Institute for Security Studies (Tshwane/Pretoria)

1 February 2013

Nigeria: Henry Okah Counter-Terrorism Ruling Is a Judicial Triumph for South Africa and the Continent

analysis

In a swift implementation of justice, the South Gauteng High Court in Johannesburg found Nigeria's Movement for the Emancipation of the Niger-Delta (MEND) leader, Henry Okah, guilty of 13 charges related to terrorism.

The Priority Crimes Litigation Unit (PCLU) in South Africa's National Prosecuting Authority led the prosecution. Okah was found guilty of orchestrating car bombings that led to the death of at least 12 people during Nigeria's 2010 Independence Day celebrations.

The 21 January 2013 court ruling came only three months after the start of the trial and is a clear demonstration of South Africa's commitment to the fight against terrorism, both in Africa and globally.

The resolve of the South African government and the PCLU to prosecute Okah is significant for two main reasons. Firstly, the terrorism attacks took place outside South Africa's national territory and could therefore be seen as a purely Nigerian problem.

Okah was arrested in South Africa a day after the attacks were carried out in Nigeria. Because Nigeria and not South Africa had been attacked, South Africa could have opted to turn a blind eye to Okah and his role in the bombings in Abuja. Instead, South Africa chose to act on its legal obligations in the matter.

In accordance with domestic and international law, South Africa is obligated to make concerted efforts toward the global fight against terrorism. According to the United Nations (UN) Convention for the Suppression of Terrorist Bombings of 1997 and the UN Convention for the Suppression of the Financing of Terrorism of 1999, South Africa is mandated to address the challenge of global terrorism.

South Africa has on various occasions stated its continued support for the global fight against terrorism. It is also party to multilateral agreements at the UN and the African Union levels, which obligate the country to implement counter- terrorism measures.

South Africa is one among many responsible members of the international community, and the notion that states that are party to the relevant treaties and conventions are obligated to combat terrorism is widely known.

In practice, however, it is not uncommon for states to pledge their commitment to counter-terrorism but to drag their feet when it comes to putting these commitments into practice. The Okah conviction shows that South Africa is implementing its legal obligations.

An important aspect of South Africa's legal obligations is that the country should not be used as a safe haven by terrorists.

The prosecutor at the PCLU who led the case, Advocate Shaun Abrahams, notes that the Okah conviction shows that South Africa cannot be used as a safe haven for terrorists and that the case demonstrates South Africa's commitment to fighting not only crimes that affect state security, but also those that affect regional and global security.

Following the discovery of Okah's involvement in terrorist-related acts, South Africa was legally mandated to either extradite Okah to Nigeria or prosecute him in a domestic court.

Both the 1997 and 1999 international conventions mentioned above refer to this mandate, which is known as the legal principle of aut dedere aut judicare. Okah's extradition was, however, dependent on the receipt of a formal request from Nigeria. South Africa would have extradited Okah to Nigeria, but because the Nigerian authorities did not request his extradition, South Africa decided to prosecute him.

The second main reason why Okah's prosecution is noteworthy is because South Africa charged the accused under the Protection of Constitutional Democracy against Terrorist and Related Activities (POCDATARA) Act of 2004.

Until this case, POCDATARA had not been used for the prosecution of terrorist attacks outside South Africa. Its efficacy in relation to terror acts conducted outside national borders had therefore never been tested in court.

The willingness of the South African and Nigerian governments to cooperate in the Okah case played a significant role in its outcome. Okah's conviction shows the ability of South African courts to conduct a fair trial in a case where the accused, the witnesses, and the victims were not South African citizens.

This was made possible due to the cooperation between the PCLU and Nigerian authorities on various levels. For instance, South Africa had to cooperate with Nigeria to attain the evidentiary requirements for a conviction. Mutual legal assistance facilitated the gathering of witness testimonies, which were crucial to the Okah verdict.

South Africa also had to ensure that Okah had a full opportunity to have a defence counsel and that his defence counsel had adequate information to defend the accused.

Beyond the direct implications of the Okah verdict for South Africa, this highly publicised case is also a watershed moment for Africa.

At a time when the fight against terrorism rages on in Mali, Algeria, Nigeria and elsewhere on the continent, the verdict marks Africa's willingness and ability to use rule of law responses as a counter-terrorism measure.

The Okah case is also a fine example of the crucial role that international cooperation between law enforcement entities plays in fighting terrorism. It is therefore a case that African investigators and prosecutors can learn from in their efforts to bring terrorism suspects to justice.

Uyo Salifu, Researcher, Transnational Threats and International Crime Division, ISS Pretoria

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