“Section 7(2) of the enabling Law provides that a Commissioner may be removed from office for ‘inability to perform the functions of their office, whether arising from infirmity of body or mind, incompetence or for misbehaviour’. The enabling Law does not define these terms, and is silent on the process for dismissal. This was raised as an issue of concern during the SCA’s November 2016 review of the HRCZ.
The SCA is of the view that, in order to address the Paris Principles requirement for a stable mandate, which is important in reinforcing independence, the enabling legislation of an NHRI must contain an independent and objective dismissal process, similar to that accorded to members of other independent State agencies. Such requirements ensure the security of tenure of the members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI.
The grounds for dismissal must be clearly defined and appropriately confined to only those actions which impact on the capacity of the members to fulfil their mandate. Where appropriate, the legislation should specify that the application of a particular ground must be supported by a decision of an independent body with appropriate jurisdiction. Dismissal should not be allowed solely on the discretion of the appointing authorities.
The SCA notes that section 7 of the Amendment Bill provides that the HRCZ membership may be terminated by the President on several grounds, including a finding of gross misconduct following an investigation. The SCA is of the view that these amendments, if passed in their present form, would address the previously stated concerns. The SCA therefore encourages the HRCZ to continue to advocate for the passage of the amendments.”