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[2013] ZAGPJHC 75
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S v Okah (SS94/11) [2013] ZAGPJHC 75 (26 March 2013)
IN THE SOUTH GAUTENG
HIGH COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: SS94/11
DATE
:
26/03/2013
In
the matter between
THE
STATE
and
HENRY
EMOMOTIMI OKAH
ACCUSED
S E N T E N C E
C. J. CLAASSEN J
:
[1] The accused has been
found guilty of 13 charges relating to terrorism in one form or the
other. It is now the court’s
duty to impose a fit and proper
sentence. In doing so the court is duty bound to take into
consideration factors which affect the
crime, the criminal and the
community.
[2] In the present
instance this court is in the peculiar situation that the community
where this crime was committed is not within
South Africa although
the accused was arrested here and committed some of the planning and
preparation for purposes of executing
those crimes in Nigeria here in
South Africa. This novel judicial jurisdiction derives from the
application to this case of the
provisions of the
Protection of
Constitutional Democracy Against Terrorists and Related Activities
Act
No 33 of 2004
(“the Act”), which gives
this court the jurisdiction to hear crimes of terrorism that had been
committed beyond the
borders of this country.
[3] The background to
that Act can be found in the outcry against international terrorism,
in particular after the 9/11 attacks
on the World Trade Centre in New
York in September 2001. Thereafter the United Nations agreed to
various treaties to combat
international terrorism. South Africa
became a signatory to these treaties as a result whereof South Africa
was duty bound to adopt
the provisions contained in these treaties
and incorporate them into South African domestic law. The rationale
for this is to be
found in the fact that countries should not be
regarded as safe havens for terrorists who commit terrorism in other
countries.
The underlying philosophy is that if terrorists know
that they cannot hide in any country, they may be discouraged from
committing
acts of terrorism worldwide.
[4] It is therefore the
duty of this court in imposing a fit and proper sentence to take into
account the interests of the community
worldwide by making South
Africa unattractive to any international terrorists. It is
therefore important that, whatever sentence
the court imposes when
enforcing the provisions of the Act, the country’s image as an
opponent to international terrorism
should not be tainted or
undermined.
The Crimes
[5] I then turn to the
particular crimes that had been committed by the accused. It is
not necessary to refer to each of the
13 counts. Suffice to say
that they all relate to three events. The charges relating to the
Warri bombings are set out in
counts 1, 3, 5, 7, 9, and 11. The
charges relating to the Abuja bombings are set out in counts 2, 4, 6,
8, 10 and 12.
As previously stated, count 13 concerned the
accused’s engaging in threats of terrorist activity.
These are all separate
statutory offences and the accused have been
found guilty on all of them.
[6] It would, however, be
wrong to regard these as separate offences for purposes of
sentencing. In my view the appropriate
view to adopt is to
impose sentence only in three respects. All the counts dealing
with the Warri bombings should be taken
together for purposes of
sentence and the same should occur in regard to all the counts
dealing with the Abuja bombings. Count
13 should be regarded as a
separate offence.
The Warri Bombings
[7] The first event was
the car bombs that exploded in the town of Warri in Nigeria on 15
March 2010. This occurred at a post
amnesty dialogue meeting
that was organised for that day in Warri. The purpose of this
meeting was most commendable as it
was intended to explore such
things as skill acquisition and training programs for the former
militants; re-evaluating the strategies
to reconstruct the
communities devastated by militant activities and oil pollution;
rehabilitation programs for such militants;
disarmament and amnesty;
bunkering and economic sabotage in Nigeria’s economic zone;
resource control; demilitarisation of
the Niger Delta; and the
security, economic development and peace in that area in general.
[8] It is common cause
that state governors and leaders of militant organisations and
leaders of multinational oil companies, the
elders and the youth from
that particular region, women organisations and other members of
society were to be present at this particular
meeting. The purpose of
the bombing as it appears from documents that were placed before this
court, was to embarrass the governor,
as well as the president of
Nigeria, Dr Goodluck Jonathan in the preence of all these
dignataries.
[9] The car bombs were
parked in relative close proximity to one another and set to explode
within 15 minutes from one another for
the sole purpose of increasing
the amount of damage and casualties. It was expected that once the
first car bomb exploded, people
would arrive to lend assistance to
the injured. The purpose of the second car bomb was to endanger the
lives and safety of those
that gathered after the first explosion.
It was therefore a very deliberate plan to detonate two car bombs one
after the
other in order to create as much havoc as possible.
In the case of the Warri bombings one person died and 11 other
persons
sustained serious injuries.
The Abuja Bombings
[10] The second event was
the bombings that occurred on 1 October 2010 at the National
Independence Day celebrations in Abuja.
In this instance,
several heads of state attended, as well as President Goodluck
Jonathan and other senior government representatives.
