Diplomatic law : Legal process against diplomats in Tanzania—1

Section 13(1)(b) of the Tanzania’s Diplomatic and Consular Immunities and Privileges Act No. 5 of 1986 (“the Act”), read together with Part II of the Fourth Schedule thereto, accords immunity from suit and legal process to an envoy of a foreign sovereign power accredited to Tanzania. This immunity is, by virtue of section 14 of the Act, “[extended] to the staff of representatives and families of officers upon whom immunity and privileges are conferred under section 13(1)(b) of [the] Act”.

In view of the broad consequences of these provisions, and in order elucidate the ramifications and implications of diplomatic immunity, this article scrutinizes the purpose of legal immunity that ensures diplomats are not susceptible to lawsuit or prosecution under Tanzanian laws though, of course, they may be declared persona non grata (Latin: “person not appreciated”). The doctrine of sovereign immunity is also considered, albeit briefly due to space limitation.

The Vienna Convention on Diplomatic Relations of 1961 (“the Convention”) has the force of law in Tanzania (section 4 of the Act). Applicable on the basis of reciprocity, the Convention codifies the rules for the exchange and treatment of diplomats between states and it has been adopted worldwide. At present, 192 states are parties to the Convention.

The Convention is critical to the formation, maintenance and termination of foreign relations; and it helps ensure that diplomats accredited to Tanzania perform their duties without risking any influence by the host government of Tanzania. Among other things, the Convention establishes the protection for the diplomat and his/her family from arrest or detention and immunity from civil and administrative jurisdiction, with some exceptions. In terms of the preamble of the Convention, the rules are aimed at facilitating the nurturing of friendly relations between Tanzania and other states, regardless of differences in constitutional, economic and social systems.

The purpose of the privileges and immunities is to ensure that diplomatic missions perform their functions efficiently, but not to benefit individuals.

It’s important to note that the Convention requires diplomats accredited to Tanzania to obey Tanzanian laws; however, as mentioned earlier, the only sanction permissible under Article 9 of the Convention, in the absence of a waiver of immunity, is expulsion at any time and without having to explain the decision to expel. This is one of the basic safeguards against potential abuse by law enforcement agencies.

Here are some key questions to ponder: Is the legal immunity accorded to diplomats procedural in nature? Does such immunity affect the basic substantive liability of diplomats? These questions were dealt with in the case of Democratic Republic of the Congo v. Belgium (Arrest Warrant of 11 April 2000) in which the first question was answered in the affirmative and the second question in the negative. The significance of this principle is not hard to fathom.

Under Article 2 of the Convention, Tanzania cannot at the same time receive a foreign diplomat by mutual consent and subsequently subject the diplomat to the authority of Tanzanian courts in the same way as other persons within the territorial jurisdiction of Tanzania. Nevertheless, diplomats are not exempted from the jurisdiction of the courts of their countries (Article 31(4) of the Convention).

A crucial point to note is that diplomats can be subjected to the jurisdiction of Tanzania after their posting has ended (Article 39 of the Convention). Moreover, section 94 of the Tanzanian Criminal Procedure Act, provides that foreigners who commit offenses within territorial waters could be prosecuted but only with the leave of the Director of Public Prosecution.

In order to further understand the ramifications and implications of diplomatic immunity, it is also useful to consider the concept of sovereign immunity and how it differs from diplomatic immunity. In essence, sovereign immunity means the immunity which a state enjoys in another state’s jurisdiction. This is based on the principle of equality of sovereign states, the effect of which is that a foreign state incurring legal liability in Tanzania cannot, under certain circumstances, be summoned before Tanzanian courts to discharge the liability. This article continues next Saturday.