EXTRATERRITORIAL JURISDICTION FOR PROTECTION OF CONSTITUTIONAL DEMOCRACY

S v OKAH 2015 (2) SACR 561 (GJ)
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.

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 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.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 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 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 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 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.

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