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ANNEX II: TERMS OF REFERENCE

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ANNEX II: TERMS OF REFERENCE Powered By Docstoc
					                              ANNEX II: TERMS OF REFERENCE

1.   BACKGROUND INFORMATION ........................................................................................1
     1.1.     Beneficiary country ......................................................................................................1
     1.2.     Contracting Authority...................................................................................................1
     1.3.     Relevant country background.......................................................................................1
     1.4.     Current state of affairs in the relevant sector ...............................................................2
     1.5.     Related programmes and other donor activities: ..........................................................4
2.   CONTRACT PURPOSE & EXPECTED RESULTS .............................................................5
     2.1.     Overall objective ..........................................................................................................5
     2.2.     Purpose .........................................................................................................................5
     2.3.     Results to be achieved by the Consultant .....................................................................6
3.   ASSUMPTIONS & RISKS .....................................................................................................6
     3.1.     Assumptions underlying the project intervention ........................................................6
     3.2.     Risks .............................................................................................................................7
4.   SCOPE OF THE WORK ........................................................................................................8
     4.1.     General .........................................................................................................................8
     4.2.     Specific activities .........................................................................................................9
     4.3.     Project management ...................................................................................................10
5.   LOGISTICS AND TIMING..................................................................................................12
     5.1.     Location......................................................................................................................12
     5.2.     Commencement date & Period of execution..............................................................12
6.   REQUIREMENTS ................................................................................................................12
     6.1.     Personnel ....................................................................................................................12
     6.2.     Office accommodation ...............................................................................................16
     6.3.     Facilities to be provided by the Consultant ................................................................15
     6.4.     Equipment...................................................................................................................16
7.   REPORTS .............................................................................................................................17
     7.1.     Reporting requirements ..............................................................................................17
     7.2.     Submission & approval of progress reports ...............................................................18
8.   MONITORING AND EVALUATION.................................................................................17
     8.1.     Definition of indicators ..............................................................................................17
     8.2.     Special requirements ..................................................................................................17




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                                       Terms of reference


 1. BACKGROUND INFORMATION
     1.1.      Beneficiary country

      Malawi
     1.2.      Contracting Authority

The Government of Malawi, represented by the Minister of Finance, National Authorising
Officer (NAO) for the European Development Fund (EDF).
     1.3.      Relevant country background

Malawi is amongst the 10 poorest countries in the world, with a population of about 11.7
million, 75% of whom live in rural areas (although the rate of urbanisation is rapidly
increasing). Two thirds of the population live below the poverty line. 64.7% of Malawi’s
population lives in poor households and 36.3% lives in ultra poor households. The 2003
economic growth rate of 4.4% was sustained, reaching 4.9% in 2004. However, the per
capita GDP of US$160 in 2004 remains below the level of 2000.
Poverty is deep and widespread throughout the country with smallholder farmers, female
and child-headed households, workers of agricultural estates and the disabled being
acutely and disproportionately affected.
Malawi’s economy is based primarily on agriculture, which accounts for about 40% of
GDP and 88% of export revenues and occupies over 80% of the rural population. Most of
the population is engaged in peasant farming. There is a significant balance of trade
deficit. In recent years, the industrial and business sectors have largely failed to prosper,
and the latest figures for industrial production show a fall of 1.6%.
Life expectancy has decreased from 45.6 in 1992 to 37.5 in 2003, mainly due to
HIV/AIDS, with a much higher prevalence among women than men. Malawi is also highly
affected by malaria.
The literacy rate is 44% for women and 73% for men (aged 15 and over). English is
widely spoken among educated people, while Chichewa is spoken by 70% of the
population, Tumbuka by 20% and Yao by 10%.
Malawi has been a multi-party, constitutional democracy since 1994, when the one-party
dictatorial regime of former President Banda was forced out of office by the opposition
movement. The Executive, Judiciary and Legislature are independent bodies under the
Constitution and both the President and Parliament are elected by popular vote for a five-
year term. The President is both Head of State and Head of the Government and has
extensive executive powers. Parliamentary and Presidential elections were held in May
2004. Local elections, constitutionally required during 2005, are as yet unscheduled.
Administratively, Malawi is divided into three regions, 28 Districts, 193 Constituencies and
859 Wards.       The basic organisation at grassroots’ level is through the Village
Development Committees. The District Assemblies include elected councillors, the
relevant Members of Parliament and hereditary chiefs (confirmed by Government) as well
as local NGO’s.
1.3.1. 1.3.1     Development policy of the beneficiary country

The GoM’s overarching policy objective is economic growth to achieve poverty reduction.
This is reflected in the newly drafted Malawi Growth and Development Strategy (MGDS)
where the Malawi Poverty Reduction Strategy (MPRS) and the Malawi Economic Growth
Strategy (MEGS) are merged. This strategy is based on the premise that poverty cannot




