Embedded institutional crime – the case of the Niger Delta

An economic and political elite class uphold an international order in which crime is structurally embedded, causing decades of struggle for local communities forced to confront the Delta’s harsh environmental conditions.

Phoebe Holmes holds a Masters in Global Development from University of Leeds, and is interested in the political economy of natural resource management, indigenous rights and economic crime. She has worked with INGO WaterAid in researching access to water, sanitation and hygiene for marginalised communities across the global South.

The decision of a Dutch court, who recently ordered Shell’s Nigerian subsidiary to compensate local farmers over recurring oil leaks, has been welcomed by many, having even invoked “tears of joy” to some. While the outcome of this hearing is certainly better than its immediate alternative, celebration is premature. The strength of this case largely lies in its potential to kick-start a cumulative prosecution wave that may eventually mean oil conglomerates are meaningfully held to account.

Putting pressure on governments and international bodies to economically sanction harmful activity in the Niger Delta has proven to be insubstantial in the past. Under neoliberal capitalism, harmful activity is legitimised and reproduced through these practices: if community remuneration is to become commonplace in the oil sector, such expenses will merely become a cost-of-business in an organisational balance sheet. Implicit in the existence of such regulation is acceptance of the transactions that occur, reinforcing the ideology that environmental and social wellbeing has a price tag. A reconceptualisation of crime to encompass the actions of an elite class, and a dismantling of neoliberal ideals, is required to open up the possibility of significant change in the region.

The intricate ecosystem of the Niger Delta is home to countless species of flora and fauna, and is fundamental to the culture, identity and livelihoods of the local Ogoni people. Their way of life has been agonised over the decades, with many communities displaced from ancestral territories, left to survive on land and waters degraded beyond rejuvenation and surrounded by conflict and unrest. Repeated spills have been the source of years of tension between transnational corporations and local communities, a struggle marked by extreme power asymmetries and inexorable ideological incompatibilities.

Today, corporate and institutional actors hold distinguished yet interconnected roles that ultimately complement one another to uphold an international economic order in which crime is embedded. In post-independence Nigeria, unequal power relations and a subordination of the poor majority’s needs to that of capital accumulation were enhanced through globalisation and neoliberalism, aiding corrupt practices and shaping the neo-colonial climate. Internationally, we see that capitalism in its most unsparing form has laid fertile ground for the proliferation of economic crime. However, it must also be understood that to see the dominant economic system per se as the problem is a simplification: we must delve further into the roles of particular powerful actors that represent, enforce and drive the reproduction of neoliberal capitalism.

In considering the above, the corporate actor is perhaps the most obviously befitting – many engaging extensively in lobbying – insulating themselves by having input into regulatory frameworks or working to remove regulation altogether (a painless task in today’s intensely pro-market climate). In Nigeria, oil syndicates consistently act above the law, employing aggressive attempts to block protective legislation for communities. Exact figures of oil spills in the region vary, but it can be safely understood that recent decades have seen millions of barrels of oil illegally leaked into the natural systems of the Niger Delta. Shell Petroleum’s own records depict an annual company average of 221 spills in its area of operation since 1989 – of course, the true figure is likely to be far higher.

Despite these admittances, Shell maintain that sabotage by local vandalists is the primary cause of spillages. While the recent result of the 13-year dispute between the multimillion-dollar oil conglomerate and four local farmers goes some way to shifting mainstream narratives of who is to blame, surface wins are simply not enough to generate sustainable change. Shell and their counterparts must overtly accept responsibility for horrors that occur as a result of their quests for profit, and such acknowledgements need be paired with actionable plans of regeneration. This is the very least that should be done to begin rectifying the unquantifiable level of social and ecological harm that has occurred across the past several decades.

Despite publically declaring their commitment to open and honest accounting, Shell and British Petroleum (BP) have lobbied extensively against this, having successfully overturned rules relating to compliance with revenue spending transparency in the industry. The well-reported execution of Ken SaroWiwa goes to show the brutal reality of the power that these economic actors have in suppressing opposition. What is more shocking, though, is the audacity of criminal corporate players in framing themselves as community saviours, human rights crusaders, or pioneers in sustainability.

