The Dilemma of Restorative Justice when ‘All Are Guilty’

Abstract

Conflicts in the oil-rich Niger Delta of Nigeria have received considerable attention – from academics, policy makers and practitioners. In this article the possible application of restorative justice principles to the conflicts in the oil-producing regions of Nigeria is examined. After a survey of the background to the conflicts in the area, possible applications of restorative justice principles are analysed, and the various assumptions and considerations that may underlie and inform this application are outlined. In conclusion a step by step approach is suggested: how restorative justice principles may be applied, how the challenges therein may be considered, and how the challenges may be overcome.

Introduction

In 1998, Shell Petroleum Development Company (SPDC) Nigeria had about 500 cases pending in Nigeria law courts. About 350 or 70% of these cases were related to oil spill compensation claims. During the same year, Chevron was involved in 200 cases in the courts. About 180 of these cases were related to oil spill compensation claims (Frynas 2000). In 2003, SPDC had 221 oil spills and paid out US$3.2m as compensation (Shell Petroleum Development Company 2003). Between 1999 and 2003, SPDC alone had 1426 oil spills.

The upsurge in conflicts (especially compensation claims) in the oil-bearing Niger Delta of Nigeria has once again called to question the effectiveness of the present legal system. The oil industry, because of its technical and complex nature, is one of the most regulated economic activities in the world. This regulation is mainly in the form of laws. Unfortunately this plethora of laws has opened a floodgate of litigation and has proved ineffective in addressing the conflicts arising from oil exploration activities. Against this background there have been calls for a rethink of the modes and models of conflict resolution in the Niger Delta. In this essay, I intend to explore the possible application of restorative justice to conflicts in the Niger Delta. This study aims to look at the dilemma of implementing restorative justice models of dispute resolution in a situation where ‘all are guilty’. This study will start with a brief overview of the conflicts in the Niger Delta. The emphasis will be on assessing the effectiveness of the present judicial system in resolving conflicts in the Niger Delta. The second section will identify the various kinds of conflicts in the Niger Delta and describe how the parties in the area have responded to these conflicts – especially within the criminal justice framework. The third section will explore the application of restorative justice and its implications for conflicts in the Niger Delta. I shall conclude by suggesting possible ways of introducing restorative justice programs in the Niger Delta.

Background

Northern and southern protectorates were amalgamated by the British on 1 January 1914. This marked the birth of the modern state of Nigeria as we know it today. Before this amalgamation, Nigeria was made up of different ethnic groups with different kingdoms and different political systems. In the southwest, the Yorubas were the dominant ethnic group with the peoples of the western Niger Delta constituting various minorities. These minority groups include the Ijaw, Itsekiri, Urhobo, Isoko and Bini. The Igbos are the dominant group in the southeast. The minorities of the southeast include the Ijaw, Andoni, Ogoni, Ndoni, Ibibio, Ikwerre, Etche and others. The Hausa/Fulani are the dominant group in the north and the Bachama, Angas, Birom, Tiv, Idoma, Jukun and others constitute the minorities (Falola 1999).

Southern Nigeria is predominantly Christian, while northern Nigeria is predominantly Muslim. The minorities in the north are mainly Christian. The essence of this will be seen when we discuss the application of restorative justice in the conflicts in the Niger Delta region. For instance, religion plays into and reinforces identity and culture and this is usually taken into consideration in the use and application of restorative justice (Zehr 2001).

However, before the amalgamation many of these ethnic groups interacted through trade, war, inter-marriage, commerce and diplomacy. Many kingdoms had a centralised form of administration while others were what Evans Pritchard (1940) referred to as stateless societies. But with the amalgamation, the British introduced indirect rule as a system of administration. This made use of local elites and/or traditional institutions in order to govern (Dike 1956, Ikime 1982).

Nigeria was granted independence in 1960. By 1966, Nigeria experienced her first coup d’état and in 1967 the Nigerian Civil War started. The war ended in 1970 with the defeat of Biafra. Out of 44 years of independence, the military has ruled Nigeria for 35 years. Nigeria has experienced five coups. Over the years, conflicts in Nigeria have taken a regional tone. In the north there are the religious clashes between Christians and Muslims. In the middle-belt, there are the indigeneship conflicts. In the southeast, there has been the resurgence of ethnic militias clamouring for secession and communal/land conflicts. In the southwest, there is the rise of ethnic militias claiming to be protecting the interests of the area. In the Niger Delta, the issue has mainly been the conflicts between the oil companies and the host communities (Onuoha 2005).

The Nigerian Bitumen Corporation was the first company to explore for oil in Nigeria between 1907 and 1914. They withdrew at the beginning of the First World War in 1914 because the Nigerian Bitumen Corporation was a subsidiary of a German company. In 1938, a British firm, Shell-BP, was granted an exclusive license to explore for oil in Nigeria. In 1951, Shell-BP began full-scale drilling operations. Oil was found in Oloibiri in the present-day Niger Delta in 1956. In 1958, Shell-BP commenced drilling activities in Ogoniland (Okonta & Douglas 2001).

