Grace Mugabe And South Africa's delicate diplomacy
Gabriella Engels, Model, 20, vs Grace Mugabe, First Lady, Zimbabwean government, 53.
When the story broke that Zimbabwean First Lady Grace Mugabe had apparently beaten a 20-year-old woman with an extension cord in a Sandton Hotel, the signals from Pretoria vacillated between denial and a promise of action.
In the end, Mugabe was granted diplomatic immunity and returned to Zimbabwe failing to appear in court for the assault, leaving red faces both in the police and the diplomatic community.
Grace Mugabe flew out of Johannesburg early on Sunday morning, Zimbabwean state broadcasting featured her greeting government officials in that country along with her aged husband, Robert Mugabe. He had arrived in South Africa for the SADC Heads’ of State Summit early to deal with what had rapidly become a diplomatic nightmare for both governments.
The incident that sparked this crisis was an alleged assault on Gabriella Engels, a 20-year-old model, who laid a charge of assault with intent to do grievous bodily harm against Zimbabwe’s first lady. The 53-year-old Mugabe apparently found Engels and another woman in a hotel room with her sons, Robert jr and Chatunga Bellarmine.
The pair are already in trouble in Johannesburg having been ejected from a R70,000 a month house after reports of disturbances. Engels was cut on her forehead with what she says was an extension power cord wielded by an angry Mugabe and was forced to crawl out of the room. She also says Mugabe’s ten or so bodyguards watched and did not intervene. Initially, police had said they were unaware of the incident, then posted a border “red alert” to prevent her from leaving.
She failed to appear in a Johannesburg court after reportedly agreeing to do so in connection with the allegations. What really was happening is that government officials in South Africa were preparing a Government Gazette notice – such notices are published on Fridays in the country – on the same day she was supposed to appear in court. The notice by International Relations Minister Maite Nkoana-Mashabane said: "I hereby recognise the immunities and privileges of the First Lady of the Republic of Zimbabwe, Dr Grace Mugabe."
This was despite the South African government telling reporters on Saturday it was deciding whether to grant diplomatic immunity to Grace Mugabe at the request of the Zimbabwean government. The reality was she had already been granted immunity.
However, all may not be over in this matter as AfriForum, which usually supports actions against government in connection with issues that affect white South Africans, has indicated it's seeking legal recourse. The issue concerns the right of citizens of South Africa versus the diplomatic privileges associated with foreigners. In terms of diplomatic rights, those involved in serious crimes, such as assault, fraud, murder and rape, in a host country are usually unable to use diplomatic privilege if the actions are presumed heinous enough to elicit a local country response.
At the same time, opposition groups in South Africa are warning government that they will now target Grace Mugabe should she try to return. Grace has been in trouble before. In 2009, Chinese government officials gave her diplomatic immunity for assaulting a journalist in Hong Kong. In this case Grace Mugabe may find that her alleged action could cause a major headache for diplomats as she visits the country often.
The full text of the Dirco notice reads:
The Department of International Relations document states: On Wednesday August 16 2017, the Embassy of the Republic of Zimbabwe invoked immunities of Dr Grace Mugabe in relation to the alleged case of assault widely reported in the media. The Minister considered the communication from the Embassy in accordance with the discretion granted to her by section 7(2) of the Diplomatic Immunities and Privileges Act. According to Section 7 (2) of the Act: “The Minister may in any particular case, if it is not expedient to enter into an agreement as contemplated in subsection (1) and if the conferment of immunities and privileges is in the interest of the Republic, confer such immunities and privileges on a person or organisation as may be specified by notice in the Gazette”. After careful consideration of all the relevant factors, including the following:
• The need to uphold the rule of law, ensure fair administration of justice and uphold the rights of the complainant;
• The imperative to maintain good intergovernmental relations within the SADC region, and in particular between the Republic of South Africa and the Republic of Zimbabwe;
• The fact that the matter coincides with South Africa’s hosting of the 37th SADC Summit of Heads of State and Government; and
• Legal considerations, including derivative immunity of spouses of Heads of State,
The Minister has made the determination that the conferring of diplomatic immunity is warranted in this particular instance. The Department wishes to convey the message that the Minister has agonised over this matter and the decision was not an easy one to make.
ISSUED BY THE DEPARTMENT OF INTERNATIONAL RELATIONS AND COOPERATION
International Relations Minister Maite Nkoana-Mashabane
The sub-text which lawyers are arguing is that government decided to allow a possible assault to go unpunished because it was diplomatically expedient. This is not a unique case in terms of international law.
