2 May 2007. On the day prior to oil giant Shell's quarterly earnings report (3 May 2007), Friends of the Earth International is calling on the Anglo-Dutch company to immediately respect a court order to stop gas flaring in Nigeria by 30 April 2007.
In November 2005, the Federal High Court of Nigeria found gas flaring to be a "gross violation" of the human right to life and dignity and a violation of the Nigerian Constitution. Shell was ordered to stop gas flaring in Iwherekan community, Delta State, with immediate effect.
After Shell appealed, they were given a one year "stay of execution" to stop flaring, on three conditions, including that the CEO's of Shell, the Nigerian National Petrol Corporation (NNPC) and the relevant Minister submit a detailed plan of action on how gas flaring would be stopped by 30 April 2007. The year has now elapsed and Shell has not stopped flaring and the plan of action has not been submitted .
Mr Jonah Gbemre, plaintiff in the Nigeria court case against Shell, said:
"Shell is disobeying court orders and keeps on flaring gas in my community, despite an April 30 deadline. For us, time is running out. Shell must be forced to shut down this gas flaring. It is our only hope for survival."
Gas flaring is a destructive practice which costs the African country about US$2.5 billion annually, while more than 66% of Nigeria's population is estimated to live on less than US $1 a day.
Nigeria has been the world's biggest gas flarer, and the practice has contributed more greenhouse gas emissions than all other sources in sub-Saharan Africa combined, according to a World Bank 2002 statement.
Flaring is bad for both the environment and people in the Niger Delta. It can lead to leukaemia or asthma and premature death. It causes acid rain which acidifies lakes and streams and damages vegetation.
Reverend Nnimmo Bassey, Executive Director of Environmental Rights Action (Friends of the Earth Nigeria), which has been supporting the case said:
"While Shell and its shareholders count their profits, all we can count are the early graves that their toxic gas flares keep sending our people. It is morally wrong for Shell to continue with gas flaring despite a ruling that has ordered them to cease it. Shell continues not only to waste Nigeria's natural resources in this way, but is criminally wasting the lives of poor people in our communities who cannot avoid the impacts of gas flaring."
Lawyer Peter Roderick, co-Director of the Climate Justice Programme, which has also supported the case, expressed his concerns with the legal process and Shell's behaviour:
"Many disturbing aspects have emerged during the progress of the Iwherekan case. First, Shell's lawyers pull out as many delaying tactics as possible in the court, even trying to get the judge kicked off the case before it has barely started. Shell then fails to comply with the court order to stop flaring. And now, after the judge has extended the period of time for Shell to stop flaring, they ignore the order again and don't even turn up in court.
"To add to this, the fact that the judge has been removed from the case, transferred to the north of the country, and there have been problems with the court file for a second time, suggests a degree of interference in the judicial system which is unacceptable in a purported democracy acting under the rule of law."
This turn of events is the latest in a pattern of remarkably disrespectful behaviour by Shell, NNPC, the Nigerian government, and court staff towards the rule of law and some of the poorest people in the world. In November 2005 the judge criticised the behaviour of Shell's lawyers, describing "...fresh applications on each and every date, all of which are designed only to abort proceedings for the day after unduly lengthy submissions on miscellaneous issues like adjournments, transfer, stay of proceedings, stay of execution, notices of appeal, motions for stay at the Court of Appeal to prevent the judge from sitting etc." A chronology of the case, and this pattern, is set out below .
Robin Webster of Friends of the Earth said:
"It is a disgrace that Shell has continued to flare gas, even though Nigeria's High Court has ruled it illegal and a breach of human rights. Shell's dismissive attitude to this case demonstrates its contempt for the people of Nigeria and makes a mockery of their so-called green credentials."
More information on the gas flaring in Nigeria is contained in a report published in June 2005 by the Climate Justice Programme and Environmental Rights Action, `Gas Flaring in Nigeria: A human rights, environmental and economic monstrosity', which is available here, in both HTML and PDF versions:
 In April 2006, after the filing of contempt of court proceedings against Shell, the company was granted a "conditional stay of execution", releasing it from the duty to comply with a court order in November 2005 to stop flaring, on three conditions. One year on, two of these conditions have not been met.
The first condition was that Shell was "allowed a period of one year...to achieve a quarterly phase-by-phase stoppage of its gas flaring activities in Nigeria under the supervision of this Honourable Court".
This time condition has now elapsed, but flaring continues. The second condition was that "a detailed phase-by-phase technical scheme of arrangement, scheduled in such a way as to achieve a total non-flaring scenario in all their on-shore flow stations by 30th April 2007" must be submitted to the court personally by Mr. Basil Omiyi, the Managing Director of Shell Nigeria, Mr Funsho Kupolokun, the Group Managing Director of the Nigerian National Petroleum Corporation (NNPC), Mr Edmund Daukoru, the Minister of State for Petroleum Resources, and Chief Mrs Sena Anthony, the Company Secretary of NNPC. This has not been done.
