Why Henry Okah Was Tried, Convicted and Jailed In South Africa

By Okoi Obono-Obla

In the wake of the trial, conviction and sentence of a Nigerian, by a South African High Court, Mr. Henry Okah; one of my good friends, Sunday E. Iyamba Snr, privately asked me a question which has been agitating and nagging a lot of Nigerians. The question by Mr. Iyamba was thus: “Please I am at a loss as to why a crime
committed in Nigeria will be prosecuted by a foreign govt (using their tax payer’s money) as in the recent Orkar terrorism case. Is that a normal practice in International law or is it because terrorism is a global concern? I’m making this enquiry just for the purpose of learning from a legal mind”.
I crave the indulgence and seek the permission of Mr. Iyamba to publicly discuss the question he posed to me in private several weeks but which I never answered because of my crowded schedule. Henry Okah was established by the South African Court to be one of the leaders of the Movement for the Emancipation of Niger Delta (MEND). He was found guilty this week on a 13 count charge of terrorism brought against him by the South African Police and sentenced to a 24 years jail term for complicity in the bombing at the Eagle Square, Abuja on the 1st October, 2010 at a ceremony to mark the 50th independence anniversary of Nigeria.
Undoubtedly Terrorism is an international crime. It is a crime against humanity to all intents and purposes. The United Nations in conformity with the purposes and principles of its Charter of responsibility for the maintenance of international peace and security and the promotion of good-neighbourliness and friendly relations and cooperation among States has made the terrorism an international crime. This is also in appreciation of the threat the scourge of terrorism poses to human civilisation. Terrorism is therefore in all form and ramification transnational crime. It straddles international boundaries.
The leader of MEND, Henry Okah lives in South Africa and there is evidence that linked him with those who carried out the bombing in Eagle Square in Abuja that led to the death of so many people. So despite the fact that the offence was actually committed in Nigeria, a Court in South Africa has jurisdiction to try the offence and those who were linked with it.
There are several United Nations Conventions on suppression and prevention of Terrorism. One of them is the International Convention on the Suppression of Terrorism Bombings, 1997. It came into force on the 23rd May, 2001. Nigeria and South Africa being members of the United Nations are signatories to the Convention. The International Convention on Suppression of Terrorism Bombings is a multi-lateral treaty open to ratification of all States designed to criminalize the unlawful and intentional use of explosives in public places to kill, injure, or to cause extensive destruction to compel a government or an international organization to do or to abstain from doing some act.
South Africa and Nigeria are therefore bound by its provisions and obligated to enforce them. After the bombing of the Eagle Square some people were arrested and after investigation it was established that the group responsibility was the Movement for the Emancipation of Niger Delta. Henry Okah who lives in South Africa was implicated. The Nigerian Government through diplomatic channel reported Henry Okah to the South African authorities. He was arrested and charged to Court in South Africa.
Article 7 (1) of the International Convention on the Suppression of Terrorism Bombings provides thus:
“Upon receiving information that a person who is alleged to have committed an offence as set forth in Article 2 may be present in its territory, the State Party concerned shall take further measures as may be necessary under its domestic law to investigate the facts contained in the information”.
Article 7 (2) of the International Convention on Suppression of Terrorism Bombings further provides thus:
“ Upon being satisfied that the circumstances so warrant, the State Party in whose territory the offender or alleged offender is present shall take the appropriate measures under its domestic law so as to ensure that the person’s present for the purpose of prosecution or extradition”.
It is obviously that the South African Government invoked the provisions of Article 7 (1) (2) & (3) of the International Convention on Suppression of Terrorism Bombings as soon as the Nigerian Government made a report against Henry Okah over his complicity in the Eagle Square bombing. The South African Government was therefore under international law was obligated to investigate the allegation against Henry Okah.
In this regard Article 8 (1) of the International Convention on the Suppression of Terrorism Bombings provide thus:
“The State Party in the territory of which the alleged offender is present, shall in cases to which article 6 applies, if it does not extradite that person, be obliged, without exception whatsoever and whether or not the offence was committed in its territory, to submit the case without undue delay to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that State. Those authorities shall take their decision in the same manner as in the case of any other offence of a grave nature under the law of that State”.
Article 19 of the International Convention on Suppresion of Terrorism Bombings expressly excludes from the scope of the Convention certain activities of the State and Armed Forces thus:
“Nothing in this Convention shall affect other rights, obligations and responsibilities of States, and individuals under international law, in particular the purposes and principles of the Charter of the United Nations and International humanitarian law. 2. The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
At the African Regional level, there is the Organization of African Union Convention on the Prevention and Combating Terrorism, Algiers, 1999 and the Protocol to that Convention signed in Addis Ababa in July, 2004. In the light of the above, I then wonder aloud the strident call by some interest groups and individuals for the Federal Government to grant amnesty to the Boko Haram terrorists whop have been carrying out recklessly and randomly a massive campaign of terrorism bombings in Northern Nigeria since 2009 which has led to the death of more than 4000 persons and destruction of property.


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