International Standards: The Paris Principles
Examining the Record in Africa
Innovative and Positive Contributions by Commissions
The Role Of The International Community
Although there is no one formula to create a credible and active human rights commission, there are a number of factors that are important in allowing a human rights commission to fulfill its potential. These include the formal legal mandate, the selection of commissioners, the type of activities that the commission chooses to focus on, and the relationship of a commission with civil society groups.
Mandate of Institution
An essential prerequisite for a strong human rights commission is a legal mandate and accompanying powers to function effectively. In Africa, the human rights commissions vary greatly in terms of their formal mandates and working methods. One obvious classification is based on whether they are created by constitution, a legislative act, or an executive order or decree. Twelve of Africa's twenty existing human rights commissions have been constitutionally or legislatively created. While this does not guarantee greater autonomy or activity, it is a fact that all of the more active or promising human rights commissions are in this group. The human rights commissions in Africa formed by executive decree or order are, without exception, the less active and autonomous bodies. A truly autonomous human rights commission cannot be an ad hoc body. The human rights commissions formed by executive decree appear to be the most vulnerable to being disbanded or pressured by the executive branch. When asked what was most important to effective functioning, Ghanaian commissioner Emile Short said: "Independence . . . even the perception of independence is important. You need to be seen to be independent. Most African governments have not yet grasped the concept of independent. There is a perception that you should be grateful to the government of the day."3
The stated mandates of the human rights commissions in Africa all basically vest them with the responsibility to promote and protect human rights, but with differences in the breadth of their powers. Within Africa, the range is broad-from the Mauritanian human rights commission which stresses only advisory and promotional activities to the Ugandan human rights commission which has quasi-judicial powers to convene a human rights court to adjudicate complaints. Only Mauritania and South Africa have specific provisions in their founding legislation that include mention of economic and social rights. With the political will, most human rights commissioners can interpret their mandate to touch on virtually any human rights issue in their country, including the important choice of whether to focus on human rights promotion and education work or to also address the more politically sensitive human rights protection work.
The powers that a human rights commission has to undertake its work is a critical part of the mandate in facilitating its ability to pursue protection activities. This does not mean that a human rights commission must be endowed with legislative, law enforcement, or judicial functions. The role of a human rights commission is not to replace or duplicate other state institutions with enforcement powers, such as the legislature, police, or the judiciary. Its role, rather, is to push other state bodies to uphold their responsibilities with regard to human rights promotion and protection. In terms of enforcement capacity, it is important to consider the relationship of the human rights commission to other government agencies or commissions and to the justice system. As part of the government's overall institutional framework, human rights commissions should ideally work in conjunction with other government bodies. Other government agencies should not be permitted to disregard the recommendations of the human rights commission.
It is not reasonable to expect that a human rights commission would be vested with all the enforcement powers that might be found in a group of government bodies working together. In this regard, human rights commissions often have to refer their findings or recommendations to another government body, largely to the executive or judicial branches. But it is vital for a human rights commission to have some quasi-judicial powers, including the ability to investigate freely and to hand over to the relevant bodies to bring criminal charges against human rights violators. This gives the human rights commission the necessary measure of power and independence to win public confidence, especially of the victims of human rights abuses. In this way, the commission's fact-finding powers have a purpose: to bring accountability and justice. Even in South Africa, the fact that its human rights commission can only make recommendations and not even demand a response from the government has hampered its work. Realizing this, some governments have built in operational ineffectiveness by denying their human rights commissions adequate powers.
Transparency of work is another important factor. For instance, the Kenyan and Cameroonian human rights commissions were mandated to only provide their findings to the president of the country. The credibility of both institutions has been damaged by the perception on the part of the public that these commissions are completely inactive because of their public silence. If the public is unable to see the work of the human rights commission or the results of that work, then there is no opportunity for them to ascertain the independence of the commission. By not making statements or reports public, a human rights commission is hampered in its ability to be seen by the public as a protector of their rights, and may even be complicit in the secrecy that protects perpetrators of human rights violations. Transparency should be an indispensable part of a commission's work.
Selection of Commissioners
One of the key decisions that will determine the autonomy and effectiveness of a human rights commission is the selection of its commissioners. Interestingly, even governments that form human rights commissions with the most Machiavellian of motives often appoint commissioners of some repute and integrity in order to give their gesture some legitimacy. In turn, these appointments can result in commissions with some of the weakest formal structures having a positive impact on human rights because of the persons selected to serve.4 Equally, a commission with a sound legislative structure and adequate budget can be completely undermined by the poor appointment of commissioners.