Political actors too play a fundamental role in the realisation of economic crime in the Delta and beyond, with an estimated $500bn+ in oil revenues having been looted by Nigerian political leaders since independence, who use their power and access to public office for social, economic, or political private gain. Nigeria has become an infamous example of this, with the creation of a class of politically elite so-called “godfathers” who dictate from the head of substantial patronage networks. At the most fundamental level, the state and the ruling capitalist class collectively harness their institutional power to reproduce social relations and uphold the status quo. In Nigeria, governmental elites engage in the suppression of tribal communities, colluding with oil companies and the military, united by a desire of incessant capitalist expansion and personal riches.

Harms produced, then, are not due to erroneous conduct of either party, but rather central to their very essence and purpose, driven by a search for profit and growth. By virtue of neoliberal logic, the far-away degradation of the Niger Delta’s immense ecosystem can be signed off as an inevitable by-product of profit and accumulation by Shell’s directors in the West. Local governments and international organisations are indivisible from corporates in these interactions, since they actively maintain the global economic order through the elevation of neoliberal ideology, market creation, and portraying corporate prosperity as serving the national interest.

Powerful actors’ ability to influence or dictate regulation is paramount to the proliferation of economic crime – many have commented on the “revolving door” between regulator and regulated. Yet, this regulator/regulated dichotomy overlooks the crucial fact that regulatory bodies essentially exist to serve the same purposes as states and corporations: the conflict-free reproduction of a capitalist world order. The majority of international regulatory treaties are formed in rooms dominated by voices representing the interests of the Global North, perpetuating unequal power dynamics and leading to political practices increasingly recognised as environmentally racist. In this sense, the law often acts as the ultimate protector of capital accumulation, and a fundamental driver of criminal societal harm.

The majority of existing efforts to curtail eco-crime essentially (especially solutions pushed by powerful neoliberal winners) seek a “greener capitalism”, aspiring to regulate inherently environmentally damaging practices. These policies, not dissimilar to remediation settlements like the one mentioned at the start of this piece, ultimately become harm-producing, insofar as they legitimise the marketisation of socially damaging practices.  Under these conditions, governance success is measured by a mere reduction, rather than elimination, of harm. Regulatory frameworks in a capitalist system frequently subordinate the needs of the poor majority to the interests of the economically powerful, whose unyielding ability to subject society to criminal harm often goes legally unchallenged. This tendency is blatantly evidenced in Shell’s most recent Sustainability Report, where it is claimed that if avoiding adverse social and environmental outcomes is “not possible”, strategies are employed to minimise impacts.

When it comes to prosecution, the tale endures. Criminal justice systems “are inevitably manned, controlled and operated by, and in the interest of, members of the ruling class who have a vested and entrenched interest in sustaining and even extending corrupt practices” (Osoba, 2007). They are built with an inherent propensity to evade the prosecution of the powerful. There are some exceptions to this general tendency: on occasion, it is necessary for justice systems to engage in symbolic acts to display their functioning. In these instances, regulatory bodies will identify and punish corporate violation, subordinating one entity’s immediate needs to meet the long-term demands of capital en masse, whilst also assisting in the legitimisation of the justice system as a whole (Tombs and Whyte, 2010).

In the Niger Delta, tougher regulations, penalties and sanctions will be inadequate in materialising positive outcomes for local people. This is proven by the extensive amount of regulatory treaties applicable to the region, which have been limited in creating meaningful change for communities. The act of regulating an inherently damaging practice underscores the deep-rooted problem posed by the current politico-economic paradigm. Normative economic reform will simply reinvent the way in which the powerful generate harm. Paradigmatically-complicit attempts to restore the natural systems of the Delta are themselves swimming against a tide of prevailing neoliberal ideologies that will ultimately undermine efforts to “green” the extractive industry.

It remains that institutional actors’ hegemonic position advances the propagation of economic crime. Maintenance of the neoliberal economic order is crime-enabling, since peaceful social reproduction serves vested interests of a powerful minority class, who fail to operate according to society’s wider needs. In Nigeria’s Niger Delta, such conditions have resulted in an enduring struggle by local communities to obtain a fair, comfortable way of life.

Contact

Phoebe Holmes

Email: phoebeyasmin@icloud.com

Photographs courtesy of author and Pixabay

Is Nothing Sacred: The Creation of a Criminal Other

How cultural genocide has led to the Australian indigenous population to be viewed as a ‘criminal other’.

Andy Diaper is an independent social researcher. He works with vulnerable and excluded people within the community. His main research interests are groups that are excluded, harmed, and criminalised, including indigenous populations.

