Something very interesting is happening within the diplomatic community around the world.
A people hitherto regarded as some of the most dependable, trustworthy and civilised are making news headlines for all the wrong reasons, and Kenya in the recent past has been treated to a tragicomic series of events that have soiled the image of the community.
As a result, debate is now raging over the one clause that separates the diplomatic community from the rest of mankind: that of diplomatic immunity.
The argument is that, where the clause on immunity was designed to protect diplomats from harassment by host nations, it is now being used by many to break laws of their host countries, sometimes with devastating effects.
Two recent events in Nairobi best illustrate this scenario. Last month, investigations into Nairobi’s bustling pornography business unearthed a most disturbing secret: that diplomats could be deep in the thick murk, helping finance the syndicate and exporting the bootleg in their “don’t open” suitcases.
The other incident had even more tragic consequences. Haji Lukindo was travelling in a matatu on Peponi Road on July 11 when a huge SUV crossed the centre line of the road and hit the matatu.
Haji, seated next to the driver, eventually succumbed to his serious injuries . Police said Haji’s fellow passengers had told them that, moments before the crash, Haji had warned the driver of a speeding vehicle crossing to their side of the road at high speed. And then... Bang!
Late in the evening, his wife Latifah Naiman Mariki, already six months pregnant with their fourth child, received a call from her late husband’s employer, Farzana Jiwa, asking her to rush to Parklands Police Station. There, the shocking news was broken to her by a police officer.
As Ms Mariki returned home to make plans to bury her husband the following day in line with Islamic practice, Joshua Walde, the diplomat, was planning for his and his family’s exit from the country.
His wife even sent out a detailed email to friends looking for a buyer of their vehicle as well as jobs for their household workers.
“Please spread (among) your contacts/colleagues/friends,” she wrote. “A loyal gardener available for work and a car for sale! Also, a wonderful nanny available....”
Mr Walde recorded a statement with the police but was not detained since he enjoyed diplomatic immunity. Shortly after he left the country for the US, and that was the end of the story.
Later, Ms Hilary Renner, a State Department spokeswoman in Washington, was quoted by international TV network Al Jazeera as saying the embassy extended its deepest condolences to Mr Lukindo’s family and wished those injured a speedy recovery. She, however, said she could not comment on whether Mr Walde would return to Kenya, only saying that the US embassy in Nairobi was “fully cooperating with the Kenyan authorities as they investigate the accident and work to aid the victims”.
To the widow and many others who have been on the receiving end of unruly diplomats, however, something is not right, and their suggestions all point out to the coveted diplomatic immunity status accorded to foreign nationals representing their countries across the globe.
This, though, is not a strictly Kenyan problem and the issue is currently being discussed at the highest levels of policy making and academia.
An American University International Law review titled Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities, warns that the principle that protects diplomats in an attempt to ensure diplomatic relations may have turned into “a license to break the law” as it protects violators from punishment for failing to obey the law of the receiving state.
And, in an article titled The Politics of Diplomatic Immunity, Pakistani blogger and Web specialist Hasan Saleem, responding to a case in which a US diplomat walked free after killing two Pakistani youths in 2011, wonders whether such privileges apply to all diplomats.
“If the treatment given to Raymond Davis (the diplomat) was how all ‘diplomats’ (official or self-proclaimed) were treated worldwide,” writes Hasan, “it may even help one to make sense of it all. However, when one considers other cases of diplomatic immunity that the US has been involved in in the past, one can’t help but notice gross double-standards in the treatment meted out to those involved.”
He goes on to quote an incident in 1997 when the deputy ambassador of the Republic of Georgia to the United States was involved in an accident in which four people died, including a 16-year-old girl.
“Upon testing, the diplomat was found to have a blood-alcohol level above the legal limit. The deputy ambassador on this occasion tried playing the diplomatic immunity card.
However, this was not recognised by the US and he was taken into custody and served three years in prison,” writes Hasan, seeking to buttress the notion that such immunities are selective.
While the principle was created to protect diplomats from retaliation in time of international conflicts and to promote civilised international relations, today the privilege is being widely abused by the same diplomats.
ESCAPE CIVIL LIABILITY
And even as the likes of Latifah groan in pain seeking justice, diplomats and their families continue to abuse this privilege to escape prosecution for a variety of offenses, ranging from minor traffic violations to the most heinous criminal acts such as murder, child abuse and hit-and-runs.
The diplomats also escape civil liability in personal injury actions.
But this is not what the architects of the Vienna Convention on Diplomatic Relations had in mind when they crafted it in 1961. During the convention, a treaty that outlined a framework for diplomatic relations between independent countries was penned.
The treaty, which binds 189 nations so far, specifies the privileges of a diplomatic mission and enables diplomats to perform their functions without fear of coercion or harassment by the host country. This, therefore, forms the legal basis for diplomatic immunity.
Before formulation of the Convention, the public had expressed dissatisfaction over the manner in which diplomats behaved on foreign soils. America, for instance, had extended a blanket immunity not only to its ambassadors and their administrative staff, but also to their personal servants.
