Category Archives: Law

Are certain African leaders anticipating their own bad behavior?

The African Union is still considering a mass withdraw from the International Criminal Court (ICC), which would be disastrous for human rights.  The ICC can prosecute individuals for international crimes such as genocide, war crimes and crimes against humanity, particularly in circumstances in which the country of the crime is unable or unwilling to do so.

Several years ago, I had the opportunity to sit in on testimony against Jean-Pierre Bemba Gombo at the ICC in the Hague, Netherlands. He is the Congolese former Vice President and ALC leader who ordered mass rapes and killings in the Central African Republic from 2002-2003. His trial was historic because it was the first time that an individual was charged with sexual violence as a stand alone crime. Previously, charges of mass rape have been embedded under the umbrella of other wartime violence in general. It was an important step forward for women’s rights.

This sort of progress would not have occurred outside the framework of the ICC. The AU currently demands that sitting heads of state be immune from ICC charges, but such actors are exactly those who are least likely to face justice in their home countries.  The ICC is most relevant precisely for them.  Are such leaders making a bid to withdraw simply in anticipation of their own potential bad behavior in the future?

Dissertation on Niger Delta women and the oil movement published

My dissertation is available online. If you are unable to access it because you are outside the academic network, please feel free to contact me for a copy. I am an avid supporter of open, author-permitted access to publications.

ABSTRACT:

Since the discovery of oil in the Niger Delta in 1958, there has been an ongoing low-level conflict among foreign oil companies, the federal government, and rural community members in southern Nigeria. Armed insurgents and small cadres of male protesters have resisted oil activities, demanding environmental cleanup, employment, and local compensation for extractive operations. In 2002, however, large groups of women began engaging in peaceful protests against oil companies and the state, making the same demands as men. Current work describes these women as coming together autonomously to assert their rights in the face of corporation exploitation.  This project challenges such accounts and investigates how common perceptions of law and politics inform women’s role in the oil reform movement.

Employing constructivist grounded theory, this dissertation argues that women’s protests were largely a product of local elite male politicking among oil companies and federal and state governments. The first finding is that local chiefs, acting as brokers engaging in “positional arbitrage,” urge women to protest because it reinforces their own traditional rule.  In this sense, women have not implemented new tactics in the movement but instead are the new tactics. Secondly, Niger Delta women see law as innately good but identify individuals as the corrupting force that thwarts law’s potential for positive change. Women also perceive a binary between local and state law, thus allowing chiefs to act as gatekeepers between women and the state. As a qualitative case study, the project uses in-depth interviews, direct observations, and archival documentation to analyze a series of all-female demonstrations that occurred around oil extraction sites in Rivers State from 2002-2012. Ultimately, these findings welcome a more critical look at social movements by identifying ways in which apparent episodes of resistance may actually be reconfigurations of existing power arrangements.

Methodology:

 

 

grounded theory

For a link to my final dissertation, please see:

http://pqdtopen.proquest.com/doc/1666393541.html?FMT=ABS

Paradise lost? Photography and oil in Nigeria

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Source: Paradise lost? Photography and oil in Nigeria

Exploring the Creation of Nigerian Law

One of the central debates in the study of African politics surrounds the extent to which Africans have created their own legal systems. Is Nigerian law really even Nigerian?  Has it ever been? This is an important question because one of my lines of analysis for my dissertation will be about how the law shapes the forms of both formal and non-formal resistance in the Niger Delta.  If the law is merely an oppressive colonial construct, it would seem a poor avenue for resolving domestic and local level oil disputes. However, if it is the product of indigenous forces then it has a more legitimate claim to be a conflict resolution mechanism.

The first line of thought is that Nigerian law is not truly owned by the very people it purports to regulate and protect, and it is in fact, a Western project of domination. Comaroff and Comaroff describe Africans as “fetishizing” the domestic law they inherited from colonial powers as well as contemporary international law (Comaroff & Comaroff 2006).  By embracing both of these Western legal systems, Africans are actually reinforcing the disorder that law is intended to stop. Lawlessness in the postcolony is a product of artificially constructed legal regimes that are remnants of colonial rule.  These regimes fail to account for indigenous forms of capital accumulation and conflict resolution mechanisms, creating socioeconomic inequality that begets violence and disorder (29). In terms of modern globalization, judicialization of politics works in favor of corporate capitalism, which has used law to create a deregulated environment conducive to business. Human rights abuses surrounding oil indicate how Africa is entangled in a parallel, pariah economy of international scale that is undergirded by the use of Western forms of law (7).

