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Kiobel Writ: Ogoni 9 trial – Shell deception and machination

While Shell publicly stated that it was trying to persuade the regime to abandon the trial using quiet diplomacy, in reality it continued supporting the regime, while negotiating new projects. It also continued actively involving itself in the course of events during the trial.

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 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.

OGONI 9 TRIAL

Extracts begin

8.7 Shell, knowing how the trial would end, allowed its commercial interests to prevail over the fate of the Ogoni 9

315. Through its close involvement with the case and with the regime Shell knew at an early stage that the suspects would not have a fair trial. In July 1995, more than three months before the tribunal was to pass judgment, Anderson reported on a conversation he had had with President Abacha:

“I conclude from what [Abacha] said that he has no sympathy for Saro Wiwa whatsoever, and we must therefore prepare ourselves for a conviction in this trial with all the difficulties that portends for us”.443

316. Anderson had long been expecting Saro-Wiwa to be sentenced to death. On 16 April 1995 he wrote in a Nigeria Update to the Shell Group (exhibit 114, p. 2):

“The BHC [British High Commissioner] believes that although the charges should not stick the government will make sure that he is found guilty. He would be sentenced to death, and reprieved after giving in to pressure from outside, but be incarcerated for a very long time. The feeling is that the trial will go the way of all others of the kind in the past here: nobody has ever been found innocent.”

317. Despite this knowledge, Shell did not modify its tone regarding Saro-Wiwa and MOSOP, nor its relationship with Abacha; not before Operation Restore Order, not during the Ogoni 9 trial, nor in the run-up to the executions of the Ogoni 9. While Shell publicly stated that it was trying to persuade the regime to abandon the trial using quiet diplomacy, in reality it continued supporting the regime, while negotiating new projects. It also continued actively involving itself in the course of events during the trial.

318. Shell was clearly in a position to prevent the executions. The conversation between Brian Anderson and Owens Wiwa shows that Shell was well aware of this,444 as does the fact that in other cases Shell had, with success, asked the authorities to drop charges and release suspects.445

319. At the time that the Ogoni 9 were sentenced to death on 31 October 1995, Nigeria had degenerated into an international pariah state.446 In spite of the many requests to Shell to apply its influence on the regime to prevent the executions, Shell however continued to rely on its supposed apolitical course.447

320. In a press release on 19 November 1995, nine days after the execution of the Ogoni 9, Shell shifted the blame to the parties that had openly turned against the Nigerian regime, because this was supposedly at odds with the potentially successful approach of Shell’s quiet diplomacy:

“First, did discreet diplomacy fail? Perhaps we should ask instead why the worldwide protests failed. Our experience suggests that quiet diplomacy offered the very best hope for Ken Saro-Wiwa. Did the protesters understand the risk they were taking? Did the campaign become more important than the cause?”448

321. Nothing has become evident of the quiet diplomacy that Shell claims to have practised.449 Nor is it in any way evinced in the reports of the talks with the government officials that Brian Anderson circulated within the Shell Group (the aforementioned Nigeria Updates). On the contrary: as will be substantiated below, these reports reveal a far more servient attitude and an attempt to keep the government satisfied.450

322. The Nigeria Updates show how Shell also put its economic interests first during the Ogoni 9 trial. It continued negotiating with the regime regarding a large-scale National Liquefied Natural Gas (NLNG) project and a new Memorandum of Understanding for the period 1996-2000.451 It is clear that Shell never considered withdrawing from Nigeria or otherwise attaching consequences to the human rights violations committed by the Abacha regime.

323. On 23 July 1995, as the Ogoni 9 trial was approaching its conclusion, Brian Anderson had a meeting with President Abacha. Anderson did not bring up the trial during this conversation, but emphasised the concerns of shareholders about overdue payments by the regime and made a link with the success of the NLNG project:

“I made a strong case for the payment process being resolved as soon as possible, as it would allow us to have confidence to pick up our investment rate in the upstream oil and gas business, and at the same time give our shareholders confidence that the government would pay its full share of any NLNG cash calls after FID.

I made it quite clear that I believed that this single issue outweighed all others at this time” 452

324. After an hour and a half Abacha had to raise the Ogoni issue himself at this meeting,453 where he appeared to be irritated by Shell’s lack of open support as “the biggest company in Nigeria, w[ith] the best knowledge of the activities on the ground in the Ogoni area”.454 The document shows that Shell then too hid behind its supposed apolitical attitude:

“I tried to defuse the situation by going over the non-political stance that we had taken mentioning that our job was to try and do our best to help the government develop its oil and gas reserves as efficiently as possible, and that we could not take sides with the government on such a sensitive issue. I must say that after explaining he calmed down a bit, but I was left with the distinct impression that he was not really happy nevertheless!”455

