Han Shan, Coordinator for the Shell Guilty Campaign Speculates as to why the Wiwa v Shell trial was delayed and how we can continue to support the Ogoni plaintiffs

June 3, 2009

By Han Shan, ShellGuilty

Shell Protest in San Francisco on May 19, organized by JINN in the lead up to the Wiwa v Shell trial

Today, there was another delay in the Wiwa v. Shell trial, causing teeth-gnashing by journalists who have dedicated resources to cover the trial, hand-wringing by Ogoni people and human rights & environmental justice supporters worldwide, and head-scratching by nearly everyone else following along.

The trial had been set to begin with jury selection last Wednesday, May 27th, in the U.S. District Court for the Southern District of New York in Manhattan. Last Tuesday, there was an 11th-hour postponement with no new trial date set. However, the court set a pre-trial conference with the two opposing counsel for Monday, June 1st. Late last Friday, the court announced that the Monday conference would be pushed back to Wednesday, June 3rd at 2pm. And today, that conference was canceled.

Presiding Judge Kimba Wood’s order says that the “trial remains adjourned sine die” which, with its poetic-sounding legal Latin, means that the trial is postponed indefinitely.

Does that mean it’s over, finished, done?!

No. But we really don’t know exactly what it means.

It could mean another court order is right around the corner that will set another pre-trial conference, or even set a date for jury selection – and the trial – to begin.

Or, as has been the subject of much speculation, the next thing we hear about may be an out-of-court settlement.

That would certainly cause more hand-wringing and teeth-gnashing but it would also make sense. Certainly, Shell doesn’t want this case to go to trial. They never did, and they filed motion after unsuccessful motion to try to keep it from happening. After losing the legal battle thus far, it’s easy to imagine that Shell would do anything it could – offering many millions of dollars of restitution to the plaintiffs comes to mind – to keep the trial date from ever coming.

And while many of us want to see Shell face the music for the crimes it has committed in Ogoni, we should also recognize that there are good reasons that the plaintiffs might want to settle and be done with this long legal struggle. I won’t enumerate them here, but I’ve reviewed the myriad reasons in my head and I would suggest that you do it yourself, if like me, your first thought on the idea of a settlement is that it’s some sort of terrible betrayal of everything the Ogoni people have fought for.

It’s not. And if there’s a settlement, we should be ready to support the plaintiffs as they declare victory, and work to keep the heat on Shell to end the crimes it continues to commit in communities cursed by the oil beneath their lands.

If Shell settles, they’ll try to spin it as if they were victims of a spurious extortion campaign by a bunch of trial lawyers using poor Nigerians as pawns (just watch). But if Shell – with its vastly superior resources – decides to settle, it will be because they realized that the evidence against them was overwhelming, and they made a deal that would allow them to pretend they’re innocent, and, well, play the victim.

Shell is victim only to hubris and to the self-destructive belief that it will forever get away with making human rights abuses and environmental devastation part of its business as usual.

Like many others, I am eager to see a trial. As determined as I am to support the plaintiffs who have known so much suffering and struggle, it would be hard to conceal my disappointment at news of a settlement. So I’m going to focus on the much more exciting possibility… that the trial has been delayed in order to broaden the case.

Okay, I’m not a lawyer so I don’t know if ‘broaden the case’ really describes what I mean. But today, the Second Circuit Court of Appeals added a very interesting wrinkle to the case that could explain the delay.

From a press release from the Center for Constitutional Rights, co-counsel on the lawsuit against Shell:

Today, the Second Circuit Court of Appeals overturned the District Court decision dismissing the Wiwa v. Shell plaintiffs’ claims against Shell Petroleum Development Company of Nigeria, Ltd. (Shell Nigeria). The District Court had dismissed the case against Shell Nigeria on March 4, 2008, finding it did not have jurisdiction over the company because the plaintiffs had failed to establish that Shell Nigeria was doing sufficient business in the United States to justify trying them in U.S. courts. The effect of the appellate court decision is to permit the plaintiffs to seek further information to establish Shell Nigeria’s connections to the United States.