An appointments process that is transparent and consultative with civil society groups in the country is obviously preferable to maximize the likelihood of committed and active appointees to a commission. In some cases, the NGO community's contribution is elicited through a participatory process with government. However, in other cases, where the invitation to participate is not genuine, the NGO contribution may then manifest itself through a refusal to legitimize the process as means of protesting the method and manner in which a human rights commission is being created. This was the situation in both Cameroon and Liberia, where qualified members of the NGO world, who were asked to serve on the government human rights commission, declined.
Another factor to be considered in the selection of commissioners is diversity. In countries with ethnic or religious tensions, it is vital to have a commission that reflects the ethnic and religious diversity of the country. A gender-balance is also beneficial in reflecting a broader representation. Diversity among the commissioners can bring important perspectives to the work of the commission and will contribute towards greater public confidence. However, care must be taken to ensure that the effort to address diversity does not become tokenism that weakens the work of the commission by the presence of political appointees who know nothing about human rights.
While the selection of commissioners with human rights experience is desirable, the record shows that expertise per se does not necessarily guarantee a dynamic commission. It appears that the selection of human rights commissioners with political will and vision is as important as looking for candidates with prior working experience in human rights. In both Benin and Chad, local human rights activists contributed to the formation of the human rights commissions, and in the case of Chad human rights NGO representatives sit on the commission. Yet, both these commissions have been virtually silent on abuses in their countries, concentrating instead on human rights education work. Contrasted to that is the record of a direct presidential appointee-Ghanaian commissioner, Emile Short, a lawyer previously in private practice, with no notable prior human rights experience-who has created one of the most credible human rights commissions.
Most commissioners in Africa have little or no knowledge of the international legal standards or the work being done by human rights commissions elsewhere in the world at the time of their appointment. They come from a wide variety of professional backgrounds, including legal practice, academia, and civil service work, among others. While the lack of knowledge about the human rights field is obviously a drawback, it is something that can be rectified with training and exposure. What cannot be later infused into a human rights commission is the individual conviction and commitment of its members to take action and to resist government pressure.
It is important that commissioners, and their secretariat staff, be trained in international human rights standards, proper investigative procedures and other aspects of human rights work. For example, an early investigation by the South African commission on prison conditions interviewed prisoners in the presence of guards. This basic lapse in investigative procedures obviously impacted on the conclusions of that report and a subsequent investigation was undertaken. This illustrates the importance of professional training for commissioners and staff, however well-meaning, who may unwittingly place victims or witnesses at greater risk. Training on international human rights standards, including the Paris Principles, and with comparative examples of the activities undertaken by other active human rights commissions (particularly in the region) provides commissioners with some perspective on their work. Such trainings should incorporate and include input from local NGO human rights groups in the country to underscore the need to build a relationship.
Governments and the international community focus much attention on the formal structure of a commission and on the decisions that are made at the time of its establishment. However, the creation of a human rights commission, no matter how well crafted the law is, cannot be an end in an of itself. Once the commission has been formed, it must continue to be evaluated on the basis of its performance and impact.
The true impact on the lives of the country's people can be indirectly measured by the commission's accessibility to individuals. A commission can duck many of its responsibilities by simply being unavailable to hear individual complaints or avoiding public statements that are critical of the government. In considering accessibility, commissions should find ways to be accessible to those in the rural areas, by having hours of operations that can accommodate the working public, and by maintaining a visible and open headquarters where people can go without being daunted by an unwelcoming bureaucracy or the fear of reprisal.
While human rights education and promotional work is very important, the ability of a human rights commission to have a significant impact lies in its ability to address human rights protection activities: that is, to investigate human rights violations and to seek recourse or redress for victims. While human rights promotion work is important and people must be educated about their human rights, it must also be demonstrated to them that there are effective avenues for those rights to be protected.
Some human rights commissions proceed on a mediation model where victims of human rights abuses are often compensated monetarily. While this model provides some relief to these victims, mediation alone does not address the more basic issue of accountability for perpetrators of violations. A police or army officer or other government official who commits such violations may not be sufficiently deterred from repeating such acts in the future if the only repercussion is at most a monetary fine that will probably be paid by the state. Other human rights commissions have more prosecutorial and investigative powers. Whether a commission fits the mediation or investigative model or some combination of the two, it is very important that the commission have powers to summon witnesses and documents, and has unlimited access to restricted locations, particularly with regard to the premises of law enforcement agencies, who are often responsible for state violations.
