What are national human rights institutions as NPMs?
National human rights institutions (NHRIs) are independent bodies, established by the state for the promotion and protection of human rights. NHRIs are accredited by the Global Alliance of NHRIs on the basis of their compliance with the Paris Principles Relating to the Status of National Institutions, adopted in 1991. These principles set some important minimum criteria for such institutions, including that they have a sound legal basis and are independent from those institutions they are tasked to oversee. Article 18 of the OPCAT states that “due consideration” should be given to them when establishing NPMs.
Most NHRIs that have been designated as NPMs were existing bodies that were granted additional powers and responsibility to perform the NPM mandate. In some countries, NHRIs have been designated as part of multiple body NPMs. In a small number of cases, they were created at the same time as they received their NPM designation.
This tool addresses different types of NHRIs, because, while there are important differences between them (see question 2 below), the opportunities and challenges they face when designated as NPMs are broadly similar. Many of the points made in this tool also apply to the small number of ombuds institutions as NPMs that are not NHRIs, including those with narrower mandates relating, for example, to specific rights, groups, or geographical areas.
What are the different types of NHRIs?
National Human Rights Ccommissions (NHRCs). The key distinguishing feature of NHRCs is that they have a multi-member elected governing body that acts collectively or collegially. These members can work full-time, part time, on a voluntary basis, or a mix of the three. Among NHRCs, there is a wide variation in their number – from three to more than thirty. In some NHRCs, members are appointed with general mandates, while others have specific responsibilities for particular human rights areas set out in the law or regulations. Members of NHRCs are supported by professional staff.
Ombuds institutions. Ombuds institutions, on the other hand, usually have only one elected member, who is full time and supported by a professional staff. The elected head of the institution may sometimes be supported by one or more elected deputies. Ombuds institutions traditionally focused on receiving and investigating complaints related to maladministration, although many now have significantly broader human rights mandates, blurring the distinction with NHRCs.
“Ombudsman plus” institutions. Some ombuds institutions have been designated as NPMs alongside civil society organisations. They are known as “ombuds plus” institutions. In most cases, formal agreements govern cooperation between the ombuds institution and NGOs, covering how they are selected and their role in NPM tasks, including during visits.
What are the advantages and challenges faced by NHRIs as NPMs?
Change of mindset.
- One of the biggest challenges for NHRIs designated as NPMs is the change of mindset required to begin working in a preventive way. Many existing institutions have long histories and experience of complaints handling and investigations. Many also conduct detention inspections based on compliance with established laws and standards. In contrast, the work of an NPM is forward-looking, multidisciplinary, aimed at reducing risks and root causes of torture and ill-treatment, and at protecting the dignity of those deprived of their liberty, even in the absence of complaints. The approach of NPMs is also based on ongoing, constructive engagement and dialogue with the authorities and on changing public mindsets. In particular, NPM work often focuses on bridging the gap between what exists in law and standards, and the practices that are found in detention – work which requires an in-depth understanding of what is happening in detention, built on long and in-depth visits to places of deprivation of liberty.
Legislation and powers.
- NHRIs – particularly those that fully comply with the Paris Principles – have a strong legal basis, often grounded in the constitution. In many cases, this founding legislation contains some of what is required by the OPCAT – the first international treaty to proscribe specific powers and mandate to national institution. This often includes existing powers to visit places of detention. Nevertheless, the founding legislation of NHRIs often falls short of compliance with all OPCAT requirements. In such cases, there are several options: one is to pass new or additional legislation designating the NHRI as the NPM. Another option is to revisit the institution’s founding legislation entirely – even if only small changes are ultimately required – and include the required amendments. This can be an opportunity for discussions about the institution as a whole, as well as how best to integrate the NPM mandate. This process may involve an institutional review, conducted by the NHRI, supplemented by both public and parliamentary debates. In the real world, of course, such a review may be a difficult and time-consuming task and one that can also involve dangers for the institution if spoilers seek to use the opportunity to undermine the whole institution.