When the plaintiffs filed the lawsuit against Shell, they charged Royal Dutch Shell, Shell Petroleum Development Company of Nigeria (Shell Nigeria), and Brian Anderson, head of Shell Nigeria when the abuses at issue took place. The District Court dismissed the charges against Shell Nigeria (allowing the other cases against Royal Dutch Shell and Mr. Anderson to go forward). Under the Alien Tort Statute, a company has to have a certain level of interest in the United States to come under the federal court’s jurisdiction. The District Court said that Shell Nigeria didn’t. But the plaintiffs argued on appeal that they should be granted the opportunity to do more discovery to determine whether or not this is actually the case. And according to the decision by the Circuit Court today, the plaintiffs prevailed.

Now the issue is kicked back to the District Court. And here’s where it gets really interesting.

It’s possible that Chief Judge Kimba Wood – aware that a decision was coming from the Circuit Court on this key issue – delayed the trial in order to make time to consider whether Shell Nigeria should be a defendant.

Of course, all the parties remain tight-lipped, so I really have no way of knowing. And I speculate partly for my own sanity.

So we all wait on pins and needles to hear what’s next – whether news of a settlement or the opening of this landmark trial or the confirmation of a formal delay to consider whether Shell Nigeria will join its parent company in the dock. Any which way it turns out, the Ogoni people have already put Shell on trial and found them guilty. And they’ve been witness to Shell’s crimes in ways that I hope and pray no-one else will again.

Last week, the historic trial against Shell oil filed by the family of Ken Saro-Wiwa and others was delayed by one more week. According to the article by the AFP, the Judge Kimba Wood gave no explanation for the delay:

NEW YORK (AFP) — A pre-trial conference scheduled in the potentially landmark lawsuit brought by Nigerian plaintiffs against oil giant Royal Dutch Shell has been delayed until Wednesday, court papers show. Read Full Article

Ogoni Activist Suanu Bere speaks at San Francisco Shell protest. credit: Jan Sturmann

However, protests and rallies that began on May 19 for Shell’s shareholder meeting in the Hague and in London continued last week to call on Shell to end gas flaring in the Niger Delta – a demand that Wiwa and the Ogoni’s were asking for over 15 years ago and people of the Delta are still asking today.

JINN led the Bay Area protest with a large banner that read:  “Shell:  Stop Gas Flaring in Nigeria” and signs that read:  “Remember Ken Saro-Wiwa  and Shell:  Stop  Toxic Flares in Nigeria”

San Francisco activists hold Shell protest on May 19 - the day of Shell's shareholder meeting. credit: Jan Sturmann

Bere Suanu, an Ogoni from Nigeria spoke about how the Nigerian military tortured him at a time when Shell was paying the Nigerian military to quell protests in Ogoniland.

Then, on May 26 – the day the trail was set to begin – activists in South Africa led by groundWork held a solidarity rally to bring attention to the trial in New York and Shell’s dirty operations in Durban, South Africa

Activists protesting in South Africa - Shell's Hell

According to the Shell Guilty campaign other protests took place around the globe including:

In Nigeria, a rally, a candlelit vigil at the graveside of Ken Saro-Wiwa, and a mock trial were held at Bane, in Saro-Wiwa’s community. The events ran into controversy after Rivers State Police arrested a number of women activists in an attempt to prevent them from attending demonstrations. Protestors demanded their release, and eventually forced the police to release the detainees and respect their right to protest.

A noon rally took place in New York at Foley Square in Manhattan, near the federal courthouse where the trial had been scheduled to open today. A hundred supporters came out ahead of the trial, unfurling a banner that read, ‘JUSTICE FOR THE OGONI’. Inspiring speakers stressed that Shell cannot escape justice for their role in human rights abuses in the 1990s, and put pressure on Shell to end the ongoing environmental and social devastation in Nigeria’s Niger Delta region. A group of Ogoni activists closed the event by singing the Ogoni solidarity anthem.  Go to ShellGuilty.com for more information.

The trial is expected to commence no earlier than June 2nd.

Take action to call for an end to gas flaring in Nigeria

Join us on May 19 in San Francisco to stand in solidarity with folks across the world who are protesting Shell on the day of their shareholder meeting in the Hague – One week before the Wiwa v Shell trial starts in New York City.

