What is Diplomatic Immunity?
Diplomatic immunity is a form of legal immunity that ensures diplomats and members of their families are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country’s laws.
The Vienna Convention on Diplomatic Immunity (1961) (the “Vienna Convention”), ratified by Kenya, states that the purpose behind diplomatic immunity is to ensure that diplomats are able to perform their functions efficiently in foreign states. Diplomatic immunity is thus not for individual benefit.
While diplomatic immunity from civil, criminal and administrative jurisdiction is accorded to diplomats, the Vienna Convention nonetheless states that diplomats have a duty to respect the laws and regulations of the states receiving them.
Laws Governing Diplomatic Immunity in Kenya
Diplomatic immunity is governed by the Vienna Convention which is applicable in Kenya by virtue of Article 2(6) of the 2010 Constitution.
Article 2(6) states that any ratified treaty or convention is a part of Kenyan law.
How does the diplomatic immunity status of employer or employee affect the enforcement of employment contracts?
From the onset it should be noted that a diplomatic agent generally enjoys immunity from the civil, criminal and administrative jurisdiction of Kenya. However, this immunity only extends to activities done by the diplomat in the carrying out of his/her official functions.
The diplomatic agent enjoys no such immunity for any professional or commercial activity done on a personal basis outside his/her official functions. However, any measures taken against the diplomatic agent must not violate his person or residence.
What does the Employment Act say about diplomatic immunity?
The employer-employee relationship in Kenya is governed by the Employment Act, 2007. The act sets out rights and obligations of employer and employee and the minimum benefits that an employee is entitled t0.
The Employment Act is, however, silent on the question of diplomatic immunity in relation to employment law. Guidance is therefore sought from the Vienna Convention, when addressing questions about persons in the employ of diplomatic agents, particularly, domestic servants.
The Vienna Convention defines a domestic servant as:
- a person in the domestic service of a member of the diplomatic mission to the receiving state (in this case, “Kenya”); and
- is not an employee of the sending state.
The Vienna Convention states that the Ministry of Foreign Affairs must be notified of the arrival and final departure of any domestic servant and where appropriate, the fact that they are leaving the employ of the member of the diplomatic mission.
The Vienna Convention also states that while diplomatic agents and other members of the mission who are not Kenyan nationals are exempt from social security provisions, domestic servants who are nationals or residents of the Kenya are not.
Furthermore, all domestic servants who are Kenyan nationals must pay all taxes and dues they owe by virtue of their employment. This could mean that Kenyan employees of diplomats must still pay PAYE, NHIF, NSSF and all other employment income related taxes
Restrictions of Diplomatic Immunity in respect of Enforcement of Employment Contracts against diplomatic agents
Kenyan Courts have stepped in and given decisions that have helped fill the gap with regard to the question of diplomatic immunity and the enforcement of employment contracts. They have thus stated:
- Diplomatic immunity is not applicable where the subject matter is an employment contract– In the case of Lucy Muigo Kusewa & Anor vs Embassy of Sweden Nairobi [2017] eKLR the Employment and Labour Relations Court in responding to the issue of whether employment matters fall within the ambit of private law where immunity is restricted adopted the view that “…an action and or legal suit arising out of breach of the employment contract and or Employment Act involves a private law transaction and is justiciable”.
- Diplomatic Immunity is not absolute -In the case of Karen Njeri Kandie vs Alsanne Ba & Another [2017] eKLR the Supreme Court distinguished between absolute immunity, and qualified and restricted immunity by recognizing that the immunity granted to the Respondent was not absolute as it only applied to official functions. The Court further recognized that, as per the preamble to the Vienna Convention on Diplomatic Relations, 1961, diplomatic immunity was not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States. As such, diplomatic immunity is functional in nature and aimed at ensuring the efficient performance of functions and not to aid individuals in escaping legal sanctions outside the set parameters.
How can Netsheria International help?
We, at Netsheria International, have excellent and experienced lawyers who will help you resolve Employment related disputes as and when they arise. Contact any of our team today or book an online consultation.
