THE ROLE OF THE UNCT IN ESTABLISHING OR STRENGTHENING A NATIONAL HUMAN RIGHTS INSTITUTION

INFORMATION NOTE: OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

APRIL 2007

This Information Note is to be developed into a module by OHCHR in the near future (Methodology, Education and Training Unit/RRDB)

I. Introduction

National human rights institutions (NIs) play an ever-growing role in the setting up of strong national human rights protection systems at the country level, something which is at the heart of the implementation of the OHCHR Plan of Action and the SG’s past reform programs. Indeed, NIs are key in connection with action on good governance, rule of law and human rights and central to effective implementation of programs in these areas, especially with respect to their sustainability.

The importance that the High Commissioner attaches to the development and strengthening of national human rights protection systems stems directly from the 2002 Secretary-General report “Strengthening of the United Nations: an agenda for further change”. This report stated that the emplacement or enhancement of a national protection system in each country, reflecting international human rights norms, should be a principal objective of the United Nations.

Key defining elements of such national human rights protection systems are:

- an independent and effective judiciary;
- a functioning administration of justice,
- a representative national parliament with parliamentary human rights bodies;
- an independent, truly representative and effective national human rights institution in conformity with the Paris Principles;
- the development of a culture of human rights through programs of human rights education in the formal and non-formal sectors as well as a public information campaigns; and
- a strong and dynamic civil society.

United Nations Country Teams (UNCTs) are obviously key partners and the most obvious entry points at the national level for action on NIs. NIs that comply with the Paris Principles in turn can assist UNCTs implement successfully rule of law related projects and activities. OHCHR is making it a priority for 2007 to sensitize and open up UNCT support towards the establishment and strengthening of NIs. NIs are in turn encouraged to seek technical assistance and support from and through members of the UNCTs at the national level. An enhanced cooperation on NIs will have a strong multiplier effect, as they are a key link to Government, Members of Parliament, NGOs and civil society organizations for the protection and promotion of human rights, good governance and respect for the rule of law.

II. What is a national human rights institution?

An NI is a State-sponsored and State-funded organisation, with a constitutional or legal basis, and with authority to promote and protect human rights at the national level, as an independent agency. It is one mechanism through which a State responds to its international responsibility ‘to take all appropriate action’ to ensure that international human rights are implemented at the national level.

The creation of an NI may be a sign that a country takes its human rights obligations seriously; the strength of this commitment may be measured by the degree to which the NI is truly independent and has the powers and resources required for it to be effective.

III. The Paris Principles

From 7 to 9 October 1991, the first International Workshop on National Institutions for the Promotion and Protection of Human Rights was held in Paris following a 1990 request from the Commission on Human Rights to organize a gathering of national and regional institutions involved in the promotion and protection of human rights. The conclusions of the workshop were endorsed by the General Assembly in resolution A/RES/48/134 adopted on 20 December 1993, and became known as “the Paris Principles”. The Paris Principles define the minimum conditions that an NI must meet if it is to be considered a legitimate NI. They are universal in their application and must be seen as a whole.

The six key criteria set out in the Paris Principles are the following:

1. Independence guaranteed by statute or constitution;
2. Autonomy from government;
3. Pluralism, including in membership;
4. A broad mandate based on universal human rights standards;
5. Adequate resources; and
6. Adequate powers of investigation.

Competence and responsibilities

The Paris Principles provide that NIs are to be vested with competence to promote and protect human rights through as broad a mandate as possible, clearly articulated in a constitutional or legislative text.

The Principles also specify the responsibilities of an NI. Firstly, NIs shall submit recommendations, proposals and reports to the Government, parliament and any other competent body. The subject matter can be any legislative or administrative provision relating to the protection of human rights; any situation of a human rights violation; or the preparation of reports on the national human rights situation or more specific matters.

Thirdly, NIs may promote conformity of national laws and practices with international human rights instruments, as well as encourage ratification of international human rights instruments and ensure their implementation. An NI may also contribute to the reporting process under international human rights instruments (with due respect for the independence of the NI).

More broadly, an NI may cooperate with the United Nations, regional institutions, and NIs of other countries, which are competent in the areas of the protection and promotion of human rights.

Finally, NIs may assist in developing and delivering human rights teaching and research programmes, and contribute to increasing public awareness of human rights through information and education.

Composition

Besides listing the above mentioned responsibilities, the Paris Principles also address the composition of an NI and its independence, emphasizing the importance of a pluralist representation of social forces involved in human rights promotion and protection. The Principles specifically mention NGOs, trade unions, professional organizations, trends in philosophical or religious thought, academia, parliament, and Government departments. On the participation of Government representatives, it foresees that they should only have advisory powers.

Furthermore, it must be stressed that, as a guarantee for their effective independence and functioning, NIs should have adequate funding, allocated by parliament, and have their own staff and premises.

Methods of operation

On the methods of operation, the Paris Principles provide that the NI shall freely consider any question falling within its competence, hear any person and obtain any information and document necessary for assessing situations falling within its competence. It shall also meet on a regular basis, establish working groups from among its members as necessary, set up local or regional sections, consult with other bodies responsible for the protection and promotion of human rights, develop relations with human rights NGOs, and address public opinion.

Finally, the Paris Principles recognize that a number of NIs have competence to receive and act on individual complaints of human rights violations.

IV. Human rights functions

Virtually all NIs are involved in the following activities:

Human rights promotion

Human rights promotion involves the dissemination of human rights information and knowledge both generally and to specific target groups. Human rights promotion seeks both to increase knowledge and understanding about human rights law and its underlying principles and to promote behaviour that is consistent with those laws and principles. Ultimately, human rights promotion is meant to create a culture of human rights so that all individuals in a society share, and act in accordance with, the values that are reflected in the international and national human rights legal framework.

Investigating complaints

Investigation is a neutral, fact-finding process whose purpose is to prove or disprove an allegation of human rights abuse, and if so, who was responsible for the violation. When an NI determines that a violation likely has occurred, it will take steps to ensure a suitable remedy is provided to the victim. Most NIs only have the authority to make recommendations following an investigation. A few, those with quasi-judicial authority, may seek to have suitable remedies imposed if they determine that a violation has occurred. The investigation of individual complaints of discrimination is arguably the most important function of an NI.

Human rights monitoring

Monitoring refers to the activity of observing, collecting, cataloguing and analysing data and reporting on a situation (including monitoring the general human rights situation in the country, legislative and policy developments, particular events such as elections, or places of detention).

Advising the Government on human rights issues

Many NIs provide advice related to specific activities that do not necessarily relate directly to other program activities, such as; advice following the systematic or targeted review of proposed legislation, policy and practice; advice following the systematic or targeted examination of existing legislation, policy and practice; or advice and assistance relating to reporting on progress in implementing international treaties.

V. Practical guidance on the human rights functions

The statutory base

Efforts could be made to ensure that proposed or existing NIs are given the necessary powers to carry out their programmes by:

- ensuring that Parliament and other appropriate officials are aware of the statutory powers that an NI requires to undertake effective programming;
- providing sample legislation on NIs to parliamentarians or other appropriate officials;
- organising seminars or workshops to discuss, with appropriate stakeholders, the statutory powers that an NI requires in order to undertake effective programming;
- organising visits by expert practitioners to discuss with parliamentarians and other appropriate officials the need for appropriate legislative powers; and
- arranging for experts, including practitioners, to ‘audit’ existing or proposed legislation.

The statutory base - Human rights promotion

The mandating legislation of an NI should:

- specifically recognise the authority of the NI to promote human rights;
- be broadly defined; and
- put responsibility on State institutions to provide all reasonable cooperation with an NI in the carrying out of its responsibility to promote human rights.

The statutory base - Investigation

The jurisdiction of an NI to investigate complaints should be clearly spelled out in the enabling legislation, which should;

- provide that an individual victim, his or her representative, third parties and NGOs, trade unions or other representative organisations can file a complaint;

- authorise the NI to initiate complaints;
- specify the powers of the NI in investigation, including:
o of the power to compel the production of relevant information (either in the form of documents or by means of oral evidence);

o the freedom to conduct on-site investigations, if necessary;
o the power to call parties to a hearing;
o the power to grant immunity from prosecution to persons giving testimony or otherwise appearing as witnesses;
o the power to hear and question any individual (including experts and representatives of Government agencies and, if appropriate, private entities) who, in the opinion of the investigating body, has knowledge concerning the alleged violation or is otherwise in a position to assist the investigation;

o the power to summon witnesses and compel their appearance; to receive oral and written evidence under oath; and to compel the production of such documents or other material evidence from public agencies and authorities as the investigating body considers necessary for proper investigation of the complaint;

o the power to impose or seek sanctions when the NI is obstructed or interfered with in any way, as well as similar powers when there has been intimidation or reprisals made against a party or witness to a complaint; and

o the authority to order interim injunctions or interim relief during the course of an investigation.

- clearly spell out the NI’s remedial powers: to make recommendations; to seek enforceable decisions through the courts or a specialised court or tribunal; and to make enforceable decisions (very rare); and

- define the types of remedy that may be applied or sought and make it clear that the NI can freely publish its findings and recommendations, without the need for prior approval.

The statutory base - Human rights monitoring

The enabling legislation of an NI should:

- clearly give it the responsibility to monitor and report on the human rights situation in the country;

- provide that the NI will have free access to public officials and information as deemed necessary to do this; and

- make it clear that the results of the monitoring activity can be freely publicised, without the need for prior approval.

If an NI is to monitor prisons and other places of detention, the enabling legislation should specifically provide for this, and give the NI the legal authority to; enter any place of detention without prior warning; see official records and take copies as required; see and take statements from prisoners alone and in unsupervised situations; and request that a certain detainee be presented.

The statutory base - Giving advice

The enabling legislation should specifically provide that the NI:

- can provide advice either at the request of the State or on its own initiative directly to the authority the NI considers the most appropriate, and without the prior consent by any higher authority;

- can publicise its advice without restriction or prior approval; and
- is entitled, within a reasonable delay, to a full response from the authorities indicating the actions they will take and by when.

The organisational structure

To help ensure that an NI’s organisational structure is suited to its responsibilities, efforts could be made to:

- organise workshops on ‘best practices’ to promote appropriate organisational structures and relationships that allow for the effective delivery of programmes;

- organise organisational “audits” by expert practitioners; and

- ensure that relevant UN human rights material is made available to the NI so that it can be a focal point for human rights documentation and information.

The organisational structure - Human rights promotion

The NI’s organisational structure should demonstrate that promotion is a separate and distinct programme. Where resources permit, the NI should consider the creation of a Documentation Centre where human rights material can be both maintained and made available to members and staff of the NI, as well students, scholars and human rights workers from outside the NI.

