Softly, Softly Please; You’re a Diplomat!

In this age of globally-recognised human rights and democratic practice, argue BEN SIHANYA and ODERA OUTA, it is something of an anachronism that some would want to interpret the Vienna protocols as sterile mosaic scrolls

There is a terrible misconception by many lingering apologists of the old world order about conventional diplomatic practices such as the ones implied in the Vienna Convention on Diplomatic Relations (1961) and Consular Relations of 1963.

These apologists think that diplomatic privileges, immunities or other such traditional protocol must remain to be interpreted as sterile, mosaic scrolls and not pragmatically and without reference to contemporary world realities. This, in our view, is misleading!

This is the time to state rather categorically, that the most fundamental parameter in the last nearly two decades of global transformation, is the centre stage given to democracy, human rights, constitutional government and the rule of law.

Like the shock that greeted Europe when the real implications of the European Community (EC) dawned way back in 1956 (the surrender of a vital piece of sovereignty!), many countries are only beginning to come to terms with the fact that as a diplomat one cannot just drive on the wrong side of traffic and then claim diplomatic immunity; or draw a gun against an innocent civilian in a host country pub and plead immunity.

UNIFORMED

The notorious Lockerbie bombing was in fact dogged with this type of controversy because the alleged attacker of the plane that killed an incredible 270 people was supposedly a diplomat, and therefore, in theory, immune from arrest in the UK!

In Kenya the attempt by police some two years ago to lock-up Mr Colin Bruce then World Bank Country Director for speeding, points to quiet but eventful changes even in the conduct of uniformed officers.

Illegal orders may soon, no-longer be blindly obeyed, particularly depending on the how the Hague-based International Criminal Court (ICC) handles the rising tornado against impunity wherever it rears its ugly head in situations of conflict and struggle for political power.

In Kenya too, it was the chequered tenure of Mr Smith Hempstone the [in] famous American “Rogue” Ambassador that contributed immensely to the demystification of the narrow conceptions of diplomatic etiquette that so far prevailed.

This virtual re-writing of “acceptable diplomatic conduct” has had near equivalents in the manner and style the Kenyan Parliament has also been said to be increasingly asserting its authority against the traditional and more familiar, executive fiat.

The ancient belief that a diplomat cannot stand up in a receiving country to proclaim deterrent measures relating to his country against individuals in a receiving country is actually now possible; nay it’s happening!

The fact is simple: the world has truly changed since the original drafts of the Vienna Convention and Protocols. Significant developments such as the UN Charter, The UN Declaration of Human Rights, and the twin International Covenant on Civil and Political Rights (1CCPR) of 1966 as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR), also of 1966, have made tremendous contributions leading to these changes.

In Europe, the ratification of the European Convention of Human Rights of 1950 (ECHR) by all member countries has been eventful.  The enforcement of the Human Rights Act of 1998 in the UK since 2003 already revolutionised orthodox legal interpretations.

Suspects today can expect greater protection in securing their rights while litigation in both domestic and the European Court of Justice (ECJ) has seen to serious considerations of acquittal on the plain basis that country A or B mishandled the human rights aspects of an accused person.

Nevertheless the most important change is that the Vienna Conventions must now be read alongside international instruments and national constitutions and especially, with reference to freedoms of expression.

OFFICIAL

Officials in diplomatic missions are as entitled to the freedom as conferred by the national constitution (section 79 in Kenya) and as fortified by Article 27 (1) of the Vienna Convention of 1961 which places a duty on the receiving state to protect free communication “for official purposes”.

The US ambassador in Kenya, Mr Michael Ranneberger's frequent criticisms of government  is in this sense defensible as “official communication” as envisaged under Article 3 (1) (d) of the 1961 Convention.

Similarly, diplomatic missions have the power to report on the conditions and developments, including political developments, as can be read in Article 3 (1) (d) of the Convention,  “ascertaining by all lawful means conditions and developments in the receiving state, and reporting thereon to the Government of the sending state.”

Under Article 2 of the Vienna Convention, “the establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent,” implying the existence of mutual benefit between nations, and thereby providing a basis for getting involved in crucial internal affairs of a receiving state.

Under Article 3 (1) (b) the sending state has the authority to protect its interests and those of its nationals in the receiving state.  Interests here include economic, political, social, cultural and scientific interests as outlined under Article 3 (1) (e) which provides for the promotion of friendly relations.