Henry Okah's Trial: Putting South Africa’s Counter-Terrorism Act in the dock

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South Africa's Terrorism law in the dock

The highly complex trial of Nigerian terror suspect Henry Okah is testing the efficacy of the South Africa’s criminal justice system and its ability to respond appropriately to international terrorism.

The trial carries a number of challenges ranging from human rights and due process issues to highly charged political considerations.

Mr. Okah first moved to South Africa in 2003, where he held residency in Johannesburg until his arrest in Angola in September 2007 on gunrunning charges. Angola quickly extradited Okah to Nigeria, where he was sentenced to death on 62 counts of treason and gunrunning. In 2009, he was released and exiled to South Africa following an amnesty deal to end the Niger Delta conflict between the federal government of Nigeria and various rebel movements.

On 1 October 2010, a group named the ‘Movement for the Emancipation of the Niger Delta (MEND)’ simultaneously detonated two powerful explosives in the Nigerian capital of Abuja while the country was commemorating its 50th independence-day anniversary. The twin explosions killed 12 people and injured 36 others. The next day South African law enforcement officers arrested Okah at his home in Johannesburg for his alleged involvement in the attacks.

Mr. Okah has maintained his innocence and denied any involvement in the independence-day bombings. His lawyer, Rudi Krause, is challenging the state prosecutor, Mr Shaun Abrahams to produce concrete evidence linking Okah directly to the attacks. The prosecutor has produced reams of evidence showing that Okah was involved in the purchase of the two vehicles in Lagos that were subsequently loaded with dynamite and used in the Abuja bombings.

The state prosecutor also alleges that Okah was, prior to the attacks, in contact with Chima Orlu, who is wanted by Nigerian authorities for his role in detonating the explosives. The prosecutor claims that Okah was also responsible for sending an email warning about the attacks under the well-known pseudonym, ‘Jomo Gbomo’, which is usually used to identify MEND. This is an important point to prove as one of the main conditions for Okah’s amnesty and exile in South Africa was for him to abandon all ties he had with MEND, including the supply of arms to the militant group.

South Africa Flag

The prosecutor must therefore demonstrate that Okah was directly or indirectly involved in the 1 October bombings and that he is still the leader of MEND (or that he still maintains contact with the militant group). If accepted by the court, these allegations will mean that Okah violated the terms of his amnesty.

He will also face charges for engaging in terrorist activities, conspiracy to engage in terrorist activities, and delivering, placing and detonating an explosive device, all of which constitute serious offences under the South Africa’s 2004 Protection of Constitutional Democracy Against Terrorist and Related Activities Act (the Counter-Terrorism Act). The Act provides a broad definition of what constitute terrorist and related activities, including acts committed outside South Africa.

The Johannesburg magistrate court must apply the law fearlessly and independently. In the meantime, it must decide as to whether or not to release Okah, being held in a private cell, on bail.

Given the complexity of the case, magistrate Hein Louw has already postponed his decision on this matter twice as such a decision will mean that Okah does not pose a security threat to South Africa or to Nigeria. The case may take a different twist if Nigeria requests for extradition, which it has not yet done. Were this to happen, South Africa’s decision will be influenced by a number of factors including its domestic law, international law and the bilateral extradition treaty that South Africa signed with Nigeria in 2002.

It is a well-established practice of extradition law that countries should refuse extradition if the request is motivated by political considerations. Extradition should also be refused if the accused risks being persecuted, subjected to torture and inhumane treatment, or in the case of some countries (like South Africa which abolished the death penalty under the 1994 Constitution), the person could face a death penalty if extradited and convicted.

Many of these factors are at play in the Okah hearing. The nature of the charges, the fact that Okah was already sentenced to death in Nigeria, and the timing of the hearing are all politically significant. Nigeria is about to head into crucial elections early next year and the Niger Delta conflict is one of the prominent issues that will determine the outcome of the leadership battle in Africa’s biggest country.

Given these considerations, it is highly unlikely that South Africa will be legally able to extradite Okah to Nigeria. If extradition is refused South Africa has a legal obligation to prosecute Okah on the basis of South African law for the acts allegedly committed in Nigeria. This obligation stems from several international counter-terrorism treaties, as well as United Nations Security Council resolutions that require states to deny safe haven to international terrorists by either extraditing or prosecuting them. This obligation is known in legal circles as aut dedere aut judicare.

Fortunately South Africa’s Counter-Terrorism Act makes provision for a broad range of international and domestic terrorism offences that should easily cover Okah’s alleged bombings in Abuja. The challenge will be for the court to effectively navigate the political forces at play, to ensure that Okah receives a free and fair trial.

Abuja Bombings

It is a test case for South Africa’s new Counter-Terrorism Act, which has to date, been applied mostly to domestic terrorist cases. To gather all the facts and evidence for the case, South African investigators and prosecutors will have to rely on cooperation with their Nigerian counterparts. This will be a challenging and costly endeavor. South Africa may also use this case to dispel growing criticism that the country is becoming a safe haven for high profile criminals, to demonstrate that it is an oasis of liberty, freedom, justice and the rule of law for all.

Martin A. Ewi is a Senior Researcher in the International Crime in Africa Programme at ISS Pretoria.