By Sussie Mutahi
On 7th April 2018, a 22- year old Pakistani motorcyclist was killed in a tragic road accident involving an American diplomat. The diplomat, a US military attaché, is alleged to have ran a red light, while driving an SUV before hitting the motorcycle, killing the driver and injuring a passenger in the country’s capital, Islamabad. On Friday of that week, an Islamabad Court ruled that the American’s diplomatic Immunity might not apply in the traffic crash. A Pakistani newspaper reported that the diplomat was blocked from leaving Pakistan, forcing the US military aircraft sent on his behalf to depart without him. Other sources indicate that the diplomat has since returned to the US.
The unfolding of this tragic incident inspired an examination into the scope of Kenya’s diplomatic immunity in the face of criminal culpability perpetrated by a foreign diplomat on Kenyan soil.
1. legal basis for jurisdictional diplomatic immunity
1.1 1961 Vienna Convention on Diplomatic Immunity
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
Section 37 extends the immunity accorded diplomats to the family members of a diplomatic agent forming part of his household as well as to members of the administrative and technical staff of the mission, together with members of their families forming part of their respective households who are not nationals of the sending state.
A cursory reading of Section 31 of the Vienna Convention on Diplomatic Immunity implies that diplomatic agents are absolutely immunized from criminal proceedings in the receiving state. This unfettered immunity seems to apply to all criminal offences, from the minor to the gravest.
1.2 The Constitution of Kenya 2010
Article 2(6) states that:
‘Any treaty or Convention ratified by Kenya shall from part of the law of Kenya under this Constitution.’
Kenya, having ratified the Vienna Convention on Diplomatic Immunity and the Vienna Convention on Consular Relations, makes their provisions applicable in Kenya.
1.3 The Privileges and Immunities Act
Section 4 makes a wholesale importation of the Vienna Convention on Diplomatic Immunity as well as the Vienna Convention on Consular Relations.
2. The rationale for diplomatic Immunity
The preamble of the 1961 Vienna Convention on Diplomatic Immunity rationalizes the privileged status of diplomats by stating that the immunity would contribute to the development of friendly relations among nations; irrespective of their differing Constitutional and social systems and more importantly that the immunity affords diplomats to perform their diplomatic functions efficiently in the receiving state.
The raison d’etre for this immunity is to allow diplomats to be able to carry out their functions within the framework of necessary security and confidentiality and not merely to protect the diplomatic agent. The immunity also acknowledges the representative character of a diplomatic mission. This does not grant diplomats freedom to flout local law. They are still required to obey it, but will in many cases be immune from local jurisdiction to enforce such laws.
There has been an evolution in the theories rationalizing the existence of diplomatic immunity. Firstly, the oldest and most outdated is the ‘theory of extraterritoriality’ which was rooted in the idea that the territory of the receiving state used by a diplomatic mission was to be considered the territory of the sending state. This theory was later replaced by the ‘theory of representative character’, which found its reasoning in the idea that diplomats personified the sending state and are to be granted the same immunities extended to the state itself. The last and most widely accepted theory is that of ‘functional necessity’. This theory posits that the existence of diplomatic immunity is founded on the need to enable normal functioning of diplomatic missions and states. On this basis, diplomatic immunity protects diplomats from the receiving state which may for various reasons want to hinder the diplomatic agent in carrying out his function effectively for example by commencing unfounded penal proceedings.
3. The scope of diplomatic immunity in criminal cases
In Empson v Smith the definition of immunity was given as follows:
‘It is elementary law that diplomatic immunity is not immunity from legal liability, but immunity from suit ’
This immunity seems to stretch as far back as the year 700 B.C where the Assyrian envoy of Sennacherib, who met King Hezekiah’s just outside the walls of Jerusalem is reported to have uttered:
‘Kings, queens, generals and other dignitaries are portrayed as sending messengers to adversaries in the region, usually with such unwelcome tidings that they would need every ounce of immunity that they could get.’