The Americans were so protective of their diplomats that one provision made it a crime to even bring a suit against any person possessing diplomatic immunity.
The establishment of an international convention on diplomatic immunity, then, sought to standardise the practice of receiving diplomatic officials and establishing foreign missions, and to codify the customary international law on such immunity.
VIEW FROM EXPERTS
But Dr David Kikaya, an expert in international diplomacy, says a diplomat only enjoys certain privileges and must operate within the confines of the law. He says diplomatic immunity is not limited to embassies, but also extends to inter-state organisations such as the United Nations, and that “it is balanced by responsibility”.
“For one to enjoy it,” says Dr Kikaya, “one must uphold diplomatic etiquette.”
On the issue of Mr Walde, however, Dr Kikaya says this was an isolated incident, arguing that seldom do diplomats flee their host nations in the event they commit serious crimes.
“Two things happen whenever a diplomat commits a crime,” he says. “One, the host nation requests the sending nation for permission to lift the diplomatic status in order to prosecute the individual, or requests the sending country to recall the diplomat.”
In the event the sending country refuses to grant these two requests or to cooperate, Kikaya says the host country is then forced to declare the offender a persona non-grata, which results in forced repatriation.
Professor Macharia Munene, an international relations expert, says Mr Walde’s behaviour did not fit into any of the diplomatic tenets because among the reasons why there is a diplomat in the first place is the need to serve the interests of both countries.
“This is a serious issue between the US and Kenya,” he says. “The man committed a serious crime and fled. Diplomatic immunity works within the confines of the law.”
He further faults the US embassy for facilitating the fleeing of Mr Walde from Kenya , arguing that “that is itself questionable”, and that “the embassy was complacent in the fleeing of Mr Walde”.
Ms Nancy Gakau, a don at Masinde Muliro University of Science and Technology, says diplomats should not be solely blamed for their actions, and that the problem lies with local authorities.
“Diplomats behave on the premise laid down by the host country,” she argues. “If you do not prosecute even your own people who spread impunity, why would you touch me?”
WHO IS PROTECTED?
- The Diplomatic Agent: Head of the mission or a member of the diplomatic staff of the mission. This group is not subject to arrest or detainment and are completely immune to the criminal jurisdiction of the host countries.
- The Family: The family of the diplomatic agent also enjoys the same immunity status as the agent.
- Administrative and Technical Personnel: People working within a foreign mission enjoy the same immunity as the diplomatic agents with respect to criminal jurisdiction.
- Service Staff: These are people who performs domestic services for the mission, and these are only immune for acts performed in the course of their domestic duties.
- Private Servant: This is a person who provides domestic service for a member of the mission and who is not an employee of the sending state. This group has only the immunity that the receiving state concedes, with the warning that the receiving state must exercise its jurisdiction over private servants in a manner that does not interfere with the performance of the functions of the mission.
SCENARIOS: WHEN DIPLOMATS COLLIDE WITH THE LAWS OF HOSTS
- November 13, 2006. New York City: Fred Matwanga, Kenyan diplomat to the United Nations, is taken into police custody by officers responding to reports that he had assaulted his son but is released after police discover he has a United States Department of State-issued credential identifying him as a diplomat.
- December 9, 2009. Tanzania: Canadian Juniro Envoy Jean Touchette is arrested after it is reported that he spat at a traffic police officer on duty in the middle of a traffic jam in the Banana district on the outskirts of the capital city.
- April 2010: A Qatari diplomat is arrested for smoking in the toilet on a US-bound flight and joking, upon questioning by flight attendants, that he was trying to light his shoe, a reference to the shoe-bomber Richard Reid.
- January 27, 2011. Pakistan: An American embassy employee, Raymnond Davis Allen, shoots and kills two Pakistani civilians. According to Davis, they were about to rob him and he acted in defence.
- when detained by police, Davis claims to be a consultant at the US consulate in Lahore.
He is formally arrested and remanded in custody. Further investigations reveal that he was working with the CIA as a contractor in Pakistan.
The US State Department declares him a diplomat and repeatedly requests immunity under the Vienna Convention on Diplomatic Relations to which Pakistan is a signatory. Police officials identify the dead men as Faheem Shamshad, 26, and Faizan Haider, 22. A third person, Muhammad Abad ur Rehman, was struck and killed by a US consulate car responding to the shooting. The wife of one of the slain men subsequently commits suicide, reportedly out of fear that Davis will not be prosecuted in the Pakistani judicial system.
- April 10, 2011. Islamabad, Pakistan: Patrick Kibuta, an electrical engineer in the United Nations military observer group, caused a serious collision with another vehicle while under the influence of alcohol. According to police reports, Kibuta, who was driving in the opposite lane, collided with a vehicle driven by a Canadian citizen residing in Islamabad. The victim suffered multiple fractures and required urgent surgery for her injuries. The accident occurred in the F6/1 section of Islamabad, and the Kohsar police impounded Kibuta’s UN vehicle on the scene. A lab draw at a nearby hospital confirmed that he had an elevated blood alcohol level. Charges for reckless and drunken driving are filed against Kibuta, who enjoyed diplomatic immunity.