The Complexities of Diplomatic Immunities and Privileges

There was uproar in South Africa after Zimbabwe’s First Lady Grace Mugabe, battered Gabrielle Engels – a South African model. The victim alleged that Grace Mugabe physically assaulted her with an electric cord in a hotel room in Johannesburg, on August 13th. Grace was neither arrested nor questioned by the police instead she was given a safe passage out of the country. South Africa’s government gave her diplomatic immunity since she is the spouse of Zimbabwe’s President Robert Mugabe. International Relations and Cooperation Minister Maite Nkoana-Mashabane
pronounced, “in the interest of republic of South Africa, I hereby recognize the immunities and privileges of the frst lady of the republic of Zimbabwe, Dr Grace Mugabe, in terms of international law.” The Vienna Convention on Diplomatic Relations (VCDR) is the most internationally accepted instrument of diplomatic law. Article 29 of the VCDR states that, “the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.” By being the First Lady of Zimbabwe, Grace Mugabe was accorded diplomatic immunity out of respect for the ofce she holds. Failure of granting immunity can create a scenario of reciprocity between states. Before Grace Mugabe was granted immunity, South Africa’s national carrier was barred from landing in Harare for two days. On the other hand, South Africa reciprocated by banning Air Zimbabwe flights to South Africa for two days. Civil society groups have criticized the manner in which South Africa’s government handled the case. The vocal Congress of South African Trade Unions (COSATU) decried that, “while government has every right to maintain good diplomatic ties with our neighboring countries. That should not be done at the expense of our South African citizens.” AfriForum – a human rights body has vowed to push for Mugabe’s prosecution. Incidentally, this was not the frst time for Grace Mugabe to escape arrest for committing a crime on the account of diplomatic immunity. In 2009, she was granted immunity by Hong Kong authorities after she physically assaulted a journalist who photographed her during her shopping sprees.
Abuse of diplomatic immunity
The Mugabe saga has elicited debate on whether the frst lady was eligible to receive diplomatic immunity yet she was not in South Africa for an ofcial visit. President Mugabe like any other Head of state is a diplomatic agent and enjoys absolute diplomatic immunity. His immediate family members by extension enjoy the immunities too. Article 37 (1) of the VCDR states that, “the members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving state, enjoy the privileges and immunities.” This law was invoked in November 29 1982, when Antonio da Silveira, son of Brazilian ambassador to the USA committed a crime in America. The 23 year old was involved in a violent altercation in a night club. Antonio was arrested after inflicting multiple gunrelated injuries on the club’s bouncer. However, criminal charges against him were dropped, when it was discovered that he was the son of a diplomat, and therefore enjoyed diplomatic privileges. The victim pressed charges against Brazilian embassy and the matter was settled out of court. In 2012, Karen Njeri Kandie a Kenyan employee at Shelter Afrique sued her boss Allasane Ba. She alleged that he had physically assaulted her in the ofce based inNairobi. The director of public prosecutions ordered the arrest of Allasane Ba, a Mauritanian national. He pleaded against the arrest claiming that as the managing director of Shelter Afrique he enjoyed diplomatic immunity. However, the ministry of foreign affairs expressed the contrary, “we classify his (Allasane Ba’s) job as that of an international civil servant; he does not enjoy absolute immunity.” In the appeal case fled by Kandie, the judges upheld that, “it is clear that the respondents enjoy immunities and privileges, among them immunity from arrest and detention. The ofces of the respondents (Allasane Ba and Shelter Afrique) are inviolable.”
The judges ruled that, “the subject matter is sovereign and immune, not commercial and not actionable before Kenyan courts.” This is because Shelter Afrique is an intergovernmental organization that was established in 1982, by governments of the defunct Organization of African Unity, African Development Bank and AfricaReinsurance. However, VCDR maintains that diplomats are not immune to the laws of the host country but rather immune from methods of enforcement. Article 41 (1) of the VCDR stipulates that, “Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere in the internal affairs of the State.” It is pragmatic that diplomats are accorded privileges and immunities so that they can perform their duties and functions effectively. But incidences that involve diplomats and their dependents, who blatantly abuse their diplomatic immunities and privileges, have had profound effect on the practice of executing these immunities. The matter is further complicated by the steady increase of the number of diplomats over the years, as a result of robust bilateral and multilateral relations. This has led to a defnite and signifcant shift to a more restrictive attitude on immunities, as with the Grace Mugabe’s case.

Florence Gichoya is an Associate Fellowwith the Nkrumah Center for AfricanAffairs and Global Peace (AAGP), at the
Africa Policy Institute.

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