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Thursday, August 8, 2013

Isn't it about time we did away with diplomatic immunity?

Diplomatic impunity: Getting away with murder

I do not mingle with diplomats so I have no idea if they are as delightful to be around as a dictionary would have me believe. The Free Dictionary, for one, conjures up images of a diplomat as a person with an acute sensitivity to what is proper and appropriate in dealing with others; a person who has an aptitude for speaking and acting without offending others. Simply put, diplomats are supposed to be synonymous with tact and sensitivity, thoughtfulness and finesse. This is understandable bearing in mind that they operate in foreign countries, where they are supposed to be the official negotiators for their governments, as well as promoters of mutual trade, economic, political, social and other interests. Obviously, they need goodwill on their side to be able to accomplish their missions.

A diplomat who behaves so delectably would hardly ever need to invoke diplomatic immunity except in cases where he is genuinely being persecuted. However, my interactions with diplomats, usually when they are behaving badly on our roads, makes me think that the reason diplomats need immunity is to use it as a licence to misbehave freely without being subjected to cumbersome and obstructive laws. What I gather about diplomats, from observing their red-plated diplomatic cars on our roads, is that a diplomat is a person who has no regard for other people.  You will probably catch a glimpse of his white SUV, bulldozing it’s way to the front of the queue of vehicles restrained by the traffic lights or jam, whizzing past a traffic cop who dares not flag it down because it bears the red mark of legally-sanctioned impunity, and speeding off to God-knows-where, presumably to attend to urgent matters of international importance.
You’ve probably cursed and muttered expletives under your breath when a diplomat’s car almost ran you out of the road: Sure, you’ve got places to go too and you are running super late, but unlike the busy diplomat with so much to do and so little time, you have to wait your turn or the traffic cop will milk the last coin out of your impatience.  Moreover, unlike the busy diplomat, aren’t you just another idler with more time on your hands than you know what to do with? Then again, the diplomat gets his way and no one ever gets hurt, so it’s kinda ok. You’d probably do the same if you had powers like his. It’s all good. And then someone dies.
On July 11th, a busy US diplomat with so much to do and so little time, so much so that he could not afford to wait in the endless and meaningless Nairobi traffic  jam sped on the wrong side of Ngecha road. It was nothing unusual; this is what diplomats do – they have right of way even if it means flouting traffic and any other ‘obstructive’ laws and endangering other people’s lives. And to my knowledge, nobody ever gets hurt, at least not until July 11th. The recklessness of this particular diplomat led to an accident that claimed one life and left nine others nursing injuries after his car collided with the matatu they were traveling in.

The story first appeared on social media, on a mum's Facebook group, as a question from a concerned mother: seeing as the diplomat had impunity (aka diplomatic immunity) on his side to protect him from facing up to his actions in a legal suit, would the widow of the man who died in the accident be compensated?

A few days later, a local daily, The Star, picked up the story, reporting on the police’s frustration at not being able to charge the diplomat. He had recorded a statement, but the best they could do was to investigate and hand over a report to his embassy. A man was dead here, others had survived with varying degrees of injury; where I come from, this is murder, but on the other hand, this is a diplomat. He can kill and get away with it. It is called diplomatic impunity immunity.  A few days later, the international media picked up the story. This time, a bit of outrage seeped onto Twitter. What would happen to the culprit? Couldn’t the government have him repatriated to face up to his crime? What about justice? Can a diplomat get away with murder just because of immunity?

Mr Joshua Walde, the man who was exercising his god-given diplomatic impunity that claimed a life, was long gone. He could not be prosecuted under Kenyan law, and only God knows if the US government will take any action on him. If anything, according to the AP story, a US government official noted that "Embassy employees are typically evacuated for medical evaluations after traumatic events but are also flown out of the country to avoid any possible retribution or attack from others involved in the accident."

Maybe it is good riddance that Mr Walde, and his reckless driving ways, is off our soil, so we won’t have to worry about other fatal accidents from him in future, but what about the rest of the diplomatic corps who continue to drive recklessly on our roads?  But in line with our national motto: Accept and move on, we have accepted this behaviour as part of diplomatic impunity (immunity).  
I get the purpose of diplomatic immunity. Politics is dirty and without immunity, diplomats may be needlessly persecuted by host governments making it difficult to perform their duties, but surely this shouldn’t be a licence to flout the laws of the host countries with abandon. But it is; those who abuse diplomatic immunity have nothing to fear. The most a diplomat can expect to get for his lawlessness is a slap on the wrist, and even that is rare.
I don’t expect anything to happen to Mr Walde. He has moved on from his ‘honest’ mistake which was committed while he was attending to urgent matters of international importance, and so should we. In fact, the rest of us have probably moved on from our initial outrage. Shit happens, it is awful, but what much can we do? March to the US embassy? Demand for him to be brought back to face the law? The government can take it up, pursue the case through diplomatic channels and possibly have Mr Walde’s immunity revoked so that he can be charged. It happened in the US when the second in command at the Republic of Georgia’s embassy in the US hit and killed a 16-year-old girl in 1997.

