JUSTICE BEGINS AT HOME: BOWOTO VS. CHEVRON
Very few Nigerians have heard of, or closely followed the case of Bowoto vs. Chevron Corporation. This landmark case has been proceeding in the United States District Court for the Northern District of California since 1999. On September 10, 2010, the 9th Circuit of the United States Court of Appeal came up with a ruling that could finally lay the case to an unfortunate end.
The factual backdrop to the case is an event that occurred on May 25, 1998 on the Parabe Oil Platform located off the coast of Nigeria and operated by Chevron Nigeria Limited. Since 1961, Chevron has been operating in the Nigerian Niger Delta in a joint venture/partnership agreement with the Nigerian run Nigerian National Petroleum Corporation (NNPC) under its subsidiary Chevron Nigeria Limited. Over the years, Chevron has amassed great fortune from the region with little adherence to generally recognized international safety standards in operation. This lack of compliance with safety standards has led to large spills creating severe environmental disasters in the affected region. Combined with sabotage of oil pipelines that arose later, the Niger Delta has been devastated economically, socially and politically. Although producing the bulk of Nigeria’s Gross Domestic Product, the people of the region have felt little or no positive impact from the money generated from the region. Instead they live in abject poverty, lack basic social infrastructure and are consistently exposed to health danger by the contaminants released into the environment by the heartless prospectors and the desperate pipeline saboteurs.
To address these injustices, from the late 1980s to the mid 1990s, the people of the Niger Delta began forming united fronts to confront the Multinational Corporations that were reaping super profits at the expense of the citizens of the region. One such group was the Concerned Ilaje Citizens formed primarily with the objective to curb the excesses and environmental abuses of the oil corporations, especially Chevron Nigeria that was operating in the region, and to secure more jobs for its citizens. As is usually the case with these Multinational Corporation who have the backing of their joint venturers (the Nigerian Government), Chevron Nigeria Limited regarded the Concerned Ilaje Citizens as nothing more than brigands and arrogantly refused to negotiate with the group. To call attention to its cause, the Concerned Ilaje Citizens, boarded the Parabe Oil Platform operated by Chevron Nigeria to stage a peaceful sit-in-protest, until their concerns were recognized and addressed by the company.
Chevron claims that negotiations between the group and the company were unsuccessful in resolving the protest and that the group took some of its staff hostage. Claiming fear for the safety of its staff, Chevron sought the assistance of the Nigerian Military to dislodge the protesters. On the fourth day of the protest, the Government Security Forces stormed the platform and began shooting at the protesters. Two protesters were killed and several others, including lead plaintiff Larry Bowoto were severely injured.
In 1999, some of the injured protesters and the family of one of the deceased protesters commenced the instant litigation against several defendants, including Chevron Corporation, the holding company of Chevron Nigeria Limited, Chevron Investments, Inc and Chevron U.S.A., Inc. in the United States District Court for Northern California alleging claims under California and Nigerian Law and the United States Alien Tort Statute. The claims were commenced in California because Chevron, the parent company, is a San Ramon, California based corporation. Over the course of years of protracted litigation, all the individual defendants and Chevron Nigeria Limited were dismissed from the action, leaving only the three defendants identified above. Several pre trial rulings also dismissed many claims of the plaintiff.
Prior to the commencement of the trial, the district court issued three more rulings dismissing the plaintiff’s claim under the Alien Tort Statute and the Torture Victim Protection Act. The court reasoned that the Alien Tort Statute claims were preempted by another United States Statutes, the Death on the High Seas Act (since the Parabe Platform was apparently more than three miles from the coast) and that the Torture Victim Protection Act did not apply to claims against Corporations. The case proceeded to trial on the remaining claims and after five weeks of trial and over 73 witnesses, the jury returned a verdict in favor of Chevron on the remaining claims.
The plaintiffs appealed the rulings of the court on the application of the Alien Tort Statute and the Torture Victim Protection Act as well as some other evidentiary and instructional rulings. On September 10, 2010, the 9th Circuit Court of Appeals in a unanimous decision affirmed the rulings of the district court and dismissed the appeal.