Today, the Niger Delta is made up of nine states and they are: Abia, Akwa-Ibom, Bayelsa, Cross River, Delta, Edo, Imo, Ondo and Rivers States. However, in Nigeria’s peculiar political parlance, there are core and periphery Niger Delta states. This categorisation has more to do with the quantity of oil produced by each state. The core Niger Delta states are Bayelsa, Delta and Rivers States. These three states produce 86% of Nigerian crude oil. They are also reputed to have almost 20 billion barrels of crude oil reserves (Olorode 2000).

Theoretical Framework and Literature Review

Maiese (2003) has identified six types of justice: distributive justice, procedural justice, retributive justice, restorative justice, political justice and economic justice. Recently, there is also transitional justice (Neil 1995) which deals with the management of justice during transitions. These categorisations are not mutually exclusive, but reinforce each other. For instance, without procedural justice there may not be distributive justice, and without political justice it might be difficult to attain economic justice.

There are three basic understandings of justice. First, justice could be conceived as what the law says (Maiese 2003). This raises the question of just and unjust laws. It also brings into the fore the legitimacy of the institutions promulgating the law and the mechanisms for implementation. The second understanding is the perspective that whatever society conceives as justice is what justice is. This school, which is also known as the evolutionist school, believes that justice is defined by the collective will of society. They are also known as the moral school. The third school is the naturalist school. This school argues that human beings are God’s creations, and that because of this, creation should not be violated. The conception of human rights drew a lot from this school. On the whole, the issue of justice should draw from the three schools. This is because human beings are entitled to human dignity. This dignity ought to be protected under the law through legitimate institutions, but as society changes these laws must also change to meet these new challenges.

In the Niger Delta this dilemma of what constitutes justice is at the heart of the conflicts between the oil companies and the communities. There are many laws regulating the oil industry as we shall see later. But, firstly, the people of the Niger Delta do not recognise the institutions that made these laws (Okonta & Douglas 2001). They also have issues with the process of making these laws. For instance, Ihonvbere has argued that, ‘In essence the process that culminated in the 1999 constitution represented a deliberate perpetration of “political 419”¹ on the Nigerian people and a betrayal of their yearnings for a transparent, accountable, just, and democratic political culture’ (Olorode 2000:16).

Apart from the process of making the constitution,² the people of the Niger Delta also have an issue with the provisions of the constitution. For instance, in section 55 of the Federal Constitution of Nigeria 1999, no Niger Delta language was accorded recognition for use in official business. Again, the people of the Niger Delta consider the 13% provision for the oil producing areas as too small (Federal Constitution of Nigeria 1999: section 163(2)). The people of the Niger Delta also have issues with the institutions that managed the making of the various Nigerian constitutions (ERA/FoEN 1999).

Laws Regulating the Oil Industry

Extractive industries are by nature inherently conflictual (Ross 2000). This has not been lost on those managing the industry. Because of this the industry is heavily regulated through legislation. The discussion here will centre more on the laws regulating relationship between the oil companies and their host communities. Much of legislation may not be relevant to our discussion. And the emphasis here will be on those laws that deal with the issues of compensation over land and oil spill and other related damages.

After the amalgamation of 1914, the colonial government passed the Mineral Oil Ordinance of 1914. This law reserved the monopoly of oil licenses for British oil firms only. Though not directly related to the relationship between the oil companies and the communities, this piece of legislation has far reaching implications for the oil-bearing communities, the government and the oil companies. First, this law was a signal that the communities have no say in choosing by whom and how oil is exploited. Second, it provided a blanket cover for oil companies thereby assuring them of always receiving government protection. Third, it meant that the communities will be mere watchers as to what happens in the oil industry. Finally, it makes oil companies responsible to government alone. In other words, oil companies are only accountable to the government, thereby ignoring the needs, interests and concerns of their host communities. As Frynas (2000) noted, whenever there is a misunderstanding between oil companies and communities, government is almost always on the side of the companies.

Because of this protection, even though the legislation was amended to accommodate oil companies from other countries in 1958, Shell-BP became the dominant oil company in Nigeria. For instance, as at May 1999, Shell was producing almost 40% of total Nigerian crude oil and that mostly onshore (that is on land). This legislation also accounts for the reason why Shell seems to have been more involved in conflicts with the oil bearing communities (Frynas 2000).

In 1937, another ordinance was passed which granted Shell the monopoly of exploiting oil in Nigeria. A year later in 1938, Shell was granted license to prospect for oil all over Nigeria. And by 1957 the colonial government promulgated the Petroleum Profit Tax law which allowed the oil company (Shell) and the government to share oil revenue on a fifty-fifty basis (CDHR 2000).

