“As noted above, the former Defensor was removed by the National Assembly on 9 October 2019 following allegations of sexual abuse and workplace harassment. This decision was based on Resolution 77 of 7 October 2019, by which the National Assembly adopted a special procedure for the Defensor, citing Article 11-B of the DPP’s enabling law, which provides that the Defensor can be removed for “negligence in fulfilling their duty in office” by a 2/3 majority vote of the National Assembly.
The SCA notes that the IACHR1 expressed concerns regarding the dismissal and called upon the State to ensure that the dismissal process was conducted in a manner that ensured the ongoing independence of the DPP and was undertaken in conformity with the law and due process rights.
The DPP was asked to respond to these concerns. The DPP reported that the removal of the former Defensor was undertaken by the National Assembly in accordance with its procedure.
Prior to the removal of the former Defensor, a new Deputy Defensor was appointed. Upon the removal of the former Defensor, the Deputy Defensor became the Acting Defensor in accordance with the provisions of the DPP’s enabling law.
The SCA notes that the IACHR indicated that it had received information from several civil society organizations about the political affiliation of the Deputy Defensor and about political pressure applied during this selection process.
The DPP was asked to respond to these concerns. The DPP reported that the Deputy Defensor was designated by the former Defensor to become the Acting Defensor. It further reported that it has seen no evidence of political pressure having been applied in the selection process.
The DPP was asked to respond to the concern that the multiple changes of Defensor in a short period of time may impact on its ability to set priorities and effectively discharge its mandate. The DPP reported that these changes have had no effect on its operations.
In view of the available information before it, the SCA is unable to conclude that the removal of the former Defensor, and the appointment of the Deputy Defensor who subsequently became the Acting Defensor, were conducted in such a manner as to ensure the actual and perceived independence of the DPP.
Further, it is of the view that the multiple changes in the Defensor in a short period of time has an actual or perceived impact on the permanency of the DPP, and restricts its ability to effectively carry out the full breath of its mandate.
Accordingly, it is not clear that the DPP continues to operate in manner consistent with the requirements of the Paris Principles.
The SCA is of the view that, in order to address the Paris Principles requirements for a stable mandate, which is important in reinforcing independence, the enabling legislation of an NHRI must contain an independent and objective dismissal process, similar to that accorded to members of other independent State agencies. The dismissal must be made in strict conformity with all the substantive and procedural requirements as prescribed by law. The grounds for dismissal must be clearly defined and appropriately confined to only those actions which impact adversely on the capacity of the member to fulfil their mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. Dismissal should not be allowed based solely on the discretion of appointing authorities.
Such requirements ensure the security of tenure of the members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI.”