By Barrister Peter Magomu Mashate
Pursuant to the Diplomatic Relations (Vienna Convention) Act 1972;
Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.
The question of whether Lady Justice Lydia Mugambe has got a diplomatic red passport and therefore diplomatic immunity as a judge of the JUDICATURE of a commonwealth member state is neither here nor there.
The probable answer on balance is unfortunately NO. This is because sovereign and diplomatic immunity is governed by the Vienna Convention a universal declaration to which most, if not, all countries including UK and Uganda are signatory.
The UK has ratified the convention and enshrined into UK law by the Sovereign and diplomatic immunities Act 1972. However, not all the embassy staff enjoy the immunity.
Its only the Ambassador or High Commissioner and their Deputies who enjoy this privilege. For clarity all diplomatic representatives of commonwealth jurisdiction are called High Commissioners and if outside this arrangement are Ambassadors.
Notwithstanding, both convey the same diplomatic status. Indeed, both are addressed by the titles of His/Her Excellency Ambassador/High Commissioner.
The question of whether their Excellencies the Presidents enjoy this privilege while out of office was extensively tested in the British courts of law in the Case of Chile’s former President General Augusto Pinochet when he was arrested in Britain and arraigned in court for extradition to Spain over allegations of torture while he was President.
Therefore, merely holding a red diplomatic passport is not conclusive. While it affords you brushing shoulders with their Excellencies & VIPs in the VIP lounge at airports and having priority while boarding aircrafts, does not specifically endow immunity.
Article 4 of the European convention on Human Rights
(ECHR) Act 1998 stipulates thus; “…Prohibition of slavery and forced labour”. The case law so far developed further clarifies and provides thus;
“1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour”.
As a matter of fact the parent declaration on Human rights is encapsulated in the Universal declaration on human rights. This is where the ECHR derives its mandate which was also incorporated in UK law by Prime minister Tony Blaire Labour government in 1998 by the Human rights Act 1998.
Incidentally, Uganda too is a signatory to the Universal declaration on human rights and has gone ahead to incorporate its dictates by article 45 of the Uganda constitution of 1995.
Whereas any victim of persecution by reason of freedom of worship, association or political opinion may potentially come under the ambit of Geneva Convention 1951 relating to refugees, over time the judicial definition of persecution has been stretched to cover persecution not expressly covered by Convention reason into the ambit of human rights legislation so as to afford the victims to qualify for international protection.
This includes the categorisation of 5 battered women in domestic violence by the case law of “woman in Pakistan” that caters and provides for such battered women as a “Social group” therefore eligible for international protection. The same case law has provided for the LGBTQ as a “social group”.
In here lies the difference between the Geneva convention that bestows full refugee status and once this is done such refugee recognition is an international recognition whereas HUMANITARIAN protection is only afforded and superintended by the UK initially five years recognition of whose extension is subject to proving that the initial circumstances being the basis of initial grant of protection still abide.
WHAT THEN IS THE STATUS OF ALLEGED VICTIM OF JUSTICE LYDIA MUGAMBE?
The doctrine of innocent until proven guilty applies to Justice Mugambe. Even if she is subsequently convicted by the jury the appellate courts still have the jurisdiction to overturn the matter. This is because amongst other aspects the Home office department known as the National Referral Mechanism (NRM) welcomes all such victims of article 4 of the ECHR and often automatically grants them interim 2 years pending investigation and subsequent determination of their case. This initial and indeed hasty recognition does not necessarily mean the victim has a valid claim.
Indeed, if in the course of the NRM investigation in interim period deception is ascertained then her claim for refugee or human rights protection fails.
However, given the UK mandatory statutory criminal realm tight trial schedule and because in this case Lady Justice Mugambe would have lost liberty even before the NRM concludes its own investigation of the alleged article 4 victim, she will be tried on the basis of the charges as proffered by the Crown Prosecution service (CPS). These include having travelled/aided and abetted an alleged article 4 victim but not on the evidence of the intentions/active and vigorous willingness or objective mission of the alleged victim. This is where the contradiction and conundrum lies. That a victim who could be subsequently adjudged to be a liar and probably if not often an ECONOMIC REFUGEE throw an innocent person like Justice Mugambe under a London bus to be crashed and sends to jail an otherwise innocent person in this case an innocent judge with a proven track record just to further her selfish search for green pasture as ECONOMIC REFUGEE.
Article 4 is grossly abused by the alleged victims and to a great extent mismanaged by the NRM. For instance, there are cases that have gone beyond the two year threshold into 6 years and beyond and by this time the alleged victims have luxuriously wined and dined and even have gotten pregnant and or accrued both limbs of Article 8 of the ECHR namely family and private life and qualified for UK residence on a completely different basis. This is because they know that they would have failed to sustain and prosecute conclusively article 4 claims of the ECHR. What’s happening to the Ugandan High Commission in London is not evidence of rampant abuse of diplomatic privilege but a world wide diplomatic loophole and conundrum of diplomatic domestic servants. Kenya, Tanzania, etc have even suffered more with these smear and premeditated and rehearsed blackmail even before the alleged victims land in the UK. The allegations and purported abuses are well rehearsed.
Its simply too early to crucify lady justice Lydia Mugambe and too arbitrary to condemn the Uganda diplomatic core at our London High Commission who are really doing a DIFFICULT job in the most difficult circumstances. Don’t forget the best diplomat is one who puts the “nastiest things in the nicest way” is it not? As for our Lady Justice Lydia Mugambe one of the elementary questions for interrogation in jurisprudence is this; “is a court of law really a court of justice”? Discuss.
The Writer is a Constitutional and Human rights Barrister-at-law of the Honourable Society of Lincoln’s Inn of Court London-United Kingdom and a Citizen in Uganda
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