The organisational structure - Investigation

An NI should have a separate and distinct unit with the sole responsibility to undertake investigation. Some NIs divide a unit into two, one section responsible for investigating economic, social and cultural rights, the other section responsible for other rights. When an NI undertakes conciliation and/or mediation, it often has a separate unit or sub-unit for this purpose.

The organisational structure - Human rights monitoring

The organisation structure should make clear which unit carries the responsibility. An NI that is mandated to monitor places of detention should have a separate unit or, depending on the resource commitment, sub-unit, created for this purpose.

The organisational structure - Giving advice

Where an NI routinely reviews existing legislation, either as required by mandate or practice, it is advised that the NI assigns this responsibility to specific unit.

Knowledge and skills of staff

To ensure that NIs have the necessary skills and abilities to perform their functions, efforts could be make to:

- ensure that training on the relevant international human rights standards is provided;

- ensure that skills-based training, as required, in specific programme activities or approaches is provided (such as investigation and monitoring);

- ensure that publications and information on the relevant standards are made available to the NI; and

- sponsor or organise study tours or other similar exchanges with more experienced NIs in the area, possibly through the International or relevant Regional or Sub-regional Network.

VI. Support for the establishment of an effective NI

Establishing an effective NI involves three distinct phases:

1. developing a national consensus for the creation of an NI;
2. embarking on a process for the creation of the NI; and
3. ensuring that the newly created NI can function effectively.

Phase 1: Developing National Consensus

Typically, the movement towards the creation of an NI involves engaging national actors in a discussion on NIs, the roles that an NI can play and how these might benefit the country situation. To build national consensus, it is necessary to identify the partners that should have a voice in the discussion (such as Government officials, politicians, human rights NGO’s, academics, lawyers, groups representing marginalized groups, international organisations, etc), and to establish a mechanism and framework for that discussion.

In order to encourage and promote such a dialogue, the following efforts may be undertaken:

- identifying potential key stakeholders and ‘seeding’ the idea of NIs, perhaps by inviting practitioners and/or experts to foster exchanges;

- sponsoring seminars or workshops on NIs looking at the successes that NIs in conformity to the Paris Principles have had; and

- obtaining or developing material providing basic information about the nature and functions of NIs, and perhaps some concrete examples of how they may assist in protecting and promoting human rights, to provide to local stakeholders.

Phase 2: Establishing a national process

Ultimately, national authorities must take ownership for creating an NI and set out on a process to do so. Two factors are critical for this to happen: (1) the Government must be serious in its intention to create a legitimate NI, and (2) the process in place to do so should be as transparent and participatory as possible.

Efforts could be made in order to encourage and support national ownership for creating an NI, for example by recommending to the Government that a process be set in motion involving an appropriate Ministry (one with a supportive Minister and senior staff) or a Parliamentary Committee to determine the details of what kind of NI should be created, as well as its roles and powers.

In order to ensure that the process continues to be transparent and inclusive, the creation of one or more working groups could be encouraged, that would consist of representatives of every important social sector and which would examine and recommend on the features of a new NI.

Key issues to resolve

Several key issues must be examined closely and decided upon in the process of creating an NI. The Government must ultimately decide what the nature and mandate of an NI will be, as well as the powers that it will possess. When these questions are resolved, the Government must develop appropriate enabling legislation to codify these decisions and others, and ensure that the NI has a strong basis for carrying out its responsibilities.

Issue 1: the general model of the NI

Three considerations will influence which model is the most appropriate: (1) the importance of plurality; (2) the importance of having the capacity to investigate individual complaints; and (3) the importance of having the authority to make a determination and, where necessary, seek to enforce this.

Issue 2: defining the responsibilities of the NI

As a general principle, of course, an NI should have the broadest possible mandate, consistent with the work that an independent human rights body should carry out, although the mandate; (1) should match resources, both financial and human; (2) should not result in unnecessary duplication; (3) should match needs; and (4) will depend on the political space available, as well as the strength of political will.
Issue 3: drafting enabling legislation

Once decisions on the nature and mandate of the NI are reached, it is important that these decisions, and other issues such as the powers that the NI is to have, be defined in legislation. The drafting process will be the responsibility of Government, but the process should allow for appropriate, meaningful consultation with important stakeholders. There are a number of potential models for the legislation. In principle, however, the legislation should; (1) establish the separate legal identity of the NI; (2) define the scope of the NI’s responsibilities; (3) define the legal authorities that the NI can exercise in the implementation of its responsibilities; (4) where appropriate, set out the complaint process and the remedies available; (5) define the membership, membership criteria, membership selection and dismissal process, duration of term and privileges and immunities of members; (6) authorise the establishment of the NI and the right to employ staff; and (7) describe reporting procedures, preferably to Parliament.

Efforts to support this process could include the provision of appropriate draft legislation and/or experts to provide technical advice on suitable draft enabling legislation. A workshop can also be held to review draft legislation to ensure that there is wide and appropriate consultation with major stakeholders.

Phase 3: Support to ensure effective functioning

Determining the organisational structure

The organisational structure for an NI should be established by the Members and senior staff component of the NI itself and will reflect the general mandate and responsibilities of the NI. The organisational structure should reflect good management principles and be conducive to operational efficiency. Many newly created NIs will also have to consider the issue of whether to open local offices, allowing the NI to operate in outlying areas.

Hiring and training of staff

NIs should have the authority to hire its own staff. New NIs often experience difficulty in finding experienced and suitable candidates, especially for positions that may be unique to NIs such as human rights investigators, mediators and conciliators and, to a lesser extent, human rights monitors. There is a high probability, therefore, that the NI will need substantive skills and knowledge training to new staff, very early on in its mandate.

Developing administrative and operational policies

Administrative and operational policies and procedures should be in place at an early a date as possible following the establishment of the NI, such as with regard to complaint-handling and its process. It is also important that work-tools be developed to support the work of the NI, for example, a complaint registration form and a form to record the results of prison monitoring.

Efforts to support this could include the provision of sample standing instructions and work-tools to newly created NIs, possibly through the auspices of the international or appropriate regional network, or the sponsoring of practitioners or experts in NIs to assist a new NI develop these instructions and tools.

Strategic planning

New NIs need to develop and cost a workable plan that will allow it to focus time, energy and financial resources on efforts that are both effective and coordinated. This will require identifying the key challenges and opportunities that the NI is likely to face over the next few years; assessing the capacity of the NI to respond to these challenges; identifying partners to work with; developing a realistic program of action to meet these challenges / overcome constraints; and costing (financial and personnel) the program.

Linking with other NIs

NIs can share and learn from their respective experiences; this may be especially important for newly created NIs. NIs, supported throughout by OHCHR, have developed associations at the international, regional and sub-regional levels precisely to facilitate inter-institutional dialogue and promote the sharing of best practices. Some of the methods that have been used to encourage and facilitate this interchange, beyond regular meetings, have been staff exchanges, study tours to other NIs, seminars and workshops between NIs, and human rights training on areas of common concern.

Efforts to support the linking of an NI with other NIs could include active liaising with regional networks of NIs, supporting and promoting their efforts to develop information exchanges and other mechanisms for strengthening NIs in their region. Databases on best practices or approaches may also be developed and maintained so that NIs can benefit from the experience of others. This might be done, for example, by supporting a Regional Network’s effort to do this.

Chapter VII NIs in conflict situations

Unique functions of NIs in times of conflict

An NI operating during situations of conflict may focus on:

• efforts to promote dialogue between combatants;
• efforts to promote the establishment and growth of peace-building mechanisms among representative communities; and
• efforts to encourage acceptable and necessary accommodations to deal with underlying human rights issues that may be at the root of the conflict.

Challenges to regular functions during times of conflict

NIs face particular challenges to their regular functions in times of conflict, such as:

• Training, education and public awareness; the NI may wish to redouble efforts in community-based training in human rights especially with regard to the need to respect the rights of minorities. Where large numbers of persons are displaced by the conflict, human rights education may also be required for host populations;

• Investigation; NIs should be aware of particular human rights problems that may occur in situations of conflict, such as the use of child soldiers or the use of sexual assault as an instrument of war. Another important issue is confidentiality and protection of witness/victim identity;

• Monitoring Human Rights; in many situations the NI may be required to monitor events rather than investigate them since full-scale investigation may not be either desirable or possible. This will require the monitors to fully understand the human rights and humanitarian law norms that apply, and

• Advice to the Government; NIs will likely face criticism when it holds Government to account during times of conflict. Certain human rights are not subject to derogation, and an NI must remind the Government of this fact when necessary. Also, certain international rights norms apply to all combatants including insurgent groups.

Efforts to support NIs in these circumstances may include:

- provision of training in and materials on humanitarian law, the rights of displaced persons and refugees, the particular situations involving child soldiers, sexual assault, etc.;

- facilitation of the exchange of information on approaches and best practices that other NIs, or UNCTs, may have gathered through their own experiences;

- participation in joint programming, community outreach, monitoring and providing advice to the Government; and

- publicly supporting the NI so that it is not isolated.

Chapter VIII NIs in post-conflict situations

Unique functions of an NI in post-conflict situations

In post-conflict situations, NIs face a range of tasks which will assist the country emerging from conflict in regaining its balance and building a sustainable peaceful future. These unique functions include; (1) defining the balance between reconciliation and justice; (2) documenting past abuses; (3) supporting reintegration of demobilised forces, displaced persons and returning refugees into society; and (4) supporting special initiatives for child soldiers and child abductees (dealing with trauma, special education, alternative care programs for orphans, and reintegration initiatives).

Efforts to support NIs in this may include;

- provision of training in and materials on issues of restorative justice, documenting past abuses, dealing with the reintegration of rebels, refugees and displaced persons and the particular difficulties in this faced by child soldiers and child abductees;

- facilitation of the exchange of information on approaches, experiences and best practices that other NIs, or UNCTs, have gathered through their own experiences; and

- if an NI is being created in a post-conflict situation, Parliament and other appropriate officials may be encouraged to give the NI a key role to play in carrying out consultations and making recommendations on the balance that should be drawn between justice and reconciliation for abuses that will likely have occurred during the conflict.

Challenges to the functions of NIs in post conflict situations

Also in situations of post-conflict, NIs may face particular challenges to their functions, such as:

• Training, Education And Public Awareness; because of the absence or weakening of a human rights culture, NIs will likely consider the need for general human rights awareness training a priority;

• Investigation; an NI would likely consider the investigation of issues related to the root causes of past violations as a priority. In addition, certain issues might assume more importance to an NI since they are directly related to peace building efforts, such as land claim and land distribution issues;

• Monitoring Human Rights; the NI would likely want to monitor provisions of a peace agreement. NIs will also likely wish to put a priority on monitoring the reintegration of combatants, refugees and displaced persons into the community; and

• Advice to the Government; to the extent that human rights issues were the cause or proximate cause of past violence, an NI will concentrate on providing advice to the Government on how to deal with those issues in a way that will prevent them from re-occurring.

