Ben Ikari, President of the African Cultural and Fundamental Rights Council (AFCRC) USA is one very outspoken and realistic Ogoni. He championed the campaign against failure of government to cleanup Ogoniland and had been in the front row of the case of Kiobel Vs. Shell. In this interview, Ben speaks on the Kiobel Vs. Shell case currently at the US Supreme Court, the anger of Ogoni people against Shell and other issues.
Ogoninews: The Kiobel Vs. Shell case just had another hearing at the Supreme Court. How will you assess the chances of the plaintiffs in this case?
Answer: First, let me thank you deeply for the concerns and work you ‘re doing trying to gather happenings in and outside Ogoni for public consumption.
No doubt, information as in knowledge is power when we acquire, use and share it for the common good or benefit of the community. This interview is sure great vision from you, and I truly appreciate the honor you’ve extended for me to speak on relevant and grave Ogoni issues so listed.
Meanwhile, to your question: yes, the Kiobel case had its second hearing or re-argument on extraterritoriality (that is, at what point or in what circumstances does the Alien Tort Statute (ATS) Ogonis are using to sue $hell) allow U.S. courts to entertain cases that happened in a different country. And that both the plaintiffs and defendant aren’t American as with this case that took place on Oct. 1, Nigerian independence’s day. What the court date shows here by such coincidence is that,not only is $hell on trial, but Nigeria is likewise on trial as was predicted by his excellency Tee Ken Saro-Wiwa before he’s hanged on Nov. 10,1995. The first argument that was based on whether corporations are liable under international law happened on Feb. 28,2012. The Obama government supported the Kiobel plaintiffs in the corporate liability case above and now supporting $hell due to what is suspected to be corporate influence…American government trying to protect $hell and American corporations from accountability when they commit egregious crimes against humanity,even though other cases such as Sosa v. Alvarez-Machian (2004) and Wiwa et al v $hell that were heard and resolved in America, yet didn’t happen in America.
Secondly, the chances are high and low. That is, the Supreme Court or American courts have more than 20 years history of cases filed and tried, though mostly settled out of court involving both individuals and corporations. In short,this Supreme Court gave meat to the ATS and extraterritorial hearing in American court in Sosa cited above. Although the ATS enacted by the First Congress in 1789 created this law to handle pirates due to a kidnapping act that took place on the sea,which isn’t also American soil and not own by any country,rather one of what is known as “global commons” such as high sea and space in international law/relations. The law didn’t categorically exempt corporations nor declare that they’re liable. Of course, if individuals are subject to or liable under this law,then corporations,which doesn’t create themselves, nor do they speak,eat or work,but mere legal entities created or own and run my individuals and group of individuals are also liable. They’re liable under domestic/national law,so nothing exempt them from liability when in violation of international law. No serious nation or group/court system can allow the commission of torture, crimes against humanity and genocide to be something corporations can lavishly commit as did $hell against Ogoni.
In short, this Supreme Court, as I wrote not last week, declared in 2010 that corporations are people (see Citizens United v. Federal Election Commission) and so can spend whatever amount they deem fit on elections in America. This precedent is the reason we today have Super-pacs in politics spending millions on candidates/parties without anyone knowing the individuals or corporations behind such spending. It will be difficult for the same court to turn around to claim corporations are no longer people,because it’s their turn to be accountable for human rights violations as people. You may be surprised that this decision could be one huge reason the court went the extraterritorial route,since it can’t escape its own judgment above.
The hope (high) therefore is hinged on the independence of the court,even though not completely independence considering the justices’ party affiliation and beliefs, or philosophies, which include the protection of national interests-patriotism. Also the reason for hope and the most important are: case law or precedent,the court’s integrity,hence credibility. Several legal luminaries and legal historians including Harvard University Law Clinic, former U.S. diplomats and United Nations Human Rights Rapporteur,etc. submitted their briefs in support of the plaintiffs,while the U.S. government more than 100 corporations and the British government,etc. supported $hell. On the other hand (low), corporations rules in America and being a capitalist state commerce is more important to government and the rich (even most citizens) than our common humanity. If the court follows precedent which includes its own Sosa decision, even though it’s encouraged to seek counsel from government on matters such as this one,plaintiffs will triumph over defendant. If government,corporate and national interest are considered above legal then defendant will smile home. Should plaintiffs get favorable ruling which we hope, the putative class action(which will involve all Similarly situated or had same experience at the hands of $hell/government) that was originally not certified can be reintroduced before actual trial.
