TERMS OF REFERENCE

Developing a Research Paper on Mechanisms for Monitoring Compliance to AU & SADC Legal Instruments & Policy Frameworks

BACKGROUND

SOTU advocates for the ratification, domestication, and implementation of African Union instruments, policy frameworks and standards – believing that their successful implementation will have tremendous positive impact on the lives millions of African citizens. SAT supports civil society organisations in Southern Africa to participate effectively and with credibility in policy dialogue so that the voices of the poor can have a better impact in the development of public policies.

The African Union (AU) has been hailed world over for formulating legal instruments and policy frameworks[2] that are comprehensive in content and with clear aspirations. The issues covered by AU instruments and RECs such as SADC, ECOWAS, EAC etc would have tremendous impact on African citizens’ lives if the provisions of these instruments were implemented by African governments. These regional and continental instruments seem to be better embraced by African governments and citizens as they are seen as more responsive to context, values and priorities compared to global instruments addressing the same. However, the greatest challenge with AU as well as with most REC instruments, is that implementation at the country level is extremely low and takes much time.

At the continental level, since the formation of the OAU/AU African states have adopted 49 treaties protocols, charters and conventions which are all legally binding. Only 1, the constitutive Act of the OAU/AU has been adopted by all 54 AU member states. There is an extremely low ratification and domestication uptake by African governments. In some instances like with the Protocol on the Rights of Women in Africa and the African Charter on Democracy Elections and Governance there are reporting requirements included in these instruments however countries seem not to comply. Organs of the AU such as the APRM, the African Commission on HPR, the Committee on the Welfare f the Child etc have been set up to monitor, receive state reports and make recommendations however they have been weakened by non compliance of African governments and their limited mandates.

The other existing reporting mechanisms are civil-society led: by organisations such as AfriMAP, SOAWR, CCP-AU, SOTU, Gender Links/Gender Alliance, Coalition for an Effective African Court etc. Such initiatives have yielded some results however with resistance in other countries partly because they are not state-led and as such their structures are not owned by respective governments. Compounding this problem are limited political will; non-domestication of regional (AU/SADC) commitments; less empowered institutions; and poor popularization of the legal instruments among the citizenry of the member states.

Existing mechanisms for consideration
SOTU and The Trust recognize the availability of other state-driven coordination, monitoring and reporting mechanisms both in and outside Africa at the global, regional and national levels levels that have worked well in other parts of the world with operational components that can be applied to the various African contexts.

At the global level, the Universal Periodic Review (UPR) at the United Nations (UN) level which reviews the human rights records of all UN member states is a case in point. It is a state-driven process under the auspices of the Human Rights Council which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfil their human rights obligations. Other global mechanisms that could be investigated for their operational competence include the ECOSOC[3] Annual Ministerial Review (AMR) and Development Cooperation Forum; and the WTO[4] Trade Policy Review Mechanism.

At the regional level, there exist mechanisms for monitoring decisions in and outside Africa. These can be state-led both at the regional and national levels: A regional body – mandated by states - could itself institute internal mechanisms for monitoring implementation of its instruments; or such structures can be developed directly by the regional body’s member states. The African Commission on Human and Peoples’ Rights (ACHPR) uses the State Reporting mechanism to review states compliance to the African Charter on Human and Peoples’ Rights. African states are required to submit a state report every 2 years which is then reviewed during the ACHPR’s open sessions with States receiving concluding observations based on the outcome of the state reporting review process. In the European Commission, the Monitoring Mechanism Regulation (MMR), for instance, is a commission-led reporting process that monitors EU and EU member states’ implementation of the UN Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol. This mechanism requires the Commission to produce an annual report assessing the progress of the EU and its Member States towards meeting their commitments under the UNFCCC and Kyoto Protocol. In Southern Africa Development Community (SADC), such a mechanism is operationalized through the SADC Committees. Another prominent mechanism is the OECD[5] Environmental Performance Review, which monitors progress towards sustainable development, reviewing both common standards and country specific aspects.

On the other hand in the East Africa Community (EAC), monitoring of compliance to EAC protocols and treaties is the mandate of the Ministries of East African Community in each member state. These state departments – mostly headed by member states’ Cabinet Ministers/Secretaries - oversee adoption of policies, setting up of institutions, and designing of parliamentary bills that aim to implement the EAC decisions.

It is not clear how the RECs, which are the building blocks of the AU implement, harmonise, monitor, report on progress towards AU instruments. Yes this maybe a key factor in harmonising and enabling the implementation of AU decisions.

At the national level, some governments refer to inter ministerial committees that are supposed to be monitoring. Others have a department in their respective ministry responsible for Justice to provide oversight of government’s implementation of its human rights instruments. However there is limited evidence of how these structures work or their effectiveness.

While many of these mechanisms have had experiences of best practice that have achieved results others have encountered structural and policy challenges that have hindered their effectiveness in monitoring implementation of member states decisions.

Goal and Objectives
SOTU and the Trust are commissioning a comprehensive research assignment which aims to address the challenges associated with limited to no state-led coordination, monitoring and reporting on AU and SADC instruments and the best policy options to resolve them.