Efforts to support NIs in this may include; facilitating the exchange of information on approaches, experiences and best practices that other NIs, have gathered through their own experiences operating in similar circumstances; and participating in and reinforcing, to the extent possible, the NI’s priority programme initiatives in education, monitoring and advice giving.

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Annex I

Checklist of steps in case of absence of an NI


Before setting out on activities geared to the establishment of an NI,
the following questions should be answered

Human rights presence

Questions to ask:

- is there an OHCHR stand-alone Field Office in the country?
- is there an OHCHR Regional/Sub-Regional Office?
- is there an OHCHR Human rights advisor present?
- is a human rights component attached to a UN peace mission?

For more information, please consult www.ohchr.org

Contact points at OHCHR Geneva Contact points at OHCHR Geneva include:

- National Institutions Unit (gmagazzeni@ohchr.org) : regardless of other contacts, this Unit should be contacted as a standard procedure. The Unit stands ready to assist UNCTs with technical advice on the establishment or strengthening of NIs

- Rule of Law and Democracy Unit (mrishmawi@ohchr.org)
- Methodology, Education and Training Unit (fmarotta@ohchr.org)
- Geographic desks (Africa Unit: scampbell@ohchr.org; Arab region Unit: aabdelmoula@ohchr.org (from May 2007) ; Asia Pacific Unit: rmungoven@ohchr.org (from end May 2007); Europe, North America and Central Asia Unit: mnicholson@ohchr.org; Latin America and Caribbean Unit: etamburi@ohchr.org)

Once the human rights presence or contact point has been identified
and a working relationship has been established, the following issues should be considered, in close cooperation with OHCHR

Developing a national consensus Organize in cooperation with OHCHR a sensibilisation meeting involving all key stakeholders (Government officials, Members of Parliament, NGOs, research centres, experts from Paris Principles-complying NIs in the region), in order to:

- ‘seed’ the idea of NIs and gather national support;
- identify key elements of the Paris Principles;
- look at the successes that existing NIs in conformity with the Paris Principles have had obtain or develop material providing basic information about the nature and function of NIs, and perhaps some concrete examples of how they may assist in protecting and promoting human rights, to provide to local stakeholders
Establishing a national process encourage and support national ownership for creating an NI, for example by recommending to the Government that a process be set in motion involving an appropriate Ministry (one with a supportive Minister and senior staff) or a Parliamentary Committee to determine the details of what kind of

NI should be created, as well as its roles and powers

encourage the creation of one or more working groups that would consist of representatives of every important social sector and which would examine and recommend on the features of a new NI
Statutory base / Enabling legislation ensure that Parliament and other appropriate officials are aware of the statutory powers that an NI requires to undertake effective programming (see section III on the Paris Principles, as well as section V on the human rights functions)
ensure that Parliament and other appropriate officials are aware of the main considerations when choosing a model of NI
ensure that Parliament and other appropriate officials are aware that the enabling legislation should; (1) establish the separate legal identity of the NI; (2) define the scope of the NI’s responsibilities; (3) define the legal authorities that the NI can exercise in the implementation of its responsibilities; (4) where appropriate, set out the complaint process and the remedies available; (5) define the membership, membership criteria, membership selection and dismissal process, duration of term and privileges and immunities of members; (6) authorise the establishment of the NI and the right to employ staff; and (7) describe reporting procedures, preferably to Parliament
provide sample legislation on NIs to parliamentarians or other appropriate officials
organise seminars or workshops to discuss, with appropriate stakeholders, the statutory powers that an NI requires in order to undertake effective programming
organise visits by expert practitioners to discuss with parliamentarians and other appropriate officials the need for appropriate legislative powers
Organisational structure organise workshops on ‘best practices’ to promote appropriate organisational structures and relationships that allow for the effective delivery of programmes (see pp.7-8)


Checklist to Assess Compliance of an existing NI with the Paris Principles

The following checklist may be helpful in assessing an existing NI’s conformity with the Paris Principles. The checklist identifies the elements that are enunciated in the Paris Principles and the minimum requirements that must be met to satisfy those Principles. Where the Principle or requirement, or any part thereof, is not directly citable in the text of the Paris Principles, they are set out in italics.

It is impossible to signify by a simple ‘yes’ or ‘no’ response whether certain Principles are being met, for example, the Principle requiring NIs to have “a broad mandate”. The Checklist attempts to develop a hierarchy of possibilities in such cases so that an assessment can be made of the degree an NI meets the standard. This is not to suggest, however, that an NI with a relative low degree of compliance is in non-conformity with the Principles. Also, this checklist is not a definitive method for assessing the capacity or strength of an NI. That would require a more focused examination both on what the NI has actually done with the mandate it received and how stakeholders perceive it.

Principles Applying to all NIs
Principle Requirements Y N
COMPETENCE (mandate) Mandate is set out in constitution or legislation
Mandate gives authority to promote and protect human rights
COMPETENCE (general jurisdiction) Competence is defined in legislation
COMPETENCE (subject-matter jurisdiction) Competence is as broad as possible (from most to least broad)
 Includes both CP and ESC Rights
 Includes most CP and ESC Rights
 Includes only CP Rights
 Includes a subset of CP Rights
 Is limited to single rights issue (e.g., Race or Discrimination)
COMPETENCE (object matter jurisdiction) Competence is as broad as possible (from most to least broad)
 Over State and Private Sector (with public function), without restriction
 Over State, without restriction
 Partial restriction with regard to sensitive State Organs
 Total restrictions with regard to sensitive State Organs
COMPETENCE (time jurisdiction) Competence is as broad as possible (from most to least broad)
 Can examine matter even if it predates the NI
 No limits providing matter occurred since set up of the NI
 Discretionary power to limit examination of ‘old’ cases
 Limits on capacity to examine matters that are ‘old’ set in law
RESPONSIBILITY (TO PROVIDE ADVICE) Can provide advice on own imitative
 On legislative or administrative provisions
 On any violation the NI takes up
 On the national situation generally or in specific
 On situations of violations and government reactions to it
Can provide advice directly without referral
Can publicise the advice without referral
RESPONSIBILITIES (OTHER) To encourage the harmonisation of national legislation and practices with international human rights instruments, as well as their effective implementation, including by
 Participating in reviews of legislation and policy at time of ratification
 Regularly reviewing and providing formal comments on draft legislation and policy
 Regularly reviewing and formally commenting on the human rights situation generally or with respect to key issues
To encourage the ratification of international human rights instruments
To contribute to country human rights reports (from most to least broad)
 Directly participates in drafting of complete report
 Drafts section(s) on work of NI and reviews report
 Drafts section(s) on work of NI
 Reviews report in whole or in part
To cooperate with international and regional human rights organs and other NIs
To elaborate and take part in education and research programs in human rights, including by:
 Assisting in developing/reviewing curricula for schools
 Assisting in training of Prison Guards, Police, Army and Security Forces
To sensitise people on human rights through publicity, education, information and the use of press organs, including by
 Publishing an Annual Report
 Regularly reporting on important cases through the media
 Developing basic brochures on the NI
COMPOSITION (GENERAL PLURALISM) Member Composition demonstrates pluralism (High to Lower)
 Includes representatives of most social forces including NGOs, trade unions or professional associations
 Includes representatives of most vulnerable groups (ethnic, religious minorities, persons with disabilities, etc.)
 Single member
Member Composition demonstrates gender balance
Staff composition is broadly representative and gender balanced
COMPOSITION (APPOINTMENT PROCESS) Appointment effected by official act
Appointment is for a specific duration
Appointment is renewable
Appointment process supports pluralism and independence
 Nominations include input from civil society
 Selection process involves Parliament
 Criteria for selection includes demonstrated experience in human rights
COMPOSITION (Dismissal Process) Conditions for which a member may be dismissed are set out in Legislation
Conditions relate to serious misconduct, inappropriate conduct, conflict of interest or incapacity only
Decision to dismiss requires Parliamentary approval
INDEPENDENCE If Government Officials in membership, they have advisory capacity only
NI reports directly to Parliament
Members have immunity for official acts
State funding is sufficient to allow for independent staff and separate premises
State funding is sufficient to allow for core programming in protection and promotion
Funding not subject to financial control which might affect independence
Budget drawn up by the NI
Budget separate from any Department’s budget
NI has authority to defend budget requests directly before Parliament
Budget are secure
 Not subject to reduction in year for which it is approved
 Not subject to arbitrary reduction from one year to the next
METHODS OF OPERATION (Examination of Issues) The NI can consider any issue within its competence on its own initiative on the proposal of its member or any petitioner
The NI can hear any person or obtain and information or document necessary to carry out its work
The right to hear any person and obtain any document is enforceable in law
The right to enter any premises to further an investigation set out in law
Obstruction in obtaining, or denial of, access to a person, document or premises is punishable in law
The NI has the legal authority to enter and monitor any place of detention
The NI can enter the place of detention without notice
METHODS OF OPERATION (Meetings) The NI can let the public know of opinions or recommendations, including through the media, without higher approval
The NI meets regularly and in plenary
Special meetings can be convened as necessary
All members are officially convened for meetings
METHODS OF OPERATION (Organisational Structure) The NI can set up working groups
The NI can set up regional or local offices
METHODS OF OPERATION (Consultation) The NI consults with other bodies responsible for promoting and protecting human rights
The NI consults with NGOs working in human rights or related fields
The NI carries out joint programming with NGOs working in human rights or related fields especially in awareness raising and education
Principles Applying to Quasi-Judicial NIs
COMPETENCE TO INVESTIGATE NI can receive individual complaints
 Complaints may be filed by the individual affected
 Complaints may be filed by representatives of the individual
 Complaints may be filed by third parties
 Complaints may be filed by representatives organisations, such as NGOs
RESPONSIBILITIES IN INVESTIGATION NI informs parties of their rights and how to access them
NI transmits complaints to other authorities to the extent allowed in law
NI uses conciliation to resolve issues
NI makes binding decisions to the extent allowed in law
NI makes recommendations on reforming law, regulations or practices when finding shows these at fault







Annex II

CHART OF THE STATUS OF NATIONAL INSTITUTIONS
----- // ----
ACCREDITED BY THE INTERNATIONAL COORDINATING COMMITTEE OF NATIONAL INSTITUTIONS
FOR THE PROMOTION AND PROTECTION OF HUMAN RIGHTS

In accordance with the Paris Principles and the ICC Sub-Committee Rules of Procedure, the following classifications for accreditation are used by the ICC:

A: Compliance with the Paris Principles;

A(R): Accreditation with reserve – granted where insufficient documentation is submitted to confer A status;

B: Observer Status - Not fully in compliance with the Paris Principles or insufficient information provided to make a determination;

C: Non-compliant with the Paris Principles.