The correctness or otherwise of the decision is not the subject of this piece. The main issue here is why should the need arise for a case involving Nigerians and events that happened in Nigeria to be litigated in the United States in the first place? The attendant difficulty with prosecuting such a suit in the United States will be discussed below. But to answer the question posed above, the need arose for the case to be litigated in the United States due to the inability or refusal of the Nigerian Government with the complicity of the Judiciary to fashion adequate remedies for victims of the kind of acts complained of by the plaintiff in Nigeria. Indeed the United States recognized this lack of judicial remedies in most developing and undeveloped countries ruled by Military and Civilian Dictators and promulgated the Alien Tort Statute amongst others that allow Victims of civil rights abuse in foreign nations to seek redress in United States Court under specified circumstances. This statute has been a veritable tool in the hands of oppressed foreigners in obtaining some redress that was not available in their own countries. It is now being increasingly employed by Nigerians, especially from the Niger Delta who have been denied justice by our own government. About two years ago, another case pending in the United States arising from the massacre in Ogoniland was settled for 15 million dollars. Not a large sum by United States standards for tort litigation, but it at least provided some relief to the people of that part of the Niger Delta.
How is it then, that our justice must now be obtained abroad? As one of the plaintiffs’ attorney in this case noted, the decision of the 9th Circuit Court of Appeals is a blow to human rights plaintiffs worldwide because "people look to the United States in the hope that our judiciary is robust enough to call these mega-corporations to heel because they have no recourse in their own countries." Even the lead Justice that read the opinion of the court recognized that Chevron Nigeria Limited has opened a number of oil fields and offshore platforms, extracting billions of dollars worth of oil from Nigeria, but Chevron Nigeria Limited success has provided little or no benefit to most Nigerians. Rather Chevron Nigeria Limited has shown total disregard for the environment, with oil spills wreaking havoc on local water supplies and fisheries. Despite this stark realization, the law is still what it is and that is what the Justices administered.
The Nigerian Government has failed to protect its citizenry against the abuses of these corporations. But how can it effectively do so, when it is implicated in the atrocities being committed by these corporations? The government is in a joint venture agreement with these foreign corporations and, in grudging fairness to the corporations, rakes in a substantial portion of the revenue generated by the corporation as its share of the joint venture. As the corporations often claim, it is the responsibility of the government to use these payments to take care of the infrastructural development of the Niger Delta. Unfortunately, these payments are diverted by our government officials into their private pockets and into the vaults of foreign banks.
The unclean hands of our government officials stop them from enforcing laws aimed at ensuring good corporate governance by these corporations. Indeed, there are laws against the kind of pollution caused by the oil corporations, but the government is lousy on enforcement. It is the government and the Nigerian people that must ensure that these corporations obey the law and it is the government that must ensure that the people of the Niger Delta get fair compensation for the damage to their land and crop and other resources. In countries where the environmental laws are enforced, the oil companies are more careful in their operations and when they cause an environmental disaster, take immediate steps to mitigate the problem and at the same time pay just compensation to the locals affected by the disaster. A recent example is the British Petroleum pipeline explosion in the Gulf of Mexico. British Petroleum put in all effort to stop the flow and the extent of the disaster. The CEO of the corporation was forced out and the United States Government continued to lean on BP to take full responsibility for the disaster. Public relations issues even compelled British Petroleum to agree to set up a fund for compensation of victims in excess of the amount allowed under current United States Laws.
This is what a government is supposed to do. When there is a spill in Nigeria, the oil companies do not take the necessary steps to clean up the mess because they know that there will be no reprisal from the government, there will be no real public relations fall out, there will be no viable lawsuit that would survive in the corrupt judicial system and if the worse come to the worst they can count on the government to use the force of the military to quell any disturbance from the locals most affected by the spill.
It has often been the cry that the multinational corporations must provide jobs for the locals in the places where they operate, build hospitals and schools and provide other relevant social services. But it is pure affectation to expect that these corporations will do so. For in truth, this is not the function of a corporation in a truly working capitalist system that Nigeria pretends to be. The function of the corporation is to make and maximize profit and the loyalty of the corporate officers is to the shareholders. A corporation is not a socialist institution and it is said that charity has no place in the corporate boardroom. The so called benevolence of a corporation that provides social services for the locals is where the corporation has gauged that failure to provide such social services will be a bad public relations issues and may ultimately undermine the financial bottom line of the corporation. Because no such threat of negative public relations exist due to the factor mentioned above, the oil companies in Nigeria will continue to ignore the demands of the locals for compensation or the need to adhere to generally recognized safety standards in their operations.
