which was about to be shown in London at? that time on Channel 4 be withdrawn.”435

309. In a confidential memo dated 22 August 1995, Anderson – who is not yet aware of Owens Wiwa’s view on the proposal – gave a different account of Shell’s proposal (exhibit 116a):

“I offered Owens Wiwa the possibility that we would be prepared to put in some humanitarian aid (medical?) in exchange for the undertaking by his brother to soften their official stance on two key issues for us. 1. The outrageous claims […] against Shell for royalties and reparations, and 2. The claim that we funded the military in its clean up operations or ‘to clear the way’ for our return.”

310. That Anderson had promised “humanitarian aid” – whatever that would have amounted to in practice – in exchange for a radically different political stance of MOSOP is contradicted by the testimony of Olisa Agbakoba, who was present during the first meeting between Anderson and Wiwa. In his declaration he confirms Wiwa’s version of the events:

“I […] remember a meeting with Brian Anderson, then Country Managing Director of Shell. Ken Saro-Wiwa’s brother, Owens, was also present during that meeting. The British High Commissioner created the opportunity and told us that Mr Brian Anderson would like to meet us. The meeting took place at the British High Commissioner’s residence under cover of the usual Embassy Reception with drinks to create a good atmosphere for political deal-making.

The meeting was not fruitful though. Brian Anderson made a proposal. He made clear to us that the matter, simply meaning the trial, could be resolved if Ken would renounce his statements against Shell. I never forgot the arrogance of Brian Anderson during that meeting, he was not there to negotiate. His attitude was take it or leave it. Shell just wanted to have the international criticism off its back.

There is no doubt in my mind that Shell could have influenced the outcome of the trial. Brian Anderson told us that the trial could end in several ways, and that he could have the case dropped. He also said to Owens Wiwa that he could create an outcome that was good for his brother.”436

311. Saro-Wiwa gave his brother instructions from prison not to accept Shell’s proposal.437 In response, in his memo to Detheridge, Anderson wrote that in that case he would not be willing to improve the situation of the Ogoni 9, inter alia because this might upset the regime. Anderson stated: “we need something in return […]. Don’t forget that the government see MOSOP as terrorists and our dealing with them could be miscontrued”.438 At the same time, negotiations were taking place in London between representatives of MOSOP and the service companies of which Anderson wrote: “we [Shell] should NOT allow minutes to be taken”.439

312. The negative outcome of the negotiations with Owens Wiwa had an impact on another attempted negotiation by Shell described by Ledum Mitee in his declaration. Mitee was visited in prison by Eddie Wikina, an employee of SPDC, and described Wikina’s role as follows:

“After the suggestion of Okuntimo, we managed to smuggle a then Shell-representative into Bori Camp to talk to him. His name is Dr. Eddie Wikina, he was also a friend of mine. The idea was to solve this issue through the back-door, because the the issue was really between Shell and MOSOP: Shell would be able to intervene. Shell was aware of the fact that Wikina was meeting with Ken and me. Wikina said that he would take the matter up with the people higher up in Shell and the would get back to me with their response. However, something came up. Dr. Owens Wiwa had a meeting with Brian Anderson and that went to the press. That blocked every possibility that could have come up through Wikina. Shell was scared that we would go public, so nothing happened.”440

313. Shell’s use of Wikina as a contact for MOSOP was confirmed by Shell employee Precious Omuku.441

314. These efforts to negotiate with MOSOP about the fate of the Ogoni 9 reveal that Shell deemed itself able to influence their situation,442 but was only prepared to do so if MOSOP would meet its terms. At the same time, Shell knew what the consequences of its refusal to help were, to wit, the continuation of the unlawful detention, the abuse suffered by the detainees and their possible execution (see also the next section). It is clear from Anderson’s memo that Shell did not want to upset the regime and was only prepared to wield its influence if they could offer Abacha something that was in his interest, in this case the termination of MOSOP’s resistance against Shell and the regime. It is clear that Shell’s actions were guided by the shared commercial interests with the regime, which were not to be negatively affected by a deal with MOSOP.

