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Johannesburg - Nigerian Henry Okah, convicted of terrorism, believes his trial in the High Court in Johannesburg was irregular, his lawyer told the court on Monday.
“This trial goes to the heart of our [legal] system - the right to a fair trial,” JP Marais, for Okah, told the court.
Marais applied for special entries to be made on record in terms of Section 317 of the Criminal Procedure Act.
The Act states if an accused is of the view that the trial proceedings were irregular, he or she would be allowed to apply for a special entry to be made on the record stating in what respect the proceedings are alleged to be irregular.
The special entry could be made unless the court believed the application was “not made bona fide or that it is frivolous or absurd or that the granting of the application would be an abuse of the process of the court”, Marais said.
“I want to start off by saying the application... is neither frivolous nor absurd,” he told the court.
“The interests of justice would be served if entries are made because the cornerstone of our criminal justice system is based on the right to a fair trial.”
Marais said there were three different irregularities during the trial.
One of the witnesses introduced by the State was not properly identified as having worked for the Nigerian state security service (SSS) and had been involved in cases of this matter in Nigeria.
He argued that other witnesses said they received “ill-treatment from the SSS” and said that the witnesses were in the custody of the SSS.
Judge Neels Claassen said he had a problem with the argument because the witnesses made statements long before they knew they had to testify.
“The defence had access to those statements and could cross-examine them based on that,” he said.
Marais said his problem was mainly that Okah did not know exactly who the witness was.
His second argument was that Okah was not offered assistance from the Nigerian government.
“Had he [Okah ] been given consular assistance, he might not have gone on trial. There might have been another solution - a political solution,” Marais said.
Claassen intervened and said Okah was offered the assistance by the State but did not take it.
Marais argued that taking the assistance would not have stopped prosecution.
His third entry was around getting witnesses to South Africa.
“The court knew of the witnesses the accused wanted for trial,” Marais argued. “The accused could not get witnesses here.”
Claassen said the court had received letters that some of the witnesses would not have been allowed to come to South Africa or would not have been allowed out of prison to testify.
“What would have been the point of that letter?” he asked Marais.
Marais responded: “Fact of the matter is that is the law... At least an effort should have been made.”
Prosecutor Shaun Abrahams said the State opposed the application and said he would file papers on Tuesday morning.
Claassen stood the matter down until Tuesday morning.
On Monday morning, Okah, flanked by 12 police officers and dressed in a red and blue chequered t-shirt, entered the dock and turned to blow a kiss to his wife Azuka, who was seated in the third row, before taking his place in the dock.
On January 21, Okah was found guilty on 13 counts of terrorism, including engaging in terrorist activities, conspiracy to engage in terrorist activities, and delivering, placing, and detonating an explosive device.
The charges related to two car bombs in Abuja, Nigeria, in which 12 people were killed and 36 injured on October 1, 2010, the anniversary of the country's independence.
The court heard Okah intended calling at least five people from the United State and Nigeria to come and testify on his behalf.
During judgement in January, Claassen said the State had proved Okah's guilt beyond a reasonable doubt, and his failure to testify meant the evidence against him remained uncontested.
He found no evidence that Okah did not head the Movement for the Emancipation of the Niger Delta, which claimed responsibility for the blasts.
During the trial, Okah denied any involvement in the blasts and said the charges against him were politically motivated.
On Monday morning, the main road outside the court was closed to traffic. Police were controlling access.
On the court's second floor police and security guards conducted body searches and looked through bags twice before letting people enter the room.
Marais called his first witness to testify in mitigation of sentencing on Monday before lunch.
Sentencing proceedings resume at 2pm.