Diplomatic law : Legal process against diplomats in Tanzania—3

Saturday March 28 2020



Lilian Kyaruzi (law@liliankyaruzi.com)

Lilian Kyaruzi (law@liliankyaruzi.com) 

By Lilian Kyaruzi

This is the third and final part of diplomatic law article series focusing on the legal process against diplomatic agents in Tanzania.

It’s really important distinguish between acts and omissions performed by diplomats in their official and private capacities. As a recap, we learnt in the preceding parts of this series that diplomatic agents enjoy jurisdictional immunity for acts or omissions performed in the course of official functions for an infinite period.

However, for acts or omissions performed outside official functions, the jurisdictional immunity of diplomats is restricted to the duration of their mission hence, court action could be brought against them after their tour of duty in Tanzania.  The challenge is that the defendant would have departed from the United Republic of Tanzania, in which case service of process must be effected by the plaintiff via edictal citation.

There is also the challenge relating to the ‘limitation period’ that is, the maximum period of time which can elapse from the time ‘a cause of action’ (in law, a series of facts sufficient to justify a right to sue) arises until the start of court proceedings relating to that cause of action. The limitation period bottleneck may frustrate the claims of a plaintiff if the cause of action arose much earlier in the diplomat’s official term in Tanzania.

The Vienna Convention on Diplomatic Relations of 1961 (“the Convention”) has the force of law in Tanzania by virtue of section 4 of the Tanzanian Diplomatic and Consular Immunities and Privileges Act No. 5 of 1986 (“the Act”). 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 and to succession matters involving the diplomatic agent as a private person. This is in accordance with Article 31 of the Convention.

Another exception relates to any professional or commercial activity exercised by the diplomatic agent in Tanzania outside his official duties. For this exception to apply, the action must relate to a “professional or commercial activity exercised by the diplomatic agent”; and the exercise of that activity must have been “outside the diplomat’s official duties”.

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So, if the acts or omissions complained of were performed within scope of a diplomat’s official duties, the diplomat will be immune from the jurisdiction of the court as he/she would have been deemed to retain immunity after the tour of duty ends. On the other hand, if the tour of duty has not yet ended, and the acts or omissions are performed outside the scope of official duties, the exception could apply if the action or omission relates to a professional or commercial activity exercised by the diplomat.

But what amounts to official duties of a diplomat and when is an activity “professional” or “commercial”? There is scanty case law in Tanzania regarding these issues; however, in the U.S. case of Lucia Mabel Gonzalez Paredes v. Jose Luis Vila and Monica Nielsen 479 F Supp 2d 187 (2007), the purchase by diplomats of day-to-day living services (such as, rental, legal, and medical) that are supplemental to daily life were also determined to be within the official functions of a diplomatic and thereby do not come within the “commercial activities” exception under Article 31 of the Convention, read together with section 13(1)(b) of the Act (and Part II of the Fourth Schedule thereto). In respect of those services, the defendant would still enjoy jurisdictional immunity civil and administrative.

Although courts in Tanzania are not bound to follow the U.S. precedent cited above, the precedent would be of persuasive authority and the courts here will arrive at the same position, thus mounting difficulties for plaintiffs seeking to sue diplomats for breach of contracts for procurement of services or goods viewed as being incidental to daily life in Tanzania.

Be that as it, a sending state may, under the Convention, waive the jurisdictional immunity of its diplomat agent. Once waived, such immunity becomes irrevocable providing a window of opportunity for the plaintiff. 

Lilian Kyaruzi (law@liliankyaruzi.com), a corporate lawyer, is a director in Isidora & Company and the Taxation and Development Research Bureau.