Background

Afghanistan’s justice system faces extraordinary challenges. Justice sector infrastructure has often been destroyed or damaged by fighting or decay during the years of conflict; a large number of Afghanistan’s court houses are in need of construction or rehabilitation. Legal professionals are very often the victims of violence by insurgent groups who target them as agents of the state; threatening of justice officials, particularly in the less secure regions of the country is absolutely commonplace, and assassinations are very common. Corruption is a constant concern; judges and other justice system officials are poorly paid, justice system capacity to prosecute corruption is very limited, and corruption is perceived as rampant both within and outside the justice system. The Government of Afghanistan (GoA) and international community are concerned about bolstering the credibility of the “formal” justice system, recognizing that Afghanistan’s traditional justice system plays a major role in resolving conflicts yet does so at times in violation of national and international human rights obligations, particularly the rights of women.

Following continuous engagement in supporting Afghanistan’s justice sector since 2002, UNDP Afghanistan’s justice sector support has now entered a new phase. The Justice and Human Rights in Afghanistan (JHRA) Project draws on the lessons learned through previous UNDP justice projects– Strengthening the Justice System of Afghanistan (SJSA), Access to Justice at District Level (AJDL) and Justice and Human Rights Phase I.

The new phase of JHRA, Phase II was initiated in January 2013. JHRA Phase II will leverage on the work undertaken in Phase I and deepen the interventions at the national level and provincial levels and attempt to work across the justice sector, involving the rule of law service providers. The JHRA phase II project represents one component of overall strategic support, and will contribute in particular to the Afghan National Priority Plans (NPP) on Justice (draft NPP 5) and Human Rights (NPP 6). It will seek to increase trust in Afghan justice institutions as the necessary foundation and prerequisite for the re-establishment of State legitimacy and the social contract between the Afghan population and the State.  Without trust there is no State legitimacy and no social contract; without social contract it is impossible for a Government to guide a country through transition/transformation without conflict. The project assumes a comprehensive approach to trust building composed of increasing service delivery and access to justice and security, in particular for the vulnerable groups, combined with the facilitation of the necessary political leadership; and balanced with structural and institutional mechanisms and safeguards to ensure sustainable transition and development. Similarly, support to justice sector service providers is balanced with support to ordinary people who would normally not be able to circumvent the current justice institutions and its mechanism to access justice, accountability, gain confidence in the formal justice institutions and gain trust in the State.

JHRA Phase II has four project outputs of which output 1 reads: High-level coordination mechanisms for developing policy and legislation in accordance with international and national standards are established and functional in State justice institutions.

Under the output 1, a number of activities are geared towards specific legislative reform for improving the condition of women and children in Afghanistan. One of the major activities is to provide technical assistance to finalize the draft Penal Code of Afghanistan.

Duties and Responsibilities

Scope of Work and Deliverables:

The Government of Afghanistan is currently in the early stages of reforming its criminal laws, with an aim of achieving an updated and consolidated penal code containing all criminal provisions applicable in Afghanistan. The goals of reform include the following:

• Consolidation of all criminal provision of law into a single penal code;
• Codifying in the penal code principles of Islamic Shari’ah (as was recently done in the Maldives);
• Updating, modernizing and clarifying the offenses and punishments set out in the penal code (removing unnecessary offenses and adding new and emerging ones);
• Increasing the effectiveness of the Penal code in preventing, reducing, deterring and fairly punishing criminal behaviour;
• Ensuring conformity with international standards and Afghanistan’s obligations’ under treaties and conventions it has joined.

Based on the needs of Justice and Judiciary system of Afghanistan and solicitation of Ministry of Justice, the President of Islamic Republic of Afghanistan has issued an executive order for the review and reform of Afghan penal code.

The issue is supported in a meeting chaired by H.E Chief Justice of Islamic Republic of Afghanistan on April, 2012. With the presence of heads of Justice and Judiciary system of Afghanistan and representatives of international counterparts.

