Talk about ending with a whimper, not a bang.
Or, to put it more crassly, how much is a dead Nigerian worth, anyway?
In 1996, one year after author and human-rights activist Ken Saro-Wiwa and nine others were hung in Nigeria, the New York-based Center for Constitutional Rights filed suit in U.S. federal court, charging that the executions were carried out with the knowledge and “consent and/or support” of Shell Oil, as part of an alleged conspiracy with the Nigerian government to suppress opposition to drilling in the Niger Delta.
The life of an Ogoni, the ethnic minority in whose behalf Ken Saro-Wiwa gave his own, is worth less than a top Cravath Swaine litigator makes in a year.
The suit—which relied upon the long-forgotten 1789 Alien Tort Claims Act to argue that U.S. courts had jurisdiction—was filed, dismissed, appealed, refiled, amended, appealed, reinstated, re-dismissed, re-amended, reinstated, etc., for 13 years. (The full record of the case is available here.)
Finally, in late May, it was scheduled for trial before U.S. District Judge Kimba Wood in New York City. Then came a series of last-minute postponements, indicating that settlement talks had reached an advanced stage. The settlement was announced late Monday, and its terms lead back to the question of how much a Nigerian life is worth.
Based on the $15.5 million settlement, a Nigerian life—or, to be more specific, the life of an Ogoni, the ethnic minority in whose behalf Ken Saro-Wiwa gave his own—is worth less than a top Cravath Swaine litigator makes in a year. Figure it this way: $15.5 million divided among 10 plaintiffs comes to $1.5 million per executed Nigerian. Can we assume that the Cravath partners defending Shell in the Wiwa case earned less than $1.5 million per person last year?
To put it in perspective, only minutes after the Associated Press moved the story about the Shell settlement, Reuters posted one that said, “Evergreen Investments agreed Monday to pay more than $40 million to settle state and federal regulators’ charges that it overstated the value of one of its mutual funds” (emphasis added). Overstating value is almost three times as bad as hanging 10 innocent men? Only in America.
But what’s even worse is that, according to the settlement, “the company acknowledged no wrongdoing in the 1995 hanging deaths...” Every day since November 10, 1995, when the bodies of Saro-Wiwa and the nine others were dumped in an unmarked grave, the Ogoni people have cried out for justice. Until Monday, they had believed that the suit against Shell would deliver it.
Asked how Saro-Wiwa would feel about the settlement, his son, Ken Wiwa, also known as Ken Saro-Wiwa Jr., said from London on Monday: “I think he would be happy with this.”
I doubt it. In The Politics of Bones, a 2005 book by J. Timothy Hunt, Ken Saro-Wiwa’s brother—who, unlike his son, was with him in Nigeria during his years of imprisonment—tells how a Shell executive, Brian Anderson, said he might be able to stop the hanging if Saro-Wiwa would issue a press release acknowledging that Shell had not caused “environmental devastation.”
Saro-Wiwa’s reply was his death warrant. He said Shell “has screwed the Ogoni people enough.” He said he’d rather die than sign a document that exonerated them. Anderson reportedly responded, “If your brother wants to be a martyr, that’s his business.” And Saro-Wiwa and the others were hanged.
Ken Saro-Wiwa Jr. was living in London at the time, receiving the education his father wanted for him and was paying for—financially, as well as, eventually, with his life. In the years since the execution, Ken Jr. has wrestled quite publicly with the demons of being the son expected to pick up the fallen torch. He has written a gripping, haunting book, In the Shadow of a Saint: A Son’s Journey to Understand his Father’s Legacy, published in England in 2000. He has been the first plaintiff listed in every motion filed in regard to the suit against Shell since 1996. I consider him a modern Prince Hamlet and would never dare presume to judge him.
But selling out is selling out. Malcolm Brinded, Shell’s executive director for exploration and production, told the AP on Monday night that the settlement “acknowledges that... Shell had no part in the violence that took place.” Was that what Ken Saro-Wiwa Jr. and the others were fighting for for the past 13 years? No admission of complicity or guilt?
How sad—although perhaps predictable—that the strongest, longest-running, most highly publicized lawsuit ever brought against a multinational oil company for human-rights and environmental abuse would fizzle out on the eve of trial with only a paltry cash payment and no admission of wrongdoing.
Ken Saro-Wiwa would be happy? I don’t think so, because Shell remains innocent and his story remains untold.
Joe McGinniss is the bestselling author of The Selling of the President , Fatal Vision and Never Enough , among others. His next book will be about how the little-known Alien Tort Claims Act of 1789 has enabled a new wave of 21st- century human-rights litigation.