What is Immunity?

Wikipedia defines immunity as ‘…a doctrine of international law that allows an accused to avoid prosecution for criminal offences.’ It goes ahead and divides immunity into two types, i.e.: functional immunity/immunity rationae materiae granted to people who perform certain functions of state; and, personal immunity/immunity rationae personae granted to persons in their individual capacity.

This article will look at immunity in general.

Immunity is a preventive measure. In law, immunity is prevention from criminal or civil prosecution. In most cases, it is a constitutional privilege extended to officials holding and executing their duties on behalf of their countries. Sometimes, it is given to people or organisations that have an obligation to act in protection of humanity. There are other instances where immunity is extended to other ordinary individuals, if they can prove that they act for a person or party with immunity.

That said, an individual’s personal actions can be separated from the acts of a state and thus prosecuted. It is a lengthy process but is a fact and a possibility.

Recently, a Ugandan diplomat in New York, U.S.A was expelled on grounds of domestic violence. Another was reported to have pulped his wife in Saudi Arabia. These stories question the authority of immunity in circumstances where individuals’ actions reflect greatly on a country’s reputation, as well as the diplomatic relations with host countries when it comes to criminal offences like assault and battery.

So, what is immunity in Uganda’s perception?

Immunity is an international doctrine in law which grants certain people/organisations the privilege to not be prosecuted. It exempts them from civil or criminal prosecution.

Immunity can be categorized into two jurisdictions; the international and domestic immunity.

International immunity:

This is governed by international law on diplomacy and relations. Officials like ambassadors and their immediate families or employees are exempt from prosecution. However, in case their sending countries revoke this immunity, the host countries are at liberty to prosecute them under the host country’s jurisdiction. Meaning, if a Ugandan ambassador is accused of assault and battery, he/she can be prosecuted by the host country as if he/she were an ordinary person. The host country is also at liberty to execute any punishment if it falls within its law.

Domestic immunity:

This is the kind of immunity extended to public officials in the country. (See some of the people exempted below)

Who is entitled to immunity in Uganda?

Uganda’s Speaker of Parliament, Rebecca Kadaga says she cannot be prosecuted or summoned for questioning by any committee of inquiry for her official actions. Bottom line is, she is immune to any legal action against her while she executes her official parliamentary duties.

As it turns out, she is right!

Only for her official duties, is she immune to prosecution; and unfortunately for her alleged or possible accusers, a constitutional petition will not yield much.

In Uganda, the president (under Article 98) of the Constitution, cabinet ministers, ministers, parliamentarians, judicial officers, while executing their public duties are immune from prosecution.

When it comes to dire circumstances like the case of Akbar Godi (parliamentarian convicted of murdering his girlfriend), the immunity is lifted, and the person prosecuted as an individual for the criminal offences he/she has committed.

Scope of immunity:

Traditionally, people in official/elected capacities acting on behalf of the ones who elect them are immune to several processes. These processes directly impugned from their official capacities cannot be sustained from against them. Their acts are regarded acts of the sending/appointing party and the immunity ceases only when their tenure ends or when the sending/appointing party ceases to exist or censures it.

 Immunity versus Amnesty

Immunity requires one to be officially appointed to act on behalf of another legitimately authorised appointer.

Immunity can be evoked to avoid prosecution but cannot be sustained where illegal acts committed in a personal capacity are involved.

Immunity ceases when the official dies or loses his/her/its title or privilege or when the appointer loses authority or ceases to exist. Since immunity can be international (between sovereign states) or domestic (with a country), it will last for as long as one’s tenure lasts. When such tenure ceases, a person may be prosecuted only for personal offences and not those acts directed by his office or superiors.

Amnesty, on the other hand;

Requires the Reporter (name of an applicant for amnesty) to acknowledge and confess the crime or offence for which they are accused;

Requires the Reporter to surrender to designated officials legally allowed to receive defectors/reporters;

Requires the Reporter to apply for actual amnesty and receive a certificate of amnesty from the appointed authority responsible for granting amnesty;

The Reporter cannot be prosecuted further or at all once the certificate of amnesty is issued.

The international aspect of immunity

There are certain crimes that the international community cannot avoid despite the existence of immunity.

War crimes, genocide, crimes against humanity are such examples. No amount of immunity can protect the actors of these crimes because the international jurisprudence regards them as individual acts and not acts by a state.

When a sending state cancels its diplomat’s status, the immunity automatically ceases. The host state is therefore allowed to prosecute the diplomat under its domestic laws or the international laws, if allowed. Sometimes, the host state may declare the diplomat persona non grata (not welcome) and if the sending state does not welcome the diplomat back to his/her country; domestic suits can be commenced by the host state.

Where the sending state also revokes the official’s immunity, but the official remains in the host state (even without the official tag), the sending state can only commence extradition processes against that official for purposes of prosecution.

In conclusion, international jurisprudence evolves as states evolve and relate. Domestic laws eventually incorporate these international doctrines and practices. Except for what the law terms as heinous and inexcusable (war crimes, genocide, crimes against humanity, etc.), immunity is a fundamental aspect in how states relate internationally and domestically and must be differentiated from amnesty.

This article was written by our Feature Columnist, Atuhairwe Agrace, for our weekly law newsletter, The Deuteronomy. To contact Agrace, write to her on zoyahirji@gmail.com. To receive The Deuteronomy in real time, click HERE.

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