“Article 211 of the Constitution provides that the Commissioner shall not be subject to penal liability nor deprived of liberty without the earlier consent of Parliament. In 2012, the SCA noted that the officers, including Deputy Commissioners, and staff of the CHRP do not enjoy similar protections.
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, NHRI legislation or applicable national law should include provisions to protect members from legal liability for acts undertaken in good faith in their official capacity. Such provisions 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 senior leadership; and
– public confidence in the NHRI.
The SCA also acknowledges that no office holder should be beyond the reach of the law and that 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 the superior court or by a special majority of parliament. It is recommended that national law provide 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 encourages the CHRP to advocate for amendments to its enabling legislation to protect the Deputy Commissioners and staff members of the CHRP from legal liability for actions undertaken by them in good faith in their official capacity.”