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Shell's abuses in Nigeria underscore a class of litigation seeking to establish that corporations have obligations to not be complicit in human rights violations
'WE sometimes feed conflict by the way we award contracts, gain access to land, and deal with community representatives, Shell Nigeria admitted in 2003.
It was a modest confession from a corporate giant that has long collaborated with the state to access Nigeria's oil and gas resources, systematically destroying the indigenous ecology through spills, deforestation, flaring and dumped waste, and in the process fuelling climate change that threatens our collective future on the planet.
In 2006, the Niger Delta Natural Resource Damage Assessment and Restoration Project declared the region one of the 10 most important wetlands and marine ecosystems in the world. Although 20 million people directly depend on shared natural Delta resources such as fisheries, fertile land and water sources, Shell is responsible for 2 900 oil spills.
Many have stood up to say enough!, but perhaps it was the Ogoniland civic leader and writer/poet Ken Saro-Wiwa who is best known for a courageous socio-environmental struggle against Shell, especially after mobilising 300 000 non-violent protesters in early 1993.
Veteran activist Dennis Brutus recalls his last meeting with the 54-year-old Saro-Wiwa, at the University of Pittsburgh: Ken was displaying his new novel Soja Boy, his 28th book. He seemed very gloomy - even pessimistic: as if he had a foreboding that he would be executed on his return to Nigeria.
Brutus travelled to Joburg soon thereafter: After a Wits conference in 1995, the US poet Amiri Baraka and I brought a letter to Mandela's office appealing for a stronger role in preventing his execution. But the functionary who took the letter was not encouraging.
Bungled Saro-Wiwa was executed in a bungled operation, with three attempts, according to Brutus.
He also said that evidence had emerged that the Nigerian regime of San Abacha had allegedly acted against Saro-Wiwa on instructions of Shell Oil.
Saro-Wiwa's son and brother are now taking Shell to court in the US under the Alien Tort Claims Act, a law Brutus himself helped to publicise as part of a suit demanding apartheid reparations from multinational corporations that profited from apartheid by colluding with the white South African military prior to 1994.
Families of Saro-Wiwa and other victims claim that from 1990-1995, Shell requested and financed Nigerian soldiers to repress a peaceful environmental justice movement with deadly force. On November 10, 1995, the Ogoni Nine were executed after being framed for murder and tried by the military.
On May 26, after 12 years of preliminary arguments, the Ogoni people finally get their day in the New York courts, supported by Brutus's anti-apartheid ally Paul Hoffman, the Center for Constitutional Rights, EarthRights International and Justice in Nigeria Now. Solidarity protests will be held around the world, including at Solomon Mahlangu (Edwin Swales) Shell petrol station on the Bluff.
Nearby, Shell's refining operation at Sapref is partly responsible for the extreme leukemia and asthma rates suffered by Merebank and Wentworth residents. Shell won the tongue-in-cheek groundWork/CCS Corpse Awards in 2005, for contributions to mortality/morbidity in the South Durban basin: thirteen thousand tons of sulphur dioxide and 1.2 million tons of carbon dioxide as well as the usual heady mix of volatile organic compounds, the award stated.
A few years earlier, in 2001, according to Desmond D'Sa of the South Durban Community Environmental Alliance: Sapref's ageing pipelines ruptured and leaked between one and two million litres of fuel into the ground beneath local people's houses, and 26 tons of tetra-ethyl-lead leaked out of a holding tank adjacent to community houses.
The damage pales in comparison to the Niger Delta, where it is estimated that 1.5 million tons of oil have spilled since drilling began 51 years ago, the equivalent of an Exxon Valdez spill each year, costing more than $5 billion (R42bn) in annual environmental damage. Last year, Nigerian President Umaru Musa Yar'Adua finally conceded the obvious: There is a total loss of confidence between Shell and the Ogoni people. So, another operator acceptable to the Ogonis will take over.
But Yar'Adua's regime, like others before it, is rife with corruption and collaboration, and Shell has hung on in a country responsible for 10 percent of its profits. The bulk of Nigeria's wealth is held offshore by corrupt officials, and is estimated at over $100bn.
Nigeria, considered to be the US's new oil cushion, is the seventh-largest producer in the world.
Anti-apartheid Despite Nigeria raking in more than $400bn during the past three decades, the population living under $1/day has increased from 59 percent (1990) to 71 percent (2008), while the percentage of people with access to clean water has decreased by 3 percent.
Brutus said: The reparations case against Shell strongly relates to our South African anti-apartheid case. In the same court, six weeks ago, Judge Shira Scheindlin found that Daimler Chrysler, Ford, General Motors, IBM, Fujitsu and Rheinmetall must answer charges in September.
Six years ago, US secretary of state Colin Powell arm-twisted Thabo Mbeki and then justice minister Penuell Maduna to write a letter opposing the apartheid reparations case on grounds that it interfered with SA's own reconciliation process and hence would harm US foreign policy. Will Jacob Zuma and Jeff Radebe follow suit, given how they have pledged to foreign investors that there will be no change in economic policy?
Economist Joseph Stiglitz and Archbishop Desmond Tutu testified against Pretoria's alliance with the corporations. Last month Judge Scheindlin confirmed that there was absolutely nothing in the Truth and Reconciliation Commission process … that would be impeded by this litigation.
As Brutus's co-plaintiffs in the Khulumani Support Group observed: That ruling has certainly breathed new life into a class of human rights litigation seeking to establish that corporations have obligations under international law to not be complicit in human rights violations.
Some of Saro-Wiwa's last words are the most inspiring, and can ring true with some assistance from the US courts:
I have no doubt at all about the ultimate success of my cause, no matter the trials and tribulations which I and those who believe with me may encounter on our journey. Nor imprisonment nor death can stop our ultimate victory. www.themercury.co.za
Sharife and Bond are, respectively, visiting scholar and director at the UKZN Centre for Civil Society.
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