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be reduced without economic growth and development. One of the pillars of this policy is
Good Governance as a prerequisite for growth and poverty reduction. This reflects the
declarations of the President in his State of the Nation Address, where he stated that :
“The Government is committed to achieving our vision to promote sustainable economic
growth through justice and equity. The role of the law in the achievement of this vision
cannot be over-emphasized; there cannot be any orderly political, social and economic
development without the rule of law and proper administration of justice.” The policy
includes the fight against corrupt practices; improved accountability and service delivery
at the local level through decentralization; development of a strong justice system and the
rule of law; and the establishment of an institutional setting for good corporate
governance. Specific means to achieve the aims of this policy include strengthening the
role of civil society in ensuring good governance; the protection of human rights; equal
access to justice; improved legislative framework and service delivery to promote
investment and local industries; corporate governance; and an accountable and
transparent public sector management. HIV/AIDS, gender and environment are
crosscutting issues. The aim is to achieve an annual minimum economic growth of 6%,
deemed necessary to generate resources needed for meaningful poverty reduction and to
move from an importing to an exporting and producing economy.
Political will as well as a supportive legal/regulatory framework are considered essential
pre-conditions for private sector investment, trade and growth. Of particular relevance to
the Project is recognition of the importance of improving the regulatory framework for
business and investment, based on updated legislation and an efficient judicial system;
improved access to justice; prevention of corruption and fraud; democratisation, and the
protection of human rights, towards creating the conditions for poverty reduction.
     1.4.     Current state of affairs in the relevant sector

The sector is composed of a number of formally separate, though functionally closely
related institutions. Most of them have developed strategic plans but there is no linkage
between these and therefore no sector-wide approach. The new Project intends to build
on the sharing of experiences and budding linkages that have been achieved under the
previous EC financed projects in the Good Governance area: the Promotion of the Rule of
Law and Improvement of Justice Project (ended in December 2005) and the National
Initiative for Civic and Voters Education (N.I.C.E.) project (whose second phase ended in
July 2006) to strengthen these linkages and rationalize efforts.
The 1994 Constitution and subsequent legislation established a number of institutions
concerned with the rule of law. Most of these are included as direct beneficiaries of the
“Promotion of the Rule of Law and Civic Education” project. These are:
The Ministry of Justice, which includes the Office of the Director of Public Prosecutions,
the Chief Legal Draftsman, the Legal Aid Department and both the Registrar and
Administrator General, where there is need to enhance the effectiveness of service
delivery in the key areas of prosecutions, legal drafting, legal aid and training of public
servants in administrative law in all Ministries. Its role of coordinator of the legal sector will
be vital for the sustainability of activities and the eventual achievement of a sector-wide
approach.
The Judiciary, headed by the Chief Justice of the Supreme Court of Appeal. The
intermediate level is the High Court which has jurisdiction over all civil and criminal
matters and is the court of first resort in appeal cases from subordinate courts. The
Judiciary includes the Industrial Relations Court and is establishing a division of the High
Court to deal with commercial cases. The lowest level is constituted by the courts of
summary jurisdiction, which are the four classes of Magistrates Courts. The Traditional
Courts were formally abolished in 1994 together with the one-party dictatorial regime as




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they had been used for political purposes. In practice, traditional leaders continue to deal
with complaints as, especially for people in rural areas, this is the easiest way to get
redress for the most common crimes (disputes about property, stealing of crops and
domestic animals).There are now moves to reinstate them and the study of customary law
has been restored to the Bachelor of Law curriculum at the Faculty of Law.
Parliament whose legislative role and supervision of the performance of the executive is
seriously hampered by lack of human and financial resources, including the lack of a
suitable building, as well as by the extensive powers of the President and the control of
funds by the Treasury that create tensions between these two arms of Government. The
National Assembly has an extensive committee system and the Legal Affairs Committee
is mandatory by Constitution. Major law review and reform commitments create a very full
and important agenda for this and other Committees. Committees generally depend on
donors’ funds to finance their meetings. Parliament lacks research capability and there is
no pool of professional and technical expertise available to MPs to advise on complex
Bills.
The Law Commission, responsible for the review of legislation to adapt it to
constitutional principles and international agreements signed by Malawi and which
discharges its duties in a commendable consultative manner, though adoption of
proposed legislation often remains pending for years in the Ministry of Justice, Cabinet
and Parliament.
The Malawi Electoral Commission, mandated to conduct elections though it is
hampered by lack of capacity and independent means as not enough resources are
provided by the Treasury for it to fulfil its mandate in an efficient and timely manner. It
faces the challenge of undertaking a profound reform to improve its performance. One of
the main problems it faces is the unreliable and faulty voters’ roll. This will constitute one
of the priorities of this Project, including support to continuous registration based on the
establishment of a national registration and identity card system which the Government
has announced though the required legislation is not yet passed.
The Law Faculty, which enjoys a high repute and is considered a centre of excellence
with high quality lecturers though lack of sufficient space prevents it from increasing its
intake and number of courses. Under the new EC project it is envisaged to build an annex
to this Faculty.
The Anti-Corruption Bureau (ACB) established under the Corrupt Practices Act of 1995
but whose operations only started in 1998. The mandate of the ACB was extended under
the Corrupt Practices (Amendment) Act of 2004, to allow it to investigate and prosecute
offences under the Act, as well as to investigate other offences under any other written
law coming to its attention during the course of an investigation. It can only undertake
prosecutions with prior authorization of the Director of Public Prosecutions (DPP) which
operates under the Ministry of Justice.
The Prisons Service, under the Ministry of Home Affairs and Internal Security, whose
prisons are notoriously overcrowded with prisoners who can be on remand for years.
Reducing the proportion of remand prisoners depends on the availability of advice from
paralegals and regular visits by magistrates who can decide immediate release when
remand periods have been exceeded. The managerial and administrative skills in the
Prisons Service need enhancement. Hygiene and sanitation standards are still poor, and
the health –and death rate- of prisoners is an important humanitarian and statutory
concern.
The National Archives, a long-established but poorly funded statutory body responsible
for the storage and maintenance of official documents and other documents deposited




