Revised Draft of INCHR Act: An Explanatory Memorandum

Dr Bipin Adhikari

(Presented in the forum of Independent National Commission for Human Rights INCHR on 8 November 2004 in Monrovia, Liberia)

On 19 August 2004, the United Nations Mission in Liberia (UNMIL) received the Act establishing the Independent National Commission on Human Rights (hereafter "the draft Act") drafted by the National Transitional Government of Liberia (NTGL) with a request to provide comments for its further refinement.

The Independent National Human Rights Commission (INCHR) is established under Article 12 of the Comprehensive Peace Agreement, and the NTGL should be commended for the speed with which it has prepared this draft. This explanatory memorandum not only analyses the features of the NTGL draft, but also comments on the improvements that the UNMIL considers important, including justification for the change.

Fundamentals of the Draft Act
The Government draft tries to capture many important features of a good national institution – its mandate trying to guarantee the type of independence, composition, and adjunct powers that are clearly explicated in the Paris Principles of 1993 concerning the status, powers and functioning of national human rights institutions. They show the willingness to create a national human rights institution of an acceptable standard. 
Powers of the INCHR

Article III states the powers of the Commission including the power to investigate human rights complaints, conduct hearings, make determinations and recommendations, monitor human rights violations and give advice and assistance in the implementation of national and international human rights standards, etc.

Article IV lists the functions of the INCHR to carry out these powers. In this Article, the role of the INCHR as a tool for human rights education is highlighted.

Article V provides that where any person refuses to appear before the INCHR, it may apply to the County Circuit Court for a subpoena to compel attendance.

Article VI establishes the categories of person who may be granted immunity from prosecution by the INCHR following their cooperation with investigations, hearings etc.

Article VII empowers the INCHR to award reparation or compensation to victims whose rights have been violated by government officials, security personnel or private citizens.

Composition and structure of the INCHR
Article VIII establishes the composition of the INCHR as being a Chairperson and six Commissioners and deals with the required qualifications.

Article IX lists the functions of the Chairman of the INCHR.

Article XI provides the role of the INCHR Executive Director.

Article XII describes the structure of the INCHR and lists its five departments.

Article XIII provides for the replacement or dismissal of a Commissioner.

Article XIV provides for the good behavior tenure of each commissioner.

Article XV attempts to deal with the non-political nature of the INCHR.

Article XVIII grants the INCHR the status of a non profit organization and a tax exempt standing with duty free privileges.

Article XIX stipulates rules about accountancy, transparency and funding in order to enhance the operational efficiency of the INCHR.

Many good Articles of the Government draft like Article III dealing with power of the Independent National Commission on Human rights; Article IV dealing with functions of the Commission; and Article XVI dealing with its subject matter jurisdiction aim at capturing some of the fundamentals of the national institutions. The draft also tries to give the Commission a broad mandate based on the Constitution and universal human rights standards and attempted to ensure autonomy from government in its subject matter jurisdiction. Article V of the Government draft gives the Commission powers to bring under its jurisdiction those accused of human rights violations based upon complaints from the aggrieved parties. In cases the accused refused to appear before the Commission, the Commission is empowered to apply to any Circuit Court for a writ of arrest to compel the accused to appear before it. Article VI talks about the immunities from prosecution for those whose cooperation for the Commission is considered crucial to bring the other significant human rights violators on board. The draft Act also gives discretion to the Commission not to investigate a case when it is found frivolous or vexatious. Above all, Article VII empowers the Commission to award reparation or compensation to victims whose rights have been violated by government officials, security personnel or private citizens.

In the organizational side, Article VIII of the Government draft deals with the composition of the Commission. Article XIII deals with replacement or dismissal of a commissioner when there is a need for it. Articles IX – XI deal with the functions of the Chairman, Vice-Chairman and Executive Director. However, they touch on the related issues briefly. Article XIV provides that each member of the Commission is to hold office during good behavior. Article XV intends to deal with the non-political status of the Commission, although the details specify something else. Article XII divides the Commission into five Departments according to the Commission's functional requirements. Article XVIII gives the commission the status of a non profit organization and a tax exempt standing with duty free privileges. Also provided are the provisions regarding accountancy, transparency and funding, which in order to enhance the operational efficiency of the Commission.

