It was hard to believe that the broad-shouldered man who jogged up the stairs from the holding cells, beamed at his wife seated at the back of Court 12 and flipped a thumbs-up to his attorney could be a terrorist. But as Henry Okah turned towards magistrate Hein Louw at his bail hearing in the Johannesburg Magistrate’s Court last week, terrorism was the charge he faced.
Okah will run up those stairs again on Friday, when Louw is expected to pronounce whether the Nigerian, who is accused of masterminding double car bombings in Abuja on October 1 on behalf of the Movement for the Emancipation of the Niger Delta (Mend) can walk out on bail.
Seated in the courtroom, however, will be a posse of officials from the department of home affairs who have kept an eye on proceedings since Okah’s bail hearing began five weeks ago. They believe Okah is in South Africa illegally and have dug up evidence of irregularities in his permanent-residence application, first lodged in 2005, to prove it. Should Okah be released on bail they could, according to his lawyer, nab him and have him deported to Nigeria, with his wife and four young children.
And then there are the Nigerian government officials, who have also sat through Okah’s hearing, noting down every word, who appear determined, his lawyer says, to bring the man to book for murder and treason, offences that carry the death penalty in Nigeria.
The Mail & Guardian has been unable to establish whether the Nigerian government intends to apply for Okah’s extradition (local officials did not respond to repeated requests for comment), but it remains an option. The Nigerians would first have to satisfy the South Africans that Okah would not be executed, however, since this country’s law does not recognise the death penalty as fair punishment.
So, whichever way Okah turns as he stands in the dock, he faces trouble. Straight ahead, the prosecution — led by the suave Shaun Abrahams — could set the wheels in motion for Okah to be tried for contravening a piece of South African legislation, the Protection of Constitutional Democracy Against Terrorist and Related Activities Act, which carries a maximum life sentence.
Only Rudi Krause, Okah’s bustling defence lawyer, can save him — and Krause is putting up one heck of a fight.
Search without a warrant
Speaking to the M&G in his downtown offices, Krause returned to the principal concerns he has raised previously in court, concerns which he says are indicative of the lack of a state case against Okah.
He wants to know why police searched Okah’s Johannesburg home without a warrant, following a tip-off by unknown informants, the day before the Abuja bombings, taking away laptops and cellphones, but releasing Okah for lack of evidence.
He also wants to know why police attached an expired 2007 Interpol arrest warrant issued against Okah in their application for his arrest the day after the bombings and why the magistrate who issued the warrant accepted it. Krause is also questioning why the prosecution did not produce proof of the incriminatory SMSes and emails between Okah and the bombers they say they possess and why home affairs officials have gone back to Okah’s 2005 permanent residence application, which they approved at the time, to find reasons why his paperwork was invalid and his subsequent residence in the country illegal.
By contrast, the police and prosecution have been reticent, with police spokesperson Tumi Shai and National Prosecuting Authority spokesperson Mthunzi Mhaga both declining to comment on the case to the M&G until Louw has pronounced on Okah’s bail application.
But it is home affairs’s pursuit of Okah’s immigration status that could ultimately determine where, and under which legal jurisdiction, the Nigerian’s fate is decided.
‘Backdoor extradition’
Krause fears home affairs is seeking to effect “a backdoor extradition” by deporting Okah and his family back to Nigeria on an immigration technicality, thereby dispensing with the comparatively lengthy legal process of extradition.
Immigration law expert Leon ÂIsaacson, of Global Migration SA, agrees that this is a possibility. Citing the case of Vito Palazzolo, whom Italian authorities have been trying to extradite unsuccessfully since 1995, Isaacson said: “South African law is famous for the leeway which it gives people charged with serious crimes leave to appeal.”
Home affairs spokesperson ÂRonnie Mamoepa admitted that his department had erred and that disciplinary action would be taken against the official responsible for issuing Okah’s permit. But he insisted that the department was within its rights “to ensure that you don’t have illegal immigration in the country”.
