Does Grace Mugabe Qualify for Diplomatic Immunity?

17 August 2017

Zimbabwe’s First Lady, Grace Mugabe, has landed herself in some piping hot legal water after being accused of assaulting 20-year-old model Gabriella Engels in Johannesburg this past weekend.

After the news was made public, Minister of Police Fikile Mbalula announced on Tuesday (15 August) morning that Zimbabwe’s Mugabe handed herself over to the police and that she would appear in court shortly afterwards. However, the First Lady was no-show, and many speculated that she returned to Zimbabwe.

Minister Mbalula released a statement earlier today saying that the South African Police Service avoided arresting Mugabe as a result of her status, which, of course, begs the question of whether or not someone with a certain political standing should be seen differently in the eyes of the law.

Unsurprisingly, Grace Mugabe has invoked diplomatic immunity and is reportedly awaiting response from the Department of International Relation (Dirco).

So, let’s unpack exactly what diplomatic immunity is and whether the First Lady of Zimbabwe qualifies.

According to LAW FOR ALL’s Adv. Jackie Nagtegaal, “Diplomatic immunity refers to the protection and privileges reserved for certain foreigners. Ministers of Foreign Affairs, Heads of State and consuls are usually considered”.   In certain instances, the South African government can also extend this immunity to the family members of diplomats and their staff.  Our country’s Constitution reinforces this with the  Diplomatic Immunities and Privileges Act of 2001.

However, as Nagtegaal, points out, this only applies to people or representatives who are conducting official state business.  This is where things could get tricky for Mugabe as she was reportedly in South Africa in her private capacity.  In short, she could be prosecuted.

In the event that someone who is under diplomatic immunity commits a crime, there are three possible outcomes.  Firstly, he/she could be declared persona non grata (someone who is unwelcome in a particular country). Secondly, the person’s home country can revoke immunity; for example, if a South African diplomat commits a crime in a different country, South Africa can rescind the privilege and the diplomat can be charged in the foreign country. Lastly, the person will be prosecuted in their country of origin.

If Mugabe is granted immunity, it would mark the second time she receives this kind of protection over an alleged assault charge. In 2009, she reportedly attacked a British photographer, but was never charged.

But the First Lady will face another hurdle; private prosecutor and AfriForum member Gerrie Nel has offered to assist Gabriella Engels in this case. Nel is, of course, best known for prosecuting former national police commissioner Jackie Selebi for corruption and athlete Oscar Pistorius for murder.