Diplomatic law : Legal process against diplomats in Tanzania—2

There are, indeed remarkable similarities between diplomatic and state immunity. Aside from being creatures of international law, both are immunities of the state and can be extended to individual agents of the state acting in that capacity. Furthermore, it’s only the state that can waive the immunities. However, as a closer scrutiny indicates, diplomatic immunity is broader than state immunity. This is because diplomatic immunity seeks to remove diplomats who are sent to Tanzania from its jurisdiction.

Articles 22 and 29-40 of the Vienna Convention on Diplomatic Relations of 1961 (“the Convention”) establishes various degrees of immunity for persons working at a diplomatic mission. This article dwells on the immunity of diplomatic agents and their family members.

Diplomatic agents enjoy top notch protection that is almost absolute. In terms of the Convention, diplomatic agents are immune from the jurisdiction of the state of Tanzania with regard to matters in the course of their official duties for an unlimited time and with regard to matters done outside their official duties for only the period of the diplomatic posting.

Accordingly, the First Schedule to the Tanzanian Diplomatic and Consular Immunities and Privileges Act No. 5 of 1986 (“the Act”) sets out Article 31 of the Convention as among the Articles of the Convention having the force of law in Tanzania.

On the basis of Article 31, a diplomatic agent enjoys immunity from the criminal, civil and administrative jurisdiction of the Tanzanian state, subject to the specific exceptions of legal action relating to private immovable property situated in Tanzania, to succession matters involving the diplomatic agent as a private person, and to any professional or commercial activity exercised by the diplomatic agent in Tanzania outside his official duties.

Diplomatic agents also enjoy personal inviolability (Article 29 of the Convention) and are not liable to any form of arrest or detention. However, personal inviolability precludes personal service of legal process on a diplomat. And while service of process does not entail arrest or detention or actual attack on the person, freedom, or dignity of the diplomatic agent, it would be indicative of Tanzania’s enforcement jurisdiction.

Other immunities of diplomatic agents include inviolability of their official residence (Article 22) and papers, correspondence and property (Article 30). Meanwhile, in terms of Article 31, a diplomat cannot be compelled to give evidence as a witness in a Tanzanian court.

From the foregoing, diplomatic agents cannot be arrested or detained by representatives of the Tanzanian state and the residences or properties of diplomatic agents are immune from search, requisition, attachment or execution processes.

What’s more, diplomatic agents sent to Tanzania cannot be charged in Tanzanian criminal courts, nor sued in Tanzanian civil courts. You may ask, “Why?”. The simple answer is that, acts performed by a diplomatic agent in the exercise of his functions are done on behalf of the sending state and are acts of the sending state.

Nevertheless, acts performed by a diplomatic agent in a personal capacity are not acts of the sending state and may lead to personal liability of the individual agent. In this circumstance, perhaps the right to declare diplomatic immunity can be defended on the reason that subjecting a diplomatic agent to civil or criminal jurisdiction in Tanzania might obstruct the effective operation of the diplomatic mission.

Typically, diplomatic missions are located in the capital of the host state.

Although Dodoma is the newly designated capital city of Tanzania, many diplomatic missions are still situated in Dar es Salaam, the former capital. Some missions are, however, opening liaison offices in Dodoma.

There are also ambassadors accredited to Tanzania and residing in Nairobi, Kenya. It’s important to consider this locational factor when instituting legal proceedings against a defendant upon whom diplomatic immunity is bestowed.

Finally, according to Article 37 of the Convention which has the force of law in Tanzania, family members constituting the household of diplomatic agents enjoy the same immunity in order to stave off harassment of diplomats, thereby enabling them to perform their duties effectively. This article continues next Saturday.