A South Gauteng High Court in Johannesburg, South Africas will on Friday decide whether terror suspect, Mr. Henry Okah, should be granted bail or remanded in prison custody to await trial on terrorism-related charges.
Okah is charged with the delivery, placement and detonation of explosives in Abuja on October 1, 2010. He is also facing an alternative count of conspiring with others to do so.
Okah was denied bail by a Johannesburg Magistrates’ Court on November 19, 2010 after which he launched an appeal.
In his appeal hearing at the High Court on Tuesday, Okah‘s counsel, Dumisa Ntsebeza, said the magistrate had erred in law by not granting his client bail.
Urging the appeal court to overturn the verdict, Ntsebeza contended, that the state used a ‘red’ letter notice of 2007 to get an arrest warrant for Okah just to create an impression that his client was a wanted person.
He argued that Okah had denied being the leader of the Movement for the Emancipation of Niger Delta, adding that the lower court was wrong to have insisted he was the leader.
Ntsebeza said that contrary to claims that Okah‘s wife, Azuka, referred to him as MEND leader in a correspondence, she only referred to him as a sympathiser of MEND.
The lawyer also faulted the affidavit by Nigeria‘s Attorney-General of the Federation and Minister of Justice, Mr. Mohammed Adoke (SAN), urging the court to deny Okah bail. He argued that the affidavit did not conform with rules on admissibility of evidence.
According to him, under South African laws, the affidavit should have had the seal of office and should have been endorsed by a Nigerian diplomat in South Africa to be admissible but it was not.
Ntsebeza, who claimed that much of what was in the affidavit was speculative, added that camouflage uniforms and invoices from a military store found in Okah‘s house during a raid by security operatives were not illegal and were irrelevant to the case.
He said there was also no evidence to show that Okah had any contact with the suspects arrested in Nigeria through e-mail or phone.
Ntsebeza also pointed out that the affidavit deposed to by Col. Zeeman of the South African Police Service on links between Okah and other suspects involved in the October 1 bombings in Abuja was untruthful.
Questioned by Judge Phillip Hattingh on why the defence lawyers did not avail themselves of the opportunity offered them to view the hard disk and cell phone memories of Okah‘s seized computer and cell phones, Ntsebeza said it would have further delayed trial.
Magistrate Hein Louw at the lower court had ordered that the computer memories be provided to the defence to see their contents after Okah had insisted that there was no evidence linking him to the bombers.
However, the defence counsel later said it would no longer be necessary.
Hattingh wondered why they did not take the opportunity which could have proved their case and asked whether they refrained out of fear.
Responding, Mr. Shaun Abrahams, the counsel to the state, insisted that the magistrate at the lower court was right to deny Okah bail.
He said that even if the high court judge differed with some reasons advanced by the lower court in denying bail, he could still deny bail for other reasons.
Abrahams said Okah had been reported to be untruthful in the witness box and had not been able to explain to the lower court convincingly how he got MEND’s e-mails on the bomb blasts with speed.
He said Okah had simply explained he got it from his lawyer and the lawyer had not made any effort to explain the source.
Abrahams also said Adoke‘s affidavit was endorsed by a registrar of a court in Nigeria and that the issue of admissibility could only come up if it was used during the hearing of the case itself and not at this stage.
He argued that South Africa was on safe ground in the area of extra-territorial jurisdiction on the case.
The attorney also restated that if Okah needed surgery as claimed by his counsel, arrangements could be made to have it done under police guidance at a place of his choice, insisting that he should not be granted bail.
Hattingh said he realised the urgency of bail applications but had to make use of the law libraries to cross-check some cases before delivering his verdict on Friday.
The judge at the lower court had, in denying Okah bail, held that he was convinced that the suspect was indeed the leader of MEND contrary to his claims.
The magistrate said that Okah had been untruthful in the witness box and the court could not put any weight on his testimony.
Louw noted that MEND had accepted responsibility for the bomb blasts in Nigeria, which claimed no fewer than 12 lives last October.
He said Okah had used the collective nouns ‘we’ and ‘us’ in his diary entries on the militancy in the Niger Delta, which showed he was part of it.
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