Diplomatic immunity defence in Kenya's maintenance case

10 December 2020 · Carmel Rickard

The tragic story of young Harry Dunn, knocked over and killed last year allegedly by the wife of a member of the US diplomatic corps in the UK, was a reminder of the conundrums that can sometimes be caused by diplomatic immunity. She left the UK after the accident and the US government has refused her return, citing immunity. Now a poignant new case is being decided in Kenya, a case that raises just as complex a conflict between rights and immunity. It concerns a senior diplomat from Sierra Leone, stationed in Kenya. A woman, claiming to be a former girlfriend of his, has gone to court asking that he be ordered to pay maintenance for a child born of their relationship. But despite the court’s order he has refused to do so, citing the Vienna Convention to justify his inaction. As the case winds its way through many hearings, the sum he owes in maintenance is mounting steeply. And the high court is unimpressed.

Read judgment

Quite properly, given that a child is involved, the two parties in this case aren’t identified. The judgment refers to them simply as AKK – the putative father – and SMM, the mother.

He is a citizen of Sierra Leone, working in Kenya. Along with his name, key information about him has been redacted, but it is clear that he works at an embassy where he holds a top position and is described as a ‘minister’. Accredited by Kenya as a ‘diplomatic agent’, he obviously believes that the Vienna Convention applies to him. In other words, because of his accreditation, he has nothing to fear from any court in Kenya.

In August 2017 SMM approached the courts with her complaint. She said that a child had been born of her relationship with AKK in April 2016. He had not maintained the child. She disclosed her income and his, and asked that he be ordered to pay Kshs 98 000 monthly for the child. She also told the court that she was willing that a DNA test be conducted to settle the question of whether AKK was the father.

The man’s initial response was to deny that ‘he was in any relationship’ with SMM. He also denied that he had fathered the child and thus disputed that he needed to pay maintenance. He also tried to blow the case out of the water right at the start, with a preliminary objection to the case going ahead, based on the Vienna Convention on the Law of Treaties. (This is a reference to the convention that deals with diplomatic relations, the inviolability of diplomatic offices and the immunity of diplomatic agents from the criminal, civil and administrative jurisdiction of the host state.)

The trial court dismissed AKK’s objection and ordered him to pay interim monthly maintenance of Kshs 20 000, pending a DNA test.

AKK has neither paid the money nor submitted to a DNA test. And since then he has challenged every move made by SMM to take the matter forward. Eventually she went back to court to ask for an order that his property should be attached to fund the Kshs 640 000 which was the balance due as at October. Again, AKK quoted the Vienna Convention and said he was immune from action to attach his property. And again, the court found against him.

This led eventually to full argument from both sides before Judge Aggrey Muchelule and he has now given his decision.

Summing up the position of AKK, the judge said that AKK wanted to stop ‘all proceedings relating to him … over the child in the trial court’ until the appeal was heard and finalised.

Judge Muchelule said the dispute between the two people related to an under-age child. The constitution of Kenya and the law, ‘commanded’ the court that in all actions and cases involving children, ‘the best interests of the children shall be the paramount consideration’.

In this case, the child needed maintenance of both parents. The mother was doing her part. AKK denied being the father. Asked to undergo a DNA test to confirm paternity, he had refused since the case started. He had been asked by the court to make a contribution towards the child’s maintenance. He did not appeal that decision. When he applied for review and for judicial review, both were turned down. ‘He has not paid a cent. It is evidence that the child’s right to maintenance is being compromised by [his] refusal to pay the ordered amount.’

‘A litigant who refuses to obey a valid court order is not deserving of the exercise of the court’s discretion in his favour,’ said the judge. It might have been different if AKK had offered to deposit the amount he now owed, ‘or even a reasonable part of it’, into the court pending the hearing and determination of the appeal.

‘Better still, he should have paid the amount, or part of it, towards the upkeep of the child, now that he is not seriously contesting paternity.’

An earlier court decision had held that, particularly where paternity was not in dispute, suspension of a maintenance order might not be in the best interests of the child concerned. This was such a case, said Judge Muchelule. ‘I am not persuaded that it is in the best interests of the child to allow the application to stay either the proceedings or the application for execution before the trial court. I dismiss the application with costs.’