Ogoninews: What’s your thought in the light of the implications of this case on the human rights posture of the United States?
Answer: Human Rights happens to be America’s important foreign policy. The diplomats’ briefs attest to this fact too. So they cautioned that complete destruction of the ATS may not be the right path, and that though commerce and relationship with other countries are considered in foreign relations policies, human rights have been as important, and no evidence of adverse economic consequences or strains in relationship between countries as claimed by the Obama government exist in connection with the ATS. In short, the U.S. government encourages other countries and aid them to project and protect the fundamental rights of their peoples. Also, this country has gone a long way pursuing human rights for all within the country and outside. It’s gone to other countries to save people’s lives from their own government, which showed the inability or lack of interest to protect their people further.
The people who migrated as early immigrants and we continue to see such migration were and are mostly escaping from persecution,hence U.S.A has been that last beckon of hope for freedom, justice, security and peace of mind. Again,corporations are so powerful,have so much influence and money, being second to countries which happens to be the most powerful entities on earth. Some corporations,as seen with $hell and Nigeria,are more powerful than some countries. They influence all the countries. As such America may give away its position on human rights and international protection due to corporate influence and national interest for commerce or Niger delta oil misnames Nigeria’s.
If this happens human rights will receive the biggest blow in decades, it will be great setback, disappointment to the civil society community and other good thinking and conscionable individuals and groups. We hope this shouldn’t be the case, else Ogoni may not be able to obtain justice against $hell anywhere on earth,except Nigeria experience a real revolution that will allow her attain real statehood, be a government and not puppet and have control over both local and foreign corporations such as $hell. Such revolution can only take place where Nigeria still exist in another 25 to 100 years.
If $hell evade American justice system where the laws mostly respects no one because they work, the supreme Court and Obama government will be giving the company and other corporations like her the passport to commit torture and genocide for profit, especially to protect American oil and other resources, knowing that they can’t be liable anywhere for these crimes except where there exist a real and serious government unlike Nigeria’s. Indeed there shall be more resistance, including the Movement for the Emancipation of Niger delta’s (MEND) arms-type that terrified Nigeria, $hell and countries such as America, which depend so much on foreign oil. Irrespective of the possible picture painted above, I still believe I wrote last week that, the Supreme Court has a responsibility,duty to help prevent further torture and genocide…and there might be peaceful global protest against America if $hell escape justice. It will not augur well for America’s struggling image, not for Ogoni nor $hell, though the company may smile home. This case is so important that the world is watching-it will bring serious control, even sanity to how corporations thinks and acts toward host communities in Africa, etc.
Ogoninews: Shell says the company did no wrong in Ogoni and claims about 85 percent of spills are caused by sabortage. How true is that?
Answer: $hell did all that is wrong from day-one it started oil extraction in Ogoni. First,it collaborated with the greedy and ever incompetent Nigeria government and refused to consult Ogonis,thus didn’t pay Ogoni royalties and rents for oil extracted in more than 35 years. This money the company is owing Ogonis and will pay one day; if not in cash to Ogonis it might be in other terrible ways the company’s management may realize they did a small, weak and disadvantaged Ogoni group wrong. Also $hell didn’t conduct any environmental assessment, social and health impact studies during its years of active operations until the assessment that brought the UNEP report in 2011. Note that $hell and government officials,including the armed forces officers of the Joint Task Force (JTF) have been accused as those responsible for the theft. Mind you, ordinary Ogonis have no implements or tools to sabotage high pressure pipes,which content is crude oil. These groups then recruit local in Niger delta as we’re told to perform the illegal refining.