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with it and whose essential role as custodians of the country’s records is increasingly
being appreciated.
All these institutions lack sufficient human and financial resources and management skills
though, at the same time, all of them have highly qualified and valuable personnel, though
in insufficient numbers. The low retention rate of trained personnel by the civil service is a
problem though efforts are currently being made to improve the conditions of service.
An important problem is the high death rate and low life expectancy in Malawi due to the
HIV/AIDS epidemic, though the situation seems to be improving due to the provision of
anti-retroviral drugs and higher awareness.
Political parties, non State actors (NSAs) including non-governmental organizations
(NGOs) and professional bodies, also have an important role to play in the sector.
High levels of illiteracy in the impoverished and largely rural population mean that people
are generally unaware of their democratic and human rights. Making them aware of these
rights is not enough if they have no access to the institutions mandated to protect them.
The culture of democracy and democratic attitudes is still very weak. Political parties are
created around a leader, usually representing a region, and there are hardly any
ideological differences between them. The Project will support civic education activities
aimed, not only at citizens in general, but at instilling democracy and democratic attitudes
and behaviour within political parties. Civic education through NICE has an important role
to play in this area.

NICE

The civic education component of the project, known as NICE (National Initiative for
Civic and Voters Education) is the continuation of a previous project that since August
2005 has its own Malawian management and is run as a direct labour operation under the
project. It started in 1999 as a one year pilot project to prepare for the May 1999 elections
and became a fully fledged one the next year. It has a country-wide structure with at least
one office in every district of the country. Given the close and successful links already
tested between the “Promotion of the Rule of Law and Improvement of Justice” (RoLP)
and NICE, both projects were included in the same Financing Agreement to improve
synergies and bring national legal institutions closer to the people, thus empowering the
common citizens to achieve their human, social and economic rights. The Civic Education
component has its own logframe and budget and is expected to acquire its own legal
status during the life span of the Project.


     1.5.     Related programmes and other donor activities:

The United Kingdom’s Department for International Development (DfID) has so far been
the main donor in the legal sector, through a large programme (£ 35 million for 7 years)
known as MaSSAJ (Malawi Safety, Security and Access to Justice) mainly focused on
criminal justice and support to the Police and Prisons Services, though with some
interventions (both through MaSSAJ and directly by DfID) in other areas of the legal
sector. The Project will continue and intensify cooperation with DfID and MaSSAJ, whose
design and activities are currently under review with reduced funding.
In the area of civic education, the EC remains the main consistent donor through the
NICE project.
Other donors active in the general sector of Good Governance are UNDP, World Bank,
African Development Bank, NORAD/SIDA, CIDA, USAID, and the German Agency GTZ.
Their efforts tend to concentrate on support to financial and fiscal management (which the




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EC supports under other projects) and/or public sector reform and decentralization. Most
of them allocate grants to NSAs (mainly NGOs) to carry out activities, with additional ad
hoc support to some institutions and to Parliament. USAID is now starting to implement
some activities through its Millennium Challenge Account initiative.
There are no sector-specific Government programmes, although Malawi’s accession to
NEPAD’s peer review mechanism, currently underway, is closely related to the objectives
and results of the Project.
Donors’ coordination, despite the existence of a donors’ Committee on Governance, has
been rather weak though it has greatly improved of late. Certain donors are beginning to
promote ‘basket funding’ for some Government institutions and policies in the sector.
These include support to Parliament, Anti-Corruption Bureau, Electoral Commission,
decentralization policy and common efforts by political parties to achieve internal
democracy. In this context, a Center for Multiparty Democracy sponsored by the Institute
for Multiparty Democracy of the Netherlands was established in 2005 and should provide
a channel for coordinated multi-party funding.
Though the realisation of ‘basket funding’ still needs further refinement in order to be
achieved, the main donors in the sector are increasing efforts to arrive at “basket funding”
by institution, as a first step to arrive at a Sector Wide Approach Policy (SWAP) which
could eventually be introduced by the Government in view of the increasing importance
attached to Good Governance. For the time being, EDF rules only permit contributions to
“basket funding” if the World Bank or a UN agency undertakes to administer the funds. If
such an agreement were to be reached for the funding of one of the beneficiary institution
of the Project, a proportion of the total funds would be contributed to such fund.
The present Project proposes to contribute towards donor coordination, both through the
Ministry of Justice, where the services of an expert shall be provided to assist this
institution in its coordinating and supervisory role in the Project and to monitor the
activities of this and other projects in the legal sector. In the area of civic education, the
establishment of a Consultative Forum should also contribute to the coordination of efforts
and activities.
Total funding allocated for this Project is 28 million, of which 17,220,000 to the Rule of
Law component; 8,930,000 to the Civic Education component and a total of 1,850,000
to audits, evaluations and contingencies. The Technical Facilitation Unit will manage the
Rule of Law component only ( 17,220,000).

