Explanatory memorandum of draft INCHR ACT

INCHR Act: An Explanatory Memorandum of 8 September 2004

The Independent National Human Rights Commission (INCHR) is established under Article 12 of the Comprehensive Peace Agreement, and the NTGL should be commended for the speed with which it has prepared this draft. This explanatory memorandum not only analyses the features of the NTGL draft, but also comments on the improvements that the UNMIL considers important, including justification for the change.

Fundamentals of the Draft Act

The Government draft tried to capture many important features of a good national institution – its mandate trying to guarantee the type of independence, composition, and adjunct powers that are clearly explicated in the Paris Principles of 1993 concerning the status, powers and functioning of national human rights institutions. They show the willingness to create a national human rights institution of an acceptable standard.
Powers of the INCHR

Article III states the powers of the Commission including the power to investigate human rights complaints, conduct hearings, make determinations and recommendations, monitor human rights violations and give advice and assistance in the implementation of national and international human rights standards, etc.

Article IV lists the functions of the INCHR to carry out these powers. In this Article, the role of the INCHR as a tool for human rights education is highlighted.

Article V provides that where any person refuses to appear before the INCHR, it may apply to the County Circuit Court for a subpoena to compel attendance.

Article VI establishes the categories of person who may be granted immunity from prosecution by the INCHR following their cooperation with investigations, hearings etc.

Article VII empowers the INCHR to award reparation or compensation to victims whose rights have been violated by government officials, security personnel or private citizens.

Composition and structure of the INCHR

Article VIII establishes the composition of the INCHR as being a Chairperson and six Commissioners and deals with the required qualifications.

Article IX lists the functions of the Chairman of the INCHR.

Article XI provides the role of the INCHR Executive Director.

Article XII describes the structure of the INCHR and lists its five departments.

Article XIII provides for the replacement or dismissal of a Commissioner.

Article XIV provides for the good behavior tenure of each commissioner.

Article XV attempts to deal with the non-political nature of the INCHR.

Article XVIII grants the INCHR the status of a non profit organization and a tax exempt standing with duty free privileges.

Article XIX stipulates rules about accountancy, transparency and funding in order to enhance the operational efficiency of the INCHR.

Many good Articles of the Government draft like Article III dealing with power of the Independent National Commission on Human rights; Article IV dealing with functions of the Commission; and Article XVI dealing with its subject matter jurisdiction aimed at capturing some of the fundamentals of the national institutions. The draft also tried to give the Commission a broad mandate based on the Constitution and universal human rights standards and attempted to ensure autonomy from government in its subject matter jurisdiction. Article V of the Government draft gave the Commission powers to bring under its jurisdiction those accused of human rights violations based upon complaints from the aggrieved parties. In cases the accused refused to appear before the Commission, the Commission was empowered to apply to any Circuit Court for a writ of arrest to compel the accused to appear before it. Article VI talked about the immunities from prosecution for those whose cooperation for the Commission is considered crucial to bring the other significant human rights violators on board. The draft Act also gave discretion to the Commission not to investigate a case when it is found frivolous or vexatious. Above all, Article VII empowered the Commission to award reparation or compensation to victims whose rights have been violated by government officials, security personnel or private citizens.

In the organizational side, Article VIII of the Government draft dealt with the composition of the Commission. Article XIII dealt with replacement or dismissal of a commissioner, when there is a need for it. Articles IX – XI dealt with the functions of the Chairman, Vice-Chairman and of Executive Director. However, they touched on the related issues briefly. Article XIV provided that each member of the Commission is to hold office during good behavior. Article XV wanted to deal with the non-political status of the Commission, although the details specified something else. Article XII divided the Commission into five Departments according to the Commission’s functional requirements. Article XVIII gave the commission the status of a non profit organization and a tax exempt standing with duty free privileges. Also provided were the provisions regarding accountancy, transparency and funding, which in order to enhance the operational efficiency of the Commission.

Overall, the draft showed a general willingness on the part of the Government to create a national institution capable to meet the current requirements of Liberia.

Rationale for Proposed Amendments

At an UN-sponsored meeting of representatives of national institutions in Paris in 1991, a detailed set of principles known as the Paris Principles on the status of national institutions was developed, which we must comply with as the minimum bench marks for a national institution like the INCHR. These principles, subsequently endorsed by the UN Commission on Human Rights and the General Assembly, have become the foundation and reference point for United Nations activity in the area. These Principles are important because they sets out to clarify the concept of a 'national institution' by providing minimum standards on the status and advisory role of national human rights commissions.

The Government draft gives a good beginning. This draft is a brief document intending to deal with many important issues in a few Articles, selectively, and often with shorthand expression with the potential of leading to confusion in their implementation. Similarly, the draft also lacked some additional substantial provisions, providing comprehensive legal norms for its operations.

