Convicted Nigerian terrorist Henry Okah (54) is launching a court application seeking to declare that South Africa had no jurisdiction to try him for bombings in the strife-torn Niger Delta region.

The Johannesburg High Court convicted and handed Okah a 24-year sentence in March 2013 for bombings that killed 12 people and injured 36 in Nigeria.

Okah was convicted on 13 counts of terrorism, including engaging in terrorist activities, conspiracy to engage in terrorist activities, and delivering, placing and detonating an explosive device, relating to two car bombs detonated in Abuja, Nigeria, on October 1 2010, the anniversary of the country’s independence.

He is the de facto leader of the Movement for the Emancipation of the Niger Delta (Mend).

Mend, formed in 2006, has claimed responsibility for attacks on oil companies operating in the petroleum-rich Niger Delta through sabotage, guerrilla warfare and kidnapping of foreign oil workers.

According to Okah’s court papers, his trial should have been conducted in the International Criminal Court (ICC) and he should have been charged under international humanitarian law.

He has applied for a declaratory order.

Okah was charged and convicted under the Protection of Constitutional Democracy Act but he argues that the ICC is the only institution suited to intervene between a rebel and a country.

I SHOULD BE TRIED BY THE ICC BECAUSE I’M FIGHTING THE NIGERIAN GOVERNMENT
Henry Okah
His lawyer, Idemudia Uriesi, said that when his client’s trial began, South Africa had already adopted the UN Conventions on Terrorism.

Although Okah’s previous appeal attempts to overturn his convictions failed in the Supreme Court of Appeal and the Constitutional Court, Uriesi said he was confident that this time the application for a declaratory order would be successful.

“Something in the Concourt judgment caught our attention that he could have been appropriately charged under the international humanitarian law … he is saying ‘I should be tried by the ICC because I’m fighting the Nigerian government, South Africa has no jurisdiction over this matter,” Uriesi said.

He said under international humanitarian law a person who is arrested had to be charged before a military tribunal with competence in warfare to determine first if the acts he committed were terrorist in nature and then determine liability.

“The South African courts assumed from the beginning that those were the acts of a terrorist but there was no process undertaken to determine such through a competent tribunal.

“He was tried in terms of the wrong law and should have been tried on Geneva Convention Acts,” said Uriesi.

In his affidavit, Okah said that his prosecution under the Protection of Constitutional Democracy Act effectively stripped him of his rights, including judicial rights due to him under the Geneva conventions, while it afforded Nigerian soldiers immunity from prosecution.

“It is submitted that the preparatory needs in legal defence of persons accused of committing crimes in conflicts are peculiar, which necessitates prosecutions and trials under appropriate statutes. Section 12 of the Geneva Convention Act prescribes the detention by the SA National Defence Force with respect for their rights, of prisoners of war,” Okah said.

“The Correctional Services Act No 111 of 1998 does not recognise the rights of a prisoner of war and my imprisonment under inhuman conditions in South African prisons severely and adversely affected my defence and ensuing appeals processes,” he added.

Okah said that he had intended to call former presidents Jacob Zuma and Goodluck Jonathan of Nigeria as “hostile witnesses”, but was told by the court that the duo could not be compelled to appear in a South African court under existing laws.

Okah explained that he intended to subpoena Zuma because he was made aware that he allegedly interfered with the judicial process by intimidating magistrates into signing search and arrest warrants without prima facie evidence of wrongdoing on his part.

“The interference of Zuma, I learnt, had been brought about partly due to pressure from the MTN group as was reported by Nigerian media had faced threats of the nationalisation of the assets by the government of Nigeria, and on the other hand bribes paid to Zuma and his associates; which bribes were said to include cash and oil wells in Nigeria,” reads Okah’s affidavit.

Regarding Jonathan, Okah said that after the October 1 2010 bombings, the former president had told Nigerians that he was aware of the identity of the perpetrators and had exonerated him.

“Article 27(2) of the ICC Act expressly allows for presidents and other government officials to be compelled to appear before a hearing under the ICC statute. It is my submission that had I secured the appearance in court of these two witnesses, the outcome of my trial would most certainly have been different, and this was only possible had I been tried under the ICC Act,” he added.

A date for the case has not been set.