The administration of diplomatic privileges, immunities and facilities: A critical analysis of Kenya's practice

Abstract

This paper analyses Kenya's practice in the administration of diplomatic privileges, immunities and facilities It examines their theoretical justifications and undertakes a comparative examination of the practice in other countries. Its objective is to establish the extent to which Kenya has succeeded or otherwise in the administration of diplomatic privileges, immunities and facilities.

Using the international society approach as its theoretical framework, the study argues that as members of the international society, states must accord diplomatic missions and diplomatic agents, privileges, immunities and facilities. They must, however, strictly adhere to the functional necessity justification in order to ensure that the rights of citizens are not impinged in the process.

The study establishes that Kenya's administration of diplomatic privileges, immunities, and facilities is faced with a number of challenges chief of which is lack inadequate coordination among the many relevant organs. Thus, the essence of coordination is emphasized. The legal framework is also found wanting in certain aspects especially concerning host country agreements. The courts are found to be conservative in their interpretation of the law. With a few exceptions, they have exhibited a predisposition to avoid entertaining any dispute launched against a diplomatic mission or diplomatic agent in the absence of an express waiver of immunity. The mediation services of the Ministry of Foreign Affairs offer an opportunity for the possibility of striking the elusive balance between diplomatic privileges, immunities and facilities on one hand and the rights of citizens on the other.