Also, the UNEP report shows massive pollution, which have accumulated. The company should tell the world when it started reported oil theft or sabotage of grave magnitude. Compared with the many spills due to the company’s reckless operations and with outdated,corrosive surface or unburied pipes crisscrossing Ogoni, gas flaring and so forth, and recent so-called oil bunkering and illegal refining that allegedly commenced in 2004, when the Ijaw/Niger delta militants (MEND) started arms struggle. The world will see as Amnesty International and others have proven $hell wrong many times, that the company is responsible for the spills and degradation of Ogoni and other Niger delta communities. It’s because of this pollution that Ken Saro-Wiwa rose, mobilized Ogonis and expose $hell and the government to the world. $hell thus collaborated with the government and kill him because he refused to withdraw his international environmental campaign the company claimed it’s hurting and hunting her. The Ogoni pollution story isn’t new; it started with the commencement of early oil production by $hell. I refer $hell and the public to the Ebubu Eleme,Ogoni massive oil spills of 1970 and several others in K-Dere to mention a few.
Thirty Ogoni villages were destroyed by Nigerian armed forces and more than 4, 000 Ogonis killed by $hell’s bought guns and ammunition. The company agreed to have paid the military to guard its facilities,etc. during this period of killing under review. There are tons of documents to $hell’s-Nigerian armed forces relationship,its own private police that tortured and killed Ogoni (visit Shellnews.net and search implicating document about $hell for details). Some of these documents and the presence of Mrs. Nkaralolo Kogbara (a mother of five children and farmer) shot by $hell’s bullet and amputated by MOSOP were some reasons $hell settled Wiwa et al out of court. Therefore, $hell can say whatever it pleases, it’s sufficiently clear it’s liable for the atrocious and egregious crimes against Ogonis.
Ogoninews: Why did the Ogoni people not institute an action in Nigeria before going abroad?
Answer: When Ogonis came to America I don’t think anyone envisaged suing $hell here. While in Nigeria and before the Ogoni struggle started in 1993, there have been many petitions and law suits for environmental redress,etc. that never went anywhere,because $hell is a quasi government,thus most powerful than the Nigerian government there. All such cases and written attempts to the company were downplayed. In 1993,the Rivers State House of Assembly rose from one of its sessions where a bill on Ogoni was sponsored. $hell was ordered to pay Ogonis for environmental damage. To date the company didn’t pay. The National Assembly ordered $hell to pay the sum of $1.5b to the Ijaws for environmental degradation, the money wasn’t paid. It seems the company used its fiat to influence government and a court reheard the case. $hell was asked not to pay the money anymore. Recently, a judge awarded about n14b to the Ebubu Eleme community for $hell’s environmental pollution that took place in 1970 and hasn’t been cleaned to date,but in the company and government’s books it shows the work has been completed. To this day, nowhere have I heard that this money has been paid. I also mentioned these cited cases of influence to the Kiobel lawyers when $hell reintroduce the letter written to American government about its sovereignty and that it can’t guarantee the safety of American interests should these cases (Wiwa et al, etc) be heard in this country. And it was also to point to why the issue of exhaustion of remedies in Nigeria doesn’t apply in this case…since it will not see daylight.
So $hell has that trend that shows disobedience to Nigerian law because it controls the lawmakers and presidency that stops short at demonstrating command and effective leadership that tilts toward the greater good of the people not minding ethnicity. Added to the provisions of the ATS Ogonis were introduced on arrival in 1996, the aforementioned experience made a suit in Nigeria against $hell unthinkable as it will be null and void. So due to the provisions of the ATS which primarily is that the victim (s) and violator (s) has to be in America, but not American-born to be able to sue in the court here…victims also can sue Americans, individuals including government representatives,which are accused of such violations. Again, corporations can be sued under domestic American law, hence they can also be sued under international law, even though there hasn’t been any express provisions to this effect nor against such by international law.
