Annex 8: Findings and Recommendations
PART A. Background
The questions in this section were designed to provide a general snapshot of NHRIs around the world. The responses indicate that NHRIs – a fairly recent phenomenon from the 1990s onwards – are generally human rights commissions or ombudsmen with a broad geographic jurisdiction. In Europe and the Asia Pacific respondents were commonly statute-based commissions, although the ombudsman model was common in Eastern Europe. In the Americas they are commonly constitutionally-based ombuds-institutions and in Africa are commonly constitutionally-based commissions.
Although the majority of respondent institutions were established by a founding law, as required by the Paris Principles, a small number of respondents in all regions would benefit from a strengthened legal framework.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors, could support NHRIs to prioritise advocacy with their government for the revision and strengthening of the legal framework of those NHRIs established by an executive instrument. Recommendations from UN Treaty Bodies, the SPMHs, and the UPR in the Human Rights Council, as well as the ICC Sub-Committee on Accreditation may all support the expansion of the mandate of NHRIs.
PART B. Institutional Character
1. Composition of the governing body
An institution's mandate is vested with its members (e.g. commissioners, ombudsmen and deputies etc.), described collectively as its governing body. OHCHR has recognised that governing bodies tend to be more effective when they have a small number of full-time members. This trend was broadly reflected in the responses received; with roughly two thirds of the respondents indicating that their governing body had 10 members or less, the majority of which worked full-time. Nevertheless, respondents with both small and large governing bodies rated their composition as effective (4 or 5 out of 5).
A governing body whose members reflect society's diversity is also an important method for achieving pluralism in an institution, one of the core concepts of the Paris Principles. Just over half of respondents indicated that their institution's founding law included a provision on pluralism (this low number may be attributable to the fact that the governing bodies of single member ombuds-institutions cannot reflect the principle of pluralism). However, there did not appear to be a strong correlation between the existence of a legal provision on pluralism and diversity in practice, particularly in the Asia Pacific and in Europe. Overall, less than half of the respondents rated the diversity of their governing body as good (4 or 5 out of 5). This percentage was roughly even across the four regions. In addition, data on the representation of particular groups showed that while the representation of women is strong, in all regions it is limited for both people with disabilities and minority groups.
Recommendation: HCHR, UNDP, RCCs of NHRIs, and interested donors, could support activities that explore and gather best practice on the types of legal provisions (e.g. membership criteria, appointment processes) ensure the governing body is effective and diverse in practice. Data on other mechanisms of ensuring pluralism within an institution, beyond the composition of its governing body, would also be useful.
2. Appointing members to the governing body
The ICC, in its General Observation 2.2 on the selection and appointment of the governing body, notes that an open and transparent process is important in ensuring the pluralism and independence of the NHRI.
The vast majority of respondents (90%) indicated that appointment procedures are specified in their institution's founding law and or elsewhere. Nevertheless, such processes only include independent scrutiny of candidates for just over 60% of respondents; only include the advertisement of vacancies for just over 50% of respondents; and only include consultation with civil society for 45% of respondents. Generally these percentages were consistent across the four regions, although the level of public vacancy announcements in Africa was notably lower, at around 30%.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, interested donors, could support NHRIs to prioritise advocacy with governments for the revision and strengthening of procedural requirements for the selection and appointment of members.
3. Security of tenure for members of the governing body
In its General Observations, the ICC has recognised the importance of security of tenure of members of an institution's governing body as a means protecting its independence. A secure term of office for members is an important guarantee of their independence; to ensure a period during which members can develop expertise and be vocal without fear of hindering future prospects. The ICC's General Observation 2.9 on guarantees of tenure for members of governing bodies further states that dismissal of a member of the governing body should follow all substantive and procedural requirements, as prescribed by law, and should not be solely at the discretion of the appointing authorities.