But one of the most significant differences, which AfriForum and other lawyers say they’re going to investigate, is why Grace Mugabe was in South Africa on her non-diplomatic passport. As she has no role in government, she would need to have entered with her husband, the president of Zimbabwe, in order to claim immunity.
The 1961 Vienna Convention on Diplomatic Relations is a treaty that defines the framework for relations between countries. South Africa and Zimbabwe have both ratified the treaty – as have 189 other states. One of the most interesting articles is Article 9.
“The host nation at any time and for any reason can declare a particular member of the diplomatic staff to be persona non grata. The sending state must recall this person within a reasonable period of time, or otherwise this person may lose their diplomatic immunity.”
As we outline below, this was invoked when a Georgian diplomat killed a teenager in a road accident.
Then Article 29 determines that diplomats must not be liable to any form of arrest or detention. They are immune from civil or criminal prosecution, though the sending country may waive this right under Article 32. Under Article 34, they are exempt from most taxes, and under Article 36 they are exempt from most customs duties.
However, Grace Mugabe was not travelling as a diplomat at the time of the alleged incident involving the 20-year-old. It’s this fact that is likely to be the central point in any further legal debates and action in South Africa and is also likely to cause more embarrassment for both Pretoria and Harare in future months.
Previous examples of governments waiving the rights of their own citizens when faced with diplomatic fallout that could trigger regional instability include:
The Case of the Japanese consul-general (1999)
The Japanese consul-general to Canada based in Vancouver, Shuji Simokoji, was charged with beating his wife but, after entering a guilty plea, was discharged meaning he received no punishment or criminal record. He claimed cultural differences meant he was allowed to beat his wife but the diplomatic fallout was what saved him.
The Naked Malaysian – a possible Mugabe scenario
Mohammed Rizalman bin Ismail was serving as military attache at the Malaysian embassy in New Zealand when he entered the Wellington home of 21-year-old Tania Billingsley dressed only in his shirt – naked from the waist down. Billingsley struggled with him, and called the police. He was charged with burglary and attempted rape but then was sent back to Malaysia in disgrace – protected by diplomatic immunity. However, he was forced back to New Zealand where he finally pleaded guilty to indecent assault.
The case of the drunken Georgian and the death of a 16-year-old
In 1997, Georgia’s second-highest diplomat in the US, Gueorgui Makharadze, was driving drunk and at 140km/h when he hit a row of vehicles in Washington, causing a five car pile-up. Joviane Waltrick (16) died and four others were hurt. In this case Georgia’s then president Eduard Shevardnadze waived diplomatic immunity, owing to the severe nature of the case, and Makharadze was sentenced to seven years in jail. It would have been a stiffer sentence had the US and Georgia not been negotiating oil rights in the latter country, according to Waltrick’s family lawyers.
The Chinese Cebu Shooting Incident
In 2015, a Chinese couple, who’d apparently shot two fellow embassy officials dead and wounded a third, were rushed out of Cebu City in the Philippines by Beijing after a restaurant incident. Consul-General Song Ronghua survived but Deputy Consul General Sun Shen and finance officer Li Hui died when either suspect Gun Jing or husband Li Qingliang apparently opened fire on the three. The attackers claimed they worked in the visa section of the Chinese embassy. The Philippines foreign ministry said they were protected and subsequently handed the two over to Chinese authorities, who flew them out of the country on a private flight.
The Marine who killed the Rock Star
Staff Sergeant Christopher Van Goethem was driving in Bucharest when he ran a stop street and hit a taxi carrying Romanian musician Teo Peter, killing him. The taxi driver was injured and the Marine reportedly left the country immediately after the incident. Romanians reacted with anger and horror while the US embassy claimed that Van Goethem was escorted home but was in a “US military facility…”. Relations between Washington and Bucharest were severely affected by the Marine’s actions.
Two Russian Drunk Driving Diplomatic Disasters
2001 saw Andrei Knazyev driving home from an ice-fishing party in Ottawa when he hit two women walking on the pavement, killing both. He failed a breathalyser test, then claimed diplomatic immunity and was removed by Moscow. He was a diplomat. The Russians, however, charged him themselves and he received four years in prison. In another incident involving a Russian diplomat and alcohol, this time in India in 2015, saw a motorcycle rammed by the intoxicated official injuring two. Then, in what is known as adding insult to injury, the Russian assaulted the injured motorcyclist before being locked up. But he was released owing to diplomatic immunity.