Category Archives: Law

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.

The Kioble case is dismissed in the Supreme Court

In a unanimous ruling this past Wednesday, the U.S. Supreme Court dismissed the Kiobel case against Shell in Nigeria. The Kiobel case was filed by Esther Kiobel, the wife of a former activist, and alleges that Shell collaborated with the Abacha regime to violently suppress oil reform activities in the 1990′s.  The case brings claims for extrajudicial killing, torture, crimes against humanity, and prolonged arbitrary arrest and detention.

CorpsWatch argues that the ruling effectively blocks other lawsuits against foreign multinationals for human rights abuse that have occurred overseas from being brought in U.S. courts. Kiobel v. Royal Dutch Petroleum Co. (Shell) was brought under the Alien Tort Statute (ATS), a U.S. law dating back to 1789, originally designed to combat piracy on the high seas – that has been used during the last 30 years as a vehicle to bring international law violations cases to U.S. federal courts.

Lawyers began using ATS as a tool in human rights litigation in 1979, when the family of 17-year-old Joel Filartiga, who was tortured and killed in Paraguay, sued the Paraguayan police chief responsible. Filartiga v. Peña-Irala set a precedent for U.S. federal courts to punish non-U.S. citizens for acts committed outside the U.S. that violate international law or treaties to which the U.S. is a party. Almost 100 cases of international (often state-sanctioned) torture, rape and murder have been brought to U.S. federal courts to date under the ATS. The new ruling limits the law to U.S citizens and entities.

“Corporations are often present in many countries and it would reach too far to say mere corporate presence suffices,” wrote John Roberts, the chief justice of the Supreme Court, in the majority opinion. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” Stephen Breyer, another of the nine judges, agreed with Roberts in the decision but left the door open for some lawsuits. “I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially  and adversely affects an important American national interest,” wrote Breyer in a separate legal opinion. “(T)hat includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Shell – in Breyer’s opinion – did not qualify as a U.S. entity. “The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange,” Breyer wrote. “Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors.”

Other such cases have been filed against Chiquita and Halliburton. Chiquita was sued by surviving victims of brutal massacres waged by right-wing paramilitary squads in Colombia. The paramilitary, who killed thousands of civilians during Colombia’s dirty war of the 1980s and 1990s, were on Chiquita’s payroll in the 1990s. Now-U.S. Attorney General Eric Holder defended Chiquita in the case and won a plea bargain for them of $25 million and five years of probation. Kellogg, Brown and Root, a former subsidiary of Halliburton, has also been sued under the ATS for allegedly trafficking 13 men from Nepal to Iraq against their will to work on U.S. military bases. The men, 12 of whom were killed, believed they were going to work at hotels in Jordan and elsewhere.

The Obama administration backed Shell last June after abruptly changing sides. In its submission the Justice Department urged the Supreme Court to dismiss the suit against Shell. The brief’s authors stated that the ATS was not appropriate for Kiobel or other lawsuits involving foreign corporations accused of collaborating in human rights abuses with a foreign government outside U.S. territory. U.S. courts “should not create a cause of action that challenges the actions of a foreign sovereign in its own territory, where the [sued party] is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct,” the Justice Department wrote.

Many activists say that the decision will set back human rights causes. “This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations,” says Elisa Massimino, president of Human Rights First, a New York based NGO. “Abusers may be rejoicing today, but this is a major setback for their victims, who often look to the United States for justice when all else fails.  Now what will they do?” However, other lawyers drew a measure of hope from the fact that the Supreme Court decision did not exclude all lawsuits against multinationals overseas in U.S. courts.

 

Further remarks on Niger Delta violence and amnesties

The second section of the interview (see post above) focused on the militancy in the Niger Delta and included the following questions and my responses:

1. In your opinion, what are the conditions that drive individuals toward militancy in the Niger Delta?

Poverty alone is not a causal mechanism for insurgency, nor does simply being a weak state cause collective violence.  In the Niger Delta it is a two-part dynamic in which poverty amidst vast oil wealth combines with weak state apparatuses to create insurgency. The former creates the incentives and the latter provides the conditions. Niger Deltans suffer from deprivation while seeing that resources, e.g. oil profits, exist that could be bettering their lot, fostering a sense of injustice. It is easy for militant leaders to galvanize this injustice and organize it along ethnic lines due to the often contentious tribal diversity of the Delta. Then, the Nigerian government does not have the capacity or sometimes the will to stop the social disorder, creating a sense of stateless that is conducive to violence.

2. Do you believe these are the same root causes for cultism and other such violent activity in the Niger Delta region?

To an extent, but I do see the insurgency as analytically different from cultism and other forms of collective violence. The particular nature of oil drives militancy, and group violence unrelated to natural resources is in many ways a separate issue. Groups with income flows from control of oil are more likely to attract opportunistic participants, make insurgents like those of MEND primarily economic actors (insurgents have not been ideologically driven for many years, if they ever were). Unlike cultism and other forms of collective violence, militancy requires clear leadership, sustained engagement, access to arms, and it must have a local population on which it can rely on for resources (Weinstein 2006). On the other hand, other collective violence campaigns unrelated to oil can arise more sporadically, use fewer or homemade weapons, and I think can have more porous membership networks.

3. What expectations do you think that the Amnesty Program created for ex-militants and their communities?

From my observations, there was little expectation among the average Niger Deltan that the Amnesty would have a lasting impact on the insurgency in the long-term, because the number of men who could pass through the program was far fewer than the number of unemployed youths attracted to militant engagement.  Militants themselves could have been hopeful for personal gains, but that was an individual aspiration.

 4. Since after the declaration of the Amnesty Program, have you seen any positive service delivery or infrastructural changes in the region?

