South Africa’s Constitutional Court on February 18, 2025, made two orders which essentially pave the way for Henry Okah, the imprisoned leader of the Movement for the Emancipation of the Niger Delta (MEND), to file fresh applications in that court, likely to be considered urgently, challenging his imprisonment.
The February 18 orders are on the back of the earlier decision by South Africa’s Judicial Conduct Committee on February 12 approving a judicial enquiry into allegations of sabotage levelled by Okah against erstwhile South African Chief Justice Raymond Zondo.
In seeking the rescission of prior orders of that court, Okah had alleged in his applications in case numbers CCT 239/23 and CCT 273/23 that the office of the registrar had unlawfully tampered with the contents of the primary applications, with an intent to cause the failure of those applications.
Given the ruling of the Judicial Conduct Committee, a Coram of the court’s justices comprising Maya., C.J, Kollapen J, Mathopo J, Mhlantla J, Rogers J, Theron J, and Tshiqi J., disregarded Okah’s grounds for seeking the rescission of both prior orders.
Granting those would have implied acceptance of his allegations against Chief Justice Zondo as fact without conducting an enquiry as directed by the Judicial Conduct Committee.
Overall, the latest order dismissing both applications entitles Okah to challenge anew the lawfulness of his ‘detention. Okah’s legal position is that the order of the Constitutional Court in S V Okah [2018]ZACC 3, on which basis he is detained, is a nullity because the South African State had omitted to comply with section 15 of South Africa’s domestic anti-terrorism law, which provision confers extraterritorial jurisdiction on a South African court.
On this argument, his arrest and trial were unlawful, and all courts in South Africa, including the Constitutional Court, lacked the jurisdiction to hear the criminal matter and appeals arising therefrom.
Okah, 59, was given a 24-year jail sentence by a South African court as the leader of the Movement for the Emancipation of the Niger Delta that took responsibility for an October 1, 2010 car bombing in the Nigerian capital, Abuja, that left several people dead. He was a resident of South Africa at the time of his arrest.
Okah’s legal challenge to his conviction and imprisonment has presented a unique test case for South Africa’s justice system and its application in the conflict between Nigeria and its oil multinational partners on one hand, and the impoverished people of the oil-rich Niger Delta, on the other hand.
