By Dr. Otiende Amollo, EBS, Chairperson of the Commission on Administrative Justice A Presentation to the Regional Conference for East Africa NHRIs on Security and Democratisation on the theme ‘Promoting Good Governance in East Africa: Role of the National Human Rights Institutions’ Nairobi – Kenya 8 th December 2015

Definition by the United Nations: “Body established by a government under the constitution, or by law or decree, the functions of which are specifically defined in terms of the promotion and protection of human rights.” Popularity in Countries emerging from Conflict and Dictatorship UN Initiatives - ECOSOC Resolution of Workshops by the Commission on Human Rights of 1960, 1978 & 1991 (Paris Principles). - Vienna World Conference on Human Rights of 1993

 Other Developments: -Yaoundé Declaration of Commonwealth Human Rights Institutions Best Practice Principles of th Ordinary Session of the African Commission on Human and Peoples’ Rights of Guidelines by the International Council on Human Rights & Office of the United Nations High Commissioner for Human Rights in 2005  Foundation on the Ombudsman Concept – Ombudsmen played the Role of NHRIs  Present in all Countries in East Africa

 Human Rights Commission Model -Predominant in Commonwealth Countries -Specialized Commissions e.g. National Gender and Equality Commission (Kenya) & Commission for the Promotion and Protection of the Rights of Cultural, Religious & Linguistic Communities (South Africa)  Ombudsman Model -Originated in Sweden and Spread to other Countries -Mandate was to deal with Administrative Injustices -Protects Human Rights in the context of addressing maladministration -Contemporary Recognition of Administrative Justice as Human Rights -Predominant in Europe and some African Countries

 Hybrid Human Rights Ombudsmen -Modification/Hybridization of the Ombudsman -Multiple Competencies – Administrative Justice, Human Rights & Anti-Corruption [Ghana, Tanzania, Rwanda, Namibia & Uganda e.t.c.] -Extensive Powers  Prosecutorial Powers – Namibia, Rwanda & Uganda  Adjudication Powers: Kenya, South Africa, Ghana & Uganda  Coercive Powers: Powers of the Court, including Contempt of the Commission (South Africa & Uganda)  Remedial Powers: Kenya & South Africa  Human Rights Institute -Mandate is Human Rights Education, Research & Documentation -Example is the Danish Institute for Human Rights of 2002

 Placement in Structure of State – Sui Generis Institutions  Centrality in Global Governance Agenda  Redress of Complaints – Accountability  Public Participation & Empowerment through Complaints Handling  Diagnostic of Administrative Weaknesses  Complementarity with the Courts – Platform for Redressing Non-Justiciable Complaints. Other advantages over Courts: Cost, Time, Inquisitorial, Flexibility, Range of Remedies & Accessibility  Development of a Strong Human Rights Culture

 Dependent on the Establishment (Constitutional or Legislative Framework)  Quasi – Judicial Mandate -Investigation of Human Rights Violations – Most Potent Tool -Includes Powers of Investigations e.g. Issuance of Summonses, Production of Documents, Conducting Interviews & Searches and Inspections -Limitations in some Jurisdictions  Lack of Jurisdiction over certain State Officials or Security Areas  Absence of suo motu jurisdiction -Adjudication Powers: Kenya, South Africa & Uganda -Remedial Powers: Binding and Enforceable Decisions

 Promotion of Human Rights -Human Rights Education -Advisory Opinions -Human Rights Monitoring & Reporting  Challenges for NHRIs -Insufficient Legal Framework -Inadequate Resources -Lack of Co-ordination & Co-operation with other actors -Lack of Legitimacy & Personality Deficits of the NHRIs Leadership -Lack of Operational Efficiency & Accountability -Enforcement of Decisions or Recommendations

 Enforcement of Decisions or Recommendations of NHRIs  Power to Take Remedial Action (Kenya & South Africa) -Recent Case in South Africa: SABC vs DA on meaning of ‘Remedial Action’ – Binding Decisions  Judicial Enforcement -Practice (Ghanaian Experience -Power of the Malawi Human Rights Commission to assist the complainants in taking their matters to court -Uganda: Decisions of the Human Rights Commission have legal consequences and are enforced as those of the Court. The Commission can also commit persons for contempt of its orders.  Limits of Judicial Enforcement

 NHRIs play a Central Role in Constitutionalism  Some of the Proposals for Development of NHRIs: 1.Constitutional Entrenchment – Guarantees Independence & Security of Tenure 2.Independence, Representative and Organisational Efficiency & Accountability 3.Diversification of Resource Mobilisation Strategies 4.Innovative Mechanisms for Implementation of Decisions or Recommendations of NHRIs 5.Stakeholders’ Co-ordination and Co-operation 6.Regular Monitoring and Evaluation of Activities

Q & A