Governments have the obligation to provide their human rights commissions with sufficient funding to carry out their functions. A strong indicator of the government's commitment to its human rights commission can be measured through its budget line for the commission. The standard should be what other government agencies receive and that budget should be set so that it cannot be used as a weapon to influence the work of the commission. The budget should be voted by the legislative body, and not allocated by the executive, to emphasize its accountability to the population. Once allocated, the commission's budget should be self-administered without interference, subject to usual auditing rules.
In other countries, however, the withholding of adequate financing is a means through which the state can exert control over the human rights commission and ensure that the president's authority is not eroded. For example, in Cameroon, the commission's funding was dramatically reduced for two years after it criticized government abuses in a confidential report on the state of emergency in the North-West Province in 1992. In Zambia, the commission, already short on funding, lost the government premises promised to it after it commented on torture of coup detainees in 1996.
The lack of funding can also be a cover behind which compliant human rights commissioners can hide. Human Rights Watch found in its interviews with human rights commissions that invariably it was the most inactive commissions that prominently cited the lack of funding as an excuse for inactivity. Although virtually all the human rights commissions in Africa could do with more funding, it was the inactive institutions that prominently raised the lack of adequate resources. The more credible and active human rights commissions, while also mentioning being constrained by finances, never used the lack of funding as an excuse for inactivity. In fact, the more active human rights commissioners often illustrated to Human Rights Watch the ways in which they had managed to get around budget constraints through cost-effective measures, such as press interviews, public statements, or cooperation with NGOs on projects.
Most national human rights commissions can, and do, accept funding from sources other than their own government. These sources include donor countries, including the U.S., Canada, European countries, and other private donors. Support from the international community is a dual-edged sword: On the one hand, it can positively bolster a human rights commission, both materially and politically. A government that is aware that there is international scrutiny and support of its human rights commission is less likely to overtly interfere in the work of the commission. On the other hand, international funding to human rights commissions that are being fettered by the executive branch can lend legitimacy to a weak commission that is not contributing towards the protection of human rights.
Donors faced exactly the above-noted dilemma in weighing whether to give the Nigerian human rights commission support during military rule. At the time the government formed the human rights commission, it demanded that the U.N. provide technical cooperation to the commission while simultaneously contesting the legitimacy of the U.N. Human Rights Commission to criticize the regime and denying a visa to the U.N. special rapporteur to the country. Donors were wary of giving funding to the Nigerian human rights commission, in case it was seen as legitimizing a weak commission or was manipulated by the government to imply a statement of confidence. At the same time, the lack of international support left the commissioners, who were trying to take some action within this greatly limited political space, more isolated. Nigerian commissioner Justice Paul K. Nwokedi told Human Rights Watch that the commission had great difficulty in obtaining foreign funding during the military government because of the constrained political context under which it was set up. He noted, however, that international funding would have helped the commissioners to keep the executive branch more at bay: "If a military government knows you have international support, they will think twice about pressuring you. We need every encouragement to do a genuine job."5
While outside funding provides key support to human rights commissions, especially in countries with limited financial resources, international funding should not replace government support. Each government should have a stake in its own national human rights commission. Government should provide a budget and terms of office for its commissioners that is comparable to other important bodies in the government. While donor funding can play an important role in allowing human rights commissions to undertake more activities, it is important that international donors combine their donations to national human rights commissions with advocacy to call on governments to provide adequate funding to their commissions and to push human rights commissioners to play a dynamic role.
Relationship with Nongovernmental Groups
The independence, diversity, and dynamism of civil society groups, such as human rights NGOs and the independent media, are of critical importance in promoting and protecting human rights. In the human rights movement, civil society groups have played a key role in bringing about greater accountability and respect for human rights by governments around the world. In recognition of this important link, section C(7) of the Paris Principles stress that human rights commissions should: "In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, develop relations with the nongovernmental organizations devoted to protecting and promoting human rights, to economic and social development, to combating racism, to protecting particularly vulnerable groups (especially children, migrant workers, refugees, physically and mentally disabled persons) or to specialized areas."
