No excuse for bid to limit movements of diplomats

Dar es Salaam. The government recently sent a ‘reminder’ to foreign missions and international organisations. It was a circular, directing them to clear with the Foreign Affairs ministry before they meet any political leader. It’s standard procedure, the minister said. That was a convenient excuse.

The Ministry of Foreign Affairs, East Africa, Regional and International Cooperation is responsible for enforcing rules spelt out in the notice issued to all diplomatic institutions on January 28.

The circular also directs all members of the diplomatic corps to seek permission from the ministry before they travel up-country to meet any leader of local government authorities or grassroots organisations.

Those breaking the rules, the notice warns, will be deemed as interfering with internal affairs and politics of the United Republic of Tanzania.

The principle of non-intervention is the mirror image of the sovereignty of states. In international relations, the principle of non-intervention is a corollary of every state’s right to sovereignty, territorial integrity, and political independence.

It is closely linked to the concept of domestic affairs, what the French tend to call domaine réservé, and also to the international legal limits on a state’s jurisdiction to prescribe and to enforce.

What is prohibited is dictatorial interference in what the International Court of Justice referred to in Nicaragua as “matters, which each state is permitted, by the principle of state sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy.”

Since the reach of international law is constantly changing, so too is the line between what is and what is not covered by the principle of non-intervention.

The general principle includes the prohibition on the use of force. But the principle of non-intervention in the internal affairs of states also requires a state not to intervene in the internal affairs of other states in dictatorial ways not involving the use of force; for example, making payments to political parties and other forms of interference in internal political processes of the state.

The sub-title Non-Interference in a State’s Internal Affairs used to be a rule of international law: is it still in place? There is no doubt that the principle of non-intervention remains well-established in contemporary international law. It is part of customary international law, as the International Court of Justice has reaffirmed on a number of occasions.

It is also reflected in many treaties, such as the Charter of the Organisation of American States and the Constitutive Act of the African Union.

While not expressly set out in the UN Charter, it is generally held to be implicit in several of its provisions, in particular the principle of the sovereign equality of States (Article 2.1).

It was of course included in the 1970 Friendly Relations Declaration. Worth noting is that, while it is useful and helpful for diplomats to maintain a healthy working relationship with senior government officials of receiving state, there is also a danger of appearing partisan, somewhat if the diplomats become suspiciously too close to the ruling party.

For example, there was a huge mayhem in 2013 when Chama cha Demokrasia na Maendeleo (Chadema) wrote a protest letter to Tanzania, China, and the UN on the engagement of the Chinese Ambassador to Tanzania, Dr Lu Youqing, in political activities of Chama Cha Mapinduzi (CCM).

Dr Youqing participated in a CCM rally held at Kishapu in Shinyanga Region in September 2013 by, among other things, wearing the party’s cap.

The government attempted to clear the air to no avail, as the Opposition and the general public strongly condemned the incident. Indeed, according to Article 31of the Vienna Convention, a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving state.

He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: (a) a real action relating to a private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purposes of the mission. Likewise, where, for example, an opposition faction or leader is regularly fated by some diplomats, such development could prompt the government of the day to cry foul that the diplomat is going beyond his or her duty.

Eventually, if the situation regresses, the receiving state can rightfully or wrongly declare the diplomat persona non grata.

However, Article 40 of the 1961 Vienna Convention puts it clear that without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and immunities to respect laws and regulations of the receiving state.

They also have a duty not to interfere with internal affairs of that state. All official businesses with the receiving state entrusted to the mission by the sending state shall be conducted with or through the Ministry for Foreign Affairs of the receiving state or such other ministry as may be agreed.

As the government puts restrictions on diplomatic envoys, the law should act like a chain saw by cutting on both sides. Double standard should not be tolerated against any political party or rather any political issue.

Under the Escrow Account saga, for example, one of the legislators lambasted the British High Commission for meddling in the scam, purporting it to be Tanzania’s internal affairs.

But basing on Tanzania’s insatiable thirsty for the MCC funds, the minister was seen as a rookie in international affairs.

However, the escrow scam was in the limelight to the extent of putting Tanzania in such a list of shame that it lost the MCC assistance, a situation that impacted on many government projects.

To round off the discussion, an intervention aimed at restoring or establishing democracy is permitted under the international law provided issuance of restrictions avoids double standard, especially on political parties’ matters.