S v Okah (CCT 315/16; CCT 193/17) [2018] ZACC 3; 2018 (4) BCLR 456 (CC); 2018 (1) SACR 492 (CC) (23 February 2018)

S v Okah (CCT 315/16; CCT 193/17) [2018] ZACC 3; 2018 (4) BCLR 456 (CC); 2018 (1) SACR 492 (CC) (23 February 2018)

The Constitutional Court held that section 15(1) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act confers broad extra-territorial jurisdiction on South African courts to try terrorist offences committed abroad, not limited to financing. The Supreme Court of Appeal's narrow interpretation was rejected as textually and purposively incorrect and inconsistent with South Africa's international obligations. Mr Okah's claim for exemption under section 1(4) failed because his actions, involving indiscriminate bombings targeting civilians, violated international humanitarian law and did not meet the statutory criteria for exemption. The Court found that...

Citation
[2018] ZACC 3
Parties
Applicant: THE STATE; Applicant: NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS; Respondent: HENRY EMOMOTIMI OKAH; INSTITUTE FOR SECURITY STUDIES; SOUTHERN AFRICA LITIGATION CENTRE
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
23 February 2018
Case Number
CCT 315/16; CCT 193/17
Procedural Posture
Criminal Appeal / Constitutional Court Appeal From Supreme Court of Appeal
Outcome
Appeal by the State upheld; Supreme Court of Appeal order set aside; convictions and sentences reinstated; Mr Okah's applications for leave to appeal dismissed except for the special entry on consular access, which did not affect the conviction.
Judges
Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ
Legal Topics
Terrorism, Extraterritorial Jurisdiction, International Humanitarian Law, Special Entry Criminal Procedure, Consular Access, Statutory Interpretation
Criminal Law Constitutional Law Public International Law Terrorism Extraterritorial Jurisdiction International Humanitarian Law Special Entry Criminal Procedure Consular Access +1 more

Case Brief

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Parties

THE STATE

Applicant

NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

HENRY EMOMOTIMI OKAH

Respondent

INSTITUTE FOR SECURITY STUDIES

SOUTHERN AFRICA LITIGATION CENTRE

Procedural Posture

Criminal Appeal / Constitutional Court Appeal From Supreme Court of Appeal

Legal Issues

  1. 1 Whether South African courts have extra-territorial jurisdiction under section 15(1) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act to try terrorist acts committed abroad beyond financing offences.
  2. 2 Whether Mr Okah qualifies for exemption from prosecution under section 1(4) of the Act based on international humanitarian law.
  3. 3 Whether the High Court wrongly refused to make three special entries on the record regarding alleged irregularities in the trial.

Ratio Decidendi

The Constitutional Court held that section 15(1) of the Protection of Constitutional Democracy against Terrorist and Related Activities Act confers broad extra-territorial jurisdiction on South African courts to try terrorist offences committed abroad, not limited to financing. The Supreme Court of Appeal's narrow interpretation was rejected as textually and purposively incorrect and inconsistent with South Africa's international obligations. Mr Okah's claim for exemption under section 1(4) failed because his actions, involving indiscriminate bombings targeting civilians, violated international humanitarian law and did not meet the statutory criteria for exemption. The Court found that...

Court Disposition

Appeal by the State upheld; Supreme Court of Appeal order set aside; convictions and sentences reinstated; Mr Okah's applications for leave to appeal dismissed except for the special entry on consular access, which did not affect the conviction.

Orders

  • The application for leave to appeal by the State is granted.
  • The appeal by the State is upheld.