He was driving while drunk when he crashed and hit the teenager, and initially nothing was done to him because he was a diplomat. He had immunity and could not be prosecuted, but that was before the story got to the media and attracted national outrage. The US government asked for a waiver of immunity from Georgia, it was granted and the man was tried and convicted of involuntary manslaughter and aggravated assault. 
So far Mr Walde has been lucky because I have not heard of any concrete plans by the Kenyan government to get him to face justice. And the most the US embassy has done is to offer an apology to the widow of the dead man, but an apology means nothing for justice. The police did say they would be asking the Ministry of Foreign Affairs to liaise with the American embassy for action, but whether anything concrete will be done remains to be seen. At the end of the day the only person who will have to live with this painful memory is the widow – a victim of injustice, shortchanged by the law of diplomatic impunity.
If the accident by Mr Walde had happened in his home country, America, he would not have been allowed to get away with reckless driving that results in death. Why should he be allowed to do that here or anywhere else, under the guise of diplomatic immunity? And Walde is not alone in using immunity to get out of legally sticky situations. The Shelter Afrique boss's case  after he allegedly assaulted the agency's financial director has not been resolved - he flashed the immunity card to bar authorities from prosecuting him last year. The Nigeria ambassador to Kenya also got off an alleged wife-battering conundrum after flashing the immunity card. And there are other cases to illustrate the abuse of diplomatic immunity, some of which are not reported in the media.

 Isn’t it about time we reviewed this impunity that hides behind the pretexts of diplomatic immunity? Immunity may have been based on good intentions, but if someone has obviously broken the law, they should face up to their actions, and not be allowed to abuse the immunity clause to get away with their crimes. In fact, there should be a clear clause in the Vienna Convention on diplomatic relations stating that any diplomat who commits an internationally recognised crime cannot get off on diplomatic immunity. It cannot be that people jeopardise the lives and rights of others and get away with it, legally, on our watch. Immunity must be reconciled with the requirements of justice.

Let diplomats live up to their name of thoughtfulness, tact and decorum while dealing with others or face the full force of the law. But this can only happen if the Vienna Convention is amended to allow for this, or if the home governments of criminals masquerading as diplomats refuse to stand in the way of justice, and allow the law to take its course.


 A bit on diplomatic immunity
Certain foreign government officials are not subject to the jurisdiction of local courts and other authorities. As such, they may not be arrested or detained, compelled to be witnesses in legal cases or prosecuted. They are also protected from search warrants.
The level of immunity may differ depending on the rank of the official:
  • Diplomatic agents and members of their immediate families are immune from all criminal prosecutions and most civil law suits.
  • Administrative and technical staff members of embassies, and consular officers  have a lower level of immunity. They are only immune for acts performed as part of their official duties.
Immunity may be waived by the home country and immunity does not exempt a diplomat from the jurisdiction of his home country. The host country can declare any member of foreign diplomatic staff persona non grata and the home country of the diplomat would have to recall the person or terminate his contract with the mission.


Diplomatic code of misconduct
If you think that it is only in Kenya (or Africa) where diplomats behave badly and get away with it, then you have probably not travelled widely enough. Top on the diplomatic code of misconduct are traffic offences, sexual offences, and refusing to pay rent or other fees and other crimes under the guise of diplomatic impunity.

Below are examples and commentary on diplomatic immunity reported in various media.

1. The untouchables: Is diplomatic immunity going too far? (Readers Digest)
2. Diplomatic immunity or diplomatic impunity? (The Standard)
3. The 6 most ridiculous abuses of diplomatic immunity (
Additional view from a legal perspective



  1. How about a country asking a foreign government whose diplomatic staff is suspected of having committed a crime to lift the suspect's immunity?

    It happened in July 2012 when Kenya arrested and later charged Mr. Dwight Sagaray, a former first secretary at the Venezuelan mission in Kenya, with the murder of Olga Fonseca, Dwight's boss.

    However, in case it involves Uncle Sam, it is always complicated. Few governments can even toy with taking on Uncle because Uncle has a bigger stick.

    In Uganda, Kampala to be specific, men driving a US Mission in Uganda vehicle in September 2012 brazenly punctured the tyres of a Ugandan army officer's car - because it had stalled them! The army officer reported the case to the police.

    That was the first and last time I heard about the case.

    It is not good that some diplomats abuse their immunity. But that should not be reason to do away with it. Because this time it is the Western diplomats misbehaving. Next time it might be African ones. I would want to know that my envoy, who did not knock down a Westerner, with murder aforethought, has immunity from being bundled the way Uganda's police handle a one Dr. Kizza Besigye.

    However, all diplomats should, perhaps, get regular refresher courses on how to behave while abroad?

    Safe journey, from Nairobi to Kampala.

  2. Yes, that was one of the options that I gave, but as we all know, when it comes to dealing with the big brother, matters become somewhat complicated. Can you imagine being able to attack soldiers in Uganda and getting away with it? That is only possible where the big brother is involved. As for our case, I don't expect the US to repatriate a citizen, especially a diplomat, to us for prosecution.

    As for the Venezuelans, what helped was that it was a crime involving it's own citizens. Otherwise where locals are involved, the issue gets complicated. A case in point is when some former Venezuelan embassy staff (Kenyans)were trying to sue their former boss for sexual assault -- that did not go anywhere. Also, if you read some of the links I provided at the end of the post, you will find that even African diplomats, and diplomats from all over the world misbehave. The Internet is full of those stories but our hands are mostly tied, unless immunity is waived.

    My point is that diplomatic immunity is all good until someone commits a crime. At that point it should not even be raised; such a person should automatically face the consequences of his or her actions without having the obstacle of immunity shoved into our faces.

    Thanks and see you soon.