In Part II, I argued that our National Human Rights Commission (hereafter the Commission) was facing insurmountable challenges at this time. It should be making an immense contribution to the protection and promotion of human rights in our country, but at present it suffers not only from structural problems but also from functional deficiencies. I noted that the ‘hallmark of a successful National Human Rights Institution (NHRI) is its independence from both the state and civil society’. I strongly suggested that the key challenge today for our Commission is not just to re-define its space and attitudes (as I had recommended in Part I), but ‘to protect itself from excessive interference, be that from government, NGOs, donor bodies and other institutions in society. Most importantly, it must improve its institutional capacity and competency’. Here I seek to make practical suggestions for improving the independence and competency of the institution itself.

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The Commission, Government and Pluralism

NHRIs and governments have strong functional and institutional linkages and relationships since an NHRI has to be a creation of political will and commitment.  In order to function and to fulfil its mandate properly, an NHRI requires the co-operation of its own government. NHRIs are set up and funded by governments, and there is even a perception in a number of countries that they are just government bodies. Certainly the very establishment of an NHRI is dependent on government commitment and involvement. At the same time, though, its independence and pluralism, as demanded by the Paris Principles, are usually taken to mean total independence from government. Professor Anne Smith, however, suggests that there are four different levels of independence that are vital to an NHRI’s relationship with government. These are ‘legal and operational autonomy; financial autonomy; independence with regard to appointment and dismissal procedures; and independence concerning pluralism and composition’. The question that we need to ask is: Does the independence of our own Commission meet these requirements?

State authorities can collaborate in several ways with an NHRI at the institutional level. They can, for instance, be represented within the national institution itself, or the institution may choose to work and co-operate closely with them. They can be invited to attend working group meetings aimed at preparing the national institution’s recommendations, proposals or reports. Alternatively they can appoint NHRI contact persons to keep the national institution regularly informed of the government’s position on human rights. However the information is exchanged, such collaboration serves a common interest and can contribute to the mainstreaming of human rights. It is the protection of human rights that must at all times be the primary motive and focus of attention. We might then ask if this is taking place in our context.

Independence may be a key objective for an NHRI, but how in reality can such an institution be established by the state, be funded by the state, be granted powers and a mandate by the state, be financially accountable to the state, and yet simultaneously be visibly independent of the state? Professor R. Murray aptly describes this paradoxical situation when he states that an NHRI’s legitimacy and credibility and therefore its effectiveness depend on its ‘ability to be perceived as independent of the government, yet the manner of its creation and its special status derives from its close relationship with government’. Our own government should at least show respect for the work of the Commission by acting on some of its reports and recommendations, by protecting it from unfair attacks, by ensuring that it is fully staffed, and by holding it to account for proper performance. It is a chilling fact, however, that our government has neither taken seriously the role of the Commission nor supported it on human rights issues.

Partnership While Maintaining Autonomy

The Commission has a duty to establish a strategic partnership with civil society, especially with human rights NGOs, who are quite new to human rights work. In this way, not only is the Commission’s legitimacy and credibility enhanced, but reciprocally another line of accountability is created that enables civil society to see if the Commission is conducting its mandate in a proper and appropriate manner. Such a mechanism can be extremely useful where the Commission and the NGOs are different bodies but have one commonality in that both are notoriously under-resourced. As Professor Kofi Kumado states: ‘Utilization of and reliance on each other’s work should provide an important way of meeting the resource deficit and of remaining effective.’

It is a fact that ‘one of the most noteworthy features of NHRIs is the unique position they occupy between government on the one hand and civil society and non-governmental organizations (NGOs) on the other.’ It is their occupancy of this conceptual space that gives NHRIs a potentially distinctive role in society. However, they then have the difficult problem of maintaining their independence from both government and NGOs, while at the same time establishing a working relationship with both. Since there are now local and international human rights NGOs, it is doubly important that the Commission remains independent from these and that it does not automatically adopt their opinions.

Finance and Transparency

NHRIs must be financially secure with budgetary oversight, and they should also have clear and well-defined powers to carry out their mandate effectively and efficiently. This is especially so for those NHRIs that operate in a hostile political and legal environment like our own. As per the constitutional provision, it is the responsibility of the state to provide necessary resources for the Commission, and the Government of Nepal has co-operated well in this respect. However, the government may not be in a position fully to finance the institution, and support may have to be sought from donors, automatically adding an additional layer of complexity to the institution’s work. NGOs may receive financial support from donors, but NHRIs are different from NGOs. They are part of the global trend of ‘national institution building’ and, as an organ of the state, the ability to raise funds from outside might not be as appropriate for them as it would be for NGOs. It is important, therefore, that the Commission maintains its constitutional status and does not take funding from NGOs. If in our context government funds alone are insufficient to run the Commission properly and effectively, it may have to accept donations (it has already done so) from other funding bodies. When this occurs the source of these funds together with any underlying aims and ambitions must be clearly stated and the funds utilized for the benefit of ordinary people. Weak and inefficient leadership/management, non-transparent financial administration, and rampant irregularities in its administration have rendered the Commission ineffective and untrustworthy. Its functioning must be made more accountable to the people, and its financial strategies must be made totally transparent.

The Right Balance

Human rights protection is not only a public policy discourse, but rather a social and political empowerment. We must guarantee the Commission democratic space to continue its independent function in fulfilling its mandate to protect and promote human rights. Mere institutionalization of human rights is insufficient unless it helps to transform the governance agenda. If the Commission can but understand fully its proper role and be allowed to function freely, it can help to fulfil social expectations and offer hope for victims of human rights violations. Professor Linda Reif argues that ‘NHRIs cannot fulfil their functions effectively in states that do not have some minimal level of democratic governance’. Formal adoption of the Paris Principles is insufficient to ensure an NHRI’s independence and efficacy. Many a country in transition from dictatorship to democracy has established such an institution merely as a low cost way of bolstering its international reputation. This is exactly what has been happening in our context.

NHRIs occupy a unique space between government and civil society, but, while needing to establish relationships and alliances with both, they have to remain independent of both. In our context the Commission needs to find the right balance between independence and influence while managing that relationship on a day-to-day basis. The approach, authority, and tone that it adopts will be vital to the success of that relationship. It must demand the respect and legitimacy that the government owes it, but it cannot afford to be seen to be subservient to the government’s needs or to tolerate any interference in its work.

NHRIs are the only domestic institutions exclusively mandated to protect, promote, and fulfil human rights. NHRIs must carve out a role for themselves. They need to determine how to adjust to other bodies and how to ensure that work is not duplicated unnecessarily. Healthy relationships need to be developed also with the various statutory and constitutional bodies in order to exchange views and information. The future ability of our own Commission to influence government policy will inevitably depend on government perceptions of the political desirability of implementing any particular recommendation. It will, however, also depend on whether the Commission is able to operate within a system of political accountability, backed up by a free media and by an independent judiciary.

(Basnet holds a Ph.D. and an LL.M degree in International Human Rights Law from Lancaster University, U.K. He is a constitutional lawyer at the Supreme Court. Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

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