The upcoming court cases against Shell for their complicity in the death of environmental activist Ken Saro-Wiwa and his Ogoni colleagues, is a chance to remember why Ken and the Ogoni people were peacefully protesting and why those throughout the Niger Delta are still calling for environmental clean up and an end to gas flaring today.
The Niger Delta is riddled with gas flares causing major heath and environmental damage for the people living where flares are literally next to their farms and villages. Oil companies could have processed the natural gas (billions of cubic meters are wasted each year on flaring) which is a by product of extracting crude, or they could have re-injected it into the land. Not surprisingly, they chose the cheapest and most destructive practice – burning it off.
This process, in turns out, is one of sub-Saharan Africa’s largest contributors to greenhouses gases. According to the World Bank,it’s estimated that if CO2 emissions from flaring were stopped, it would contribute to about 13% of committed emission reductions by the developed countries under the Kyoto Protocol for the period of 2008-2012.
And flaring is officially illegal in Nigeria anyway.
That’s why we ask you to Join Justice in Nigeria Now and our allies in calling an end to gas flaring. Send a letter to Shell’s CEO to tell him to do the right thing in Nigeria and end flaring once and for all. Some of the the flares in the Delta have been burning for over 50 years. Just imagine the noise and heat and pollution that the people of the Niger Detla experience every day living by gas flares.

You can support the legacy of Ken Saro-Wiwa and Take Action Now!

A Writer’s Violent End, and His Activist Legacy

New York Times

By PATRICIA COHEN,
May 5, 2009
“I had a surprising call this week,” the author Richard North Patterson told the audience that had gathered last weekend as part of the PEN World Voices Festival of International Literature. It was former President Bill Clinton. Mr. Patterson’s new novel, “Eclipse,” is based on the case of the Nigerian writer and activist Ken Saro-Wiwa, and Mr. Clinton spoke of a phone call he had made 14 years ago to Gen. Sani Abacha of Nigeria, asking him to spare Mr. Saro-Wiwa from the hangman.

Mr. Clinton said General Abacha “was very polite,” but “he was cold,” Mr. Patterson related. “Clinton took away from that, among other things, that oil and the need for oil on behalf of the West and other places made Abacha, in his mind, impervious.”

The event’s moderator, the Nigerian novelist Okey Ndibe, added an unexpected epilogue. A friend in the Abacha cabinet said the general later boasted: “All these pro-democracy activists run to America and expect America to save them. But the U.S. president himself is calling me ‘sir.’ He is scared of me.”

Mr. Saro-Wiwa, a popular author who helped create a peaceful mass movement on behalf of the Ogoni people, was executed in November 1995 along with eight other environmental and human rights activists on what many contended were trumped-up murder charges. His body was burned with acid and thrown in an unmarked grave.

PEN, an international association of writers dedicated to defending free expression, along with Guernica, the online literary magazine, sponsored the panel with Mr. Patterson, Mr. Ndibe and Ken Wiwa, Mr. Saro-Wiwa’s son, to discuss Mr. Saro-Wiwa’s literary and political legacy.

Fourteen years have passed. General Abacha has died, and Mr. Saro-Wiwa has had a proper burial, but the circumstances surrounding the nine executions, along with related incidents of brutal attacks and torture, are getting another hearing. This month the Wiwa family’s lawsuit against Royal Dutch Shell over its role in those events goes to trial in federal court in Manhattan.

“We feel that Shell’s fingerprints are all over,” Ken Wiwa told the audience. “Clearly Shell financed and provided logistical support.”

Among the accusations are that Shell employees were present when two witnesses were offered bribes to testify against Mr. Saro-Wiwa, said Jennie Green, a senior lawyer at the nonprofit Center for Constitutional Rights, which is representing the family. She said Mr. Saro-Wiwa’s brother Owens has also stated that Shell’s managing director, Brian Anderson (now retired), told him, “If you call off the campaign, maybe we can do something for your brother.”

Under American law you don’t have to be the one who “tightened the noose” to be found guilty, Ms. Green said.

In a statement Shell said: “Shell in no way encouraged or advocated any act of violence against them or their fellow Ogonis. We believe that the evidence will show clearly that Shell was not responsible for these tragic events.” The company added, “Shell attempted to persuade that government to grant clemency.”

Mr. Wiwa, 40, said his father was an ebullient, ambitious man with a wicked sense of humor. “All other things being equal, he probably would have been a comedian or an actor, but he was compelled to write,” he said.

At the start of the panel two performers read a short excerpt from Mr. Saro-Wiwa’s play “The Transistor Radio,” one of many he wrote for Nigerian radio and television that satirized the country’s numbing poverty and rampant corruption. “Why were you fired?” one man asks another. He responds, “For getting the job.”

