By Barack Muluka
Fred Matwanga was a Kenyan diplomat working for the UN in New York in 2006. One day, Matwanga got in trouble with the US authorities for allegedly assaulting his son. The federal police intended to commence legal action against him for assault and battery. However, the matter came to quick closure when Matwanga asserted diplomatic immunity.
This was by no means an isolated case. Shimokoji, Japan’s Counsul-General in Canadaad, admitted to punching his wife in the eye in a domestic brawl in New York, in 1999. He told the police that this was a very normal thing to do in Japan. Indeed, in the circumstances, it was even “expected of him” back in Tokyo.
The Shimokoji matter caused public outrage. His government was compelled to lift his diplomatic immunity, leaving him to be tried by an American court. Keeping to his original story, he admitted to thrashing his wife. He restated that there was nothing wrong with what he had done. It was his culture, regardless of where he might be. Beyond that, he was a diplomat, protected by international law. Shimokoji was discharged unconditionally. The extent of public anger in the wake of this, however, was such that he had to be recalled. He was assigned lower duties with a smaller pay package.
Such is the nature of modern diplomacy, and the immunity it confers upon those privileged to serve as diplomats. They are sacred cows. They are special messengers who can hardly be touched by local laws. This practice has evolved through several centuries, to be perfected by a whole range of protections in modern times
Throughout history, mistreatment of a messenger has been considered a crime. There is a common saying that you do not shoot the messenger, no matter what bad news he bears. It is within this philosophy that the notion of diplomatic immunity gets its foundations.
It goes back to antiquity. Even in times of war, it was often necessary to create safe passage for the enemy’s messenger. It was common, for example, that a nation that could not sustain the war anymore could sue for peace. While many ways of doing this existed, a most assured one was for an emissary of peace to be sent from one sovereign to the other, bearing news such as “His highness sues for peace.”
Peace itself would be granted on certain terms and conditions. It was easier, moreover, to reject the peace overtures than accept them – especially where the stronger nation did not see any useful gains to be made from accepting the proffered peace. There might be more advantage in going the whole hog – to pulverize the weakened adversary. Yet, even in such situations, you did not kill the peace emissary. The peace ambassador must remain immune from the brutality of war.
The ancient historian Herodotus, however records in his Histories, that the Athenians and Spartans sometimes killed the messenger. The done thing was usually for the surrendering nation to ask for “earth and water,” as symbols of peace. Yet, rather than give them these symbols, the powerful Greeks would cast the messenger into a river, or a pit, scornfully signifying that they could get the earth in the pit and water in the river.
In our times, the ancient practice of immunity has been transported from traditional common law to properly organised and codified processes in the Geneva Convention of 1961. The Convention has helped to streamline and expand the scope of immunity, recognising as it does that emissaries could get into troubled circumstances even in peacetime.
Indeed, the foreign envoy is essentially an emissary whose primary role is to increase understanding between the home country and the host country. Diplomacy requires tolerance, etiquette and civility. Hence, the diplomat may not be prosecuted in the host country without the home country lifting his/her immunity.
The host country is expected to make a formal request for the lifting of immunity, being satisfied that the diplomat has gone beyond the pale. S/he must be reduced to a common crime suspect who could be jailed in the host country. It is not common, however, for countries to lift diplomatic immunity on their diplomats who find themselves in trouble in foreign lands; it is more likely that the envoy will be recalled. In any event, it is common practice for the host country to exercise the option of expelling the “offending diplomat.”
Yet, the diplomat is not expected to conduct himself dishonorably in the host country just because he enjoys immunity. Both the diplomat and his family are expected to demonstrate the uttermost respect for the laws. They must expect to face the music if they cause serious embarrassment, or disobey the local laws.
Such was the fate that befell Jean Touchette, a junior Canadian diplomat in Tanzania in 2009. Touchette was arrested for allegedly spitting on a Tanzanian traffic police officer who stopped him for a motoring offence. An angry and undiplomatic Touchette wondered why he should be stopped for breach of traffic laws when the police officer could clearly see that his car spotted a diplomatic number plate. There followed a torrent of expletives. Disgusted with the policeman, he is said to have spat on him, amidst a flurry of insults, and driven off. Tanzanian authorities summoned Canada’s High Commissioner, Robert Orr, for a formal complaint. Touchette’s diplomatic tour of duty came to an end. He was recalled to Canada.
In Kenya, it will be recalled that in July 2013, a US diplomat by the name of Joshua Walde was reported to have crashed into a matatu while driving under the influence of alcohol. One person died in the accident. Eight others were seriously injured. It was said that the injured people had no medical cover and were ill placed to pay their hospital bills.
Kenyans were disgusted to read in the press that US embassy officials had swiftly flown the offending diplomat and his family out of Nairobi on the day after the accident, apparently to circumnavigate the court process. Before being whisked out of the country, Walde had given a formal statement to the Kenya police. He could not be kept in custody, however, owing to diplomatic immunity. According to the Kenya police, the Walde file remains open. They hope to arrest him someday and make face Kenyan law.