International terrorism and South Africa

On 28 November 2017, South Africa’s highest court, the Constitutional Court heard two appeals brought by Mr Henry Emomotimi Okah and the National Director for Public Prosecutions (NDPP). Mr Okah, a Nigerian citizen with permanent residence in South Africa, was found by the High Court to be the leader of a militant group in Nigeria called “The Movement for the Emancipation of the Niger Delta” (MEND). In February 2010, Mr Okah travelled from South Africa to Nigeria where he organised vehicles fitted with explosives to be detonated near a government property in the city of Warri killing one person and causing extensive property damage. Later, from South Africa, Mr Okah organised a similar operation in the city of Abuja during Nigeria’s 50th independence celebrations attended by the Nigerian President. The Abuja bombings injured and killed multiple people.

Mr Okah was arrested in South Africa and charged and tried on 13 counts under the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 (Terrorism Act). The High Court firstly determined that it had jurisdiction to hear the matter and proceeded to reject Mr Okah’s argument that he was not a “terrorist” within the meaning of the Act and convicted him based on the evidence proving that he led the execution of the attacks in Warri and Abuja. Mr Okah appealed to South Africa’s Supreme Court of Appeal (SCA).

On appeal the SCA overturned four of the charges holding that the Terrorism Act did not establish jurisdiction for South African courts to convict Mr Okah for any offences committed outside the territory of South Africa.

It held that the Act only allowed jurisdiction for acts committed outside South Africa under three conditions: financing terrorism; offences that occurred within South Africa and when the offender is present in South Africa but is not extradited and the offences affected or are intended to affect a public body, person or business within the Republic.

In the Constitutional Court, the NDPP argued that the SCA’s interpretation of the Terrorism Act was wrong and the High Court ruling right. Mr Okah argued that the decision of the SCA was correct and that his High Court hearing was unfair.

He argued further that his actions fell within an exception to the Terrorism Act which precludes prosecution of armed struggle exercised as part of a “legitimate right to national liberation, self-determination and independence against colonialism or occupation or aggression or dominion by alien or foreign forces” and conducted within the precepts of international humanitarian law (armed struggle defence).

Further the Constitutional Court invited amicus curiae (interested party) submissions. The interested parties argued that more fact finding would be needed to determine whether the actions of MEND constituted a “legitimate right to national liberation, self-determination and independence” and whether the organisation complied with humanitarian and international law which prohibits targeting of civilians.

The Constitutional Court reserved its judgment on the matter.

Note: This case poses the Constitutional Court with the opportunity to decide whether South African courts have authority to try individuals for terrorist acts committed outside South Africa. Further, it will be interesting to see what the court decides regarding Mr Okah’s claim to be leading an armed struggle.

Legislation: Section 1(4) Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 (Terrorism Act)

Case name: The State and Another v Henry Emomotimi Okah; Henry Emomotimi Okah v The State and Another CCT193/17


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