Henry Okah: Judicial and political plunders by trial judge

On January 21, 2013 the South Gauteng High Court in Johannesburg found Mr Henry Okah guilty of 13 charges related to terrorism. We’ll get to that and other matters; but for now, it is pertinent to point out a few anomalies. Within hours of the bombing (10/01/2010), Nigerian President Jonathan exonerated the suspected group, and promised to make public the names of the persons and the group responsible for the attacks. Almost 30 months after the dastardly acts, the President has yet to tell the nation and the global community who and or what group was/is to be held accountable. Nonetheless, Mr Okah, the alleged leader of one of the factions that constitute the Movement for the Emancipation of the Niger Delta (MEND), was arrested in South Africa.

The trial of Mr. Okah leads us to the second anomaly: why was he tried in South Africa, and not in Nigeria where the alleged crimes occurred? Or is the Nigerian judiciary incapable and ill-equipped to handle such a high-profile trial? An accused, if fleeing arrest, can be arrested anywhere in the world. But such persons are generally extradited to the country where the crime allegedly took place. Under this universality, therefore, Okah should have been returned to Nigeria immediately after his arrest in Johannesburg.

The failure of the Nigeria government to ask for Okah, and further failure by the South African government to voluntarily return him to Nigeria, leads us to the third contradiction. What were the legal/political reasons advanced by both countries for not doing what was supposed to be done? And which country benefits the most by such an ‘arrangement’? As of today, no one has suggested or alleged that South African citizens were killed or wounded by the blasts, or that its national security was abridged. Since the South African government does not have a dog in the fight, what accounts for the posture she has so far taken: what’s in for the South Africans at both the private and public level?

From the moment he was arrested in South Africa, Mr. Okah steadfastly maintained his innocence – alleging that he was being target because of his refusal to incriminate ‘Northern personalities’ in the bombings; and also because of his refusal to render extrajudicial help to President Jonathan during and after elections. There are two other reasons insiders – insiders who are members of the Ijaw ethnic group to which Jonathan and Okah belong -- have proffered for his arrest: (1) his refusal to share in the loot that was offered to militants; and (2) his refusal to subordinate the collective aspirations of oil-producing communities toJonathan’s calculations.

From what we know, if Henry Okah had agreed to play ball, and agreed to caviar and champagne moments, there wouldn’t have been any trumped-up charges. But unfortunately, that is the situation he finds himself. But notwithstanding the situation he currently finds himself, the South Gauteng High Court in Johannesburg should have been very thorough, very professional, and impartial in its handling of the case.

While it is true that the Judge does not have insider’s knowledge of the intricacies and politics of the Niger Delta crisis, he should have controlled those things that were within this control. And because he did not, could not, or refused to control the controllable, he condoned and promoted grave injustices in his handling of the case and in the verdict he eventually rendered. Considering the evidence before the court, the judge erred in his reasoning and in his ruling.

In addition, it appeared as though the Judge could not properly manage his courtroom. And because of these elementary omissions and errors, he found an innocent man guilty. This verdict must not stand! Judge C.J. Claassen erred in his reasoning and in his ruling. How did we know this? The official transcripts are more than 1000 pages long; but here and now, we pay attention to his 90-page judgment. (Please see Registrar’s Ref No: SS94/2011 and DPP’S Ref No:JPV2011/0158.)

As to ‘Why is the accused being tried in a South African court,’ the Judge ruled that ‘South Africa is a member of the United Nations and therefore committed to executing its obligations in terms of international instruments dealing with terrorism and related activities.’ This is indeed true. But the fact is that MEND – The Movement for the Emancipation of the Niger Delta -- has never been adjudged a terrorist organization either by the Nigerian government, the UN, the EU, or the United States. Therefore, South Africa is NOT bound by any international treaty or convention on this particular matter.

The treaties and conventions the judge referred to include The Convention on the Prevention and Punishment of Crimes against Internationally Protected persons (1973); The International Convention Against the Taking of Hostages (1979); The International Convention for the Suppression of Terrorist Bombings (1997); and The Convention on the Prevention and Combating of Terrorism, adopted by the African Unity, at Algiers on 14 July 1999.

Second, on page 8(f) the judge expressly quoted the South African law under which Mr. Okah was being tried: ‘Section 1(5) excludes as a defense to a charge of terrorism under the Act the following: ‘Notwithstanding any provision in any other law, and subject to subsection (4), a political, philosophical, ideological, racial, ethnic, religious or any similar motive, shall not be considered for any reason, including for purposes of prosecution or extradition, to be a justifiable defense in respect of an offence of which the definition of terrorist activity forms an integral part.’ The Niger Delta struggle IS NOT and HAS NEVER had been either of those. It has always been about (a) resource control; (b) federal presence and infrastructural deficits; and (c) environmental degradation that have come to characterize the region.

Third, on pages 18(31) and (32), page 19(33), (34) and (35),and page20(36), (37), here the judge uses newspaper articles which were found on the hard drive of Mrs. Okah’s computer, along with old newspapers, in their South African home as evidence. These so-called evidences have no bearing on the case – other than as hearsay. Such a reputable court and judge should not have relied on such flimsy non-evidentiaries.

Fourth, what was also alarming was that Judge Claassen – on Page 27(62) – based part of his judgment on a badly forged MEND letter from a Peter Timi. One of the government’s star witnesses (Mr. Sele) had earlier testified that the said letter was a forgery. Why then would such a seasoned judge allow such falsification into evidence? Why?