Mamdani argues that democracy did not follow decolonization because in making their own governments, Africans recreated and reinforced despotic and ethnicized patterns in the bifurcated state. He calls this mode of rule “decentralized despotism.” Essentially, British “indirect rule” allowed for tribal chiefs to become their own little despots (as opposed to the French mode of direct rule which allowed French administrators to be centralized despots). This decentralized authoritarianism undergirds contemporary Nigeria’s struggles with lack of accountability and ethnic tensions (Mamdani 1996).

It has been argued that Nigerian law will never have the ability to function well because of its roots as a European means of exploitation of labor and resources, and because it entrenched previous inactive tribal conflicts that continue today. Its original purpose was never to resolve conflicts but to create them, never to limit power but to enable it (Mamdani 1996, 110). And in fact, “state law enforcement tended to rob custom of its diversity, homogenize it, and equate it with the boundaries of the tribe.” (184). With this European appropriate of African law, ethnicity became of categorical importance in land claims. The first constitution was bestowed on, and not created by, Nigerians in 1914 with the amalgamation of the British protectorates, a land consolidation enterprise (An-Na’im 2003, 212). Martin Chanock finds that Nigerian law was aimed primarily at helping Europeans secure their land rights well before that though, and largely through fomenting ethnic warfare (Chanock in Mann & Roberts 1991, 61).

Conversely, a different perspective emphasizes the role Africans have had in shaping the very European law that was bestowed upon them.  This perspective sees Africans and Europeans as engaged in an ongoing mutual construction of a fluid collection of rules and norms. Even Mamdani admits that ethnicity does not just function in a top-down manner as a means of rule, but also that it is and always has been an organizing principle in resistance. This notion is undergirded by sociolegal research that emphasizes understudied forms of resistance in Africa.

An analysis of Kenyan marriage disputes that tend to favor women’s victory in court demonstrates how those women have utilized law in a manner most beneficial to them, and at that same time have had a hand in shaping it. More specifically, these discursive courts offer sites for the complex reworking of gender relations, which creates possibilities for significant changes in social relations (Hirsch 1998). Thus, these courts have becomes sites of protest for women (Sally Falk Moore in Lazarus-Black & Hirsch 1994). Merry sees too that courts can serve as a mode of resistance to social practices such as domestic violence, but such resistance must be framed in the terms of the law itself, allowing protest only within the hegemonic categories of the law (Merry in Lazarus-Black & Hirsch 1994).

A study of the bandits of the Chad Basin shows how West African bandits have generated an “ethics of illegality” etched out by unregulated commerce that exists not as a form of resistance to the state, but in tandem with it.  In fact, “unregulated economic activity and road banditry are necessary entailments of the state in so far as they circumscribe new forms of economic rents and political constituencies. However, the state is also a necessary entailment to these activities insofar as they are dependent upon relations forged with customs officials, governors, mayors, and the police or gendarmerie” (Roitmann in Comaroff and Comaroff 2006, 250). This study speaks to the reciprocity of African law and society.

Exploring the Creation of the Nigerian State

Where does Nigeria fit into a discussion of how states are made? It is weak by nearly all measurements, and Foreign Policy magazine even labeled it a “failed state” based on its poverty and governance in 2010. To answer the Nigeria question, we might look to the institutional approach of state theory. It asserts that institutions—the way societies are organized—are the fundamental cause of countries’ underdevelopment. This traditional institutional explanation, built mainly on case studies in European countries, offers a helpful but incomplete framework for analyzing current conditions in Nigeria. It is deficient due to Nigeria’s unique human geography, colonial history, and resource endowment.

To remedy this weakness in institutional models, Jeffrey Herbst makes two key arguments about African state formation. First, he identifies population density as the causal factor behind institution building and a source of institutional comparative statics, not institutions themselves. His story is that Europe was scarce in land and high in population, whereas Africa had abundant land and fell short in population. This meant that Africans did not have to wage wars of land seizure or land defense that led to state-making and institution building, alá Charles Tilly. Furthermore, colonization in the name of resource plunder replaced the phase when institution building should have taken place. Colonization was followed by the Cold War in which the Western and Soviet powers were vying for allies in African countries, and this Western or Soviet financial support also replaced what would have been a period of institution building.

In Robert Bates’ state-centric mixed method analysis, he argues that the collapse of the state causes war and then violent political disorder, and not vice versa. The author focuses on what he identifies as the three keys to state failure in Africa aside from the destructive force of colonialism.  The first is ethnic tensions, which are the result of state failure and not of ancient hatreds, and the second is natural resources, which he finds to be a correlate but not a cause of war (as opposed to Collier and Hoeffler, or Fearon and Laitin).  The third cause for failure is a lack of strong democracy, and he maintains that competitive parties are required but not sufficient for order. Lastly, he concludes that public revenues matter more than private income, which is essentially an issue of poverty levels (Bates 2008). Bates and Barzel both think that strongly democratic states have greater productivity because individuals enjoy residual claims, thus giving individuals an incentive to be efficient (Barzel 2002).  Conversely, without rule of law the government keeps residual resources for itself, giving individuals no incentive to be efficient. Propositions by the two can aptly be applied to a reading of Nigeria.