Almost 80% of respondents indicated that the terms of their members were between 3 – 5 years, which is a reasonable period to ensure tenure of membership. Nevertheless, only just over 70% of respondents' founding laws state the grounds on which members may be dismissed (this statistic was roughly even across all four regions). Even fewer (just under 60%) included a procedure for the dismissal of members (again, this percentage was roughly even, but was lower in Africa at just over 40%).
Recommendation: as the ICC's General Observations state that dismissal or forced resignation of a member may result in a review of the institution's accreditation, strengthening legal requirements for dismissal (building on the best practice examples provided by respondents) should be a priority. OHCHR, UNDP, RCCs of NHRIs, and interested donors could support NHRIs in securing such legal requirements.
4. Operational and Financial Autonomy
Independence, one of the core concepts of the Paris Principles to ensure an institution's legitimacy and credibility, must include practical, as well as formal independence. Over 70% of respondents considered their institution to be very independent in practical terms. This is a positive indicator. Nevertheless, almost 40% of respondents indicated that a government department had administrative responsibility for their institution; and of these respondents, approximately 20% ranked the department's influence over their institution as moderate or greater (this percentage was roughly even across all four regions). In its general observation on administrative regulation, the ICC has noted that where the administration and expenditure of public funds by an NHRI is regulated by government, such regulation must not compromise an NHRI's ability to perform its role independently and effectively and that therefore the relationship between government and the NHRI must be clearly defined.
Another crucial guarantee of an institution's independence is financial autonomy, which ensures its ability to independently determine its priorities and activities. This remains a problem area for many institutions, with nearly half of the respondents, indicating that their budget is insufficient. This statistic was roughly even across all regions, although just over 50% in Africa. Furthermore, to ensure financial autonomy, public funds should be provided through a mechanism that is not under direct government control. Over 75% of respondents indicated that their budget is not presented directly to parliament, but rather through a government ministry; and further, almost 50% of respondents commented that the relevant ministry has much influence over their budget allocation. This percentage was roughly even in all regions, although slightly higher in Africa and the Americas.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors, could prioritise activities to develop the capacity of NHRIs to effectively manage the relationship with their relevant government department, including in budget allocation. In addition, they could also prioritise continued advocacy with member states to ensure they meet their obligation to provide adequate resources.
5. Organizational structure and staffing
The Principles state that an institution shall have an infrastructure suited to the smooth conduct of its activities, encompassing a number of issues relating to the institution's internal structure and staffing. For an institution to be effective, it needs diverse staff with the necessary professional skills and knowledge on human rights; as well as an organisational structure that allows for the most effective use of its resources, budget and powers.
Overall, just under 70% of respondents were satisfied with the organizational structure of their institution, including the functioning of working groups and specific units to address vulnerable groups, although this percentage was lower in the Asia Pacific and Africa (at under 60%). In addition, a significant number of respondents (approximately 40%) in all regions considered their staff size to be insufficient and a number highlighted the challenge of recruiting and retaining skilled candidates. Staff diversity, particularly the representation of minority groups and people with a disability, also remains an area for improvement; with only 50% of respondents rating their staff as diverse (4 or 5 out of 5).
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors, could prioritise further training and capacity development for NHRI staff across all levels. They should also prioritise support for institutions to develop human resource plans to increase staff effectiveness, career development and diversity.
6. Accessibility
Although not specifically articulated in the Paris Principles, a crucial element of an institution's effectiveness will be its visibility and accessibility to people exposed to human rights violations. Respondents generally considered the physical accessibility of and communication with their office to be satisfactory. However, the percentage that described their relationship with marginalised groups as strong (4 or 5 out of 5) varied between roughly 60% in the Asia Pacific to just over 40% in Europe.
Generally, well over 70% respondents in all regions considered their accessibility by phone, post and email to be high or very high (4 or 5 out of 5), although less so with respect to the web (this was particularly the case in the African region, where under 50% of respondents indicated their website was regularly updated; compared with an average of 84% in the other three regions). Respondents' comments noted the need to increase the number of regional offices and/or strengthening their outreach capacity; ensure physical accessibility to offices for people with disabilities; and to improve electronic communication systems.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could prioritise support to institutions to improve their accessibility, with a particular focus on reaching out to vulnerable groups.