Given this firm decision, the story could take several turns. Will AKK be recalled to Sierra Leone to avoid any further embarrassment or problem with the legal authorities in Kenya? Will his property be attached before the supreme court has the opportunity to hear his appeal on immunity? Will Sierra Leone step in to protest at the action being contemplated against their properly-accredited diplomat? Will his appeal be heard as a matter of urgency, and will the outcome change anything? Certainly, as far as this story is concerned, 2021 will be an interesting year.

* A Matter of Justice, Legalbrief, 8 December 2020

Carmel Rickard

About the author

Recent articles by Carmel Rickard

‘No justification for the unjustifiable’: Lesotho’s ombud slams grand-scale torture, assault in Maseru prison

22 March 2024
Carmel Rickard

Lesotho’s national ombud, Tlotliso Angelina Polaki, has issued a scathing report on massive-scale torture and assaults that took place in Maseru’s central correctional institution during December 2023, leaving about 95% of the inmates of the prison injured, one dead and one who is now wheelchair-bound and will never walk again.

Major court decision on image rights benefits Ugandan soccer players

21 March 2024
Carmel Rickard

Members of Uganda’s national soccer team from the period around 2007/8 have just been awarded a payout against MTN Uganda by the commercial court. The telecom giant had a year-long contract with Proline, the players’ originating development soccer club, allowing it to use the players’ images for advertising. But MTN had continued to use their images even after that contract expired on the basis that it had a sponsorship agreement with Fufa, soccer’s governing body in Uganda. The players then challenged MTN in court, through Proline, and have now won a significant damages award. But the judgment exposed some serious flaws in the way that Fufa has approached the question of using the image rights of its senior players, and the court commented that this is a ‘case study’ for why Fufa needs to sort out its contractual arrangements with senior players.

Executive interference in Ugandan court decisions continues – this time by the justice minister

21 March 2024
Carmel Rickard

Uganda’s minister of justice, Norbert Mao, has taken a leaf straight from the book of the country’s president, Yoweri Museveni. This week, the minister wrote to the principal judge of the Ugandan high court, asking that the judge directly intervene in a matter that has been brought to his attention by an MP on behalf of a constituent. Mao asked for the ‘immediate administrative intervention’ in the matter by the principal judge. Earlier this year, Museveni wrote a similar letter to the chief justice of Uganda, also requesting intervention in a matter, and the CJ later indicated that this was not the first time it had happened.

Is rape by family members treated too lightly by the law?

19 March 2024
Carmel Rickard

The high court has sent the case of a Malawian teenager, charged with raping his 89-year-old grandmother, back to the magistrate’s court for a possible re-trial because the court had wrongly prosecuted a case of rape instead of incest. If convicted in a re-trial, however, Malawi’s incest law could see the accused sentenced to a mere five years. Malawi’s penal code provides for a significant difference between the sentence to be imposed when a man rapes a close family member, and in a case where the two are not related. When they are unrelated, the code provides that a rape offender ‘shall be liable to be punished with death or with imprisonment for life’ (However, Malawi has had what amounts to a moratorium on carrying out the death penalty since 1992.) By contrast, ‘incest by males’, is categorised in the code as a ‘felony’, and anyone convicted ‘shall be liable for imprisonment for five years’. There is an exception: if it is proved ‘that the female person is under the age of 16, the offender shall be liable to imprisonment for life’.

Prominent SA advocates lose battle over conviction in Namibian courts for working without a permit, misleading immigration officials

6 March 2024
Carmel Rickard

Two prominent South African advocates have just lost their last hope of squashing their convictions in the Namibian courts. Johannesburg advocates, Mike Hellens SC and Dawie Joubert SC, had been found guilty on two counts, first, working as legal practitioners without an employment permit, and second, giving false or misleading information to immigration officers when they entered the country in 2019. Though they had gone to Namibia to appear in court in a bail application, they told the immigration officials they were there for a ‘visit’ and for a ‘meeting’. Both appealed against their conviction but they had also asked for a judicial review of the decision. In the high court they lost their appeal but won on the review. The outcome in both matters were taken to the apex supreme court for a final word. In December 2023, they lost their appeal at the supreme court. What would that same court say when the state appealed against the review finding? The supreme court has now given its answer: it found the review, that had favoured Hellens and Joubert, was wrongly decided, and set it aside, awarding costs against the two advocates in both the high court and the supreme court.