No.  From what I understand, the Amnesty Program has provided stipends and job training for former militants, but has not affected service delivery for communities.

5.What do you think will happen in the region after the Amnesty Program ends in 2015?

When the Amnesty Program ends in 2015, insurgency will go up to its previous levels since the overall conditions that led to start of insurgency, such as rampant unemployment, have not changed. The problem with the amnesty is that creating some jobs does not stop violence. Job creation temporarily lowers rates of violence because employment pulls non-committed militants away from the movement and simply keeps more men busy so they have less time for violence, but in a region with such poverty and lawlessness there will always be more recruits to replace those who join an amnesty. Obviously if every Nigerian was gainfully employed with a good standard of living then that would presumably end the insurgency, since violence is generally inversely proportional to economic development. For me however, the sheer number of unemployed men in the Delta, surely hovering around 50%, will always outpace any increase in the number of local jobs created with any government program, so as one militant leaves the movement another one will replace him. So, theoretically non-oil jobs would probably end violence but realistically that would be improbably just based on the population number of the Delta. The Amnesty Program has always just been a temporary fix in which insurgents were paid to stop engaging in violence.

Dutch court rules mostly in favor of Shell

Four Nigerian farmers of the Goi and Oruma villages, supported by the Dutch NGO Friends of the Earth and the local Environmental Rights Action, sued Royal Dutch Shell in the Dutch District Court of The Hague for four oil spills between 2004 and 2009. This past Wednesday, the court ruled that the oil spills were caused by sabotage, and that Royal Dutch Shell is not liable towards 3 of the 4 farmers. It dismissed the claims of the Friends of the Earth. The court’s decision would support the idea that much of the Niger Delta pollution is caused by criminal activity carried out by locals, which has been the argument of  oil companies defending their role in the environmental damage there.

The court did find that the Shell Petroleum Development Company of Nigeria (SPDC), a Nigerian subsidiary, could have prevented the sabotage in one case by plugging up the well but then acknowledged that the SPDC subsequently contained the leak. Nevertheless, Shell has been ordered to pay compensation to one farmer and has agreed to do so.

The verdict is not necessarily a total defeat for Niger Deltans.  Although the farmers did not prevail, the case does establish that cases against Dutch companies for misdeed abroad can be heard in Dutch courts. Friends of the Earth announced that the case was intended as a test and that the organization is satisfied by the precedent. The case been followed closely by those who have been interested in the Saro-Wiwa and Kiobel rulings.

Read details of the ruling here.

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Uganda’s Christmas Present.

Uganda’s Christmas Present..

Video

Gay rights in Uganda

Fortunately, the issue of gay rights in Africa, in Uganda specifically, seems to be cropping up more frequently. Uganda has a reputation (with Nigeria following close behind) for being one of the most oppressive and dangerous countries for lesbian, gay, bisexual, and transgender (LGBT) Africans. Uganda’s Anti-Homosexuality Bill that proposed death for H.I.V.-positive gay men and prison for anyone who didn’t report a known homosexual was aside for now, but politicians are currently drafting a new version. An impetus behind their decision to table it was the brutal murder of famed LGBT rights activist, David Kato, who was bludgeoned after a local tabloid calling for the murder of gays published his name, photo and address. He was head of SMUG, or Sexual Minorities Uganda.

David-Kato-Uganda

His story was covered fairly well in the Ugandan and domestic media, with The New York Times, The Guardian, and The Economist highlighting the crime. There was such much attention that two Americans debuted a documentary about Kato and the Ugandan LGBT, or “kuchu,” struggle called “Call me Kuchu.”

 

Most prominent international non-profits, such as Human Rights Watch, Amnesty International, and Oxfam publicly decried his murder and the Anti-Homosexuality Bill as one would expect. Surprisingly though, while doing research on the Senate Committee on Foreign Relations’ Subcommittee on African Affairs, I was pleasantly surprised to learn that helping improve LGBT rights in Uganda is on the agenda for the U.S. Congress in the upcoming year.  Hillary Clinton has made public statements voicing support for improved protections for the LGBT community in Uganda, a pleasant compliment to Obama’s watershed reference to gay rights in his recent Inaugural address. The Senate Committee on Foreign Relations has immense sway in coloring some aspects of public policy in sub-Sahara, and hopefully their focus on this issue will be an example of positive influence.

Despite such an effort at improving human rights in Uganda, an immense challenge comes from staunch conservatives in the U.S., specifically Evangelical Christians. According to filmmaker Roger Ross Williams and Ugandan religious leaders who support human rights, fundamentalist Christian churches are investing huge sums of money into backing the Anti-Homosexuality Bill, supporting pastors who preach anti-gay sermons, and financing revivals and classes with heteronormative messages.

 

 

In researching human rights in Uganda, I couldn’t help comparing the situation to observations I made in Nigeria about anti-homosexuality legislation (and fundamentalist Christianity imported from the U.S.). The Nigerian Anti-Gay Bill that passed in the fall of 2011 prescribes 14 years imprisonment for convicted homosexuals.  I was less surprised by the legislation than by the widespread support it seemed to enjoy among my neighbors and friends. Truly, I didn’t meet anyone who didn’t seem to advocate it, usually based on totally erroneous ideas about what same-sex relationships are all about.  When I would bring up sex-related rights issues that seemed pressing for me, such as rape and child prostitution, the Nigerians I spoke with felt that homosexuality was far more alarming.  I couldn’t imagine how a consensual relationship between two adults could be troubling, let alone more troubling than child sex trafficking, but for many I spoke with it was.

Senator Coons: Uganda should end effort to criminalize homosexuality

Senator Coons: Uganda should end effort to criminalize homosexuality.