PART C. Mandate and Competences
1. The Mandate in General
The Paris Principles require that an institution have a broad mandate to promote and protect human rights and specify a number of areas in which institutions are expected to have competence. Responses indicated that breadth of mandate is not considered to be a key concern amongst institutions and that most respondents are mandated to perform the responsibilities specified in the Paris Principles. However, protection-related functions (such as detention visits, providing remedies) are notably less prevalent amongst European NHRIs. As the following sections show, it is the fulfilment of the institution's mandate where challenges arise.
2. Complaint Handling
Where an institution has a quasi-jurisdictional function to hear and consider individual complaints, the Paris Principles set out several principles on which this function may be based. Responses showed that, in line with these principles, the majority of respondents with complaint handling functions are able to inform complainants of their rights and transmit complaints to competent authorities; although fewer can seek settlement through conciliation, and only a very small number can make binding decisions. Generally, the large majority respondents are able to receive complaints in relation to all rights and against all relevant parties. However, fewer respondents could receive complaints against individuals, business and intelligence agencies (particularly in the Americas and Europe).
Respondents were asked to provide data on the numbers and types of complaints they received in 2008. However, beyond the number of complaints received for that period, many did not. This may be an area for further exploration, as it suggests a need for more developed processing and data systems. Indeed, a number of respondents from all regions commented that complaints handling systems were underdeveloped or inadequate and that resources were insufficient to respond to high caseloads.
3. Monitoring core protection issues
OHCHR has consistently prioritised support to NHRIs to carry out their work on core protection issues; as it considers this to be one of the most important elements in determining their credibility at the national and international levels.
The large majority of respondents indicated that they are indeed carrying out activities relating to the prevention of torture and ill-treatment; with highest majority in the Asia Pacific (100%), followed by Africa (89%), the Americas (77%) and Europe (71%). Such activities included visiting places of detention and receiving complaints from detainees. However, the quantity and quality of this work appears somewhat varied. For example, the number of detention visits respondents had conducted in the past year ranged from 1 to 6000. Others described promotional activities, rather than more direct protection work; such as public awareness raising and encouraging ratification of the relevant international instruments. A large number of respondents, especially in Africa and Europe, reported that there were other bodies mandated to conduct detention visits, although the types of other bodies identified by respondents did not always have the equivalent independence or official status of an NHRI.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could prioritise work with NHRIs, in the framework of the Nairobi Declaration, to effectively implement their core protection functions, particularly in detention monitoring. Follow up research with NHRIs to collect best practice on collaboration and coordination with other visiting bodies is also important to explore, to address any potential protection gaps.
Fewer respondents had dedicated activities for human rights defenders; with the highest in the Asia Pacific (92%), followed by the Americas (78%), Africa (58%) and Europe (43%). However, only a very small number referred to advocacy on behalf of human rights defenders at risk. A few respondents from Africa commented that they lacked capacity in this area.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors, should prioritise further guidance to NHRIs in relation to their activities for human rights defenders, including by systematically collecting and disseminating examples of best practice. Capacity building activities for NHRIs, particularly in Africa, to support human rights defenders (generally and in cases threat) should also be prioritized.
4. Following up recommendations
Given the non-binding nature of most institutions' recommendations, their effectiveness depends on a good working relationship with relevant government bodies. Overall, roughly 65% of respondents indicated that government bodies are formally required to respond to the institution's resolutions. And a similar percentage of institutions had developed mechanisms to follow up their resolutions, reports, or recommendations (although these percentages are notably higher in the Americas).
Nevertheless, overall only 30% of respondents stated that government bodies take recommendations on board well; suggesting limited effectiveness of existing follow up mechanisms and provisions. This is therefore an area where increased capacity is needed. This issue is of particular concern in Africa and the Americas where only just over 20% of respondents rated the responsiveness of government bodies as good. However, even the highest percentage, in Europe, was under 40%
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could prioritise support to institutions to develop strategies for follow up where they do not exist and strengthen them where they do. Advocacy for strengthened legal frameworks that require the state to formally respond to institutions' recommendations is also another important medium- and long-term priority.
