National Human Rights Institutions as a means to foster Good Governance and Human Rights in Developing Countries

Table of Contents

1. Introduction

2. National Human Rights Institutions
2.1 Concept and Composition
2.2 Function and Competences
2.3 Evolution and International Standards
2.4 Different Sub-Types
2.5 Critical Aspects
2.6 Conclusion: Effectiveness and Chances

3. The Commission on Human Rights and Administrative Justice in Ghana - an Assessment
3.1 Transition to a Multi-Party Democracy and the Establishment of the CHRAJ
3.2 Composition and Structure
3.3 Mandate and Activities
3.4 Conclusion: The Human Rights Record of Ghana and Accomplishments of the CHRAJ

4. Bibliography

Literature

Internet Sources

Legal Documents

1. Introduction

Today´s concept of human rights is all-encompassing. What first was a catalogue of desirable ideas, in its ultimate form codified in the UN Universal Declaration on Human Rights in 1948, nowadays constitutes concrete well-defined legal standards which bind the state and give each citizen certain inalienable rights to protection and a life in dignity. Human rights are seen as a dictum for proper public, corporate and private action.

The compliance with human rights towards its citizens and the effective protection of human rights among its citizens are the essence for the quality of a modern nation state. The state of human rights in a country is more crucial for the well-being of its people than any other factor.

Hence, human rights are the very basis on which a society can prosper. All sectors of private, public and economic life are ultimately linked to these essential premises:

Political stability and a sound democracy can only be generated under the implementation of political and civil rights as codified in the UN Covenant for Political and Civil Rights of 1968, such as equal chances for participation, freedom of speech etc.

Fostering a broad civil society fills in areas where public action fails and contributes to the exchange of opinions and thus to the quality of democracy itself.

High economic and human development can only be reached in an environment where the individual can freely unfold his or her potential to the fullest. The economy will not flourish unless free competition and legal security as a precondition for investments are established.

At the same time not all parts of the population will profit from economic development if there are no rules that limit corporate action for the adherence to social and economic rights of the citizens.

Also internal peace will not be achieved sustainably unless equal rights of participation for all ethnic and religious groups and minorities are established for the sake of easing tensions.

Furthermore countries that uphold human rights are likely to engage in more productive international relations that minimize the risk of war and conflict and will attract more development assistance.^[1]

Finally the state itself can only work effectively with a separation of powers and administrative transparency and justice corresponding to human rights standards.

Indeed the countries with high economic and human development have a common attribute: They all keep up the respect for human rights. This might be considered to be one of the most important reasons for having achieved today´s status. However, those countries have not simply decided from one day to another to implement the concept of human rights. They rather went through a centuries-long development, the starting point of which might be dated as early as the declaration of the Magna Charta in England with other landmarks such as the French Revolution following. Whereas in the industrialized and highly developed countries the struggle for human rights is fought and largely won the process is still on in the biggest part of the world and human rights violations are prevalent all over.

However, it must not be misconceived: Not only the occidental culture has brought up ethics that constitute the philosophy of human rights. Such moral standards exist in almost every religion and culture.

The problem rather lies in the political system and historic constellations than in the respective cultural environment. Cruel dictatorships that are based on the interests of small elites and mostly seized power in the turmoil of post-independence still withstand to be overthrown. Recently, many countries, particularly in Africa, have overcome such regimes. But within their short democratic history they often have not yet managed to fully enforce human rights, partly because it is difficult to re-invent the political culture, partly due to a hesitating willingness to give more power to the people.

This process that took centuries in Europe is obviously not implemented in a rush. At least it is becoming more and more approved that the compliance with human rights is a premise for development and poverty reduction.

In this context the notion of Good Governance has been dominating the discourse of development politics for years and is generally accepted to be the key and premise to sustainable social and economic development.

Good Governance is a normative concept that has to be adjusted country-specifically. However, it is generally defined to be constituted by mutually supportive and cooperative relationships between government, civil society and the private sector, and by participation, transparency of decision-making, accountability, rule of law and predictability.^[2]

The respect for human rights and a sound public policy bound to a constitution and controlled by an independent judiciary play a very important role for a well governed state.

The importance of certain democratic institutions embedded in the political system for safeguarding the legal and political foundations on which human rights are based cannot be over-stressed.

