Article 21 of the CNDH enabling law provides for incompatibility rules that prevent the Executive Bureau members from holding any other paid public or private employment.

However, there are no provisions in the enabling law that provide further guidance on the process by which a determination would be made on the existence of a conflict of interest, nor for functional immunity to staff members.

In the absence of legal provisions to protect members and staff from legal liability, external parties may seek to influence the independent operation of an NHRI by initiating, or by threatening to initiate, legal proceedings against a member or staff.

The SCA is of the view that avoidance of conflicts of interest protects the reputation and the real and perceived independence of NHRIs.

While acknowledging that no office holder should be beyond the reach of the law and thus, in certain circumstances it may be necessary to lift immunity. Nevertheless, provisions on functional immunity in criminal and civil proceedings for all members and staff are crucial to promote 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 reiterates its 2020 recommendation on conflict of interest and continues to encourage the CNDH to advocate for the inclusion of clear provisions in its enabling legislation, regulations or binding administrative guidelines that protect against real or perceived conflicts of interest. The SCA also encourages the CNDH to advocate for the inclusion in its founding legislation of express provisions that clearly establish the functional immunity of the Council’s members and staff for actions taken in their official capacity in good faith.

The SCA refers to Paris Principles B.2 and 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’.