“In accordance with article 3 of the Law, the Ombudsperson enjoys functional immunity. However, the SCA notes that neither the Deputy Ombudsperson nor the staff of the DPRP enjoy such protection.

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

– public confidence in the NHRI.

It is acknowledged that no office holder should be beyond the reach of the law and, thus, in certain exceptional circumstances, it may be necessary to lift immunity. However, the decision 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 national law provide for well-defined circumstances in which the functional immunity of the decision-making body may be lifted in accordance with fair and transparent procedures.

The SCA encourages the DPRP to advocate for amendments to its Law to protect the Deputy Ombudsperson and members of the DPRP staff from legal liability for actions that are undertaken in their official capacity in good faith.”