These comments point towards the need to build on these provisions and expand them to further consolidate the provision regarding competence and responsibilities of the Commission; composition and guarantees of independence and pluralism; methods of operation; and additional principles concerning the status of the Commission which has to work with quasi-jurisdictional competence. The Commission needs various civil court powers to exercise its power of inquiry and investigation, and also needs various remedial options upon the completion of an inquiry or investigation under the Act. A system of checks and balances is also necessary to ensure that the appointment process of the Chairperson and other commissioners is politically neutral. While the terms of office have been unlimited, with good behavior tenure, there is no guarantee for a pluralistic and representative composition. This is important for ensuring independence from the executive branch.

The emplacement or enhancement of a national human rights protection system in each country, reflecting international human rights norms, is the principal objective of the United Nations Organization in the human rights sector. An independent national human rights institution can be an integral part of such a national human rights protection system. Such an institution at the country level is what in the long run will ensure that human rights are protected and advanced in a sustained manner.

To ensure its effectiveness, the Commission must be independent from the Government. In order to achieve this goal, the Paris Principles identified three conditions. First, the composition of any national institution and the appointment or election of its members shall reflect pluralist representation of the social forces of the society, such as NGOs, universities qualified experts, parliament members, trends of philosophical or religious thoughts and government departments. Second, a national institution shall have the infrastructure that allows for the smooth conduct of its activities, in particular, adequate funding, and qualified staff. Finally, the appointment of members of a national institution shall be by official act, which establishes the specific duration of their mandate, so as to ensure fearless and impartial action in defense of human rights.

Concerning the relations between a national institution and the UN, the Paris Principles stated that one of the functions of a national institution is “to cooperate with the United Nations and any other organization in the United Nations system”, and “to contribute to the reports which States are required to submit to United Nations bodies and committees … pursuant to their treaty obligations and, where necessary, to express an opinion on the subject, with due respect for their independence”. This must be adequately reflected in the proposed law.

It should be noted that while the Paris Principles are a good starting point for analysis of the draft Act, they are not enough to create a system. As such, the proposed amendments, which have been incorporated in the accompanying text, attempt to make the INCHR a strong, effective, and sustainable institution by going beyond the Principles and adapting from the experience of other similar institutions around the world.

Proposed amendments as contained in the revised draft

The Preamble now contains a clear reference to Liberia’s commitment to the Universal Declaration of Human Rights (1948), which has been accepted around the world as the codification of the customary international law of human rights.

Article III dealing with the power of the INCHR has now been restructured giving “general competence” to the Commission to protect and promote human rights, reflecting on the Paris principles. Section 2 provides an internationally accepted definition of “human rights”, in order to avoid any confusion in the future application of the law. Without affecting the “general competence” of the INCHR, Section 3 now elaborates some of its powers in accordance with those set out in the Paris standards. In particular, it is proposed that the Commission be authorised and empowered to inquire a case on suo motu basis [Article III.3(a)]. Further, it is proposed that the INCHR be empowered to intervene, subject to approval of the court, in any proceeding involving any allegation of violation of human rights pending before a court. [Article III.3 (h)].

Article III also contains clear provisions on the INCHR mandate to receive complaints and investigate individual human rights violations. It has now various civil court competences to exercise its power of inquiry and investigation, and can choose various remedial options upon the completion of an inquiry or investigation under the Act. In this case, the INCHR may seek to settle a dispute by consultation or mediation between the individual and the governmental body; to inform the alleged victim(s) of their rights; and of the hearing of their complaints, or alternatively to transmit them to another competent authority.

Article IV now expressly guarantees the authority of INCHR to provide advice to the Government. INCHR may submit, by a request of competent authority or upon their own initiative, opinions, recommendations and reports on any matter concerning the promotion and protection of human rights. Such advisory action include the review of draft legislation and administrative actions and proposals to amend existing legislation or initiate new drafts in order to improve the general human rights situation or stop certain violations; preparation of national human rights reports.

Article IV is amended to strengthen INCHR’s role as the primary advisory body to the Government on the implementation of Liberia’s international human rights obligations. The INCHR has the responsibility to promote and ensure the harmonization of national legislation and governmental practices with the international human rights instruments to which Liberia is party; to encourage ratification of, or accession to, these instruments, and to ensure their implementation.

Article V is a new addition to the draft. It establishes the operational method for the Commission. In view of the mutually beneficial relationship between NGOs and national human rights institutions, this proposed Article expressly provides that the INCHR shall develop relations with the human rights NGOs and other civil society groups.

Article VI is amended to strengthen the quasi-judicial status of the Commission. The proposed amendment bestows on INCHR those powers necessary for the inquiry or investigation of human rights violations. Going beyond the provision of subpoena power, the proposed amendment empowers the Commission to exercise the power of discovery and production of any document, receive evidence on affidavits, requisition any public record, issue commissions for the examination of witnesses or documents, etc.

The new provisions included in Article VI of the revised draft entitle the Commission to take any of the several steps upon the completion of an inquiry or investigation held under this Act. They provide clear cut guidance to the INCHR on how to handle the case it decided to take up.

