Draft Bill 2004
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
Whereas, the Constitution of the Republic of Liberia guarantees to each citizen and resident certain inalienable and fundamental rights and liberties; and
Whereas, the Republic of Liberia is a founding member of the United Nations and OAU, now African Union and a signatory to the respective charter, and
Whereas, the Liberian Government is a party and signatory to a wide range of International Human Rights and International Humanitarian treaties, conventions and the Declaration which re-emphasize and reconfirm these basic inalienable rights; and
Whereas, the Comprehensive Peace Agreement signed in Accra on 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:
There is hereby established the Independent National Commission on Human Rights named and Styled THE INDEPENDENT NATIONAL COMMISSION ON HUMAN RIGHTS (INCHR)
LOCATION OF OFFICE
The principal offices of the INCHR shall be located in the city of Monrovia, county of Montserrado, Republic of Liberia with the right to establish, maintain and close as well as terminate any of its offices and branches and thereafter reopen and reactivate them any where within the republic of Liberia.
POWER OF THE INDEPENDENT NATIONAL COMMISSION ON HUMAN RIGHTS
The INCHR is hereby authorized and empowered to do and have the following powers:
1. To give advice and assistance in the implementation on national and international human rights standards.
2. The commission shall have the power to investigate all complaints of violation of civil, political, social, economic and cultural rights of citizens and residents within the Republic of Liberia.
3. To have both powers to investigate and conduct hearings consistent with due process of law.
4. To conduct on-site inspections and investigations, including visitorial powers over jails/prisons, police cells including all military and Para-military detention facilities in Liberia.
5. The Commission shall have the power to make determination, referrals and recommendations to the appropriate authorities concerning matters which it has been conciliating or investigating.
6. The Commission shall have the power to provide legal services or make legal representation in all courts of competent jurisdiction to anyone whose rights said to be violated.
FUNCTIONS OF THE INDEPENDENT NATIONAL COMMISSION ON HUMAN RIGHTS
The functions of the INCHR are:
1. To act as a source of human rights information for the Government and the people of Liberia;
2. To assist in educating public opinion and promoting awareness of and respect for human rights and international humanitarian laws and treaties or protocol to which the Republic of Liberia is a party;
3. To submit to the government, legislature and any other competent body, on an advisory basis, either at the request of the authorities concerned or on its own opinions, recommendations, proposals and reports on any matter concerning the protection and promotion of human rights and international humanitarian laws;
4. To act upon any legislative or administrative provisions as well as provisions relating to judicial organizations, intended to preserve and extend the protection of human rights;
5. To act upon any situation of violation of human rights;
6. To prepare quarterly and annual report on national situation with regards to human rights in general and more specific matters such as arm aggression against the Republic of Liberia, internal conflicts, crime against humanity, war crimes, torture and genocide;
7. To draw the attention of the government to situation in any part of the country where human rights are violated and make proposals to the government for initiative to put an end to such situation, and where necessary, expressing an opinion on the position and reactions of the government;
8. To promote and ensure the harmonization of national of national legislations, regulations and practice with international human rights instruments to which Liberia is a party and signatory.
9. To encourage the ratification of all international human rights and international humanitarian conventions, treaties or protocols; the accession of these instruments and ensure their implementation;
10. To contribute to the reports which the UN members states are required to submit to UN bodies and specialized committees, and regional institutions, pursuant to their treaties, obligations, and where necessary, to express and give opinion on the subject, with due respect for the independence of the INCHR;
11. To cooperate with the UN and any other agencies in the UN system; the African Commission on Human and Peoples Right and the national institutions of other countries as well as local institutions which are competent in the areas of the protection and promotion of human rights;
12. To assist in the formulation of programs for the teaching and research into human rights and to take part in their implementation in schools, universities, and professional circles;
13. To exist and function as a full autonomous body both with respect to its administration and finances. The INCHR 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 government;
14. To prepare and submit written annual reports to the heads of the three branches of government;
15. To perform any other function which the government may wish to assign to the INCHR in connection with the duties of the state under those international instruments in the field of human rights to ; and
16. The Independent National Commission on Human Rights can sue and be sued.
17. The Independent National Commission on Human Rights has the authority to devise its own rules of procedures consistent with the constitution and statutory laws of Liberia;
SUBPONEA POWER: The Independent National Commission on Human Rights shall have Subpoena Powers to bring under its jurisdiction those accused of Human Rights violations based upon complaints from the aggrieved parties. In case the accused refuses to appear before the commission, the commission shall apply to any circuit Court for a writ of arrest to compel the accused to appear before the commission.
