Prakken d’Oliveira

THE OGONI 9 SHOW TRIAL

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 is provided after the extracts.

4.6 Death penalty for the Ogoni 9

113. On 31 October 1995 the tribunal imposed the death penalty on nine suspects.
114. Kiobel’s father sent a letter to Abacha seeking clemency on 7 November 1995 (exhibit 11), wherein he writes: “there is a misunderstanding, he tries to make peace”.151 The wives of those sentenced to death, including Esther Kiobel and Victoria Bera, also made an appeal to Abacha on 8 November 1995 (exhibit 12):
     “As Your Excellency is no doubt aware there is no right of appeal against the judgment of the Tribunal that convicted and sentenced our husbands so there is no forum to test the correctness or otherwise of the said decision. Besides, our husbands have to do without the services of lawyers of their choice through no fault of theirs mid way their trial; Even at the point of conviction our husbands still maintained and we are convinced of their innocence. […] Let your verdict not make us widows and our children fatherless.”152
115. The wives explicitly refer to the lack of the possibility to initiate an appeal. The Decree of 1987 after all rules out a (more senior) court, independent of the tribunal and the regime, hearing the case again in its entirety and rectifying any legal errors. Section 7 of the Decree does say that any sentence imposed by the tribunal may not take effect until confirmed by ‘the confirming authority’.153 However, this authority cannot overturn the sentence. It is also unclear whether refusal of confirmation is possible and whether refusal would be the same as acquittal.
116. The authority required to confirm the findings of the tribunal, the Armed Forces Ruling Council, was part of the military regime. At the time of the trial the powers of this body had transferred to the Provisional Ruling Council (PRC), newly set up by Abacha.154 The members of the PRC met on 8 November 1995. A memo of the meeting (exhibit 176) shows that Abacha was the chairman of this meeting and that:
     “He was of the view that no sympathy should be shown on the convicts so that the sentence would be a lesson to everybody. He stated that the Ogoni issue had lingered on for a very long time and should be addressed once and for all.”
117. The Secretary-General of the United Nations said of the PRC: “The PRC confirmed the conviction and sentence even before the records of the trial were received,” and “the haste with which the sentences were confirmed by the Provisional Ruling Council PRC) implies that the Government had made up its mind and was not interested in a fair consideration of the case.”155 The memo of the meeting also shows that reconsideration of the sentence imposed by the tribunal was never an option for the members of the PRC. To prevent the regime coming across as weak, the execution had to be put into effect as soon as possible.156
118. Meanwhile, complaints about the trial were also considered by the African Commission on Human and Peoples ́ Rights.157 When the African Commission became aware that the sentence had been confirmed by the PRC, provisional measures were imposed on the Nigerian government to prevent irreparable damage: Nigeria was to postpone the executions until the Commission had had the opportunity to discuss the case with the government.158 This call was ignored by the Nigerian regime and the next day, 10 November 1995, the nine convicts, despite national and international protests,159 were brought to death by hanging in the Federal Prisons in Port Harcourt.160
119. The African Commission stated regarding the executions and the ignoring of the provisional measures: “Execution in the face of the invocation of rule 111 defeats the purpose of this important rule. […] This is a blot on the legal system of Nigeria which will not be easy to erase. To have carried out the execution in the face of pleas to the contrary by the Commission and world opinion is something which we pray will never happen again. That this is a violation of the Charter is an understatement.”161

151 Exhibit 11: Plea for clemency for Dr Barinem Kiobel, 7 November 1995.

152 Exhibit 12: Plea for clemency on behalf of our convicted husbands, 8 November 1995.

153 Decree No. 2 1987, section 7 (see Birnbaum (exhibit 255), para. 8.14: “Any sentence imposed by the Tribunal shall not take effect until the conviction or sentence is confirmed by the confirming authority. The confirming Authority may confirm or vary the sentence of the Tribunal.” read more