325. Anderson made clear that he was aware of the criticism that the regime was having to endure (“I told him that we were very conscious of the government’s irritation with the public villification it was getting on the Ogoni issue”), but that it could mean a PR disaster if Shell openly sided with the regime:

“I told him of the pressures we as Shell were under on the Ogoni issue internationally and that we had to tread extremely carefully in order to try and minimise the potential (or actual) damage such an issue could cause worldwide business.”456

“He wants us to support him, but I think he now understands better that we have some very clear limits to what we can do publicly, or in private for that matter”457

326. The Updates mainly show that Shell was worried about the reputational damage it could suffer as a result of the Ogoni 9 trial and the potential consequences for the NLNG project:

“We are naturally most concerned at the potential for problems arising from the forthcoming judgment in the trial of ken Saro Wiwa and other Ogonis in PH, slated for 31st October […] I feel particularly exposed at this time in the lead-up to the NLNG FID!”458

327. Shell however was in absolutely no way prepared to lay down conditions for continuing cooperation with the regime. On the contrary, Shell wanted above all to satisfy Abacha in order to safeguard its economic interests (Anderson: “I suspect that we have to do something to keep him happy!”).459 In the period following this meeting with Abacha Shell made no demonstrable efforts to change the regime’s mind and the negotiations for the NLNG project and the MOU went on unrelentingly.460 To ensure that the NLNG deal could be concluded without too much international protest, Anderson even sent Achebe to Abuja to talk to someone from the Foreign Ministry and “the Security people” (probably the SSS):

“to see if he [Achebe] could do something about the confluence of events […] the NLNG project and the trial that were coming at the same time. […] I think it was around the middle of November there was a final decision required on the NLNG project. At the same time we were seeing the end of the trial of Saro Wiwa”

“Q: And the problem you sent him to speak about was the end of the trial and its timing in relationship to the NLNG; is that correct? A: The two things were coming – looked like they were coming exactly the same time”461

328. On 2 November 1995, two days after the death sentence on the Ogoni 9 and eight days before the executions, Anderson wrote a report for the Shell Group on his meeting with Ernest Shonekan, Vice-President under Abacha and former board member of SPDC.462 At this meeting Anderson told Shonekan that Shell was playing with the idea of sending a letter of clemency to Abacha to plead for a pardon or reduction of sentence for Saro- Wiwa, which Shonekan discouraged him from doing.463 Anderson however stressed that Shell had to defend itself to the outside world:

“I emphasised that Shell would be obliged to defend itself against criticism from many quarters, both locally and internationally, over the next weeks and that we could not take the government’s corner. [Shonekan] accepted this as a matter of fact. He did however remind me of the HOS’s [Head of State’s/Abacha’s] demand that Shell be more (publicly) supportive, and he said that the HoS felt that the government were doing what they could to help Shell.”464

329. Anderson therefore felt obliged to as good as apologise to Shonekan for the fact that Shell did not publicly side with the regime. The alliance between Shell and the regime was also emphasised by Shonekan’s request to Shell to support the regime more visibly and his reminder of the fact that the regime was making an effort to serve Shell’s interests.465

330. Following the meeting with Shonekan, Anderson was pleased to tell the Shell Group that “Abacha seemed to have valued our last talk very highly and he felt that he would welcome a fairly frequent dialogue of this kind […] This bodes well if true”.466

331. Shortly thereafter, Shell sent the letter it had announced to the regime, in which it asked the regime to consider not carrying out the executions for humanitarian reasons.467

332. On 8 December 1995, nearly a month after the executions, Shonekan conveyed Abacha’s compliments to Anderson, who again reported this to the Shell Group:

“The HoS [Head of State, Abacha] told S[honekan] that he was very happy that Shell had remained steady under pressure, and asked him to convey his thanks to me. […] He was particularly happy about the NLNG Project.”468

333. The regime and Shell had already reached an agreement about the NLNG project, which was made public in December 1995, in November, only days after the executions.469 The World Bank had by then already withdrawn from the billion-dollar project because of the political situation in Nigeria. Various countries also recalled their ambassadors and the EU stopped development aid and enacted an arms embargo.470

Extracts end

Footnotes443 Exhibit 116: Nigeria Update, 23 July 1995.

444 See chapter 8.7.3.

445 See Public Deposition George Ukpong, vol II, 24 March 2004 (exhibit 58), pp. 521-522: “I recall that the police command had instituted charges of either disruption or attempted disruption of oil operations and wanted to take the suspected leaders to court and, by the time the operations went on smoothly without any disturbance, we had to follow up with this letter to say that there was no problem and, therefore, if you have instituted charges, please withdraw them”. See also ibid. pp. 282-284 and Public Deposition George Akpan Ukpong, Vol. I, 23 October 2003 (exhibition 57), which shows that Ukpong requested Okuntimo to release the young people arrested.

