Diplomatic Immunity for Grace Mugabe?

17 August 2017

Simba Mubvuma 

Attorney 

Mtetwa & Nyambirai LP, Harare 

I

On 14th August 2017, it was reported that Grace Mugabe, the wife of President Robert Mugabe of Zimbabwe had assaulted a young woman at a hotel in Sandton, Johannesburg. It was also initially reported that a police report had been made, and that Mrs Mugabe had handed herself to the police. According to reports, she was due to appear at court in South Africa on the afternoon of 15th August 2017. It would later be reported that contrary to earlier suggestions, Mrs Mugabe had not handed herself to police, but had in fact flown back to Harare on a private flight. In the course of the next few days, the whole case was shrouded in mystery, and it remained unclear whether Mrs Mugabe was still in South Africa or had in fact flown back to Zimbabwe as reported. It was subsequently reported by Reuters in the evening of 16th August 2017, that the Government of Zimbabwe had directed a note to the Government of South Africa seeking to invoke diplomatic immunity for Mrs Mugabe. When I read that report, I was prompted to draft this piece and contribute to the debate on whether Mrs Mugabe can invoke diplomatic immunity.

It is worth stating from the very start that the present piece does not ponder the desirability of Mrs Mugabe succeeding in her quest to invoke any sought of immunity from the criminal jurisdiction of the courts of South Africa. Far from it. If I am to be totally honest, I would not lose any sleep if Mrs Mugabe is adjudged to be immune from the criminal jurisdiction of the courts of South Africa. Equally, I would not find any joy or satisfaction if she lives to face final judgment on the assault charges before the courts of South Africa. This is because whatever the outcome, this whole case, to many people, is either diplomatically awkward or just legally confusing. I have chosen to assist in the latter. In that spirit, this piece is my humble contribution to the debate on diplomatic immunity in relation to Mrs Mugabe.

II

The true impact of the present case is probably epitomized in the remarks of the South African Police Minister who remarked that a foreign citizen with a diplomatic passport cannot go around beating up people in the hope that their mere possession of such a passport will make it disappear. To suggest that such an approach is the essence of diplomatic immunity would be to misstate its true nature. Essentially, diplomatic immunity occupies a functional purpose in international law, which is generally accepted as a body of rules which governs the relationships between and amongst states. A key feature of law in any form is that it should serve a rational purpose. In that light, diplomatic immunity serves the rational purpose of allowing persons conducting international relations to do so without hindrance. Thus, it presents a broad concept, and is concerned with a set of different principles applicable separately to a) diplomatic agents (governed by the Vienna Convention on Diplomatic Relations, 1961 and ; b) sitting heads of state (governed by customary international law). These various doctrines of immunity have been described as the cornerstones of diplomatic relations. This is because the whole idea of diplomatic immunity has a theoretical and practical objective. Theoretical in that it assumes diplomats and heads of state to be functional in their approach, such that they are trusted to act in the interest of their sovereign state, which states must not be impeded in their exercise of sovereign acts. The objectives of diplomatic immunity are also practical in that they seek to ensure that diplomats and heads of state are not inhibited from performing their diplomatic functions by subjecting them to the criminal, civil or administrative jurisdiction of foreign states.

In the case of Mrs Mugabe, we must appraise ourselves with the undisputed facts before considering whether the two categorizations of immunity above would apply to her. The first important fact is that sometime in July 2017, it was reported that Mrs Mugabe was involved in a mishap at the airport in Harare, which mishap resulted in her sustaining an injury to her foot. The second critical fact is that Mrs Mugabe, like most people in Zimbabwe, thinks it “wiser” to travel to South Africa to get medical attention. The third fact, which is causally important, is that Mrs Mugabe’s two young sons are known to have an eye for a good time, and that they checked into a hotel in the affluent Sandton area of Johannesburg where the assault would then allegedly occur. All these facts speak to the question of whether Mrs Mugabe would be immune from the criminal jurisdiction of the courts of South Africa in the matter involving the alleged assault in South Africa.

