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Attorney-General Githu Muigai has come to the defence of the German Embassy in Nairobi, seeking dismissal of a suit in which a woman wants compensation for the embassy’s use of her photograph to promote an event without her consent.
Prof Muigai says in court papers that the German Embassy can only be sued if the Federal Republic of Germany waives diplomatic immunity it enjoys in Kenya under the Privileges and Immunity Act.
Tealaso Lepalat sued the German Embassy after her husband physically assaulted and divorced her for not consulting him before allowing use of her photo to promote the said event.
She wants the embassy to compensate her for the physical and emotional damages she has suffered.
“In order for the German Embassy to be properly enjoined in these proceedings, the German Government must first expressly waive the immunity from jurisdiction it currently enjoys in Kenya. It suffices to say that Mrs Lepalat has not provided any evidence of such a waiver,” the AG says.
But Mrs Lepalat’s brother, Gideon Lepalo, has differed with Prof Muigai, insisting that the German Embassy waived its immunity when it violated Mrs Lepalat’s rights by using the photograph without considering the Samburu community’s beliefs.
“The German Embassy waived its immunity the moment it violated Mrs Lepalat’s constitutionally enshrined right to privacy and failed to take into account her culture and beliefs,” argues Mr Lepalo.
The photograph at the centre of the dispute has since 2012 been used to promote the Lake Turkana Festival, held in Turkana’s Loiyangalani Village every year.
The A-G was enjoined in the suit as an interested party alongside the National Cohesion and Integration Commission, which was enjoined in the suit as an interested party.
Prof Muigai has further said that the court has no jurisdiction to hear the matter, as it is barred from hearing the dispute by the Privileges and Immunity Act alongside international laws that protect foreign diplomats.
Mrs Lepalat has argued that diplomatic immunity, as per Kenyan laws, does not cover professional or commercial activity.
The Lake Turkana Festival, she says, is a commercial activity for which the German Embassy cannot invoke immunity.
“The Lake Turkana Festival was a purely commercial activity that attracted at least 24 sponsors. A commercial activity can be defined to mean any particular transaction that is of a commercial character whether or not the person who carries it out does so in the expectation of profit,” she argues.
She adds that the use of her photograph without her consent was not the embassy’s official duty hence cannot be covered by diplomatic immunity.
But Prof Muigai dismissed the argument, insisting that the restrictive immunity Mrs Lepalat is referring to is still at an infant stage in non-Commonwealth countries and hence cannot be used to override the provisions of diplomatic laws in Kenya.
“The restrictive diplomacy principle is still at an infant stage that is yet to form part of international law. It is incapable of ousting the express provisions currently governing diplomatic immunity in Kenya,” he says.
Mrs Lepalat told Justice Isaac Lenaola that even with diplomatic immunity, the German Embassy is not above the law and hence should be held liable for violating his sister’s human rights.
Mr Lepalo, who filed the suit on behalf of his sister, says international laws on which the Privileges and Immunity Act is based, specifies that the embassy agents must work within the laws of the host country.
The A-G further argues that despite inability to subject the German Embassy to court proceedings in Kenya, Mrs Lepalat can still find justice by finding other partners in the initiative and suing them instead.
“It is admitted severally that the German Embassy was a co-sponsor in the Lake Turkana Cultural Festival. There are other persons involved in the alleged violation of her rights. The petition would still remain actionable against the other participants,” he says.
Mrs Lepalat has in her petition claimed that she has since been cast out of her village because she failed to seek the consent of her husband and elders before having the photograph taken.
She has, however, denied giving anyone permission to take her photograph.
Justice Lenaola will on January 27 rule on whether the court will continue to hear the case.
– Business Daily