Diplomatic immunity dims employee’s quest for justice

By Wahome Thuku

Diplomatic immunity is a crucial yet controversial legal concept world over. It’s the legal immunity agreed upon by almost all States and enjoyed by diplomats and staff of some international organisations against lawsuits or prosecutions under the laws of the countries where they serve.

This ensures that foreigners working for such organisations and missions are not bound by laws of the host States, so that they can effectively carry out their work. But diplomatic immunity can be a controversial subject, especially when it appears to be abused.

One organisation that enjoys such immunity in Kenya and other countries is Shelter Afrique (a company for habitat and housing in Africa).

The organisation was established in May 1982 in Lusaka, Zambia, by African governments, African Development Bank and other bodies to mobilise resources for housing development in the continent.

Shelter Afrique is based in Nairobi and Kenya’s legal obligations to the organisation are contained in Shelter Afrique Act Cap 493c.

In July, the organisation and its managing director Alassane Ba hit the headlines for wrong reasons. Mr Ba, a Senegalese, was accused of assaulting finance director Karen Kandie at the firm’s headquarters in Nairobi, during an official meeting.

The allegations went viral in social and mainstream media with demands that action be taken against Ba. The Director of Public Prosecutions Keriako Tobiko ordered for investigations and prosecution of Ba. One thing, however, stood on the way.

Ba enjoys diplomatic immunity in Kenya hence could not be arrested or prosecuted.

On July 6, Shelter Afrique wrote to Ms Kandie suspending her from employment pending investigations into the claim of assault.

On July 12, Kandie filed a suit at Industrial Court in Nairobi seeking to have the purported special leave and the suspension letter lifted or set aside. She also filed an application asking for an order reinstating her to the job pending determination of the application.

She further sought an order restraining the organisation from terminating or interfering with her employment.

 Special leave

She also asked that the board of directors of the organisation be restrained from investigating or hearing the complaint of assault against Ba.

In her affidavit, Kandie claimed the decision to suspend or send her on special leave was null and void.

She asked the court to order that she be reinstated on the same terms as finance director. She also asked that Ba be suspended as managing director for the period during which the board would deal with the complaint she had made.

She further asked that the board be forced to investigate the complaint afresh and in the absence of Ba. Kandie also asked for damages for breach of contract, unlawful suspension and harassment as well as damages for assault.

Meanwhile, Tobiko proposed charges against Ba for alleged assault. Ba filed a constitutional petition at the High Court challenging the charges and the intended prosecution. On July 25, the High Court issued orders temporarily restraining Tobiko and the police from prosecuting Ba.

Kandie’s case at the Industrial Court went before Lady Justice Maureen Onyango and was first heard on July 31, where it was certified as urgent. Full hearing was set for August 3.

On that day, lawyers for Shelter Afrique did not turn up. The court issued temporary injunction restraining the organisation from terminating or interfering with Kandie’s employment as finance director pending determination of the suit. The case was set for hearing on September 4. The organisation was to file their response by August 21.

Shelter Afrique filed a notice to object the suit. The notice was filed by the organisation’s corporate affairs director Ruth Onyancha.

In the notice of preliminary objection, Shelter Afrique and Ba argued that they held diplomatic immunity under the Privileges and Diplomatic Immunities Act, laws of Kenya hence were immune from the legal process in the case.

The organisation argued that it had entered into a Host Country Agreement with Kenya on October 19, 1983, which grants it and its senior staff, including the managing diplomatic privileges and immunity from legal proceedings.

Further, they argued that Shelter Afrique and African Development Bank had entered into agreements with the Kenya Government that guaranteed their employees diplomatic privileges and immunity hence the court could not issue orders asked for. Ba himself holds a diplomatic passport.

They submitted that no legal proceedings could be instituted against Shelter Afrique and Ba unless they voluntarily and unequivocally waived their immunity, which they had not.

They argued that Kandie had not exhausted avenues for redress in the organisation, which provided for internal resolution of disputes.

Kandie’s lawyers opposed the objection saying giving effect to the immunity would infringe on her constitutional right of access to justice, right to fair hearing in enforcement of her right to fair labour relations before a court or any other impartial tribunal.She claimed the internal dispute resolution mechanism and staff rules were illusory as they were overseen by the same organisation she was complaining about.

Legal capacity

Further, Kandie’s lawyer argued that the Privileges and Diplomatic Immunities Act was not applicable as there was no order of the minister declaring Shelter Afrique as one of the international organisations that enjoy privileges as required in law.

The court observed that the Privileges and Diplomatic Immunities Act gives effect to the International Conventions that confer immunities and privileges to international organisations that Kenya is a member.

The Host Country Agreement states that Shelter Afrique shall have full juridical personality and full legal capacity to among other powers enter into contracts and to sue and be sued in its own name. The agreement also gives the organisation, its current and former senior officials immunity from legal process of any kind for words spoken or written and acts performed in their official capacity. Also immunity from personal arrest or detention and from seizure of their personal and official baggage.

The managing director, board members and officials above the rank of assistant director are accorded privileges and immunities, exemptions and facilities similar to those enjoyed by ambassadors and heads of missions.

The judge quoted several cases in which other courts had dealt with the issue of diplomatic immunities. She easily concluded that Shelter Afrique and Ba enjoyed such privileges and immunities.

The offices of Shelter Afrique were inviolable and even the service of the court papers could not be effected without the consent of the managing director. “This means that even if this court issues orders against the respondents, it would be in vain as the orders will not be capable of execution against the respondents,” the judge concluded.

The judge allowed the preliminary objection raised by Shelter Afrique. She struck out Kandie’s memorandum of claim and dismissed the case with no costs. Ms Kandie has taken the case to the Court of Appeal. In the meantime, Ba’s petition at the High Court is still pending.

The writer is a lawyer and a court reporter with the Standard Group.

Email: iwahome@standardmedia.co.ke