Background

The UNDP Access to Justice and Rule of Law project (A2J/RoL) aims to support national priorities in line with the UN country team Interim Cooperation Framework (ICF). Aligned to the ICF is the UNDP Country Programme Document (CPD) Outcome 3, Peace and Governance strengthened. This outcome emanates from the Output supporting the strengthening of rule of law institutions to deliver accountable, effective and equitable justice services. In this regard, the project supports the priorities of the rule of law institutions (Judiciary of South Sudan, Ministry of Justice and Constitutional Affairs, South Sudan National Police Service, National Prison Service of South Sudan, and Local Government Board).

The strategic objectives of the project are to (i) increase access to justice through coordinated institutional presence at state and county levels; (ii) reduce case backlog; (iii) support mechanisms to address prolonged and arbitrary detention; (iv) support policy framework for the harmonization of the administration of traditional justice mechanisms with the formal justice sector and (v) support capacity development and institutional strengthening.

On 17 and 26 August 2015, the leadership of the ruling Sudan People's Liberation Movement (SPLM) party and Sudan People's Liberation Movement-in-Opposition (SPLM-IO) signed the Agreement on the Resolution of Conflict in the Republic of South Sudan (ARCSS), signaling an attempt to bring an end to a conflict which erupted on 15 December 2013. Chapter V of the ARCSS provides for transitional justice, accountability, reconciliation and healing. The agreement provides for the establishment of a Hybrid Court for South Sudan (HCSS); Commission for Truth Reconciliation and Healing (CTRH) and Compensation and Reparations Authority (CRA). Due consideration is given to the use of traditional mechanisms of conflict resolution. However, implementation of the ARCSS remains largely stalled, and the Inter-Governmental Agency on Development (IGAD) has instituted a High Level Revitalization Forum (HLRF) to ensure that the peace process regains traction.
The UNDP’s Access to Justice and Rule of Law project provides support for transitional justice initiatives in South Sudan. This includes supporting civil society organizations (CSOs) to conduct advocacy, awareness raising and support to the implementation of the ARCSS and transitional justice process at national and state level. In this regard, UNDP supports the civil society Transitional Justice Working Group (TJWG), a network of CSOs, to articulate the voices of South Sudanese and ensure national ownership of the transitional justice process. The TJWG regularly produces policy papers and has positioned itself as a thought leader. To enhance dialogue and strategic thinking on the implementation of the ARCSS, the project intends to partner with the TJWG to develop a series of policy papers that will shape the thinking around the establishment of the CTRH and strengthen civil society position in their advocacy for transitional justice.
Objectives:
The overall objective of the consultancy is to develop series of policy papers that will shape the thinking around the establishment of the CTRH. The subject matter of the policy papers are:

• A comparative analysis of other regional experiences regarding the application of customary practices in reconciliatory processes
• A determination as to what extent the temporal mandate of the CTRH will be able to address the root cause of the conflict
• A determination of the relationships and or complementarities amongst the ARCSS institutions
• The provision of a gender strategy in keeping with existing frameworks that will ensure gender-balance, enhance advocacy and generate buy-in
• Specific roles of ARCSS actors including civil society in advocating and ensuring that the selection of commissioners of the CTRH is credible
• An exposition on ensuring witness protection based on comparative analysis and best practices.

Duties and Responsibilities

The consultant will work in close cooperation with the TJWG and UNDP during the development of the policy papers. The policy papers should provide in-depth information, comparative analysis, discussions and procedures regarding civil society’s involvement in advocating and ensuring that the CTRH process captures and adopts customary practices; relationships, roles and complementarities amongst ARCSS institutions; an informed and balanced gender approach; a participatory and credible selection and appointment process of commissioners of the CTRH; and an elaborate and effective witness protection program.

The policy papers should comprise of outcomes of research, comparative analysis, regional and other experiences of CTRH; informed information; guidance notes; and best practices and procedures from other CTRH initiatives and the way forward. Six policy papers will be developed as follows:
Paper No. 1: The CTRH and customary practices:
This should include a comparative analysis of the use of customary practices in other countries and their experiences. The UN Secretary General’s report issued in 2004, encouraged the use of indigenous justice system and provides that due regard must be given to indigenous and informal tradition for administering justice or settling disputes to help them to continue their often vital role and to do so in conformity with both international standards and local tradition. The Draft African Union Framework on Transitional Justice makes this formal and endorses the value of using indigenous justice mechanisms to facilitate justice and transformation. Moreover, the ARCSS provides for the use of customary practices by the CTRH. The question that arises is what role should customary practices play in the South Sudan transitional justice framework, how should the CTRH incorporate such practices into its work and what should be the role of traditional leaders and community elders in this regard.
 
