Why the US Government should let Walde face Justice in Kenya

By Dann Mwangi

The crime of dangerous driving that caused death of Haji Lukindo is grave and qualifies withdrawal of the diplomatic immunity in Articles 29 and 31

Joshua Walde, an information management officer with the US Embassy to Kenya, was involved in a car crash on July 11, which led to the death of Haji Lukindo. Lukindo was a driver with a local transport company. He is survived by a jobless widow and children.

Although Walde is said to have recorded a statement with the police after the accident, he shortly left the country for US and with all indications that he caused the accident that led to the death of Lukindo, it only means he left Kenya to evade justice. Of course being an employee of the embassy, he enjoyed diplomatic immunity from prosecution, but this does not necessarily amount to diplomat impunity and especially when viewed in the context of the suffering that the accident has caused to Lukindo’s family. In addition, Walde is a diplomat of a high rank in the US Embassy, and we can safely conclude that the Embassy was aware of the accident that he is said to have caused and also facilitated, if not advised him to leave the country.

In this background, it is important for us to interrogate the manner in which the US Embassy has handled this matter, as Lukindo’s family should not be allowed to suffer in the pretext of diplomatic immunity that is not absolute and can be waived. The Kenyan US embassy and its government have been at the forefront of advocating democracy and observance of human rights. The casual and indifferent manner in which they want to protect Walde should not be allowed. Their advocacy for human rights has sometimes been criticised as it borders policing and bullying Kenyan government, and lacking in objectivity. A belated apology to Lukindo’s family cannot be consolation enough. There must be demands for waiver of diplomatic immunity to Walde.

A look at the Vienna Convention on Diplomatic Relations of 1961 shows diplomatic immunity cannot be a justification for Walde not to face justice. It also shows how the US government must step in and ensure Walde is prosecuted if they believe in universal application of human rights. In fact, the actions or lack of it by the US government will help understand whether human rights are subjective according to their policies.

Article 29 of this convention confers inviolability status to diplomats and therefore they cannot be arrested or detained by the sending state and especially if diplomatic ties between the receiving state and sending state are good. Further, Article 31 of the same convention guarantees diplomatic agents immunity from criminal jurisdiction of the receiving state, in this case Kenya, except on issues relating to private immovable property, professional or commercial activity done outside a diplomat’s official function and in a succession matter that a diplomat is involved as an executor, administrator or a heir or a legatee as a private person not on behalf of the sending state.

However, Article 32 of the same convention lifts the lid of diplomatic immunity enshrined in Articles 29 and 31. This is what the US is supposed to apply if it believes in the rule of law and human rights. The Article allows the sending state, US, to expressly waive the diplomatic immunity on its diplomatic agents that can even extend to waiver on execution of judgment.

The crime of dangerous driving that caused death of Lukindo is grave and qualifies withdrawal of the diplomatic immunity in Articles 29 and 31. The US government should use Article 32 to ensure justice, failure to which they will be encouraging impunity and therefore lack moral legitimacy to press for human rights. Interestingly, no local civil society funded by US and other Western powers, has spoken about this issue. They have chosen to side with money and not human rights.

There is need for the US government to act and for the Kenyan government, as promised by Cabinet Secretary for Foreign Affairs, to pursue this matter to its logical conclusion.

The writer is a lawyer