SHELL NIGERIA CONVICTED IN THE NETHERLANDS – WHY?

(This post was first published on Africa on the Blog in February 2013.)

On 30 January 2013, Shell Nigeria was convicted by a Dutch court to pay compensation to Friday Akpan, a farmer in Akwa Ibom state of Nigeria, for damage that he suffered from oil spills many years ago. The court judged that according to Nigerian law, Shell Nigeria had been negligent in this case by failing to take action to stop sabotage of its installations. In four other cases brought before the court, Shell was acquitted.

The verdict marks a climax in a long process, that was coordinated by Environmental Rights Action (ERA – Friends of the Earth Nigeria) and Milieudefensie (Friends of the Earth Netherlands). A climax – but also a bit of an anticlimax. The magnitude of the oil spills problem in the Niger delta is well document, among others by a UNEP investigation in 2011. In fact, there is little doubt that if oil spills of this magnitude would occur in North America or in Europe, the media would be up in arms and would force all concerned to address the issues much more urgently than is currently being done. Compensation for one farmer is a drop in the ocean. Still, the verdict is hailed as a partial victory by environmentalists in Africa and Europe as well.

But this victory begs one question: why was it necessary in the first place to collect money from Dutch individual donors (myself included) to make a Dutch court pass judgement on a Nigerian company, applying Nigerian law, for crimes committed in Nigeria? Would it not be much more logical and much simpler to take Shell Nigeria to court in Nigeria itself? Shell Nigeria turns over around 1.8 billion euro a year in profits to its parent company. Surely, it has the money to make a positive difference in the Niger delta?

Those who know a little bit about Africa in general and about Nigeria in particular may think my question is naïve. And indeed, ERA has considered this issue. The Guardian has quoted a spokesman for the group as saying: “We considered all the options and the history of litigation in Nigeria before deciding to take the case to Holland. We could not have confidence in the judiciary in Nigeria because, coming from our experience, when the judiciary gives a judgment, the enforcement of that judgment by the executive becomes a problem. Shell is a very stubborn company, and in Nigeria, in some situations, it is more powerful than the Nigerian government.”

Of course, I will continue to support the decision by ERA to work with its Dutch counterparts in bringing this matter before the Dutch courts. It seems to be the only peaceful way still open in order to call attention to the environmental tragedy in the Niger delta and to force Shell to mend its ways.

But – what does this say about Nigeria as a nation? This July, Croatia will be the 28th country to join the European Union. The process of joining the EU was held up for years, in part because the EU felt that the rule of law was not yet strong enough in Croatia. Europeans have learned, after centuries of fighting, that the rule of law is essential. No state can command the respect and loyalty of its citizens if it does not manage to protect the rights of those citizens through a sound legal system. Clearly – in Nigeria, as in so many other African countries, the state fails miserably in this regard. I think this means that one of the greatest taboo questions in the discourse about Africa needs to be asked now, with greater force than before: can a country like Nigeria ever work? Would it not be better for everybody (except the ruling kleptocratic élite) if, by peaceful means rather than by force, Nigeria would be broken up and split into different, smaller and more coherent countries? That will mean a difficult debate and an even more difficult transition – but perhaps time has come to consider this alternative as the least of all evils.

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