2.   OBJECTIVE, PURPOSE & EXPECTED RESULTS

     2.1.     Overall objective

The overall objective is to contribute to the strengthening of the democratic process and
the increase of good governance in Malawi for accelerated economic growth and poverty
reduction.
     2.2.     Purpose

The purpose of this contract is the smooth and efficient implementation of the Rule of Law
component of the “Promotion of the Rule of Law and Civic Education in Malawi” project in
coordination with other donor activities to avoid duplication and achieve synergies.
Specifically, the aim of the contract is :
-    The establishment and maintenance of a Technical Facilitation Unit to manage the
     RoL component of the Project through the provision of long term and short-term




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         technical assistance, support personnel and office facilities to support the
         implemention of the activities proposed by the beneficiary institutions through
         Programme Estimates, contracts, call for proposals or any other means deemed
         relevant, in accordance with the logframe of the Project and the beneficiaries’
         mandate and strategic plans, including training and procurement plans.
         2.3.   Results to be achieved by the Consultant

     -     Effective management of the Project is ensured, including adherence to EDF
           procedures
     -     Beneficiary institutions are aware of the programming, financial and monitoring
           requirements for their participation in the Project
     -     Institutions are provided with enough support, including timely technical
           assistance, to implement their activities and achieve the aims of the Project
     -     Close and smooth cooperation is established with the Ministry of Justice to
           programme, coordinate and monitor activities
     -     Two-monthly progress reports (including financial reports) on the progress of the
           Project implementation (PEs and other components – including the TFU contract)
           are provided and shared with Project Steering Committee members. These
           reports will have to be consolidated six monthly and annually, as per EDF rules on
           PE management.
     -     Monitoring of the Project is ensured through regular follow-up of project indicators
           in close cooperation with the Ministry of Justice and the relevant institutions. Such
           indicators shall, whenever possible, be aligned to indicators approved for the new
           Malawi Growth and Development Strategy (MGDS)
     -     Personnel responsible for accounting for Project’s funds in beneficiary institutions
           are trained in account keeping and procedures in accordance with EDF rules.
     -     Efficient secretarial services provided to allow for PSC meetings at least every 2
           months and technical meetings as often as required.
     -     Proposals submitted for funding by the institutions are in line with institutions’ own
           strategic plans, training plans and procurement plans, the MGDS and the logframe
           matrix of the Rule of Law component of the Project.
     -     The activities of the Project are coordinated with those of other donors active in
           the sector to avoid duplication.
     -     Coordination of the activities of the beneficiary institutions is ensured, including
           sharing of human and material resources, as well as training and technical
           assistance provision, where appropriate, to take full advantage of available
           opportunities and synergies and to maximise the cost-effectiveness of the Project.
     -     Civic education activities are coordinated with NICE following guidance by the
           Project Steering Committee.
     -     Provide support for each beneficiary institution to develop a plan to implement and
           to monitor gender and HIV/AIDS issues.
     -     A plan for provision of Technical Assistance to all potential beneficiaries for the
           duration of the programme is established, in line with institutions’ requests and,
           when possible, to complement the activities funded under the Programme
           Estimates. The plan is to be implemented and revised on an annual basis, to
           adapt the absorption capacities of the institutions and changes of priorities.

3.       ASSUMPTIONS & RISKS

         3.1.   Assumptions underlying the project intervention

The main assumptions and risks for the Project relate to the Government of Malawi
commitment to Good Governance issues. This would include maintaining overall political




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commitment to the fight against corruption and the implementation of the rule of law in the
country, while facilitating public awareness and people’s empowerment through GoM
programmes. Given the extremely tight economic conditions, recurrent budget deficit and
overall lack of financial resources, the GoM commitment to increase, or at least maintain,
public spending in rule of law institutions, thus allowing proper human resource
management and acceptable working conditions, will be critical to the success of the
programme.



Specific assumptions, as per project Financing Agreement, are that the Government of
Malawi and its institutions commit themselves to respect the following conditions, which
will contribute to the successful implementation of the Project, in particular :

-       Active engagement to coordinate activities through the Ministry of Justice and the
        Project Steering Committee, demonstrated by positive and cooperative decision-
        making.

-       Maintain, and as far as possible increase, public spending in rule of law
        institutions, with timely and effective disbursement of allocated funds to beneficiary
        institutions.

-       Demonstrable improvement in fiscal discipline and probity in budgeting and
        financial management, and a determined campaign against corruption and fraud.

-       Maintenance of buildings, equipment and vehicles provided under the Project, and
        keeping up-to-date inventories of Project-funded property.

-       Development of consensus regarding the future legal status of NICE, as well as
        the drafting and approval of an implementation plan.

-     Facilitate public awareness and people’s empowerment through Government
programmes.

-       Cooperation by the relevant institution to surveys providing data and information to
        guide programme methodology and strategies and to allow for qualitative
        monitoring.

     3.2.     Risks

The following risk are identified :
              The Executive does not provide resources to Rule of Law institutions as approved by
              Parliament.

              There is no political will to implement approved Government strategies and legislation.

              Prosecution of corruption cases is politically guided.

              Working conditions in the public service unable it to recruit and retain suitable
              qualified personnel.

              Decentralization policy is not effectively implemented, including for registration of
              business and property rights.




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              Rule of law institutions are not included in the periodic reviews of the new “Malawi
              Growth & Development Strategy” (MGDS).

              Beneficiary institutions do not provide information on indicators and statistics to
              monitor the project and the activities financed by it.

              The Project Coordinator in the Ministry of Justice does not receive support from the
              Ministry and other beneficiary institutions.

              The anticipated planning Department in the Ministry of Justice does not perform.