On 24th May 2020, two ancient rock shelters in the Juukan Gorge in the Pilbara region of Western Australia were destroyed by blasting. The Anglo-Australian multinational mining corporation Rio Tinto carried out the blasting work.  This was to increase the size of their open-cut iron ore mine named Brockman 4. These shelters were sacred sites to the indigenous population and of great archaeological/spiritual importance. This was the only site in Australia  to show continual human occupation stretching back forty-six thousand years.

Rio Tinto were fully aware of both the historical (they had commissioned an archaeological survey of the site) and the spiritual importance. It was not the only option for the expansion, they had investigated four options: three of which would not have damaged the rock shelters. The reason this option was chosen was it would yield an extra eight million tonnes of high-grade iron ore with a net value of seventy-five million pounds.

The traditional owners of the area the Poutu Kunti Kurrama and Pinikura People (PKKP) only learned of the blasting nine days before the detonation. Lawyers acting on behalf of the PKKP contacted the Federal Indigenous Affairs minister to intervene on heritage grounds. The minister’s office never replied to the lawyers. It should be made clear that Rio Tinto were acting under  section 18 of the Western Australia Aboriginal Heritage Act 1972.

Was this act a singular event? Or a misunderstanding? Rio Tinto has a very poor record in its dealings with the environment and indigenous populations. This event can be viewed as a continuation of the cultural genocide of the indigenous people of Australia.

This cultural genocide is not carried out in an overt way. There is no single perpetrator creating death camps, destroying cultural symbols and sites in the name of some form of purity. This could be called the ‘banality of genocide’. That is there is no single perpetrator, no monstrous ‘other’. This is genocide by a thousand cuts, this is not just a simple metaphor. It was borne out of colonialism with its inherent racism and profiteering which has been reproduced by governments over time. With the ever-increasing move to neoliberal politics this has created the space for other actors to exploit the continuing destruction of the indigenous population to meet their own wants. It can be argued that the neoliberal project is harmful to all vulnerable and disempowered populations. Any concentration on the meritocratic path holds an expectation for the individual to improve their position within the social structure. If however, you are denied the means to achieve this, it can only lead to aspirational failure, despair, and frustration. In the case of the indigenous population this is particularly toxic. With the ongoing destruction of their culture, they become a people with no ‘roots’ or ‘culture’ within what is their own country. In effect a diaspora within their own country.

Genocidal acts against the indigenous population began with colonisation: both physical and cultural. They lost all rights to their land when it was declared ‘Terra Nullis’, as this legitimised the seizure of the land. The indigenous population was decimated by diseases brought in by the colonisers, to which they had no natural immunity. Also, there were deliberate acts of slaughter. These state-sanctioned massacres were not just committed in the early years of colonisation but continued up to the late1920’s.

It was not until 1967 that the Australian government recognised the indigenous population as individualised people. However, even with this recognition it has not eliminated the discrimination, inequality and other harms being perpetrated.

Examples of these harms are 3.1 percent of the Australian population is indigenous, however, 19.3 percent live in poverty compared to 12.4 percent of other Australians. Approximately 20 percent living in non-rural areas live in overcrowded accommodation. The combination of poor housing and poverty impacts on health and mortality outcomes which are also poorer and higher than other Australians. Youth suicide between the ages of five and seventeen is five times higher than non-indigenous people. There is an overrepresentation in the Australian Child Protection system of indigenous children. It is argued that this system supports thousands of jobs from various professions. For example, lawyers, social workers, medical professionals and psychologists, these groups benefit financially from ‘indigenous disadvantage’ A causal reason for this overrepresentation is poverty and systemic racism. It has been likened to a second ‘stolen generation’.

 The indigenous population is also heavily overrepresented in the criminal justice system. Indigenous people are 12.5 times more likely to be in prison as opposed to non-indigenous people. Indigenous females are 21.2 times more likely to be in prison than non-indigenous women. This imprisonment rate is also higher than the rate for non-indigenous men. This overrepresentation has been recognised as symptomatic of the historical and current harms to this population. This also applies to the higher death rate in custody.

The harms perpetrated on the indigenous population, colonisation, post-colonial actions, institutional racism, and an increasing turn to neoliberal politics, is a toxic mix. By its nature neoliberal politics opens the ‘space’ for the private sector to run roughshod over the weak and vulnerable. The belief that it is the responsibility of individuals – not the state – to improve lives, becomes a potential breeding ground for the perpetuation and increase of racism in the wider public. The overrepresentation of the indigenous population in the justice and ‘social care’ system and entrenched racism has led to a misrecognition. The indigenous people are viewed as the architects of their own plight. They are viewed as a criminal ‘other’ and not worthy of help and protection.