Therefore many countries established a specialized body that is specifically monitoring and improving the state of human rights and administrative conduct and thus displays a central pillar for Good Governance.

The general term for these bodies is National Human Rights Institution (NHRI), the over-all function of which is to promote and protect human rights.

The thesis paper will dwell on this phenomenon and show that these institutions can be a very effective means for achieving higher governance and human rights standards.

Alone in the 1990ies nineteen African countries have created such an institution.^[3]

When Ghana entered into its Fourth Republic by getting a new democratic order in 1993 a Commission on Human Rights and Administrative Justice (CHRAJ) was founded by an act of constitution.

In 2005 I undertook an internship over a period of 3 month in the Commission´s head office in Accra. Due to this opportunity I could get an insight into its work and collect a lot of data.

In the first part of the essay I will elaborate on the concept and function of National Human Rights Institutions in general and depict the usefulness of such bodies.

In a second part I will present and assess the Commission on Human Rights and Administrative Justice (CHRAJ) Ghana with reference to the specific Ghanaian setting. Following all principles of National Human Rights Institutions as set by the UN^[4] the Commission surely constitutes a model institution that will serve as a good example to elucidate the concept and function of NHRIs on the concrete level.

In some final remarks it will be concluded in how far the CHRAJ has contributed to Good Governance and human rights promotion in Ghana and evaluated whether it fulfils its mandate in an effective way.

2. National Human Rights Institutions

2.1 Concept and Composition

The fact that a law to protect human rights exists is not sufficient if there are no effective powers in the national infrastructure that ensure its realization. A specific National Human Rights Institution (NHRI) might constitute a means to create such a power.

In broad terms such institutions are “independent and permanent bodies established by a national government for the specific purpose of advancing and defending human rights at the domestic level”.^[5]

Although no two institutions in different countries are exactly the same and several sub-types can be distinguished they all share certain common features:

The institution is founded by an official act; either the constitution will provide for the establishment or the institution will be created by an act of legislation or an executive decree.^[6]

The institutions that are determined within the constitution are likely to enjoy the strongest position while those which were formed by an executive decree often are the most vulnerable.^[7]

The body that results from this act is supposed to work as an independent human rights agency that carries out its work impartially without external interference, even when it is obliged to render an account to the government or the legislature.^[8]

As part of the governments overall institutional framework National Human Rights Institutions ideally work in conjunction with other government bodies and those should not be permitted to disregard its statements. However, the role of the NHRI is not to replace other state institutions such as the legislature, police or judiciary. It rather aims on pushing other state bodies to adhere to their responsibilities concerning human rights.^[9]

National Human Rights Institutions are all administrative in nature; they are neither law-making nor judicial in the sense of a court.^[10]

However, they cannot be easily classified as an executive branch in the traditional three-division of state powers – they appear to have a role in both the legislative, executive and judicial field.

In regard to their independent nature NHRIs are mostly composed of a variety of members from diverse backgrounds, representing the composition of society. Often there are special requirements for the selection of the members, such as quotas.^[11] An independent appointment procedure is an important element for an institution to be enabled to work impartially.

In countries with ethnic tension it is vital that the institution´s composition reflects the ethnic and religious diversity of the country. Also a gender-balance will contribute to a higher acceptance of the NHRI among the population.^[12]

For ensuring the institution´s autonomy from the government an adequate funding procedure is crucial. The budget line for the NHRI is a reliable indicator for the government´s commitment to its human rights agency.

The funding has to be set in a way that it cannot be used by the government to put illegitimate pressure on the institution. As a standard a NHRI should receive the same proportion that other state institutions receive respectively. An important procedural aspect that most of National Human Rights Institutions hold is that the budget is allocated in a regular session by the legislative body and is not at the mercy of the executive´s arbitrariness.

Once allocated, the budget should be self-administered without interference and only be subject to common auditing rules.^[13]

By all the measures mentioned above an independent public body is created that is responsible for human rights issues and can operate autonomously as a specialized public agency.

It surely displays an ideal type of National Human Rights Institutions. However, most of the institutions in existence seem to posses a great part of these basic features.