A STATUS INSTITUTIONS

National Institution Status Year reviewed
Asia and the Pacific
Australia: Australian Human Rights and Equal Opportunity Commission A 1999
Oct 2006
Fiji: Fiji Human Rights Commission A (suspended)
Note: Fiji resigned from the ICC on 2 April 2007 2000
Accreditation suspended in March 2007 for review in October 2007
Commission resigned from the ICC 2 April 2007
India: National Human Rights Commission of India A 1999
Oct 2006
Indonesia: National Human Rights Commission of Indonesia A 2000
March 2007
Malaysia: Human Rights Commission of Malaysia (SUHAKAM) A 2002
Mongolia: National Human Rights Commission of Mongolia A 2002 – A(R)
2003
Nepal: National Human Rights Commission of Nepal A 2001 – A(R)
2002 - A
A status placed under review April 2006; Still under review March 2007, will be reviewed October 2007
New Zealand: New Zealand Human Rights Commission A 1999
Oct 2006
The Philippines: Philippines Commission on Human Rights A 1999
Republic of Korea: National Human Rights Commission of the Republic of Korea A 2004
Sri Lanka: Human Rights Commission of Sri Lanka A 2000
A status placed under review March 2007, will be reviewed in October 2007
Thailand: Office of the National Human Rights Commission of Thailand A 2004

Africa
Algeria: Commission Nationale des Droits de l’homme
A
2000 – A(R)
2002 – A(R)
2003
Egypt: National Council for Human Rights A
Apr 2006 - B
Oct 2006
Ghana: Commission on Human Rights and Administrative Justice A 2001

Kenya: Kenya National Commission on Human Rights A 2005
Malawi: Malawi Human Rights Commission A 2000
March 2007
Mauritius: Commission Nationale des Droits de L’homme A 2002
Morocco: Conseil Consultatif des Droits de L’homme du Maroc A 1999 – A(R)
2001
Namibia: Office of the Ombudsman A 2003 (A (R))
April 2006
Niger: Niger Commission Nationale des Droits de L’homme et des Libertés Fondamentales A 2001 – A(R)
2002 - A
Apr 2006 (reviewed)
Nigeria: Nigerian Human Rights Commission A 1999 – A(R)
2000 - A
October 2006 (special review)
Placed under review March 2007, will be reviewed October 2007
Rwanda: National Commission for Human Rights A 2001
Senegal: Comité Sénégalais des Droits de L’homme A 2000
South Africa: South African Human Rights Commission A 1999 – A(R)
2000
Tanzania: National Human Rights Commission A 2003 – A(R)
2005 - A(R)
October 2006
Togo: National Commission for Human Rights A 1999 – A(R)
2000
Uganda: Uganda Human Rights Commission A 2000 – A(R)
2001
Zambia: Zambian Human Rights Commission A 2003 A (R)
Oct 2006

The Americas
Argentina: Defensoría del Pueblo de la Nación Argentina A 1999
Oct 2006
Bolivia: Defensor del Pueblo A 1999 - B
2000
March 2007
Canada: Canadian Human Rights Commission A 1999
Oct 2006
Colombia: Defensoría del Pueblo A 2001
Costa Rica: Defensoría de los Habitantes A 1999
Oct 2006
Ecuador: Defensor del Pueblo A 1999 – A(R)
2002
El Salvador : Procuraduria para la Defensa de los Derechos Humanos
A April 2006
Guatemala: Procuraduría de los Derechos Humanos de Guatemala A 1999 - B
2000 - A(R)
2002
Honduras: Comisionado Nacional de los Derechos Humanos de Honduras A 2000
Mexico: Comisión Nacional de los Derechos Humanos A 1999
Oct 2006
Nicaragua: Procuraduría para la Defensa de los Derechos Humanos A April 2006
Panama : Defensoría del Pueblo de la República de Panamá A 1999
Oct 2006
Paraguay: Defensoría del Pueblo de la República del Paraguay A 2003
Peru: Defensoría del Pueblo A 1999
March 2007
Venezuela: Defensoría del Pueblo A 2002

Europe
Albania: Republic of Albania People’s Advocate A 2003 – A (R)
2004
Armenia: Human Rights Defender of Armenia A Apr 2006 – A(R)
Oct 2006
Azerbaijan: Human Rights Commissioner (Ombudsman) A Oct 2006
Bosnia and Herzegovina: Human Rights Ombudsman of Bosnia and Herzegovina A 2001 - A(R)
2002 - A (R)
2003 - A (R)
2004
Denmark: Danish Institute for Human Rights A 1999 – B
2001
France: Commission Nationale Consultative des Droits de L’homme A 1999
Oct 2006 review deferred to Oct 2007
Germany: Deutsches Institut für Menschenrechte A 2001 – A(R)
2002 – A(R)
2003
Greece: National Commission for Human Rights A 2000 – A(R)
2001
Ireland: Human Rights Commission of Ireland A 2002 - A (R)
2003 - A (R)
2004
Luxembourg: Commission Consultative des Droits de L’homme du Grand-Duché de Luxembourg A 2001 – A(R)
2002
Norway : Center for Human Rights A 2003 A(R)
2004 A(R)
2005 A(R)
April 2006
Northern Ireland (UK): Northern Ireland Human Rights Commission A 2001 - B
April 2006 - B
Oct 2006
Poland: Commissioner for Civil Rights Protection A 1999
Portugal: Provedor de Justiça A 1999
Spain: El Defensor del Pueblo A 2000
Sweden: Ombudsman Against Ethnic Discrimination A 1999

A RESERVE STATUS INSTITUTIONS

Asia and the Pacific
Palestine : The Palestinian Independent Commission for Citizen’s Rights A(R) 2005

Africa
Chad: Commission Nationale des Droits de L’homme A (R) 2000 – A(R)
2001 – A(R)
2003 – A(R)
Democratic Republic of Congo: Observatoire National des Droits de l’Homme A(R) 2005


B STATUS INSTITUTIONS

Asia and the Pacific

Qatar: national Human Rights Committee of Qatar B Oct 2006
Jordan: National Centre for Human Rights B April 2006 March 2007

Africa

Cameroon : National Commission on Human Rights and Freedoms B 1999 - A Oct 2006
Burkina Faso: Commission Nationale des Droits de L’homme B 2002 - A(R)
2003 – A(R)
2005 (B)
April 2006, March 2007
Europe
Austria: The Austrian Ombudsman Board B 2000
Belgium: Mediateur Federal de Belgique B 1999
The Netherlands: Equal Treatment Commission of The Netherlands B 1999 - B
2004
Slovenia: Republic of Slovenia Human Rights Ombudsman B 2000
Russia: Commissioner on Human Rights in the Russian Federation B 2000
2001

C STATUS INSTITUTIONS

Africa
Benin: Commission Béninoise des Droits de L’homme C 2002
Madagascar: Commission Nationale des Droits de l’Homme de Madagascar C 2000 – A(R)
2002 – A(R)
2003 – A(R)
Apr 2006 – status withdrawn Oct 2006

Americas

Antigua and Barbuda: Office of the Ombudsman C 2001
Barbados: Office of the Ombudsman C 2001
Puerto Rico: Oficina del Procurador del Ciudadano del Estado Libre Asociado de Puerto Rico C March 2007

Asia and the Pacific

Hong Kong: Hong Kong Equal Opportunities Commission C 2000
Iran: Commission Islamique des Droits de L’homme C 2000

Europe
Romania: Romanian Institute for Human Rights C March 2007
Slovakia: Slovakia Commissioner for Human Rights C 2002

Principles relating to the Status of National Institutions: The Paris Principles

Principles relating to the Status of National Institutions: The Paris Principles

Competence and Responsibilities

1. A national institution shall be vested with competence to promote and protect human rights.

2. A national institution shall be given as broad a mandate as possible, which shall be clearly set forth in a constitutional or legislative text, specifying its composition and its sphere of competence.

3. A national institution shall, inter alia, have the following responsibilities:

(a) To submit to the Government, Parliament and any other competent body, on an advisory basis either at the request of the authorities concerned or through the exercise of its power to hear a matter without higher referral, opinions, recommendations, proposals and reports on any matters concerning the promotion and protection of human rights; the national institution may decide to publicise them; these opinions, recommendations, proposals and reports, as well as any prerogative of the national institution, shall relate to the following areas:

(i) Any legislative or administrative provisions, as well as provisions relating to judicial organisation, intended to preserve and extend the protection of human rights; in that connection, the national institution shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures;

(ii) Any situation of violation of human rights which it decides to take up;

(iii) The preparation of reports on the national situation with regard to human rights in general, and on more specific matters;

(iv) Drawing the attention of the Government to situations in any part of the country where human rights are violated and making proposals to it for initiatives to put an end to such situations and,
where necessary, expressing an opinion on the positions and reactions of the Government;

(b) To promote and ensure the harmonisation of national legislation, regulations and practices with the international human rights instruments to which the State is a party, and their effective implementation;

(c) To encourage ratification of the above-mentioned instruments or accession to those instruments, and to ensure their implementation;

(d) To contribute to the reports which States are required to submit to United Nations bodies and committees, and to regional institutions, pursuant to their treaty obligations, and, where necessary, to express an opinion on the subject, with due respect for their independence;

(e) To co-operate with the United Nations and any other organisation in the United Nations system, the regional institutions and the national institutions of other countries that are competent in the areas of the promotion and protection of human rights;

(f) To assist in the formulation of programmes for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles;

(g) To publicise human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness; especially through information and education and by making use of all press organs.

Composition and Guarantees of Independence and Pluralism

1. The composition of the national institution and the appointment of its members; whether by means of an election or otherwise, shall be established in accordance with a procedure which affords all necessary guarantees to ensure the pluralist representation of the social forces (of civilian society) involved in the promotion and protection of human rights, particularly by
powers which will enable effective co-operation to be established with, or through the presence of, representatives of:

(a) Non-governmental organisations responsible for human rights and efforts to combat racial discrimination, trade unions, concerned social and professional organisations, for example, associations of lawyers, doctors, journalists and eminent scientists;

(b) Trends in philosophical or religious thought;

(c) Universities and qualified experts;

(d) Parliament; and

(e) Governmental departments (if they are included, these representatives should participate in the deliberations only in an advisory capacity).

2. The national institution shall have an infrastructure which is suited to the smooth conduct of its activities, in particular, adequate funding. The purpose of this funding should be to enable it to have its own staff and premises, in order to be independent of the Government and not be subject to financial control which might affect its independence.

3. In order to ensure a stable mandate for the members of the institution, without which there can be no real independence, their appointment shall be effected by an official act which shall establish the specific duration of the mandate. This mandate may be renewable, provided that the pluralism of the institution’s membership is ensured.

Methods of Operation

Within the framework of its operation, the national institution shall:

(a) Freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by it without referral to a higher authority, on the proposal of its members or of any petitioner;

(b) Hear any person and obtain any information and/or any documents necessary for assessing situations falling within its competence;

(c) Address public opinion directly or through any press organ, particularly in order to publicise its opinions and recommendations;

(d) Meet on a regular basis and whenever necessary in the presence of all its members after they have been duly convened;

(e) Establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions;

(f) Maintain consultation with the other bodies, whether jurisdictions or otherwise, responsible for the promotion and protection of human rights (in particular, ombudsmen, mediators and similar institutions); and

(g) In view of the fundamental role played by non-governmental organizations in expanding the work of national institutions, develop relations with non-governmental organisations devoted to promoting and protecting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialised areas.

Additional Principles concerning the Status of Commissions with Quasi-Jurisdictional Competence

A national institution may be authorised to hear and consider complaints and petitions concerning individual situations. Cases may be brought before it by individuals, their representatives, third parties, non-governmental organisations, associations of trade unions or any other representative organisations. In such circumstances, and without prejudice to the principles stated above concerning the other powers of the commissions, the functions entrusted to them may be based on the following principles:

Seeking an amicable settlement through conciliation or, within the limits prescribed by the law, through binding decisions or, where necessary, on the basis of confidentiality;

Informing the party who filed the petition of his or her rights, in particular the remedies available to him or her, and promoting his or her access to them;

Hearing any complaints or petitions or transmitting them to any other competent authority within the limits prescribed by the law; and

Making recommendations to the competent authorities, especially by proposing amendments or reforms of the laws, regulations and administrative practices, especially if they have created the difficulties encountered by the persons filing the petitions in order to assert their rights.

[1 Commission on Human Rights resolution 1992/54 of 3 March 1992, annex: General Assembly resolution 48/134 of 20 December 1993, annex.]

National Human Rights Institutions Best Practice

Commonwealth Secretariat
Commonwealth Secretariat
Legal and Constitutional Affairs Division
Marlborough House
Pall Mall
London SW1Y 5HX
Telephone: +44 (0)20 7747 6416
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Web site: http//www.thecommonwealth.org
© Commonwealth Secretariat 2001
Best Practice for National Human Rights Institutions

Introduction: The Commonwealth Commitment to the Promotion and Protection of Human Rights

Commonwealth countries are committed to the principles outlined in the 1991 Harare Commonwealth Declaration. Drawing on the International Bill of Rights, Commonwealth Heads of Government have committed themselves and their countries to work with renewed vigour for the protection and promotion of the fundamental political values of the Commonwealth. These are:

_ democracy, democratic processes and institutions which reflect national circumstances, the rule of law and the independence of the judiciary, just and honest government; and

_ fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed, or political belief.

The commitments to the Harare Principles also include pledges to work in specific areas of special relevance which are reflected in the universal human rights instruments. These include:

_ equality for women;

_ provision of universal access to education;

_ promotion of sustainable development and alleviation of poverty;

_ extension of the benefits of development within a framework of respect for human rights;

_ protection of the environment; and

_ combating drug trafficking and abuse and communicable diseases.

The Harare Declaration reaffirms the Declaration of Commonwealth Principles agreed in Singapore in 1971. Accordingly, it reiterates:

_ belief in liberty under the law;

_ recognition that racial prejudice and intolerance is a dangerous sickness;
_ awareness that racial discrimination is an unmitigated evil;

_ opposition to all forms of racial oppression; and

_ commitment to the principles of human dignity and equality.

Commitment to the Commonwealth principles and the organisation’s fundamental political values is given firm expression when countries create national institutions to promote and protect the rights of citizens and others within their jurisdiction, in particular, those rights recognised as fundamental to development and well-being in democratic societies.

As recorded in the 1995 Millbrook Commonwealth Action Programme of the Harare Declaration, Commonwealth Heads of Government requested that the Commonwealth Secretariat work to provide advice, training and other forms of technical assistance to governments in promoting the Commonwealth’s fundamental political values, including assistance in creating and building the
capacity of requisite institutions. National Human Rights Institutions (NHRIs) fall clearly within this remit.

National Human Rights Institutions as an Integral Part of a Democratic Society

When governments ratify or accede to an international human rights instrument, they either incorporate its provisions directly into their domestic legislation or undertake to comply in other ways with the obligations contained in the instrument. Often, however, the existence of a law that protects certain rights is not enough if that law does not also provide all the legal powers and institutions necessary to ensure the effective realisation of those rights. It is therefore important for a state committed to human rights to establish a national infrastructure, including relevant institutions, which can promote and protect human rights.

The 1993 World Conference on Human Rights (the World Conference) encouraged the establishment and strengthening of NHRIs, while recognising both the rationale and requirements of the Paris Principles1 and that each state chooses the framework which best suits its particular needs. The World Conference also reaffirmed the importance of the role played by NHRIs for the promotion and protection of human rights, in particular, in advising the competent authorities, in remedying human rights violations, in disseminating human rights information, and in educating the public about human rights.

Since the World Conference, NHRIs have become more prominent actors in the national, regional and international human rights arenas. They support the basic institutions of democracy which include a pluralist and accountable parliament, an executive which is ultimately subject to the authority of elected representatives and an independent judiciary.

NHRIs have the capacity to make a substantial contribution to the realisation of human rights by transforming the rhetoric of international instruments into reality. Their ability to understand national circumstances and local challenges often means that NHRIs are better placed than external evaluators to monitor the human rights performance of governments.

There are many ways in which NHRIs can effectively contribute to the development of pluralistic and healthy democracies. Their most important contributions arise from the exercise of powers to:

_ undertake investigations of alleged violations of rights;

_ provide advice to government on legislation, policies and programmes;

_ promote rights and educate the public;

_ conduct public inquiries; and

_ build bridges between government and civil society and between groups within civil society.

Their success depends on them being truly independent, qualified and diverse in their membership, adequately staffed and resourced, and accessible to the public.

National Human Rights Institutions in the Commonwealth

Many of the Commonwealth’s member countries are small island states with limited human and financial resources. Many others are least developed or developing countries. Indeed, over 90% of the countries of the Commonwealth are small and/or developing. However, differences in size and level of development does not preclude the ability to share common values as evidenced
by the near complete sharing of a system of law which facilitates the development of common standards of legal behaviour, common definitions of the relations between the courts and other national institutions and a common understanding of the importance of laws which are in harmony with fundamental rights and freedoms.

Throughout the Commonwealth NHRIs take many forms. Some deal only with human rights issues, often narrowly defined so as not to include the full range of issues covered by the international human rights instruments or the Harare Declaration. Others have wide mandates to address all issues covered in the international instruments. Some combine a number of functions relating to the international instruments with the traditional role of the Ombudsman who has oversight over operations in the public sector, others subsume an administrative law function, and yet others have few powers beyond those of a traditional Ombudsman. In other cases, the mandate is conferred as the result of domestic upheaval and reflects only the current preoccupations of a particular society. In many cases, the size and resource base of the country dictates the characteristics of NHRIs.

However, for whatever reason NHRIs are formed, the ideal is for each of them to have the capacity to deal with the protection and promotion of all rights recognised by international law as human rights.

Small and Developing Countries

In small and developing states or states with very limited resources, it may be more practicable to confer the mandates of both an NHRI and an Ombudsman upon a single institution. Where this is done it is important that the institution, whatever it may be called, has the charter and commensurate power to carry out the functions of an NHRI.

Each of the best practices outlined in this work is applicable to an NHRI in any country. Every effort has been made to include in the commentaries suggestions relevant to the particular challenges and constraints confronting small states.

Independence

Independence characterises all NHRIs designed to effectively monitor good governance and human rights in Commonwealth countries. NHRIs in many states operate alongside electoral and anti-corruption commissions and similar institutions. The requirement of independence is so fundamental that it is, therefore, a theme reflected throughout the booklet.

Evolving Changes

Recognition of the World Conference in 1993 that all human rights were universal, indivisible, interdependent and interrelated, has accompanied a rapidly growing recognition that human rights institutions at the national and international level must more effectively address and protect the rights of the most vulnerable in every society. NHRIs, therefore, should interpret their mandates creatively to address major challenges such as the AIDS pandemic and the marginalisation and discrimination of particularly vulnerable groups.

The 2000 Commonwealth Conference of National Human Rights Institutions

Meeting in Cambridge (UK) in July 2000, representatives from 41 Commonwealth countries and NHRIs recognised that NHRIs play a critical role in the entrenchment of the universality, interdependence, interrelatedness, and indivisibility of human rights and the maintenance of good governance.

The Cambridge Conference was convened to develop a consensus on progress based on the Paris Principles (Principles relating to the Status and Functioning of National Institutions for the Protection and Promotion of Human Rights), adopted by the United Nations General Assembly in 1993, and to encourage the move towards a new era of human rights thinking.

The Conference reaffirmed the Paris Principles. Delegates sought, in their deliberations, to build on those principles and to articulate detailed and updated standards for the creation and operation of NHRIs in member countries.

At the conclusion of the Conference, the Commonwealth Secretariat was asked to bring together an expert group, representative of the diversity of the Commonwealth, to identify best practice in the establishment and operation of NHRIs.

The Development of Best Practice for National Human Rights Institutions

In March 2001 an expert group was convened by the Secretariat to consider the establishment and operation of national human rights institutions.

Designed to represent all regions of the Commonwealth and to include developed and developing countries and large and small countries, the Group’s work was assisted by senior representatives of the Office of the United Nations High Commissioner for Human Rights and the Asia Pacific Forum of National Human Rights Institutions.

All aspects of the processes involved in creating, appointing and administering national bodies to promote and protect human rights were considered. The group was conscious of the human and financial resource constraints of many member countries and sought to address these constraints in the proposals it made. What remained at the forefront at all times was the need for NHRIs to be accepted by the public and to be in a position to form part of the daily lives of citizens of all Commonwealth countries.

The following people who gave freely of their time, expertise and extensive experience wrote this guide, which brings together the experience of NHRIs across the Commonwealth:

Justice Emile Short Chairman, Commission on Human Rights and Administrative Justice, Ghana
Professor Mohd. Hamdan Adnan Member, Human Rights Commission, Malaysia
Mrs Lawrence Laurent Secretary/Treasurer, Caribbean Ombudsman Association, St Lucia
Mr Chris Lawrence Commissioner, Human Rights Commission, New Zealand
Mrs Shirley Mabusela Deputy Chairperson, Human Rights Commission, South Africa
Mr Brian Burdekin Special Adviser on National Institutions to the United Nations High Commissioner for Human Rights, United Nations
Mr Kieren Fitzpatrick Director, Asia Pacific Forum of National Human Rights Institutions

They were assisted by officers of the Legal and Constitutional Affairs Division of the Commonwealth Secretariat.

Chapter I: Mode of Establishment

The process of establishing an NHRI is as important as the actual creation of the institution. The establishment process, whether initiated by government or by civil society, must be transparent and include all relevant actors. It is essential that all stakeholders “buy-in” to the establishment process if the NHRI is to have the trust and confidence of both government and the people.
It is important that a wide variety of participants be included in the establishment process. One successful method of including the various interested groups has been to form a steering committee to guide the establishment process, comprised of, for example, ministers, members of parliament, officials of government departments, members of major political parties, relevant government agencies, human rights non-governmental organisations (NGOs), judges and jurists, trade unions and professional groups, human rights experts and academics. Including a diverse group of representatives in the establishment process will marshal many different sectors of society and promote transparency. A designated government agency can assist the steering committee by arranging consultations and generating essential publicity about the intention to create an NHRI.

1.1 A National Project
● The process of establishing an NHRI should be seen, in itself, as critical to the success of the project.

● The establishment of an NHRI should be seen as a national project of the highest priority.
● The process should also:

▪ be consultative, inclusive and transparent;
▪ be led and supported at the highest level of government; and
▪ involve and mobilise all relevant elements of the State and civil society.

It is likely that including civil society will make the establishment process more lengthy, but consultations and input from members of the public are essential for attaining public legitimacy. It will be hard to build trust if government creates an NHRI in a climate of secrecy.

Public consultations can be very useful for creating an NHRI, particularly if
they address:

_ the national human rights situation;
_ the legal basis for the institution;
_ the mandate and powers of the institution;
_ measures to ensure independence, pluralism and adequate resources;
_ the structure, staffing and geographical location of the institution; and
_ the method of appointment of commissioners.
1.2 Legal Foundation

● The legal provisions which establish the NHRI and which guarantee its independence and funding should be entrenched in the constitution or clearly stipulated in the enabling legislation.

● The preferred method of establishing an NHRI is through incorporation in the constitution of a State.

● The less preferable, but acceptable, alternative is establishment by an act of parliament.

● Establishment other than by the constitution or an act of parliament, e.g. by a presidential decree, is undesirable.

The most certain way of preserving the independence of an NHRI is to incorporate its establishment and vested powers into the national constitution. The constitutions of most countries enshrine fundamental human rights. The constitutional establishment of an NHRI provides for the protection and promotion of those rights by creating a specialist body with a role parallel to and complementary to that played by courts.

Where the constitution of a country does not provide for the creation of a national human rights body and the process of constitutional amendment is rarely reverted to or so difficult as to be impractical, it is appropriate for the parliament to create an NHRI through statute. To guarantee the continued existence of an NHRI established by statute, the statute should have fixed provisions, amendable only by a special majority vote of the parliament, guaranteeing the existence and political, operational and financial independence of the national institution.

In some countries, NHRIs are created by an executive order such as a presidential decree. Executive orders are easily repealed or amended and thus afford no real guarantee for the continued existence or independence of an NHRI.

The establishment of an NHRI through executive order is, therefore, not an acceptable alternative.

Chapter II: Composition of National Institutions
2.1 Members and Staff
Members

● Members should have integrity, moral courage and competence, and be able to exercise sound judgment and fairness. They must also possess public credibility and be independent from executive influence. They should be sensitive to issues relating to gender, ethnicity, and the rights of indigenous peoples, people with disabilities and other vulnerable groups.

● NHRIs should consist of at least three leading members who should generally serve on a full-time basis.

● Members should be accorded a rank and salary comparable to that of senior judicial officers. If a sitting judicial officer is appointed to the NHRI, his or her tenure should not be affected.

● Once appointed, members must act independently and impartially of any person, authority or organisation. Members should avoid any conflict of interest and should one arise, declare it immediately.

● Members and the NHRI staff should have the power to determine how to allocate NHRI resources and, in general, should be accountable to the legislature for their budgetary decisions.

Staff of national institutions

● Members should have the autonomy to select and appoint the NHRI staff but may, in appropriate cases, consult with the public service commission.

● Staff should be suitably qualified and sensitive to the NHRI’s mandate.

● Staffing levels should be sufficient to adequately support the group
of members in discharging the full mandate of the NHRI.

Members of National Human Rights Institutions

There are two absolutely necessary features for an NHRI to function effectively: (i) high-quality members and staff; and (ii) independence. Individual members should possess the requisite expertise, integrity, experience and sensitivity to adequately protect and promote human rights.

NHRIs must be free to perform their mandates and functions without outside restraint or improper influence.

The quality of the appointed members and staff of an NHRI will determine its effectiveness. Members should be afforded the titles and remuneration necessary to attract quality candidates. In addition to the strong personal and professional qualifications of the individual members, successful NHRIs are characterised by the plurality of their composition. The Paris Principles stress the importance of ensuring wide representation of civil society groupings in the membership of NHRIs. The interests of representation and plurality are best promoted by multimember NHRIs. In those micro-states for which multi-member bodies may not be sustainable, a balance may be achieved by ensuring that the senior staff of the NHRI are appropriately representative of society.

Every effort should be made to decide issues of policy and NHRI priorities by consensus among members. When consensus among members is not feasible, a vote should be taken and the chairperson should cast the deciding vote when necessary.

Independence and the public perception of independence are essential to a wellfunctioning
NHRI. To enable members of NHRIs to undertake their duties as independent professionals they should be appointed to full-time positions. The salaries of members of NHRIs should be linked to, and, reviewed in line with the salaries of members of the judiciary.

● An NHRI should ensure that its employment processes promote professionalism and equal employment opportunities.

● An NHRI should have its own legal unit that is qualified to undertake the tasks needed to address effectively individual complaints.

Similarly, independence is promoted if members have the financial autonomy to direct the spending of NHRI resources. Members should be able to rely on a specific allocation from Parliament at a level sufficient to ensure an active and professional NHRI. Nothing in the enabling law or in rules relating to fiscal autonomy should inhibit the power of an NHRI to collaborate with NHRIs in other countries, whether individually or collectively, on a global or regional basis.
Similarly, nothing in the enabling law or in rules relating to fiscal autonomy should require the institution to act in accordance with the directives of the national government or any of its departments or agencies.
Staff

Most of an NHRI’s work is performed by its staff. Members must be granted the right to appoint their own staff and, in appropriate cases, may consult with the relevant statutory authority having responsibility for public sector staffing. The level of professional staffing of NHRIs should be adequate to support the work of the commissioners and to conduct the functions of the commission.
2.2 Appointment of Members of an NHRI
● The appointment process should be designed to secure the best possible members.
● The executive should not exclusively determine the selection of members of an NHRI. It should be a transparent process that also involves both the legislature and civil society.
● A transparent process of selection and appointment should be characterised by wide consultation and include a process for public nomination of candidates.
● Collectively, the members should reflect gender balance, the ethnic diversity of society and the range of vulnerable groups in their respective society.
● Appointees should possess the qualifications necessary to undertake the role and should meet the advertised selection criteria.

The appointment process provides a clear signal to the public about an institution’s independence. An appointment process that includes the legislature and the public is likely to be independent, and to be perceived as such.

Appointments made purely by the executive in a State have the potential to undermine efforts to establish an independent “watch-dog”. NHRI members need to be able to monitor impartially the actions of government. [An appointment process could, for example, involve the establishment of a special and fully representative parliamentary committee to handle the selection process. This process would include the following elements: ▪ public advertisement of vacancies; ▪ short-listing of candidates for interview; ▪ interview of short-listed candidates; ▪ the making of a recommendation to Parliament; and ▪ consideration by Parliament and vote (by simple majority) on the name or names to be recommended to the head of state or head of government for appointment].

The appointment process should be as transparent as possible with the involvement of various groups of society. Among the groups identified in the Paris Principles are human rights NGOs, professions, religious groups and educational institutions. In addition, the membership of institutions should reflect national ethnic diversity and a proper gender balance.
2.3 Terms of Appointment
Terms of appointment should include: duration of appointment, whether members can be re-appointed, who may dismiss members, for what reasons and in what manner, and privileges and immunities enjoyed.

● Commissioners should not be removed except for reasons specified in the enabling law. These reasons, and the method of removal, should parallel those applicable to members of the judiciary.

● Generally, it is preferable that members be appointed for a fixed term of at least five years. There should be the possibility of re-appointment for one additional term of the same length.

● A vacancy in the position of commissioner should be filled expeditiously.

An independent NHRI requires that members be protected from employment related reprisals for work performed in the line of duty. Members should be appointed on standardised terms that are publicly known. Members should serve a term long enough to permit them to hone their expertise and use that expertise for the benefit of the public. Also, it is preferable that when acting bona fide in the course of their official duty as established by law, members and staff of NHRIs should enjoy immunity from suit, subject only to laws relating to judicial review.

● Where the term of a commissioner expires and it is not immediately possible to appoint a new commissioner, the term of a serving commissioner should continue for such period, not exceeding 12 months, until a new appointment is made.
● It is desirable that there be continuity in the membership of NHRIs and, accordingly, it may be appropriate that the first commissioners appointed to a new NHRI be appointed for varying periods to ensure that not all Commissioners’ terms of office expire at the same time.

Chapter III: Mandate and Powers
3.1 Overview
● An NHRI should have a broad mandate covering the full range of human rights issues and recognising the universality, interdependence, interrelatedness, and indivisibility of human rights.

● “Human rights” should be defined not only by reference to domestic law, but also by reference to all international human rights instruments, whether or not acceded to by the relevant State.

● The mandate of an NHRI should, in addition to providing for the protection and promotion of human rights:

▪ cover both the private and the public sector; and
▪ cover the promotion of accession to international human rights instruments and the harmonisation of domestic law with international human rights instruments.

● The legislative base of NHRIs should confer a power to take such action as is necessary and convenient to enable the institution to discharge its mandate. The specific powers of NHRIs should be clearly and expressly prescribed in the legislation governing the institution and should include the power to:

▪ independently initiate investigations of individual and systemic human rights violations and other related issues;

▪ encourage and promote human rights through education;
▪ advise government and legislators on draft and existing legislation and submit recommendations to the Parliament to resolve human rights violations resulting from legislation, regulations or any other cause;

▪ work with and consult appropriate persons, governmental organisations, international organisations and NGOs;

▪ monitor government compliance with human rights treaty obligations and promote the ratification of human rights treaties;

NHRIs should possess the mandate and power to promote, protect and secure human rights. Broad mandates afford the possibility of greater rights protection and thus are preferable. This is especially relevant for those countries with constitutions that define rights or human rights so narrowly as to afford limited, if any protection against attempts by the government or other actors to impinge on the human rights of citizens. In order to ensure that the NHRI is an effective

▪ establish advisory committees to advise the NHRI in relation to the performance of its functions;

▪ submit recommendations to the Executive for the resolution of human rights violations relating to administrative action or inaction
or any other cause;

▪ provide remedies for human rights violations and when relevant, seek and facilitate the provision of remedies by the courts;

▪ conduct quasi-judicial hearings. These hearings should generally be held in public. However, an NHRI should have the power to determine that hearings be held in private in appropriate
circumstances;

▪ compel attendance of witnesses before it, order production of documents and secure access to locations;

▪ require co-operation from other government agencies and public actors;
▪ administer an oath or affirmation;
▪ inspect custodial facilities and places of detention;

▪ co-operate as appropriate with NHRIs in other countries, the UN and other relevant international organisations; and

▪ do all things that are necessary or convenient to be done in connection with the performance of its functions.

● Where in a particular country it is considered necessary and desirable that an NHRI should have search and seizure powers then these should only be exercised by obtaining a judicially approved warrant and implemented in co-operation with law enforcement authorities and credible protector of rights, the NHRI’s mandate should include jurisdiction over all categories of human rights and all public and private actors. An NHRI must have a general and unlimited power to inquire fully into any matter concerning human rights. Specifically, NHRIs should have the power to: hear and investigate individual complaints, raise awareness about human rights and promote human rights education, and provide advice to government officials and legislators regarding draft legislation and its compliance with the State’s human rights treaty obligations. In the exercise of these powers, the NHRI should ensure that it strategically strikes a balance in addressing both systemic human rights issues and the resolution of individual complaints. NHRIs must have the
power to provide effective remedies for violations of human rights. An appropriate exercise of the above powers includes the power to visit and inspect places such as detention centres, immigration camps, refugee camps, correctional institutions and prisons. A wide definition of the term “place of detention” is desirable to facilitate entry into, and, inspection of, any place where
a person can be detained against his or her will.
3.2 General Complaint Procedures
● All NHRIs should have the power to investigate alleged human rights violations on their own initiative. This power should be used actively to investigate human rights concerns of people who may have difficulty accessing the NHRI on their own.

● The complaint mechanism of an NHRI should be simple, accessible, inexpensive and expeditious. Where necessary for the protection of witnesses or victims, confidentiality should be guaranteed.

● The enabling legislation of an NHRI should specify the subject matter of admissible complaints. In general, this should include civil, political, economic, social and cultural rights and the rights of women, children, minorities, indigenous persons, the disabled, the aged, and other particularly vulnerable groups. The enabling legislation should also specify who is entitled to lodge a

An important power of an NHRI is its ability to protect the human rights of individuals by investigating violations and seeking remedies or redress for victims.

The efforts of NHRIs to provide advice, to promote adherence to standards and to educate are very important and should not be undervalued, but NHRIs must also demonstrate that there are effective mechanisms for protecting human rights that have been abridged or threatened.
complaint. The enabling legislation should specify that a representative of the complainant may file complaints.

● It must be possible to file complaints regarding governmental and non-governmental acts or omissions.

● NHRIs should develop methods to encourage complaints from groups particularly vulnerable to human rights violations.

● Procedures for submitting complaints, including the time period for laying complaints, should be published and disseminated widely. Complainants should be regularly informed of the status of their complaints.

● Complaints by illiterate people must be facilitated.
3.3 Investigation of Complaints
● Each NHRI should establish its own guidelines and rules of procedure for the investigation of complaints. Its procedures should reflect the principles of natural justice and procedural fairness.

● Investigations should accord the right of reply to the person or body whose acts or omissions are investigated.

● NHRIs should have the power to effectively address non-co-operation, obstruction, or victimisation in an investigation, e.g. a refusal to produce evidence.

NHRIs should develop fair and standardised procedures for investigating complaints. The rules and procedures of an NHRI should demonstrate that it will, in good faith, make efforts both to ascertain the truth and protect the rights of both complainants and respondents.

While some discretion on the part of NHRIs is necessary to protect victims, the practices should guarantee procedural fairness. For example, it is generally true that an NHRI should not consider complaints relating to incidents that took place more than one year before the complaint was lodged due to the difficulty of obtaining reliable evidence. However, an NHRI should have the discretion to accept complaints that fall outside this time period under well-defined circumstances.

The power to compel co-operation is essential to the fact-finding function of the NHRI. If an NHRI needs the judicial system to enforce co-operation, the effectiveness of NHRI investigations and hence the public perception of the NHRI, will be dependent upon the speed and independence of the judiciary.

● An NHRI should not be strictly bound by the rules of evidence, but its evidentiary requirements should reflect the principles of natural justice and procedural fairness.

● People compelled to give evidence should have the right against self-incrimination. In addition, professional privilege should be respected.
3.4 Promotion of Rights
● NHRIs should have the power to provide information, education, strategic advice and training on human rights issues including:

▪ training for government and other public officials about applicable norms and human rights standards. Specific training should be designed for members of the police, military forces, judiciary, legal profession and other members of society that have particular powers or responsibility relevant to human rights;

The powers possessed by NHRIs to educate victims and perpetrators of human rights abuses should be extensive and cover a broad range of activities. NHRIs should consider it their duty to educate the public about human rights and what mechanisms exist to protect them. Great care should be taken to target vulnerable groups because they are unlikely to be reached through traditional education campaigns.

NHRIs can change the culture of government and its employees, the judiciary and the legal profession, the security forces and those in positions of power through training. This training, which should be designed to impart the message that sensitivity to human rights issues is required for effective job performance, should form part of all personnel development programmes. NHRIs should work with trainers and educators to ensure that the importance of human rights is recognised in other training programmes.

▪ targeted education for vulnerable groups;
▪ building the capacity of human rights advocates and NGOs to perform their work;
▪ training NHRI staff to build the capacity of the NHRI to perform its work;
▪ public awareness campaigns; and
▪ developing and supporting human rights clubs – particularly in schools and other formal educational institutions.

● NHRIs should widely disseminate information on their complaints
process, the remedies available and the contact details of the NHRI.

● NHRIs should have the power to use mass media as appropriate and available to communicate with the public. For example, in developing countries, radio may be very effective. In other countries, toll-free phone systems and websites may be useful.

● NHRIs should collaborate with other public and private institutions to maximise the provision of human rights education.

The power of NHRIs to analyse legislation and make recommendations is important for the promotion of human rights for two reasons. The first is that it may lead to the codification of human rights principles into the laws of the land.

The second is that it raises the awareness of law-makers about international treaty obligations and human rights norms.

3.5 Review of Laws

● NHRIs should have the power to analyse all existing and proposed legislation and make recommendations regarding consistency with international human rights norms.

● Governments should consult with NHRIs on legislative proposals and introduce the practice of including a human rights impact assessment in the explanatory documents and second reading
speeches produced for all bills submitted to parliament.

3.6 Remedies

● An NHRI should have the power to use conciliation, mediation and other alternative dispute resolution mechanisms, when appropriate, to resolve complaints.

● NHRIs should be empowered to refer matters for prosecution.
● An NHRI should have the power to seek effective remedies including, where appropriate, through the courts.
● The respective statutes of limitations should not be so narrow as to limit the ability of NHRIs to examine allegations of abuse or maladministration.
● Legislation should not exclude agencies within the state apparatus from NHRI investigations.

NHRIs must be able to provide effective remedies for violations of human rights. The means that are available to NHRIs to resolve complaints will affect both public perception and the ability of an NHRI to successfully foster a culture of respect for human rights. Human rights breaches may be resolved in various ways ranging from alternative dispute resolution to action in the courts. The power to conciliate and mediate between disputants is important as a means of resolving complaints expeditiously. Delays in the provision of remedies will diminish public confidence in the NHRI and deter victims from looking to the NHRI for redress. NHRI decisions should, where appropriate, be enforceable through the courts. In addition, complainants should have access to the courts should they be dissatisfied with the findings of an NHRI.

Perhaps not always seen as a remedy but of major importance in the armoury of an NHRI is work aimed at prevention of abuses. It is therefore important that national human rights institutions should have powers to issue guidelines to encourage the protection of human rights.

Chapter IV: Accountability and Relationships with Other Institutions

4.1 Accountability to the Public

● An NHRI should actively evaluate the effectiveness of its activities, including through the engagement of independent consultants, and it should incorporate the results of such evaluations in its annual reports.

● Evaluations should examine the quality of the NHRI’s programmes and the extent to which existing programmes sufficiently address the human rights issues in the country. The evaluations should include both qualitative and quantitative analysis.

● NHRIs should undertake an annual strategic planning exercise to establish programmatic targets and goals. Some targets and goals should be measurable, for example, number of complaints resolved, number of detention centres visited, etc. The strategic plan should
be included in the annual report.

NHRIs exist to serve the public, and accordingly, the public should have a mechanism for assessing how effectively an NHRI is performing its mandate.

Public assessment requires that NHRIs evaluate their own programmes regularly and include the results of such evaluations in their annual reports. The evaluations undertaken by NHRIs should analyse all of their functions, including the resolution of complaints, the prevention of human rights abuses, as well as the promotional and educational aspects of their work.

NHRIs should report to their respective parliaments because parliaments are the most important venues for the interests of the public to be aired and discussed.

As annual reports can serve the function of an audit of the performance of both the government and the NHRI in promoting human rights, there should be an established method of ensuring that parliament has a real opportunity to debate the annual report findings. Once a report has been presented to parliament, it should be released to the public and the media for further consideration. It is equally important that the parliament debate the budget of the NHRI in order to ensure input from various constituencies regarding the level of resources appropriated for the NHRI Relations with Parliament

● NHRIs should report to parliament. Parliaments should have an opportunity to discuss the reports of the NHRI and to debate its budget proposals. The use of parliamentary committees to provide an opportunity for in-depth consideration of such reports should be encouraged.

● The annual report of the NHRI should be provided to the Minister responsible for Human Rights and tabled in parliament in a timely manner.

4.3 Relations with the Executive

● The executive has the responsibility to ensure that NHRIs are adequately resourced and that all agencies of the executive respect the independence of the NHRI.
● NHRIs should provide copies of their annual and other reports to the Minister responsible for Human Rights.