On January 26th, each year, the Australian nation celebrate ‘Australia Day’. This marks the raising of the union flag in 1788, some two hundred and thirty-three years ago, beginning the colonisation of Australia. For the indigenous population it is not a day of celebration but a day of mourning. A visceral reminder of the divisiveness, harms and abuses perpetrated upon them historically and continuing  in the present. These harms will continue until those in positions of power move away from tokenism and introduce and strengthen equal and human rights and the protection of indigenous lands.

The article will conclude back in the rock shelters at Juukan gorge, more than seven thousand archaeological artifacts were discovered. One of these was a fragment  of a belt made from plaited human hair. After scientific analysis it was found to be four thousand years old. The DNA results revealed that the owner of the hair was a direct descendant of the PKKP indigenous people still inhabiting this region today.

Contact

Andy Diaper, Independent Researcher.

Email: andy.diaper@btinternet.com

Twitter: @andy_diaper  

Author image courtesy of Melissa Diaper.

Cave art image copyright free.

Covid and the Penal System

This review reveals some of the ‘behind the scenes’ issues dealt with by the English courts during the Covid-19 pandemic period.

Susanna Menis is a Lecturer in Law at Birkbeck London University, School of Law. She was a member of the Independent Monitoring Boards of Prisons for many years.

News concerning sentencing in the UK during the pandemic period are mixed in tone and expectation. Typical to the media’s lack of restraint in informing the public, we can read headlines such as ‘Criminals handed coronavirus discounts as sentences shortened because of harsh new prison conditions’; and ‘Paedophiles, thugs and drugs dealers have sentences cut because coronavirus makes prisons too harsh’. Other concerns have also been reported, for example that ‘prisoners locked up for 23 hours a day due to Covid rules is dangerous’. The aim of this blog entry is to reveal some of the ‘behind the scenes’ issues dealt with by the English courts during this pandemic period. Some of the prison related concerns that the judiciary came across have been sentencing, prison conditions, release on licence, extradition and early discharge. The following will review the extent to which Covid-19 has affected some of these circumstances.

One of the first stories released by the media at the end of March 2020 was the governmental instruction for early discharge from prison. The conditions for such a release were that the prisoner was of low risk and within two months of their original release date. In the first application for early release that we have a record (6 April 2020), the Queen’s Bench Division made an interesting observation (Chelsea Football Club Ltd 2020). The Court was concerned as to whether the early release scheme might undermine the rule of law. The answer was ‘yes’ in principle, but ‘no’ in practice. It was considered that the scheme was part of a bigger picture of protecting public interests by reducing the burden on the NHS in case of a Covid-19 outbreak in prison. In hindsight, most prisons were able to limit the spread of the Covid-19 first wave, and this was the reason why the scheme was very quickly shelved.

The court also touched on a concern which came up in several forthcoming cases, that is, the balance between more restricted prison conditions and the proportionality of the sentence. It was this that has mainly caught media attention: imposing the lowest threshold of a sentence on individuals which in normal circumstances might not have escaped imprisonment or longer sentences so easily. The restricted prison regimes used to control the spread of the virus meant that prisoners were confined in their cells for longer hours and family visits were not permitted; although similar or worse circumstances were faced by the public, the courts took the pandemic as a factor in determining the suitability of a prison sentence (Manning 2020) – would imprisonment during this period inevitably restrict even more the level of privation of the individual? And should this be taken into consideration?

The courts believed that they should (Manning 2020; Smith 2020; Ranshawa 2020; Khan 2020; Davey 2020); although not without challenge by the Solicitor General (Manning 2020; Gaves 2020; Mohamed 2020; Bastri 2020). Indeed, despite decades of overcrowding, questionable conditions, and doubtful rehabilitative impact on low risk offenders, it is only with the pandemic – ironically, given the safer environment during the first Covid-19 wave – that the courts felt it acceptable to waive a prison sentence and replace it with, for example, a suspended sentence accompanied by any of the range of rehabilitation, prevention and curfew orders. Another eyebrow-raising observation made by the Courts was the rational used to justify a suspended sentence on an offender who ‘posed a high risk to a “known child”’ (Manning 2020); that is, that the curfew imposed was further enhanced by the lockdown forced by the government. Of course, having experienced several lockdowns since, it is clear that the inhibition of this person’s movement would have been but little affected by the lockdown.        

