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Why Did the U.S. Deny President Clinton Immunity But Grant It to a Foreign Head of State?

02/08/2015 10:25 EST | Updated 04/10/2015 05:59 EDT

When President Paul Kagame and his wife Jannette Kagame arrived in the United States late April 2010, they had no idea that Kagame was about to make legal history. The purpose of their visit was duly accomplished. Mrs Kagame received her honorary doctorate from Oklahoma Christian University (OCU) for her role in the fight against HIV/AIDS while her husband gave the commencement speech.

But on the fateful day of April 30, 2010 the most unexpected happened. A group of attorneys and a process server from sheriff's department managed to enter OCU premises intending to ambush President Kagame and serve him summons and a lawsuit complaint. Unknown to Kagame's entourage, a lawsuit had been filled against him by two plaintiffs, namely, the widows of Juvénal Habyarimana, former President of Rwanda, and Cyprien Ntaryamira, the former President of Burundi. The two heads of state were killed when their aircraft was shot down by a surface-to-air missile on April 6, 1994. The suit allege that the defendant, Kagame, ordered the plane to be shot down, for which they seek USD$350 million; USD$250 million is for compensatory damages, while USD$100 million is for punitive damages.

When Kagame staffers and the OCU officials became aware of the trap, their immediate task was to "hide" the president -- in U.S. summons must be served on the defendant personally to become leggally-binding. The frantic stalling efforts saved Kagame from embarrassing and aggravating situation in two ways. As the process servers are not allowed to trespass private property, OCU ordered them off campus. The Kagames were then promptly bundled off to their waiting aircraft and immediately left town.

The subsequent drama is described in the "Brief For the United States As Amicus Curiae Supporting Appellee," the United States Court of Appeals for the Tenth Circuit, No. 11-6315. First, Kagame argued the court to dismiss the suit against him because the plaintiffs failed to properly serve him with summons and complaint. In other words, Kagame's narrow escape from process servers in Oklahoma became his main defence. Second, Kagame sought reprieve from the U.S. executive branch which filed a suggestion of immunity on his behalf. This was successfully done with the court recognizing that the executive branch has exclusive constitutional authority over foreign affairs including a suggestion of immunity on behalf of foreign heads of state.

Here is the irony of ironies. Over a decade earlier, U.S. President Bill Clinton failed in his attempt to use immunity argument for a sitting head of state in a sexual harassment case that pre-dated his term in office. In May 1997, the U.S. Court of Appeals ruled that "the President, like all other government officials, is subject to the same laws that apply to all other members of our society." Clinton later lost his appeal in the Supreme Court which unanimously affirmed the decision of the Court of Appeals.

There are several lessons and insights here, not least separation of powers in the U.S., in this case between the executive and the judiciary. Foreign affairs is solidly in the domain of the executive. Hence the different outcomes in Clinton and Kagame cases, the latter falling in the realm of foreign affairs that is constitutionally mandated to the executive branch.

The Kagame angle in the drama is most fascinating. In his defence, he argued two main points. First, he did not personally receive the summons and complaint. Second, as a sitting foreign head of state, he qualifies for immunity, for which, evidently, the Obama government readily applied and got. Therefore, the substance of the lawsuit was not dealt with - i.e., whether or not he ordered the downing of the aircraft. The lawsuit presumably awaits the Rwandan head of state once he is no longer a sitting president.

If that is the case a stark choice faces Kagame if he wants to keep visiting the United States. Either remain a sitting president for life, or find the best attorneys and deep pockets once out of office. The fees of priciest lawyers in America is USD$1,000 an hour according to the Wall Street Journal and the Economist.

Lastly there is this question: what motivated the Obama administration to rescue Kagame from due process? It is unlikely that the American government was persuaded by the character of the Rwandan state under Kagame. The U.S. Department of State's own Human Rights Practices in Rwanda in the same year that the Department sought immunity for Kagame painted a rather grim picture of his government. The 2010 Report gives a catalogue abuses including "continued inability of opposition political parties to register, and the arrests of two opposition party leaders...[and] two high-profile killings--the vice president of an unregistered opposition party and an independent journalist..." The subsequent State Department's reports on Rwanda are even more depressing.

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