Ministry of Justice has been leading the Criminal Law Reform Working Group (CLRWG) since its establishment at 2006 And UNODC carries its co-secretariat. In a meeting at Ministry of Justice on 10 July, 2012, the Minister appointed Mr. Rasooli As the legal adviser to the president and legal advisor of Ministry of Justice to chair the group and also the group divided on 04 sub-committees.

Drafting of the Penal Code commenced in July 2012 The CLRWG, which meetings once a week is comprised of Afghan and international legal experts representing the Afghan government, various embassies, UN agencies and other foreign development assistance organizations. The CLRWG finished the review of the 234 drafted articles of the general provisions of the draft Penal Code and started its work on the draft of the special part. CLRWG expects to complete its task by the end of 2014 Or early 2015.

To achieve the abovementioned goal of reform, an international expert will be engaged with the background of Islamic Sharia and International Laws as well as familiar with context of Afghanistan legal system to review and scrutiny the preliminary draft provided by the CLRWG and its comparison with the context of national and international standards, Islamic Sharia Law and emerging crimes.

CLRWG is looking for an experienced international expert to conduct research and analysis on completed draft on the general part of the law including the chapters that includes financial and economic crimes, terrorism, and internal/ external related crimes.  The Expert will be expected to undertake review and scrutize the preliminary draft of Afghan Penal Code provided by the CLRWG and make constructive recommendations and revisions for further enhancement of the draft based on comparative analysis with global Islamic jurisprudence best practices and emerging crimes. The Expert will report findings, recommendations and revisions at the last week of each month to the CLRWG.  The CLRWG will provide their approval to UNDP-JHRA.

Deliverables:

The Expert will be responsible for:

• Development of a framework for review and analysis of the draft penal code;
• Discuss and review the current criminal laws and criminal justice system of Afghanistan, international legal and normative instruments, principles and best practices to analyse the  proposed draft penal code. The Expert will meet with the CLRWG and discuss the key principles on which the draft was developed.;
• Based on the discussions with the CLRWG, the Expert will identify gaps with necessary justification, provide specific recommendations (in a form of explanatory notes) from legal perspective for improved quality of the draft Penal Code. Further, based on the recommendations, the Expert will provide a set of proposed articles to be incorporated in the draft Penal Code together with the draft gap analysis and recommendation report;
• The Expert will then provide the draft documents to the CLRWG and present the recommendations.

Deliverables, timeline and payment:

The consultant will be responsible to deliver the following specific deliverables in prescribed timeline.

• Develop a framework for review, preliminary analysis of the draft penal code at meeting with CLRWG – within 25 working days – 30% payment will be released;
• Provide proposed articles to be incorporated in the draft Penal Code (explanatory notes), draft gap analysis and recommendation report – within 55 working days of initiation of the contract – 50% payment will be released;
• Submit the Final Report – within 75 working days of initiation of the contract – balance 20% payment will be released.

Payment procedure:

The payment will be made to the Expert upon receiving the certificate of satisfaction from CLRWG to UNDP-JHRA.

Working Arrangements:

Duration of the Work

The contract duration is 75 working days. 55 workdays home-based and 20 days of work in Kabul. The consultant shall work 6 days per week while working in Kabul.

While in Kabul, the contractor is at all times required to observe UNDP security rules and regulations.

The contractor shall be provided MORSS.

Evaluation Method and Criteria:

Individual consultants will be evaluated based on the following methodology:

Cumulative analysis

The award of the contract shall be made to the individual consultant whose offer has been evaluated and determined as:

• Responsive/compliant/acceptable, and;
• Having received the highest score out of a pre-determined set of weighted technical and financial criteria specific to the solicitation.

Technical Criteria weight 70%

Financial Criteria weight 30%

Only candidates obtaining a minimum of 49 points (70% of the total technical points) would be considered for the Financial Evaluation

Technical Criteria 70 points

Technical Proposal (30 marks)

• Technical Approach & Methodology (20 marks) – This explain the understanding of the objectives of the assignment, approach to the services, methodology for carrying out the activities and obtaining the expected output, and the degree of detail of such output. The Applicant should also explain the methodologies proposed to adopt and highlight the compatibility of those methodologies with the proposed approach;
• Work Plan (10 marks) – The Applicant should propose the main activities of the assignment, their content and duration, phasing and interrelations, milestones (including interim approvals by the Client), and delivery dates. The proposed work plan should be consistent with the technical approach and methodology, showing understanding of the TOR and ability to translate them into a feasible working plan.