              Government does not show commitment and adherence to democratic principles.




4.   SCOPE OF THE WORK

     4.1.     General

4.1.1. Project description

The Technical Facilitation Unit (TFU) is expected to manage the Project on behalf of the
NAO. The Ministry of Justice will be the coordinator and supervisor of the Project and
should work in close cooperation with the TFU to ensure monitoring and coordination of
the activities proposed by the beneficiary institutions under the Project and other donor
financed activities in the legal sector.

The TFU will be responsible for the technical and administrative implementation of the
Rule of Law component of the Project as well as for its internal monitoring and evaluation,
provision of reports and drawing up of annual programme-estimates, in close cooperation
with the Ministry of Justice as Supervisor of the Project, as well as with the NAO. These
annual Programme Estimates will be based on the annual programmes presented by the
beneficiary institutions in support of their core activities.
The attached logframe matrix for the Rule of Law Component of the Project provides an
overview of its general scope, activities and expected results.

The TFU will work in close cooperation with the Ministry of Justice and the NAO Support
Unit . It will liase closely with the beneficiary institutions and the civic education
component of the Project, as well as with the EC Delegation and other organisations
involved in the Project.


The TFU is expected to provide technical, financial and EDF procedural advice to
beneficiaries; manage work programmes in accordance with EDF regulations and
procedures; monitor the implementation of the various activities in close cooperation and
with the assistance of the Ministry of Justice’s planning and coordination unit. This will
include provision of specific technical assistance as required by beneficiaries, preparation
of terms of reference and tenders dossiers as necessary, as well as organising calls for
proposals to further the aims of the Project.

The TFU will ensure that all activities relating to the Project are performed in strict
accordance with the general regulations for works, supply and service contracts financed




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by the EDF. It will ensure a high degree of confidentiality in connection with that part of
the work dealing with tendering and contracting.

4.1.2. Geographical area to be covered

The Technical Facilitation Unit will be based in Lilongwe. Apart from the Ministry of
Justice, other beneficiary institutions with Headquarters in Lilongwe are Parliament, the
Law Commission and the Anti-Corruption Bureau. The Law Faculty, National Archives
and Prison Service are based in Zomba; the Judiciary and the Electoral Commission have
their Headquarters in Blantyre.I It is expected that members of the TFU should need to
make regular visits to places outside Lilongwe.
Civic education activities in which Rule of Law institutions take part are mostly conducted
in rural areas that will require staff from the TFU to travel to these areas on a regular
basis.

4.1.3. Target groups

The main beneficiaries and implementing partners of this Project are the above
mentioned institutions, and the final beneficiaries will be the citizens of Malawi in general,
through better information of their rights –and obligations-, improved access to justice and
to their social, economic and legal rights through the promotion of their participation in
public life, and the improvement of services delivered by the core institutions of the sector,
including through support to their decentralization, thus making them accessible outside
the main cities.

     4.2.     Specific activities

The TFU is expected to manage the Project on behalf of the NAO by undertaking the
following tasks and activities:
     Project Operational Management

• Establish the TFU (office, staff, equipment etc.) and maintain sufficient capacity to
  implement the Rule of Law component of the Project;

• Assist the beneficiary institutions with the implementation of the activities proposed for
  financing in close collaboration with the Ministry of Justice.

• Provide adequate and timely Technical Assistance as required and ensure adequate
  monitoring of support provided;

• Assist the beneficiary institutions with the preparation of their individual annual work
  programme estimates, with details of activities proposed to be financed;

• Provide assistance to the beneficiary institutions to prepare terms of reference and tender
  documents for specific service, supply and works contracts as required;

• Prepare the Project’s annual programme estimates with detailed costing of activities,
  based on the work programmes prepared by the beneficiary institutions, including cross-
  cutting activities, for the approval of the PSC, the NAO and the EC Delegation;




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• Produce activity reports (including financial reports) every two months for PSC
  meetings; the reports will be consolidated into six-monthly and annual reports, in line
  with PE management requirements; other specific reports may be required or requested
  by the supervisor or the Contracting Authority;

• Ensure that the tasks/activities financed have been properly performed;

• Monitor and advise on the M&E system for the Project, including eventual conduct of
  surveys to evaluate project impact and further refinement of the logframe;

• cooperation with beneficiaries, NICE and other donors’ programmes in the sector.



    Project Financial Management

• Establish and maintain an effective and transparent finance and accounting system to
  maintain control over all disbursements and facilitate financial audits, in full adherence
  to EDF procedures;

• Follow up and monitor implementation of the Financing Agreement, programme
  estimates and contracts;

• Monitor implementation of all contracts to ensure compliance with general and special
  conditions of contracts and advise and assist in all aspects of contract administration,
  including properly prepared payment certificates, attendance certificates, etc., and that
  budget headings are respected and timely warning is given of any impending technical,
  time or budget related problems;

• Ensure that the amounts claimed by the beneficiary institutions and bodies have actually
  and necessarily been incurred;

• Manage the procurement of works, supplies and services as provided for in the
  programme estimates;

• Prepare, launch, award and monitor calls for proposals to contribute to the aims of the
  Project, if required;

• Cooperate closely with the EC Delegation with regards to audits, monitoring missions,
  evaluations, etc.



    Capacity Building and Cross Cutting issues.

