NEWS RELEASE: SOUTH AFRICAN CONSTITUTIONAL COURT TO DECIDE ON “FREEDOM FIGHTER” EXCEPTION UNDER THE TERRORISM ACT: THE STATE AND ANOTHER v HENRY OKAH AND HENY OKAH v THE STATE AND ANOTHER

Salc : Staff Writer

On the 28th November the Constitutional Court heard the Okah cases which deal with the issue of extra-territorial jurisdiction for terrorism and serious offences committed outside South Africa.

On the 15th November, 2017, the Chief Justice directed the Registrar to serve the State’s and Mr. Okah’s written arguments relating to section 1 (4) of the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 (Terrorism Act) to, inter alia, the Southern Africa Litigation Centre (SALC), inviting SALC to submit arguments if they had an interest in the case.

This case concerned two consolidated applications related to the conviction of Mr. Okah by the High Court which was partly upheld by the Supreme Court of Appeal (SCA). At the Constitutional Court, the State, on one hand, had applied for leave to appeal against the Supreme Court’s decision which acquitted Mr Okah of certain terrorism offences on the ground that such offences were not related to the financing of terrorism warranting the Court to assume extraterritorial jurisdiction under the Act. The SCA’s interpretation of “specified offences” was hotly debated and it was argued that that the SCA’s interpretation could lead to absurd results. The SCA held that section 1 of the Act only covered the financing of terrorism and not the actual acts of terrorism thereby limiting the extraterritorial jurisdiction of South African Courts for terror related offences to only those that concerned the financing of terrorism. Mr. Okah on the other hand, raised a number of arguments including that he committed the terror related activities as a freedom fighter. Mr. Okah proclaims to be a leader of The Movement for the Emancipation of the Niger Delta (MEND), an armed group which fought against the exploitation of oil and environmental destruction in the Niger Delta in Nigeria.

SALC was invited to make submissions on the interpretation of section 1 (4) of the Terrorism Act. In its submissions, 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.

Regarding the application of section 1(4) of the Terrorism Act, SALC argued that this provision is consistent with international law in that the defences available to “freedom fighter” are available to  an accused where he is charged of terrorism and related activities. However, for an individual to succeed under this defence he/she must satisfy three conditions:

  • that his/her conduct was in furtherance of a legitimate right to national liberation, self-determination and independence against colonialism during armed struggles;
  • that he/she committed the act during an armed struggle against “occupation or aggression or domination by alien or foreign forces”; and in addition,
  • that he/she committed the acts “in accordance with the principles of international law”

In order for Mr. Okah to enjoy the benefits of the above exceptions he must demonstrate that he committed the activities in compliance with the above conditions.

SALC argued that it was apparent from the record that both the High Court and SCA, did not direct their mind to these principles for various reasons, and the Constitutional Court must exercise its discretion by either referring the matter back to the trial court for a deeper factual enquiry or deal with the issues in a narrow way without having the necessary facts at hand.

The Constitutional Court reserved its judgment on the matter.

The Okah case raises very important constitutional and international law issues relating to the distinction between acts of international terrorism and acts committed by peoples in the context of a struggle against oppression.

SALC was represented by Advocate Kameel Premhid and Webber Wentzel Attorneys at the hearing.

For more information:

Kaajal Ramjathan-Keogh, Executive Director, Southern Africa Litigation Centre; Email: kaajalr@salc.org.za; Tel: +27 10 596 8538