While Section 4(4) of the Law provides for the criminal procedural immunity of the Ombudsman, the Law does not provide explicit protection from civil liability for the Ombudsman for actions and decisions undertaken in good faith in their official capacity.

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, members of an NHRI should be protected from legal liability for acts undertaken in good faith in their official capacity. Such a 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 the senior leadership; and

– public confidence in the NHRI.

The SCA recognizes that no office holder should be beyond the reach of the law and thus, in certain circumstances, such as corruption, it may be necessary to lift immunity. However, the authority to do so should be exercised by an appropriately constituted body such as the superior court or by a special majority of parliament. It is recommended that the law clearly establishes the grounds, and a clear and transparent process, by which the functional immunity of the decision-making body may be lifted.

The SCA continues to encourage the Ombudsman to advocate for the inclusion in its founding legislation of express provisions that clearly establish the functional immunity of the Ombudsman for actions taken in his or her official capacity in good faith.

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’.