5. Human rights education and research
Human rights education and research are key responsibilities of NHRIs identified in the Paris Principles. Although almost all respondents indicated that they have mandates for human rights education and research (overall 98% and 95% respectively), the actual implementation of these mandates in practice is lower.
In Africa, less than 70% of respondents carried out regular research on human rights, and less than 60% carried out activities to mainstream human rights in education curricula or developed materials for informal educational settings. In the Americas the percentage was closer to 90% for research, but under 80% for education. In the Asia Pacific the percentage was over 90% for education, but just over 80% for research. In Europe the percentage was over 80% for research, but just over 50% for education. The main challenges respondents noted in promoting human rights education, particularly in Africa and the Asia Pacific was a lack of resources available to the institution or lack of (appropriate) materials, as well as a lack of interest or resistance from the education sector
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could consider providing support to NHRIs in this area, as well as developing mechanisms to encourage institutions to pool educational and research material.
PART D. Relationships with other organizations
1. Relationships with civil society
The Paris Principles recognise civil society as a group with whom an NHRI should have a well developed relationship. Over 80% of respondents in the Asia Pacific and Europe described their relationship with civil society as strong (4 or 5 out of 5). However, this percentage was closer to 70% in Africa and the Americas. Nevertheless, the frequency of respondents' engagement with civil society varies widely and numerous responses highlighted challenges for engagement, such as lack of capacity and lack of understanding amongst both NHRIs and NGOs about each other's respective role. Activities respondents had undertaken to improve or enhance relationships with civil society included joint projects or activities such as meetings, forums and roundtables.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could facilitate increased awareness raising for both NHRIs and NGOs on each others respective roles, for example through joint activities. Support for the strengthening of legal provisions that require NHRIs to establish formal relationships with civil society is also another important medium- and long-term priority (only 45% of respondents indicated that their founding law contains such a provision).
2. Relationship with public organisations
An NHRI's official status puts it in a unique position to influence and work with politicians and public authorities. Indeed, over 60% of respondents indicated that their founding law required the institution to establish formal relationships with public bodies. Nevertheless, across all regions generally around 50% or fewer respondents rated their relationship with the executive, parliament, the judiciary, police and prison administrators a strong (4 or 5 out of 5). Relationships with parliamentary human rights committees were generally ranked as strong in Europe (just under 75%), but less so in Africa (just over 50%) and the Asia Pacific (just over 40%). Around 70% of respondents, in all regions, describer their relationships with other human rights entities (including state bodies, NGOs, regional organisations etc) as strong. Nevertheless, respondents commonly noted, particularly in Africa and the Asia Pacific, that public organisations lacked an appreciation of or interest in human rights issues generally, or the institution specifically.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could facilitate and assist NHRIs direct engagement with these organisations, thus also increasing the level of awareness about the work of NHRIs.
3. Interaction with the International Coordinating Committee and regional networks
Cooperation with international and regional human rights organisations is one of the functions the Paris Principles vest with an NHRI. An institution's participation in the regional and international networks of NHRIs, in particular, helps to reinforce an institution's independence and effectiveness.
While over 80% of respondents regularly attend the meetings of their regional network, there is room for improvement in relation to the level of participation in ICC meetings, which is currently just over 60% overall. It is worth noting however, that participation amongst Asia Pacific NHRIs was over 80%; highlighting how a strong, well established regional network is important for strengthening the ICC. Strategies to increase the incorporation of the ICC's declarations into institutions' work plans should also be a priority, as roughly only 50% of respondents in Africa, the Americas and Europe indicated that they often refer to the declarations in developing their work plans. In the Asia Pacific this percentage was even lower, with only a third indicating that that they often refer to the declarations. The ICC might consider undertaking further consultations with its members to explore how to enhance the utility of the declarations for NHRIs in their domestic work.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could consider extending support to institutions to overcome budgetary constraints to improve participation rates in ICC events. Respondents also made a number of valuable suggestions on how to enhance the benefits of ICC meetings, which OHCHR should work with the ICC and the RCCs to implement.