By that time, the minorities who constitute the majority of the population of the Niger Delta had expressed discomfort with the structure of the Nigerian federation. They called for the creation of more regions to protect them from the hegemony of the major ethnic groups (Osaghae 1998b). In response, the government set up the Willink Commission in 1958 to address the fears of minorities. The commission did not recommend the creation of new regions, but instead acknowledged that the fears of minorities were genuine and recommended constitutional guarantees to protect them within the Nigerian federation. The commission also recommended the establishment of the Niger Delta Development Board which was to cater for the development needs of the Niger Delta area.

In 1969, as part of the response of the Nigerian government to the war, two things happened simultaneously. First, the government enacted the Oil Minerals Decree which gave the government total control of oil revenue and the oil industry. Second, the government under General Yakubu Gowon created twelve states out of the four regions. It will be recalled that by 1963 the civilian administration of Sir Abubakar Tafawa Balewa had created the Midwest region out of the Western Region (Falola 1999).

The Nigerian National Oil Corporation (NNOC) was created in 1971, ostensibly to enhance government control of the oil industry. And by 1977 the NNOC was merged with the Ministry of Petroleum Resources and renamed the Nigerian National Petroleum Corporation (NNPC). The implication of this development for conflicts in the Niger Delta was that the government would now directly explore oil in the communities. Hitherto, that had been an exclusive activity of foreign oil firms.

Legislation about oil did not deal only with industry regulation; it also dealt with revenue allocation. The independence constitution of 1960 allowed each region to retain 50% of the revenue collected in its area. This was reduced by the military in 1970 to 45% and to 20% by 1975 (Suberu 1996:29-31). This principle of derivation was abolished in 1982 under the Shehu Shagari regime which reserved 1.5% of total oil revenue for the oil producing areas. This meant less money for the Niger Delta communities (Suberu 1996:29-31).

In 1999, under the new democratic constitution, 13% of total oil revenue was reserved for oil producing areas. But under the former military regimes government established some agencies, ostensibly to develop the Niger Delta. For instance, in 1992, the government promulgated the Oil Minerals Producing Areas Development Commission Decree 23 of 1992. The Petroleum Special Trust Fund was also established in 1994, and in 1999 the Niger Delta Development Commission was established by an act of parliament.

The Land Use Act 1978 may be the most profound legislation that has affected the oil-bearing communities. Section one of the act seems to be the most important provision of all. It reads ‘Subject to the provisions of this decree, all land comprised in the territory of each state in the federation are hereby vested in the Military Governor of that State and such land shall be held in trust and administered for the use and common benefit of all Nigerians in accordance with the provisions of this decree’.³ It is important to underscore the fact that before this time, land tenure in Nigeria was individual, family and communal. Customary land rights were prevalent. Traditional rulers, elders and family heads presided over the sharing of land and the resolution of land disputes. The provisions of this decree will to a large extent form the fulcrum of the discussions in this article.

The Petroleum Act 1969 and the Pipeline Act 1956 all made provisions for preventing disruptions of oil production activities. For instance the Petroleum Act, section 12 (1) reads: ‘any person who interferes with or obstructs the holder of a license or lease granted under section 2 of this decree (or his servants or agents) in the exercise of any rights, power or liberty conferred by the license or lease shall be guilty of an offence and on conviction shall be liable to a fine not exceeding 100 pounds or to imprisonment for a period not exceeding six months or both’.⁴

The military government was to build upon these legislations through the Petroleum Production and Distribution Anti-Sabotage Decree No. 35 of 1975. This decree made an offence of ‘sabotage in respect of willful acts calculated to prevent, disrupt or interfere with the production or distribution of petroleum products punishable’ (Frynas 2000:83). This law provided for trial under a military tribunal with possible death sentence or imprisonment of up to 21 years. The Miscellaneous Offences Decree No. 20 of 1984 also provided the death penalty for the sabotage of oil installations. This decree was amended in 1986 and the death sentence was changed to life imprisonment. Apart from anti-sabotage legislations, there were also environmental laws. In 1988, the government promulgated the Federal Environmental Protection Agency (FEPA) Act 1988. This was amended by decree No. 59 of 1992. Apart from creating the Federal Environmental Protection Agency which is responsible for the protection of the Nigerian environment, in section 23, the decree specifically was given the responsibility for oil-related environmental pollution. The section provided that ‘the agency shall co-operate with the ministry of petroleum resources for the removal of oil-related pollutants discharged into the Nigerian environment and play such supportive role as the ministry of petroleum resources may from time to time request from the agency’.

As a follow-up to the issue of environmental pollution, there are also laws dealing with the payment of compensation for losses arising from oil prospecting and production activities. The Oil Pipelines Act 1956, sections 19-23, provides that ‘the court shall award such compensation as it considers just in respect of any damage done to any buildings, lion crops⁵ or profitable trees by the holder of the permit in the exercise of his rights thereunder and in addition may award such sum in respect of disturbance (if any) as it may consider just’.