2.2 Function and Competences

The following enumeration of functions and competences is quite exhaustive. Not every National Human Rights Institution holds all of them. Moreover, even with the same official functions two different NHRIs might still vary in the scope of their competences. The following characters, however, describe the mandate of a typical NHRI as it exists in many countries and that might also be seen as some kind of ideal model.

One of the most important functions of NHRIs is to permanently monitor the human rights situation in the country in general and to compose reports on it. More specifically it systematically reviews the government´s policy in regard to human rights and detects shortcomings. In this context it is supposed to evaluate the state´s compliance with its own and international human rights regulations to which the country is a subject by supervising whether the laws are effectively applied. It also comments on existing or draft laws and examines administrative procedures as far as human rights are concerned.^[14]

A second function which is a premise to the first is the ability to initiate enquiries on its own behalf without an external assignment or permission.^[15] The institution has to be provided with a broad mandate that allows it to freely consider any questions falling within its competence. This is an important aspect for guaranteeing the independence and autonomy of the institution.

In order to enable the institution to conduct the enquiries effectively its mandate should grant unlimited access to state facilities, such as detention facilities, police stations, jails, juvenile homes, welfare homes, schools and hospitals in order to inspect the conditions of living.

In many cases the NHRI also has the competence and power to summon and examine witnesses, to receive evidence and to obtain any public record being produced by a court or any other office.^[16]

A third major function which is the consequence of the first two ones is an ongoing advisory authority to the government in respect to human rights. The institution will give statements and recommendations, in some countries it can draft a resolution.^[17] It forms some kind of public think-tank for human rights. In ideal case the statements it utters are made public and disseminated by the media what puts pressure on the government to react in a progressive way. It is also important that statements are not only given to the executive so that the public -the interests of which the institution represents- can see and approve the work of the commission. In many countries the NHRI is requested to report regularly to the parliament or president.

As a matter of course a NHRI is not vested with the power to enforce its own recommendations. Usually it is required to refer its findings to other governmental bodies, largely to the executive and judicial branches.^[18]

Another important duty that is immanent in almost every NHRI in existence is to raise public awareness of human rights. It is done both for the purpose of enlightening the people of the rights they are entitled to but also to convey to the people why it is important that they respect human rights and act accordingly themselves. Therefore NHRIs are organizing educational programs, seminars and spreading information on human rights issues.^[19]

[...]

^[1] Though economic regressions show that the allocation of development aid largely depends on other factors such as specific political or economic interests of the donors, the quality of governance and democracy significantly becomes a more and more important influence. Compare: Alesina, Alberto / Dollar, David: Who gives foreign aid to whom and why?, in: Journal of Economic Growth, 5/2000, P. 33-63.

^[2] Simonis, Udo E.: Defining Good Governance – The Conceptual Competition is On; Wissenschaftszentrum Berlin für Sozialforschung; Juni 2004; Seite 4f.

^[3] Human Rights Watch (HRW): Protectors or Pretenders? Government Human Rights Commissions in Africa: Summary, on: http://hrw.org/reports/2001/africa/overview/summary.html, 10.09.2007.

^[4] UN Resolution A/RES/48/134 of 20th December 1993.

^[5] Pohjolainen, Anna-Elina: The Evolution of National Human Rights Institutions. The Danish Institute for Human Rights, 2006. P. 6.

^[6] Office of the United Nations High Commissioner for Human Rights (OHCHR): National Institutions for the Promotion and Protection of Human Rights. Fact Sheet No. 19. On: http://www.ohchr.org/english/about/publications/docs/fs19.htm; 01.09.2007.

^[7] HRW: Important Factors, on: http://hrw.org/reports/2001/africa/overview/factors.html; 01.09.2007.

^[8] Pohjolainen, Anna-Elina: l.c., P. 19.

^[9] HRW: Important Factors: l.c.

^[10] OHCHR: l.c.

^[11] OHCHR: l.c.

^[12] HRW: Important Factors: l.c.

^[13] Ibid.

^[14] Tiwana, Mandeep: Human Rights Commissions – A Citizen´s Handbook. Commonwealth Human Rights Initiative, 2006 . P. 1.

^[15] OHCHR: l.c.

^[16] Tiwana, Mandeep: l.c.

^[17] OHCHR: l.c.

^[18] HRW: Important Factors: l.c.

^[19] OHCHR: l.c.