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Does the Human Rights Commission Bill meet the Paris Principles? - Bill Watch 42/2011
Veritas
October 09, 2011

The Zimbabwe Human Rights Commission Bill and the Paris Principles

What are the Paris Principles?

The Paris Principles were drawn up at an international workshop in Paris in 1991. They lay down how national human rights institutions should be composed and how they should function in order to protect and promote human rights. The principles were adopted by the United Nations Human Rights Commission in 1992 and by the United Nations General Assembly in 1993 [General Assembly resolution 48/134].

The Paris Principles are used to determine whether a national human rights institution should be accredited so as to have access to the UN Human Rights Council and other international bodies. The accreditation process is done by a subcommittee of the International Co-ordinating Committee of National Institutions for the Promotion and Protection of Human Rights, so accreditation is essentially based on peer-review.

Why is Compliance with the Paris Principles Important?

Only fully compliant national human rights institutions are recognised by the UN Human Rights Council and permitted to make statements or submit documents to the Council. The African Commission on Human and Peoples’ Rights has also made conformity with the Paris Principles one of the conditions that must be met by a national human rights institution seeking special observer status with the African Commission. This status entitles a national human rights institutions to be invited to sessions of the African Commission, to be represented in its public sessions, to participate in its deliberations on issues which are of interest to it and to submit proposals to the Commission.

Will the ZHRC Bill Ensure Compliance with the Paris Principles?

The Co-ordinating Committee has drawn up a set of “general observations” to guide it in deciding whether or not a national human rights institution conforms to the Paris Principles. If it complies fully it gets an “A” classification; if it is not fully compliant it gets a “B” and if it does not comply it gets a “C”. To decide whether the Bill will make the Zimbabwe Human Rights Commission [ZHRC] compliant with the Paris Principles, therefore, we shall go through these general observations, as well as the Paris Principles themselves, and see how far the Bill meets the Co-ordinating Committee’s requirements. [Note: this assessment is of the Bill plus amendments proposed by the Minister of Justice and Legal Affairs– see Bill Watch 41/2011.]

Establishment

• Co-ordinating Committee’s Requirement 1.1: a national human rights institution must be established in a constitutional or a legal text.

Will the ZHRC meet this requirement? YES. It is established by the Constitution.

Composition, guarantees of independence and pluralism

The Paris Principles lay down three essential requirements in this regard:

• The members of a national human rights institution must be appointed and elected by a process which “affords all necessary guarantees” to ensure the representation of the social forces of civilian society involved in the protection and promotion of human rights.

Does the Bill ensure this? NO. There is nothing in the Constitution or the Bill which ensures adequate representation of human-rights activists among the nominees submitted to the President by the Committee on Standing Rules and Orders. There is nothing to say that the procedure by which nominees are selected must be transparent or consultative, which is a requirement emphasised by the Co-ordinating Committee.

• A national human rights institution must have adequate infrastructure [staff and premises] for the smooth conduct of its activities, and adequate funding to make it independent of the Government.

Does the Bill ensure this? NOT REALLY. The Commission will have the legal power to appoint its own staff and acquire its own premises, but whether it can do so will depend on funding from the Government - which will depend on the goodwill of the Minister of Finance when he prepares the annual budget. There is nothing in the Constitution or the Bill requiring the Government to provide the Commission with adequate funding, nor will the Commission have a separate budget from its parent Ministry.

• Members of a national human rights institution must have specific terms of office, which may be renewable.

Does the Bill ensure this? YES. Under paragraph 3 of the First Schedule to the Bill, members will be appointed for five-year terms, renewable for one further term. The circumstances in which they must vacate their offices are spelled out clearly in the Schedule.

Mandate

The Paris Principles list the essential responsibilities of a national human rights institution, which may be grouped under the following headings:

• It must be given as broad a mandate as possible, and be able to monitor any situation of violation of human rights which it decides to take up.

Will be ZHRC be given this? NO. The only human rights violations which the Commission is empowered to investigate are those which infringe the Declaration of Rights in the Constitution or an international convention which has been “domesticated” as part of Zimbabwean law. Most of the human-rights conventions and treaties to which Zimbabwe is a party have not been domesticated.

• It must be able to advise the Government, Parliament and any other competent body on specific violations, on issues related to legislation and on general compliance with and implementation of international human rights instruments.

Does the Bill lay down this provision? PARTIALLY. The Commission has the function of recommending to Parliament effective measures to promote human rights [section 100R(5) of the Constitution]; and under clause 14 of the Bill, after conducting an investigation into a human rights violation, it will be required to report its findings and recommendations to the authority responsible for the violation and to the Minister of Justice and Legal Affairs. If no action is taken on its recommendations, it will be able to send a further report to the Minister for presentation to the President and Parliament – though the Minister is not obliged to present the report to those authorities. But there is no provision in the Bill for the Commission to advise the Government or Parliament on whether legislation or Bills comply with international human-rights standards.

