21st March, 2013
Justice Neels Claaseen of the South Gauteng High Court, in Johannesburg on Wednesday refused to grant the application filed by Henry Okah to declare that proceedings at his ongoing trial were irregular.
Claaseen, while ruling on the three grounds of the application, said that it was absurd and frivolous.
The News Agency of Nigeria (NAN) reports that the Defence Counsel, J.P. Marais, had on March 18 urged the court to declare the trial as irregular on three grounds.
“Three grounds have been alleged for the purpose of the irregularity. The first ground is on the unlawful presence of an official of the State Security Service (SSS), Mr. Cliford Osagie who is an investigative officer in the 2010 Abuja car bombing.
“That his presence intimidates the witnesses. In the affidavit by Mr. Osagie, he says he is a legal official in SSS and that he knew the accused since 2007 when he was part of a Federal Government delegation to Angola to seek for the release of the accused who was arrested in Angola.
“It is common knowledge that he was involved in investigating and prosecution of the accused and the other conspirators. “The accused having known Mr. Osagie as an official of the SSS since 2007 and failed to mention it to his lawyer is a failure that cannot be laid at the feet of the judge.”
However, the judge said that the presence of Mr. Osagie and his seating by the side of the prosecutor was regular, adding that the ground of the first irregularity cannot succeed.
Claaseen said the second ground of the application which said that the accused was not warned of his right in terms of International Criminal Cooperation Treaty was frivolous.
“The accuse was arrested in South Africa on 2 October 2010, and at the time of his arrest he had accepted South Africa Residence, though he did not accept the citizenship of South Africa. So he is a citizen of Nigeria.
“The evidence on record was that he was persona non-grata in Nigeria. He was arrested in South Africa and Nigeria still has death penalty in place for the offence the accused was arrested. South Africa does not have death penalty in its justice system. So, the accused cannot be extradited to Nigeria,” Claaseen said.
He said no injustices had been done to the accused on his right in terms of the international criminal cooperation treaty which South Africa and Nigeria were signatories.
Claaseen said he found the third application as the most absurd. “The third application was the most absurd to me because I have bent more than backward to assist the accused to have his witnesses.
“The accused indicated that he did not need the two other witnesses to testify. More so, if the accused had wanted the witnesses who were in Kuje Prison to come to South Africa and give evidence, his lawyer should have applied for their release from prison,” Claaseen said.
He dismissed all the three applications without cost.
The submissions on the mitigation of sentence will continue on 26 March 26.