Nigeria’s current economic, political and social conditions are best explained by research on oil politics specifically. For one, the stimied capacity of the state to raise revenues and its growing reliance on powerful interest groups conspire to limit the range of policy choices open to the government, paralyzing the process of institutional development. Thus, most extractive states like Nigeria develop similar institutional frameworks that encourage political leaders to pursue politically painless policy solutions. The end result is an institutionally weak state reliant on oil rents and beholden to rent seekers (Karl 1997).

Some argue that oil revenues interfere with state evolution—the competition for the survival of the fittest country. Most of Europe’s states did not survive because most of them were weak and unorganized; those that still exist today were simply better than the others.  Conversely, all of Africa’s modern states have survived, even bad ones.  Foreign influences and oil revenues has allowed weak states that should have died out continue on (Herbst 2000). Soares de Oliveira claims that oil may very well be the single factor allowing weak African nations to survive despite failing to meet Weberian criteria for stateness. He calls these “successful failed states” because they have immense amounts of money and can at times use ample force, yet are barely functional (with functionality defined by their institutionalization, legitimacy, and degree of rentierism). Their failure is a continuation of politics by other means (Soares de Oliveira 2007, 56).

Such a portrayal of African oil-rich countries accords with that of Scott, who conceives of the state as being an inherently extractive entity (Scott 2009). He adds to the discussion by describing how countries will use resources, e.g. oil revenues, to invent development schemes that inevitably fail because they ignore the complexity of practices, processes, and relations present in those environments, the value of everyday local knowledge. They continue to push forward these improvement plans because of their ongoing attempts at being more modern, which means greater “stateness” that justifies their own governance (Scott 1998). Oil actually exaggerates the phenomenon that Scott describes by providing almost limited resources. Nigeria has engaged in these modernizing development projects and virtually of them have been a failure.

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

Chiefs and the Provision of Resources

Chiefs hold immense political, social, and spiritual (due to their perceived relationship with the ancestors) in the Delta. This continued legitimacy of traditional rule has been found in rural communities across Africa, despite the perversion of the chieftaincy institution by colonial indirect rule (See Martin Chanock).  In additional to their historical authority, chiefs also play a direct role in the provision of collective goods for collective benefit that encourages individuals to follow their directives.  Anne Swidler (2010) describes how, if villagers are to act collectively on their own behalf, it is the chief who organizes that cooperation.  If a village needs a path cleared or a school building repaired, the chief calls villagers together and requires them to contribute a day’s work to the collective task. In turn, chiefs reward those who contribute to community well-being, and they may keep accounts about who has or has not shown public spirit.  Chiefs then redistribute spiritual and material goods to reward those who have helped their fellows. Thus, chiefs solve a collective action problem by contributing to the solution of communal problems, and they use their prestige to create “selective incentives” to those who contribute to the provision of public goods.

Beyond provision of goods, chiefs also act as gatekeepers to those from outside of the community. A new arrival must often first visit the local chief to ask permission to be in the village, which I did in all of the River State communities I stayed in. This makes sense, since a Chief will want to know that the visitor means no harm and to better understand what kind of community resources or goods the new arrival will be using.

To conduct research in each community, I first needed to "sit court" with the local chief and offer him libations for him to grant me permission.

To conduct research in each community, I first needed to “sit court” with the local chief and offer him libations for him to grant me permission.

Chart Depticting the Hierarchy of Traditional Rule in the Niger Delta

After remarking several times that “Chief is law” during her interview with me, I asked a female farmer in Rivers State: Why is Chief law?  Why do you listen to your chief?  Her answer was a rich explanation of the hierarchy of local rule in the region, and the she drew me a chart. Her is an electronic version of her drawing:

Chairman of the State Council of Traditional Rulers

                                               |

   Chairman of the Local Government Area (LGA) Of Traditional Rulers

                                             |

  King of Kingdoms

                                            |

                         Second Class Chiefs

                                           |

                           Third Class Chiefs

                                          |

                             Paramount Ruler

                                          |

              Community Development Committee (CDC)

                                           |—————-(Male) Youth Leaders

                                           |

                                Clan Chief

                                           |

                              Family Chief

                                         |

                             Family Head

Source: Rose (3/15/2012)

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.