Extracts end

Footnotes

409 See for parts of the footage on which Danwi and Nkpah can be seen writing their statements the documentary In Remembrance: Ken Saro-Wiwa (exhibit 252), 14:06-15:34.

410 Called Kevin Badella in the Public deposition of Nkpah and Kenwim Badara in Danwi’s affidavit.

411 Meabe, Bah and Badara have since died. Blessing Eawo said that Celestine Meabe had been bribed by Shell before the trial and had tried to persuade her husband to discontinue with NYCOP.

412 See Birnbaum (exhibit 225), appendix 9, pp. 104-116, for an overview of these incriminating witness reports.

413 Vikue is also well-known to Shell, as is apparent from the public deposition of Precious Omuku (Manager Health Safety Environment Public Affairs SPD), see public deposition Precious Omuku, 19 April 2004 (exhibit 51), p. 238.

414 Affidavit Charles Suanu Danwi, 16 February 1995 (exhibition 21); Public Deposition Naayone Nkpah, 19 March 2004, p. 97-100.

415 Affidavit Charles Suanu Danwi, 16 February 1995 (exhibit 21).

416 Public Deposition Naayone Nkpah, 19 March 2004 (exhibit 45), p.21; Nkpah also gave a description of Okocha, see pp. 114-115.

417 Public Deposition Naayone Nkpah, 19 March 2004 (exhibit 45), pp. 113-121.

418 Ibid, p. 113.

419 Ibid, p. 114.

420 Ibid, p. 19.

421 Ibid, pp. 119-121.

422 Transcripts Ogoni Civil Disturbances Special Tribunal, day 2, 21 February 1995 (exhibit 180), pp. 18-27. (quote p. 18).

423 Transcripts Ogoni Civil Disturbances Special Tribunal, day 3, 27 February 1995 (exhibit 182), pp. 34-39.

424 Transcripts Ogoni Civil Disturbances Special Tribunal, day 3, 27 February 1995 (exhibit 182), p. 39: “I am inviting you to look at it because this is the basis of the case for the prosecution. All the people mentioned here are all Witnesses [Oso referred to the names of bribed witnesses who Danwi named in his affidavit]. If the statement made by each of them is inherently flawful, then, it is mere elephant feet of clay […]. In summary, I submit that prima facie, the quality of the evidence is poor. The character of the evidence before the Tribunal is quantitative. To sway you against the application, it must be qualitative. The affidavit of Charles Suanu Danwi is a very serious issue which must not be taken lightly by this Tribunal”.

425 See also: Letter dated 23 may 1996 from the Secretary-General addressed to the President of the General Assembly, 28 mei 1996, A/50/960 (exhibit 233), p. 15.

426 List with wanted MOSOP members from the Deputy Inspector General of Police, addressed to Major Obi Umahi, Okuntimo’s successor, 4 March 1996 (exhibit 267).

427 Public Deposition Naayone Nkpah, 19 March 2004 (exhibit 45), pp. 179-180, 184-186. Nkpah made a full statement about the bribery in the American proceedings. He was resettled to the United States from Benin in 1998 and lives there still. Danwi was to have been called as a witness in the American Kiobel and Wiwa cases, but because of the outcome in those cases this never happened, see chapter 5.

428 See chapter 8.5.2 and the declaration of Femi Falana, 16 June 2017 (exhibit 26), para. 6(g).

429 Declaration Femi Falana, 16 June 2017 (exhibit 26), para. 6(g); Declaration Ledum Mitee, 2 May 2017 (exhibit 41), paras. 16-17.

430 Declaration Olisa Agbakoba, 2 May 2017 (exhibit 16), paras. 10 and 14.

431 Declaration Uche Onyeagucha, 15 June 2017 (exhibit 52), para. 7: “In addition, we had lawyers who were close to the lawyers working for Shell. They informed us that Shell was involved with the judges.”.