A useful tool to ensure compliance is a hit in the corporation’s pocket book, not just by the government oversight agencies, but by the Judiciary in lawsuits brought against the corporations by aggrieved citizens. However, this tool happens to be missing in Nigeria as well. The Foreign multinational corporations know as well as anybody how corrupt the judicial system is. The fact that justice in Nigeria is often the prerogative of the highest bidder is well documented. Tales of bribery and corruption of judicial officers are legion. In a high stakes litigation such as the one in question, the companies are able and willing to do what it takes to buy over the judicial officer assigned to the case. In the end, it is cheaper, where possible, to pay off one Judge than to pay the compensation sought by an entire community. Aside from this, the protracted nature of litigation in Nigeria aptly defines the phrase that justice delayed is justice denied.
The Judiciary is supposed to be the touted last hope of the common man. This has not proven to be so in many instances in Nigeria. For any modicum of justice to exist for the communities ravaged by the operations of the oil companies, that justice must begin at home. Our laws must be enforced by the regulatory bodies and the courts must stand as the pillar of justice for the communities.
Although the Ilaje case ended in favor of Chevron, the fact that these cases can be brought at all is a glimmer of hope that maybe the justice that is not obtainable at home can be obtained abroad. While this is a good development, one must not overlook the several challenges that prosecuting such a case in a foreign court poses. These include:
I. Difficulty in gathering evidence and presenting evidence. The foreign firm handling the case is at a disadvantage with gathering evidence and preserving same for presentation due to the lack of proximity between the firm, the clients and the locus of the case.
ii. Difficulty in getting witnesses to travel and testify. In the Bowoto case there were 73 witnesses called. Several of these witnesses had to travel from Nigeria to the United States to testify. There is report that the Nigerian Government tried to influence the denial of visas to some of the witnesses and that some key witnesses may not have been able to secure the necessary travel documents to allow them to travel and testify in the case
iii. Difficulty in explaining peculiarly Nigerian concepts and cultures to a foreign jury. There are several things in life where experience is the best teacher. Certain things are hard to teach or explain and must be lived to have a true appreciation of the concept. Some of the issues that come up in cases like this, require someone familiar with the local cultures and tradition to understand why certain things are the way they are.
iv. Difficulty in explaining peculiar social circumstances to a foreign jury. Why, for example. It should be the duty of a tax paying corporation to provide jobs to the locals in the area where it operates.
v. Difficulty in disabusing a foreign jury of traditional foreign media sponsored prejudices about Africa and African. Chevron claimed that the protesters were armed kidnappers and one of the facts relied upon in turning the case in favor of Chevron was a picture of one of the protesters holding a machete. Plaintiff’s explanation that the machete was used to clean food and not to attack Chevron did not hold with the jury. Chevron’s take goes along with the media portrayal of Africans as hostile and confrontational people.
vi. Difficulty in getting a foreign jury to understand why the case cannot be tried in Nigeria and why it should be their task to resolve matters of people from another country.
vii. Exorbitant cost of the litigation. Given the problems highlighted above, these cases are extremely expensive to handle. Often times, the plaintiffs do not have the money to bankroll the case. The law firm will have to foot the bill and maybe get some help from civil rights groups, but it will not always be easy to find a law firm ready to take on such an enormous task. This, perhaps, explains why more such lawsuit have not been brought in foreign courts.
Most of the problems above would not exist on the same scale, if at all, were the case to be litigated in Nigeria. Our judiciary must take the lead in this regard. There is some glimmer of hope, for recently a Nigerian Court awarded billions of naira in damages against an oil company for contamination and environmental damage caused to the local community in which they had their operation. This is a step in the right direction, but more needs to be done. Lawyers practicing in Nigeria also have to champion these causes despite the fact that they may not be paid up-front. If enough cases like this are filed in Nigerian Courts, sooner than later, the Judges will have no choice but to begin to apply the good laws that we have on our books but do not enforce. Maybe then, we will have justice at home.
The writer is a Nigerian Attorney practicing in Los Angeles, California.