Articles IX – XI elaborate on the original draft Act’s provisions regarding the composition of INCHR, the qualifications of Chairperson and other Commissioners, their functions, and the rules for the Commission meeting, and the rights and responsibilities of the Executive Director. All inadequacies in the original formulations have been supplemented with adequate provision. It has now been expressly stated that the decision of the majority of the members of the commission present at a meeting thereof shall be the decision of the Commission, and in the event of an equality of votes concerning any matter, the member presiding shall have a casting vote.

Article XIII of the original draft has been revisited to create a suitable internal structure for the Commission. The revised structure makes it possible for each department within the INCHR to specialize on its area of competence.

Article XVI is a new addition to the original draft. Some important rules have also been developed to guarantee the independence of the employees of (or those working for) the Commission.

Article XIX now includes a number of new provisions to better regulate issues involving funding, accountability and transparency. A new section added to this Article maintains that the INCHR, to exist and function as a full autonomous body both with respect to its administration and finances, shall have financial autonomy and its budgetary allocations be not in any way connected to or place under the budget of any other agency, ministry or institution of the Government.

Article XX deals with many crucial provisions not included in the original draft but which will be essential for the efficiency of the INCHR. One ideal provision states that all organs of state shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission. Another significant provision states that notwithstanding anything contained in this or any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special investigation teams, for purposes of investigation and prosecution. This means that the human rights responsibility of the Government is not over just by creating the INCHR.

Article XX also provides that the INCHR may delegate its powers, frame its own rules, and the power to remove difficulties in the implementation of this Act. Similarly, it also provides that all communications of the Commission to the Government shall be channeled through the Office of the President. This provision helps to establish the high status of the INCHR within the administration of the Government.

While the Paris Principles are a good starting point as normative principles, their limitations are best illustrated by examining the record of activities of human rights commissions. As such, the present draft tries to make the INCHR strong, effective, and sustainable institution, by going beyond, and learning more from the experience of other similar institutions around the world.

(Courtesy: Councellor Bipin Adhikari)

Independent National Commission on Human Rights (INCHR) Act 2005

AN ACT TO REPEAL THE ACT OF 1997 CREATING THE LIBERIA COMMISSION ON HUMAN RIGHTS AND TO CREATE THE INDEPENDENT NATIONAL COMMISSION ON HUMAN RIGHTS OF LIBERIA

PREAMBLE

Whereas the Constitution of the Republic of Liberia guarantees to each citizen and resident certain inalienable and fundamental rights and liberties;

Whereas the Republic of Liberia is a founding member of the United Nations and the Organization of African Unity (OAU), now the African Union, and a signatory to its Charter, which expresses strong commitment to the principle of human rights;

Whereas the Government of Liberia has expressed its firm faith in the Universal Declaration of Human Rights adopted and proclaimed by the United Nations General Assembly Resolution 217 A (III) of 10 December 1948 and is a party and signatory to a wide range of international human rights and humanitarian treaties and conventions which re-emphasize and re-confirm these basic inalienable rights; and

Whereas the Article XII of the Comprehensive Peace Agreement signed in Accra on the 18th August 2003 provides for the creation of an Independent National Commission on Human Rights (INCHR);

NOW THEREFORE, IT IS HEREBY ENACTED BY THE NATIONAL TRANSITIONAL LEGISLATIVE ASSEMBLY IN LEGISLATURE ASSEMBLED:

ARTICLE I
NAME

There is hereby established the independent national human rights institution named and styled the Independent National Commission on Human Rights (INCHR) (hereafter “the Commission”) as the independent and nonpolitical national human rights institution of the Republic of Liberia.

ARTICLE II
LOCATION OF OFFICES

1. The principal office of the Commission shall be located in the city of Monrovia, county of Montserrado, Republic of Liberia.

2. The Commission has the right to establish and maintain branch offices in such number as it may deem necessary within the Republic of Liberia and close or terminate any of them, and thereafter reopen and reactivate them according to its requirement.

ARTICLE III
POWERS OF THE COMMISSSION

The Commission shall have general competence to protect and promote human rights in the Republic of Liberia according to the provisions of this Act, the Constitution and other relevant laws of Liberia.

In this Act, “human rights” means –

(a) the rights, liberties and freedoms conferred on, or guaranteed to, persons by the Constitution and the laws of the Republic of Liberia, and

(b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the Republic of Liberia is a party.

Without affecting the generality of the competence vested in the Commission by section 1, the Commission is, among other things, authorized and empowered -

(a) to inquire or investigate, suo motu or on a complaint presented to it by a victim or any person on his/her behalf, into a complaint of violation of human rights or abetment thereof or negligence in the prevention of such violation by the State, any of its functionaries, or public servants, or any other related person;

(b) to exercise powers to handle such complaints, investigate human rights violations and conduct hearings consistent with the due process of law. In this regard, the Commission may -

(1) pass the necessary order or orders upon the completion of inquiry or investigation according to Article VI, section 9 and Article VIII;

(2) inform the party who filed the complaint of his/her rights, in particular the remedies available to him, and promote his/her access to them;

(3) transmit the complaint to any other competent authority within the limits prescribed by the law; and

(4) propose amendments or reforms of laws, regulations or administrative practices to the competent authorities, especially if the laws, regulations or administrative practices have hindered or unreasonably complicated the filing of a complaint by a complainant.

