By Bridget Mananavire and Gift Phiri
South Africa is mulling granting diplomatic immunity to First Lady Grace Mugabe to escape prosecution after she was accused of assaulting a model at a hotel in Johannesburg, the Daily News can report.
This comes as President Robert Mugabe is said to have pressured South Africa on the sidelines of the ongoing summit of the 15-nation Southern African Development Community (Sadc) in Pretoria into invoking diplomatic immunity to help his wife evade justice.
Graces is facing “serious charges” of assault with intent to do grievous bodily harm after she assaulted South African model Gabriella Engels at a Sandton hotel last weekend.
She was visiting her sons on Sunday when she reportedly stormed into their room and assaulted Engels, whom she accused of living with her sons — who are both in their 20s and live in Johannesburg.
The first lady allegedly assaulted Engels with an electric cord in the face and head. The model sustained serious injuries.
Authoritative sources in Harare and Pretoria said it appears that South African President Jacob Zuma’s government was moving to protect Grace by “trying to leverage her status as a first lady by applying the Vienna Conventions on Diplomatic Relations”, which grant broad immunity from prosecution.
“It makes her absolutely immune in almost all cases from criminal arrest or civil suit. Diplomatic immunity is very protective,” said a senior government official in Harare.
There were fears the dispute risked souring the broader South Africa-Zimbabwe bilateral relationship.
While both countries stressed the importance of their bilateral relationship during the crisis, it took complex wrangling to find a workable solution both sides could live with.
Authoritative sources revealed a “dizzying 24 hours” in which South Africa agreed to grant Grace diplomatic immunity, but would order her to leave the country immediately after the Sadc summit.
Diplomatic immunity rules mean individuals cannot be directly charged — their immunity either needs to be waived or, if the home nation refuses, they can be kicked out of South Africa.
But under the Vienna Convention on Diplomatic Relations 1961, those entitled to immunity are expected to obey the law.
The Department of International Relations and Cooperation (Dirco) — which is handling the diplomatic immunity issue — declined to comment yesterday when contacted by the Daily News.
“I have got nothing to say on the matter; we are not commenting on it,” Dirco deputy director-general and spokesperson Clayson Monyela said.
The civil rights watchdog, AfriForum and Advocate Gerrie Nel, head of the organisation’s Private Prosecuting Unit, told a media conference on Thursday that they would support Engels to see that justice prevails in the assault charge that she has brought against Grace.
Nel said he will monitor the handling of the case by the South African Police Service (SAPS) and the National Prosecuting Authority (NPA), as well as the implementation of private prosecution should the NPA fail to prosecute Grace without good cause.
“Should diplomatic immunity be granted to Mrs Mugabe, AfriForum is prepared to fight this in the highest court,” he said.
Nel said they were prepared to take a stand for justice despite enormous pressure.
“No one, not even Mrs Grace Mugabe, must be allowed to bypass the law as a result of their position of power,” Nel said, adding he will also direct letters to the SAPS and the NPA to request them to take the matter further as soon as possible.
“If they fail to do so, there is a sure possibility of private prosecution,” Nel vowed.
Questions sent to AfriForum seeking an update on the diplomatic immunity developments and the warrant of arrest which the investigating officer was considering on Thursday had not been responded to at the time of going for print yesterday.
Psychology Maziwisa, the former Zanu PF director of information and now legislator for Highfield West, who is also a trained lawyer, told the Daily News yesterday that there are different sources of law.
“Statutes are one and this is where the Geneva Convention, which gives immunity only and strictly to diplomats falls under. And then there is customary law, which enjoins courts and, in the present case, States to recognise international customs as general practices accepted as law. For a legal practice to be recognised under international customary law, it must generally be applied by a majority of States,” he said.
“Unlike the Geneva Convention, international customary law does not confine its application merely to diplomats. In fact, it deals directly and more specifically with immunity in respect of heads of State. The general inclination of courts worldwide has been to grant absolute immunity to sitting heads of State. In respect of family members of heads of State, courts have found under international customary law that it is prudent to extend such immunity to family members in order, in the first instance, to ensure the efficient running of government business which would otherwise be hindered were the attention of a respective head of State to be diverted in order to deal with a criminal prosecution of a family member in a foreign country,” said Maziwisa.
He said more than this, courts worldwide have found that such a diversion of attention could result in a no confidence vote being passed on an absent head of State thereby causing potentially disastrous consequences to the stability of a whole nation.
“In other words, it becomes a serious matter of national security. This immunity, it must be pointed out, subsists for the entire duration of a head of State’s, in this case … Mugabe’s tenure in office,” said Maziwisa.
“In the circumstances, Dr Amai not only deserves diplomatic immunity, she is entitled to it under international customary law,” Maziwisa told the Daily News.
Stephen Chan, a professor of world politics at the School of Oriental and African Studies at the University of London, said everyone deserves their day in court.
“Until then, accusations are just accusations. A lot would then depend upon the testimony of her own sons who were present. Having said that, assault is not a normal presidential quality,” said Chan.
Piers Pigou, senior consultant at the International Crisis Group, said this imbroglio has shone the spotlight on Grace and her suitability for public office, and presents another test for the South African authorities and its commitment to the rule of law.
“But perhaps that immunity can be extended by virtue of her relationship to … Mugabe,” said Pigou. Daily News