The department should have picked up any non-compliance in Okah’s paperwork when he applied five years ago, Krause said.
In a bid to avoid his client’s deportation Krause has requested that the police transport Okah from prison to a nearby refugee reception office where he can apply for political asylum. Krause says police have not responded to his request so far and they declined to comment.
This week home affairs attempted, without success, to serve papers on Okah in his cell and Krause said he has not been able to establish what the papers contain.
Mamoepa, on the other hand, would not “confirm or deny” whether the papers were served.
Behind this chess game lurks the shadowy hand of Nigeria’s State Security Service, which is investigating the Abuja bombings. Last Wednesday, two days before Okah appeared again in court, the security service held a press conference in Nigeria linking Okah to another bombing in Warri in March, which his lawyer suspects could be an attempt to further the case in front of the Johannesburg magistrate.
The M&G‘s requests for confirmation of the Nigerian government’s plans for Okah went unacknowledged by the Nigerian high commission, while the South African department of state security referred the paper back to the police and the NPA, which had previously refused to comment. But it is clear from affidavits submitted by the prosecution in court that law enforcement agencies in both countries “are working in close proximity”.
Whether such proximity extends to the tip-off from an undisclosed source which led to the initial search and seizure of Okah’s property on September 30, or to what Krause sees as underhanded attempts to deport Okah to Nigeria, is unclear.
But as independent legal analyst professor Vincent Nmehielle pointed out, the two countries are leaders in their respective regions and have enjoyed strong bilateral ties since Nigeria featured prominently in the anti-apartheid movement.
“South Africa would not want to allow itself to be seen as a territory from which terror attacks are mounted against its partners,” Nmehielle said.
In the sole interview he has given since his arrest, Okah told al-Jazeera on October 5 that an aide to Nigerian President Goodluck Jonathan called him a day after the Abuja bombings to ask him to retract Mend’s claims of responsibility. Such a retraction would help Jonathan, who is also from the Niger Delta, to pin the bomb attack on other factions opposed to his presidential bid next year, Okah said.
But political economist Dr Omano Edigheji told the M&G no president would seek the endorsement of what is considered to be a terrorist organisation. “That is a distraction,” Edigheji said. “The substantive issue is there was a bomb explosion. Okah should focus on exonerating himself from the criminal issue before him.”
So, who is this man?
Henry Emomotimi Okah (45) was born and brought up in Lagos, but his family is from Bayelsa state, an impoverished area on the Niger Delta.
A qualified marine engineer, Okah has worked with the Nigerian merchant navy and is reported to be a keen war historian.
He has been described by Time magazine as “the Nigerian rebel who ‘taxes’ your gasoline” because attacks by Mend on oil infrastructure in the Delta in the past have caused global oil prices to soar. Okah rejects these tags, but has admitted in court to being a sympathiser with the Mend cause.
In September 2007 he was arrested while on business in Angola and deported to Nigeria in February 2008. He was held in solitary confinement until June last year before being released on a presidential amnesty. Okah came to the public’s attention during the amnesty negotiations, according to analyst Vincent Nmehielle.
What is Mend?
Nigeria is Africa’s biggest oil producer and among the top 10 in the world, with its oil deposits located in the Niger Delta. The Movement for the Emancipation of the Niger Delta (Mend) started in the early 2000s as one of many civic movements that have tried to claim greater autonomy over the region’s oil revenue from the government and multinational oil corporations.
By 2006 Mend had militarised and started carrying out sabotage attacks on oil rigs and pipelines, as well as taking oil workers hostage.
Mend’s tactics contributed to soaring global oil prices in 2008 and have given it a high public profile. In 1995 prominent delta activist Ken Saro-Wiwa was executed by the Nigerian military government. Saro-Wiwa’s son, Ken, subsequently sued Shell for alleged human rights violations in the delta. Days before the trial, in June last year, Shell reached an out-of-court settlement with the Saro-Wiwas and other victims.