Pretoria - Convicted Nigerian terrorist leader Henry Okah yesterday asked the Gauteng High Court, Pretoria, to declare his conviction unlawful and ultimately set him free.
“I am not a terrorist. I am a prisoner of war,” Okah told Judge Moses Mavundla.
He was guarded by about 15 heavily armed police and Correctional Service guards in court.
Smartly dressed in a black suit, Okah argued his own application.
In eloquently citing the law, he also asked the court to declare that he was a participant in a non-international armed conflict and thus protected by the Geneva Convention. He said he was entitled to appear before a tribunal as contemplated by the Convention.
Okah was of the opinion that he should have never been tried by the high court in Joburg, but before the International Criminal Court (ICC).
He was convicted under the Terrorist Act and sentenced following two bombings in the Nigerian cities of Warri and Abuja in March and October 2010.
He was tried in a South African court because he was arrested here and had planned one of the bombings from within the country’s borders.
But Okah said this court never had jurisdiction to try him as the crimes were committed outside this country’s borders.
He argued that his rights to a fair trial were violated as he was prosecuted under the wrong statute.
“If you argue that anyone who fights against his government is a terrorist, everyone who fought for liberation in South Africa would then be a terrorist,” he said.
He was merely embroiled in an armed conflict against the Nigerian government, and the people who died and were injured during the two bombings were mainly members of the Nigerian security forces, he said.
Okah is the leader of the Movement for the Emancipation of the Niger Delta. He told the court he was deliberately tried by the criminal court here to secure a conviction, as the authorities knew it would not have been such an easy road for them before the ICC.
Okah also claimed his arrest was ordered by then president Jacob Zuma, but did not elaborate on this statement.
The National Prosecuting Authority (NPA), in opposing the application, said that during his criminal trial Okah admitted the bombings complied with the definition of terrorism.
The bombings caused mayhem to buildings and killed and injured several people.
Okah also admitted the timing devices which were used to set off the bombs at different times were found at the site. He also conceded that the delay in the second bomb exploding was designed to attract people to the location of the first bomb to cause maximum death and injury.
The NPA said his organisation also accepted responsibility for the bombings.
After his conviction and sentence, Okah turned to the Supreme Court of Appeal to appeal his convictions. This court set aside some of the convictions relating to the Warri bombing after it found that the planning for this bombing was done in Nigeria, while the other was planned in South Africa.
It reduced his sentence to 20 years, but the Constitutional Court overturned this finding on appeal and reinstated the 24-year jail term.
Judge Mavundla was told that three courts have in the past ruled on these issues, and this court, sitting as one judge, did not have the jurisdiction to rule against those courts, including the apex court, in setting Okah free. Judgment was reserved.
It was not clear whether Okah would now return to the Kokstad maximum prison where he has been held until recently. He was moved to C-Max Prison pending this application, but Okah complained bitterly about the conditions in this jail.
He last month launched an urgent application to be moved, but the court did not entertain this.
He is regarded as a security risk following “sensitive information” from the office of national intelligence that he “poses a very high security risk to the country”.