ZIMBABWEANS are currently grappling as to whether Grace Mugabe is entitled to diplomatic immunity following an incident in which she is accused of assaulting a young lady who happened to be in a hotel room with her sons.
When we speak of diplomatic immunities, under international law, the UN conventions of 1961 and 1969 come into immediate focus. There is no doubt that international customary law affords the head of state full diplomatic immunity and inviolability.
In other words, President Robert Mugabe is protected fully from arrest and criminal prosecution under customary international law whether he travels for private or state business.
Customary international law is recognised under article 38 (1) (b) in the statute of the International Court of Justice. The provisions ask the court to use international custom as a general practice accepted as law.
The majority of states have accepted this as binding and non-have deviated from observation of the same. To date, customary international law is recognised as the primary source of diplomatic protection for heads of state whether they are travelling for private or state purposes.
The basis at law regarding diplomatic immunity for heads of state is covered in cases, conventions and in the 2008 United Nations Secretariats memorandum relating to immunity of state officials when in foreign countries. These memorandums look at the concept of immunity in the personal jurisdiction (Rationale personae) which deals with all aspects of the behaviour of state officials whilst abroad in their private and official capacity.
The question that we have at hand is whether the same protection can be extended to heads of states families through this principle of “rationale personae” (personal jurisdiction) or spouses who in most instances ‘do not officially hold title except that they are wives or relatives of the head of state.’
Heads of state require full immunity in order for them to freely and effectively function in their official duties. The 2008 memorandum talks about immunities to family members and those accompanying the heads of state.
Also article 39 of the Convention on special missions, states that “members of the families of representatives of the sending state…shall enjoy the privileges and immunities specified in article 29 to 36”.Advertisement
International customary law has developed to provide special privileges and immunities to the family members of the head of state. If the head of state is to function correctly, the scope of the rule protecting the head of state must extend to the family in order to maintain the official function of the head of state.
If Grace Mugabe is to be arrested and charged it would affect the discharge of the Presidents executive functions and state business.
Arresting and prosecution of Grace Mugabe can trigger a diplomatic incident that can potentially lead to severance of diplomatic ties between the two countries, affect trade and the stay of Zimbabwean nationals in South Africa. None of the two countries would want to go down that road.
So, in other words, Grace Mugabe will always enjoy diplomatic immunity in as long as her husband is the head of state, whether she travels in her private or official capacity.
That is the position under international law. Case law backing this position include the Imelda Marcos case. In Ferdinand E Marcos and Imelda R Marcos vs United States of America (1987) it was demonstrated that immunity covers private activities of heads of state and their spouses.
It is also instructive to note that this is not the first time Grace Mugabe has invoked diplomatic immunity to avoid prosecution.
In 2009, whilst on a private visit to Hong Kong she assaulted a Sunday time’s reporter when he attempted to take a picture of her leaving her hotel. She had visited Hong Kong on a private shopping visit. The reporter tried to have criminal charges brought against Grace Mugabe. The Hong Kong authorities accepted her plea of diplomatic immunity based on customary international law and stated that “Grace was not liable for arrest or detention, and possess immunity from prosecution according the Chinese regulations on diplomatic immunities and privileges” drawn from international custom.
It is, therefore, custom that the spouse of a head of state enjoys full diplomatic immunity, it does not matter whether her visit is private or state sanctioned. To conclude, the application of immunities to the family of the head of state is a practice bolstered by international customary law and the mutual desire among states to have good relations.
Grace Mugabe’s actions are protected for the time Robert Mugabe remains the executive president of a sovereign state. Anything else is merely political or legal banter.
Lloyd Msipa is the founder of The Africa Public Policy Research Institute based in London, England. Email: Imsipalaw@gmail.com