analysisBy Uyo Salifu
Just over a year ago, South Africa's Protection of Constitutional Democracy against Terrorism and Related Activities Act had not been used for cases outside the country's borders.
That Henry Okah was prosecuted on charges related to terrorism in Nigeria under this act was therefore significant, particularly due to the global threat that terrorism poses. The 21 January 2013 court ruling found Okah guilty of 13 charges of terrorism, including orchestrating car bombings that killed at least 12 people during Nigeria's 2010 Independence Day celebrations.
Okah tried various means to have the conviction dismissed, to which the South African justice system expertly responded - maintaining the ruling and proving the tenacity of its legal system to uphold justice. Now, a year later, it is necessary to follow up on progress made with regard to Okah's appeals process. How has South Africa fared in maintaining the impetus to fight transnational terrorism within its legal framework?
In deciding to prosecute Okah, the Priority Crimes Litigation Unit (PCLU) in South Africa's National Prosecuting Authority ventured into unchartered territory. In seeking to assert justice in its first transnational terrorism trial, South Africa also exposed its justice system to global scrutiny.
The successful prosecution of Okah was important on several levels. It highlighted South Africa's ability to cooperate with other countries (in this case, Nigeria); legally gather relevant evidentiary material both locally and abroad; present an airtight case and 'prove Okah's guilt beyond reasonable doubt'.
It also emphasised the court's ability to follow due process, conduct a fair trial and prevent any basis for Okah to 'get off on a technicality'. Furthermore, it underscored the strength of South Africa's witness protection system, in this case demonstrating its ability to protect foreign witnesses; and established the viability of the Protection of Constitutional Democracy against Terrorism and Related Activities Act in prosecuting transnational crimes.
However, Okah's defence team has undertaken to challenge the court's decisions in several ways. One of these attempts was requesting a postponement of the sentencing to allow witnesses from Nigeria to attest to reasons for a lighter sentence. Okah claimed that the Nigerian government had prevented his witnesses from travelling to South Africa to testify on his behalf. Presiding Judge Neels Claassen granted his request and these witnesses were allowed to testify. Okah avoided life in prison, but received an effective 24-year sentence behind bars.
In another attempt, Okah tried to fight the conviction by requesting the court to note irregularities that he alleged had occurred during the trial, in line with section 317 of the South African Criminal Procedure Act. Among the irregularities cited was the claim that the prosecutor had neglected to mention that Clifford Osagie, who sat directly across from witnesses in court, was a member of the Nigerian State Security Services, and that Osagie's presence influenced their testimony.
Okah also claimed that he had not been informed of his right to consular assistance from a representative of his government in terms of the provisions of the International Convention for the Suppression of Terrorist Bombings.
The defence argued that consular assistance might have granted Okah the opportunity to be tried in Nigeria. Lastly, he claimed that the presiding judge had neglected to issue a letter of request for evidence to be obtained from defence witnesses in Nigeria.
The South Gauteng High Court responded by dismissing all three claims of irregularity. It found that the prosecution had clarified Osagie's identity from the onset.
The court also established that a Nigerian consular representative had indeed been present in court throughout the trial and that in any case, South Africa could not have extradited Okah to Nigeria due to the death penalty in that country. Furthermore, Okah was persona non grata in Nigeria but enjoyed permanent residency in South Africa. The court also found that sufficient evidence existed to indicate that Okah had elected not to make use of evidence from witnesses in Nigeria.
In the court's view, all the procedural requirements had been met. Not only had the prosecution of the case stood up to scrutiny, but this also indicated the legality of the trial, effectively depriving Okah of the automatic right of appeal to the Supreme Court of Appeal. Nevertheless, he petitioned the president of the Supreme Court of Appeal to appeal the dismissal of his claims of irregularities. This petition was also dismissed.
South Africa's response to this appeal process is relevant in demonstrating, once again, the tenacity of its legal system in addressing serious crime.
Although Okah has since been granted leave to appeal the legal question of South Africa's jurisdiction to prosecute him, the case reflects the country's ability to stand its ground and prosecute terrorism in line with international good practices. More so, the ability of the PCLU and the court to ensure the correct practice of law in such a specialised case is evident, notwithstanding the complexities of the case.
In an era where states are under significant pressure to protect their citizens from the activities of terror groups, this case demonstrates that a heightened global emphasis on criminal justice responses to terrorism is justified. It also illustrates that states can indeed cooperate successfully to address the actions of terrorists, and that human rights and the rule of law may prevail if championed by states.
While the outcome of Okah's appeal promises further lessons on the question of jurisdiction, South Africa should consider this case an important milestone in the development of its criminal justice system, and look to the future of such prosecutions with confidence.
Uyo Salifu, Researcher, Transnational Threats and International Crime Division, ISS Pretoria