432 Public Deposition Owens Wiwa, Vol. I, 12 September 2003 (exhibition 62), p. 203; Public Deposition Owens Wiwa, Vol. II, 24 May 2004 (exhibition 63), pp. 544-545; Declaration Olisa Agbakoba 2 May 2017 (exhibit 16), paras. 3-7.

433 Public Deposition Owens Wiwa, vol. II, 24 May 2004 (exhibit 63), pp. 544-545; Declaration Olisa Agbakoba, 2 May 2017 (exhibit 16), para. 6: “I think that I was invited for this meeting, because I was considered to be a moderate human rights lawyer, in contrast to Femi Falana and Gani Fawehinmi. They probably though that it would be easier to strike a deal with me”.

434 Public Deposition Owens Wiwa,, vol. I, 9 December 2003 (exhibit 62), pp. 247-249; Documentary In Remembrance Ken Saro-Wiwa (exhibit 252), 29:11-30:37; Declaration Olisa Agbakoba, 2 May 2017 (exhibit 16); see also Ken Saro-Wiwa’s response to this meeting in the letter from Ken Saro-Wiwa to his brother Owens Wiwa, 13 May 1995 (exhibit 261) and Polly Ghazi, “Shell refused to help Saro-Wiwa unless protest called off”, The Observer, 19 November 1995 (exhibit 259).

435 Deposition Owens Wiwa, vol. I, 9 december 2003 (exhibit Fout! Verwijzingsbron niet gevonden.), pp. 247- 249.

436 Declaration Olisa Agbakoba, 2 May 2017 (exhibit 16), paras. 3-5, 7.

437 Letter from Ken Saro-Wiwa to his brother Owens Wiwa, 13 May 1995 (exhibit 261); Declaration Olisa Agbakoba, 2 May 2017 (exhibit 16), para. 7.

438 Interoffice Memorandum van Brian Anderson aan Alan Detheridge, 22 augustus 1995 (exhibit 116a).

439 Ibid.

440 Declaration Ledum Mitee, 2 May 2017 (exhibit 41), para. 11.

441 Public Deposition Precious Omuku, 19 April 2004 (exhibit 51), pp. 133-134: “Eddie Wikina, this person who authored this notice, an Ogoni man who works in Shell – and I got him to arrange for me to talk with MOSOP people. We tried to talk”.

442 See also Exhibit Fout! Verwijzingsbron niet gevonden.: Public Deposition Nick Wood, 16 June 2003, p. 112: “Mr. Anderson said that if some trust and reconciliation would be achieved between Shell and MOSOP then this might affect the government’s attitude in relation to Mr. Saro-Wiwa” (quote from A prepared response to a public statement by Owens Wiwa). According to Wood he drafted this response on the basis of discussions with “the people who were at the meetings” with Owens Wiwa: Achebe en Anderson, pp. 107-108.

Footnotes end

At the time of all of these horrific events in Nigeria, orchestrated by Shell to a large degree, Shell claimed that it was operating within its core business principles, including honesty, integrity, openness and respect for people. 

FURTHER INFORMATION ABOUT THE WRIT

The numbered paragraphs above 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.

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. (*See Writ of Summons in English and Dutch served on Shell 28 June 2017 – copy obtained from US Pacer public electronic court records)

Shell blanket denial: Shell’s blanket denial of any responsibility for the ‘Ogoni Nine’ executions and related events/allegations can be read here. The denial does not explain why Shell settled for $15.5 million in June 2009 a case legally and substantively the same.

The Guardian: Shell pays out $15.5m over Saro-Wiwa killing: 9 June 2009

Shell to Pay $15.5 Million to Settle Nigerian Case: The New York Times: 8 June 2009

Shell, Nigerian families settle suit for $15.5 million: Reuters: 8 June 2009

Shell to pay $15.5 million to settle Nigeria claims: CNN: 8 June 2009

Shell Settles Human Rights Suit for $15.5 Million: Fox News/AssociatedPress: 8 June 2009

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