“The CHRP’s current legal mandate is silent on whether and how members and staff enjoy functional immunity for actions taken in their official capacity in good faith. 

The SCA emphasizes that national law should include provisions to protect members of an NHRI from legal liability for acts undertaken in good faith in their official capacity. Such provisions promote: 

– 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. 

The SCA acknowledges 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 a superior court or by a special majority of parliament. It is recommended that national law provides 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 notes that Section 32 of the proposed CHR Charter provides for the functional immunity of the members and staff of the CHRP. The SCA is of the view that the provisions of the proposed charter on functional immunity, if passed in their present form, would address the previously stated concerns. 

Therefore, it recommends that the CHRP continues to advocate for the passage of the above provisions in the proposed CHR Charter. 

The SCA refers to Paris Principle B.3 and to its General Observation 2.3 on ‘Protection from criminal and civil liability for official actions and decisions undertaken in good faith.’”