“In accordance with Articles 216 of the Constitution and 10 of the Law, the Defensor enjoys functional immunity. However, the SCA notes that neither the Vice-Defensor nor the staff of the DPE enjoy such protection.

External parties may seek to influence the independent operation of a NHRI by initiating, or by threatening to initiate, legal proceedings against a member. For this reason, NHRI legislation should include provisions to protect members from legal liability for acts undertaken in good faith in their official capacity. Such a provision promotes:

  • security of tenure;
  • the NHRI’s ability to engage in critical analysis and commentary on human rights issues, free from interference;
  • the independence of the senior leadership; and
  • public confidence in the NHRI.

The SCA recognizes that no office holder should be beyond the reach of the law and thus, in certain circumstances, such as corruption, it may be necessary to lift immunity. However, the authority to do so should not be exercised by an individual, but rather by an appropriately constituted body such as the superior court or by a special majority of parliament. It is recommended that the Law clearly establish the grounds, and a clear and transparent process, by which the functional immunity of the decision-making body may be lifted.

The SCA encourages the DPE to advocate for amendments to the Law to provide functional immunity for other members of the DPE decision-making body and staff.”