Business as usual? Damage limitation? Crisis management? To be able to listen in to the conversations that happened that day between the group managing director and his investor relations team, and then between them and the major shareholders, the heads of the pension funds, would be to see inside the collective mind of desk killers. To be able to see the minutes of meetings that day on the top floor of the Shell Centre would be to momentarily glimpse the psyche of a vast corporation. People acting without any understanding of how others, 3,000 miles away, had been traumatised by their company’s actions. As the share price was threatened across the world, the only thoughts in this building, ‘the ornate offices on the banks of the Thames’ as Ken had put it, would have been how to deal with this crisis, how to make this nightmare go away, how to protect Shell’s interests. Would some of the highest-paid legal minds in the country have already been working on the question of Shell’s potential liabilities and exposure? Would emergency meetings already have been set up by the external relations team at Shell and J. Walter Thompson, their PR specialists? What line should they take in public? ‘Deeply regret’ … ‘tragic outcome’ … ‘company’s appeal for clemency’ … ‘sad chapter’ … ‘turn a new page’ … ‘lessons learned’? Would the legal team have checked all of this, making sure there was no wording that could be construed as constituting an ‘apology’, thus establishing some link of responsibility to what had happened in Port Harcourt?
*
‘It is not our business to try and influence a trial … Our business is to continue the business of petroleum.’2fn2
10
The Invisible Corporation
Part One: 25 St John’s Lane, Thursday 15 April 2004
Although we cannot be sure about the events which took place in the Shell Centre on the day of the executions in Port Harcourt, we can be quite certain of what occurred on Thursday 15 April 2004, at 25 St John’s Lane in the London offices of the solicitors Leigh Day. We know that on that day, Sir Mark Moody-Stuart (who by this time had left Shell, been knighted for his services to the oil industry, and was working as a non-executive director at the mining corporation Anglo-American) – arrived at these Clerkenwell offices and started giving his deposition as evidence in the case Wiwa v. Royal Dutch Petroleum Company and Shell Transport and Trading Company (Case 96 Civ. 8386 – KMW, in the United States District Court for the Southern District of New York). Judith Chomsky (of Ratner, DiCaprio & Chomsky) represented the plaintiffs, Tom Rafferty (of Cravath, Swaine & Moore) represented Shell, the defendants.
What I find remarkable is the fact that this deposition happened at all. That nine years after the executions, and three years after he left the company, the former head of Shell was compelled to spend a day in front of lawyers revisiting every detail of the events that occurred in 1995. Despite the vast amount of money that Shell paid its lawyers at the time, despite the supposedly ‘world class’ PR that the corporation employed (PR that seems to pride itself on ‘making difficult issues go away’), Moody-Stuart was still required to appear at these solicitors’ offices and spend a whole day answering questions.
We learn more from this deposition about Shell’s direct communication with General Abacha during the trial of Ken Saro-Wiwa:
MS CHOMSKY [representing the plaintiff, Wiwa]:
Q: Do you recall receiving information from Brian Anderson [head of Shell Nigeria] that, based on his conversations with General Abacha, he concluded that Ken Saro-Wiwa would be found guilty?
THE WITNESS [Mark Moody-Stuart]:
A: ‘No’ is the answer, but I do recall occasions when Abacha expressed to Brian Anderson, from my memory, extreme irritation with the international outcry of Saro-Wiwa, etcetera. So I was certainly aware that General Abacha was aware of the progress of the trial of Saro-Wiwa, but not through any indication that he gave to Brian, or Brian gave to me, that he concluded that he would be found guilty. Not that I can recall.
Moody-Stuart attempts to explain the bizarre position Shell took in relation to Saro-Wiwa’s trial. Firstly he states that they weren’t able to judge the fairness of the trial because they didn’t have the expertise to do so:
A: … any criticism of political processes, I think, or involvement in politics, would certainly have been very strongly part of the, sort of, Shell DNA; that one didn’t do it. There were two strong elements of them. The business principles were complex documents, but the common bits that people got – if you said to them, ‘What are the Shell business principles?’ people would say, ‘We don’t bribe people and we don’t get involved in politics.’ Within that framework, there would be scope for expressing statements, such as everyone has the right to a fair trial, but that is not a criticism of the trial that was going on … what would surprise me if there had been a statement suggesting that the trial was not fair, because I don’t think we were competent to judge that.
Then Moody-Stuart goes on to detail how the Shell legal team worked – but how, in this case, they were never asked to examine the Saro-Wiwa trial:
Q: Is there a legal staff within the service companies?
A: Yes.
Q: Within which service company is that legal staff? At this period in time, which is late 1995?
A: … in London and The Hague. These are conjoined organisations with a single head. We spent some time in each. At that time, I think the head would have been Jack Schraven, but I’m not absolutely certain of that…
Q: Was there any consideration given by the Committee of Managing Directors of asking the holding company legal staff to analyse the case against Mr Saro-Wiwa and his co-defendants?
A: No.
Q: Was there any consideration given by the Committee of Managing Directors in asking the SPDC (Shell Petroleum Development Company) to provide a legal analysis of the trial procedures involving the trial against Mr Saro-Wiwa and his co-defendants?
A: No.
But then, later in the deposition, he states that he and Shell knew about an international legal report strongly criticising the unsatisfactory nature of Saro-Wiwa’s trial, yet he didn’t feel the need to read the report himself, or for anyone at Shell to read it either:
Q: Were you aware of any independent legal organisations that evaluated the trial procedures of the trial involving Mr Saro-Wiwa and his co-defendants?
A: Yes. I believe the Bar Association in London – now whether this is part of the global Bar Association or not – I believe they had views on it and expressed views on it, that the trial was not satisfactory, according to the legal standards of this country.
Q: Were you aware that the British Bar Association … had issued a written report about the trial of Mr Saro-Wiwa and his co-defendants prior to Mr Saro-Wiwa’s sentence?
A: I remember press reports. I certainly remember an utterance of some sort from the Bar Association. There was a particular individual,fn1 whose name I’ve forgotten, who authored this report but I—
Q: Did you – I’m sorry, were you finished?
A: Yes.