• Train local staff, particularly in the beneficiary institutions in all the above aspects.
  Training in tendering and contract administration, financial management and account
  keeping, in accordance with EDF procedures, will be an essential element;




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• Facilitate the preparation of an HIV/AIDS and Gender support strategy for the
  beneficiary institutions and assist with implementation;

• Develop an exit strategy with emphasis on the sustainability of progress made and
  provide an outlook on alternatives towards a Sector-Wide Approach Policy (SWAP);

• Ensure visibility of EDF funding in accordance with the latest visibility guidelines and
  in close coordination with the EC Delegation.

• Undertake any other duties as assigned by the NAO or the Ministry of Justice in relation
  to the aims of the Project.



     4.3.     Project management

4.3.1. Responsible body

The Contracting Authority will be the Government of Malawi, represented by the Minister
of Finance, National Authorising Officer (NAO) for the European Development Fund
(EDF). The Ministry of Justice and Constitutional Affairs will be the Supervisor.
4.3.2. Management structure

An effective management and reporting structure within the TFU team is essential to
ensure efficient use of resources, management of TA, reporting, adherence to the ToR
and to the budget and timing of the contract.

A Project Steering Committee (PSC) provides overall policy guidance and advice to the
Project. The members of the PSC are representatives from the NAO, Ministry of Justice,
Judiciary, Parliament, Law Commission, Faculty of Law, Malawi Electoral Commission,
Prisons Service, Anti-Corruption Bureau, National Archives, Office of the Ombudsman
and the Malawi Human Rights Commission. The managers of the TFU and of NICE, an
EC Delegation and another donor representative have an observer status.


The PSC will oversee and guide the work of the TFU along the following broad lines and
within the regulations governing the implementation of EDF-funded projects and the
Financing Agreement governing the Project:

-   Agree on the plans and budgets for the implementation of the Project (modifying them
    as necessary) submitted by the TFU.
-   Consider reports provided by the TFU on progress of the Project, including the
    implementation of agreed plans and budgets and give direction for future
    implementation in the light of these.
-   Give guidance and direction on any aspect of the Project that may seem appropriate.
-   Assist in resolving any difficulties related to the implementation of the Project (e.g.
    making representations at a higher level on behalf of the Project).
-   Monitor the performance of the TFU and give guidance and direction as necessary.

The PSC is expected to meet at least six times a year. The TFU will act as secretariat of
the PSC. Meetings on specific subjects with selected stakeholders not necessarily direct
beneficiaries of the Project may be arranged from time to time as required and agreed




EuropeAid/122266/D/SER/MW -                                                          11
                                      Terms of reference

4.3.3. Facilities to be provided by the Contracting Authority and/or other parties

The Contracting Authority will provide the following:
- All relevant documents essential to the services to be provided;
- Introductory letters to facilitate access to technical assistance in Ministries, Government
administrations, public organisations, authorities and agencies whose activities and role
are relevant to the assignment of the TFU and, more particularly, direct beneficiary
institutions of the Project. To this end, the institutions have a coordinator and deputy or
deputies responsible for the EC Project, as well as an accountant to keep and prepare
records of expenditure.

The Contracting Authority and the Ministry of Justice will arrange for the provision of
temporary employment permits for the Consultant’s expatriate staff and their family
members, as well as other permits required for the Technical Assistance to carry out its
duties within the country, as well as documentation for the import and export of personal
belongings.


5.   LOGISTICS AND TIMING

     5.1.     Location

The TFU will operate from Lilongwe. Short detachments and missions outside Lilongwe
will be required, particularly to make regular visits to the headquarters and offices of the
beneficiary institutions in Blantyre and Zomba as well as missions to other areas,
particularly for civic education activities.

     5.2.     Commencement date & Period of execution

The commencement date will be communicated to the Consultant after, or at the time of,
award of the contract. The period of execution of the contract is expected to be 36 months
maximum, including 33 months (maximum) of implementation and 3 months (maximum)
of closure activities.


6.   REQUIREMENTS

     6.1.     Personnel

6.1.1. Key experts

The contract entails the provision of a Technical Facilitation Unit, based in Lilongwe,
comprising two (2) key long-term experts (the Team Leader and the Financial Manager
for 32 man/months each) that will manage the programme on the behalf of the
Contracting Authority.

Additionally, the Consultant is expected to mobilise 100 man/months of short-term TA to
deliver specialist support to the Project. Fees for all experts (Key Experts and short-term
experts) will be according to fee rates submitted in the tender.

The two key experts will be supported by a Project Implementation Unit which is expected
to consist of one deputy manager, one deputy accountant, one procurement officer, one
secretary/receptionist, one office assistant, one driver and two guards. The PIU staff will
be recruited by the key experts and will be funded through the Programme Estimates.




EuropeAid/122266/D/SER/MW -                                                            12
                                      Terms of reference

The composition of the TFU is tentative and will be modified according to the needs of the
key experts and upon agreement by the Programme Supervisor and the Contracting
Authority.

All experts who have a crucial role in implementing the contract are referred to as key
experts. The profiles of the key experts for this contract are as follows:


Key expert 1: Team Leader

The Team Leader, the Head of the TFU, will have at least a master degree in public
administration, social or political science, law or in other project-related relevant field of
interest. The Team Leader will have at least 10 years of progressive professional
experience in the management and implementation of development cooperation projects
with demonstrated experience in EC Development cooperation procedures being required
with EDF specific knowledge constituting an advantage. Specific professional experience
must include no less than 5 years of work in institutional capacity building projects
involving several State institutions as well as significant work experience in the Good
Governance/Legal Sector in developing countries. The Team Leader will have
demonstrated experience as Team Leader (top managerial position in projects) as well as
experience in communication and project visibility. Previous work in Sub-Saharan Africa
will be considered as additional advantage. He/She will write and speak English fluently.


