Can Diplomatic/ Consular Personnel And Their Families Engage In Other Ventures In Kenya Outside Of Their Official Duties?

Diplomatic and consular agents, staff and employees (collectively “Diplomatic Personnel”) as well as their family members and dependents are, in accordance with the rules of diplomacy and international relations, entitled to enjoy certain privileges and immunities appurtenant to their status. The rights, privileges and immunities conferred on the said Diplomatic Personnel and their family members and dependents are a hallmark of customary international law, and have further been codified in international treaties and conventions and adopted and ratified as part of the domestic laws of almost all nations of the world. Kenya is a party to both the Vienna Convention on Diplomatic Relations of 1961 and the Vienna Convention on Consular Relations of 1963 (the “Conventions”) and the provisions thereof ratified and espoused in the Privileges and Immunities Act Chapter 179 laws of Kenya (the “Act”).  While the Diplomatic Personnel and their family members and private staff enjoy an array of privileges and immunities, they must operate within certain fence posts and are restricted from engaging in certain activities and ventures. Some of the privileges and immunities enjoyed by Diplomatic Personnel and their family members and dependents include:

1. Immunity from the criminal jurisdiction of the receiving state
2. Immunity from civil and administrative jurisdiction of the receiving state except in respect of certain private matters expressly provided for in the law
3. Immunity from taxes and custom duties in the receiving/host state
4. Freedom of communication with sending state
5. Freedom of movement within the receiving state
6. Inviolability of the person and premises of diplomatic/consular missions and recognized organizations.

It is important to note that consular agents and related personnel enjoy far less privileges and immunities as compared to diplomatic personnel.  This is rooted in the nature of their functions and mandate. While diplomatic agents have direct communication and are the principal link between the sending state and the receiving state, consular personnel, on the other hand perform an array of other activities to support the interests of the sending state and their nationals in the receiving state, including processing of travel documents. Recognized International Organizations and Specialized Agencies and their personnel enjoy functional immunity in respect of their official duties. Unlike diplomatic and consular representatives whose person is inviolable to the extent permissible by law, personnel of international organizations do not enjoy personal inviolability. This means that they are subject to the criminal, civil and administrative jurisdiction of the host state. However senior officials and executives of such organizations may enjoy status almost similar to those of diplomatic and consular agents. This is the case for Secretary General to the United Nations among other top executives of organizations such as World Trade Organization, World Bank, IMF among others.

Private Ventures by the Personnel of Diplomatic and Consular Missions and International Organizations

 Section 34 (3) of the Kenya Citizenship and Immigration Act, 2011 laws of Kenya (the “Immigration Act”) provides for categories of persons who are exempted from the obligations of obtaining work permits to work and reside in Kenya. This exemption covers foreign nationals upon whom certain immunities and privileges have been conferred under the Act. This exemption also applies to their spouses, children and immediate family members.

Can Diplomatic Personnel engage in other businesses outside of their official duties while in Kenya?

Subject to the provisions of the Conventions, the Act and other relevant laws, persons upon whom the aforestated privileges and immunities have been conferred may pursue private ventures in the host state outside of their official duties. For such undertakings, the Diplomatic Personnel are subject to the laws and the jurisdiction of the host state. Article 31 (1) of the Vienna Convention on Diplomatic Relations, 1961 provides that while diplomatic agents enjoy absolute immunity from the criminal jurisdiction of the receiving state, they are not exempt from the civil and administrative jurisdiction of the host state in respect of the following: -

1. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
2. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;
3. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

In respect of consular staff and employees, Article 47 of the Second Schedule to the Act provides that: -

1. Members of the consular post shall, with respect to services rendered for the sending State, be exempt from any obligations in regard to work permits imposed by the laws and regulations of the receiving State concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular employees shall, if they do not carry on any other gainful occupation in the receiving State, be exempt from the obligations referred to in paragraph 1 of this Article.

In summary, it is important to note that while Diplomatic Personnel are not prohibited from engaging in private business and other gainful adventures in the sending state subject to the provisions of the applicable laws, they are required to relinquish their diplomatic, consular and such other privileged status to qualify to be issued with such permits and passes. It is also worthwhile to note that Diplomatic Personnel who get married to Kenyan citizens and qualify and apply for either citizenship or permanent residence in Kenya, shall be subject to the provisions of the Conventions with respect to citizens and residents of the host state who are employed by the sending state, and shall only enjoy functional immunity with respect to their official duties. Outside of their official duties, they shall be the subject of the civil, criminal, administrative and other lawful jurisdiction of the receiving state.

Can Family Members i.e. (spouses and dependents of persons upon whom certain privileges and immunities have been conferred engage in gainful occupation in Kenya?

Family members of Diplomatic Personnel while seeking to engage in gainful employment/prescribed profession, voluntary services or wish to be self-employed in specific trade, businesses /consultancy   in Kenya must obtain appropriate work permits or passes under the Immigration Act and the underpinning Regulations. An application for any class of work permit or other lawful residence status in Kenya, made by a person who enjoys certain immunities or privileges under the law in Kenya, must be backed by the diplomatic/consular mission accrediting the applicant or their benefactor.  Upon approval and issuance of the relevant work permit, the applicant shall cease enjoying the privileges and immunities appurtenant to their status.

Takeaways

It is common parlance to have Diplomatic Personnel and their family members engage in other gainful occupations in the host state Kenya included. It is important to keep in mind the provisions of the Conventions and the laws in Kenya to avoid criminal or civil liability as the case may be and risk rejection of the accredited personnel by the host state or worse off spark a diplomatic spurt. Different categories of Diplomatic Personnel and persons with special privileges enjoy varied immunities and privileges and to varied degrees. It is important to understand the immunities and privileges conferred by your status. It is also important to note that immunity from the jurisdiction of the host/receiving state does not imply immunity from the jurisdiction of the sending state. Further, it is also worth noting that the sending state may waive immunity in which case the Diplomatic Personnel shall be the subject of the jurisdiction of the host state.

Conclusion

Our team at CM Advocates LLP has extensive experience assisting diplomatic/consular missions, Diplomatic Personnel and their family members as well as accredited organizations in legal matters of varied nature to foster a peaceful stay in Kenya and the East Africa region. For any enquiries on this article or any other matter do not hesitate to contact us on email at immigration@cmadvocates.com  or book a virtual consultation here 

Contributor: