By Prof. Oswald K. Seneadza
In reaction to comments made by the British High Commissioner to Ghana in tweet on May
17, 2022 about the arrest and prosecution of Oliver Barker-Vormawor (the convener of “Fix
the Country Movement”) over road traffic offences, a four-page letter addressed to the High
Commissioner signed by the Inspector General of Police ((IGP), Dr. George Akufo Dampare,
condemned the comments describing them as “intended to tarnish the reputation of the Ghana
Police Service and that of our country”.
He also described the comments as biased and uninformed and urged the High Commissioner, Harriet Thompson, to learn to keep within the limits of what concerns her. The IGP’s approach has become a serious bone of contention and
confrontation among the major political parties in the country and remain a topical issue on
social media.
A situation which, I think, could have been avoided, if the IGP had ignored the unofficial comments or allow the appropriate authorities to deal with it if it has substance. My students of Public International Law have called upon me to give my opinion on the matter which I will attempt to do from objective academic perspective.
Check up and you will know that all inter-State wars, conflicts, withdrawals, impasses and stalemates start from triviality of
this kind. Every situation in diplomacy and international relations, whether significant or not, must be dealt with in a sensitive and tactful way.
The matter, therefore, needs to be discussed dispassionately and without any political underlying motivation else we miss it all again. Looking at it on the basis of Diplomatic Law and practice of States, I must declare forthwith my disagreement with those who have passed judgment exonerating the IGP of any wrong doing, contextually and procedurally in the present circumstance.
I am not going to delve too much into the contents of the IGP’s letter but to educate the public on the mode and level of engagement of Diplomats within the recipient’s territorial jurisdiction as permitted by Diplomatic Law and practice. Let me state categorically that an agent of government and for that matter a State security agent or the Police Service of a State is not a party to the Vienna Convention on Diplomatic Relations of 18 April 1961, which universally governs diplomatic relations among Sate-parties.
Only States are the primary subject of Public International Law (per the Vienna Convention on the
Law of Treaties, 1969 and Montevideo Convention on the Rights and Duties of States, 1933) and State-parties are permitted under the Vienna Convention on Diplomatic Relations, 1961, to act in their international relations through three authorized official channels, namely, the President, the Ambassador or High Commissioner and the Minister of Foreign Affairs acting through its diplomatic missions at home and abroad.
And no other agent apart from these have been given full powers to act on behalf of a State, unless predetermined by mutual agreement between the accrediting State and the recipient State.
An Ambassador or a High Commissioner is the representative of the Head of an accrediting State and as such all communique are received by them on behalf of their Heads of State. It means, therefore, that though the IGP’s letter was addressed to the High Commissioner to Ghana, the letter will be treated as been addressed to the Head of State of UK at the top of hierarchy in the diplomatic ranking and sense.
As stipulated by Article 3 of the Vienna Convention, the functions of a diplomatic mission consist, inter alia, in: (a) Representing the sending State in the receiving State; (b) Protecting in the receiving State the interests of the
sending State and of its nationals, within the limits permitted by international law; (c) Negotiating with the Government of the receiving State.
The representative capacity and powers of the Ambassador or High Commissioner is long established by law and practice and it is not in dispute. Accordingly, the IGP has no such powers to engage in direct correspondence with the Head of
the accrediting State through the diplomatic representative on its own or on behalf of the receiving State which is Ghana.
Any concerns about the conduct of an Ambassador or a High Commissioner or any member of the diplomatic mission has to be channelled through the Minister of Foreign Affairs and Regional Integration (which is the principal organ to manage
the foreign policy of Ghana) for the necessary diplomatic resolution at that level.
Likewise, the diplomatic representatives, in practice cannot respond to correspondence or questions from
unauthorized agents of government. Article 27 of the Vienna Convention provides that, the receiving State shall permit and protect free communication on the part of the mission for all official purposes. In communicating with
the Government and the other missions and consulates of the sending State, wherever situated, the mission may employ all appropriate means, including diplomatic couriers and messages in code or cipher.