(c) to recommend the concerned authority or functionary of the State for prosecution or such other action as the Commission may deem fit against the concerned person or persons, or in appropriate cases, as prescribed by the rules made in this regard, and with the consent of the concerned parties to seek an amicable settlement of the case through conciliation;

Provided that the purpose of the conciliation shall be only to rectify any act or omission, emanating from or constituting a violation or threatened violation of human rights.

(d) to monitor the general situation of the civil, political, social, economic and cultural rights of the citizens and residents of the Republic of Liberia;

(e) to conduct free and unfettered on-site inspections and investigations, if necessary without the prior consent of the concerned authority, including powers to visit all civil, military and paramilitary places of detention in the Republic of Liberia;

(f) to make determinations, referrals and recommendations to the appropriate authorities concerning matters which it has been conciliating or investigating;

(g) to act as an amicus curiae in any proceedings involving any allegation of violation of human rights pending before a court, with the approval of the court;

(h) to institute proceedings in any court of competent jurisdiction for the purpose of obtaining relief of a declaratory or other nature in respect of any matter concerning the human rights of any person or class of persons; and

(i) to give advice and assistance to the Government in the implementation of national and international human rights standards in Liberia.

ARTICLE IV
FUNCTIONS OF THE COMMISSION

The functions of the Commission are:

to take up any situation of violation of human rights, which it may deem necessary, for necessary action according to this Act;

to hear and consider complaints and petitions concerning human rights violations brought before it by victims, their representatives, third parties, non-governmental organizations, associations of trade unions or any other representative organizations;

to submit to the Government, Senate and any other competent body, on an advisory basis, either at the request of the authorities concerned or on its own motion, opinions, recommendations, proposals and reports on any matters concerning the protection and promotion of human rights;

to examine the legislative and administrative provisions in force, as well as bills and proposals, and make such recommendations as it deems appropriate in order to ensure that these provisions conform to the international human rights standards or instruments. The Commission, shall, as it deems appropriate, recommend the adoption of new legislation, the amendment of legislation in force, or both, and the adoption or amendment of administrative measures;

to prepare reports on the national situation with regard to human rights in general, and on more specific matters;

to draw the attention of the Government to human rights violations in any part of the country and make proposals to it for initiatives to put an end to such situations and, where necessary, to express an opinion on the actions of the Government in response to such violations;

to promote and ensure the harmonization of national legislation, regulations and practices with the international human rights instruments to which the Republic of Liberia is a State party, and their effective implementation;

to encourage ratification of these instruments which the Republic of Liberia has not yet ratified, or accession to those instruments, and to promote their implementation by the Government;

to contribute to the preparation of reports which the Republic of Liberia is required to submit to the relevant United Nations bodies and committees, and to regional institutions, pursuant to the State’s treaty obligations, and, where necessary, to express an opinion on the subject, with due respect for the independence of the Commission;

to cooperate with the United Nations and any agency in the United Nations system or related to the United Nations system, the African Commission on Human and Peoples’ Rights, other regional institutions and the national institutions of other countries which are competent in the areas of the protection and promotion of human rights;

to assist in the formulation of programs for the teaching of, and research into, human rights and to take part in their execution in schools, universities and professional circles;

to publicize human rights and efforts to combat all forms of discrimination, in particular ethnic discrimination, by increasing public awareness, especially through the dissemination of information and education and by making use of State and public media organs;

to act as a source of human rights information for the Government and people of the Republic of Liberia;

to assist in educating public opinion and promoting awareness and respect for human rights and international humanitarian laws, treaties and protocols to which the Republic of Liberia is a party;

to act upon any legislative or administrative provisions as well as provisions relating to judicial organizations, intended to preserve and extend the protection and promotion of human rights;

to prepare quarterly and annual reports on the national human rights situation generally and on more specific matters such as armed aggression against the Republic of Liberia, internal conflicts, crimes against humanity, war crimes, torture and genocide; and

to prepare and submit written annual reports to the heads of the three branches of the Government.

ARTICLE V
METHOD OF OPERATION

1. Within the framework of its operation, the Commission shall:

(a) freely consider any questions falling within its competence, whether they are submitted by the Government or taken up by the Commission without referral from a higher authority, or on the proposal of a Commissioner or of complainant,

(b) hear any person and obtain any information and any documents necessary for assessing situations falling within its competence;

(c) address public opinion directly or through any media organ, particularly in order to publicize its opinions and recommendations;

(d) meet on a regular basis and whenever necessary in the presence of all its Commissioners after they have been duly consulted;

(e) establish working groups from among its members as necessary, and set up local or regional sections to assist it in discharging its functions; and

(f) maintain consultation with the other bodies, whether jurisdictional or otherwise, responsible for the protection and promotion of human rights.

2. In view of the fundamental role played by the non-governmental organizations in expanding the work of the national institutions, the Commission shall develop relations with the non-governmental organizations devoted to protecting and promoting human rights, to economic and social development, to combating ethnic discrimination and racism, to protecting particularly vulnerable groups such as children, women, refugees, physically and mentally disabled persons or to other specialized areas.