National human rights commissions play a different role to human rights NGOs. As a national body created by the government, a human rights commission is endowed with a strong ability to speak for the nation and to hold other government bodies accountable for abuse. On the other hand, government human rights commissions may be beholden to the whims of government, and can never be as diverse and dynamic as a range of civil society groups. Often, human rights NGOs and the independent media are better established and do not shy away from the more politically sensitive human rights violations, which means that they speak to the most pressing issues, but as a result come under attack more often from government quarters.
In some cases, governments have recognized this important link, and included formal interaction with the NGO community in the founding statute. Sometimes, representatives from the NGO community are mandated members of a government human rights commission. Such is the case in Benin, Morocco, and Senegal. In other cases, one of the stated responsibilities of the government commission is to build ties with the NGO community, such as the Malawian commission. Elsewhere, the link is less formal and government human rights bodies decide whether to consult, cooperate, and support the NGO community.
Government human rights commissions cannot replace NGOs in monitoring human rights and advocating for change, but genuine collaboration and consultation with this community can join two potentially powerful forces-within and outside government- to uphold human rights. Human rights commissions can serve as an umbrella of protection for human rights NGOs. The Togolese commission, created in 1987, is most unique in its contribution. It actually preceded the emergence of independent human rights organizations in Togo. In its early years, the leadership of the Togolese commission actually assisted and encouraged the emergence of the local human rights NGOs that today it seeks to disparage.
A human rights commission can be a constructive interlocutor between the government and civil society on human rights issues, and provide an umbrella of protection and support to the NGO movement. A good barometer of a government human rights commission's autonomy and credibility can be measured through its relationship with civil society groups in the country. In particular, a constructive relationship with human rights NGOs speaks highly to the gravity with which a human rights commission views its responsibilities and to its credibility in not allowing itself to be manipulated by those in government that may seek to silence the NGO community.
Human Rights Watch found that the human rights commissions in Africa that valued and sought to create partnerships with the NGO communities in their countries, were inevitably the commissions with the strongest records. The Uganda Human Rights Commission (UHRC) views its relationship to local and international human rights groups as being a partnership. According to UHRC Chair Margaret Sekaggya, the work of the UHRC and human rights nongovernmental groups is "mutual and complementary."6 Commissioner Emile Short, Ghana's Commission on Human Rights and Administrative Justice (CHRAJ) "appreciates the importance of establishing and maintaining close cooperation with nongovernmental organizations that are directly or indirectly involved in the promotion and protection of human rights"7 and has set up a coordinating committee of human rights NGOs to discuss priorities and strategies for ways to work together to advance the cause of human rights. The CHRAJ actively collaborates with NGOs in both protection and promotion work.
In some cases, national human rights commissions have been established as an attempt by a government to dominate the human rights field and displace independent NGOs that may be critical of the government. In some cases, the human rights commissioners fulfill this role and do the government's dirty work by defending the government's record or denouncing critical findings of NGO human rights groups, as is the case with the commissions in Algeria, Tunisia, Togo, and Sudan. In other cases, the commissions remain silent in the face of government attacks against human rights defenders and NGOs.
But despite the intention of governments, not all commissioners acquiesce to this invidious role. For example, both Kenya and Nigeria have vigorous and thriving human rights NGO communities that are at the forefront of calling for democratic change and as a result have often come under government attack. President Daniel arap Moi of Kenya and former military government of Gen. Sani Abacha of Nigeria both created national human rights commissions to forestall international criticism, and neither commission has ever taken on the more politically charged human rights issues. However, their relationship with the NGO community has been markedly different. In the case of Kenya, Onesimus Mutungi, the chair of the Standing Committee on Human Rights has adopted an arms-length relationship with local and international human rights NGOs. Periodic threats by President Moi to harass or deregister NGOs have been made without any show of support for the NGO community by the Standing Committee on Human Rights. Little or no cooperation or consultation exists between the government body and the NGOs in Kenya. This situation contrasts with Nigeria where a similarly (if not more) constrained government human rights commission on several occasions assisted and protected the more vociferous human rights NGO community. Nigerian human rights activists attest to the fact that the Nigerian National Human Rights Commission under Paul K. Nwokedi sought ways to assist the NGO community under severe attack from the Abacha military government. The National Human Rights Commission intervened when passports of human rights activists were confiscated from the government and co-sponsored seminars that could then not only proceed, but ensured the attendance of international human rights activists who were able obtain visas to enter Nigeria. What is clear is that even under constrained political situations, commissioners can make choices.
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