Qualification and Experience (40 marks) [evaluation of CV]

• General Qualification (15 marks);
• Experience relevant to the assignment (20 marks);
• Experience of working for projects funded by UN (5 marks).

The contractor shall submit a price proposal as below:

• Daily Fee – The contractor shall propose a daily fee which should be inclusive of his professional fee, local communication cost and insurance (inclusive of medical evacuation). The number of working days for which the daily fee shall be payable under the contract is 75;
• DSA – The contractor shall propose a DSA at the Kabul applicable rate of USD 181 per day for his stay at the duty station. The number of days for which the DSA shall be payable under the contract is approximately 60. The contractor is NOT allowed to stay in a place of his choice other than the UNDSS approved places. UNDP will provide MORSS compliant accommodation in Green Village (GV) to the contractor. The cost of GV accommodation to be paid directly by the contractor;
• Travel & Visa – The contractor shall propose an estimated lump sum for home-kabul-home travel and Afghanistan visa expenses.

Payment will be made upon receipt of a monthly IC timesheet indicating the number of days worked and a monthly report stipulating tasks and achievements as stipulated in the work plan.

Documents to be included when submitting the Proposal:

Interested individual consultants must submit the following documents/information to demonstrate their qualifications in one single PDF document:

• Duly accomplished Letter of Confirmation of Interest and Availability using the template provided by UNDP (Annex II);
• Personal CV or UNDP P11, indicating all past experience from similar projects, as well as the contact details (email and telephone number) of the Candidate and at least three (3) professional references;

Technical proposal:

• Brief description of why the individual considers him/herself as the most suitable for the assignment;
• A methodology, on how they will approach and complete the assignment.

Financial proposal that indicates the all-inclusive fixed total contract price, supported by a breakdown of costs, as per template provided (Annex II) and the instructions in this TOR.

ANNEX (to be downloaded from UNDP Afghanistan Website, procurement notices section: http://www.af.undp.org/content/afghanistan/en/home/operations/procurement.html.

Competencies

Corporate Competencies:

• Demonstrates commitment to UNDP’s mission, vision and values;
• Displays cultural, gender, religion, race, nationality and age sensitivity and adaptability.

Functional Competencies:

Knowledge Management and Learning

• Shares knowledge and experience;
• Actively works towards continuing personal learning, acts on learning plan and applies newly acquired skills.

Development and Operational Effectiveness

• Ability to perform a broad range of activities aimed at effective and efficient functioning of Country Director’s office, including data/ schedule management, maintenance of protocol, information flow;
• Confidentiality;
• Ability to provide input to business processes re-engineering, elaboration and implementation of new data management systems;
• Excellent inter-personal and communications skills.

Leadership and Self-Management

• Focuses on result for the client and responds positively to feedback;
• Consistently approaches work with energy and a positive, constructive attitude;
• Remains calm, in control and good humored even under pressure;
• Demonstrates openness to change and ability to manage complexities.

Required Skills and Experience

Education:

• Advanced University Degree in Law with specific focus on Criminal Law; PhD in Criminal Law will be an asset.

Experience:

• Minimum 10 years of practical experience in high level policy formulation, legal analysis, institutional and criminal justice reform;
• Previous experience of working with legislative and criminal justice bodies;
• Ability to interact and engage with high level Govt. officials and policy-makers;
• Previous experience of drafting/amending similar legislation will be an asset;
• Knowledge and experience of legislative and judicial processes and institutions of Afghanistan;
• Previous experience of working in post-conflict/fragile states/countries is desirable.

Language Requirements:

• Excellent written and oral skill in English Language;
• Ability to understand and communicate in Dari and Pashto language is highly desirable.