Overall, the draft shows a general willingness on the part of the Government to create a national institution capable to meet the current requirements of Liberia.

Rationale for Proposed Amendments 
At a UN-sponsored meeting of representatives of national institutions in Paris in 1991, a detailed set of principles known as the Paris Principles on the status of national institutions was developed, which must be complied with as the minimum bench mark for a national institution like the INCHR. These principles, subsequently endorsed by the UN Commission on Human Rights and the General Assembly, have become the foundation and reference point for United Nations activity in the area. These Principles are important because they sets out to clarify the concept of a 'national institution' by providing minimum standards on the status and advisory role of national human rights commissions.

The Government draft gives a good beginning. This draft is a brief document intending to deal with many important issues in a few Articles, selectively, and often with shorthand expression with the potential of leading to confusion in their interpretation. Similarly, the draft also lacks some additional substantial provisions, providing comprehensive legal norms for its operations.

These comments point towards the need to build on these provisions and expand them to further consolidate the provision regarding - competence and responsibilities of the Commission; composition and guarantees of independence and pluralism; methods of operation; and additional principles concerning the status of the Commission which has to work with quasi-jurisdictional competence. The Commission needs various civil court powers to exercise its power of inquiry and investigation, and also needs various remedial options upon the completion of an inquiry or investigation under the Act. A system of checks and balances is also necessary to ensure that the appointment process of the Chairperson and other commissioners is politically neutral. While the terms of office have been unlimited, with good behavior tenure, there is no guarantee for a pluralistic and representative composition. This is important for ensuring independence from the executive branch.

The emplacement or enhancement of a national human rights protection system in each country, reflecting international human rights norms, is the principal objective of the United Nations Organization in the human rights sector. An independent national human rights institution can be an integral part of such a national human rights protection system. Such an institution at the country level is what in the long run will ensure that human rights are protected and advanced in a sustained manner.

To ensure its effectiveness, the Commission must be independent from the Government. In order to achieve this goal, the Paris Principles identified three conditions. First, the composition of any national institution and the appointment or election of its members shall reflect pluralist representation of the social forces of the society, such as NGOs, universities qualified experts, parliament members, trends of philosophical or religious thoughts and government departments. Second, a national institution shall have the infrastructure that allows for the smooth conduct of its activities, in particular, adequate funding, and qualified staff. Finally, the appointment of members of a national institution shall be by official act, which establishes the specific duration of their mandate, so as to ensure fearless and impartial action in defense of human rights.

Concerning the relations between a national institution and the UN, the Paris Principles stated that one of the functions of a national institution is "to cooperate with the United Nations and any other organization in the United Nations system", and "to contribute to the reports which States are required to submit to United Nations bodies and committees … pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence." This must be adequately reflected in the proposed law.

It should be noted that while the Paris Principles are a good starting point for analysis of the draft Act, they are not enough to create a system. As such, the proposed amendments, which have been incorporated in the accompanying text, attempt to make the INCHR a strong, effective, and sustainable institution by going beyond the Principles and adapting from the experience of other similar institutions around the world.

Proposed amendments as contained in the revised draft
The Preamble now contains a clear reference to Liberia's commitment to the Universal Declaration of Human Rights (1948), which has been accepted around the world as the codification of the customary international law of human rights.

Article III dealing with the power of the INCHR has now been restructured giving "general competence" to the Commission to protect and promote human rights, reflecting on the Paris principles. Section 2 provides an internationally accepted definition of "human rights", in order to avoid any confusion in the future application of the law. Without affecting the "general competence" of the INCHR, Section 3 now elaborates some of its powers in accordance with those set out in the Paris standards. In particular, it is proposed that the Commission be authorised and empowered to inquire a case on suo motu basis [Article III.3 (a)]. Further, it is proposed that the INCHR be empowered to intervene, subject to approval of the court, in any proceeding involving any allegation of violation of human rights pending before a court. [Article III.3 (h)].

