The Impact of Diplomatic Immunity on Employment Contracts in Uganda
The principle of functional immunity provides an important lens through which the scope of diplomatic and institutional immunity ought to be examined. Functional immunity protects an official, diplomatic mission or international organisation from the jurisdiction of the receiving State to the extent that the immunity is necessary for the performance of its official functions.
The rationale is not to confer a personal privilege or to place an organisation entirely above the law, but to ensure that the organisation or official can perform the functions for which the international legal order has accorded it protection.
This understanding is consistent with the functional character of diplomatic missions under Article 3 of the Vienna Convention on Diplomatic Relations, 19612. The functions of a diplomatic mission include representing the sending State, protecting its interests and those of its nationals, negotiating with the receiving State, reporting on developments in the receiving State, and promoting friendly relations and economic, cultural and scientific relations between the two States.
The provision is therefore important because diplomatic protection is connected to the performance of identified diplomatic functions. It does not necessarily follow that every act undertaken by a diplomatic mission or international organisation, merely because it is undertaken by that organisation, is itself a protected diplomatic act.
Uganda's Constitution provides under Article 2(2) of the Constitution of the Republic of Uganda 1995 that any law or custom that is inconsistent with the Constitution is, to the extent of the inconsistency, void.
This provision implies that the Constitution is the supreme law of Uganda, and legislation giving effect to international privileges and immunities must be applied consistently with the constitutional order. Furthermore, Article 20(1) of the Constitution provides that fundamental rights and freedoms of the individual are inherent and not granted by the State, while Article 20(2) requires all organs and agencies of Government and all persons to respect, uphold and promote those rights.
The constitutional principle of equality before the law therefore raises an important question as to what extent can diplomatic or institutional Status justify substantially greater legal protection for an employer while leaving an ordinary Ugandan employee without an effective avenue for redress? Therefore, the question is not whether diplomats and international organisations should receive protection.
International law recognises that they require privileges and immunities to perform their functions independently. The constitutional concern arises where the immunity is applied so broadly that a locally recruited employee, subject to Ugandan labour law and working within Uganda, is denied access to any redress when aggrieved by an employment dispute.
Furthermore, Article 28 of the Constitution guarantees a fair hearing, while Article 44 identifies the right to a fair hearing as non-derogable. As such, where immunity is invoked to prevent a Ugandan court from hearing an employment dispute, there ought to be consideration of whether the employee has another effective and independent forum through which the dispute can be determined.
The constitutional question may therefore be framed as: if Ugandan law provides employment protections to employees generally, and if the Constitution guarantees equality and a fair hearing, what is the principled basis for depriving a locally recruited employee of those protections merely because his or her employer enjoys diplomatic or institutional immunity?
Written by Shaba Zarina & Waboga David (Contributor)
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