Don’t shoot the messenger: a guide to diplomatic immunity

LORINDA MARRIAN

On 20 August Zimbabwean First Lady, Grace Mugabe was granted diplomatic immunity by the South African government after being accused of assaulting South African model, Gabriella Engels on 13 August. After the incident, Mugabe was requested to turn herself in to the South African authorities and after failing to do so, requested diplomatic immunity from the South Africa government.

Diplomatic immunity in its broadest sense refers to the protection of foreign diplomats and heads of states from “arrest, lawsuit or prosecution” in the host country. This practice has been a part of relations between sovereign entities for centuries and can be traced to the ancient civilizations of China, Egypt and Greece.

In modern times, international laws concerning diplomatic immunity are dictated in “The 1961 Vienna Convention on Diplomatic Relations” which South Africa ratified in 1989. The treaty states that “the person of a diplomatic agent shall be inviolable” and the agent “shall not be liable to any form of arrest or detention.” In South Africa, the Diplomatic Immunities and Privileges Act of 2001 guides diplomatic law which says that “a head of state is immune from the criminal and civil jurisdiction of the courts of the Republic” and similarly these privileges can be extended to the head of state’s spouse.

Normally the head of state’s spouse can be granted this privilege, provided that the spouse is in the country on official business. Therefore, in most cases, diplomatic immunity is conditional, depending on the nature of business being conducted by the spouse. However, it is important to note that in some legal circles there is an argument that, regardless of the nature of business conducted by the spouse, diplomatic immunity should be automatically given to all spouses of foreign heads of states.

The debate around the First Lady focused on the fact that she might not have been in South Africa on official business, nor was she at the time accompanying her husband on official business. Additionally, diplomatic immunity is normally granted before the dignitaries visit to the host country.

The final decision on diplomatic immunity was left to the minister of International Relations and Cooperation, Maite Nkoana-Mashabane. According to a statement released by the department, the minister “agonised over the matter and that the decision was not an easy one to make”. The decision was partly made due to the fact that South Africa was host to the 37th Southern African Development Community Summit (SADC) which took place between 19 and 20 August where President Robert Mugabe was in attendance, and it was imperative to maintain good relations with Zimbabwe and other SADC countries and the “derivative immunity of spouses of Heads of States”. The First Lady promptly returned to Harare on 20 August.

Dr John Kotsopoulos, a senior researcher at the Centre for the Study of Governance Innovation (GovInn) at UP, said that ultimately, the government had to make a decision between potentially undermining its relationship with an important neighbour, Zimbabwe, or pursuing a case against a foreign dignitary on behalf of a South African citizen. In this case “international relations have trumped justice.” With regards to the potential backlash the government might face, Kotsopoulos adds that foreign policy decisions rarely cost governments votes. He argues that citizens in most countries are usually more concerned with jobs, the state of the economy and other domestic issues. “Therefore, despite the media storm, which has been reminiscent of the storm surrounding South Africa's failure to arrest Sudanese President al-Bashir it is doubtful that there will be any serious political repercussions for the Zuma administration.”

On 23 August, AfriForum on behalf of Gabriella Engels, filed a review application to set aside the decision made by Minister Nkoana Mashabane in North Gauteng High Court in Pretoria. As to date of going to print, no official statement was released from the Zimbabwean First Lady on this matter.

 

Illustration: Michelle Hartzenberg

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