Any person appearing before the commission shall be granted immunities from persecution growing out of testimonies in any or all of the below categories:
a) Eye witnesses, jurors, subordinate of subjects whose principal and or superiors perpetrated a human rights violation as a result of which he/she was invited to testify to the extend that his/her testimony will expose and lay bare the truth and facts as of the giving case.
b) The low ranking officer or agent who, while acting on the orders of a principal or superior, perpetrated human rights violation at the time of the abuse he/she was coerce or under eminent danger to his or her life or security from his or her principal.
c) A suspected perpetrated, whose testimonies hold the potential to provide information to unearth other human rights violations to which he/she was a participant directly of indirectly provided that he or she was not the principal or main actor.
The commission shall award reparation or compensation to victims whose rights have been violated by Government Officials, Security personnel or private citizens. The compensation or reparation shall be awarded by the commission for the accused to capacitate the victim for the losses or injuries sustained during the violation, based on its discretion depending on the gravity of the violation, and that any dissatisfy party shall take appeal to the Supreme Court for Judicial Review.
COMPOSITON OF THE INDEPENDENT NATIONAL COMMISSION ON HUMAN RIGHTS
The commission shall have a Chairman, Vice Chairman and Executive Director, and that the Vice Chairman be elected by the seven (7) Commissioners based upon a two third (2/3) majority vote and the Executive Director shall be appointed by the chairman of the Commission in consultation with the other commissioners. The Chairman of the Transitional government/President of Liberia shall, by and with the consent of the Transitional Legislature/Senate appoint a seven (7) member commission, comprising a Chairman, consisting of professional and reputable lawyers and human rights advocates of Liberian nationality taking into consideration gender and from the civil society sector, such as human rights organizations, NGO’s trade unions, and the Liberia National Bar Association. The chairman shall be a reputable lawyer who has practice law for at least five (5) years. The commissioners shall work full-time.
FUNCTIONS OF THE CHAIRMAN
The Chairman of the Commission shall be the administrative head of the commission. He shall preside over all meetings of the commission and shall also be spokesman of the commission. The chairman shall make administrative decisions for the welfare of the commission, he shall also appoint all department heads in consultations with the other commissioners. The chairman also shall represent the commission in all conferences, except where he designate any of the commissioner’s to represent the commission.
FUNCTIONS OF THE VICE CHAIRMAN
THE Vice Chairman of the commission shall be the deputy to the chairman and shall preside over all meetings in the absence of the chairman. The Vice Chairman shall also attend conferences in the absence of the chairman and shall also designate any other commissioner to the interest of the commission.
FUNCTIONS OF THE EXECUTIVE DIRECTOR
The Executive Director of the commission shall be the liaison between the commissioners and the employees. He shall serve as secretary to the commissioners during plenary and shall be responsible for the overall management of the commission and shall report directly to the chairman. He shall also execute the policies and plans of the commission, formulated by the commission. He is responsible to design and execute appropriate programs for the effective operation of the commission. He shall also make representation with local authorities as directed by the by the commission. He shall also ensure that funding to the commission is used for its intended purpose for accountability.
The INCHR shall consist of at least the following administrative organs with the responsibility to recruit qualified staff to fill them.
a. The Department of Administration and Budget
b. The Department of Public Affairs and Information
c. The Department of Legal Affairs, Research, Monitoring and Documentation
d. The Department of Education
REPLACEMENT OR DISMISSAL OF A COMMISSIONER
Were a commissioner to die, resign or be dismiss from office consistent with clause two (2) below, or is in capacitated and or unable to perform the duties of his/her office, the chairman of the transitional government/president shall, appoint a replacement in accordance with article X section II of the art.
The chairman of the transitional government/President may dismiss from office any commissioner upon impeachment and conviction by the legislature based on proved gross misconduct in court of law for treason, bribery misapplication of entrusted property or other felonies.
