MIDDLEBURGH

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Middleburgh on Immunity

Last week the Hong Kong Department of Justice announced that Grace Mugabe would not be prosecuted for her alleged assault in January 2009 against Richard Jones. It was reported that whilst police had concluded that there was sufficient evidence for prosecution, the Department of Justice with regret believed Mrs Mugabe had diplomatic immunity. Lawyer Michael Vidler indicated that Mrs Mugabe could have faced the charge of wounding which carries a potential jail term if proved.

Whilst Mr Jones admitted that he had never seriously entertained an expectation that Mrs Mugabe would be brought to court for the alleged assault, outraged media (around the world) condemended the response by the authorities and questioned whether

On reflection, it is obvious that Grace was never going to be prosecuted and it is to the credit of the HK Police that they nevertheless fully investigated the case and submitted papers to the Depatment of Justice for a possible prosecution. Under the one country two systems policy the Justice Department (no doubt after consultantion with Beijing) had no option but to decline to prosecute on the basis that any prosecution would fail on the ground of Mrs Mugabes "diplomatic" status.

This status effectively derives from the 1961 Vienna Convention on Diplomatic Relations, and subsequent case law including a case in 2001 against Robert Mugabe heard before a US Court . Whilst people may be critical of the Chinese stance it is worth noting that in the US case, the US government actually intervened in favour of Mugabe on the basis of suspicion of (head of state )immunity.

As I understand it, a Head of State is considered a country┬┤s Chief Diplomat, and Heads of Mission accredited by them are their representatives (ie a British Ambassdor accredited by the Court of St James is the representative of HM Queen) and rights confired on diplomats are equally enjoyed by the Head of State (or something along those lines)

Article 31 of the convention confers immunity from criminal prosecution on diplomats. This is extented to members of their family by Article 37 and it is this which protects Mrs Mugabe from criminal prosection for the alleged assault. China could of course ask for a waiver (of diplomatic immunity) under Article 32 and on reciept of such the HK authorities would be free to mount a prosecution. I think we can taken it a given that no explict waiver would ever be provided to allow Grace Mugabe to stand trial here in Hong Kong.

In such cases it is accepted practice for the country to whom the accused belongs to withdraw them. eg The Vietnamese Consul General was withdrawn from HK in 2001 after he allegedly groped a woman's bottom in the Sogo department store in Causeway Bay.

Grace fled Hong Kong immediately after the alleged assault so it come down to whether she would flout accepted practice and brazenly return - Almost certainly she would ....so the question is whether the Chinese/Hong Kong authorities could or would prevent her from so doing . Article 9 allows a country to revoke diplomatic status and bar a person at any time without having to provide a reason. No doubt such options were discussed between Hong Kong and Beijing . We could therefore imagine a situation where

  1. Grace (DOB 23 Jul 1965) turns up at a Hong Kong pont of entry (Zimbabwe Passport AD001159)
  2. The Immigration Officers (acting for and on behalf of The Ministry of Foreign Affairs Beijing) ask for an explicit waiver of diplomatic immunity with respect to the assault.
  3. the request is declined
  4. The Immigration Officers (acting for and on behalf of The Ministry of Foreign Affairs Beijing) then invoke Article 9 and send Grace packing ...just like the infamous Garry Glitter.
And why would they do so ?? well the rationale would be that Grace Mugabe has demonstrated a flagrant disregard to her duties under Article 41 , has proved to be violent and a potential danger to people lawfully going about their businress in Hong Kong. The Authorities have an obligation, indeed a duty to ensure public safety and protect the people of Hong Kong. To do otherwise would clearly be to go against public sentiment Of course the authorities might not see it this way.

As to the question of what might happen when hubby Bobbi ceases to be Head of State: Article 39 provides that when the functions of a person enjoying privileges and immunities have come to an end, his (and his families) diplomatic immunity ceases . The implication is that when Mugabe steps down or "pops his cloggs" the HK Department of Justice may reopen the case . Just don't expect to see see them raising international arrest warrents and seeking extradition.

So although it's unlikely that (worst case) Grace is let back into Hong Kong and still has diplomatic immunity - what could ordinary people lawfully do about it. ...

Firstly would anyone recognise her in the street ??? . It's not as if everyone is carrying photos of her (eg in their mobile phone). Suppose however that she was spotted in a public place ... who would you tell and how ??

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