It seems that the courts have started to back down from this reasoning, perhaps because the state of emergency had become the norm by November 2020. However, before this shift took place in England, the Appeal Court in Scotland made its stance clear earlier in June 2020 (HM Advocate, 2020). Accordingly, in the context of the pandemic, coughing in jest justified a longer prison sentence. This court response to the approach taken in England was first, that opting for a suspended sentence instead, and ‘take account of the emergency as a reason for discounting – would only serve to discriminate against those who might have been given a short term sentence before lockdown’. Second, the court thought that by now, prisons had found ways to mitigate the conditions dictated by the pandemic. For example, they were told that Inverness prison was about to implement a ‘virtual’ family visits scheme. It is difficult to tell whether this case had any effect on the English courts as it was only cited once and not in relation to the pointers mentioned above. Nevertheless, since November 2020, the English courts have showed greater reluctance in allowing the initially applied lax approach to sentencing (Strong 2020; Gaves 2020; Mohamed 2020). 

Although apparently less newsworthy but perhaps most significant, the last two questions faced by the courts during this period concerned extradition and immigration bail. The travel restrictions meant that several extraditions had to be postponed. The issue at hand was not so much the longer detention period that followed, but rather what was considered to be an unlawful detention – habeas corpus. The courts clarified that there was no case to answer. The original detention was set by a judge following lawful legal procedures; this was the case also for the order authorising the postponement of the extradition term (Cosar 2020; Verde 2020). Referring to an EU decision on that matter, it was explained by the court that postponing these extraditions was justified on a serious humanitarian reason and that this was a situation beyond states’ control (EU Council Decision 2002/584/JHA Article 23).

Different has been the case for immigration bail. Individuals granted bail from immigration detention to an approved premise had their rights mostly compromised during this period. The lockdowns and social distancing experienced meant that approved premises have struggled to meet the increasing demands– particularly detrimental in cases of immigration. Here, the Home Secretary for the Home Department was delaying removals due to lack of suitable accommodation, leaving people in detention for longer than justifiable. Applications for interim relief to urge action, were framed around the violation of the Hardial Singh principles concerning lawful detention in the context of immigration. The Courts recognised the impact of COVID-19 on these situations stating that it ‘made an already difficult task virtually impossible’ (Mahboubian, 2020); however, it was also stated that the need to avoid false imprisonment was not mitigated by the pandemic (Merca 2020; Ko 2020; CN 2020; Diriye 2020; Tutaj 2020; Mahboubian 2020).

Almost reaching a full year of life under pandemic conditions, initial media focus on punishment and justice is dwindling. Unsurprisingly, attention is now shifted towards crimes committed in the context of Covid-19. Still, in the background, the criminal justice system is facing a real struggle in balancing public interests against individual liberties.

Case reference

Chelsea Football Club Ltd v Nichols [2020] EWHC 827 (QB)

R. v Manning (Christopher) [2020] EWCA Crim 592

R. v Peter James Smith [2020] EWCA Crim 1014

R. v Randhawa [2020] EWCA Crim 1071

 R. v Khan [2020] EWCA Crim 1617

R. v Davey  [2020] EWCA Crim 1448 

R. v Gaves [2020] EWCA Crim 1728

R. v Mohamed [2020] WCA Crim 1745

R. v Basri [2020] EWCA Crim 1218

HM Advocate v Lindsay (Iain) [2020] HCJAC 26

R. v Strong [2020] EWCA Crim 1712

Cosar v Governor of HMP Wandsworth [2020] EWHC 1142

Verde v Governor of Wandsworth Prison [2020] EWHC 1219

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289 

R. (on the application of Merca) v Secretary of State for the Home Department [2020] EWHC 1479

R. (on the application of Ko) v Secretary of State for the Home Department [2020] EWHC 2678

R. (on the application of CN) v Secretary of State for the Home Department [2020] 10 WLUK 85

R. (on the application of Diriye) v Secretary of State for the Home Department [2020] EWHC 3033

R. (on the application of Tutaj) v Secretary of State for the Home Department [2020] EWHC 3579

R. (on the application of Mahboubian) v Secretary of State for the Home Department [2020] EWHC 3289

Susanna Menis, School of Law, Birkbeck, University of London, Malet Street, London WC1E 7HX

Email: s.menis@bbk.ac.uk

Images: Courtesy of author