ARTICLE VI
SUBPOENA AND OTHER QUASI-JUDICIAL POWERS

1. The Commission, while inquiring or investigating into complaints under this Act, shall have all the powers of a civil court trying a suit under the Civil Procedure Law of Liberia, and shall have subpoena powers to bring within its jurisdiction those accused of human rights violations based upon complaints from the aggrieved parties, or on suo motu basis. Such powers may extend to –

(a) issuance of a summons and enforcement of the attendance of witnesses and examination of them on oath;

(b) discovery and production of any document;

(c) receiving of evidence on affidavit;

(d) requisitioning of any public record or copy thereof from any court or office;

(e) issuance of commissions for the examination of witnesses or documents; and(f) any other matter which may be prescribed.

2. The Commission shall have the power to require any person, subject to any privilege which may be claimed by that person under any law for the time being in force, to furnish information on such points or matters as, in the opinion of the Commission, may be useful for, or relevant to, the subject matter of the inquiry or investigation and any person so required shall be deemed to be legally bound to furnish such information subject to the criminal law of the country.

3. The Commission or any officer authorised by the Commission in its behalf may enter any building or place where the Commission has reason to believe that any physical evidence or document relating to the subject matter of the inquiry or investigation may be found, and may seize any such physical evidence or document or take extracts or copies or photographs thereof subject to the existing provisions of Criminal Procedure Law, in so far as it may be applicable.

4. In case any person refuses to appear before the Commission, in the context of an inquiry or investigation, the Commission may apply to any Circuit Court for a writ of arrest to compel the accused to appear before it.

5. The Commission may, for the purpose of conducting any investigation pertaining to the inquiry, utilize the services of any officer or investigation agency of the Government of Liberia according to its requirements.

6. For the purpose of investigating into any matter pertaining to the inquiry, any officer or agency whose services are utilized under section 5 may, subject to the direction and control of the Commission, issue a summons and enforce the attendance of any person and examine him or her; require the discovery and production of any document; and requisition any public record or copy thereof from any office and perform any necessary forensic or other tests as required.

7. The Commission shall satisfy itself about the correctness of the facts stated and the conclusion, if any, arrived at in the report submitted by the officer or agency whose services are used by the Commission in accordance with section 5 and for this purpose the Commission may make such inquiry or investigation (including the examination of the person or persons who conducted or assisted in the investigation) as it thinks fit.

8. The Commission while inquiring into the complaints of human rights violations or in the course of their investigation may call for information or report from the Government or any other authority or organization subordinate thereto within such time as may be specified by it.

Provided that if the information or report is not received within the time stipulated by the Commission, it may proceed to inquire or investigate into the complaint on its own; and if, on receipt of information or report, the Commission is satisfied either that no further inquiry or investigation is required, or that the required action has been initiated or taken by the Government or the concerned authority, it may not proceed with the complaint and inform the complainant accordingly.

9. The Commission may take one or more of any of the following steps where the inquiry or investigation held under this Act discloses the commission of a human rights violation, or negligence in the prevention of a human rights violation by the State, or any of its functionaries, or public servant, or any other related person:

(a) recommend to the Government or the concerned authority the initiation of proceedings for prosecution or such other action as the Commission may deem fit against the concerned person or persons;

(b) approach, according to the law of the land, the Supreme Court or the Circuit Court concerned for such directions, orders or writs as that Court may deem necessary; and

(c) recommend to the Government or the concerned authority for the grant of such immediate interim relief to the victim or the members of his/her family as the Commission may consider necessary.

10. The Commission shall provide a copy of the inquiry or investigation report to the complainant or his or her representative.

11. The Commission shall send a copy of its inquiry or investigation report together with its recommendations to the Government or the concerned authority and the Government or the concerned authority shall, within a period of one month, or such further time as the Commission may allow, forward its comments on the report, including the action taken or proposed to be taken thereon, to the Commission.

ARTICLE VII
IMMUNITIES

1. Any person appearing before the Commission may be granted immunities from prosecution growing out of testimony in any or all of the below categories:

Eyewitnesses, jurors, subordinates or subjects whose principal and /or superiors perpetrated a human rights violation as a result of which he/she was invited to testify to the extent that his /her testimony will expose and lay bare the truth and facts of a given case;

A low ranking officer or agent who, while acting on the orders of a principal or superior, perpetrated a human rights violation, and at that time he/she was coerced or under imminent danger to his/her life or security from his/her principal or superior.

A suspected perpetrator, whose testimony is considered by the Commissioners likely to hold the potential to provide directly relevant information revealing otherwise hidden human rights violations to which he/she was a participant directly or indirectly provided he/she was not the principal or main actor.

2. In any case, the immunity from prosecution granted under Section 1 will be conditional upon a full and frank disclosure of related information and shall in no circumstances be extended to a testifying person who has committed any crime against humanity.

ARTICLE VIII
COMPENSATION

Notwithstanding anything stated in Article VI section 9, the Commission may make an order for compensation to victims whose rights have been violated by the State, any of its functionaries, or public servant, or any other related person.