446 Two days after the executions Nigeria was suspended by the Commonwealth, see the website of the Commonwealth, available at: http://thecommonwealth.org/history-of-the-commonwealth/nigeria-suspended- commonwealth <accessed 26 April 2017>; The EU condemned the executions, reaffirmed the measures from 1993, introduced an embargo on arms, munitions and military equipment and suspended development cooperation with Nigeria, see Common Position of 20 November 1995 defined by the Council on the basis of Article J.2 of the Treaty on European Union, on Nigeria (exhibit 231).

447 See e.g. press release from Brian Anderson, 8 November 1995 (exhibit 164). The fact that this apolitical course was a cover for what was actually a very political course and Shell’s symbiotic relationship with the regime is described in chapter 8.5.

448 Shell, “Clear thinking in troubled times”, 19 November 1995 (exhibit 165); Press release from Brian Anderson MD, 8 November 1995 (exhibit 164); Letter Eric Nickson (Head Media Relations Shell) to Glen Ellis, 1 November 1996 (exhibit 155), pp. 3-4.

449 Ibid, see also the letter from Philip Watts to Brian Anderson of 24 January 1996 (exhibit 128).

450 See below.

451 Nigeria Update, 19 April 1994 (exhibit 91), p. 6; Nigeria Update, 20 May 1994 (exhibit 93), pp. 4-5; Nigeria Update 12 June 1994 (exhibit 96), p. 4; Nigeria Update, 10 July 1994 (exhibit 98), p. 5; Nigeria Update, 28 July 1995 (exhibit 116); Nigeria Update 16 October 1995 (exhibit 120), pp. 1-2, 4; Nigeria Update 2 November 1995 (exhibit 122), pp. 2-3; Nigeria Update 8 December 1995 (exhibit 126), p. 2.

452 Nigeria Update, 28 July 1995 (exhibit 116).

453 Nigeria Update, 28 July 1995 (exhibit 116), p. 6: “After I had finished with my part (which had lasted about 1 1⁄2 hours) he said he had something he wanted to raise with me. The Ogoni issue!”

454 Nigeria Update, 28 July 1995 (exhibit 116), p. 6.

455 Nigeria Update, 28 July 1995 (exhibit 116), pp. 6-7

456 Nigeria Update, 28 July 1995 (exhibit 116), p. 7.

457 Nigeria Update, 28 July 1995 (exhibit 116), p. 7.

458 Nigeria Update, 16 October 1995 (exhibit 120).

459 Nigeria Update, 28 July 1995 (exhibit 116), p. 5.

460 Ibid, pp. 4-5; Nigeria Update 16 October 1995 (exhibit 120), pp. 1-2, 4; Nigeria Update 2 November 1995 (exhibit 122), pp. 2-3; Nigeria Update, 8 December 1995 (exhibit 126), p. 2.

461 Public Deposition Brian Anderson, 23 February 2003 (exhibit 17), pp. 166-168.

462 Nigeria Update 2 November 1995 (exhibit 122). For Shell’s revolving door policy see chapter 8.4.5.

463 Nigeria Update, 2 November 1995 (exhibit 122), pp. 1-3.

464 Ibid.

465 The same is evident from the meetings that Anderson had with Abacha, see for example above, at 321 et seq.

466 Nigeria Update, 2 November 1995 (exhibit 122).

467 Defendants’ supplemental responses to Wiwa plaintiffs’ second set of interrogatories persuant to the Court’s November 6, 2008 order, 17 December 2008 (exhibition 195), p. 9: according to Shell, the letter was delivered personally to the Nigerian High Commissioner in London on 8 November 1995, he would make sure that Abacha would receive it. Shell therefore believes that the letter was delivered to Abacha in any case before 10 November 1995.

468 Nigeria Update, 6 December 1995 (exhibit 126).

469 See NLNG’s website, available at: http://www.nlng.com/Our-Company/Pages/The-Plants.aspx <last accessed 27 June 2017>; Nigeria Update 11 December 1995, p. 2 (exhibit 127); Despite repeated requests to Shell to cease its cooperation with the project, see Ian Black, Cameron Duodo, Anthony Bevins, Michael Durham and Polly Ghazi, “Shell fuels outrage over Saro-Wiwa with $ 4 billion Nigerian gas deal”, 12 November 1995 (exhibit 257).

470 See Howard W. French, “Nigeria Executes Critic of Regime; Nations Protest”, The New York Times, 11 November 1995 (exhibit 256): “The United States, Britain and other countries withdrew their ambassadors, the Commonwealth countries were considering whether to expel or suspend Nigeria and the World Bank announced it would not support a $100 million loan to Nigeria for a huge project to develop liquefied natural gas.”.

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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