Human rights lawyers have used the ATS in the past several years to seek redress against corporations and for the most part these corporations (as we also saw in Wiwa v. $hell) paid out of court. Now it’s $hell, the bulldozer and so it must fight to destroy what we know to be common. Finally, the Nigerian judiciary isn’t in any way formidable nor independent so can be bought; in such high profile case as Ogonis’, judges of choice can be transferred (or replaced/sacked) by government for a particular case in a short notice to get favorable judgment if the case even get to court or not ordered to be dismissed immediately. Therefore, no hope was in place and also not in place now for redress in Nigeria.
Ogoninews: What other options are the Ogoni people considering if the U.S court dinies them an avenue to seek redress?
Answer: I don’t see any option in place now as my response above shows,though we may discover a way subsequently. The United Nations (UN) has no court to deal with such civil suit, even where it’s, it’s no authority to recover what’s ordered in judgement or enforce orders. At UN Nation-states remains the biggest influence, the big Western governments such as America, Britain, France, China and Russia,especially. It’s this closed avenues that makes a Supreme Court denial and a $hell’s escape dangerous. I truly wish/hope this will not happen.
Ogoninews: Shell and the government have agreed to clean-up Ogoniland. How satisfied are the Ogoni people with the modalities?
Answer: Ogonis have been clear from day one: we demanded that UNEP be the sole project or site coordinator. But due to certain interest the professor Ben Naanen’s-led MOSOP gave HYPREP express approval and have also given Joy Nunieh, the project coordinator a blank check because she’s Ogoni. COP International USA also did the same thing, though NUOS International USA and civil society groups and generality of Ogonis home and abroad have toed a different route demanding that UNEP spearhead this project.
You can’t give a 14 months assessment to a group and though that group is ever willing to smack-down its expertise, government and $hell have decided to pay deaf-ears and proceed with the so-called HYPREPso they may probably save cost instead of getting the most quality job done-considering the long duration of these spills/pollution. Like I said from the outset, HYPREP wasn’t supposed to be a bad thing. I wrote that MOSOP,Ogonis should see it as a welcome development; a first bold and genuine step,if so genuine the polluters have put in place to move the project forward,but provided UNEP will be allowed to manage the sites and cleanup while HYPREP and others play mobilizing and supporting roles. At least an agency of government should be there to mobilize the internal base, collaborate with UNEP in consulting Ogonis and working with other relevant government and foreign agencies/civil society groups interested to given the project an internationally acceptable result. As it stands, and to make things worse an Ogoni Joy Nunieh is in charge of HYPREP. I just spoke to her over a week or so ago after my email and text/phone call weren’t returned.
My concern is that she will listen to her employers-government and $hell and not so much of what Ogonis wants. Overall, I don’t doubt her credibility knowing her family, yet she’s her own person. I have asked her to be open to the public, especially Ogoni and not work in secrecy or the Nigerian way. That Ogonis home and abroad should be courted, other willing individuals and groups, universities willing to assist in making this project a huge success. What I also told her in one of my emails is that, I know the Minister of Petroleum Alison-Madueke is her boss,but also think she alone can’t lead HYPREP without other people involved as members. I requested to know who they are,because anyone on the board or team should be that person who have interest in the success of the project/Ogoni to succeed. Else despite her good intentions,they will do things the Nigerian-way, slow her down,cause confusion,even block or do whatever to any money earmarked for the project.
She said her concern not minding what anyone says is how she can sustainably reach the poor women,children and men at home who are badly hit by the pollution and other negative circumstances or consequences imposed on them by the system and $hell. Although she claim what we’re doing/writing Online (NUOS list-serve and Facebooks, etc. doesn’t reach or make any impact on these suffering people at home, I made her understand that those at home know the issues Ogonis abroad and home are writing to, because their children, neighbors, husbands,wives, brothers and sisters, friends bring them home at diner or breakfast table and at the town-squares,market and other places for discussion. Even leaders such as Mitee and Naanen use discussions or talking-points from those of us who understand the issues for local and national discussion.
