Change at the Top: The Necessity of Transitional Leadership Provisions in the Laws of Independent State-Based Institutions

Abstract

The leadership of independent state-based bodies is critical to their independence and proper functioning. Where leadership ends, either within or outside of the term of office, legislation must ensure that the institution can continue to function. Transitional leadership provisions provide for the continuation of the powers of office in the event of the absence of the mandate holder. Through a textual analysis of the legislation of National Human Rights Institutions (NHRIs) and ombudspersons from 85 jurisdictions, this article identifies a lack of provision for transitional arrangements in enabling laws. It also discusses the problematic aspects of these legislative arrangements where they are present. It identifies the core requirements to ensure there is no leadership gap for an institution. The findings of the article are relevant for a broad range of state-based institutions including anti-corruption and data protection commissions, equality bodies and police oversight bodies, because all state mandated institutions risk their ability to function being undermined where legislation fails to account for a gap in leadership or does not include sufficient protections, such as immunity, for transitional office holders. This article calls for more robust focus on comprehensive transitional provisions in international standards on NHRIs and ombudspersons, and for the inclusion of such transitional provisions in the enabling laws of all legislatively mandated independent state-based institutions.