• It must co-operate with regional and international organisations [the Co-ordinating Committee highlights the importance of this].

Does the Bill make provision for this? YES, BUT. In paragraph 17 of the Second Schedule to the Bill the Commission is given power “to engage in any activity … in conjunction with … international agencies to promote better understanding of human rights violation issues”. But the Bill certainly doesn’t highlight this power.

• A national human rights institution must also co-operate with NGOs and other national organisations.

Does the Bill make provision for this? PARTIALLY. Paragraph 17 of the Second Schedule to the Bill gives the Commission power to engage in activities in conjunction with other organisations “to promote better understanding of human rights violation issues”. But, “better understanding” limits the area of co-operation.

• A national human rights institution must have a mandate to educate and inform in the field of human rights.

Does the ZHRC have such a mandate? YES, BUT. The Commission’s main function, set out in section 100R(5) of the Constitution, is to promote awareness of human rights at all levels of society. But, the Bill does not indicate how the Commission is to exercise this function.

• A national human rights institution must contribute to reports which the State is required to submit to international bodies in terms of international treaties, but it must preserve its independence.

Does the Bill meet this? NO. Section 100R(5)(f) of the Constitution gives the Commission the function of assisting the Minister to prepare such reports. This is not what the Paris Principles envisage. The Commission must not become a party to the Government’s report: it must provide independent comment on it and, where necessary, correct any inaccuracies or omissions in it.

• Some national human rights institutions are given quasi-judicial powers.

Does the Bill do this? NO. The Commission will have no such powers.

Methods of operation

The Paris Principles lay down several requirements for the operation of national human rights institutions. In assessing the Bill against these requirements, it must be remembered that they lay down rules as to how a national human rights institution should operate in practice. The Commission has not in fact begun operating, despite having been established more than two years ago, so in considering these requirements we shall merely indicate whether or not the Bill will permit the Commission to comply with them.

• A national human rights institution must freely consider all questions falling within its mandate, no matter how they are brought to its attention.

Does the Bill guarantee this? NO. The Bill limits the Commission’s freedom of action within its limited mandate by imposing evidential and procedural restrictions.

• A national human rights institution must hear any person and obtain any documents and information necessary for assessing questions falling within its mandate.

Does the Bill ensure this? NO. There is nothing in the Bill allowing the Commission to obtain documents and information; in section 100R(6) of the Constitution its power to do so is limited to obtaining information annually to help the Minister prepare reports to international bodies.

• A national human rights institution must address public opinion directly or through the press, particularly to publicise its opinions and recommendations.

Does the Bill say this? NO, BUT. There is nothing in the Bill to ensure this but also nothing prevent the Commission from doing this.

• A national human rights institution must meet regularly in the presence of all its members at duly convened meetings.

Does the Bill cover this? YES. Under paragraph 6 of the First Schedule, the Commission will have to meet at least once every three months, and all Commissioners will have to be given at least a week’s notice of its meetings.

• A national human rights institution must establish working groups from among its members and set up local or regional branches.

Does the Bill say this? YES. Paragraph 7 of the First Schedule to the Bill provides for the Commission to set up working groups, and clause 22 enjoins it to establish provincial and district offices.

• A national human rights institution must be in consultation with other bodies responsible for protecting human rights.

Does the Bill ensure this? PARTIALLY. The Commission will be able to co-operate with other bodies, for example through paragraph 17 of the Second Schedule, but the Bill does not require or encourage it to do so. Under section 100R(7) of the Constitution, the Commission can refer cases to the Public Protector or take over cases from him or her.

• A national human rights institution must develop relations with NGOs that promote and protect human rights.

Will be Bill ensure the ZHRC does this? NO. NGOs are not mentioned in the Bill.

How will ZHRC be Rated by the International Co-ordinating Committee?

It is clear that, if the Bill is passed in its present form, the Commission will fall short of international standards and cannot hope to be awarded an “A” classification. It would rate at the very most a “B” [a “C” is almost the equivalent of zero and it just escapes this]. The Commission, therefore, will not be fully recognised by the United Nations Human Rights Council or the African Commission on Human and Peoples’ Rights. This is a great pity, as Zimbabwe needs to take its rightful place in the community of nations. While it is understood the Bill is a result of party political compromises, it is to be hoped that Parliament will put party differences aside and amend the Bill to strengthen the Commission and justify an “A” classification, enabling it to participate fully in important activities of the UN and AU. The existence of an effective, internationally accepted Commission would also strengthen Zimbabwe’s case for the lifting of sanctions.

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