© 2017 Shoeshoe Malisa

Warranted or not? Diplomatic immunity and Grace Mugabe

The granting of diplomatic immunity by the Government of South Africa to Zimbabwean First Lady Grace Mugabe after she allegedly assaulted a South African model has been met with great criticism and agitation by those that advocate that such immunity was unlawful and unjustifiable.

Diplomatic Immunities and Privileges Act

In her 20 August Minister’s Minute, Minister of International Relations and Cooperation, Maite Nkoana-Mashabane, said that her action to grant Mugabe diplomatic immunity was permissible as she was acting in accordance with the powers vested in her by section 7 (2) of the South African Diplomatic Immunities and Privileges Act no. 37 of 2001. It is worth mentioning that diplomatic law in South Africa is regulated by this Act read in conjunction with the Vienna Convention on Diplomatic Relations 1961.

It has been argued that Mrs. Mugabe was in South Africa on personal grounds and as such this issue should not fall under the ambit of the Diplomatic Relations and Privileges Act. This may be so, more especially because of the Vienna Convention which only applies to diplomatic missions and members of such missions.

Nevertheless, as much as Mugabe was not representing her state, and more so that the conferment of her immunity was not published by notice in the Gazette, as is required under section 7 (1) of the Act, nonetheless the Minister has the power to confer such immunities and privileges if it is in “the interest” of the Republic of South Africa according to section 7 (2).

The notion of diplomatic immunity

The following factors need to be taken into consideration.

  1. Grace Mugabe is the First Lady of Zimbabwe, the spouse of a head of state. Heads of states enjoy diplomatic immunity and so do members of their family.
  2. The notion of diplomatic immunity and the purpose of such immunities and privileges is not to benefit individuals but to uphold sovereign equality of states and promote friendly relations among nations.
  3. It goes without saying that apprehending and prosecuting Zimbabwe’s First Lady would be to give birth to exorbitant enmity between South Africa and Zimbabwe the consequences of which would be detrimental. Diplomatic immunity has been for years upheld in order to elevate and maintain International peace and security.

Limited right of recourse

Sadly for the victim there is limited right of recourse as is normally the case for people who fall victim of diplomats if the host state does not declare the diplomat persona non grata or if the sending state waves immunity, none of which were exercised in this case

The notion of diplomatic immunity can be viewed as permitting offenders to, literally and figuratively, get away with murder and to defeat the rule of law. In essence that is exactly what it does. Without amendment to the Convention we can only pray and hope that all persons enjoying such privileges and immunities respect the laws and regulations of the receiving state as per Art 41.

Convention should be amended

Nevertheless, even with its impediments, diplomatic immunity must continue to exist in order to give diplomats the freedom to carry out their duties without fear of prosecution, especially bearing in mind that states differ in their constitutional and social systems.

However the Convention should be amended to take cognisance of internationally recognised crimes that should not go unpunished on the basis of diplomatic immunity moreso as there are now increasing diplomats being deployed to other states and members of their families. Diplomatic immunity must have exceptions.

Shoeshoe Malisa (Lesotho, LL.B., LL.M,) is an independent researcher of international and labour law.