DIPLOMATS who have been bullying, firing and victimising workers are in for a rude shock following a landmark court ruling that the much-touted diplomatic immunity that they enjoy, does not apply to labour cases.
Magistrate Leah Shaanika made the ruling at the District Labour Court in Katutura on June 23, following months of labour tussles embroiling Spanish Ambassador, Maria Victoria Scola Pliego and her former Personal Assistant, Mercy Mabuku Situmbeko.
Pliego will now face charges of having unfairly dismissed Situmbeko (31), of Eros Flats, Robert Mugabe Avenue. Situmbeko’s case is recorded as DLC 222/08.
Shaanika’s ruling will also pave the way for other similar labour cases that have been stalled to be heard by the District Labour Court. Prominent among these are labour cases involving the Embassy of the United States of America, under Ambassador Joyce A. Barr, whose term ended last year, July 31, and the Director of the United Nations Education, Scientific and Cultural Organisation (UNESCO) Windhoek Cluster office, Dr Claudia Harvey.
Ambassador Barr is being sued for unfairly dismissing John Hans, as a general maintenance mechanic. Hans, who resides at 4436 Olyfberf Street, Soweto Katutura, has had his case number DLC-285/08 pending since last year, August 6.
And in the latest instance involving UNESCO’s Harvey, Mark Shailemo (27), an Administration Assistant employed last year in November, was given 24 hours to leave UNESCO premises for allegedly whistle-blowing on the Director. Harvey stands accused of unfairly dismissing or forcing to resign over 10 employees at the Windhoek Cluster office.
Ambassador Pliego faces a list of accusations involving demands for Embassy chauffeurs to drive above the speed limit of 180 kilometres per hour on the road between Windhoek and Walvis Bay, a dangerous road even at lower speeds. The speed limit in Namibia is 120 km.
Employees have also accused the ambassador of insisting that staff at her residence undergo forced HIV/Aids tests while also demanding that they wear latex gloves when on duty. Payment of late salaries is another issue that Pliego faces.
In the Pliego versus Situmbeko case, the Spanish Ambassador is accused of having contradicted her own Embassy’s work contract Clause 7, which stipulates that, “The Namibian Labour Law shall apply to the worker as well as the regulations established by Ministry of Foreign Affairs regarding the internal governing of the Missions related to its activities.”
The Foreign Affairs letter dated 23 June 2003 , a copy of which is in possession of Informanté, states, “The Ministry has taken note of a number of complaints registered by Namibians employed in Diplomatic Missions, who believe that they have been treated unjustly by their employers. While the Ministry has noted that most Embassies and High Commissions based in Windhoek are entirely correct in their employment practices and conditions, it is deemed prudent to tackle this problem while it is still evident in a small minority of cases.
“With reference, therefore, to Article 41.1 of the Vienna Convention on Diplomatic Relations, which states, ‘Without prejudice to their privileges and immunities to respect the laws and regulations of the receiving state’, the Ministry respectfully reminds those Embassies and High Commissions, which do not do so, to abide by the provisions of the Namibian Labour Act (Act 6 of 1992) when employing Namibian citizens locally.”
According to International Law on Diplomatic Privileges Act, Number 71 of 1951, heads of state, diplomatic agents, envoys and certain organisations such as UNESCO, enjoy diplomatic immunity in criminal and civil cases. However, immunity from labour cases is not mentioned.
Before Magistrate Shaanika’s ruling, several attempts were made to drag diplomats to court to answer to charges of unfair dismissal, but to no avail as the diplomats pleaded diplomatic immunity. Both the Ministry of Foreign Affairs and Labour Commissioner, Bro-Mathew Shinguadja have dangled ‘diplomatic immunity’ in the face of the law, hardening the stance taken by the diplomats to continue abusing their employees.