The State vs. Okah: South African courts can’t help in such cases
On 23rd February the Constitutional Court handed down a unanimous judgment in the consolidated applications in the State vs. Okah matter.
This followed the November 2017 hearing in which the Constitutional Court deliberated on the issues of whether South African courts possess extra-territorial jurisdiction for crimes of terrorism and serious offences committed outside South Africa; and whether this was limited to prosecutions for the financing of terrorism only.
Justice Edwin Cameron delivered the unanimous judgment, dismissing Mr Okah’s cross appeals.
The State v Henry Emomotimi Okah
Summary: Does the Protection of Constitutional Democracy against Terrorist and Related Activities Act give South African courts jurisdiction to try terrorist acts committed abroad, besides financing terrorism?
On 23rd February the Constitutional Court handed down a unanimous judgment in the consolidated applications in the State v Okah matter. This followed the November 2017 hearing in which the Constitutional Court deliberated on the issues of whether South African courts possess extra-territorial jurisdiction for crimes of terrorism and serious offences committed outside South Africa; and whether this was limited to prosecutions for the financing of terrorism only. Justice Edwin Cameron delivered the unanimous judgment, dismissing Mr Okah’s cross appeals.
Mr Okah is a Nigerian citizen holding South African permanent residence. He was charged with 13 counts under The Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 (The Terrorism Act). The charges relate to two bombings in Nigeria- which took place on the 15th March 2010 in Warri as well as on the 1st October 2010 in Abuja. Both bombings were intended to inflict maximum carnage and resulted in the death of at least nine people. Mr Okah was in Nigeria at the time of the Warri bombings and in South Africa during the Abuja bombings. The High Court convicted him on all 13 counts and sentenced him to 24 years in prison. The Supreme Court of Appeal (SCA) however held that South African courts have extra-territorial jurisdiction only in relation to “the crimes of financing the offence,” and overturned the Warri convictions and reduced the sentence to 20 years.
Findings by the Constitutional Court:
The Constitutional Court found that the narrow interpretation adopted by the SCA resulted in an absurdity where a court would have jurisdiction to “prosecute the banker, but not the bomber”. The court stated that “The general duty to combat terrorism is broad. It commands a reading of the Terrorism Act that enables South Africa to participate, as a member of the international community, in the fight against an international and transnational phenomenon. The conspicuous consequence of the contested interpretation is that it would pull the Terrorism Act’s teeth, rendering futile its expressed endeavour to give bite to this duty”. The undisputed facts before the trial court establish that both the Warri and Abuja bombings were carried out in clear violation of international humanitarian law. Mr Okah intended for those bombings to be indiscriminate and deadly.
SALC’s amicus submissions before the Constitutional Court:
SALC was invited by the Court to make submissions and was admitted as amicus curiae. SALC’s submissions dealt with the interpretation of section 1 (4) of the Terrorism Act. SALC supported the State’s argument that the SCA erred in its narrow definition of “specified offence.” SALC submitted that a thorough reading of the entire Act requires a broader meaning of the term “specified offence” which covers more than just the financing of terror offences. This is particularly clear when, for example, the following provisions are read, section 4 dealing with acquiring, collecting, using and owning, among others, property which is used for terror activities; and section 11 dealing with harbouring of terror suspects, among others.
SALC’s Executive Director Kaajal Ramjathan-Keogh stated that, “SALC was pleased to be able to assist as a ‘friend of the court’ in this matter. The case is significant in confirming that South African courts do possess extra-territorial jurisdiction in respect of terrorism offences”. The Terrorism Act confers extra –territorial jurisdiction for courts to try crimes that occurred outside South Africa. The SCA did note that while jurisdiction has traditionally been limited to crimes occurring within a state’s territory, international terrorism conventions have, of necessity relaxed this limitation.
The Constitutional court found as follows: The State’s appeal is upheld; Mr Okah’s appeal is dismissed barring the special entry on consular access. The sentence reverts to 24 years.
SALC was represented in this matter by Advocate Kameel Premhid and Webber Wentzel Attorneys.