Diplomatic status and the immunities and privileges attached to that status are governed by statute under the Immunities and Privileges Act. The status cam be conferred on international organisations by the minister responsible for foreign affairs.
Where such agreement exists, the minister may enter a further agreement that your organisations should enjoy immunities and privileges. This shall confer privileges on the organisation itself and also on certain members of staff of the organisations.
Immunities and Privileges of the Organisation
These include immunity from suit in that the organisation cannot be sued in the court of the republic of Malawi for actions in line with its diplomatic objectives. This is subject to certain limitations.
The organisation’s premises are also inviolable. This means no forced entry or entry without the permission of the organisations; this applies to local law enforcement as well. Restrictions on entry also extend to restrictions on search of the organisation’s premises and the organisations other property including, vehicles displaying diplomatic markings or known to enjoy diplomatic immunities, and parcels in transit. This also applies to documents and archives.
The organisation will also be exempt from taxes and rates other than taxes on the importation of goods. However, goods imported for official use or for exportation are exempt.
Immunities of Other officers and Servants
Officials are also immune from suit and legal process in regards to things done or not done in the course of their official duties. They are also exempt from direct taxes upon emoluments received as an officer or servant of the organisation. There is also an exemption on tax or duty on the importation of furniture, personal property and household effects of an officer or servant arriving to take up their post in Malawi.
In regards to immigration, they are exempt from immigration restrictions and any requirement for the registration of aliens in respect of the officers, their spouses, dependents and relatives.
The servants also enjoy exemptions from foreign exchange controls depending on their position and status in the organisation.
Lastly, the officers and servants and their spouses, dependent relatives are availed facilities for repatriation in times of international crises.
Obtaining the Diplomatic Immunities and Privileges
There are no standard forms in the statutes and other rules governing diplomatic immunities. The grant of the status is therefore left to the very wide discretion of the minister responsible for foreign affairs. However, an analysis of the organisations currently holding diplomatic status is informative as to the nature of the organisations that are likely to be granted diplomatic status under the Immunities and Privileges Act. Such organisations as at the latest order in 2016 include the United State Agency for International Development [USAID], World Bank Resident Mission, International Council for Research in Agro-Forestry, Southern African Development Co-ordination Conference, Southern African Trade and Development Bank Centre for Ticks and Tick-Borne Diseases and the International Potato Centre.
These organisations are all multination and operate in Malaŵi for a developmental, aid or research purpose with some justification for diplomatic status. Is Malaŵi therefore important for organisations seeking such status to compile a compelling profile and provide compelling justifications for being granted diplomatic status.
About the Author
Mwaiwathu Majawa is a associate at Ritz Attorneys at Law with a practice focus on taxation. In his practice area he frequently offers his services to corporations, high net worth individuals, non-profits and diplomatic organisations and dips into tax related fields including labour tax issues and tax issues concerning charities and diplomatic missions.
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