Joy then said she believe this cleanup is her call to service for Ogoni and so she will do her best irrespective of the about 5,000 petitions some Ogonis have written against the project, especially against HYPREP and that without UNEP the project can’t continue or be accepted. Her claim is that the same Ogonis who were demanding cleanup are now against it, because they demanded UNEP to coordinate the project. Let me be clear, government may not have said UNEP must have this job after assessment,and UNEP didn’t give handing the cleanup phase as a condition to do the assessment, though it declared it’s open to accepting the job if granted. What we wonder about and consider is, why should government pay such amount for 14 months assessment and despite the qualifications of the assessment team,which understand better the research work, and suddenly decided to set up another group for the project. UNEP could have also mobilize and invite helps,groups,universities and cleaning companies that will partner with her. For me I have now decided that since I know HYPREP is a mobilizer or coordinator,let is proceed and invite the services of UNEP or other cleaners for the job insofar as we get the best result based on international best standard and practice she vowed HYPREP is pursuing and already working with universities and groups of internationally recognized portfolios to achieve.
Additionally, Joy also said she is utilizing the services of some universities in America such as John Hopkins, and they’re helping in different ways that will lead to building sustainable projects (Center of Excellence, etc.) other than the cleanup for Ogoni benefit. She said there are many things recommended in UNEP report such as laboratories for environment-related tests and control that needs to be built before cleanup can start. I congratulated her for viewing the project as her call to service, but caution that she be careful and play with care, because Nigeria and $hell haven’t changed and will not change soon, so I don’t trust them. By this I meant, any aspect of the work she’s doing now be well done: from mobilization to identifying actual sites and those not included in UNEP report or assessment for cleanup and other aspects of the project since we don’t know what the government is thinking or what $hell and the next administration might do.
Again,and most importantly HYPREP, the mobilizer or coordinator should completely contract out the work with fix or slightly adjustable duration of between 10 and 20 years first to see how effective the cleanup and complete restoration goes. As pointed above, another option to demonstrate my openness was that HYPREP which is, of course government,should contract the work out to a credible western, especially American company that will be willing to observe all standard embedded in international best practice,including replanting all mangroves for an effective revampment or restoration of the land. Restoring the economic life of the people shall be done by government,which is HYPREP and $hell.
Joy said, “I have no time to answer critics, anyone writing on the Internet but those with solutions to the issues.” And that “We have to go beyond the report,” she said. How do we get the boys involved in illegal refining to get to other productive work, Joy also asked.
Another area she pointed to was compensation, that HYPREP (she) is working on. She also said Ogonis with ideas about cancer screening organizations or mobile doctor- groups and other relevant areas that will benefit the Ogonis via the sustainable aspect of the cleanup should call her. Though she said some Ogonis abroad especially professional have been calling and she also had a phone conference with COP International,which she said gave her a fine document. She didn’t seem to be willing to create an open forum for Ogonis to discuss and help. She tend to believe in secrecy,thus said, those in Nigeria are tired of shows or showing up. That is she isn’t interested in showing up but performing to touch the people and work the project. And by this fine document, she mean the only printed and known UNEP review by Ogonis in U.S.A led by the able Life Kaanagbara, Ph.D, and which I was also secretary but not to her knowledge, because I refused to sign the document based on a financial clause I didn’t subscribe. I asked her how would people know she need help from those abroad and home, if she isn’t communicating openly to Ogonis and others willing to help? Talking to few people the Nigerian way isn’t the answer, and in view of the fact that Ogoni has spread beyond home,hence lots people including adopted Ogonis supporting our struggle are interested in helping.
I reminded her that the said document was recommended to her and government in one of my write-ups. And that open,consistent yet strategic communication remains her best tool if she really will succeed. Another general problem with HYPREP is that no master-plan or complete statement of work relating to Ogoni (since its work also cover Niger delta as a whole) has been released in print to the public’s knowledge. Therefore, where a competent communication vacuum is created, all kinds of speculations,fears,innuendos and even accusations about HYPREP will fly in the air.