Article III also contains clear provisions on the INCHR mandate to receive complaints and investigate individual human rights violations. It has now various civil court competences to exercise its power of inquiry and investigation, and can choose various remedial options upon the completion of an inquiry or investigation under the Act. In this case, the INCHR may seek to settle a dispute by consultation or mediation between the individual and the governmental body; to inform the alleged victim(s) of their rights; and of the hearing of their complaints, or alternatively to transmit them to another competent authority. 

Article IV now expressly guarantees the authority of INCHR to provide advice to the Government. INCHR may submit, by a request of competent authority or upon their own initiative, opinions, recommendations and reports on any matter concerning the promotion and protection of human rights. Such advisory action include the review of draft legislation and administrative actions and proposals to amend existing legislation or initiate new drafts in order to improve the general human rights situation or stop certain violations; preparation of national human rights reports. 

Article IV is amended to strengthen INCHR's role as the primary advisory body to the Government on the implementation of Liberia's international human rights obligations. The INCHR has the responsibility to promote and ensure the harmonization of national legislation and governmental practices with the international human rights instruments to which Liberia is party; to encourage ratification of, or accession to, these instruments, and to ensure their implementation.

Article V is a new addition to the draft. It establishes the operational method for the Commission. In view of the mutually beneficial relationship between NGOs and national human rights institutions, this proposed Article expressly provides that the INCHR shall develop relations with the human rights NGOs and other civil society groups.

Article VI is amended to strengthen the quasi-judicial status of the Commission. The proposed amendment bestows on INCHR those powers necessary for the inquiry or investigation of human rights violations. Going beyond the provision of subpoena power, the proposed amendment empowers the Commission to exercise the power of discovery and production of any document, receive evidence on affidavits, requisition any public record, issue commissions for the examination of witnesses or documents, etc.

The new provisions included in Article VI of the revised draft entitle the Commission to take any of the several steps upon the completion of an inquiry or investigation held under this Act. They provide clear cut guidance to the INCHR on how to handle the case it decided to take up.

Articles IX – XI elaborate on the original draft Act's provisions regarding the composition of INCHR, the qualifications of Chairperson and other Commissioners, their functions, and the rules for the Commission meeting, and the rights and responsibilities of the Executive Director. All inadequacies in the original formulations have been supplemented with adequate provision. It has now been expressly stated that the decision of the majority of the members of the commission present at a meeting thereof shall be the decision of the Commission and in the event of an equality of votes concerning any matter, the member presiding shall have a casting vote.

Article XIII of the original draft has been revisited to create a suitable internal structure for the Commission. The revised structure makes it possible for each department within the INCHR to specialize on its area of competence.

Article XVI is a new addition to the original draft. Some important rules have also been developed to guarantee the independence of the employees of (or those working for) the Commission.

Article XIX now includes a number of new provisions to better regulate issues involving funding, accountability and transparency. A new section added to this Article maintains that the INCHR, to exist and function as a full autonomous body both with respect to its administration and finances, shall have financial autonomy and its budgetary allocations be not in any way connected to or place under the budget of any other agency, ministry or institution of the Government.

Article XX deals with many crucial provisions not included in the original draft but which will be essential for the efficiency of the INCHR. One ideal provision states that all organs of state shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission. Another significant provision states that notwithstanding anything contained in this or any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special investigation teams, for purposes of investigation and prosecution. This means that the human rights responsibility of the Government is not over just by creating the INCHR.

Article XX also provides that the INCHR may delegate its powers, frame its own rules, and the power to remove difficulties in the implementation of this Act. Similarly, it also provides that all communications of the Commission to the Government shall be channeled through the Office of the President. This provision helps to establish the high status of the INCHR within the administration of the Government.

While the Paris Principles are a good starting point as normative principles, their limitations are best illustrated through an examination of the record of activities of human rights commissions. As such, the present draft tries to make the INCHR strong, effective, and sustainable institution, by going beyond, and learning more from the experience of other similar institutions around the world.