Court rules Saudi envoy not immune from prison in labour abuse row

The Employment and Labour Relations Court has opened the way for a 76-year-old former employee of the Saudi Arabian Embassy to seek jail time for the country’s Ambassador Khalid bin Abdullah Al-Salman.

Justice Byrum Ongaya directed Abdi Mohamed Abdullahi’s lawyer to serve the contempt application to Khalid through the Ministry of Foreign Affairs.

The lawyer, Yussuf Bashir, argued that the Royal Saudi Arabia Embassy had become a fortress of impunity, guarded by armed police officers.

The ambassador is accused of defying court orders for over six years.

It will be a first for a Kenyan court to hear a case seeking to jail a diplomat after a finding that ambassadors do not enjoy absolute immunity in labour disputes.

Court of Appeal judges Lydiah Achode, George Odunga, Patrick Kiage, Wanjiru Karanja, Hannah Okwengu, and Fatuma Sichale have separately held, in cases involving  Swedish and Belgium embassies, that their labour contracts are guided by local labour laws, which are private in nature despite them being diplomatic missions.

Justice Bernard Manani, in yet another case involving the Saudi Embassy and filed by its former employee Abas Musa, said being a foreign embassy was not a ticket to deliberately refuse to pay employees.

“ Where the dispute brings into question, for instance, the Executive policy of a foreign government or of its legislative or international transactions, the court should grant immunity if asked to do so. However, if the dispute concerns the commercial transactions of a foreign government, and it matters not whether these are carried on by its own departments or agencies or by the setting up of distinct legal entities, and a dispute arises properly within the territorial jurisdiction of our courts, there is no basis for granting immunity. In my considered view, hiring a driver is not a legislative or international transaction of the Kingdom of Saudi Arabia nor is it a suit against the policy of a sovereign,” said Justice Manani.

Bashir told the court that despite the Kenyan senior citizen pleading with his former employer to pay the amount, which has shot to over Sh100 million in interest, his cries have ended up on deaf ears.

“The above-mentioned contemnor has consistently disregarded the orders of this honourable court with impunity, which acts have prejudiced the claimant and continue to infringe upon his constitutional rights,” the judge ruled.

At 75, Abdi Mohamed Abdullahi could happily rest in retirement, play with his grandchildren, or look after his animals as time passes.

Nevertheless, Abdi, who worked with the Saudi Embassy in Nairobi, is frustrated in old age and in pain with his employer, for whom he diligently worked for a quarter century.

To him, mentioning the Saudi Embassy or Kenya’s Ministry of Foreign Affairs denotes a licence of defiance.

Abdullahi won an employment dispute against the embassy on July 19, 2019.

In the case, the embassy initially sought to settle out of court but then failed to respond, and the Employment and Labour Relations Court awarded him $320 282 (Sh41 million) and Saudi Arabia Riyal 54,000 (Sh1.8 million at the current exchange rate).

The judge further directed that the money be paid in two months, or else it would attract 14 per cent interest per annum from February 5, 2015 when Abdullahi first filed the case.

The embassy did not appeal.

The money has attracted USD 403 555.22 (Sh 51.9 million) and SAR 68040 (Sh 2.3 million) in interest.

Abdi has all the orders from the courts, including tens of decrees paving the way for auctioning the embassy’s assets to recover the money.

He has repeatedly used diplomacy to settle the issue, writing to Foreign Affairs, which Prime Cabinet Secretary Musalia Mudavadi heads, albeit without an answer. He has even separately hired auctioneers in a bid to recover his money.

However, the auctioneers, as well as process servers, bolt whenever they set eye on armed Kenyan police officers who man the embassy. One told the court he was denied entry to the gate to serve the court orders.

On the other hand, even with the court finding that the embassy does not enjoy diplomatic immunity in employment cases, the ministry insists that it does. The embassy has only gone so far as to inform Abdullahi that the court order had been forwarded to it and that it would get back to him. He said he had been waiting for the ministry’s call for over a year.

Abdullahi says his former employer’s failure to honour court orders is illegal and unfair to him. In contrast, Abdi adds, the ministry’s failure to intervene depicts helplessness in the wake of injustice.

He was hired as a translator sometime in 1995. and grew along the ladder to become a senior researcher, a position he held until he left.