A British criminal lawyer, Michael Birnbaum QC, who observed the trial, concluded that it was deeply unfair. “The judgement of the Tribunal is not merely wrong, illogical or perverse. It is downright dishonest. The Tribunal consistently advanced arguments which no experienced lawyer could possibly believe to be logical or just. I believe that the Tribunal first decided on its verdict and then sought for arguments to justify them. No barrel was too deep to be scraped.”
Extracts from pages 33 & 34 of an Amnesty International document entitled: “A CRIMINAL ENTERPRISE? SHELL’S INVOLVEMENT IN HUMAN RIGHTS VIOLATIONS IN NIGERIA IN THE 1990s”
OGONI 9: UNFAIR TRIAL AND EXECUTION
On 6 February 1995, Ken Saro-Wiwa, Dr Barinem Kiobel and the other prisoners were allowed to see their lawyers for the first time since their arrest in May the previous year.136 They were put on trial by a specially constituted tribunal – The Civil Disturbances Tribunal. Ken Saro-Wiwa, Barinem Kiobel, John Kpuinen, and Saro-Wiwa’s deputy in MOSOP, Ledum Mitee, were accused of inciting the murders. The other men were accused of carrying them out. They all faced the death penalty and were denied the chance to appeal.
In September 1995, Amnesty International reported that “the prosecutions appear to be politically motivated and the proceedings and decisions of the special tribunal set up specifically to try the cases do not satisfy international standards for fair trial.”137 Amnesty International highlighted the following concerns: during their detention, defendants said they were tortured and denied food.138 They were held incommunicado for at least eight months, denied access to lawyers and their own doctors.139 Even after the start of the trial, the commander of the ISTF, Paul Okuntimo, allowed consultations between defendants and their lawyers only by prior arrangement with him and usually only in his presence.140 Relatives said they were assaulted by soldiers when trying to visit the defendants, who were held at the Bori camp, which was under the control of Lieutenant- Colonel Okuntimo.141 The tribunal was not independent of government control.142 The tribunal divided the defendants into two groups and tried them separately, yet simultaneously, on the basis of almost identical indictments and prosecution statements. This was prejudicial to the defendants.143
On the merits of the case, Amnesty International raised serious concerns about the eyewitness accounts used as evidence by the prosecution.144
In addition, evidence that supported the defence was not admitted.145 For example, the judges ignored statements by two key prosecution witnesses that they had been offered bribes to sign false statements incriminating Ken Saro-Wiwa.146 The bribes allegedly included the offers of job contracts with Shell.
One prosecution witness, Charles Danwi, said that representatives of Shell, as well as security agents and government officials, were all present at the meeting where the bribes were offered. Charles Danwi said that in exchange for the bribes, “he was told to identify anyone that the military arrested.”147 A second prosecution witness, Naayone Nkpah, also said that a representative of Shell, its lawyer O.C.J. Okocha, as well as the commander of the ISTF, Lieutenant-Colonel Okuntimo, were present at the meeting where he was offered bribes.148 Shell has always strongly denied it or its representatives was involved in bribing the witnesses.149
A British criminal lawyer, Michael Birnbaum QC, who observed the trial, concluded that it was deeply unfair.
“The judgement of the Tribunal is not merely wrong, illogical or perverse. It is downright dishonest. The Tribunal consistently advanced arguments which no experienced lawyer could possibly believe to be logical or just. I believe that the Tribunal first decided on its verdict and then sought for arguments to justify them. No barrel was too deep to be scraped.”150
In spite of worldwide protests and condemnation by world leaders, Ken Saro-Wiwa and eight others were convicted and, on 10 November 1995, executed by hanging.151
Footnotes
136. Michael Birnbaum QC, Nigeria: Fundamental Rights Denied: Report on the Trial of Ken Saro-Wiwa and Others, p. 32. 137. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995).
138. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), P. 9.
139. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p. 9.
140. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p. 9.
141. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p. 9.
142. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p. 11
143. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p. 14
144. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p.13; Michael Birnbaum QC, A Travesty of Law and Justice.
145. Amnesty International, Nigeria: The Ogoni Trials and Detentions (Index: AFR 44/020/1995), p. 6.
146. Cited in Michael Birnbaum QC, Nigeria: Fundamental Rights Denied: Report on the Trial of Ken Saro-Wiwa and Others, Appendix 10.
147. Cited in Michael Birnbaum QC, Nigeria: Fundamental Rights Denied: Report on the Trial of Ken Saro-Wiwa and Others, Appendix 10.
148. Deposition of Naayone Nkpah, 19 March 2004 (exhibit 24 Nkpah).
149. For example: “The Shell Petroleum Development Company denies all allegations of bribery made during the proceedings of the Ogoni Civil Disturbances
Tribunal…We have not paid cash, awarded contracts or used any other means to try to influence events surrounding the cases before the Tribunal.”
Shell Nigeria, Statement by Brian Anderson, 8 November 1995.
150. Michael Birnbaum QC, A Travesty of Law and Justice, p. 2.
151. Ledum Mitee and five others were acquitted.
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