Thursday, May 26, 2022

Botswana steps in to stop US embassy being auctioned off

The United States Embassy would have suffered humiliation at the hands of a deputy sheriff two months ago hadn’t the Attorney General warned to “take all appropriate steps” to stop the High-Court-ordered attachment of the Embassy’s property.

In a long-running dispute between 12 ex-employees of the United States Agency for International Development (USAID), the United States Embassy has been flatly refusing to participate in a court process on grounds that in terms of the Vienna Convention on Diplomatic Relations, it is immune from prosecution. The result was that Justice Leatile Dambe ultimately awarded a default in favour of the ex-employees. In accordance with the latter, the Assistant Registrar and Master of the High Court, Nelson Bopa, issued a writ of execution.

It would appear that the ex-employees that the Ministry of Foreign Affairs and International Cooperation (MoFAIC) assured Otto Itumeleng, the lawyer acting for the latter, that the debt would be settled within reasonable time. According to a letter dated June 29, 2012, this was reason the former USAID employees were not too keen on having property of the US Embassy impounded because they believed that there was sincere effort to resolve the matter in a non-dramatic fashion. However, they reached a point where they felt they were being led down the garden path and began playing hard ball with their former employers.

“We advise as a result that our clients’ patience with the manner dialogue has been approached has dried up. We are advised to put in motion the execution process. The end result thereof is that we shall put an advert for the sale of the American Embassy’s property comprising of motor vehicles and bank accounts by the end of business day on the 3rd July 2012,” reads Itumeleng’s letter to the Director of International Relations and Protocol in MoFAIC.

From another letter, there appears to have been subsequent discussion of this matter between Itumeleng and Morulaganyi Chamme, the Deputy Attorney General.

“It will be recalled that I pointed out that Botswana as a receiving state has obligations towards the United States under the Diplomatic Immunities and Privileges Act (CAP 39:01). In terms of the law, the premises of the mission, their furnishings and means of transport, are immune from execution. It is therefore prima facie wrongful for a Deputy Sheriff to attach property belonging to a sending state. This would include a bank account. Botswana has an obligation to take all appropriate steps to protect the premises of a mission against intrusion or damage to prevent any disturbance of the peace of the mission or impairment of its dignity,” reads Chamme’s letter to Itumeleng.

Chamme suggested that the matter be resolved through negotiations and that Itumeleng establish contact with Jeffrey Bookbinder of Bookbinder Business Law, whom the Embassy had recently engaged to represent it. Ending his letter, Chamme reiterated that should Itumeleng’s clients “do anything that violates Botswana’s international law obligations, as domesticated through the Act referred above, we will become obliged to join the fray to vindicate our obligations.”

Twenty days later, the Embassy notified MoFAIC that the diplomatic immunity of Charles Franta III, a human resources officer, would be waived in order to enable him to depose an affidavit at the High Court. Franta has made an application for the rescission of both the default judgment and the writ of execution as well as granting the US leave to defend the action. This immunity is limited in that, as the Embassy informs MoFAIC in a diplomatic note, Franta is not obliged to give evidence as a witness.


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