Diplomatic status and the immunities and privileges attached to that status are governed by statute under the Immunities and Privileges Act. The status can be conferred on international organizations by the minister responsible for foreign affairs.
Where such an agreement exists, the minister may enter a further agreement that your organizations should enjoy immunities and privileges. This shall confer privileges on the organization itself and also on certain members of staff of the organizations.
Immunities and Privileges of the Organisation
These include immunity from suit in that the organization 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 organization’s premises are also inviolable. This means no forced entry or entry without the permission of the organizations; this applies to local law enforcement as well. Restrictions on entry also extend to restrictions on the search of the organization’s premises and the organization's 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 organization 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 processes 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 organization. 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 organization.
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 organizations currently holding diplomatic status is informative as to the nature of the organizations that are likely to be granted diplomatic status under the Immunities and Privileges Act. Such organizations 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 organizations 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 organizations seeking such status to compile a compelling profile and provide compelling justifications for being granted diplomatic status.
About the Author
Mwaiwathu Majawa is an 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 organizations and dips into tax-related fields including labor tax issues and tax issues concerning charities and diplomatic missions.