Tag Archives: litigation

Deltan Women’s Trust in Courts

The previous post about the recent settlement from Shell favoring the Bodo community, in which the company agreed to pay over $83 million dollars to avoid litigation, made me wonder about the potential for increased use of courts as a mean of collective action for Niger Deltan women. Although the Shell settlement arose from cases filed in British courts, I considered whether women would start viewing Nigerian courts as a place to seek justice as well.

However, my research several years ago indicated that, at least then, women did not view Nigerian courts as viable conduits through which they could help remedy environmental damage. Some rural women told me that courts are unfair because you can “pay the lawyer to speak well for you,” and another colorfully said, “What is bad about Nigerian court is that a child can be born today and you can put the case in court, and the child will graduate from university and the case will still be in court.” Across Nigeria, Afrobarometer’s public opinion survey asked rural women, “How much do you trust courts of law?”:

2002-2003 2005-2006 2008-2009 2011-2012 Average*
Not at all 33% 27% 19% 20% 25%
Just a little 41% 35% 36% 36% 37%
Somewhat 17% 26% 30% 31% 26%
A lot 3% 9% 11% 12% 9%
Don’t know 6% 3% 3% 1% 3%

(*The weighted average takes into account the number of respondents in each survey, which varied from 2002-2012. There were a total of 4671 respondents for all 4 surveys during this decade. My chart shows that trust in courts increased a bit during this period but was still very low (raw data taken from Afrobarometer 2012).)

A prominent women’s rights activist told me: Community groups do not have the resources to pay the fees of a legal practitioner.  Also, they don’t have faith in the legal system because of corruption. It is assumed that the oil company can buy up the lawyer and spend money to disturb the legal system, so communities will not actually have access to justice.  There is no faith in the system.  That is why community groups do not even make the effort to go to court.

Indeed, Nigerian courts and legal institutions have long been acknowledged as among the most corrupt. The Mo Ibrahim Index regularly ranks Nigeria “very low” on its measurements of rule of law, placing it 43rd out of 52 African countries in 2012.  Indeed, half of my respondents said that corruption impedes their chances of succeeding in courts. Considering corruption and the unequal playing field for grassroots activists, it is unsurprising that women have chosen to protest over engaging with formal law.

Nigerian Supreme Court.

Nigerian Supreme Court.

Shell, villagers agree to $83.5 million for huge oil spilll | The Japan Times

Shell, villagers agree to $83.5 million for huge oil spilll | The Japan Times.

Over 15,600 Ogoni farmers and fishermen whose lives were devastated by two large Shell oil spills in 2008 are celebrating the $83.5 million settlement they will receive from Shell as compensation. The settlement, split among individuals and the community as a whole, avoids Shell having to defend a potentially embarrassing London high court case which was due to start shortly. It is thought to be the largest payout to any African community following environmental damage and the first time that compensation for an oil spill has been paid directly to affected individuals rather than to local chiefs.

In the past, compensation from companies has been paid to chiefs, with the understanding that he would use it for community projects.  However, there is little to no oversight after the compensation is paid out, leaving room for chiefs to skim off the top.  In fact, chiefs have had an incentive to actually encourage collective action against oil companies, since resistance measures could cause companies to pay out financial compensation that chiefs would then control. Conversely, during protests the chief will go to a private negotiation with company officials to “settle peace,” as Nigerians call it.  The company may pay the chief what they term “community compensation” to settle the matter, with both parties understanding that the chief is being paid to send the protesters home.  Whether collective action succeeds as it did in this most recent case, or whether is fails when chiefs put an end to it, the chiefs benefit. Hopefully, pay outs directly to community members like Shell is now doing will help ensure compensation goes where it should, into the pockets of local citizens.

Ikebere protesters

An interview from the NGO field

I had the opportunity to interact with many NGO actors in the Niger Delta. An incredibly helpful organization for me was Social Action in Port Harcourt, Rivers State. The Executive Director of Social Action introduced me to Fyneface D. Fyneface, who eventually became a research assistant. To offer a Nigerian’s perspective, below are some his answers to my questions about the issue of Nigerian oil.

Q: Describe the relationship between law and reforming the oil problem.

A: Nigerian law allows the oil companies to come in and operate in the region. Yet, the oil companies do not obey the laws that are supposed to protect the environment and make the people benefit from the resources in their land, thus, making the “black gold” a curse rather than a blessing to the people. The people have reacted to the underdevelopment, unemployment, environmental and social problems in the region through different struggles, including protests, litigation and lately, militancy by idle youths in the name of fighting the Niger Delta cause from the angle they deem fit. Yet, no significant change or reform has been noticed in the oil sector as expected by the people of the region.

Q: Does litigation help the Niger Delta cause?

A: Litigation has not helped the Niger Delta to find solutions to the oil problem. This is because many Niger Deltans see an oil company as too big for them to sue as an individual, especially as they don’t have the money to go into litigation with an oil company that is richer, and also because they’re aware that they cannot get justice—not in their life times and not even in foreign courts. Examples are the popular Royal Dutch Shell Vs. Kiobel in the U.S. Supreme court, and the Niger Delta Four Farmers vs. Royal Dutch Shell at The Hague in which the court blamed the woes of the people on “sabotage”.

Q: What does the average Niger Deltan think about the role of law in solving oil problems?

A: The average Niger Deltan does not think the law can play any significant role in solving the Niger Delta problem. Not only because they have not see any successful land-mark judgment, but also because they lack confidence in the law in resolving the problems. The oil industry laws in Nigeria can only bark but cannot bite. An example is the law on gas flaring, which even the Nigerian government has not been able to implement to force the oil companies to stop the flaring that has been occurring since the 1950’s. A typical Niger Deltan would tell you that it is only God that can solve the problems for them, not the law, not the government, and not even the international community.

Online Kiobel symposium: The Alien Tort Statute and the foreign relations fallacy : SCOTUSblog

Online Kiobel symposium: The Alien Tort Statute and the foreign relations fallacy : SCOTUSblog.

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Corporate Fines and Settlements (BP, Shell, and Exxon)

Corporate Fines and Settlements (BP, Shell, and Exxon)

You might want to click on it to enlarge it, but this infogram demonstrates the largest corporate fines and settlements for the last seven years. I am most interested in the disparity among the oil companies. Exxon-Valdez paid $507 million in fines for its 1989 spill in Alaska (which has not been totally cleaned up yet). This is just 11% of its annual earnings. In contrast, the BP Gulf of Mexico spill cost that corporation 110% of its annual earnings, and rightly so. I would attribute this to heightened environmental sensitives regarding environmental damage in the U.S. However, unless I am not interpreting it correctly, the display also says that Shell paid 6% of annual earnings to settle a Niger Delta case in 2000. Perhaps we have different sources of data, but Shell’s earnings in 2006 were $25.36-25.44 billion and not just over 26 billion, but I suppose when analyzing such an absurd profit that doesn’t make much difference. My main point is that the well-known Wiwa settlement occurred in 2009, not 2000, and it was for $15.5 million, not $1.5 billion. This large discrepancy means the settlement was actually a mere .004% of annual earnings, not 6%. To put that in perspective, the Shell corporation earns about $2.5 million per hour, so they worked off the irreversible destruction of millions’ of farmers and fishermen’s land in just over 6 hours.