The important point in the law is that provision was made for the payment of compensation. But the Petroleum Act 1969, in paragraph 36 schedule 1, made provision for ‘fair and adequate compensation’. And as if to clarify the interpretation of this law, the Petroleum Drilling and Production Regulation 1969 listed all the items for compensation. They include food crops and economic trees, developments on land such as structures, fishing rights, as well as injurious infections and disturbances.

Section 40 of the 1979 Federal Constitution also provided for adequate compensation for the compulsory acquisition of property. For any discerning observer of the Nigeria political landscape, it is obvious that this law was aimed at mitigating the barrage of criticisms levied against the land use decree of 1978. But the law also fell short of defining what is meant by adequate compensation. Moreover, the law did not make any provision for environmental damage.

This was taken care of in 1983 with the domiciling of the African Charter on Human and People’s Rights. This Charter, in articles 21 and 24, provided for adequate compensation for environmental damage. But as Frynas (2000) observed, ‘adequate compensation is subjective and vague’ and it is subject to negotiation or for a judge to decide.

To get around this subjectivism, there have been many suggestions as to how to arrive at adequate compensation. Open market value has been called the ‘yardstick for compensation’. Government has also produced some official rates as guidelines for calculating compensations. The Oil Producers Trade Section of the Lagos Chamber of Commerce periodically releases a list of compensation rates. However, in spite of all these the World Bank (1995, Vol. II, Annex M, 75) says that the compensation rate is too low in Nigeria. This shall not worry us at this juncture since that is not the focus of this paper. The focus is on why it is that in spite of so many regulations and guidelines on the payment of compensation for damages from oil production operations, the court system seems incapable of satisfactorily adjudicating the issue. Let us see how the application of restorative justice could help in this regard.

Applying Restorative Justice Principles

Restorative justice does not have a universally accepted or precise definition. Many scholars and theorists have shied away from pronouncing ‘the’ definition of restorative justice. However, Zehr (1990:181) uses the metaphor of a lens to capture the meaning of restorative justice, and says that ‘crime is a violation of people and relationships. It creates obligations to make things right. Justice involves the victim, the offender, and the community in a search for solutions which promote repair, reconciliation and reassurance.’ But twelve years later, after his initial hesitation, Zehr (2002:37) suggests that ‘restorative justice is a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations, in order to heal and put things as right as possible’. Two operative words in Zehr’s definition are important for this discourse. They are ‘process’ and ‘collectively’. They are important because these two key words encapsulate the values of restorative justice.

Marshall (1998) was a little bit more daring; and declared that ‘restorative justice is a problem-solving approach to crime which involves the parties themselves and the community generally, in an active relationship with statutory agencies’. This definition is interesting because it raises the question of the role of statutory agencies. In other words, restorative justice is not an alternative for or a replacement of the present criminal justice but a system of justice that offers a new way of looking at justice.

Cayley (1998), unlike Marshall, shies away from a definition but argues that the question of justice must involve both the victim and the offender. This process of involvement was developed further with real life cases by Ross (1996).

Other restorative advocates like Bazemore and Schiff (2001) have also tried to distance themselves from the definition but concentrated on what one could refer to as the core values and principle of restorative justice. Along that line they argue that ‘the emerging common vision is one that suggests that the outcome of justice intervention – whether formal or informal – should be a solution that aims toward repairing what is harmed by crime and in doing so, strengthens the ability of participants in the justice process’ (Bazemore & Schiff 2001:33).

Johnstone (2002:161) makes the case for a systemic shift that ‘would affect the goals, techniques, procedures and values of criminal justice’. From the foregoing a key issue that needs further consideration is the assumptions behind this systemic shift that restorative justice enthusiasts are advocating.

To understand restorative justice we need to look at its basic assumptions and principles. Marshall (1998:2) identifies six basic assumptions that inform the restorative justice movement. First, ‘that crime has its origins in social conditions and relationships in the community’. Second, ‘that crime prevention is dependent on communities taking responsibility for remedying those conditions that cause crime’. Third, ‘that for crime to be addressed, victims, offenders and community must be involved’. Fourth, ‘that the justice system must be flexible and creative in its response to crime’. Fifth, ‘that partnership between justice agencies and community is important for addressing crimes’. And sixth, ‘that justice must incorporate multiple objectives of the parties involved in or affected by crime’.

The six assumptions captured above all reflect the dynamics of conflicts in the Niger Delta. I had argued in another forum (Onuoha 2005) that the conflicts in the Niger Delta are embedded in the relationships between the parties and that resolution or management would be based on the triangle of the government, the host communities and the oil companies. This coming together would be based on an atmosphere of mutual respect and recognition of the issues raised by each of the parties. This has not been the case up till this time. But I think that restorative justice encapsulates these values and may be useful in addressing these conflicts in the future.

Zehr (2002:38) draws attention to these assumptions using five different questions. The questions are: Who has been hurt? What are their needs? Whose obligations are these? Who has a stake in this situation? And, what is the appropriate process to involve stakeholders in an effort to put things right? Maybe, as part of this interrogation process we should ask, what does justice mean or look like for the oil-bearing communities and the oil companies? Or put in another way, how does the government of Nigeria conceive of justice at least within the context of oil production?