The same
methodoligy was adopted in exploding first one car bomb and then 10
to 15 minutes later another. On this occasion, 8 people
died and 53
persons sustained serious injuries.
Threats of Terrorism
[11] The third event,
which is the subject of count 13, pertained to threats directed at
the South African government and its nationals
employed in Nigeria.
Threats were made to take such individuals hostage. This occurred
subsequent to the bombings and therefore
forms the third leg of the
events which gave rise to the convictions of the accused on all 13
counts.
[12] It cannot be
gainsaid that these are all serious crimes as lives were lost and the
safety of South African citizens were threatened
by the acts of the
accused. All of this indicate that these were very serious crimes and
they have to be punished appropriately.
The Criminal
[13] As to the criminal,
the following facts appear from the bail hearing which was handed in
as an exhibit in this case.
The accused was born on 22 March
1965 and he is currently 48 years old. He has been granted a
permanent residence visa to
reside in South Africa. He is
married and has four children, all of whom are still dependent on
him.
[14] The defence tendered
the evidence of the deputy head of the school attended by these
children, Mr J Clark. He testified that
they have suffered as a
result of the stresses and strains following upon the accused’s
arrest on 2 October 2010.
[15] The accused is a
qualified marine engineer. He is a businessman and owner of a
company known as San Froid Ltd.
He has no previous
convictions. Since his arrest on 2 October 2010, he has been
detained in custody for a period of two and
a half years.
[16] The accused,
however, has not accepted any responsibility for any of the crimes
committed nor has he shown any remorse. There
was, however, evidence
before this court that he is regarded as a leader in Nigeria and in
particular in the Niger Delta.
[17] The militancy in the
Niger Delta region was caused by the failure of the Nigerian
government to adequately promote the interests
of the community in
that area. The evidence disclosed that much of the revenue that was
gained by the government from oil extraction
was not re-invested in
the development of the region in the form of building of
infrastructure, schools, clinics, etcetera.
[18] The militants who
gathered in the creeks in the Niger River Delta committed acts of
terrorism by blowing up some of the pipelines
of the international
oil companies and taking their executives hostage, claiming ransom in
return for their release. The
money thus generated was used to
purchase further armaments to continue their militant struggle.
[19] The accused became
the leader of this struggle. I shall accept for purposes of sentence
that it was politically motivated in
order to draw the attention of
the government to its failure to develop the Delta region
adequately. It would therefore be
wrong for this court to turn
a blind eye to the fact that this struggle in Nigeria was politically
motivated for a good cause,
namely the proper development of the
Niger Delta Region.
The Community
Interests
[20] It is of course true
that once a political struggle becomes militant, the foreseen and
unforeseen consequences are always bloodshed
and tragedy. In
the present instance that is exactly what happened in the two
bombings that occurred on 15 March and 1 October
2010. The question
that arises is how to balance the legitimate political aspirations of
a community within a country with the
duty of a court to punish
crimes of violence. A comparable problem faced the courts in
South Africa during the 60’s
when it had to sentence ANC
leaders for their acts of terrorism. I agree with Mr J P Marais for
the accused that these factors
must be taken into account when the
imposition of a proper sentence is considered.
[21] However, section
1(5) of the Act states that political, philosophical, ideological,
racial, ethnic, religious and other motives
are not to be considered
as a justifiable defence for terrorist activities. The conviction of
the accused underscores the fact
that this court did not regard his
political motives as a justification for the crimes that he had
committed. But when a proper
sentence is considered, I do believe
that those political motivations should form part of the matrix of
the facts to be considered
when imposing sentence.
[22] The Act itself does
not impose minimum sentences for all the statutory terrorist crimes
created therein. In fact the act allows
a wide spectrum of sentences
to be imposed ranging from the imposition of a fine, up to and
including life imprisonment.
There is, however, a minimum
sentence applicable to these crimes by virtue of the Criminal Law
Amendment Act, Act 105 of 1997.
[23] Section 51(1) of Act
105 of 1997 prescribes that the court shall sentence a person
convicted of an offence referred to in part
1 of schedule 2, to life
imprisonment. Part 1 of schedule 2, states that an
offence referred to in sections 2, 5, 8,
or 14 of the Protection of
Constitutional Democracy Against Terrorists and Related Activities
Act, No 33 of 2004 shall fall within
the ambit of Section 51(1), if
the offences endangered the life or caused serious bodily injury or
death to any person or a number
of persons or caused serious risk to
their health or the safety of the public or any segment of the public
or created a serious
public emergency situation or a general
insurrection. These are obviously applicable to the counts
arising from the Warri
and Abuja bombings, except for count 13.