CHRONOLOGY OF THE COURT CASE, AND SHELL'S BEHAVIOUR
21st July 2005
Mr Gbemre is given permission to bring his case.
5th August 2005
Hearing adjourned by court for service of papers.
15th August 2005
Shell asks for an adjournment, to study the papers and make adequate response. Adjournment granted.
6th September 2005
Parties (except Attorney General of Nigeria) attend court for hearing, but the court does not sit.
16th September 2005
Shell and NNPC inform the court they want to challenge its jurisdiction, and want this question to be determined first.
Justice C. V. Nwokorie determines that he wishes to give one ruling only, covering all matters, and orders Mr Gbemre's arguments to be made. Mr Gbemre's case is argued before the court, after which Shell and NNPC start their reply. Shell and NNPC then ask for an adjournment, which is granted.
14th October 2005
Shell and NNPC inform the court that they want a stay of proceedings, while they appeal to the Court of Appeal against the judge's decision of 16th September. Case is adjourned.
24th October 2005
Shell and NNPC argue, again, that they want a stay of proceedings while their appeal is heard at the Court of Appeal. The judge, observing that this was the longest argument he had ever heard on an adjournment application, refused the adjournment and ordered Shell and NNPC to finish their reply to Mr Gbemre's case. The senior lawyer for Shell and NNPC (Chief T.J. Okpoko, SAN) then applied orally to resign from the case, which had the effect of requiring an adjournment.
8th November 2005
Mr Okpoko turns up again, says that his clients wish him to continue and explains that he did not formally file his resignation in writing, as required. He said that Shell and NNPC were concerned that they would not be given a fair hearing, wanted the case transferred to a different judge, and so had filed an application for an injunction to stop the judge hearing the case. The judge refused Shell and NNPC's application to have the case transferred, and ordered them to reply to Mr Gbemre's case. Mr Okpoko then asked for an adjournment on the basis that he was too tired to continue. Strong objections against further delay are made on behalf of Mr Gbemre by his lawyer (Mr. B.E.I. Nwofor, SAN). The court ordered that as Shell and NNPC will not reply, they can be given no further time, and the court ordered the case be adjourned to 14th November 2005 for judgment.
14th November 2005
the Federal High Court of Nigeria:
- held that gas flaring is a "gross violation" of the constitutionally-guaranteed rights to life and dignity, which include the right to a "clean poison-free, pollution-free healthy environment";
- ordered Shell to stop flaring in the Iwerekhan community immediately;
- declared the gas flaring laws to be "unconstitutional, null and void"; and
- ordered the Attorney General to meet with the Federal Executive Council to set in motion the necessary processes for new gas flaring legislation that is consistent with the constitution.
The judgment is here:
16th December 2005
Flaring was still continuing 32 days after the judgment, and so contempt of court proceedings were filed against Shell and NNPC, for disobeying the order.
10th April 2006 The Federal High Court grants a "conditional stay of execution of this court's order stopping gas flaring in the Iwherekan community". Three conditions are attached:
- Shell and NNPC "are allowed a period of one year from today to achieve a quarterly phase-by-phase stoppage of its gas flaring activities in Nigeria under the supervision of this Honourable Court."
- The Managing Director of Shell Nigeria, the Group Managing Director of the NNPC, the Nigerian Petroleum Minister, and the Company Secretary of NNPC are ordered to "submit a detailed phase-by-phase technical scheme of arrangement, scheduled in such a way as to achieve a total non-flaring scenario in all their on-shore flow stations by 30th April 2007".
- These four individuals are ordered to appear before the judge to present the same in open court on 31st May 2006.
Shell and NNPC appealed the conditional stay of execution, and the conditions.
23rd May 2006
The Court of Appeal did not amend the order of 10th April 2006 but ordered the court not to sit on the day appointed for the personal appearances, thereby removing in effect the third condition.
26th September 2006
the Court of Appeal in Benin City adjourned Shell and NNPC's jurisdiction appeal, after the case had been wrongly adjourned by court staff to 10th October 2006, without any notice to the applicant or his lawyers. The leading judge said that the reason for this would be investigated and the person responsible disciplined.
30 April 2007
Mr Gbemre's legal representative attended the court on 30th April 2007. He discovered that not only had no detailed scheme for stopping the flaring had been submitted, but that Justice Nwokorie had been removed from the case by having been transferred to another court district in the far-northern State of Katsina, the court file was not available, and no representatives of the company or government turned up.
Images of gas flaring are available at