“The Law is silent on whether and how members are protected from criminal and civil liability for official actions and decisions taken in their official capacity in good faith.
External parties may seek to influence the independent operation of an NHRI by initiating, or by threatening to initiate, legal proceedings against a member of the decision making body or a staff member of the NHRI. For this reason, members and staff of an NHRI should be protected from both criminal and civil liability for acts undertaken in good faith in their official capacity. Such protections serve to enhance the NHRI’s ability to engage in critical analysis and commentary on human rights issues, safeguard the independence of senior leadership, and promote public confidence in the NHRI.
While the SCA considers it preferable for these protections to be explicitly entrenched in NHRI legislation or another applicable law of general application, it acknowledges that such protection may also exist by virtue of the specific legal context in which the NHRI operates. In such exceptional circumstances, the NHRI under review should provide sufficient information to explain why this is the case given its particular national context. This information will be reviewed in line with other guarantees provided at the national level to ensure independence, security of tenure, and the ability to engage in critical analysis on human rights issues.
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 these protections. 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 these protections may be lifted in accordance with fair and transparent procedures.
The SCA acknowledges that the NCHR is of the view that Article 2.14 of the Constitution, which guarantees the independence of the NCHR, is sufficient to provide functional immunity. However, the SCA is of the view that it would be preferable for such protections to be explicitly enshrined in the law. It therefore encourages the NCHR to advocate for amendments to its enabling law to explicitly provide protections from civil and criminal liability for official actions undertaken in good faith.”