Key expert 2: Financial Expert

The Financial Manager will have minimum of a Master degree in financial management
,accountancy or audit and accounting. He will be member of a professional body
(Chartered Accountant or similar). The Financial Manager will have no less than 8 years
of general progressive working experience in financial management in development
cooperation projects, preferably in the Sub-Saharan region and at least 3 years of
demonstrated experience as Head of Finance Department (or similar top finance
managerial position) in the installation of management, accounting and information
systems for controlling and reporting project activities, financial forecasts and reporting on
project of similar dimension. Specifically, his/her experience will include 5 years
experience in EC-funded projects including at least 3 years experience in EDF financed
projects as Head of Finance. EDF experience must include demonstrated knowledge of
9th EDF rules and procedures for preparation and financial administration of Programme
Estimates, including procurement, tendering processes and contracts for the supply of
goods and services. He/She will have to have proven training skills and must be fluent in
English (written & spoken).

6.1.2. Other experts

The Consultant is expected to mobilise 100 man/months of local, regional and
international short term experts throughout the contract duration. These will be recruited
on a draw-down basis as required by the beneficiary institutions for the implementation of
activities under the Project. This will mainly entail the provision of expertise in the 6
Governance cluster areas as described below. As a minimum the expertise (of the short-
term TA) is required to cover the entire project cycle as well as a number of horizontal
aspects, for each cluster.




EuropeAid/122266/D/SER/MW -                                                             13
                                       Terms of reference


Expertise common to all sectors :
a. programme / project identification and preparation / formulation,
b. assistance to implementation,
c. preparation of Terms of Reference (services, works, supplies, …) and evaluation of
offers (Procurement),
d. evaluations (ex-ante, interim, ex-post etc.), monitoring
e. (Cross-) sectoral policies and reforms,
f. (Cross-) sectoral and macroeconomic (economic, budgetary) appraisals/studies,
g. legislation, regulations and law enforcement,
h. institutional building,
i. training and research,
j. awareness-raising, (incl. information and communication)
k. information systems and technological issues
l. gender issues,
m. environmental issues
n. HIV/AIDS issues (impact, prevention, mitigation).

The 6 governance clusters are presented below:

A. Promotion and protection of human rights
1. Promotion and protection of fundamental human rights
2. Social, economic and cultural rights
3. Political and civil rights (women rights, freedom of movement, freedom of thought,
conscience and religion, children, minorities, migrants…)

B. Support to democratisation
1. Democratisation processes (incl. civic education)
2. Social and political roots of conflicts (conflict prevention)
3. Elections (census, support to electoral processes and supervision…)
4. Role and functioning of the Parliament
5. Citizenship (representative legitimacy, participation and political accountability)
6. Media freedom

C. Reinforcement of the rule of law and administration of justice
1. Reinforcement of the rule of law
2. Reform of judiciary (legal reform, justice and protection of human rights, capacity
building, training of magistrates and prosecution officers…)
3. Penal regime (sentencing and detention, pre-trial, juvenile detention…)
4. Awareness and prevention of corruption
5. Police reform
6. Security sector reform (including exercise of civilian control over the military)

D. Public administration reform & civil service reform
1. Public administration reform and organisational development of public institutions
(including policy formulation, planning, budgeting, monitoring, evaluation…)
2. Civil service reform (including legal code, human resources management –
recruitment, training, salaries…)

E. Decentralisation and local development
1. Decentralisation (subsidiarity, legislation, resource and fiscal issues, accountability)
2. Support to local authorities (local and regional levels including municipalities)
3. Community based development (empowerment and participatory approaches, gender




EuropeAid/122266/D/SER/MW -                                                              14
                                      Terms of reference

issues, micro-projects)
4. Local development strategies (social, economic, multi-sector)

F. Enhancement of the role of civil society
1. Organisations (Non Governmental organisations, Community Based Organisations,
media, trade unions…), roles (service delivery and advocacy) and recognition (legal
framework). Including participatory organisation analysis and needs diagnostics
2. Capacity building (development of strategies, management and human resource
development) (including design and delivery of training/mentoring/tutoring and other
forms of support in all aspects of organisation at strategic and functional level,
advocacy, internal governance, decision-making processes, accountability and
transparency, fund raising ) and networking (networking at local, national, regional
and international level, coalition building, intermediary organisations, dialogue with
government institutions)


The Consultant is required to present under "Organisation and methodology / Strategy"
how he intends to recruit short-term experts in the six cluster areas with careful
consideration given to the elements of expertise indicated above. CVs for experts other
than the key experts are not examined prior to the signature of the contract. They should
not be included in tenders.

The Consultant shall select and hire relevant experts as required by the beneficiaries, in
line with a TA provision plan and according to the profiles identified in these Terms of
Reference. For the purposes of this contract, international experts are considered to be
those whose permanent residence is outside the beneficiary country while local experts
are considered to be those whose permanent residence is in the beneficiary country.