The main goal of this assignment is to propose models to the African Union, SADC and their Member States of Mechanisms they can adopt at country, regional and continental levels that would enable them to track progress on the ratification, domestication, implementation, monitoring and reporting of AU and SADC instruments.

This research will also pick learnings from other existing mechanisms, and tease out the kind of support required in order to be effective and efficient such as financial resources, adequate data, and evidence-based policy analysis.

The specific objectives of this research assignment include:
Identify current/existing legal and non-legal options for fostering Member States’ compliance with AU & SADC legal instruments and policy frameworks.
Map and describe the state-led mechanisms available in African states, RECs and the AU their strengths and weaknesses, and analyse which options can be utilised more or better in the future – whether in singular or combination.
Describe and assess state-led monitoring mechanisms of best practice from outside Africa and how they have contributed to governments better tracking the progress on implementing regional commitments and evidence-based policy making, analysing their applicability as mechanisms for monitoring compliance to AU and SADC instruments
Propose (including diagrammatically) existing or new state-led mechanisms (including combinations) of best practice for tracking implementation, monitoring and reporting of AU & SADC instruments at the national level, by SADC and by the AU.

ACTIVITIES

Assignment inception with SOTU and the Trust for additional information
Research and analysis
Development of a research paper

METHODOLOGY

The methodology for the research will include a desk review (including a review of relevant academic literature, AU, SADC legal instruments & policy frameworks, as well as international legal frameworks governing integration of other regional/continental bodies – e.g. EU, ECOWAS, ASEAN, NAFTA, and EAC) as well as key informant interviews with relevant AU and SADC staff at HQ, regional offices, other key actors such as but not limited to UNECA, AfDB, SADC Focal Points, SADC National Committees, Representatives of Ministries responsible for AU issues in select countries.

The consultant will have access to SOTU and the Trust’s teams, partners and reports.

Periodic progress updates will be provided by the researchers to the Research Team comprising of staff of SOTU and the Trust. A Research Reference Group (RRG) may be constituted.

OUTCOMES

By the end of the assignment, the researcher(s)/firm will develop a high quality research paper on ‘Mechanisms for Monitoring Compliance to AU and SADC legal instruments & policy frameworks. This will be delivered in soft copy sent through email in English.

Specific Deliverables
A draft work plan outlining timeline, refined methodology, clarification of conceptual framework, list of definitions to be used, list of key resources, and refinement of research questions (week 1)
An inception report, outlining preliminary findings of desk review of available data and analysis related to mechanisms for monitoring compliance to international legal instruments and policy frameworks, with full bibliography (week 3)
A draft structure for the paper, as well as list of key informants (week 3)
A draft paper (25-30 pages) providing answers to the specific objectives of the research, as well as presenting 6 concrete recommended actions that can be taken forward by AU, SADC and their member states to develop and/or strengthen existing mechanisms and develop new ones for implementing AU decisions (week 6).
A presentation of draft paper to SOTU/SAT/Oxfam and the Research Reference Group (RRG) (week 7).
A final paper (10,000 words max.) incorporating feedback from the RRG (week 10).
A short summary paper (5-7 pages) as well as a final power point presentation of the findings (week 10).

TIMELINE

35 days of full time work carried out over a 10 week period. Final report due Friday 30th October, 2015

RESEARCHER'S QUALIFICATIONS

Advanced degrees in international law, development studies, political science, quantitative research, social science or related fields.
At least a minimum of 7 years progressively relevant professional work experience in research and policy analysis activities. Specific experience in international law, or working with treaties compliance, especially in Africa would be an advantage.
Knowledge of AU & SADC legal instruments, policy frameworks, and standards.
Experience in engagement with the AU or the RECs
Excellent writing, conceptual and analytical skills including the ability to present complex processes and issues clearly to a heterogeneous audience and in an actionable manner.
Experience in moderating meetings/Interviews with diverse group of stakeholders including senior government officials, representatives of intergovernmental organisations and civil society actors in a multicultural environment
Demonstrated professional research and writing experience, including through publications.
Experience with working and engaging with civil society organizations at national, regional or international level.
Excellent computer and editing skills
Experience of managing similar projects with limited budget and time but with demonstrated results..

GOVERNANCE

The assignment will be supervised by the SOTU and Trust’s Research Team.

A Research Reference Group (RRG) comprised of SOTU/the Trust/ from relevant thematic areas, and other experts will provide oversight to the research including providing contributions to help shape it and feedback on key outputs.

Duty Station
The researchers/research firm will be expected to work from their own location. They will be expected to present draft and final report via email, video- or tele-conference. Any travel will be with prior approval and arrangement with SOTU and the Trust.

Deadline for Submissions
Interested candidates are requested to submit:
(1) a letter of interest, outlining your relevant background and experience;(2) two written samples (not more than 2 pages each); (3) a financial proposal including a breakdown of consultants’ daily rates and budget for carrying out the research work.

The application should be sent to [email][email protected]
by Friday, 27th August, 2015

[1] This research will focus on the experience of Southern Africa Development Community (SADC)
[2] Henceforth referred to as Instruments
[3] Economic and Social Council
[4] World Trade Organization
[5] Organization for Economic Cooperation and Development

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