4. Interaction with institutions in other countries
Increasing the frequency of interaction between institutions on a bilateral or sub-regional level in all regions should also be a priority. The percentage of respondents describing such interaction as frequent (4 or 5 out of 5) varied between over 75% in the Americas to under 45% in Africa, with the Asia Pacific and Europe both at roughly 50%.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could facilitate capacity building missions, encourage increased cooperation and provide opportunities for working experiences with regional networks. Comments from respondents particularly noted the educational value in these types of activities. To facilitate this, such bodies may consider supporting the establishment and strengthening of regional and sub-regional networks of NHRIs.
5. Interaction with UN bodies at the country level
Many institutions, particularly in Africa and the Asia Pacific had interacted with UNDP and OHCHR's field presences; as an implementing partner, recipient of technical assistance or training, or joint partner in activities. While over 70% of respondents overall described their relationship with the UN as strong (4 or 5 out of 5), there is scope to improve this even further.
Recommendation: OHCHR could further consult with NHRIs on their experiences of working with the UN at the country level, as respondents did not generally comment on this in their responses. Collecting examples of best practice in relation to coordination and collaboration between NHRIs and field presences would also be valuable.
PART E. Interaction with International and Regional Mechanisms
Cooperation with international and regional human rights mechanisms is a key requirement of the Paris Principles. As emphasized in the ICC's General Observation on interaction with the international system, this includes making an input to, participating in and following up the recommendations of the Human Rights Council and its mechanisms (including supporting the work of SPMH, especially during country visits), and the human rights treaty bodies. In practice however:
- NHRI interaction with the UN treaty bodies was moderate overall. In Africa, almost 80% of respondents had contributed to a state report and 50% had participated in a session. However, few had submitted a parallel report or contributed to the list of issues. In the other three regions, fewer had contributed to a state report, but the level of parallel reports and contributions to the list of issues was higher (around 30-40%). In all regions, only 40-45% of respondents had disseminated concluding observations and conducted follow up activities and only around 20% had participated in the treaty bodies' general work (days of general discussion and drafting concluding observations).
- The UPR mechanism demonstrated the highest level of engagement from respondents. The countries of 27 respondents had been reviewed and all 27 institutions indicated that they had participated in the process in some capacity. While the Americas and the Asia Pacific showed consistent engagement in the various stages of the process, in Africa and Europe increasing the level of follow up activities should be encouraged. The need to increase the level of contributions of independent information was also noticeable in Africa.
- Generally, less than 35% of respondents had provided information to a special procedures mandate holder or met with them during a country visit, although this percentage was over 50% in the Asia Pacific region. Follow up to the country missions of SPMHs was even lower, with less that 20% publicizing mission reports, monitoring recommendations and reporting on their implementation, on average.
- The level of interaction with the Human Rights Council, for activities such as submitting documents, contributing to SPMH reports and OHCHR reports, attending council sessions and making oral statements averaged about 20% or less.
- The interaction respondents had with other international mechanisms, conferences, workshops etc was minimal.
- Although the responses indicated that interaction with the regional human rights system was higher, examples of the types of such interaction often referred to general regional interaction (e.g. through regional NHRI networks, OHCHR training etc), rather than formal interactions with the relevant mechanisms of the regional human rights bodies (i.e. courts and/or commissions).
These participation rates show a limited familiarity with the international and regional systems. In fact, just over 50% of respondents had participated in training on the international human rights system.
Recommendation: OHCHR, UNDP, RCCs of NHRIs, and interested donors could prioritise continued training to NHRIs on the international human rights system. However, they should explore methods of doing so that are less resource-intensive for NHRIs and reach the broadest number of staff. This could include "train the trainers" workshops for identified focal points on international engagement and developing online or distance training materials.