The Nation (Nairobi)
Ben Sihanya and Outa Odera
31 October 2009
opinion
Nairobi — 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 (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, or in with reference to contemporary world realities. Nothing is as misleading!
Rogue ambassador
In Kenya, it was the chequered tenure of Mr Smith Hempstone, the [in]famous "Rogue" Ambassador, which helped to demystify the narrow conceptions of diplomatic etiquette that so far prevailed. This virtual rewriting of "acceptable diplomatic conduct" has near equivalents in the manner and style in which the Kenyan Parliament is 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, as we have already seen. The fact is simple: the world has 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 as well as the International Covenant on Economic, Social and Cultural Rights of 1966, have made tremendous contributions leading to these changes.
International agreements relating to democracy, good governance and the rule of law have singularly impacted on the manner of doing business in ways that would make the Vienna protocol laughable.
In Europe, the ratification of the European Convention of Human Rights of 1950 by all member countries has been eventful. The enforcement of the Human Rights Act 1998 in the UK since 2003 has revolutionised orthodox legal interpretations.
Suspects today can expect greater protection in securing their rights while litigation in domestic and the European Court of Justice has led 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 Kenyans must brace for is that the Vienna Conventions must now be read alongside international instruments and national constitutions and especially with reference to freedoms of expression. Officials in diplomatic missions have the right to articulate their country's official positions on the basis of international instruments, Kenyan law and the common concerns of humanity because they are individuals even if acting officially.
They are entitled to the freedom of expression under section 79 of the Constitution, among others, and as fortified by Article 27 (1) of the Vienna Convention of 1961. The latter places a duty on the receiving State to protect free communication "for official purposes", hence criticism on Kenya being "official" under Article 3(1) (d) of the 1961 Convention.
Diplomatic missions
Similarly, the diplomatic missions have the power to report on the conditions and developments, including political developments, in the receiving State 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 on Diplomatic Relations of 1961, "the establishment of diplomatic relations between States, and of permanent diplomatic missions, takes place by mutual consent." It implies the existence of mutual benefit between the sending and receiving States, providing a basis for the sending State to get 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 between the sending State and the receiving State. That provision underscores the development of economic, cultural and scientific relations.
Constitutional and political reforms in Kenya have however become a major transnational public interest issue. Extra-judicial killings and related human rights violations, electoral fraud, ethnic discrimination, insecurity - to mention only a few - are all governed by the Constitution and international instruments.
The post-election crisis itself became a matter of transnational concern. This explains why the American government has criticised and named certain Kenyans as obstacles to the reform process. The lack of such reforms may interfere with the stated interests of the sending State(s) and thus against the letter and spirit of mutual relations.
It is crucial to be aware that Kenya's dependence and interdependence with the US raises legitimate concerns. Kenya has, in fact, sought and received US support after and before the post-2007 electoral crisis on matters of reform, hunger and the resettlement of IDPs, among others.
This makes the criticism and ban threats justified under the aegis of protecting US interests in Kenya under Article 3 (1) (e) of the 1961 Convention. Moreover, they point to the increasing complexities attendant to international relations and, indeed, to the intricacies of the evolving transnational legal process and even the more incipient transnational governance.
Further, the foregoing gives the sending States the powers to take actions against the receiving State in the forms of passport withdrawal or "travel bans" on individuals as may be implied from Article 5 (d) of the Vienna Convention on Consular Relations of 1963.
This provision gives the consular missions, and diplomatic missions under Article 3 (2), the authority to issue (and withdraw) passports and travel documents to nationals of the sending State, and visas, or appropriate documents to persons wishing to travel to the sending State.
Robert Mugabe's government has had a share of such measures, making it fairly plain, that the question is not whether, but what procedures should be followed in this process.
Dr Sihanya is the Dean of Law, University of Nairobi Law School. Dr G. Odera-Outa, also a trained lawyer, is on Leave of Absence from the University of Nairobi and presently, communications adviser in the Office of the Prime Minister. The views expressed in this article are personal.
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