It is worth mentioning that the Vienna Convention on Diplomatic Relations, 1961 has the force of law in South Africa as provided for under section 2 (1) of the Diplomatic Immunities and Privileges Act 37 of 2001 of South Africa. However, an analysis of the Vienna Convention on Diplomatic Relations, 1961 immediately illustrates that the convention would only apply to “diplomatic agents”, who are specifically defined as “the head of a mission or a member of the diplomatic staff of a mission”. Importantly, it has become widely recognized under international law that the mission referred to under the convention relates to persons who are sent to a receiving state to perform diplomatic functions. Heads of mission include ambassadors or nuncios accredited to Heads of State, envoys, ministers and internuncios as well as charges d’affaires accredited to Ministers for Foreign Affairs.

Under the above definitional premise, it is clear that the convention cannot apply to the wife of a head of state who by herself, has travelled to a foreign state to seek medical attention. Such a person is neither the head of a mission, nor a member of the diplomatic staff, nor an ambassador or nuncios, nor an envoy. She is neither be a minister, an internuncios accredited to Heads of State nor a charges d’affaires as contemplated by the convention. Further, the rule in the convention that the family members of diplomatic staff are covered by the convention would also be inapplicable to Mrs Mugabe on the basis that this only relates to family members of the head of a mission or members of the diplomatic staff of a mission residing in the receiving state. As such, the whole scheme of the convention cannot apply to Mrs Mugabe in the present circumstances.

III 

But perhaps Mrs Mugabe can claim head of state immunity instead, which is founded not in the convention, but in customary international law. Mr Mugabe himself is no stranger to the doctrine of head of state immunity, having been the subject of a case in which the US Supreme Court recognized the principle that American courts almost always accept requests from the Department of State for immunity of a head of state. In that case, the Supreme Court agreed with an appeals court which had concluded that that the president and foreign minister of Zimbabwe were not subject to service of process during a period when they were present in the United States to attend a conference at the United Nations. The US Department of State had requested that Mr Mugabe be granted immunity on the basis that putting him on trial would be incompatible with the foreign policy goals of the US (see Tachiona v United States). This case, like many others, underlines the prevailing position that current heads of states are generally conferred with immunity from the jurisdiction of foreign states.

The real debate, which warrants further discussion, relates to whether the family members of heads of state also enjoy any such immunity under international customary law, which by virtue of section 232 of the Constitution of South Africa and section 4 (1) of the Diplomatic Immunities and Privileges Act 37 of 2001 has the force of law in South Africa. To determine what is in fact the prevailing norms of customary international law, the answers may be found in the pages of numerous decisions of courts in Belgium and in Switzerland (as well as all other decisions which followed them). These cases are considered to be a statement of the prevailing customary international law norms on the immunity of close family members under head of state immunity. The key principles from these decisions is that at worst, as held in a 1988 Belgian case, the immunity accruing to a head of state does not extend to their family members. At best, as held in a 1989 Swiss case (see Marcos and Marcos v Department of Police), immunity of a head of state extends to “the closest accompanying family members and senior members of household staff ”.

Assuming that the approach advanced in Belgium represents the prevailing customary international law norms, Mrs Mugabe would not be covered by head of state immunity. Further, and if we are to assume that the Swiss decision correctly captures the prevailing norms of customary international law, it is worth stating that the decision proceeded from the premise that the “family” members would have accompanied a head of state to a foreign state. It did not proceed from the premise of a family member traveling to a foreign state on their own and on personal business such as attending to their own health or shopping. Both approaches, to be fair, would not be inconsistent with the relevant legislation of South Africa, namely the Diplomatic Immunities and Privileges Act, which we have already established to be applicable only to diplomatic agents. It is useful to note, as we learnt from the Al Bashir case, that even the classical head of state immunity is now being questioned in the context of international crimes.

From the above principles, it is clear that the immunity which would ordinarily apply to Mr Mugabe, as occurred in the US case, cannot apply to Mrs Mugabe in this case for two reasons. Firstly, and assuming that the position articulated by the Belgian court is law, immunity for heads of states simply does not extend to their family members. Secondly, and assuming that the Belgian decision was a misstatement of the prevailing customary international law norms and that the Swiss position is correct, Mrs Mugabe would still not have immunity because in the context of that decision, immunity to family members only applies in the context of family members who have “accompanied” a head of state to a foreign state. The available facts show that Mrs Mugabe did not accompany the head of state to South Africa.