Fifth, on page 11 (8) the Judge agrees that there was an armed struggle. He reaffirmed this on page 36(91). But then he went on to say that since Mr. Okah had accepted an unconditional amnesty, further participation in the Niger Delta struggle was illegal. Now, the judge failed to note three issues: (1) no government anywhere in the world permits the oppressed and the cheated to revolt against her; (2) the amnesty program, as devised and sold by the Yar’Adua government, was forced down the throat of justice-seeking groups in the region. As a result, not all the justice-seekers accepted the amnesty; and (3), the amnesty itself was illegal since it did not conform to domestic laws and international standard.

It should be noted that when the Nigerian government presented the amnesty matter to Mr. Okah, he refused to sign the formal form. And he made it clear – very clear – that his release was to be unconditional. The Yar’Adua-Jonathan government agreed to this. Those in doubt should ask the President, his private lawyer, or the Attorney General of the Federation.

Sixth, Judge Claassen found that someone had sent Mr. Okah a text relating to unrelated matters, and in the process addressed him as ‘Oga’ – Nigerian parlance for boss. In the thinking of the judge, therefore, the sender of the text must be a subordinate: an underling who carried out Mr. Okah’s bidding. No matter how one looks at it, this is a very dangerous interpretation on the part of the Judge. He seems not to know that within the Nigerian setting, the word ‘Oga’ can be used in different context. You need not be someone’s boss or supervisor to be so addressed. Nigeria has millions of ‘boss,’ ‘chief,’ ‘Oga,’ and ‘master.’ This is the type of things the judge allowed, and counted as credible evidence. How incredible!

What’s more, what was the job description of the said underling, and what assignments did he directly and or indirectly carry out for Mr. Okah? Furthermore, the judge opined that because Mr. Okah rescued someone to the tune of 200,000 naira, such a gift must have been payment towards the bombings. Where are the incontrovertible facts?

Seventh, why did the judge rule that Mr. Okah must rely on the magnanimity of the complainant, in this case, the Nigerian government (in order to get his witness from Nigeria)? The official transcript captured Judge Claassen saying this: ‘Mr. Maunatlala wanted the court to hear evidence in Nigeria. I wish to place on record that both myself and Mr. Abrahams assisted Mr. Maunatlala as far as possible in investigating the feasibility of such an order. The amount of obstacles in granting such a letter of request in terms of the particular Act, however, indicated that the problems are almost insurmountable.’ Insurmountable? How? Why?

The Judge further said this: ‘It would also appear that there is a lack of cooperation from the side of the Nigerian government in assisting this court in following that route. There is nothing that I can do about that.’ Nothing? How can a Judge who is entrusted with the issue of justice and fairness and with the civil and human rights of another human being be this helpless?

Now, if indeed there was really nothing he could have done to further the course of justice, why continue with the prosecution of Mr. Okah when he clearly did not have access to witnesses? Why continue when it was clear that the Nigerian government was not cooperating and had no intention to cooperate with the court? In spite of this and other hindrances to fairness and justice, the Judge, in his reasoning, blamed Mr. Okah for the wrong perpetrated by the Nigerian government. Realizing and recognizing the shenanigans of the Nigerian government, shouldn’t the court have thrown out the case? After all, those accusedbefore the court of law has the right to summon hostile and friendly witnesses! To do otherwise is to perpetuate injustice and iniquities.

Eighth: At one point Judge Claassen lost control of his court. For instance, when witnesses for the state – witnesses being held in the custody of the Nigerian State Security Service (SSS) were testifying -- the judge permitted an officer from the security agency, Mr. Clifford Osagie, to sit directly across the witnesses thereby intimidating the witnesses to do/say as they had been instructed. What Judge would allow such malicious intimidation to take place in his courtroom? And on January 31, 2013 when Mr. Okah appeared in court for the mitigation phase of the trial, it seems as if the Judge was not interested, thus causing a heated argument between all parties involved. According to eye witnesses, it was as if the Judge was ‘eager to do the bidding of the Nigerian government.’

In a post-9-11 world, all that is needed for your human and civil rights to be taken away is to be branded a terrorist. And whether or not you are, in many cases, does not matter. The label stays. And once this happens, the key to your cell, metaphorically speaking, may be thrown away. Many of the journalists who attended the trial seem to believe that the entire trial was a travesty right from the beginning. There is also the impression that the trial is being paid for and being orchestrated by the Nigerian government. Whether this is true or not is difficult to ascertain. Nonetheless, theinvestigating officer, Col. Zeeman conceded that some of the ‘evidences’ used to deny Mr. Okah bail, were fabrications.

No credible evidence exists that links Henry Okah with any of the bombings. All through the trial, no piece of scientific or credible physical evidence was ever produced. No trustworthy witnesses took the stand. None! You do not convict a man based on beer parlor rumors, or because there is a long-standing grudge between the accused and President Jonathan. Whether you like Mr. Okah or nor is irrelevant. What matters is justice: justice borne out of the truth. History and posterity will show that, sadly, Judge C.J Claassen made a grave error in his pronouncements.

* Sabella Ogbobode Abidde, PhD, is Assistant Professor of Humanities & World History, Department of Humanities, Alabama State University, USA.