S v Okah

• Jurisdiction: South Africa
• Citation: 2015 (2) SACR 561 (GJ)

S v Okah
2015 (2) SACR 561 (GJ)

2015 (2) SACR p561

Citation	2015 (2) SACR 561 (GJ)
Case No	SS 94/2011
Court	Gauteng Local Division, Johannesburg
Judge	CJ Claassen J
Heard	October 1-31, 2012; November 1-30, 2012; December 14, 2012
Judgment	January 21, 2013
Counsel	MI Maunatlala for the accused.; S Abrahams for the state.

Flynote : Sleutelwoorde

Jurisdiction — High Court — Extraterritorial jurisdiction — Jurisdiction in terms B of Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 — Ambit of s 1(4) of Act — Court holding that militant campaign against Government of Nigeria excluded from ambit of s 1(4) once members of armed struggle had been granted amnesty. C

Headnote : Kopnota

The accused was charged in the High Court with 13 counts in contravention of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004 (the Act). Counts 1 – 12 arose from two incidents which occurred in March 2010 in Warri and in October 2010 in Abuja, Nigeria. In each instance two car bombs exploded, killing and injuring D several people and causing damage to property. In the process certain internationally protected persons were also threatened by the explosions. It was further alleged that the accused provided the finance and the necessary equipment in order for these bomb explosions to take place. Each of the main counts 1 – 12 carried alternative charges of conspiracy to commit such crimes, alternatively to induce and/or incite others to commit such crimes. E Counts 1, 3, 5, 7, 9 and 11 related to the bombings which occurred in Warri. Counts 2, 4, 6, 8, 10 and 12 related to the bombings which occurred in Abuja, Nigeria. Count 13 alleged that the accused unlawfully and intentionally threatened certain South African nationals employed in Nigeria with terrorist activities, and to disrupt their businesses, alternatively to take their employees hostage. The accused challenged the jurisdiction of the South African High Court to try him and sought to rely on the provisions of s 1(4) to oust the jurisdiction of F the court to try him, and contended that the accused's participation in the struggle against the government of Nigeria was in the exercise of the people's legitimate right of self-determination and freedom from aggression.

Held

The state had succeeded in establishing the jurisdiction of this court to hear this G matter. The reliance on s 1(4) was misplaced. Subsection 1(4) excluded from the ambit of the Act any armed struggle in the exercise of a people's legitimate right to national liberation, self-determination and independence against colonialism, or occupation or aggression or domination by alien or foreign forces in accordance with the principles of international law. It was H common cause that a militant campaign was waged against the Nigerian Government by its own civilians living in the southern states of Nigeria, in protest at the alleged wrongful application of funds derived from oil extraction occurring within the jurisdiction of those southern states. Subsequent to the grant of amnesty by the Government of Nigeria to its civilians who had been engaged in such armed struggle, and subsequent to I the accused accepting the terms of such amnesty for himself, no further armed struggle was legitimate. In any event, at no stage prior to amnesty was the struggle directed at the occupation by foreign forces or for the purpose of national liberation or self-determination and independence against colonialism. No basis in fact or in law was placed before the court by the accused to bring himself within the four corners of s 1(4). Counsel's argument in this regard was therefore rejected. (Paragraph [8] at 569g – 570b.) J

2015 (2) SACR p562

Cases cited

R v Leibbrandt and Others 1944 AD 253: referred to A

R v Mayet 1957 (1) SA 492 (A): referred to

R v Miller and Another 1939 AD 106: referred to

S v Bogaards [2012] 1 All SA 376 (SCA) ([2011] ZASCA 196): referred to B

S v Cooper and Others 1976 (2) SA 875 (T): dicta at 879A – 880G applied

S v Du Toit en Andere (3) 2004 (1) SACR 66 (T): dictum at 76g – h applied

S v Libazi and Another 2010 (2) SACR 233 (SCA) ([2010] ZASCA 91): dictum in para [19] applied.

Legislation cited

Statutes

C The Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004, s 1(4): see Juta's Statutes of South Africa 2014/15 vol 5 at 1-305.

Case Information

MI Maunatlala for the accused.

S Abrahams for the state. D

A criminal trial in the High Court on charges under the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004.

