August 29, 2017

Diplomatic Immunity

The phrase thas been on every South African’s lips since the news of Grace Mugabe’s alleged assault on Gabrielle Engels. She has since fled the country and been granted diplomatic immunity. This begs the question: what is diplomatic immunity? How does one qualify for it and what are the consequences of it being granted?

Diplomatic immunity can be defined as a form of legal immunity which allows the holder to not be prosecuted or susceptible to a law suit brought under the laws of the host country, rendering them immune to prosecution. However, the sending country may waive diplomatic immunity and allow the host to pursue and prosecute the holder of immunity. This is an extremely rare phenomenon and only really done in the case of serious crimes.

There are four types of immunities contained in the Diplomatic Immunities and Privileges Act, namely

  1. Immunities and privileges of diplomatic missions and consular posts, and of members of such missions and posts;
  2. Immunities and privileges of heads of state, special envoys and certain representatives;
  3. Immunities and privileges of the United Nations, specialised agencies and other international organisations; and
  4. Immunities and privileges pertaining to international conferences or meetings convened in the Republic

One would be granted immunity under the principles of international law in terms of agreements concluded between countries, treaties to which they are signatory to or customary international law (international law which is not necessarily codified but has been tacitly observed for so long that it is accepted as being law). Therefore, in order to qualify for immunity one needs fall in one of the above categories.

In the case of Mugabe, it was argued that she had diplomatic immunity as she was allegedly in the country to attend a summit as a representative of Zimbabwe and, therefore, fell under the definition of a diplomat. However, even if this is accepted as true, she would only have had functional immunity and would only be free from prosecution if she committed a crime in connection with her function of attending the summit. It is highly doubtful that the alleged assault would have been an aspect of the summit she was supposedly attending.

As previously stated, the consequences of having immunity are that the holder is free from prosecution for a crime committed under the laws of the host nation and cannot be pursued for civil liability.

It seems Grace Mugabe will get away with her alleged assault and will be allowed to return to our country as she pleases and without any fear of justice being served against her.

Author: James Bush

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