EXTRA TERRITORIAL JURISDICTION – TERRORISM

Okah v S and others [2016] 4 All SA 775 (SCA)

Criminal law – Extra-territorial jurisdiction – Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 – Section 15 of the Act provides that a South African court has jurisdiction in respect of any specified offence committed in the circumstances listed in the section – Court setting out interpretation and application of section 15.

Words and phrases – “specified offence” – Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 – Section 15(1) – A South African court has jurisdiction in respect of any specified offence committed in the circumstances listed in the section.

The appellant was a Nigerian citizen who had permanent residence status in South Africa. He was implicated in two separate bombings in Nigeria, as a result of which 12 people were killed, 64 severely injured and property was damaged. Based on his alleged involvement in the planning and execution of the bombings, he was arrested in South Africa on 2 October 2010 and was charged with 13 counts under the Protection of Constitutional Democracy Against Terrorist and Related Activities Act 33 of 2004 (the “Act”). It was uncontested that the appellant was a leader of the Movement for the Emancipation of the Niger Delta (“MEND”) during 2010 and that he had in the past supplied arms and ammunition to that organisation. It was accepted during the trial that MEND had claimed responsibility for the two bombings. The appellant denied that he had been involved in the terrorist activities alleged by the State and suggested, when his legal representative cross-examined witnesses, that he had been the victim of a conspiracy between them and the Nigerian government to falsely implicate him. He was nevertheless convicted and sentenced as charged.

He applied for leave to appeal against his convictions on counts 1 to 12, principally on the basis that the court had no jurisdiction to adjudicate on those counts because they were acts of terrorism committed beyond the borders of South Africa, namely in Nigeria. A secondary ground on which leave to appeal was sought was that there had been a duplication of charges. In respect of count 13, leave to appeal was sought on the basis that no link could be established between the appellant and the email threatening South African interests in Nigeria.

Held – The only issues on appeal were whether the court below had jurisdiction to entertain any or all of the first 12 counts which related to the bombings, and whether the evidence in the court below justified a conviction on count 13, which alleged that the appellant had threatened certain South African entities that were commercially active in Nigeria with destabilising terrorist activities.

Jurisdiction is an important aspect of the sovereignty of the State. Sovereignty entitles a State to exercise its functions within a particular territory to the exclusion of other States. In most circumstances the exercise of State power, as aforesaid, is limited to its own territory. It is a fundamental principle that a State can assert its jurisdiction over all criminal acts that occur within its territory and over all persons present in its territory, who are responsible for such acts, whatever their nationality. While our courts have declined to exercise jurisdiction over persons who commit crimes in other countries, it is recognised that there are exceptions to that general rule. The primary question in this case was to what extent extra-territorial jurisdiction is conferred by the Act in relation to offences created thereby.

Section 15 of the Act provides that a South African court has jurisdiction in respect of any specified offence committed in the circumstances listed in the section. The present Court found that the court below failed to conduct a proper interpretation of section 15, resulting in it wrongly assuming jurisdiction in relation to counts 1, 3, 5 and 7. In respect of those convictions, the appeal had to succeed. The rest of the convictions on the first 12 counts were confirmed. The setting aside of the convictions referred to above required the court to reconsider sentences. In doing so, it imposed an effective sentence of 20 years’ imprisonment.

On the thirteenth count, the Court pointed out that there was no acceptable evidence connecting the appellant with the email threatening South African interests in Nigeria. The court below therefore erred in convicting the appellant on the relevant count, and the appeal had to succeed in that regard.

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