Immunity from jurisdiction refers to a limitation on the adjudicatory power of national courts. Diplomatic immunity proceeds from the doctrine of State Immunity. State immunity is a rule of customary international law under which municipal Courts are prevented from exercising their adjudication and enforcement jurisdiction in disputes where a foreign State is named as a defendant (direct impleading) or where a foreign state intervenes by means of interpleader proceedings (indirect impleadings).
In Campania Naviera Vascongada v S S. Christina per Lord Atkin:
‘Under the common law, exercise of court’s jurisdiction against the sovereign is deemed incompatible with the superior authority of the sovereign state. The doctrine is founded upon the broad consideration of public policy, international law and comity rather than any technical rules of law.’
It is important to note that the immunity is not for the benefit of the individual diplomat but to afford diplomats opportunity to perform their diplomatic functions efficiently in the receiving state. The principle of diplomatic immunity is set up in the interests of governments, not in that of diplomats; it cannot apply beyond the diplomatic mission.
A contrary view would lead to creating to the benefit of diplomatic agents a sort of statute of limitations and an indefinite unaccountability.
It has been suggested that diplomatic immunity has been held in place by the doctrine of reciprocity more than any other theoretical underpinning. The doctrine of reciprocity is based on the idea that the treatment extended to diplomats of the sending state will guarantee the same treatment for their diplomats in the receiving state.
4. the doctrines of sovereign immunity
There are two main approaches to sovereign immunity: absolute sovereign immunity and restrictive sovereign immunity. The approach associated with absolute sovereign immunity is called “structuralist” (ratione personae), while the approach associated with restrictive immunity is called “functionalist” (ratione materiae).The sovereign immunity approach is concerned with the status of the party claiming sovereign immunity, the immunity being justified on the sovereignty of the state.
The functionalist approach is concerned with the subject matter that is the conduct forming the basis for the claim of sovereign immunity. Recent trend seems to be towards the functionalist approach which has little or no regard for the state enterprise. The functionalist approach embodies the restrictive doctrine of sovereign immunity. Under the functionalist approach, when a state enterprise has a distinct legal personality (i.e. one detached from the state itself) and it performs acts of a private and commercial nature, it cannot claim sovereign immunity. To the functionalists, the status of the state enterprise is irrelevant; only the nature of its acts matter for purposes of jurisdictional immunity.
Although it is not correct to say the former has been completely eradicated, it is the case that restrictive sovereign immunity has gained ground globally over the last two decades.
The doctrine of restrictive immunity posits that a diplomatic agent qualifies for immunity only when their conduct is consistent with the very reason for which immunity was conferred in the first instance, that is, to perform their diplomatic functions efficiently in the receiving state.
There is numerous case law to support this doctrine:
In the United Kingdom, the precedent on absolute immunity was broken in 1975 in the case of
The Phillipine Admiral and later in the oft-quoted decision of Lord Denning in Trendtex Trading Corp vs Central Bank of Nigeria widely regarded as the definitive absorption by common law of the restrictive theory of sovereign immunity:
‘The court unanimously found that International law has changed from the rule of absolute immunity. Lord Denning M.R and Shaw L.J posited that the Court of Appeal could apply a new rule of International law even though there were Courts of Appeal decisions to the contrary. Put differently, the majority of the Court of Appeal in Trendtex case found that the act involved in that case was purely commercial and that the position of customary International law as opposed to the state of judicial precedent in England as at that date would require that immunity should not be extended to those acts.’
The court held that the current position in English customary International law and not the position of English case law should be applied. This approach was reaffirmed by the Court of Appeal in In Maclaine Watson v Department of Trade and Industry.
Similarly in South Africa, Margo J in Inter-Science Research and Development Services (pty) Ltd vs Republica Popular de Mozambique following Trendtex (supra) had no difficulty in finding that:
‘There is good reason to believe that the rule of sovereign immunity has yielded to the restrictive doctrine.’
