Ex-US embassy workers hit diplomatic immunity wall


. . . hope for long service compensation evaporates


MASERU – The United States of America (US) Embassy enjoys immunity and therefore cannot be sued by employees engaged to perform functions in the exercise of governmental authority, the Directorate of Dispute Preventions and Resolutions (DDPR) has ruled. DDPR made the ruling in a litigation in which six former American Embassy employees who were providing security services for the Embassy had petitioned the tribunal, DDPR, to contest their dismissal from the mission. They did not seek reinstatement but wanted to be compensated for their long service before they were pushed out.

Their pleas were, however, dismissed when an arbitrator ruled on Monday this week that the US Embassy enjoys state immunity.  “I rule that the respondent enjoys state immunity in these matters and for that reason, the referrals must be dismissed,” reads the judgment in part. Advocate Rats’olo Thulo (arbitrator) ruled that the complainants’ nature of work was in exercise of a governmental authority, the category of work sanctioned by a United Nations Convention to provide countries immunity from jurisdiction before a court of another country.

Thulo said the six former embassy employees’ work functions entailed what would ordinarily be provided by a sovereign state to its officers and citizens through its security officers but that the nature of the disgruntled ex-employees job was such that they would liaise with local security agencies.

An agreement and arrangement he believes were co-ordinated to provide security to the Embassy “their work is therefore in the nature of acts performed in the exercise of governmental authority.” Article 11 2 (a) of the United Nations Convention on Jurisdictional Immunity of States and their Property 2004 states that countries can invoke immunity from jurisdiction if the employee has been recruited to perform particular functions in the exercise of governmental authority. US Embassy argued that the article 11 2 (a) applies to their case and Advocate Thulo concurred. He ruled that litigations arising out of acts of a governmental character are justiciable in foreign states concerned and not in the receiving state and therefore dismissed the complainants.

In the judgment, Advocate Thulo also made it clear that in terms of the Customary International law, a host country is in effect precluded from exercising jurisdiction over the sending sovereign state or its agencies that it hosts on diplomatic grounds.

The six employees are part of 29 who told Public Eye in an interview early this year that they were forced to resign and threatened to have their terminal benefits forfeited. Up to 26 resigned while three declined to do so but were later also dismissed after a disciplinary hearing.

The 29 male employees were fired for a range of misconduct accusations that seemed to have come from a mobile network application group by the male staffers of the embassy where they share views and opinions on various issues, not limited to work-related matters. The dismissed staff members have over the period cried foul saying they are unemployable and living with the stigma of being seen as undesirable potential employees after accusations such as conducting acts of terrorism and racism.

They, however, appreciated that the law says an employer is entitled to dismiss employees based on various reasons and types of dismissals include, but are not limited to, fair, constructive, wrongful and unfair dismissal but the former embassy staffers believe in their case matters were taken overboard.

A source, who is part of the dismissed group, told Public Eye that their dismissal was not only unfair “but also as heartless as a death sentence” for the characters in question lost everything they worked hard for, for many years. Some even almost lost their entire life contributions and emoluments, as they were about to retire next year. According to their court papers, the 26 challenged constructive dismissal, a situation where an employee resigns because of the employer while the three challenged unfair dismissal/termination of their contracts.

They are seeking remuneration that differs according to their service to the embassy, benefits and age. The summons ranges from M9 million to a whopping M85 million. They were all paid their severance pay but insist that they deserve better compensation. The dispute was first heard on October 19, 2022 and the embassy lawyers raised two preliminary points that saw the matter failing to be heard on merits.

First, they argued that it was improper to have sued the embassy saying the proper party is the government of the United States of America. It was also argued on behalf of the embassy that there was an improper service. They further argued that the embassy was served at its premises in violation of its immunity and not through diplomatic channels as required by international law. The complainants, on the other hand, argued that the embassy was correctly sued adding that the fact that it (the embassy) is an employer means it can sue and be sued. Their lawyer also brought to the attention of the court that the embassy accepts that it is not a separate legal entity from the US government in its papers.

The arbitrator then ruled on November 28 that the US Embassy has the legal capacity to be sued and has correctly been sued.  “By virtue of the international customary law principle that a state and its agencies have an inseparable personality, the embassy has the legal capacity to be sued and has been correctly sued,” the ruling said.

However, the ruling said the embassy was erroneously served and should, therefore, be served through diplomatic channels, instead. The dissatisfied ex-employees then pursued the matter but in three separate applications categorized according to the work they did at the Embassy. Two other applications are still pending before the tribunal-DDPR but Adv. Thulo in the case of the six ruled that the Embassy enjoys state immunity. However, he said there exist a question of whether state immunity under customary international law can be held in effect as contemplated by section 2 of the constitution.

Section 2 speaks to the supremacy of the constitution and states that the constitution is a supreme law of Lesotho and that any law inconsistent with it shall to the extent of inconsistency be void. Advocate Thulo also ordered that if the complainants are so minded or advised, they can petition the High Court to interpret if their right to a fair trial has been violated by rules of state immunity.

“The question whether state immunity under customary international law can be held void as contemplated by sections 2 of the constitution to the extent that they are inconsistent with section 12 (8) read with 4 (1) is referred to the High Court in terms of section 128 (1) of the constitution to, if so whether applicant’s right to a fair trial has been violated by rules of state immunity.” In an interview US Embassy Public Affairs Officer, Charles Blake, had previously admitted that indeed the disgruntled former staffers parted ways with the embassy last year. He indicated that the US Embassy took appropriate action and took measures to investigate in response to reported misconduct. “The US Embassy strives to adhere to Lesotho labour laws and standards, consistent with our status as a diplomatic mission, and we value reputation in the community as an employer that demands the highest standards of integrity from its entire staff. Because this relates to an internal personnel issue, we have no further comment,” he said.

Leave a Reply

Your email address will not be published. Required fields are marked *