Siyabonga P. Hadebe says those who were expecting Zimbabwean First Lady Grace Mugabe to face South African prosecutors, do not understand international law.
South Africa is full of noise. The biggest problem is that the media has abandoned one of its primary duties which is to educate the public. In the event where journalists do not know how certain things work, they should consult whoever is considered an authority or expert on the matter.
The world of diplomacy is a mystery to many ordinary folks. Very few people can honestly say they fully understand the inner workings of this mysterious world.
Newspaper reports carried a story that Zimbabwean first lady Grace Mugabe had assaulted a woman on a Sunday night at a Sandton hotel.
Unfortunately, it is not only the media that reported on the story at face value, but others in authority too seemed to jump the gun by suggesting that Mrs. Mugabe would be subjected to the full might of the South African law. There was a view that since the First Lady wasn’t on an official or state visit, she would be prosecuted.
Where on earth has anyone seen a spouse of a sitting Head of State getting prosecuted in a foreign country without creating a diplomatic scandal?
The world of diplomacy is governed by the Geneva and Vienna conventions. But I will limit the discussion to the Vienna Convention on Diplomatic Relations of 1961, as it is the most important of the two conventions.
The Vienna Convention on Diplomatic Relations of 1961 is “an international treaty that defines a framework for diplomatic relations between states.” Amongst others, it specifies “the privileges of a diplomatic mission that enable diplomats to perform their function without fear of coercion or harassment by the host country. This forms the legal basis for diplomatic immunity.
Diplomatic immunity is a principle of international law by which certain foreign government officials are not subject to the jurisdiction of local courts and other authorities for both their official and, to a large extent, their personal activities.”
Some of the highlights of the Vienna Convention are:
¶ Article 22: The premises of a diplomatic mission, such as an embassy, are inviolable and must not be entered by the host country except by permission of the Head of the Mission.
Furthermore, the host country must protect the mission from intrusion or damage. The host country must never search the premises, nor seize its documents or property.
Notably, Article 30 extends this provision to the private residence of the diplomats.
¶ Article 29: Diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32.
Also interesting is that Article 34 and 36 stipulate that diplomats are exempt from most taxes, as well as most customs duties.
¶ Article 37: The family members of diplomats that are living in the host country enjoy most of the same protections as the diplomats themselves.
¶ Article 31.1c states that actions not covered by diplomatic immunity include professional activity outside diplomat’s official functions, viz. formal employment. That explains why most spouses of diplomats do not work when husbands or wives are posted in a foreign country because they would not enjoy diplomatic protection.
Since states are limited in terms of prosecuting diplomats, they may consider the following:
(i) the lifting of immunity: A country can ask the country that sent a diplomat who has broken the law to lift his or immunity policy in order to allow the courts to prosecute the offender. Many countries are not willing to do this in case there is no guarantee that their people are going to be fairly treated.
It must be noted that, although not directly related the Rome Statutes (which provides for the creation of the International Court of Justice) it allows for the arrest of anyone who would ordinarily enjoy diplomatic immunity. It is for the reason South Africa landed in hot water for refusing to arrest Sudanese president Al Bashir a few years ago. Also, the reason why the US has not signed the Rome Statute is that it fears that its politicians, diplomats and members of the defense forces could be arrested abroad for war crimes.
(ii) Persona non-grata: In extreme cases, a country may opt to apply Section 9 of the Convention: it is possible that at any time and for any reason can declare a particular member of the diplomatic staff to be PERSONA NON GRATA (more like a red card in soccer). The dismissed or expelled person must “within a reasonable period of time” return to his or her home country, or otherwise, this person may lose their diplomatic immunity.
Anyone who follows international affairs would recall Russia recently expelled 755 US diplomats. Moscow notified Washington that some of its diplomats had to leave the country in just over a month and closed diplomatic compounds as retaliation for what it said were proposed illegal US sanctions. One would expect the USA to do the same unless some political sanity prevails.
In terms of South African law, the Chief Justice, members of Cabinet and members of the diplomatic corps stationed in all our embassies and consulates abroad. DIRCO’s response to a parliamentary question states,
“Diplomatic passports are issued according to the South African Diplomatic Passport Policy. A diplomatic passport is issued to specified categories of public office bearers and Government officials to proceed abroad on Government service. The categories include specific positions in the Presidency, the national legislative and executive political office bearers, members of the judiciary and divisions as well as of the specialist courts, provincial and local government representatives, South African diplomatic personnel, public service officials on official duty abroad and eminent persons.”
Back to the issue of the Zimbabwean first lady.
South Africa and Zimbabwe are amongst the 191 UN member states who have signed and ratified the Vienna Convention on Diplomatic Relations of 1961. Therefore, the diplomatic relations between the two states are governed by this Convention and other bilateral agreements.
Any carrier of official passport enjoys immunities as stated above.
Under modern international law (reflected in the Vienna Convention on Diplomatic Relations), however, “there are different categories of persons within each diplomatic mission, some of whom enjoy greater immunities and privileges than others.” These include ambassadors, presidents, cabinet ministers and senior diplomats.
Considering that she is a wife of a sitting Head of State, all odds are in her favour.
Admittedly, citizens of many countries question this monster called diplomatic immunity in light of the members of the diplomatic corps who commit atrocious crimes, from murder and drug peddling to human trafficking.
Hadebe has an interest in international law, politics, and economics