Supreme Court Decision Extends Immunity Protection for Foreign Organisations

Many international organizations operating in Kenya, such as charities, have sought to defend themselves against legal proceedings by citing state and diplomatic immunity, which can apply to organizations in some cases. However, there has been uncertainty over whether this principle applies to employment litigation. In a key case, Karen Njeri Kandie v. Alassane Ba & Shelter Afrique, Petition No. 2 of 2015, the Supreme Court of Kenya has clarified that it does, and it has also taken a wide view on the types of “official acts” that can qualify for protection.

Karen Nieri Kandie was a finance director at Shelter Afrique, a pan-African finance institution with immunity. She sued her employer and the managing director, Alassane Ba, for unfair termination after she raised allegations of assault by Ba and was placed on special leave. The respondents filed a preliminary objection on the grounds that the Industrial Court did not have jurisdiction since the respondents were both immune from suits and legal processes. The Industrial Court and later the Court of Appeal agreed with the respondents, leading Kandie to take her case to the highest court in Kenya.

The Supreme Court of Kenya agreed that the respondents had immunity based on the Convention on the Constituent Charter of Shelter Afrique, a host country agreement signed by the Kenyan government, and the Privileges and Immunities Act (Chapter 179, Laws of Kenya), which incorporates articles of the Vienna Convention on Diplomatic Relations of 1961. However, this immunity was not absolute, as it applied only to words spoken or written and actions undertaken by the respondents in their “official capacity.”

Kandie had argued that the alleged assault could not be considered an official act. However, the Supreme Court held that an action is an unofficial act only if it relates to professional or commercial activities outside the organization’s official functions. In this case, Ba was immune because he was not conducting a commercial activity for his own profit at the time of the alleged assault.

Kandie also challenged the constitutionality of diplomatic immunity, which she claimed violated her constitutional right to access to justice outlined in Article 48 of the Constitution of Kenya.

The Supreme Court held that the right to access justice was not absolute and that diplomatic immunity was a “reasonable and justifiable limitation” on that right, as it safeguarded the effective performance of diplomatic missions. Further, the societal importance of the government meeting its obligations under international law outweighed Kandie’s right to access to justice.

Comment

The Supreme Court’s decision is important for a number of reasons.

• It held that diplomatic immunity is a procedural bar to jurisdiction. Immunity applies to certain organizations and/or their employees who (1) have entered into agreements with the government that convey immunity or (2) have immunity pursuant to a specific Act of Parliament or an order passed by the Cabinet Secretary for Foreign Affairs in accordance with his or her powers in sections 9 and 11 of the Privileges and Immunities Act.
• It confirmed that immunity can arise within the context of an employment dispute, rejecting the argument that such disputes are purely private matters that should not attract immunity.
• It confirmed that the right to diplomatic immunity is a legitimate limitation of the constitutional right to access justice.

Despite this decision, international organizations and their employees should be aware of the constitutional rights of employees, their obligations as employers, and the fair termination procedures under the Employment Act, 2007. Such awareness would avoid unnecessary litigation and reputational damage. It is also important to note that the government of an applicable nation state has the right to waive immunity, thus rendering the defense inapplicable.

Written by Sonal Sejpal, Tabitha Joy Raore, and Milly Mbedi of Anjarwalla & Khanna and Roger James of Ogletree Deakins