● The executive arm of government should respond in a timely manner to recommendations made by the NHRI.

● The executive should facilitate efforts of the NHRI to build contacts with other national institutions, NHRIs, and multilateral and regional bodies.

Ministers and government officials should consider supporting the activities and endeavours of NHRIs to be an essential part of their duties. They should use their offices to increase the opportunities of the NHRI to build relationships with other relevant institutions.

4.4 Relations with the Courts

● NHRIs should play a role complementary to that of the courts.

● There should be an expressly established mechanism for the enforcement of appropriate NHRI decisions by the courts.

● Individuals should be able to access the court system directly to seek a remedy for a human rights violation and should not be required to first file a complaint with the NHRI.

● NHRIs should be more accessible and offer a more cost-effective and
less formal means of conflict resolution than the courts.

● NHRI staff and members should try to establish a co-operative working relationship with the courts.

● NHRIs should refer matters for prosecution before the courts when appropriate.

● NHRIs should not commence investigations into matters already pending before the courts unless required as part of the duty of NHRIs to investigate systemic issues relating to equal protection under the law and access to justice.

● Courts should permit NHRIs to provide assistance to individuals seeking to redress grievances through the courts.

● NHRIs should be accorded standing to bring complaints to court in their own right.
● Courts should accord NHRIs official status as a friend of the court.
● Courts should grant to NHRIs the rights to join as a party in relevant cases.
● The decisions of NHRIs should be subject to judicial review.

In order to discharge their investigative functions, NHRIs enjoy certain quasijudicial powers. This does not mean, however, that NHRIs share all powers enjoyed by the courts. For example, the power to make judicially binding determinations or to impose penalties for violations is generally reserved to the courts. The distinction between the courts, which exercise the judicial power of the state, and NHRIs, which are obliged to monitor and protect human rights, should be maintained. While NHRIs are not courts, it is nevertheless critical that there be appropriate sanctions for failure to co-operate with the NHRI in the conduct of its investigations and inquiries. Accordingly, a mechanism for the enforcement of NHRI decisions by the courts should be provided.

4.5 Relations with the International Treaty Machinery

● NHRIs should co-operate with the efforts of international treaty bodies to monitor states’ compliance with their international human rights treaty obligations.

● NHRIs should make recommendations to the executive and the parliament regarding efforts needed to achieve compliance with international human rights treaty obligations.

● NHRIs should contribute as appropriate to the preparation of state reports regarding state responses to the recommendations of treaty bodies.

One essential function performed by NHRIs is to monitor state compliance with international treaties. A co-operative relationship with the international treaty machinery will facilitate efforts to perform this function.

National reports provided pursuant to human rights treaties should be prepared by the executive and should take into account the comments made by the NHRI.

Chapter V: Accessibility

● NHRIs must proactively reach out to vulnerable and disadvantaged persons. Unconventional channels of communication should be used as needed to ensure that all groups in society are reached.

● NHRIs should be geographically and physically accessible by constituents, including people with disabilities.

● States should provide adequate resources to ensure that the services of an NHRI are widely accessible, including through processes such as decentralised field offices or other appropriate mechanisms.

● An NHRI should, where appropriate, form alliances with NGOs to enhance its accessibility and effectiveness.

● NHRIs should carefully monitor and supervise local offices or ‘out-post’
representatives to ensure that high-quality services are provided.

● NHRIs should aim to provide, as far as practicable, information and documentation not only in the dominant language spoken in the country, but in other relevant languages.

● An NHRI should ensure that complaints can be accepted in any language.

● The offices of an NHRI should, wherever possible, be located away from other government and military offices.

An NHRI must be readily accessible to its clients - those individuals and groups whose rights it has been established to promote and protect. In this respect, it is essential to recognise that many of the most important clients – those who are most in need of help – will often be difficult to reach through standard channels of communication. It is important that the location of offices does not deter clients from filing complaints. Hence, offices should be physically accessible by
clients, including clients with disabilities and those reliant on public transportation. To protect complainants from retaliation and dispel the impression that an NHRI is simply an organ of government, NHRIs should not be located in close proximity to other government offices.

Chapter VI: Significant Issues

Role of NHRIS in Conflict Situatr and Civil Strife)
● NHRIs should continue to work in conflict situations to protect and promote human rights and the peace process.
● An NHRI should do whatever lies within its powers to assist particularly vulnerable groups.
● An NHRI should work with other organisations, i.e. the UNHCR, NGOs and other relief organisations, to address the needs of refugees and internally displaced persons.
● An NHRI should assist in the implementation of the UN Guidelines on Internally Displaced Persons.

Economic, Social and Cultural Rights

● An NHRI should employ all available means to respond to inquiries related to the advancement of economic, social and cultural rights, whether or not its enabling statute or national constitution recognize economic, social and cultural rights as justiciable.

● An NHRI should advise the government on the development and implementation of economic policies to ensure that the economic, social and cultural rights of people are not adversely affected by In a time of a war or civil strife, the functions performed by NHRIs become even
more necessary. NHRIs find it extremely difficult to protect human rights in conflict situations and thus should work in co-operation with other actors, for example, NGOs and other relief organisations, to fortify their position as a protector of human rights.

Regardless of a country’s formal recognition of economic, social and cultural rights, NHRIs should be well versed with those rights. NHRIs should develop and conduct educational programmes to promote rights awareness in this catergory of rights. Economic policies, e.g. structural adjustment programmes and other aspects of economic management.

● An NHRI should work towards facilitating public awareness of government policies relating to economic, social and cultural rights and encourage the involvement of various sectors of society in the formulation, implementation and review of relevant policies.

6.3 Racism

● NHRIs should work in conjunction with the education sector to promote respect and understanding of racial, ethnic and cultural diversity among all groups in society, including schoolchildren.

● NHRIs should monitor and report the number of complaints filed against the military, the police and other government agencies for acts of racism.

● NHRIs should recommend appropriate training for government agencies that may be under-performing in this area.

● An NHRI should promote legislation to appropriately deter and punish criminal activities motivated by racism, xenophobia and other forms of related intolerance.

An NHRI should accord a high priority to addressing and preventing racism, xenophobia, and other forms of related intolerance by all available means.

NHRIs, should, in the execution of their mandate, conduct the necessary education and training to prevent and eradicate the manifestation of intolerance.

An NHRI should recognise the importance of a clean and sustainable environment to the right to life, health and sustainable development. This recognition requires that NHRIs be mindful of situations in which environmental degradation is the functional equivalent of human rights abuses.

Environment

● NHRIs should investigate, monitor and report instances in which human rights violations and environmental degradation appear to be related.

● NHRIs should work in collaboration with NGOs and other relief organisations to mitigate the human rights consequences of environmental degradation.

6.5 Migrant Workers and Refugee Claimants

● NHRIs should monitor a country’s compliance with treaty obligations related to migrant workers and refugees.

● NHRI procedures should not require that a complainant have a permanent address.
Best practice requires that NHRIs endeavour to ensure that migrant workers and refugees be accorded due process and be treated with dignity, despite their potentially transient status. NHRIs should actively build their capacity to provide for the needs of such transient individuals.

An NHRI should recognise the experiences of indigenous peoples and work to prevent their social, political and economic marginalisation. This can be accomplished by ensuring that indigenous persons feel comfortable filing complaints with NHRIs, that NHRI staff are adequately trained to address the needs of indigenous persons, and that a component of the NHRI’s overall performance of these two tasks be the subject of the evaluation included in its annual report.

6.6 Indigenous Peoples

● NHRIs should develop and execute special outreach programmes directed towards indigenous peoples.

● Where appropriate, NHRI staff should include indigenous persons.

● NHRI staff should be specially trained to respond to the specific issues faced by indigenous peoples.

● NHRIs should include specific questions related to the provision of services to indigenous peoples as part of their evaluation efforts.
.7 Sex and Gender
● NHRIs should assume special responsibility in responding to human rights violations suffered on account of sex or gender.

● NHRI staff should be properly trained so as to respond sensitively to human rights issues or violations related to sex or gender.

● NHRI staff should refer complainants to other human services agencies as necessary for assistance or treatment.

NHRIs must be prepared to address human rights violations committed because of a victim’s gender or sex. As some violations will not be remedied solely through the complaints process, NHRI staff should refer complainants to those agencies which can provide the required services.

NHRIs should undertake their mandates with the skills and sensitivity required to appropriately address the special needs of children. When a child is a complainant or has had a complaint filed on his or her behalf, staff should conduct their investigation in an age-appropriate manner. Remedies should be similarly age-appropriate.

6.8 Youth

● The staff of NHRIs should include specialists in service provision to children and adolescents.

● NHRIs should regularly collect and publicise information relating to the number of complainants, types of complaints and results.

● NHRIs should ensure that their services are accessible by children and young people in rural and remote areas.

● NHRIs should specifically direct age-appropriate information toward
young people.

● If communication with a child is necessary, that communication should be in person when possible. Children should be allowed to have a support person of their choice whenever interviewed or requested to produce evidence by NHRI members or staff.

● NHRIs should not compromise a child’s anonymity or safety.
● NHRI staff should refer children that come before it to other human services agencies as necessary for assistance or treatment.

NHRIs must have the capacity to serve persons with special needs. This includes making the physical premises accessible to all. It is appropriate to reasonably adapt procedures and processes to accommodate a person with special needs, provided that this accommodation does not impose an unjustifiable hardship on other parties involved.

6.9 Persons with Special Needs

● NHRIs should ensure that they are accessible to people with special needs, such as people with disabilities (including HIV+ or other conditions). Accessibility relates not only to the physical premises of an NHRI, but also to the services it provides.

● NHRIs should be equipped to communicate adequately with persons
with special needs.

Chapter VII: Factors which Affect the Operation of National Human Rights Institutions

● NHRIs should provide technical training and expertise to help build the capacity of other democratic institutions.

● NHRIs should work with other democratic institutions and bodies to conduct continuing human rights education campaigns.

● NHRIs should proactively and reactively respond to new challenges as and when they arise, e.g. the human rights implications of the AIDS pandemic, scientific and technological advances and privacy considerations.

NHRIs thrive best in an environment where other national democratic institutions are robust and there is a high degree of human rights literacy. NHRIs are most effective when the nation’s democratic institutions operate with a clear understanding of their own roles and functions, when the nation’s institutions understand the roles and functions of other democratic national institutions and when the public can command and demand respect for human rights.
The roles of NHRIs will need to evolve as the nature of human rights challenges evolves. New problems will emerge and old challenges will require fresh approaches. This booklet outlines many of the features that will ensure that NHRIs can meet these challenges and are best equipped to protect effectively human rights in view of the challenges ahead.