- Regardless of the approach chosen, the specific functions and powers of the NPM should be stated explicitly in law , including in order to sustain the NPM’s existence in the long term. This process will also need to be accompanied by discussions on the institutions’ internal rules and processes.
Expertise and staff.
- One of the primary reasons for designating these NHRI as NPMs is that many of them have existing experience, particularly in relation to law reform, and to visiting some types of places of detention, usually prisons. This means that, while NPM work is very different in both approach and scope, some detention environments are nevertheless not unfamiliar to many NHRI. In addition, many of them also have thematic expertise in relation to groups in situations of vulnerability, although not always in detention contexts. Some of them may also have experience in relation to issues such as disability rights, elderly persons, access to justice, health care, migration, and child rights – all areas with relevance to the work of NPMs. Another advantage is that due to their broad human rights mandates, many NHRIs are able to link the specialised NPM mandate with its day to day work under its general, broad human rights mandate.
- Despite the Paris Principles requirement of pluralism, what most NHRIs lack, however, is the multidisciplinary expertise that is required for preventive work as an NPM, given that the staff of such institutions are almost always lawyers. Thus, while existing staff play a key role, they will usually need to be joined by new colleagues from a broad range of backgrounds and specialisations who can be dedicated fully to the NPM mandate. This can be challenging given that public sector hiring rules, may restrict the ability of such institutions to hire the exact people they need, including as external experts, from a range of disciplines.
- Most NHRIs have a number of existing departments that may be complementary to the work of the NPM, allowing the institution as a whole to maximise its impact and use of resources. For example, many such institutions have specialised staff working on parliamentary relations and legislative reform. This can be useful, given the role of NPMs in making recommendations on new legislation or on the reform of existing laws – both of which are mandated under article 19 of the OPCAT.
- There may also be useful synergies to be found with departments working on complaints, with those working on specific groups in situations of vulnerability, and those working on education and training. Existing administrative departments (responsible for finance and travel, for example) may also be extremely useful when taking on an NPM mandate.
- In addition, many have a designated communications and advocacy unit. Communication is key to explaining a new NPM mandate; the specificity of the preventive approach; to making the work of the NPM visible; and to assist in ensuring that monitoring activities lead to real change in detention. These tasks can be greatly facilitated by the existing communications expertise of NHRIs, particularly when existing communications staff are given the resources and training necessary to understand the specificities of the preventive mandate of NPMs.
- Many NHRIs have regional offices, which may be helpful to NPMs in ensuring adequate geographical coverage for their work, particularly in large or geographically fragmented countries where places of deprivation of liberty may exist far from major cities. In particular, regional offices are likely to be rich sources of context-specific information for the NPM. However, involving such offices in detention visits and other aspects of NPM work requires careful thought and planning in order to maximise the use of the institutions’ resources and to ensure coherence of the NPM’s work, particularly given that, in many institutions, regional offices are overloaded and understaffed. Good practice might involve, for example, designating an NPM focal point within each regional office; involving regional staff in NPM specific training; involving regional offices in discussions on planning, visit preparation and follow-up; and clarifying rules around staff participation and hierarchy.
- Finally, existing infrastructure (such as offices and cars) can potentially be useful when NHRIs take on an NPM mandate, although additional resources will almost always be required and are, in fact, a specific requirement of the GANHRI subcommittee on accreditation (SCA), when it reviews those members institutions that have been designated as NPMs.
- Many of these internal synergies can usefully be addressed in an institution’s internal rules.
Coherence of the human rights system.
- Human rights monitoring and oversight systems that are overly complicated can be difficult for authorities, detainees, and others to understand. It can also lead to gaps and overlaps in coverage. Centralising detention-related mandates within an NHRI can be helpful in this regard, by creating a “one-stop-shop” for human rights issues within a country.
