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The realm of international organizations operates under a distinct legal framework, where considerations of diplomatic immunity and functional necessity often intersect with the rights of individuals within their employ. At the heart of this legal landscape lies the question whether international organizations enjoy immunity from claims of unfair dismissal and/or wrongful termination.
Article 2 (5) and (6) of the Constitution of Kenya, 2010 provides that the general rules of international law, and any treaty or convention ratified by Kenya, form part of the laws of Kenya. The foregoing provisions are to the effect that any treaty or convention once ratified automatically forms part of the laws of Kenya without the need of a domesticating statute. Nevertheless, the Privileges and Immunities Act (cap 179 Laws of Kenya) domesticates the 1961 Vienna Convention on Diplomatic Relations. Section 9 of the said Act provides that international organizations, which Kenya is a member, are immune from suits and legal processes of any kind. This therefore means that the Kenyan Courts cannot entertain claims against international organizations unless such immunity is waived or the subject matter of claim is not official and falls outside the scope of what is immunized, that is, private or commercial actions.
So, what happens when there are employee disputes? For instance, in the event that an employee feels like they have been unfairly dismissed from employment, what legal recourse do they have?
Karen Njeri Kandie v Alassane Ba & Shelter Afrique (Petition No. 2 of 2015) eKLR, was an appeal to the highest Court of the land, challenging the Court of Appeal’s decision to dismiss the appellant’s appeal on the trial Court’s decision- which struck out the suit alleging unfair dismissal on grounds that the Respondents were holders of diplomatic immunities and privileges thus not subject to legal processes. The Superior Court similarly dismissed the appeal while upholding that the Respondents were holders of diplomatic immunities and privileges and, hence, could not be subjected to criminal or civil proceedings before Kenyan Courts.
There have been other cases that have held the same as the aforementioned case and they include, Mwangi Patrick Githinji & 14 others v International Organization for Migration [2013] eKLR, African Development Bank v Beatrice Agnes Acholla Rosemary Ambalo Acholla (Representatives of The Estate of The Late Bonaventure Eric Acholla) [2015] eKLR and C E O (Eastern and Southern African Trade and Development Bank) P T A Bank & another v Republic [2017] eKLR among others.
Given that international organizations and their officials enjoy immunity from suits, does this mean that they can get away with impunity? There is a presumption that international organizations should always act in good faith and not take advantage of their privileges and immunities; but this is not always the case.
In cases where there are employer-employee disputes, there are alternative dispute resolution mechanisms that can be explored in lieu of court proceedings. While the specifics can vary depending on the organization, its internal policies, and the governing treaties, the following are some of the general considerations -
These international organizations have laid down internal procedures to resolve conflicts. International organizations have established internal mechanisms for addressing employment-related disputes, including unfair dismissal claims. These mechanisms often involve administrative or judicial tribunals that are set up by the organization itself. Employees may be required to exhaust these internal remedies before seeking external recourse.
Administrative Review: Employees who feel they have been unfairly dismissed may have the right to request an administrative review of their dismissal within the organization. This could involve presenting their case to an internal panel or tribunal responsible for employment disputes. This internal review process is intended to ensure that decisions were made in accordance with the organization's rules and procedures.
In the event the employee is dissatisfied, the respective employee has the option of appealing through their [employee] Country’s Ministry of Foreign Affairs.
From the foregoing discussion, international organizations generally enjoy immunity from the Courts within the Host State. The pursuit of operational autonomy and the need to fulfill their mandates without undue interference from host countries' legal systems often clashes with the fundamental principles of justice and fair treatment. This is because any aggrieved employees are left with limited recourse as aforementioned. Striking a balance between the immunity of international organizations and the rights of their employees in cases of unfair dismissal and wrongful termination highlights the complicated nature of the legal landscape within which these organizations operate.
Despite there being alternative dispute resolution mechanisms to address employment-related grievances, the path to justice can sometimes be convoluted due to the unique privileges that these entities hold. For instance, the internal mechanisms by organizations for resolving conflicts have been criticized as lacking in independence and impartiality; the case of one being a judge in its own case. This, therefore, means that the only available suitable recourse to aggrieved employees lies in the strength of their [employee] Country’s Ministry of Foreign Affairs.
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