Developing the legal framework

Once the Government decides which type of NHRI it wishes to set up (see chap. II), the technical groundwork must be laid for the enabling legislation. The enabling law must be grounded in the constitution or in legislation or both (see chap. III).

Scope of mandate

As noted in chapters II and III, effective NHRIs generally have a broad and non-restrictive mandate, which covers civil, cultural, economic, political and social rights. Their pro-grammes should focus on issues that are relevant to the country and that are seen as important to the public, as well as to civil society, the Government and public bodies.

At a minimum, NHRIs should be vested with competence to both protect and promote human rights. A simple statement to this effect is appropriate in the early sections of enabling legislation. A broad statement to the effect that the NHRI is entitled to look into, investigate or comment on any human rights situation, without any form or prior approval or impediment, is also desirable, to ensure independence and autonomy.

Reference to applicable international instruments is also desirable.

Applying only to the public sector or more broadly? Human rights laws typically apply to the Government at a minimum, including all departments and administrative branches of the State, law enforcement bodies, the army, correctional and detention facilities, local government administration, government committees and agencies. It usually extends to State-owned and to Government-controlled companies, too.

other entities in other sectors, for example, corporations, partnerships or persons with authority over employment, housing and other sectors.

Non-State actors also have human rights responsibilities, and a State’s international ob-ligations extend to ensuring human rights are respected by non-State actors, too. The Paris Principles are consistent with a broader application of the NHRI mandate to both the private sector and the public sector.

There should be no unnecessary duplication. For example, if there is an independent electoral commission with the authority to receive and deal with complaints relating to the right to participate in elections or the conduct of elections, there is no need to give the NHRI the same authority, although nothing should preclude independent decisions to review human rights abuses by any other institution. That said, NHRIs should cooper-ate with and support the functions of other institutions that are also concerned with human rights, directly or indirectly.

A broad mandate should be planned to correspond with the financial capacity and the human resources. Even if the institution is to be mainly or entirely funded through donor assistance at the outset, at some point international donors, such as the United Nations, will require an exit strategy and the NHRI will have to be funded through the State budget. If a small budget is planned with few people and no author-ity to investigate complaints (an activauthor-ity that generally requires several staff), then a full mandate is not likely to be properly carried out.

6. Funding

The basic requirements for funding are addressed in chapter III. In short, basic infrastruc-ture and staff costs are foreseeable and can be planned for at this stage. It is important to ensure that there are funds earmarked for programme spending beyond fixed operat-ing expenses, since planned activities will be developed only at the time of the strategic planning in the establishment phase. While the specific activities are not yet known, a draft budget envelope can be developed based on consultations with regional NHRIs and other associations with NHRI expertise.

In its general observations, the Sub-Committee has noted that funding from external sources, such as development partners, should not compose the core funding of the NHRI as it is the State’s responsibility to ensure a minimum activity budget so that the NHRI can operate and work towards fulfilling its mandate. In this regard, NHRI salaries in particular are a State responsibility and supplements from donors would, in any case, end once the project ends.

There is a view that, in some circumstances, such supplements are necessary for the institution to attract and retain high-calibre members and staff at the outset and buy time during which more suitable, long-term corrections to the institution’s budget can be made either legislatively or administratively.

b. e

The establishment phase covers the period immediately after the institution is estab-lished in law, when support will focus on structural issues, institutional development and the beginning of operations.

– Key infrastructure (premises, transport, telecommunications, information technol-ogy, etc.)

– Organizational development (leadership, organizational structure, strategic plan-ning, human resources and knowledge management)

– Financial resources (Government support, donor cooperation, financial constraints and financial management)

– Human rights capacity in substantive and thematic areas (including the rights of vulnerable persons, core protection, human rights-based approaches to develop-ment, transitional justice, and human rights and business)

– Functional areas of capacity (protection, promotion, cooperation with stakehold-ers, international liaison, advice to Government).

1. Premises

The Government is responsible for ensuring the NHRI has suitable premises. Even in countries experiencing severe financial limitations, the Government should provide ei-ther office premises or land for suitable premises.⁷⁴ Ideally, an institution will own its premises (although many do rent).

To ensure independence as set out in the Paris Principles, NHRI premises should be:

– Located away from government buildings;⁷⁵

– Accessible: easy to get to and into and centrally located;

– Close to public transport;

– Accessible to persons with disabilities.

The location should not be on property that casts doubt on the credibility of the institu-tion or its office holders, especially if the costs are high and it is perceived as elitist and out of touch with social realities.

2. Transport

National human rights institutions must be mobile and should be able to go out to com-munities to deliver programming effectively, for instance for public education, monitor-ing or complaint investigations.

74 For example, see the Sub-Committee on Accreditation’s comments in October 2008, with reference to the application from Afghanistan, on the importance of the Commission having its own premises and being independent of the Government, available from www.nhri.net.

75 NHRI premises should be easily distinguished from those of the Government. In particular, efforts should be made to avoid co-locating with government agencies that might have a “chilling” effect on complainants. These would include the police or ministries for the interior. Instead, NHRIs might co-locate with other independent agencies, such as the auditor-general, ombudsperson,

anti-3. Telecommunications

Telecommunications are central to programme delivery and must be part of a general project of technical support. Along with information technology (IT) requirements, tele-communications needs should be set out in a needs assessment. As IT and telecom-munications technologies converge, integrated planning for both systems is increasingly the standard. While office needs assessments tend to be standard in the public service, there are some NHRI-specific issues that merit attention.

Telephone and fax services: although e-mail is widely used, inexpensive and quick, e-mail attachments are not secure (unless they go through a secure server) and can be intercepted. This will be a particular concern for documents containing sensitive infor-mation about human rights investigations and cases. This means that the fax is still a relevant technology.

Mobile phone: the use of mobile technology is widespread and officials and officers who travel in the field must have mobile phones.