Joshua Walde, an information management officer with the US embassy to Kenya was involved in a car accident on 11th July 2013 that led to the death of Haji Lukindo. Lukindo was a driver with a local transport company and has left behind his wife and three children. He was also the breadwinner in his family.
Although Walde is said to have recorded a statement with the police after the accident occurred, he shortly left the country for the US and with all indications that he caused the accident that led to the death of Lukindo. It only means that he left Kenya so as to avoid justice.
Of course being an employee of the embassy, he enjoyed diplomatic immunity from prosecution but this does not necessarily amount to diplomat impunity and especially when viewed in the context of the suffering that the accident has caused to Lukindo’s family. In addition, Walde is a diplomat of a high rank in the US embassy and we can safely conclude that the US Embassy was fully aware about the accident that he is said to have caused and also facilitated if not advised him to leave the country to avoid justice.
In this background, it’s important for us to interrogate the manner in which the US embassy has handled this matter as Lukindo’s family should not be allowed to suffer in the pretext of diplomatic immunity as this immunity is not absolute and can be waived.
The Kenyan US embassy and its government have been at the forefront of advocating for democracy and observance of human rights in Kenya and the casual and indifferent manner in which they want to protect Walde should not be allowed. Their advocacy for human rights has sometimes been criticized as it borders to policing and bullying the Kenyan government and above all not objective. A belated apology to Lukindo’s family cannot be consolation to his death and therefore there must be demands for waiver of diplomatic immunity to Walde.
A look at the Vienna Convention on Diplomatic Relations of 1961 shows how diplomatic immunity cannot be a justification for Walde not to face justice. It also shows how the US government must step in and ensure Walde is prosecuted if they believe in universal application of human rights. In fact, the actions or lack of it by the US government will help understand whether human rights are subjective according to their policies.
Article 29 of this convention confers inviolability status to diplomats and therefore they cannot be arrested or detained by the sending state and especially if diplomatic ties between the receiving state and sending state are good.
Further, Article 31 of the same convention guarantees diplomatic agents immunity from criminal jurisdiction of the receiving state, in this case Kenya, except on issues relating to private immovable property, professional or commercial activity done outside a diplomats official function and in a succession matter that a diplomat is involved as an executor, administrator or a heir or a legatee as a private person not on behalf of the sending state, in this case the US.
However, Article 32 of the same convention lifts the lid of diplomatic immunity enshrined in Articles 29 and 31 this is what the US is supposed to apply if it believes in the rule of law and human rights as they have endlessly and consistently preached. This Article allows the sending state, US, to expressly waive the diplomatic immunity on its diplomatic agents that can even extend to waiver on execution of judgment.
The crime of dangerous driving that has caused death and that Walde has been accused of committing is so grave that it should not go unpunished.
The fact that Lukindo was the sole beneficiary and has left behind a widow who is jobless and with three children demands that diplomatic immunity in Articles 29 and 31 should not be used to condemn his family to eternal suffering and abject poverty.
The US government should use Article 32 to ensure justice failure to which they will be encouraging impunity and therefore lack moral legitimacy to press for human rights in Kenya. Interestingly, no local civil society in Kenya, who are normally funded by US and other Western powers, have spoken about this issue. They have chosen to side with money and not human rights.
There is need for the US government to invoke Article 32 of this convention and also for the Kenyan government as promised by Cabinet Secretary for Foreign Affairs to purse this matter to logical conclusion.
(Mwangi is a Lawyer [email protected])