- NHRIs that have an NPM mandate may be able to build on their existing engagement with national stakeholders and counterparts. Existing relationships, reputation, trust and visibility can be an advantage – in cases where they are positive. At the same time, existing institutions will also need to take the time and put in significant effort to properly communicate the specificities of the NPM mandate among relevant stakeholders. In cases where the existing institution is viewed negatively by key stakeholders, this can be a serious handicap to future NPM effectiveness.
Links to the international system.
- Strong links and familiarity with the international human rights system are strengths of many NHRIs, particularly those with GANHRI “A Status” accreditation that allows them to participate in the UN Human Rights Council and treaty body processes. Existing knowledge of the UN human rights system, feeding national recommendations and priorities into those made internationally, and promoting international recommendations domestically, may enable an NHRI as NPM to further reinforce and improve implementation of recommendations at the national level.
- In addition, the status of NHRIs within international and regional NHRI networks may also offer an additional level of protection against interference or reprisals. These networks also provide an important source of information and exchange of experiences, lessons and good practices among NHRIs, thus helping to strengthen their work domestically
- The accreditation process for institutions that are part of GANHRI can also provide a measure of external accountability for NPMs, ensuring that they meet some key minimum standards for independence.
What kind of internal structure is most appropriate for NHRIs as NPMs?
Most NHRIs designated as NPM have chosen to create a dedicated NPM unit or department, headed by a senior figure, and with responsibility solely for prevention – an approach recommended by the SPT Guidelines. This means that individual complaints and investigations are handled by a separate department, and the NPM can focus its full attention on preventive work. If this approach is chosen, the NPM department should also be integrated into the broader institution, including with a system of regular interaction and cooperation with other departments. Such cooperation may cover: complaints and how they are collected, transferred and investigated; visits to places of detention; and thematic issues relevant to the whole institution. This is important to ensure the protection of detainees, and to make sure that both the NPM and other units with overlapping mandates can mutually benefit from shared information, knowledge and expertise. Although, due to NPM’s broad powers of access to sensitive information there may be limits to the kinds of information that the NPM unit shares with other departments. Cooperation on issues such as training and education, communication, law reform and other matters may also be beneficial.
Another, less common, approach is to create or designate one dedicated department, again headed by a senior figure, with responsibility for all issues relating to deprivation of liberty. This means that one single department conducts preventive visits as the NPM, as well as handling and investigating individual complaints. The advantages of this approach are in potentially increased information sharing and avoidance of overlap. The challenges, however, are that the reactive work of complaints handling dominates the department, leading to insufficient emphasis being placed on prevention. This is because complaints are often both urgent and abundant.
While one department of an NHRI is usually responsible for NPM work it is important to underline that designation means that the institution as a whole “is” the NPM and not only one department (although some exceptions do exist). While NPM departments should be given operational autonomy, this does not mean that NPM departments should be closed off or otherwise isolated from the institution as a whole. This is for many of the reasons of synergy and effectiveness discussed above. The institution’s internal rules and organisation chart should thus be designed with these objectives in mind.
What level of NPM autonomy for NHRIs?
In discussing NPM models there is sometimes confusion around terms like independence and autonomy. For the purposes of this toolkit, independence means being independent of those institutions you are tasked to oversee – for example the detaining authorities and related ministries. NHRIs, particularly those that comply with the Paris Principles, are usually independent. Autonomy, on the other hand, refers to the ability of different departments within an institution to make decisions and carry out their work in an efficient and effective manner, free from undue interference. As noted above, for NHRIs that have been designated as NPMs, this usually means creating a specific department, headed by a senior figure, to conduct NPM work, free from undue intervention in visits, planning, reports and recommendations.
Whatever the model chosen, however, an NPM unit or department will nevertheless need to work closely with other departments in order to be effective (see section 3 above).
