Henry Emomotimi Okah, imprisoned former leader of the Movement for Emancipation of Niger Delta (MEND), has dragged the South African government and its National Director of Public Prosecutions to the Constitutional Court of South Africa seeking the review of the judgment and order of the court which sentenced him to 24 years in prison.
Specifically, Okah is seeking for a revision and judgment of the court and order of the court in case No CCT 193/17 and a declaratory order to the effect that his “detention” on the basis of an order of the court is unlawful.
Okah, in the application he filed electronically in January 2023 before the court, is seeking the review of the judgment and order of the Constitutional Court in the following cases: Order of the Constitutional Court, Dated 2 November 81-82 2022; Case No. CCT102/20; Order of the Constitutional Court Dated 1 August 2018; Case No. CCT141/18; Judgment On Conviction, Dated 21 January 2013 — 86 — 178 South Gauteng High Court, Case No. S594/2011.
Also, judgment Okah is requesting for review include that of The Defence’s Witnesses From Nigeria, Dated 21 November 20112 — South Gauteng High Court, 179-182 Case No. 8394/2011 and Judgment On The Application in Terms Of Section 317 Of Act 51 Of 1977, Dated 20 March 2013 — South 183 – 194 Gauteng Hight Court, Case No. §594/2011.
His request for revision of the judgment and order of the Constitutional Court is filed under Application Case No: CCT 19317, Case No: 5594/2011.
Okah, who described himself as “a prisoner of war detained in the Pretoria Newlock Prison,” was arrested on October 2, 2010 in Johannesburg “on account of military actions undertaken by the Niger Delta-based militant group the Movement for the Emancipation of the Niger Delta (MEND).
On January 21, 2013, the South Africa Gauteng High Court sentenced Okah to 24 years in prison for acts of terrorism.
Delivering his judgment on Tuesday in Johannesburg, Mr. Neels Claaseen said: “Having found the accused guilty in the 13-count charge of acts of terrorism, it’s now the duty of the court to sentence him, taking into account the position of the victim, the convict and the world community.”
Claaseen said while sentencing the former MEND leader that the two major bomb attacks in Nigeria for which Henry Okah was convicted in Nigeria were carried out to embarrass President Goodluck Jonathan.
Judge Claaseen said that the struggle of the Movement for the Emancipation of Niger Delta (MEND), “is politically motivated and as a result a maximum sentence for Okah will be inappropriate.”
The judge said South Africa being a signatory to the UN Treaty on Terrorism Acts allowed the convict to be tried in South Africa though the events took place in Nigeria.
“As a signatory, South Africa is duty bound to adopt the treaty and incorporate it into the laws of South Africa, in other words domicile the treaty,” Mr. Claaseen said.
He said it is the responsibility of the court in sentencing the convict to take into account the feelings of the world community and to make South Africa unpalatable for terrorists to operate within the jurisdiction as member of the community of nations.
Mr. Claaseen said all the 13-counts Mr. Okah was convicted of are related to three events:
“The first event is the March 15, 2010 bomb attack, where two cars bombs occurred at the venue of a political gathering which was being attended by the Delta State Governor in Warri, Delta state, where one person died and several others were injured.
“The second event occurred on October 1, 2010, in Abuja,, Nigeria’s capital city, where two cars bombs exploded killing eight people with several others injured.
“Third event is the threat to the Nigerian government.
“All these three events were targeted at embarrassing President Goodluck Jonathan,’’ Mr. Claaseen said.
He said these acts are very serious crimes which must be punished in accordance to the terrorism laws.
Following his conviction, Okah appealed his conviction, which was on March 20, 2013 dismissed. Also, his subsequent petition to the Supreme Court of Appeal seeking leave to appeal against the judgment of the trial court was also dismissed.
Subsequent to his March 26, 2013 sentencing, he was on March 27, 2013 transferred to the Ebongweni C-Max Prison in Kokstad, KZN. He was later transferred to Johannesburg in April 2013, where he remained until February 2014 when he was returned to the C-Max prison in Kokstad where he stayed till July 28, 2019.
Okah stated in his court submission “that my arrest was indeed arbitrary is exposed by the following:
– “Having been notified by Interpol that my arrest was not been sought by any State, the National Commissioner of the South African Police Services (SAPS) had no prcbable cause, and thereby had been unable to arrest me as contemplated in section 15 (6) of the Act.
“Rather, the National Director of the NPA (NDPP) applied for an arrest warrant as contemplated in section 43 of 62 the CPA — and in so doing managed to side-step a peremptory statutory judicial safeguard in section 7 (2) of the Extradition Act No. 67 of 1962 (Extradition Act). There is no provision in the Act (POCDATARA) that enables the NDPP to apply for a warrant of arrest. See: Arrest Warrant dated 2 October 2010 (p. 336, bundle 2); and, the Affidavit of Siphiwe Clement Mabaso of the Interpol Extradition Desk dated 23 June 2011 (p. 337 – 338, bundle 2).
“In terms of section 8 (1) of the Extradition Act read with section 15 (9) of the Act, Magistrate Jadezweni — who issued the arrest warrant was bound to provide the Justice Minister with particulars relating to the issue of the Warrant. | am confident that the Justice Minister was at no time furnished by the Magistrate with such information.
“On 8 February 2011 the Nigerian Justice Minister communicated the Central Authority in the Republic, the decision of the Nigerian Government not to seek my extradition. The Central Authority referred to is the Agency in South Africa which ensures the Republic’s implementation of the Rome Statute of the ICC — and the communication thereby signified the conclusion of a Special Agreement between the Governments of South Africa and Nigeria as contemplated in Article 4 (2) read with Article 12 of the Rome Statute of the ICC — the existence of which agreement had been concealed from the trial court and my lawyers.”
Okah added: “The Government of Nigeria denied its involvement in my arrest and extraterritorial prosecution – and in which regard my prosecution in South Africa and the trial Court’s assertion of extraterritorial jurisdiction can be seen to be an a front to Nigeria’s sovereignty and an attack on its (Nigeria’s) judiciary. It is confounding that a South African court’s assertion of extraterritorial jurisdiction on the basis of the accused person’s presence in the Republic is able to take precedence over the jurisdiction of the courts of the affected State assertable in terms of the Nationality and Territoriality principles.”
He accused the South African government of purposely starving him and his wife of funds “necessary to put up a strong defense” by using, in 2012, the “South African Revenue Services (SARS) to without our knowledge, obtain a court order freezing all fixed assets owned by my wife and I — with the exception of the property wherein my family resides.”