Restorative justice does not focus on crime or law that is breached. It focuses on harms that are done to individuals and communities. Restorative justice empowers both the victim and the offender to address these harms with a view to rebuilding relationships and healing communities. Restorative justice argues that the main aim of justice should be to restore the victim to his or her former state before that crime is committed. Though this is almost impossible, physically and materially, individuals could be assisted to transcend violations of crime (Zehr 2001).

In the Niger Delta, what would ‘transcend’ mean for the oil companies and the communities? To my mind it will involve an acknowledgement by the oil companies that through acts of omission or commission they have failed in their duty to their host communities. This acknowledgement will be followed by a commitment (obligation) to make it right and become good guests again of their communities. That is my understanding of restoring both the victim and the offender to their former state before the offending behaviour.

Restorative justice insists that the victim also needs rehabilitation. And restorative justice posits that justice systems need not be adversarial if the aim is to undo harms. But more importantly, restorative justice argues that the retributive criminal justice system merely looks at the symptoms of a deeper infection in the offender. So instead of simply punishing the offender, mechanisms should be put in place to address the root causes of offending (Zehr 1990 and 2002, Marshall 1998, Cayley 1998, Bazemore & Schiff 2001). The legislations on compensations have failed to take into account the social interaction process and the relationship that exists between the oil companies and the host communities. Litigations on compensation are part of the limited mindset of the criminal justice system. It is not intended to rebuild and restore but to humiliate and punish.

Since many advocates of restorative justice use a series of questions to clarify the understanding of the movement, I shall also employ the same methodology to illustrate the application of restorative justice principles to the issue of compensation in the Niger Delta. My main reason for this is that it will help us to focus our thinking especially on the issues that are raised.

Restorative justice has many models through which it could be applied to either conflict situations or offending behaviour. This creativity is lacking in the present court system. Every case goes through the judge in a court setting and probably with the same arguments for and against. The most prominent model of restorative justice is the ‘victim-offender mediation’ (Amstutz & Zehr 1998, Umbreit & Greenwood 2000). The name has undergone some evolution over time for reasons that may not be included here due to constraints of space. Suffice to say that it is the same thing as victim-offender conferencing. There is also the family group conferencing (Macrae & Zehr 2003). Finally we have the circle process (South St. Paul Restorative Justice Council 1996). There are many other models of restorative justice but the above three are basic. The selection of a model of restorative justice intervention is dependent on the kind of offence, the parties and the cultural context. As Zehr (2002:49) observed, ‘One of the goals of the process is to be culturally appropriate, and the form of the conference is supposed to be adapted to the needs and cultures of the victims and families involved.’ The employment of a model of restorative justice does not necessarily lead to a restorative outcome. In applying restorative justice to the Niger Delta, we must bear in mind that restorative justice is a process, a philosophy, a set of principles, a set of core values that leads to a restorative outcome.

The Restorative Justice Approach as opposed to the Criminal Justice Approach

Guiding questions

With the above brief overview, let us see how restorative justice can be applied to the Niger Delta, especially to the issues of compensation. The discussion here will be guided by the following questions: (1) Who is the offender? (2) Who is the victim? (3) Who is the community of concern/care? (4) What harm was done? (5) What can be done to rectify this harm? (6) What roles shall the offender, victim, and community play in rectifying this harm? (7) How can both the offender and the victim be empowered to play their roles? (8) How can the harm done to the victim be acknowledged and redressed? (9) How can the offender be rehabilitated? (10) How can the relationship be restored? (11) How can the underlying causes of the conflict between the oil companies and the host communities be addressed?

These eleven questions will be addressed using a restorative justice lens.

Offenders?

The offender in the context of the Niger Delta depends on who is asking and who is answering. The oil companies believe that their role is to obey the laws of the land. They believe that they have accomplished this by getting the proper license, paying compensation according to the law, using the government guideline for calculating compensation, and even developing their own guideline which they consider generous (Frynas 2000). They also accuse the government of shirking their responsibility to the people.⁶

On the other hand, the oil-bearing communities argue that the oil companies are the offender, that they have polluted their land, damaged their households and farms and denied them their sources of livelihood. And that they refuse to pay compensations, or when they reluctantly agree to pay it is usually not paid on time and is inadequate (Shell Petroleum Development Company 2003:10). They accuse the government of being co-conspirators with the oil companies for neglecting and marginalising them from their God-given resource (Delta Force, documentary by Channel 4 Dublin, Ireland, October 2001).

The government counters by accusing the communities of breaching the law on public peace and order. They also accuse the oil-bearing communities of not wanting the government to use revenues from oil to develop the entire nation. The government goes ahead to accuse the oil companies of breaking the promises which they make to the oil-producing communities (Governor Odili’s remarks after a visit by an ECCR⁷ delegation).

Harm done and victims affected?

