CAN BRIAN MUNDUBILE AND MAKEBI ZULU BE ARRESTED SINCE THEY HAVE TAKEN REFUGE IN THE UN PREMISES?
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The police have issued a call-out to Brian Mundubile and Makebi Zulu, the UN agency have to respect that, otherwise it would be a breach of the Vienna Convention.
THE VIENNA CONVENTION AND NON-INTERFERENCE
Under Article 41(1) of the Vienna Convention on Diplomatic Relations, persons enjoying diplomatic privileges and immunities have a duty to respect the laws and regulations of the receiving State and, importantly, a duty not to interfere in its internal affairs.
Article 41(3) goes further by providing that the premises of a diplomatic mission must not be used in a manner incompatible with the functions of that mission.
This principle is particularly relevant where individuals are wanted by the police, pursuant to the domestic law of the host country.
Diplomatic protection should not casually be used to frustrate legitimate criminal investigations or shielding individuals from ordinary processes of law.
So, unfortunately for my two brothers who have reportedly sought refuge within premises enjoying diplomatic or international protection, their situation presents a difficult question of both law and diplomatic etiquette.
DIPLOMATIC PREMISES ARE INVIOLABLE — BUT THEY ARE NOT FOREIGN TERRITORY
It is also important to understand the other side of the law.
Under Article 22 of the Vienna Convention, premises of a diplomatic mission are inviolable. Zambian authorities cannot simply force their way into an embassy or diplomatic mission to arrest somebody without the consent of the head of that mission.
However, inviolability should not be confused with sovereignty. An embassy does not cease to be geographically within Zambia simply because it enjoys diplomatic protection.
Therefore, the fact that the police may be prevented from entering particular protected premises does not necessarily extinguish Zambia’s jurisdiction over a Zambian citizen who is wanted under Zambian law.
DIPLOMATIC ASYLUM IS EXCEPTIONAL
This distinction was addressed by the International Court of Justice in the Asylum Case (Colombia v. Peru) of 1950.
The Court explained that diplomatic asylum is fundamentally different from ordinary territorial asylum because the individual remains within the territory of the State seeking to exercise jurisdiction over him.
Granting diplomatic asylum can therefore remove that individual from the jurisdiction of the territorial State and amount to intervention in matters falling within that State’s competence.
In simple terms, diplomatic asylum does not completely give immunity, you can be arrested as soon as you get out of the premises.
DIPLOMATIC ETIQUETTE
Diplomacy works on mutual respect.
Where people sought by law-enforcement authorities enter such protected premises, the appropriate course is therefore diplomatic engagement between the Government and the mission or organisation concerned..
If the individuals genuinely fear persecution, mistreatment or violation of their fundamental rights, those concerns should also be taken seriously and addressed through lawful diplomatic, judicial or human-rights mechanisms.
This is why I have been calling on Mundubile to engage and not being arrogant.
TAYALI THE PUBLIC LAWYER OF THE PUBLIC COURT OF OPINIONS!!!
TAYALI THE POLITICAL ENGINEER!!!