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

8th 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 1946- 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 1996

- Commonwealth Human Rights Institutions Best Practice Principles of 2001

- 24th Ordinary Session of the African Commission on Human and Peoples’ Rights of 1998

- 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 Tenure2. Independence, Representative and Organisational

Efficiency & Accountability3. Diversification of Resource Mobilisation Strategies4. Innovative Mechanisms for Implementation of

Decisions or Recommendations of NHRIs5. Stakeholders’ Co-ordination and Co-operation 6. Regular Monitoring and Evaluation of Activities

Q & A