Paper No. 2: Temporal mandate of the CTRH:
The ARCSS limits the mandate of the CTRH to human rights violations committed from 2005 up until the signing of the ARCSS being August 2015. Argument has been that this will leave out many incidents of human rights violation committed during other conflicts prior to 2005, and therefore, exclude many victims from the transitional justice process. It has also been argued that the origin of the 2013 conflict lies in events that took place well before 2005. Assuming that the issue of the temporal mandate of the CTRH can be reopened, on what basis should the CTRH determine the cut off point for its investigation? Presumably, this may lead to an emotional debate, and civil society will need to develop a unified position on the issue on the basis of a well-informed, reasonable and transparent deliberative process.

Paper No. 3: Complementarities amongst the ARCSS institutions:
The ARCSS does not address the issue of the relationship between the ARCSS institutions. Specific provisions requiring collaboration especially between the CTRH and the HCSS may need to be clarified as same may be controversial. The question of the overlapping role regarding reparations since the ARCSS provides for a CRA, while the HCSS and the CTRH could potentially make recommendations for reparations.

Paper No. 4: CTRH and gender:
Discussions on the gender strategy of the CTRH should take place at the early stages of its establishment. The strategy should be built around the existing frameworks including the Constitution and strategies and principles that have been acknowledged by the government – notably the UN Resolution 1325 National Action Plan – to enhance its advocacy and gender by-in. True gender equality requires reform of patriarchal attitudes and institutions as well as continuous dialogue about gender role, perceptions and power relations. The CTRH should ensure an approach that documents and analyzes women’s experiences and include recommendations that will lead to the review of discriminatory laws and practices that contribute towards the negative treatment of women and the prevailing sense of impunity.

Paper No. 5: Selection of commissioners of the CTRH:
Public consultations on the selection of commissioners of the CTRH is vital. The key question is, what role, if any, can civil society play to ensure that the appointment process is credible; that individuals with the right profile are appointed; and that the commission retains its credibility and independence?

Paper No. 6: Witness protection:
The ARCSS provides for the protection of witnesses and victims, but does not elaborate how this should be done. This is an issue on which civil society might be involved to ensure that there is a robust program of witness protection that can encourage witness participation and enhance the effectiveness of the CTRH.

Except where absolutely necessary, the policy papers should not exceed 3,000 words. The consultant will also hold regular meetings and discussions with the TJWG and organize round-table discussion of experts to discuss and disseminate the policy paper.

In order to achieve the objectives, the tasks of the consultant will include, but are not necessarily limited to, the following:

• Develop an inception report containing a detailed work plan, detail the consultant’s understanding of the assignment and present a detailed methodology;
• Develop a work plan to guide the development of the policy paper;
• Compile excerpts from regional and international transitional justice initiatives with specifics on CTRH and provide explanatory notes and commentary;
• Revise the policy paper based on comparative analysis and practicality as well as feedback from UNDP and the TJWG;
• Organize discussion sessions to present the policy paper to UNDP and the TJWG;
• Organize a round-table discussion of experts to discuss the policy paper;
• Finalize the policy paper in publishable quality;
• Produce deliverables in accordance with the requirements and timeframes of the Terms of Reference.

Deliverables:

The consultant will produce the following deliverables:

Deliverable Duty station Days allocated:

• Inception report Home-based 8 days;
• Drafting and development of first set of three policy papers  Home-based 35 days;
• Drafting and development of second set of three policy papers Home-based 35days;
• Organize round-table discussion In country 6 days;
• Writing and delivery of report In country and home based 6 days.

Total 90 days

 Inception report

• The inception report should detail the consultant’s understanding of the assignment, present a detailed methodology, literature review, overview of the content of the policy papers. The inception report should also include a refined work plan with clear timelines, detailing key deliverables. The inception report will be submitted to UNDP and the TJWG by the consultant for feedback.

Drafting and development of the policy paper for CTRH

• The policy papers should not exceed 3,000 words except where absolutely necessary. During the course of developing the papers, the consultant will receive feedback and inputs from UNDP and the TJWG, including video conferences and face-to-face sessions.