Such compensation shall be paid by the concerned authority of the State as though the victim has been awarded damages by a judge following a civil suit against the State .

Notwithstanding the provision of Section 1, the Commission, if it deems necessary, may order the concerned violator to bear the cost of the compensation, either in full or in part, himself or herself in the stead of the State or any of its functionaries.

The award shall aim to compensate the victim for the losses or of injuries sustained during the violation of human rights, according to the Commission’s discretion and depending on the gravity of the violation. The award of compensation need not be limited to financial compensation and the Commission shall consider what other actions would be necessary to provide the necessary relief to the complainant.

The State or any person ordered to bear the compensation in accordance with section 2 above, or the complainant or his or her representative may lodge an appeal to the Supreme Court for the judicial review of such order within 30 days of receiving the notice of the order.

ARTICLE IX
COMPOSITION OF THE COMMISSION

1. The Commission shall comprise the Chairperson and six other Commissioners who will exercise the powers conferred upon the Commission, and perform the functions assigned to it, under this Act. The Chairperson and the Commissioners shall be the full time officials of the Commission.

2. The Chairperson and all Commissioners shall be appointed by the Chairperson of the Transitional Government /President of Liberia, by and with the consent of the Transitional Legislature/Senate.

3. The Chairperson of the Transitional Government/President of Liberia shall consider only such persons for the purpose of appointment for the position of the Chairperson or Commissioners who are on the list of persons recommended for this purpose by an independent committee of experts formed by the Chief Justice of the Republic of Liberia in consultation with the civil society organizations.

4. The Chairperson shall be a senior lawyer with a proven professional excellence and commitment to human rights and the rule of law.

5. The Commissioners shall elect a Vice-Chairperson for the Commission from among themselves by a two-third majority vote.

6. The composition of the Commissioners thereby appointed shall reflect, to the extent possible, the pluralist nature of Liberian society in terms of sex, ethnicity, language and religion and shall also have the representation of nongovernmental organizations or professional associations involved in the protection and promotion of human rights, or such bodies as universities, the legislature, and other civil society groups.

7. A person eligible for appointment as the Chairperson or Commissioner must also possess the following qualifications:

(a) be a national of Liberia

(b) have attained forty years of age, and

(c) not be convicted by a court of any criminal offence involving moral turpitude.

ARTICLE X
FUNCTIONS OF THE CHAIRPERSON

The Chairperson of the Commission shall be the administrative head of the Commission.

The Chairperson, in consultation with Commissioners, may allocate responsibilities between Commissioners, which may include policy making and supervisory responsibilities.

3. The Commission may perform any of its functions through or by any member of the staff of the Commission duly authorised by the Commission.

The Chairperson shall preside over all meetings of the Commission and shall also be the spokesperson of the Commission.

The Chairperson shall make administrative decisions for the welfare of the Commission.

6. The Chairperson shall represent the Commission in all conferences, except where he or she designates any of the Commissioners, or member of staff to represent the Commission.

The Vice-Chairperson of the Commission shall be the deputy to the Chairperson and shall perform all responsibilities of the Chairperson in his or her absence or incapacity.

The Executive Director of the Commission shall be appointed by the Chairperson in consultation with the Commissioners.

9. The Chairperson may delegate any of the powers conferred on him or her under this Act to the Vice-Chairperson or any Commissioner or employee of the Commission or to an officer of Government of Liberia or to the committee or sub-committee that may be constituted under this Act or to any person.

ARTICLE XI
MEETINGS OF THE COMMISSION

1. The Commission shall meet at such time and place as the Chairperson may think fit.

2. The Commission shall normally meet twice a month.

3. If four Commissioners are present in a meeting of the Commission, they shall be deemed to constitute the quorum for the meeting.

4. The decision of the majority of the Commissioners of the Commission present at a meeting thereof shall be the decision of the Commission. In the event of a tie, the Chairperson shall exercise the casting vote.

5. The Commission shall regulate its own procedure.

6. All Commissioners including the Chairperson shall serve impartially and independently and exercise or perform his or her powers, duties and functions in good faith and without fear, favor, bias or prejudice.

7. No Commissioner and/or member of staff shall conduct or materially assist in an inquiry or investigation or render assistance with regard thereto in respect of a matter in which he or she has any pecuniary or any other interest which might preclude him or her from exercising or performing his or her powers, duties and functions in a fair, unbiased and proper manner.

8. If any Commissioner and/or member of staff fails to disclose an interest contemplated in section 7 above and conducts or renders material assistance to an inquiry or investigation, while having such an interest in the matter under investigation, the Commission may take such steps as it deems necessary to ensure a fair, unbiased and proper investigation.

9. No act or proceedings of the Commission shall be questioned or shall be invalidated merely on the ground of existence of any vacancy or defect in the constitution of the Commission.

10. The Commission shall, as soon as practicable after its establishment, provide itself with a seal which shall be authenticated by the signatures of the Chairperson, or some other member of the Commission authorised by it to act on its behalf, and of an officer of the Commission authorised by it to act in that behalf.