In the scenario above, all the parties involved in the conflict in the Niger Delta are guilty. How then can restorative justice handle this apparent quagmire? This question is a very simple one to address within the restorative justice framework. Restorative justice will ask, what harm has been done? And who has been affected?

This will be addressed from three different perspectives since restorative justice is not in search of someone to punish.

From the perspective of the oil companies, their equipment is damaged, their operations disrupted and their lives endangered. And after investing so much money, they are not making profit for their stakeholders. They also claim that they have been meeting their obligation of paying taxes and rents to the government but that their operations are jeopardised.

The oil-bearing communities list their own harms. Their land has been taken away, and the remaining land is polluted so they cannot farm, their rivers are polluted so they cannot fish, and the air they breathe is polluted. They suffer noise and all sorts of inconveniences from oil production activities. They do not have any say as to how oil revenue is shared. They are considered a minority within the Nigerian nation even though they are the proverbial goose that lays the golden egg (Osaghae 1991, 1995, 1998b). In fact, if oil exploration continues, they are on the brink of extinction.

The government catalogues its own list of harms. They include the breach of public peace which is making them spend more money on security. They want to use the little resources available to distribute development projects equitably but the communities are disrupting the revenue flow and setting a bad precedent for other ethnic groups to follow. They accuse the communities of destabilising and overheating the polity. The government also accuses the oil companies of not being transparent in their transactions.⁸

As overwhelming as the whole catalogue of harms may seem, the interesting thing is that in the adversarial criminal justice system, these issues had not surfaced. Even when and where they do surface, the court will probably plead that that is not the charge. More often than not the result of the charge is a court order to pay compensation and the question is about what constitutes adequate compensation. The courts base their decisions on compensation claims on the principles of law of torts. Kodilinye (1982) defines tort as:

a civil wrong involving a breach of duty fixed by the law, such duty being owed to persons generally and its breach being redressible primarily by an action for damages. The essential aim of the law of torts is to compensate persons harmed by the wrongful conduct of others, and the substantive law of torts consists of the rules and principles which have been developed to determine when the law will and when it will not grant redress for damage suffered. Such damage takes several different forms, such as physical injury to persons, physical damage to property, injury to reputation and damage to economic interests. The law of torts requires every person not to cause harm to others in certain situations, and if harm is caused, the victim is entitled to sue the wrongdoer for damages by way of compensation.

The punishment in the case of tort is usually monetary compensation. But it is not as simple as it seems on the surface. The application of the law of torts is anchored around certain legal principles. In other words, before one could get compensated for a breach of the law of tort, negligence must be established. What this means is that the person claiming damage must prove that the other party acted negligently. This is usually difficult in an industry as technical and complex as the oil industry.

The second principle is nuisance. This means that for instance the complainant must prove that something like noise from oil operations is really causing harm. In an interview at Asa I was informed that on the day that the pipelines were laid to Ikot Abasi, ‘the noise was so much that many of our elderly people died’ (an informant). Let us assume for instance that the people of Asa decide to go to court to seek redress for this noise, their chances of success are as good as of failure.

Another principle is that of strict liability. In this instance, the defendant is held responsible for his/her activities whether the action was negligent or not. The next principle is that of statute limitation, which simply means a law that prevents someone from suing after a certain period of time. For instance, the NNPC Act of 1977 bars any action against the NNPC if the act committed is more than one year old. There is also the issue of admissibility of scientific evidence. It costs money and time to conduct scientific researches on some of the issues in the Niger Delta. Moreover, some of the effects only manifest after some time.

Another principle or rule is that of a misjoinder of parties and causes of action. For a claim to be successful, the law stipulates those to be sued and the kind of case. There is also the issue of locus standi. That is another way of determining whether the complainant has a direct interest in the case or whether the case really affected the complainant. Evidence rules and the quantity of compensation awards are some other impediments that may inhibit a successful claim.

From the analysis of the harms and the impediments above, one thing that is clear is that most of the harms are fall-outs or after-effects of other harms. For instance, when oil spills occur and the affected communities are not compensated, they protest, thereby hampering oil operations, breaching public peace etc. So the first harm to be addressed is that of the communities, because its ripple effects reverberate across all other spectrums.

Rectifying the harm?

The fifth question is the real meat of this discourse. The criminal justice system insists that to rectify the harm, compensation must be paid. But before it is paid the complainant must prove that the damage is from oil operations. Second, to prove this requires all kinds of professionals. In a particular case cited in Frynas (2000:201), the community required the services of a juju worship specialist to prove that the oil company really damaged their shrine.

Paying compensation does not solve the problem, however. If the compensation claim is successful, the oil company complains that they are spending too much money on their business. If it is not, the community goes home to prepare how to sabotage oil company operations. And in most cases, during the hearing which generally lasts a very long time, the relationship between the communities and the oil companies deteriorates badly. The government is now left to manage the responses and outcomes of this unhealthy relationship.