NHRIs will also need to identify and develop clear procedures in relation to who will be in charge of NPM work and the different layers of hierarchy involved – this includes deciding who has the final say on key issues, such as what is in reports and recommendations. In some institutions, one member or deputy ombudsman is chosen as head of NPM. In others, a member or deputy may be in charge of several departments, including, for example, the NPM and the department responsible for complaints and investigations – an approach that may lead to useful synergies between departments with related mandates. In a small number of cases the NPM law itself mandates the creation of a specific department and defines the NPM hierarchy and how it is selected.
Once the hierarchy is established, it may be useful for the leadership of the institution as a whole to regularly participate in visits to places of deprivation of liberty, as well as in pre and post visit briefings and dialogue with the authorities. This is important for ensuring that institutional leadership fully understands the work of the NPM, as well as giving the NPM additional institutional weight, including during dialogue with the authorities.
What are the key budget and financial considerations for NHRIs with an NPM mandate?
Those considering the designation of an NHRI as NPM should not view it as necessarily cheaper than other NPM models. Regardless of the strategy and internal structure that is ultimately decided upon, any NHRI taking on an NPM mandate will require additional human and financial resources. This is also made clear in Article 39 of the 2008 Nairobi Declaration on NHRIs which states that NHRIs should only consider designation as NPMs “if the necessary powers and resources are made available to them.” It is also a clear state obligation under article 18 of the OPCAT to grant the NPM the “necessary resources” for it to be able to carry out its work.
Among the main budget and resource challenges faced by NPMs is the need for dedicated NPM staff. Additional resources are also usually needed for external experts, for example, medical doctors and psychologists, who may be recruited to ensure that NPMs fulfil the criteria of multidisciplinarity. Depending on the model, this might include fees or per diems, and travel costs. Beyond additional human resources, funding will also be required for travel and accommodation for the NPM, as well as to cover, inter alia, the production and publication (and possibly translation) of NPM reports. Funding for training, communication and participation in international exchanges and other fora may also be required.
A second challenge relates to the sheer scope of the mandate, which includes regular monitoring of all places where persons are or may be deprived of their liberty – representing an enormous diversity of places, often across a large geographical area. All NPMs, including NHRIs must find the right balance between quantity and quality of visits, balancing the need to be present in the field and in places of deprivation of liberty, while also allocating sufficient time and resources to analysis and follow-up.
In addition, the specific nature of the preventive approach poses a significant resource challenge for institutions that have traditionally been more reactive in their work. This is a budget issue in that, regardless of whether an NPM unit has a complaints handling role, it will need sufficient resources so that this role does not overwhelm its capacity to do preventive work.
To ensure financial autonomy and sustainability, good practice is to allocate a set percentage of the total institutional budget to the NPM in the legislation designating the NHRI as NPM, to include it in relevant legislative amendments, or in the internal rules and regulations of the office, again something that is reviewed by the GANHRI SCA.
What are the key staffing considerations for NHRIs taking on an NPM mandate?
Among the most important issues for NHRIs to consider is that of multidisciplinarity. As the OPCAT makes clear, NPM staff should have the diversity of backgrounds, capabilities and knowledge required to understand the places that are being visited, and analyse the associated risks. As noted above, NHRIs tend to be staffed largely by lawyers, while NPM work also requires other types of expertise, including (for example) medical expertise.
It should be noted, however, that, depending on the financial means of the NPM, if this requirement for multidisciplinarity cannot be met exclusively through the hiring of permanent staff, it can be supplemented through contractual arrangements with external experts.
Among NHRIs, NPM recruitment is usually governed by the same procedures as the rest of the institution. This has advantages in that NPMs departments do not have to reinvent the wheel, but it may also present challenges. This might be the case, for example, when the profiles needed by the NPM are not compliant with the rules and regulations of typical contracts. For example, in order to recruit doctors or other experts, flexible or differently remunerated contracts may be necessary but not permitted. It is also important to note that NPM head should be in charge of the recruitment process due to the specific and operational nature of the work.