IV 

It is noteworthy that there has been some suggestion that if Mrs Mugabe travelled on a diplomatic passport, she would on that basis be entitled to immunity from the jurisdiction of the courts of South Africa. This position is inaccurate for two reasons. First, it overplays the legal relevance of a diplomatic passport in international law. Passports are merely documents to aid travel, and the fact that a person was issued with a diplomatic passport does not automatically make them a “diplomatic agent” within the context of the Vienna Convention on Diplomatic Relations, 1961. Those who follow swimming know that legendary Zimbabwean swimmer Kirsty Coventry was granted a diplomatic passport after winning gold in Athens in 2004. I do not think that made her a “diplomatic agent”. Second, the overemphasis on the diplomatic passport neglects the position that immunity is specifically provided to persons who are expressly identified by the convention and by customary international law. The conventions or the prevailing customary law norms do not identify holders of diplomatic passports as having immunity in general, regardless of whether they are diplomatic agents or current heads of state. As such, the nature of the passport that Mrs Mugabe used to travel to South Africa is irrelevant in a discussion on whether she can be granted with immunity.

There is obviously a catch in the development that Mr Mugabe is due to travel to South Africa this week for a meeting of SADC heads of states. We know that Mrs Mugabe, like most first ladies, would ordinarily accompany the President to such gatherings, and that if Marcos & Marcos accurately states the prevailing international law, Mrs Mugabe enjoys immunity on any such visits. She cannot be arrested or prosecuted when she is a family member who has “accompanied a current head of state” to a foreign state. This development obviously brings to the fore the issue of whether the immunity ought to be considered at the time the offense is allegedly committed or is generally relevant, even in the context of a family member who has already visited a foreign state on their own but is subsequently joined by a head of state. The answer seems obvious. It lies in understanding the definition of the word “accompany”, which must be derived by seeking the literal meaning of the word. According to the Cambridge Dictionary, to accompany, when used in relation to persons, means “to go somewhere with (someone)”.

We know from the facts that Mrs Mugabe was already in South Africa, and that she was subsequently joined by Mr Mugabe. On a theoretical level, therefore, Mrs Mugabe did not accompany a head of state, and cannot enjoy head of state immunity under customary international law. On a practical level, however, if Mrs Mugabe has now joined Mr Mugabe who is a head of state, this now possess a diplomatic as well as practical difficulty in effecting an arrest on her. Such an arrest would require uneasy interaction with President Mugabe’s entourage in a manner that could cause a diplomatic embarrassment for South Africa. I would not venture to suggest that her presence with Mugabe’s entourage pauses a legal impediment if it is accepted, as it should, that her status as a wife of a sitting head of state does not accord her the privilege of diplomatic immunity.

There is obviously an argument to be made that there is international precedent arising from the 2009 row where Mrs Mugabe allegedly assaulted a British photographer in Hong Kong. We know that Mrs Mugabe got immunity back then, and that some are already arguing that the present case is similar, and that it should be dealt with in similar fashion. This argument neglects the point that when the law is actually considered, the decision to grant Mrs Mugabe immunity is as wrong now as it was back in 1999. What is markedly different is that in 2009, the people in Hong Kong were not really watching and the radars of geo-politics were not as focused on Mr Mugabe as it is now. Hong Kong, unlike South Africa, didn't really make noise about it. Hong Kong could easily get away with granting Mrs Mugabe immunity without considerable political backlash. In the present case, we know that South Africa is watching, and that the courts in South Africa can be trusted to vindicate the law should any grant of immunity be challenged. As such, the “precedent” of 2009 might not assist Mrs Mugabe in the present case.

V 

Overall, I would conclude that Mrs Mugabe is not legally entitled to immunity, either under the Vienna Convention on Diplomatic Relations, 1961 or under the the prevailing norms of customary international law. The fact that she could have travelled on a diplomatic passport or that she was subsequently joined by Mr Mugabe cannot create some form of immunity. She was neither a diplomatic agent, nor was she a family member accompanying a current head of state as contemplated by the convention and by the prevailing norms of customary international law. On a practical level, however, I do not see Mrs Mugabe being arrested or prosecuted on her current visit. For as long as she is with Mr Mugabe in South Africa, even in the future, and for as long as Mr Mugabe is head of state, it is difficult to see how she can be practically arrested or prosecuted. But South Africa can shock us. It always does.