Now let us see how restorative justice principles could have been applied to rectify the situation. First, restorative justice insists that the offender acknowledges that harm has been done to the victim by the offender. In the criminal justice system, this was not done. It is usually the lawyers and the judge that ascertain that harm has been done to the victim. The implication of this is that the offender does not feel any need to be part of restoring the victim. More importantly, the offender lives in denial of the harm and may even try to rationalise or justify it. In many cases oil company lawyers try to manoeuvre their ways out of this compensation claims litigation.

Second, outsiders (lawyers) would not have been brought in to argue the case in an adversarial atmosphere. In the legal profession the winning or losing of cases is regarded as very important. If you do not win your case, you are not a good lawyer. This is more so in this instance where the lawyers are in the paid employment of the oil companies. The lawyers representing the oil companies insist that the oil companies have done no wrong and therefore should not pay any compensation, while the lawyers representing the communities argue the contrary insisting that harms have been done through oil operations. This has become meaningless and in conflict resolution, this is known as debating positions instead of taking interests or needs into account. These lawyers are appraised annually by the number of cases they win or lose. A similar situation applies to the oil company workers. For instance, if every time an oil company worker makes a recommendation for non-payment of compensation and a judge turns it down, it calls the competence of the worker into question.

This is not the situation with a restorative justice approach, where the offender, in this case the oil company, acknowledges the harm and becomes part of the process of repairing the harm. The overriding aim is not to declare winners and losers. This restorative justice approach incorporates such values as participation, inclusiveness, respect and empowerment. In fact, respondents in this project specifically mentioned lack of respect for members of the communities as one of the reasons that may account for the disrepair of the system.⁹

Roles in rectifying harm?

A follow-up question is: how do you make an offender acknowledge that harm has been done? Ross (1996:40-45) suggests story-telling. This is unlike the criminal justice system that does not allow victims and offenders to tell their stories. Even when they are allowed to tell their stories, it is not with an intention of acknowledging the harm but to defend, justify and rationalise the offending behaviour.

Our sixth question has already been answered in discussing question five. The role of the offender would have been two-fold. First is to acknowledge that harm has been done. Second is to suggest how that harm could be repaired. The role of the victim would be to either agree or modify what should be done to repair the harm. In this case the question will be whether the community can in all fairness decide what to do to rectify the harm. My reply would be yes and no. Yes if the relationship has existed over time, and no if trust and confidence is broken. But that is where the role of the government as community of concern/care would be crucial. This was also what Marshall (1998) meant when he mentioned the role of statutory agencies in the application of restorative justice.

One may argue that this is the gap that the judges, non-governmental organisations (NGOs) and lawyers are filling. But the point is that the offenders, in this case the oil companies, are using their enormous resources to leverage the justice system in their favour through the hiring of good lawyers and the commissioning of superb scientific evidence.¹⁰ But in the restorative justice paradigm this will not be so. Not only that, the communities will deliberately be empowered to actively participate in the process. That re-humanises them and imposes on them the responsibility to make things right again.

The most critical strategy here is to ensure that power is balanced between the victim and offender. But in the retributive justice system this is not the case. The system portrays the parties as winners/losers. This minimises the impact of the experiences of the parties. Restorative justice recognises the fact that the offender may also have been a victim. For instance, in negotiating the oil license, the oil company may have felt unfairly treated by the government. The Pipelines Act of 1956 and Oil Licenses regulation of 1959, indeed, complicate issues for the oil companies. Ross (1996) alludes to this cycle of abuse on an individual level. What restorative justice does is to recognise this chain of abuse with a view to empowering the offender to break it. And this is done through support and not condemnation.

Acknowledging and redressing harm?

The number eight question is in two parts. First is how harms can be acknowledged. From my findings, many oil companies do not agree that by their behaviour they have harmed the communities. Many are in denial either to save face or to reinforce the arguments of their defence attorneys. On the other hand, the acknowledgement of harm in the restorative justice paradigm is a voluntary part of the process of doing justice. This is done though a trained and skilled facilitator by asking a very simple question: What will justice mean in the present instance? In answering this question let us also be mindful that there is a need for a kind of consensus on the conception of justice. If one of the parties conceives justice as being the provisions of the law, then the application of restorative justice will make very little difference.

Harms can be addressed in several ways. Once harm is acknowledged, the second thing is how to address it. If the offender (the oil company) acknowledges that harm has been done, the next question is how does the company redress the harm? In the restorative justice process, this is still left to the offender to decide, but with support from the community of concern/care. Marshall (1998) foresees a role for statutory agencies in this instance. This is because if the initiative is coming from the offender, it will no longer seem as a punishment imposed from outside. Therefore implementation will not be difficult.

Compare this with my findings which indicate that oil companies do all in their power to deny that harm has been done. I am sure that if a less adversarial atmosphere is created, the oil companies and communities may be able to find a common ground for rebuilding their relationships. But because their relationship is ‘managed by experts’ (euphemism for ‘imposed’), it has met with little success. My respondents told me that many oil companies and communities merely go through the motions of these court cases without learning anything. In fact, one respondent said that the parties go through the traditional court system for lack of a better alternative. The timeframe of the cases also calls into question their efficacy and usefulness. The cases take a long time to resolve.

