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No speedy prosecution in sight for Grace Mugabe

Publish date: 06 August 2018
Issue Number: 785
Diary: IBA Legalbrief Africa
Category: General

The ruling by the Gauteng High Court (Johannesburg) that the decision to recognise Grace Mugabe’s immunities and privileges – in order to shield her from criminal prosecution for the alleged assault of Gabriella Engels – was inconsistent with the Constitution and thus invalid, may have consequences for other heads of state and their close family members, but was not likely to lead to a speedy prosecution of Mugabe. So says constitutional law expert Professor Pierre de Vos, in an analysis on his Constitutionally Speaking blog. He says unless the Minister of International Relations and Co-operation appeals the judgment, the head of states of foreign countries should take care not to assault or kill anyone while they visit SA, because – as the law stands after this judgment – they will not be immune from criminal prosecution if they do. He points out that the department initially advanced two different reasons why Grace Mugabe enjoyed immunity from criminal prosecution in SA.

* The Minister had ‘granted’ her immunity in terms of section 7(2) of the Diplomatic Immunities and Privileges Act because it was in the national interest of SA to do so. However, during the oral arguments the Minister’s lawyer abandoned this claim. De Vos suggests it is unclear what would have happened had the Minister’s lawyer not done so, adding ‘we are none the wiser’ about when section 7(2) immunity can validly be granted by the Minister.

* Grace Mugabe was the spouse of the then President of Zimbabwe who automatically enjoyed immunity from prosecution in terms of customary international law. In oral arguments, it was argued that the Minister had merely ‘recognised’ the existing right to immunity enjoyed by Grace Mugabe in terms of customary international law. However, the court held that immunity can only be granted if it is not in breach of the Constitution or SA laws. It held that section 6(a) of the Foreign States Immunities Act prevented our government from granting immunity to Grace Mugabe, as it involved an injury to a person.

De Vos believes this aspect of the court’s decision may be challenged, because section 2(3) of the same Act states that ‘the provisions of this Act shall not be construed as subjecting any foreign state to the criminal jurisdiction of the courts of the Republic’. This means it excludes immunity for a head of state in civil matters, but does not exclude immunity for a head of state in cases of criminal prosecution.

Full analysis on the Constitutionally Speaking blog