Dingake J. in Bah vs Libyan Embassy cited with approval the dictum of Lord Denning MR in Rahimoola vs Nizam of Hyderabad &Anor where he stated that;
‘It is more in keeping with the dignity of a foreign sovereign to submit himself to the rule of law than to claim to be above it, and his independence is better ensured by accepting the decisions of the Court of acknowledged impartiality than by arbitrarily rejecting jurisdiction …’
4.1 Kenya’s approach to sovereign immunity
In Beatrice Wanjiku & Anor Vs. Attorney General & Anor Majanja J. expressed the view that;
“Although it is generally expected that the government through its executive (sic) ratified international instruments in good faith on behalf of and in the best interest of the citizens, I do not think the framers of the Constitution would have intended that international conventions and treaties should be superior to local legislation and take precedence over laws enacted by their chosen representatives …”
In Karen Njeri Kandie v Alssane Ba & another,it was held as follows:
‘We, too, agree that the doctrine of absolute immunity would be anachronistic, and has been for some time now. What immunity there is must be restricted or qualified so that private or commercial activities cannot be immunized.’
In Ministry of Ministry Of Defence of The Government Of The United Kingdom Vs Joel Ndegwa
‘…It is apparent that there is no absolute sovereign immunity. It is restrictive. The test is whether the foreign sovereign or government was acting in a governmental or private capacity then the doctrine will apply otherwise it will not afford protection to a private transaction. The nature of the act is therefore important.
In Talaso Lepalat v Embassy of the Federal Republic of Germany & 2 others
‘It will be noted that Lord Denning, ever the visionary, was making the above statement 20 years before the United Kingdom had formally acknowledged the doctrine of restrictive immunity. I have no hesitation in accepting that the doctrine is now well and alive in Kenya.’
From the foregoing, it is apparent that a diplomatic agent can be stripped of his immunity in instances where he is involved in criminal activities in his private sphere. The Vienna Convention on Diplomatic Relations could not possibly have intended for the immunity to be used as a shell to crawl into after causing human suffering, destruction of property and misery.
Sussie Mutahi, is an Advocate with the firm of Damaris W Gitonga & Co, Advocates
The Constitution of Kenya, 2010.
1961 Vienna Convention on Diplomatic Relations.
Privileges and Immunities Act, Chapter 179 Laws of Kenya.
6.2 Case law
Talaso Lepalat v Embassy of the Federal Republic of Germany & 2 others  eKLR.
Paul Posh Aborwa v Independent Election & Boundaries Commission & 2 others  eKLR.
Beatrice Wanjiku & Anor Vs. Attorney General & Anor eKLR.
Empson v Smith, Queens Bench Division-1 QB 426 (1996).
Ministry Of Defence of The Government Of The United Kingdom Vs Joel Ndegwa eKLR.
Gustavo J.L and Another (Supreme Court of Spain, International Law Reports, 1991, Vol. 86. Pg.517).
Maclaine Watson v Department of Trade and Industry (1983) 3 WLR 1033; 80 ILR 49.
Inter-Science Research and Development Services (pty) Ltd vs Republica Popular de Mozambique 1980 (2) SA III CT
Bah vs Libyan Embassy 2006(1) BLR 22CIC.
Rahimoola vs Nizam of Hyderabad &Anor  AC 379 at 418.
I. Brownlie, Principles of Public International Law (5th Edition, Oxford University Press, Oxford, 1998).
Shaw M., International Law (5th Edition, Cambridge University Press, 2003).
Higgins R., The Abuse of Diplomatic Privileges And Immunities: Recent United Kingdom Experience (American Journal of International Law, 1985).
Reinisch A., European Court Practice Concerning State Immunity from Enforcement Measures (The European Journal of International Law, Vol. 17 No.4, 2006).
Vark R., Personal Inviolability and Diplomatic Immunity in Respect of Serious Crimes (Juridica International VIII, 2003).
Soroyan K., Theories and Principles of Diplomatic Immunity (American University of Armenia,Armenia, 2007).