Restoring relationships?

The rebuilding of relationships between the offender and victim is a duty for all. However, the offender must again agree that something is wrong and show the willingness to participate in the process. In restorative justice practice, the offender is supposed to make inputs into the system. The role of statutory agencies is to provide an enabling environment for the process and to ensure reconciliation at the end. This could also be done by ensuring that the offender is not stigmatised.

Restoration of relationships is not a legislated affair. In the traditional justice system, what happens is that reconciliation is dependent on outside imposition. This is mostly subject to the provisions of the law. But in restorative justice, restoring relationships involves some reconciliation rituals. This is manifested in the behaviour of the offender. It also involves the ability of the offender to engage the victim in a process of healing the harm. A critical factor which the traditional justice system tends to lose sight of is that doing justice is both a collective endeavour and a process (Zehr 2002).

Addressing underlying causes?

Finally, how would restorative justice address the underlying causes of the offending behaviour? One of the first steps is to remove the offence from the offender. In the Niger Delta, the oil companies are seen as devils incarnate. If the offender and victim are made to realise, understand and appreciate that the offence is external to their intrinsic good nature, but embedded in their interaction process, then we have started the process. Second, by allowing the process of open communication between victim and offender the underlying causes could surface. This process is not only purgative but affirming. A recurring complaint of the communities is that no one listens to them. A mechanism of prevention should also be put in place to address issues like this. Education is also a key process of addressing the underlying causes. Trauma healing is very important to uncover underlying causes and addressing them.

Incorporating restorative justice mechanisms?

The next issue is how can these restorative justice mechanisms be incorporated into the present traditional court system? Zehr, a pioneer in this field, has agonised over the co-optation of restorative justice into the present justice system.¹¹ His argument is that before long, it would have been polluted just like most other reforms of the justice system.

Zehr’s fears are not unfounded. This is because the court-mandated mediation process, which was seen as redemptive of the adversarial judicial system has suffered the same. To my mind, since the NGOs have been in the forefront of advocating a better deal for the people of the Niger Delta, a new window of opportunity has been opened for a restorative justice lens. One of the enduring strengths of the restorative justice movement is to learn and adapt from other areas. A good place to test this might be the Niger Delta.

Conclusion

Restorative justice principles and their application is not a kind of open sesame that fixes all problems. In this paper I have argued that it provides an alternative way of addressing some of the issues affecting the relationship between the oil companies and the host communities. I recommended restorative justice because it provides a mechanism for addressing the increasing intractability of the conflicts in the Niger Delta.

It is important to note, however, that the mere application of restorative justice principles does not necessarily lead to a restorative outcome. For outcomes that are restorative, there must be a pool of committed facilitators, advocates and restorative justice enthusiasts. The communities will also need to be made aware of what restorative justice represents.

For every intervention, we must also be ready with tools to deal with spoilers. One of the likely spoilers in the introduction and subsequent implementation of restorative justice in the Niger Delta will be the lawyers themselves. It is therefore important to design methodologies of carrying them along. This is important because many lawyers have made money, name and fame from engaging in court room drama, especially as it relates to the issues in the Niger Delta.

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Notes

1. Section 419 of the Criminal Code of Nigeria, has to do with sanctions pertaining to ‘obtaining under false pretence’. In Nigeria ‘political 419’ means political deceit aimed at cheating the people.
2. For a comprehensive report of the response of the people of the Niger Delta to the 1999 constitution, see the report titled ‘The Emperor has No Clothes’: Proceedings of the Conference on the Peoples of the Niger Delta and the 1999 Constitution. Port Harcourt: Environmental Rights Action, 2000.
3. Land use Act 1978, section 1.
4. The Petroleum Act 1969, section 12 (1).
5. ‘Lion crops’ are food and economic crops such as yams, water yams and coco yams cultivated mainly by the men.
6. They do not say this openly for fear of government reprisals, but in several interviews and interventions oil company staff restated this position.
7. The Ecumenical Council on Corporate Responsibility is a group of SPDC share-holders based in London. I was a member of the delegation that paid a courtesy visit to Governor Peter Odili of Rivers State in July 2002. His remarks were broadcast the following day on the state radio.
8. The Federal House of Representatives of Nigeria have conducted at least four different probes of oil company transactions since 1999, and they all came out with a verdict of ‘guilty’.
9. I interviewed Oronto Douglas, deputy director of Environmental Rights Action/Friends of the Earth Nigeria for this project in 2002, and he restated this position.
10. Maire Dugan has discussed the role of power inequality in conflicts, see <www.intractability.org>.
11. Howard Zehr expressed these views in a forum we had in 2003 at the Little Grill Restaurant in Harrisonburg, Virginia, USA.