South African Judicial Conduct Committee Upholds Henry Okah’s Complaint

South African Judicial Conduct Committee Upholds Henry Okah’s Complaint Against Chief Justice Zondo

The Judicial Conduct Committee in South Africa has set aside the dismissal of a complaint filed by a Nigerian national, Henry Okah, against Chief Justice Zondo.

Okah, a Nigerian national and former leader of the Movement for the Emancipation of the Niger Delta (MEND), had been convicted of terrorist activities in South Africa and sentenced to 24 years in prison.

The complaint alleged that Okah’s court cases were irregularly tampered with before being presented to the justices, leading to their dismissal.

The Judicial Conduct Committee ruled that the issue was not solely related to the merits of the orders, but rather about the alleged tampering with Okah’s cases.

The Committee in a ruling on Wednesday in appeal Ref no: JSC/25/03/24 between Henry Okаh – Complainant and Chief Justice Zondo – Respondents, referred the matter back to the Acting Chairperson for an inquiry under section 17 of the Judicial Service Commission Act.

This decision was made in accordance with section 18(4) of the Act, which guides the committee’s decision-making process in appeals against dismissals.

It’s worth noting that Okah has been unsuccessful in his appeals against his conviction and sentence, including an appeal to the Constitutional Court.

Despite this, he believes his incarceration is in breach of international law and the South African Constitution.

The ruling which was delivered by Jafta, Saldulker and Mabindla-Boqwana JJA of the JCC, held that the issue was about an alleged irregular tampering with the complainant’s cases before they were presented to the Justices of the Court, while the complaint was not directed at the decision making process or the decision reached by the Justices.

“Evidently the complainant accepted that, on the papers placed before them, the dismissal of his applications was justified. But he complained that his applications were tampered with so as to ensure that they failed. This analysis reveals that the complaint is not solely related to the merits of the orders.”

“What remains for consideration is the decision to be made in this appeal. Section 18(4) of the Act guides us in that regard. In an appeal against a dismissal effected in terms of section 15, this provision stipulates that having considered the relevant information, the Committee must either confirm or set aside the dismissal.

“For reasons set out above, the present dismissal cannot be confirmed. It must be set aside and the complaint must be remitted to the Acting Chairperson for an inquiry in terms of section 17 of the Act. It must be emphasised that, the referral has nothing to do with whether or not there is merit in the complaint, but with the fact that the matter ought to have been referred to a section 17 enquiry, given the fact that the complaint was not solely related to the merits of the judgment or order, which can be summarily dismissed in terms of section 15 of the Act.

“In the circumstances the dismissal of the complaint is set aside and the matter is referred to the Acting Chairperson for an inquiry under section 17 of the Act.”

The six page ruling which SaharaReporters obtained on Thursday, partly read: “this is an appeal by Mr Henry Okah (the complainant) against a decision of the Acting Chairperson in terms of which a complaint lodged against Chief Justice Zondo (the respondent) was summarily dismissed under section 15(2) of the Judicial Service Commission Act’. This provision authorises the Chairperson of the Judicial Conduct Committee (Committee) with whom complaints are lodged, to dismiss a complaint that has certain defects. Section 15(5) vests the right of appeal in a complainant who is unhappy with the dismissal of a complaint. This appeal was lodged in terms of that provision.

“The context in which the complaint arose is the following. The complainant was arrested in South Africa for terrorist activities committed in Nigeria by a group called the Movement for the Emancipation of the Niger Delta (MEND). He is a Nigerian national and at the relevant time he was the leader of MEND and lived in South Africa. He was tried and convicted in the High Court. A sentence of 24 years imprisonment was imposed on him and he is currently serving that sentence in this country.

“On a number of occasions, he sought to challenge the conviction and sentence. All appeals lodged by him were unsuccessful, including an appeal to the Constitutional Court. Although he regarded himself as a prisoner of war under International Law, he contends that his incarceration is in breach of section 37 of the Constitution and Article 5 of the Third Geneva Convention of 1949. Even though these instruments apply to persons detained without trial during war and despite the fact that he underwent a trial which resulted in a sentence of imprisonment, he believes that they apply to him.”

It added, “Based on this belief he instituted numerous applications which he described as habeas corpus applications. These are applications usually instituted for the release of persons who are unlawfully detained. He alleged that these applications were initiated in the Constitutional Court. He also lodged an application that sought rescission of that Court’s order in terms of which his appeal was dismissed. However, he contended, that staff in the office of the Registrar of that Court failed to place them before the Court.

“He stated that it was only after he had threatened the Registrars’ staff with legal action that his applications were placed before the Justices of the Court. But some of the papers he had filed were removed from the relevant files and replaced with fake documents designed to ensure that his applications were dismissed. He stated further that the wrongful conduct by the Registrar’s staff was instigated by the respondent.

“As mentioned the complaint was summarily dismissed on the ground that it solely related to the merits of the orders issued by the Court.

“The complainant was not satisfied with the dismissal and he lodged an appeal. In particular he took issue with the reason on which the dismissal was based. He pointed out that the wrongful conduct outlined above occurred at the behest of the respondent. In his own words he framed one of the grounds of appeal in these terms:

“I asserted in my complaint that in sabotaging my applications, staff members of the office of the Registrar had acted on the instruction of the Chief Justice, Justice Raymond Zondo, who I am made to believe has been in regular contact with the Government of Nigeria and others in South Africa and elsewhere who have an interest in perpetuating my captivity in South Africa”.

“Notably the complaint is not about the respondent’s involvement in issuing the orders in question, nor is it about whether on the papers placed before the Justices of the Court those orders were not justified. Instead the complaint is about conduct which occurred before the applications were considered and which, according to the complainant, was designed to frustrate them.

“In disputing that the complaint related solely to the merits of the orders, the complainant stated in the affidavit filed on appeal: “With respect, where I allege that authentic documents which I filed in the Court were not placed before its Justices and such allegations are not shown to be unfounded, my complaint cannot reasonably be said to be in relation to the merits of any judgement or order”.

“On appeal section 18(3) of the Act¹ enjoins this Committee to consider the reasons for the dismissal, the grounds of appeal and representations made by the complainant and the respondent, if any. Despite the invitation from the Committee, the respondent made no representations. As a result, the appeal must be evaluated with reference to the reason furnished for the dismissal, the complaint, the grounds of the appeal and the representations made by the complainant.”

“Relevant to this exercise are the allegations that officials in the office of the Registrar tampered with the complainant’s cases by replacing some of the papers with fake ones and that in doing so these officials were carrying out the respondent’s instruction. While it is hard to believe that the respondent was involved in such conduct, this scepticism is an irrelevant consideration at this point. This Committee is not called upon to determine the merits or demerits of those allegations. Rather it is required to establish whether the allegations are solely related to the merits of the relevant orders. Put differently the Committee is required to determine whether the complaint was exclusively directed at the merits of the orders.

“A careful examination of the complaint indicates that it is about an alleged irregular tampering with the complainant’s cases before they were presented to the Justices of the Court. The complaint was not directed at the decision making process or the decision reached by the Justices. Evidently the complainant accepted that, on the papers placed before them, the dismissal of his applications was justified. But he complained that his applications were tampered with so as to ensure that they failed. This analysis reveals that the complaint is not solely related to the merits of the orders.”