Is Zimbabwe First Lady Grace Mugabe really off the hook from South African prosecution?

South Africa’s Diplomatic Immunities and Privileges Act gives the minister of International Relations and Cooperation the power to grant immunity to foreign visitors who represent their countries on official business.

The act sets out how this must be done.

If there’s no prior agreement that already covers the visit, a notice must be published in the Government Gazette.

What’s clear is that the spouses of foreign heads of states, members of foreign royal families, international celebrities and the like, can’t be granted immunity on a whim.

There are laws, protocols, and procedures to be followed.

Formalities aside, it’s also important to keep in mind the underlying rationale of diplomatic immunity in international law and international relations.

Diplomatic immunity is a principle with ancient roots and forms an integral part of international relations.

At the heart of it is the idea that diplomats – or others representing their countries or international organisations – must be able to pursue their official duties free from interference by the host state.

Foreign envoys who are granted immunity therefore enjoy immunity from the criminal and civil jurisdiction of the courts of the host country.

Diplomatic immunity can indeed be seen as a shield against accountability for criminal conduct or civil obligations.

The abuse of diplomatic immunity can therefore lead to impunity.

If a person who enjoys diplomatic immunity is accused of a crime, and their immunity isn’t waived, it’s normal practice for the host country to declare the person to be persona non grata.

They are then expected to leave the country.

But that also means there is no justice for the victim of the crime.

Nevertheless it’s important to remember that the immunity initially granted to the diplomat or envoy does not attach to that person in his or her personal capacity.

It would have to have been granted in one or other other official capacity.

The right to institute a prosecution for most crimes (including assault) lapses only after 20 years.

There are exceptions.

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