[24] Section 51(2) of Act
105 of 1997 states that a High Court shall sentence a person who has
been convicted of an offence referred
to in part 2 of schedule 2 in
the case of a first offender to imprisonment for a period of not less
than 15 years. These
prescriptions would apply to counts 9 and
10. The remaining counts, other than counts 9, 10, 11, 12 and
13, all attract a
minimum sentence of life imprisonment in terms of
Act 105 of 1997.
[25] However, a court is
not obliged to impose the minimum sentence if it is of the view that
there are substantial and compelling
circumstances which would
justify the imposition of a lesser sentence. See section 51(3)(a) of
Act 105 of 1997. In order
for this court to arrive at a just
and proper sentence it is therefore necessary to ascertain whether
there are in fact such compelling
circumstances which would justify
the imposition of a lesser sentence.
[26] Although Mr Abrahams
for the State submitted that there are none, I am of the view that
there are in fact certain factors in
this case which cumulatively
constitute substantial and compelling circumstances entitling a
deviation from the minimum sentence.
I shall list them as
follows. The first and the most important one is the fact that
these offences were motivated by a political
desire to improve the
living conditions of the community in the Niger Delta. Albeit that
the motivation to resort to violence may
have been misguided, it is
important for purposes of imposing a proper sentence to take into
account that the ultimate purpose
of the violence was to draw the
government’s attention to the pollution and lack of
infrastructures and other developments
in the Niger Delta.
[27] The next factor
which in my view acts as a mitigating factor is the accused’s
non-criminal record up to the age of 48
years of age. It means
that for a substantial portion of his life he steered clear from any
criminal activity for which he
was convicted. I am of the view
that his clean record, both here and in Nigeria, should redound to
his benefit when sentence
is imposed. He is also a husband and
father of four minor children who will suffer when he is
incarcerated.
[28] The remaining factor
which in my view justifies a departure from the minimum sentence is
the fact that to all intents and purposes
the accused was regarded by
Nigerians as a strong leader. Mr Orubebe went so far as to
state that should the accused, here
in this court, renounce violence
and forsake his ideals of attaining his goals by military methods,
the government would only be
too happy to welcome him with open arms
to assist in the restructuring of the economy and development of the
well-being of the
community in Niger Delta.
[29] The evidence also
disclosed that he was otherwise a good man in the sense that he was
willing to help others, albeit
that there were always some
strings attached to such offers of assistance. It appears that
he was willing to fund the needs
of others in return for their
services to assist him in the attainment of his goals of causing
havoc in that region and to attract
the attention of the Nigerian
government.
[30] If taken
cumulatively all of these factors, in my view, are sufficient to
depart from the minimum sentence of life imprisonment.
Although
the lives of people were lost in the two bombings it does not
necessarily follow that the maximum punishment must be imposed.
[31] In this court there
are many instances where the crime of murder is punished by imposing
sentences less than life imprisonment
because of the peculiar
circumstances of such cases. Each case must therefore be viewed
on its own merits derived from its
peculiar set of facts. What
then is appropriate sentences taking into account all these factors?
[32] I have had many
months to consider what a proper sentence would be, since I found the
accused guilty on 21 January this year.
This is not an easy
matter to pass an appropriate sentence. This is also not a case
where this court has to protect this
society within South Africa
against the terrorist activities of the accused. The sentence should,
however, send the necessary deterrent
message to would-be terrorists,
wherever they may be.
[33] To sentence the
accused to life imprisonment, in my view, would be totally
disproportionate to the seriousness of the crimes
he committed.
On the other hand a suspended sentence would be too lenient and send
the wrong message to those wishing to
commit terrorist activities.
[34] The only appropriate
sentence, in my view, would be a determinate period of imprisonment.
Having anxiously considered
what an appropriate sentence would be, I
have come to the conclusion that the accused should be sentenced as
follows:
Counts 1, 3, 5, 7, 9
and 11,
are taken together for purpose of sentence, and the
accused is sentenced to 12 years’ imprisonment.
Counts 2, 4,
6, 8, 10 and 12
are taken together for purposes of sentence and
the accused is sentenced to 12 years’ imprisonment.
On
count 13,
the
accused is sentenced to 10 years’ imprisonment.
It is ordered that the
sentence imposed on count 13 is to run concurrently with the sentence
imposed on counts 2, 4, 6, 8, 10 and
12. Effectively, the accused is
therefore sentenced to 24 years imprisonment. The accused is also
declared unfit to be in possession
of a weapon.
DATED THIS 26th DAY OF
MARCH 2013 AT JOHANNESBURG
C. J. CLAASSEN
JUDGE OF THE SOUTH
GAUTENG HIGH COURT
Counsel for the State:
Adv S. K. Abrahams instructed by the Director of Public Prosecutions
Counsel for the Accused:
Adv J. P. Marais instructed by McMenamin, Van Huyssteen & Botes
Attorneys
Argument on Sentence took
place on 26 March 2013