The best way to beat these issues or at best reduce them is to be open,communicate well and consult the people that they (Ogonis) can freely participate in the process based on proper understanding of HYPREP: her work, those working with her, what has been done so far and what will be done in both short and long term. While praising illegal governor Chibuike Amaechi of Rivers State for his commitment/efforts in UNEP assessment and overall cleanup project, she confirmed that the statement,which says about 95 percent of preparation or according to her,”transition phase” work has been completed and published in the Nigerian Tide (Rivers State government newspaper that hate Ogoni). She also said “I just returned from one of the highest laboratories in the world that was also recommended in the UNEP report to come to Ogoni to help the people. That a water and pollution treatment project and so forth were is on the way as part of the sustainable development phase. Joy also said the cleanup will not just come because there are other things needed to be done and that “why should anybody think that in two months HYPREP emerged Ogoni cleanup will start?” She called for patience.
Joy who said Ogoni struggle is at its restoration stage and that this project, “is what God brought me to do for Ogoni,” also said she isn’t against critics because she love it and that she’s a critic too,though believe in constructive criticism,which I told her is vague because no one can construct the truth some critics speak to. Yet better to consider people’s feelings when criticizing. Finally, if HYPREP and Joy will do a better coordination work as to achieving the best cleanup, restoration of the land and people, so be it; but thinking smart and preparing for surprises knowing what Nigeria government and $hell,which are her employer are and open, strategic and competent communication with proper consultation and community (and public) participation will bring about huge and sustained success. Note that Joy said not all part of UNEP recommendation will be taken. For instance, she said Bodo West is listed in the report as part of Okrika. So, “Should we accept that Bodo West is in Okrika?” she asked.
Ogoninews: How has MOSOP, home and abroad been involved in this matter?
Answer: MOSOP home seems to be more involved because the care-taker committee is at home. Naanen’s Ogoni Contact Group’s business interest is another reason I believe MOSOP home is supporting Joy with a black check,and also with the hope that Joy being Ogoni may not fail us despite the games we know of Nigeria and $hell. Per MOSOP U.S.A, it was more involved earlier. That is during the Kpea-Deezua care-taker administration,and to the extent that they commissioned the only solid and printed review of the UNEP report. This current administration I can’t speak to, though it supported the use of UNEP as the on-sight coordinator like many of us including NUOS International did. Ogoni civil society group at home and abroad are monitoring the process,though.
Ogoninews: Prof. Ben Naanen, MOSOP Provisional Council Chair has said oil mining activities should resume in Ogoniland. Given your involvement with MOSOP, are you aware of any oil company in the mind of MOSOP or is Shell returning to Ogoniland?
Answer: Like I said,Naanen seems to be interested in business,considering his Ogoni Contact Group and personal ambition. Honestly,though,I haven’t seen any documentation of him declaring that oil activities should resume, other than the recent Ogoni people’s visit to Aso Rock,which he and other members of his MOSOP committee were in attendance. Per oil company,I’m told many Ogonis, including the Naanen’s-led Contact Groups have been surfing oil companies abroad for partnership. Some,I’m told have succeeded with companies giving them yes answers. I’m not particularly sure who has courted or courting which company. Let me state that Joy also mentioned the fact that she will be willing to talk to Ogonis abroad interested in bringing corporations that can invest and impact the suffering people at home,though she didn’t categorically refer to oil extraction.
My position, and I believe most youths and committed activists and generality of older men and women will feel the same way, is that Ogonis aren’t against oil or any business. What we want and demand, and if not met nothing about oil extraction would happen (unless they will kill us all) is this cleanup, paying of compensation (land and people’s restoration), meeting the demands of the Ogoni Bill of Rights (OBR), its un-official addendum caused by the massacre of Ogonis in 1993 through ’98, the hanging of Ogoni Nine must be discussed and resolved with an open apology from Nigerian government. In the short term or immediately, the creation of Bori State (while opening up and giving support to Ogoni Political Autonomy) that will develop Ogoni and neighbors and also assist the sustainability of the cleanup and restoration of Ogoni is demanded of Nigeria for us to start talking oil resumption, which Ogoni will be part of everything or decision-making, including choosing companies, quantity to be extracted daily, jobs and environmental protection-resource control. In $hell’s case, the company has lost favor by all indications with Ogoni,so coming back isn’t possible except by proxy and if our thorough scrutiny of companies couldn’t discover such unholy alliance.
Source: OgoniNews
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