Revisiting personal immunities for incumbent foreign heads of state in South Africa in light of the Grace Mugabe decision
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Date
Authors
Dyani-Mhango, Ntombizozuko
Journal Title
Journal ISSN
Volume Title
Publisher
Pretoria University Law Press (PULP)
Abstract
In the Grace Mugabe decision in which the conclusion was
arrived at that Grace Mugabe was not entitled to spousal immunity by
virtue of being the wife of the then incumbent foreign head of state, Vally
J remarked that the late former President Mugabe would not have been
entitled to immunity had he been accused of committing the assault. This
article analyses this remark and its potential negative impact on South
Africa’s relationship with other African states. The analysis is valuable as
South Africa has positioned itself as being a human rights state that strives
to play a significant role in peace making in Africa and consistently has
argued that removing customary international law immunity, to which
foreign heads of state are entitled, may undermine these intentions. The
article examines South Africa’s position on personal immunity for foreign
heads of state in customary international law against the backdrop of
the Mugabe decision. It argues that as it currently stands South African
law recognises absolute personal immunity for foreign heads of state in
cases not relating to the perpetration of international crimes.
Description
A draft of this article was presented at the Law and Society Association annual
meeting held as a virtual conference on 27-31 May 2020. I am grateful for the
questions and comments from the participants. I also am grateful to Mtende
Mhango for his willingness to listen and at times for re-directing my half-baked
arguments during the earlier stages of drafting this article. Usual disclaimers
apply.
Keywords
Grace Mugabe, Personal immunities, Foreign heads of state, State immunity, Customary international law, Foreign States Immunities Act, Diplomatic Privileges and Immunities Act, Separation of powers
Sustainable Development Goals
Citation
N Dyani-Mhango ‘Revisiting personal immunities for incumbent foreign heads of state in
South Africa in light of the Grace Mugabe decision’ (2021) 21
African Human Rights Law Journal 1135-1156,
http://dx.DOI.org/10.17159/1996-2096/2021/v21n2a45.