11. Judicial notice shall be taken of the seal of the Commission and any document purporting to be an instrument made by the Commission and to be sealed with the seal of the Commission shall be received in evidence and be deemed to be such instrument without proof, unless the contrary is shown.

12. All orders and decisions of the Commission shall be audited by the Executive Director or any other officer of the Commission duly authorised by the Chairperson so to do.

ARTICLE XII
THE EXECUTIVE DIRECTOR

The Executive Director shall hold office under a written contract of service (which contract may be renewed ) for five years , and subject to such terms and conditions (including terms and conditions relating to remuneration, allowances or benefits and to suspension and termination of employment) as are so specified.

The Executive Director shall manage and control generally the staff, administration, management and business of the Commission, and shall perform such other functions as may be conferred on him or her by or under this Act or by the Commission.

The Executive Director shall be responsible to the Commission for the performance of his or her functions and the implementation of the Commission’s policies.

The Executive Director shall be the liaison between the Chairperson and Commissioners and the employees. H e or she shall serve as Secretary to the Commissioners during plenary meetings. He or she shall also execute the policies and plans of the Commission, formulated by the Commission and shall report directly to the Chairperson.

The Executive Director shall represent the Commission in discussions, meetings and correspondence with the Government and local authorities as directed by the Commission.

The Executive Director may, from time to time, with the consent of the Commission, authorize one or more members of staff of the Commission to perform a specified function of the Executive Director and such a member or members who is or are so authorised may perform that function accordingly.

The functions of the Executive Director may be performed during his or her absence or when the position of the Executive Director is vacant by such member of the staff of the Commission as may, from time to time, be designated for that purpose by the Commission.

ARTICLE XIII
ADMINISTRATIVE STRUCTURE OF THE COMMISSION

1. The INCHR shall consist of at least the following administrative departments:

(a) The Department of Administration and Budget
(b) The Department of Planning, Internal Monitoring and Evaluation
(c) The Department of Complaints, Investigation and Monitoring
(d) The Department of Legislative Assistance, Treaty Matters and Law
(e) The Department of Education, Training and Information

2. The Commission may create necessary units under each department according to its changing requirements.

ARTICLE XIV
REPLACEMENT OR DISMISSAL OF A COMMISSIONER

Were a Commissioner to die, resign or be dismissed from office consistent with clause (2) below, or is incapacitated and or is unable to perform the duties of his /her office, the Chairperson of the Transitional Government /President shall appoint a replacement in accordance with Article IX of the Act.

The Chairperson of the Transitional Government /President may dismiss from office any commissioner upon impeachment and conviction by the Legislature based on proved gross misconduct in a court of law for treason, bribery, misapplication of entrusted property, or other felonies.

ARTICLE XV
TENURE OF COMMISSIONERS

The Chairperson of the Commission shall hold office for six years. Other Commissioners shall hold office for five years.

A Commissioner shall not hold any other public or Government office upon incumbency.

A Commissioner shall not engage in any other occupation, business or profession or any other activities for which he or she is paid.

A Commissioner shall not hold any position incompatible with the proper performance of his/ her official duties. Within ten days following his or her appointment and before taking office, he or she must resign from any position incompatible within this section or with the office of Commission; otherwise the nominated person is barred from accepting the appointment.


ARTICLE XVI
EMPLOYEES OF THE COMMISSION

(1) All employees working at the Commission shall be under the discipline, supervision and functional control of the Commission.

(2) The Commission may appoint employees as may be required to carry out its functions, and the service, terms and facilities of the employees so appointed shall be as prescribed by the rules framed by the Commission.

(3) The Commission may request the Government to provide its employees as shall be required by the Commission for its operation. It shall be the duty of the Government to provide such employees.

(4) In case the Commission requests any Government office for assistance in the performance of its functions, the office so requested must provide the required assistance.


ARTICLE XVII
DISCRETION NOT TO INVESTIGATE

The Commission may at its discretion decide not to inquire into or investigate or discontinue an inquiry into or investigation of a compliant if:

(a) an adequate remedy or appeal right already exists which the complainant could be reasonably expected to use regardless of whether the complainant has used it;

(b) the complaint is trivial, frivolous, vexatious or not made in good faith,

(c) considering all the circumstances of the complaint further investigation is unnecessary;

(d) the complainant has had knowledge of the act for more than two years before making any complaint regarding the violation and has no reasonable explanation for not pursuing a remedy or appeal or filing a complaint

(e) the complaint or one substantially like it has been previously investigated; or (f) the complainant’s identity has not been disclosed to the Commission.

If the Commission decides not to investigate, or to cease an investigation into a complaint, it shall inform the complainant of that decision and state the reasons for the decision.

If the Commission decides not to investigate the complaint, it may notify the relevant Government agency of the decision. Notice given under this section shall be in writing.