Mr. Wiwa, who published a memoir in 2001, “In the Shadow of a Saint: A Son’s Journey to Understand His Father’s Legacy” (Steerforth), said: “My father was a great man. I grew up with this man, the myth and the memory always in front of me.”

He added, “The struggle to define yourself against your father gives you a sense initially of something to write about,” as did the political situation he found himself thrust into.

Mr. Wiwa is now writing a novel, but he has also felt compelled to carry on his father’s environmental and human rights work. He serves as a special assistant in the government but warns that the ecological and human devastation in the Niger delta, one of the world’s largest wetlands, is worse than ever.

Thousands of miles of oil pipelines run through coastland occupied by the Ogoni people, one of 250 ethnic tribes in Nigeria. Noxious fumes, spills and development have turned much of the area into a wasteland, causing severe deforestation as well as desperate poverty.

Going off on his own and writing, untroubled by politics, has “been a dream for 30 years,” said Mr. Wiwa, who is Ogoni, like his father. But he added, “A lot of my most profound thoughts originate from being involved in this struggle. It compels you to consider the idea of what happens if you just go away and write. Because you may not have anything to say.”

Mr. Ndibe asked about sacrifices his family made because of his father’s commitment, but Mr. Wiwa demurred.

“All of us have a choice, to make our children safe in the world or to make the world safe for our children, and there are implications to that,” Mr. Wiwa said, referring to others he has met who share his situation, like Nelson Mandela’s daughter Zindzi and Nkosinathi Biko, the son of the South African activist Steve Biko. “Our fathers chose a different path.”

Mr. Patterson was on the board of PEN 15 years ago when the organization lobbied on Mr. Saro-Wiwa’s behalf. Before the panel began, he explained how he came to write “Eclipse.” Since 9/11 the United States has become even more dependent on Nigerian oil, Mr. Patterson said. “I thought it was time to put Saro-Wiwa in the context of today’s politics of oil: how we are all implicated in the lives of people we don’t even know.”

During his imprisonment Mr. Saro-Wiwa said that he often envied Western writers “who can peacefully practice their craft.” Yet he also recognized that wasn’t his path. As he wrote in 1993, “The writer cannot be a mere storyteller, he cannot be a mere teacher; he cannot merely X-ray society’s weaknesses, its ills, its perils, he or she must be actively involved shaping its present and its future.”

JINN presents:

April 15, 2009 in San Francisco

Delta Force, a Documentary by Glen Ellis about Ken Saro-Wiwa and the Struggle for the Ogoni People

Followed by a Panel Discussion about the upcoming case against Shell

6pm – Wine and Beer Reception
7pm – Film Screening
8pm – Panel Discussion

Artist Television Access
992 Valencia Street (at 21st) – Map
San Francisco, CA 94110
(415)824-3890
ata@atasite.org

This is a benefit screening for JINN

$10-$30 suggested donation (no one turned away for lack of funds)

Panelists include:

Cindy Cohn – Counsel to the plaintiffs in the lawsuit filed against Chevron by Nigerian villagers for human rights abuses committed in 1998 and heard in US court last fall in San Francisco. The Chevron case is now entering the appeals process. Cohn is the Legal Director for the Electronic Frontier Foundation as well as its General Counsel.

Beresuanu Kingston – Ogoni activist now living in the San Francisco Bay Area who has first hand experience with Shell’s abuses in Ogoniland.

On November 10, 1995, Nigerian environmental activist and internationally acclaimed non-violent resistance leader Ken Saro-Wiwa and 8 of his Ogoni colleagues were executed by Nigeria’s brutal military dictatorship. This one hour documentary, tells the story of the rise of Saro-Wiwa and the Movement for Survival of the Ogoni People (MOSOP) and its violent suppression by the Nigerian military with the complicity of Shell Oil.

On May 26, 2009 relatives of Ken Saro-Wiwa and other MOSOP members will bring Shell to trial in New York for the company’s complicity in the death of Ogoni leaders and the destruction of Ogoni villages at the hand of the Nigerian military.

Join us at this benefit for Justice in Nigeria Now (JINN) to support JINN while socializing and learning about the Ogoni and the upcoming trial

This event is co-sponsored by  Global Exchange and the CounterCorp Film Festival (this year’s festival is May 28-30, 2009)