TUNURE OF COMMISSIONERS
Each member of the commission shall hold office during good behaviour;
A commissioner shall not hold any other public government office upon incumbency;
INCHR members shall not engage in any other occupation business or professional or any other activities for which they are paid;
A commissioner shall not hold any position incompatible with the proper performance of his/her official duties. Within ten (10) days following his or her appointment and before taking office, he/she must resigned from any position incompatible within this section or the office, otherwise the INCHR member must not accept the appointment.
NON-POLITICAL STATUS OF THE COMMISSION
The INCHR shall have jurisdiction over the following subject matters:
the INCHR will consider office matters on Women’s Rights, child’s Rights and matters of discrimination in general and against women in particular;
the INCHR shall have both territorial and universal jurisdiction over crimes relating to International Humanitarian Law violations, such as crime against humanity, War crimes, genocide and torture, ect.
SUBJECT MATTER JURDICTION OF THE COMMISSION
The INCHR shall have jurisdiction over the following subject matters:
1. Complaints and/or situations of arbitrary arrest and prolong detentions; without charge or, torture, cruel, inhumane and degrading treatment, extra judicial execution, disappearances and rape, ect
2. Complaints and/or situation of violation of civil, political, social, economic, cultural, religious, environmental and developmental rights provided by the constitution and statutory laws of Liberia and International Human Rights and Humanitarian Treaties, conventions and protocols to which the Republic of Liberia is a part;
3. The provision of human rights information and education to the Liberian People in a systematic manner, and the provision of advice to government functionaries as it relates to the promotion and protection of human rights.
DISCRETION NOT TO INVESTIGATE
The INCHR may in its discretion decide not to investigate or discontinue an investigation of a complaint if: (a) an adequate remedy or appeal right already exists that the complaint could reasonably be expected to use whether the complainant has used it or not; (b) it is trivial, frivolous, vexatious or not made in good INCHR faith; (c) considering all circumstances of the complaint further investigation is unnecessary or not warranted; (d) the complainant has had knowledge for more than two (2) years before making a complaint And has no reasonable explanation for not pursuing a remedy or appeal or filing a complaint; (e) INCHR resources are insufficient for adequate investigation would serve no useful purpose; (f) the complaints or one substantially like it has been previously investigated; (g) the complainant’s identity is not disclosed to the;
If the INCHR decides not to investigate, or to cease to investigate a complaint, the INCHR shall inform the complainant of that decision and state reasons. If the INCHR decides not to investigate the complaint, it may notify the agency of the decision. Notice given this section may be oral but the INCHR shall state in writing the reasons for not investigating a complaint if requested by the complainant.
NON-PROFIT, TAX EXEMPT STATUS
The INCHR 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 hereinafter be enacted and shall be registered with the Ministry of Finance as a tax exempt entity.
ACCOUNTABILITY, TRANSPARENCY AND FUNDING
1. In order to enhance the operational efficiency of the INCHR, it must have continual funding on an annual basis on an annual basis, from the revenue of the Government of Liberia, as determined by the commissioners and Director General of the Bureau of the Budget.
2. The INCHR may request, make proposal and obtain external funding from private, international, non-government organizations, inter-governmental organizations, individuals, individuals, and corporate donors at home and abroad.
3. The INCHR as a policy to ensure accountability shall submit detailed quarterly and annual reports on its activities and programs to the Liberia Senate, the Judiciary and the executive branches of government. The report shall also be accessible to the public and the international community.
4. Transparency, through publication and information dissemination shall be the hallmark of the INCHR.
THIS ACT SHALL BECOME EFFECTIVE AND ENTER INTO FORCE IMMEDIATELY UPON PUBLICATION INTO HAND BILLS
ANY LAW TO THE CONTRARY NOT WITHSTANDING
(Please note that this government draft was revised by Dr Bipin Adhikari, a Nepalese lawyer working with the UNMIL Human Rights and Protection Section in cooperation with the Commissioners of the INCHR and other human rights organizations and civil society groups. The final draft was approved by the civil society groups before sending it to the government. Some major improvements could be noted when this draft is compared with the INCHR Act passed in 2005).