ARTICLE XVIII
NON-PROFIT, TAX EXEMPT STATUS

The Commission shall be a non-profit organization and have a tax exempt status with duty free privileges pursuant to section 2.5 and 13.10 of the Revenue and Finance law, Vol. VI ,LCL Revised , as amended, as such other laws as may be hereinafter be enacted and shall be registered with the Ministry of Finance as a tax exempt entity.


ARTICLE XIX
FUNDING, ACCOUNTABILITY AND TRANSPERENCY

1. In order to enhance the operational efficiency and independence of the Commission, the Government of the Republic of Liberia shall ensure its adequate resources to the Commission following consultations with the legislature, Director General of the Budget and the Commission.

2. The Commission, to exist and function as a fully autonomous body with respect to its administration and finances, shall have financial autonomy and its budgetary allocations shall not in any way be connected to or placed within the budget of any other agency , ministry or institution of the Government.

3. The Commission may request, make proposal and obtain external funding from private, international, non-governmental organizations, or inter-governmental agencies, individuals, and corporate donors at home or abroad. The amount of financial assistance received pursuant to this section shall be expended in accordance with the terms agreed upon between the donor and the Commission.

4. The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the law

5 The Accounts of the Commission shall be audited by the General Auditing Commission at such intervals as may be specified by it and any expenditure incurred in connection with such audit shall be payable by the Commission to the General Auditing Commission. The Commission may also elect to have its accounts audited by an independent auditing company recognized by law in the Republic of Liberia.

6. The General Auditing Commission or any person appointed by it in connection with the audit of the accounts of the Commission under this Act shall have the same rights and privileges and the authority in connection with such audit as the General Auditing Commission has in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.

7. The accounts of the Commission as certified by the General Auditing Commission, and of the private sector auditor, if any, together with the audit report thereon shall be forwarded to the Government, which shall cause the audit report to be laid as soon as may be after it is received before the Senate.

8. The Executive Director shall, whenever so required by the Senate, or its concerned Committee, on the appropriation accounts and reports of the General Auditing Commission, give evidence on –

(a) the regularity and propriety of the transactions recorded or required to be recorded in any book or other record of account subject to audit by the General Auditing Commission which the Commission is required by this Act to prepare.

(b) the economy and efficiency of the Commission in the use of its resources;

(c) the systems, procedures and practices employed by the Commission for the purpose of evaluating the effectiveness of its operations; and

(d) any matter affecting the Commission referred to in the report of the General Auditing Commission under its enabling law.

9. As a policy to ensure accountability, the Commission shall submit detailed quarterly and annual reports on its activities and programs to the Legislature, the Judiciary and the Executive branch. The reports shall also be accessible to the public and the international community.

10. Transparency, through publication and information dissemination shall be the policy of the Commission.

11. The Commission shall, before the expiration of the period of two years from the establishment day, present to the Government a report containing such recommendations as it thinks fit for improving-

(a) the effectiveness of the Commission, and

(b) the effectiveness of any of the functions conferred on it by this Act, particularly having regard to any developments in the field of human rights that have occurred in the said period of two years (whether within or outside the state)

ARTICLE XX
MISCELLANEIOUS

1. All organs of State shall afford the Commission such assistance as may be reasonably required for the protection of the independence, impartiality and dignity of the Commission.

2. No organ of State and no member or employee of an organ of State nor any other person shall interfere with, hinder or obstruct the Commission, any Commissioner or the employee thereof in the exercise or performance of its, his or her powers, duties and functions.

3. Notwithstanding anything contained in this Act or any other law for the time being in force, where the Government considers it necessary so to do, it may constitute one or more special inquiry or investigation teams, consisting of such police officers as it thinks necessary for purposes of investigation and prosecution of offences arising out of violations of human rights.

4. No suit or other legal proceeding shall lie against the Commission or any Commissioner thereof or any person acting under the direction of the Commission in respect of anything which is done in good faith or intended to be done in pursuance of this Act or of any rules or any order made hereunder, or under the authority of the Commission.

5. All communications of the Commission to the Government shall be channeled through the Office of the President to ensure its urgent attention on the matters of the Commission’s interest.

6. The Commission may, in order to carry out the objectives of this Act, frame necessary rules and procedures consistent with this Act, the Constitution and other statutory laws of Liberia. While doing so the Commission may consult the Ministry of Justice or other entities of the state.

Provided that in making rules relating to remuneration and facilities, the Commission shall be required to be consulted.

7. The Commission shall be a body with perpetual succession. It has legal personality to acquire, use, sell, dispose of or otherwise deal with movable and immovable property. It may, like an individual, sue and be sued in its own name.

8. If any difficulty arises in giving effect to the provisions of this Act, the Commission, may by order, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty. Every order made under this section shall, as soon as may be after it is made, be laid before the Senate of Liberia.

Provided that no such order shall be made after the expiry of the period of two years from the date of commencement of this Act.

ARTICLE XXI
EFFECTIVE DATE

THIS ACT SHALL BECOME EFFECTIVE AND ENTER INTO FORCE IMMEDIATELY UPON PUBLICATION INTO HAND BILLS ANY LAW TO THE CONTRARY NOTWITHSTANDING.

(Courtesy - Dr Bipin Adhikari)