“Royal Decree No. (57/2022) and the Internal Regulations of the OHRC do not provide protection from criminal or civil liability for official actions undertaken in good faith for Commissioners and staff. The OHRC indicates that Article 191 of the Penal Code provides some limited protection for all public authorities and that Article 2 of the Internal Regulations provides a basis in which the OHRC can operate without interference.

However, the OHRC acknowledges the gap in the law regarding protection from criminal or civil liability and that advocacy efforts are ongoing to ensure the OHRC receives similar immunity provided to other official authorities. The SCA considers that the members and staff of the OHRC do not enjoy such protection.

The SCA notes that external parties may seek to influence the independent operation of a NHRI by initiating, or by threatening to initiate, legal proceedings against a member.

For this reason, an NHRI enabling legislation should include provisions to protect members 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 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.

The SCA reiterates its previous recommendations of November 2013 strongly recommending that provisions be included in national law to protect legal liability of members of the OHRC decision-making body for the actions undertaken and decisions made in good faith in their official capacity.

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