However, the mission may install and use a wireless transmitter only with the consent of the receiving State. The official correspondence of the mission shall be inviolable. Official correspondence means all correspondence relating to the mission and its functions. There is in place a procedural mechanism under Diplomatic and Consular laws for dealing with
the conduct of diplomats of all ranks where it actually interferes or presupposes interference in the internal affairs of the receiving State.
On the question of diplomatic immunity, Article 29 states “The person of a diplomatic agent shall be inviolable. He/she shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity”. Further, Article 31 states, “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 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; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person”.
Put together, Articles 27, 29 and 31 confirm the powers and privileges of foreign diplomats accredited to recipient States and are secure from violation by State security agents. The IGP also referred the High Commissioner to Article 41 of the Vienna Convention that makes it a duty of the State receiving immunities and privileges to respect the laws of the
receiving State and not to interfere in the internal affairs of that State.
This provision is quite generic and uncertain. It is difficult to determine what really constitute “interference” by diplomatic agents in internal affairs of the receiving States. There is no straight forward answer to this question. Let me make it very clear that there are other provisions in the same Vienna Convention and in other international instruments which waive Article 41 in time of necessity.
There is currently a paradigm shift in the concept and practice of States with regard to “interference” and “sovereignty” because of humanitarian consideration and economic or trade relations among States. Many puzzle, yet some wonder, whilst others protest, whenever diplomats question the records of good governance and anti-corruption. In recent times some international donors, whether multilateral or bilateral donors, question the record of anti-corruption efforts in a developing nation that is a recipient of donor funds.
Are these donors justified in making such intrusive and inquisitive inquiries in a country which is not even theirs? Where does the line start and end? Indeed, do donors have the right to ask the recipient state of donor funds, for example, on how that state has spent those donor funds? In return, can the recipient state invoke the doctrine of state sovereignty in international law for the donors to keep away from meddling in its internal affairs?
These are some of the troubling issues in international relations today. On human rights and humanitarian grounds State interference is to some extent tolerated where human rights violations are seriously worrying and continuous or where States themselves consent to interference through loans, grants and aids.
Most European and American Diplomats are aware of their limit of interference and are usually familiar themselves with the laws and culture of the receiving State so as to avoid infringing the municipal law of that host state as well as to avoid making statements or pronouncements that appear to be an affront to the local culture or politics. For example, if a diplomat has not been invited to serve as an election observer by the recipient State, he or she cannot be making
misleading pronouncements on the fairness of the recipient state’s elections.
Indeed, that is not the role and function of a diplomat. In practice, the diplomat is supposed to be reporting quietly and directly to the appointing authorities in his or her country of origin, without issuing any politically sensitive press statements in the recipient State or elsewhere. This underlies the importance of having diplomats that are trained in political communication, especially since the receiving state can, if it wishes, declare the diplomat persona non grata without furnishing any reasons for doing so.
While it is often useful and helpful for diplomats to maintain a healthy working relationship with senior government officials of the receiving State, there is also a danger of appearing partisan somewhat if the diplomats become suspiciously too close to the ruling party. Likewise, where, for example, an opposition faction or opposition leader is regularly feted by some diplomat, such developments could prompt the government of the day to cry foul that the diplomat is going beyond his or her call of duty. Eventually, if the situation regresses, the receiving State can, rightfully or wrongfully, declare the diplomat persona non grata.
From the foregoing analysis, it is comprehensible that to accuse a diplomat, for that matter the British High Commissioner to Ghana, for interference and tarnishing the reputation of any institution of the receiving State a formal procedure must be followed triggered by the Ministry of Foreign Affairs and Regional Integration and this requires a more convincing evidence than what the IGP’s letter indicated as justification for his seemingly independent reaction.
The concerned Ministry of Foreign Affairs and Regional Integration and Ministry of Interior should have given us some clarity on the matter than keeping silent allowing the ongoing controversy and the conjectures without firm evidence.
The writer is with the Faculty of Law of the Kwame Nkrumah University of Science and Technology (KNUST), Kumasi, Ghana.