Round-table discussions

• The policy papers will be disseminated in parts, through round table discussions of experts. The consultant will facilitate and organize the round-table discussion of experts to discuss the policy papers. The consultant will be responsible for organizing the venue, logistics and participants for the workshop, in consultation with UNDP. UNDP will avail a separate budget to accommodate this workshop.

Delivery of policy papers

• Submission of final policy papers for CTRH in publishable quality.
• Contracts will be output-based and payment issued only upon approval of satisfactory deliverables.

Competencies

Corporate Competencies:

• Displays cultural, gender, religious, race, nationality, and age sensitivity and adaptability;
• Demonstrates diplomacy and tact in dealing with sensitive and complex situations;
• Strong communication, team building, interpersonal, analysis, and planning skills.

Professionalism:

• Demonstrates professional competence and mastery of the subject matter;
• Demonstrates experience in developing policy paper, guides and training materials;
• Demonstrates ability to negotiate and apply good judgment;
• Shows pride in work and in achievements;
• Is conscientious and efficient in meeting commitments, observing deadlines and achieving results.

Planning & Organizing:

• Organizes and accurately completes multiple tasks by establishing priorities while taking into consideration special assignments, frequent interruptions, deadlines, available resources and multiple reporting relationships;
• Plans, coordinates and organizes workload while remaining aware of changing priorities and competing deadlines;
• Establishes, builds and maintains effective working relationships with staff, partners and beneficiaries to achieve the planned results.

Required Skills and Experience

Education:

• Master's degree in Law or relevant Social Science.

Experience:

• Research or practical experience of not less than 15 years in law, human rights or transitional justice;
• Previous experience in transitional justice institutions;
• Demonstrated practical experiences in development of policy paper, guidance notes, or other published materials on transitional justice mechanisms;
•  Demonstrated knowledge of the complementarities among transitional justice mechanisms;
• Demonstrated experience in working with a variety of stakeholders including civil society;
• •Basic gender understanding, skills, experience and commitment;
• Strong writing and oral communications skills;
• Strong analytical skills, including in the identification of key issues and how they relate;
• Experience working in a hardship and conflict/post-conflict environment is an asset.

Language:

• Fluency in spoken and writing English.

Institutional arrangements
The consultant can make use of the UNDP office and is expected to use their own computer/laptop and cell phone.
The consultant will be contracted for 90 full-time working days.
The consultant will report to the Chief Technical Advisor, Rule of Law and Access to Justice, who will review and approve delivery of outputs.

Technical proposal comprising of the following:

• Letter of Confirmation of Interest and Availability using the template provided by UNDP;
• Personal CV or P11, indicating all past experience from similar projects, as well as the contact details (email and telephone number) of the Candidate and three (3) professional references;
• Brief description (max. 1 page) of why you consider yourself as the most suitable for the assignment, and a methodology (max. 1 page) for how you will approach and complete the assignment;
• Proposal containing a summary of the content of the policy papers as described in sections 4 and 5 of this Terms of Reference: how the methodology will ensure the achievement of the objectives, description of the proposed content of the policy paper, and the proposed venue for the workshops, total all-inclusive cost (max 2-3 pages).

Financial proposal: Indicating the all-inclusive, fixed total contract price, supported by a breakdown of costs.
Applications should be submitted not later than 14 March 2018.

• Offers received will be evaluated using a Combined Scoring method, where the qualifications and proposed methodology will be weighted 70%, and combined with the price offer, which will be weighted 30%.

Criteria to be used for rating the qualifications and methodology
Technical evaluation criteria (total 70 points)
Research or practical experience in law, human rights or transitional justice [20 marks].
Previous experience in transitional justice institutions [20 marks].
Demonstrated practical experiences in development of policy paper, guidance notes, or other published materials on transitional justice mechanisms [20 marks].
Proposed methodology [10 marks].
Only candidates obtaining a minimum of 49 points in the Technical Evaluation will be considered for the Financial Evaluation.
Financial evaluation (total 30 points)
All technically qualified proposals will be scored out of 30 points based on the formula provided below. The maximum points (30) will be assigned to the lowest financial proposal. All other proposals receive points according to the following formula: p y (/z)
Where:
• p = points for the financial proposal being evaluated
• y = maximum number of points for the financial proposal price of the lowest priced proposal
• z = price of the proposal being evaluated.