Diplomatic immunity or diplomatic impunity?

By Lillian Aluanga-Delvaux

Recent events touching on highly placed foreign nationals and their alleged violation of the law have cast the spotlight on the meaning and role of “diplomatic immunity”.

In June, Ms Karen Kandie, a financial director at Shelter Afrique, a Pan African housing financial institution, alleged her boss Alassane Ba physically assaulted her. Mr Ba, a Mauritanian, denies the claims.

Among issues in contention at the time was whether Ba enjoyed diplomatic immunity — a principle of international law that shields diplomats from legal action or prosecution in their host country.

Ba was forced to obtain court orders to restrict the Director of Public Prosecutions from following through with an arrest order. This means Ba cannot be arrested until the case is determined in October.

The DPP’s order followed the Ministry of Foreign Affairs declaration that Ba’s immunity does not cover cases of assault and other crimes.

Persona non grata

Weeks later, Kenyan staff at the Venezuelan Embassy filed a complaint with the diplomatic Police Unit alleging the Charge d’affaires, Ms Olga Fonseca had threatened to sack them if they did not withdraw a sexual harassment report filed against her predecessor, Gerardo Carillo Silva. But in a strange twist of events, Fonseca, who had only been in the country for two weeks, was found murdered in her Runda home in Nairobi.

Among those charged in court over the incident is the First Secretary at the embassy, Dwight Saragay, whose diplomatic immunity was waived.

In May, last year, Nigeria’s ambassador to Kenya Chijioke Wigwe was alleged to have battered his wife. The incident led to an unsuccessful push by sections of women’s rights groups calling for the lifting of his immunity to allow for prosecution. Wigwe denied the claims and although he was briefly recalled to Nigeria, he returned to his position five months later.

So just what is diplomatic immunity and who grants such privileges? International Relations lecturer David Kikaya says diplomatic immunity is granted under the terms of the Vienna Convention on Diplomatic Relations.

Kikaya, who lectures at the United States International University and served in the Foreign Affairs ministry, says there are also international governmental organisations and international non-governmental bodies that enjoy a certain degree of immunity not covered by the convention.

Categories of immunity

According to the Foreign Affairs ministry website, The Privileges and Immunities Act (Cap 179) gives the force of the Kenyan law to relevant provisions within the conventions. This applies to all foreign diplomatic and consular missions, whether or not the State represented by the mission is a party to the conventions, and international organisations gazetted under the Act. There is an exemption, however, where immunities and privileges are contained in specific agreements between individual organisations and the Government.

What this means is that privileges and immunities of persons working for such international organisations are determined on a case-by-case basis, based on the agreements signed between the host country and the organisation. Shelter Afrique, for instance, enjoys several privileges under such an arrangement.

International bodies such as the United Nations also negotiate diplomatic rights for staff, as do other entities like the International Criminal Court (ICC), which has a special agreement with the Government to accord such rights to its staff whenever they are in the country.

According to African Centre for International Legal and Policy Research director Godfrey Musila, ambassadors, and high commissioners, enjoy a higher level of diplomatic immunity compared to other consular staff.

Categories that qualify for immunity include the Head of Mission, diplomatic staff member, private servant as well as administrative and technical staff. The level of immunity, however, varies, with consular officials, technical and administrative staff having limited immunity.

But even though diplomatic immunity shields one from prosecution it does not mean the person enjoying that privilege cannot be expelled or prosecuted by the host country.

“The host country can ask the country that sent the diplomat to waive an individual’s immunity and have them prosecuted if one is suspected to have committed a serious crime,” says Kikaya.

This is exemplified by the case of the Venezuelan embassy official arraigned in court.

The host country may also ask the sending country to recall an individual and declare such a person persona non grata, which means they are not wanted on her (host country’s) soil.

This has happened in Kenya before, although largely for political reasons, when the country expelled diplomats from Scandinavian countries for what it saw as their harboring of “dissidents”. This was at the height of the clamour for multi-party politics in the 1990s when several opposition members went into exile.

Special obligation

In more recent cases, the issuance of an arrest warrant by the High Court for Sudan’s president Omar al Bashir, should he step on Kenyan soil, saw Khartoum seek to withdraw her ambassador from Kenya. Bashir is wanted by the ICC over war crimes charges.

At some point, dicey relations between Rwanda and France, as well as Congo and Belgium also led to the recall of envoys.

But there have also been cases where those who enjoy diplomatic immunity are deemed to have abused it.

The arrest of a Kenyan diplomat to the UN in New York in 2006 over allegations of assaulting his son ended with his release because of his immunity status. Canada’s junior envoy Jean Touchette was arrested in Tanzania in 2009 over allegations that he spat at a traffic police officer. He was later recalled.

A 2008 North American leadership Summit — an annual event that brings together the US, Canada and Mexico — ended on an undiplomatic note when Mexico press attaché Rafael Curiel stole the participants’ mobile phones. He was later intercepted at the airport after he was confronted with footage of his actions but was saved by diplomatic immunity provisions.

The Vienna Convention makes it clear that while immunity ensures efficient performance of the functions of diplomatic and consular missions, those enjoying the status are under a special obligation to observe discretion in their exercise of privileges.

Former Foreign Affairs minister rtd Major Marsden Madoka says those who enjoy diplomatic privileges are required to conduct themselves with decorum given that image is highly regarded in diplomatic circles.

“One’s conduct should be above reproach since you represent the country that sent you,” says Madoka.

But what happens if a country refuses to recall an individual who enjoys diplomatic immunity?

“The host country would have to carefully weigh her interests even in cases that would warrant an individual’s expulsion,” says Musila.