Sing'oei directive echoes undiplomatic trend by embassies

Foreign Affairs Principal Secretary Korir Sing’oei has been sucked into a court orders defiance saga involving the Japan International Cooperation Agency (JICA).

The PS is accused of directing Inspector General of Police Douglas Kanja to deploy diplomatic police officers to prevent court officials or auctioneers from accessing JICA properties.

The organisation was in 2023 ordered by the Employment and Labour Relations Court to pay its former employee, Shuaib Adam, Sh7.8 million in compensation for unfair termination.

The agency had asked the court to allow it to arbitrate the dispute, after which it came back to challenge the award. However, Justice Anna Mwaure adopted the award.

After the judgement was issued, JICA told the court that it needed its intervention for its items not to be auctioned as it sought to appeal the verdict.

However, in October last year, it was granted 30 days to deposit the money into an interest-earning account held jointly by lawyers from both sides. The agency never complied.

Sing’oei, in a letter to the IG, now claims that JICA enjoys immunity.

“The ministry wishes to underscore that JICA operates in Kenya pursuant to the host country agreement between the Government of the Republic of Kenya and the Japan International Cooperation Agency signed on June 13, 2014. Article 3 of the said agreement provides inter alia that: JICA, its official residence, records and official communication shall be immune from all kinds of inspection, restrictions or attachments pursuant to legal proceedings or administrative action, except with the express written consent of the Chief Representative,” said the PS in the letter dated February 26.

He said the police should protect the JICA premises until the appeal it filed is heard and determined.

In her response to Singo’oei, Adam accused the PS of disobeying the court orders.

“The court directed that the execution would issue if JICA failed to secure the decreatal sum together with taxed costs in the escrow account. The court process is straightforward and should not be frustrated by your ministry or any third party who did not participate in the proceedings.”

Adam joins dozens of Kenyans who only have paper victory against agencies and embassies acting in defiance of Kenyan law and authority while waving the diplomatic immunity card.

This is despite the court clearly saying that they do not enjoy such immunity over private contracts with their workers.

A 76-year-old former employee has also gone to court, alleging the Saudi Arabia's ambassador to Kenya has defied orders for over six years, while the Ministry of Foreign Affairs went quiet on his numerous pleas to intervene.

Abdi Mohamed Abdullahi's case was a first for a Kenyan court after a finding that ambassadors do not enjoy absolute immunity in labour disputes.

Court of Appeal judges Lydiah Achode, George Odunga, Partick Kiage, Wanjiru Karanja, Hannah Okwengu, and Fatuma Sichale have separately held, in cases involving the Swedish and the Belgian embassies, that their labour contracts are guided by local labour law, which is private in nature despite them being diplomatic missions.

In addition, Justice Bernard Manani, in yet another case involving the Saudi embassy filed by its former employee Abas Musa, said being a foreign embassy was not a ticket to a deliberate refusal to pay workers.

“Where the dispute brings into question, for instance, the executive policy of a foreign government or of its legislative or international transactions, the court should grant immunity if asked to do so. However, if the dispute concerns the commercial transactions of a foreign government, and it matters not whether these are carried on by its own departments or agencies or by the setting up of distinct legal entities, and a dispute arises properly within the territorial jurisdiction of our courts, there is no basis for granting immunity," ruled Justice Manani.

In the Abdullahi's case, he won an employment dispute against the embassy on July 19, 2019. In a case where the embassy initially sought to settle out of court but then failed to respond, the Employment and Labour Relations Court awarded him $320,282 (more than Sh41 million) and Saudi Arabia Riyal 54,000 (about Sh1.8 million).

The judge further directed that the money be paid in two months, or else it would attract 14 per cent interest per annum from February 5, 2015, when he first filed the case.

The embassy never appealed.

It is now six years. The money has attracted $403,555.22 (Sh51.9 million) and SAR68.040 (Sh2.3 million) interest.

Abdullahi has repeatedly used diplomacy to settle the issue, writing to Foreign Affairs Ministry, which Prime Cabinet Secretary Musalia Mudavadi heads, but no answer has been forthcoming.

Auctioneers as well as process servers have not been able to access the embassy, which is guarded by armed police officers. 

Despite the court ruling, Mudavadi's office insists the embassy enjoys diplomatic immunity. The embassy has only informed him that the court order had been served, and that it would get back to him. Abdullahi, who was hired as a translator in 1995 and rose to a senior researcher, said he has been waiting for the ministry’s call for over a year.

He was in the team brokering for peace in Somalia headed by former ambassador Bethuel Kiplagat. The travel expenses to and from Eldoret, where the team met, formed part of Abdullahi’s case. He narrated that for two years, he traveled daily but was never paid or reimbursed for his costs.

Abdullahi told the court that he was grossly underpaid. He also lamented that the embassy owed him $105.840 as salary arrears as translator and $129,312 for being a researcher. He also asked the court to force the embassy to release his personal effects, including books.

The court heard that sometimes Abdi had to work as late as 9pm while assisting those attending Hajj but was not paid overtime, among other claims.

Abdi testified that he parted with the embassy when his grievances regarding payment were not addressed. He claimed that the embassy instead terminated his employment in the public interest to cover the spiraling cost of running the embassy.

“I have been asking for arrears to my salary since 2008. For eight years, I was underpaid as the head of research and translation, and for six years, I was paid as a telephone operator instead of a translator. Instead of being paid my salary arrears, I was relieved of my duties through a notice sent to me,” he said.

He filed the case in 2015. Three years later, the embassy approached the court for consent. It had agreed to pay him USD 284,878 (Sh 36 million). However, there needed to be an agreement about transport, house allowances, and overtime payment. The embassy then went quiet. It never sent lawyers to represent it or a representative to defend its position in court.

Abdi holds onto the sweet victory from the courts but with bitterness. For six years, his employer decided to ignore it while his government silently watched and deployed officers to block him from enforcing its orders.