Order E

The accused is convicted of counts 1 – 13 as set out in the indictment.

Judgment

CJ Claassen J:

Introduction F

[1] Nigeria is an oil-rich country. The evidence disclosed that the extraction of oil represents 95% of its GDP. The oil is extracted from the southern states of Nigeria, known as the Niger Delta area. However, little of this income was reinvested in the upgrading of the infrastructure and other social requirements of the Niger Delta. Hence, a general uprising G by the populace of this region occurred against the government of Nigeria. Several militant groups began attacking the large oil companies' pipelines and hijacked their executives, demanding ransom in exchange for their release. The ransom was utilised to purchase more armaments to further the armed struggle. These various militant groups joined H forces under an umbrella organisation known as 'The Movement for the Emancipation of the Niger Delta' (MEND) The origins and context of MEND and the armed struggle in the Niger Delta are succinctly described in the admitted documents [1] in the following terms:

'From the point of view of MEND and its supporters, the people of the Niger Delta have suffered an unprecedented degradation of their I environment due to unchecked pollution produced by the oil industry. As a result of this policy of dispossessing people from their lands in favour of foreign oil interest, within a single generation, many now have no ability to fish or farm. People living in the Niger Delta have found

2015 (2) SACR p563

CJ Claassen J

themselves in a situation where their government and international oil A companies own all the oil under their feet, the revenues of which are rarely seen by the people who are suffering from the consequences of it.

. . .

Over the last twenty years various political movements and activists have emerged in opposition to the perceived injustices perpetrated B upon the people of the Niger Delta by the government and the oil companies. These were usually non-violent; Ken Saro-Wiwa was the most famous activist. Saro-Wiwa was an Ogoni activist who was executed by the Nigerian government in 1995 on what many believe to be deliberately false charges with the aim of silencing his vocal opposition to the oil interests in Nigeria. In Saro-Wiwa's footsteps C came others who, instead of believing in non-violent activism, advocated violence as resistance to the ostensible enslavement of their people. Militants in the delta enjoy widespread support among the region's approximately 20 million people, most of whom live in poverty despite the enormous wealth generated in the oil-rich region.'

[2] The accused, a 46-year-old Nigerian male citizen, espoused the D sentiments stated above. He is a permanent resident with his wife and children in the Republic of South Africa. At the time of his arrest on 30 September 2010 he was residing with his family at 19 Dibberic Drive, Bassonia, in the district of Johannesburg. He was arrested for his alleged involvement in the planning and organising of two car-bomb attacks in Nigeria, wherein several people were killed and many injured. E

[3] He was charged with 13 counts in contravention of the Protection of Constitutional Democracy against Terrorist and Related Activities Act 33 of 2004. Counts 1 – 12 arose from two incidents which occurred, F respectively, on 15 March 2010 in Warri, and 1 October 2010 in Abuja, Nigeria. In each instance two car bombs exploded killing and injuring several people and causing damage to property. In the process certain internationally protected persons were also threatened by the explosions. It is further alleged that the accused provided the finance and the necessary equipment in order for these bomb explosions to take place. G Each of the main counts 1 – 12 carries alternative charges of conspiracy to commit such crimes, alternatively to induce and/or incite others to commit such crimes. Counts 1, 3, 5, 7, 9 and 11 relate to the bombings which occurred on 15 March 2010 in Warri. Counts 2, 4, 6, 8, 10 and 12 relate to the bombings which occurred on 1 October 2010 in Abuja, Nigeria.

[4] Count 13 alleges that the accused unlawfully and intentionally H threatened certain South African nationals employed in Nigeria with terrorist activities, and to disrupt their businesses, alternatively to take their employees hostage.

Jurisdiction of this court I

[5] One may well ask: Why is the accused being tried in a South African court? South Africa is a member of the United Nations and therefore committed to executing its obligations in terms of international instruments dealing with terrorism and related activities. South Africa is J

2015 (2) SACR p564

CJ Claassen J

A bound to do so by virtue of the fact that it became a signatory and party to the following United Nations Universal Conventions relevant to this matter, namely:

(1)

The Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomats, adopted by the General Assembly of the United Nations on B 14 December 1973;

(2)

the...