The Consultant should pay attention to the need to ensure the active participation of
international, regional and local professional skills where available. All experts must be
independent and free from conflicts of interest in the responsibilities accorded to them.

The selection procedures used by the Consultant to select short term experts shall be
transparent, and shall be based on pre-defined criteria, including professional
qualifications, language skills and work experience. The selection process will identify at
least three valid CVs for each request for Technical Assistance from the beneficiaries.
The findings of the selection panel shall be recorded. The selection of experts shall be
subject to approval by the beneficiary institution requesting the technical assistance.
When the Technical Assistance is to benefit more than one beneficiary, the Supervisor of
the project, in close coordination with the beneficiary institution for the specific Technical
Assistance, will approve the experts.

Civil servants and other staff of the public administration of the beneficiary country cannot
be recruited as experts unless prior written approval has been obtained from the
European Commission.

6.1.3. Support staff & backstopping

The Consultant shall ensure that key experts and short term experts are adequately
supported and equipped. In particular it shall ensure that there is sufficient administrative,
secretarial and interpreting provision to enable experts to concentrate on their primary
responsibilities, if deemed necessary.




EuropeAid/122266/D/SER/MW -                                                             15
                                     Terms of reference

Backstopping costs for the 2 long term experts and the 100 man/months to be engaged
as the need arises, including local transport and travel inside Malawi, are considered to be
included in the fees.


The Consultant will be expected to visit the Project at reasonable intervals to discuss
progress with the Contracting Authority and to evaluate the performance of the
Consultant’s personnel.

     6.2.     Office accommodation

The Key Experts will be provided by the Supervisor, through an EDF funded Programme
Estimate, with suitable office accommodation in Lilongwe of approximately 10 square
metres for each expert. The Consultant will have to provide for office space for the short
term experts through the fees, should this be necessary for the smooth running of their
mission(s). The short term experts will not benefit from the support that will be provided to
the key experts through the Programme Estimates (PIU staff, equipment and facilities).

     6.3.     Facilities to be provided by the Consultant

The Consultant shall ensure that experts are adequately supported and equipped. It must
also transfer funds as necessary to support its activities under the contract and to ensure
that its employees are paid regularly and in a timely fashion.

The Key Experts will be provided by the Supervisor through an EDF funded Programme
Estimates with support staff (PIU), transport vehicle, computing facilities, including
internet and e-mail services, telephone connections and mobile telephones, office
equipment and machinery, furniture, and consumables required for the proper execution
of the contract.

The Consultant shall cover all Key Experts costs such as salaries and benefits, housing,
personal transport cost, medical coverage, guarding etc. through the fees, while
international travel and shipment of personal belongings will be covered by the Consultant
through reimbursable costs.

All cost related to Short Term Experts like per diem, computer, local transport,
accommodation, temporary office, printing and other office costs etc. are to be covered by
the fee rates. The short term experts will not benefit from the support that will be provided
to the key expert through the Programme Estimates (PIU staff, equipment and facilities).
International travel costs shall be covered through reimbursables.


     6.4.     Equipment

No equipment is to be purchased on behalf of the Contracting Authority / beneficiary
country as part of this service contract or transferred to the Contracting Authority /
beneficiary country at the end of this contract. Any equipment related to this contract
which is to be acquired by the beneficiary country must be purchased by means of a
separate supply tender procedure.




EuropeAid/122266/D/SER/MW -                                                            16
                                     Terms of reference

7.   REPORTS

     7.1.     Reporting requirements

Two-monthly, consolidated six-monthly and annual reports which cover progress and
monitoring of all the project activities (including the TFU management) as well as a draft
and a final report will be submitted to the Supervisor – the Ministry of Justice &
Constitutional Affairs and, once approved, to the NAO with a copy to the EC Delegation.
The draft final report must be submitted at least one month before the end of the period of
execution of the contract. A final report will have to be submitted by the Consultant within
15 calendar days after reception of comments, approval or rejection of the draft final
report by the Supervisor. A revised version of the final report will have to be submitted to
the Supervisor within 15 calendar days in case of rejection or further comments made by
the Supervisor to the final report.
The key indicators for assessing the performance of the contract shall be:

     • Timely preparation of a Technical Assistance plan and regular implementation of
       the plan throughout the duration of the project.

     • Provision of quality long term and short-term technical assistance

     • Timely submission of programme estimates including activities proposed by the
       beneficiary institutions in line with their strategic plans and the logical framework
       of the Project

     • Timely and relevant assistance provided to facilitate project implementation
       (tender, Terms of reference, call for proposals…).

     • Development and effective reporting /survey of sector monitoring indicators.

     • Delivery of training to relevant staff of the institutions (coordinators &
       accountants) to ensure correct implementation of the Project in accordance with
       EDF procedures and requirements

     • Timely submission of progress reports (including financial reports) on project
       implementation (PE implementation, TA implementation and other project aspect
       (building component, civic education component etc.)

     • Timely planning and assistance in delivering on pertinent horizontal activities,
       including civic education activities.

     • Demonstrated increased synergies and collaboration between institutions in the
       implementation of the programme.

     • Organization of specific technical meetings.

     • Regular Project Steering Committee Meetings, in line with FA requirements, held
       and minuted.




EuropeAid/122266/D/SER/MW -                                                           17
                                     Terms of reference

     • Timely assistance to the preparation of HIV/AIDS & Gender support strategy for
       all beneficiaries.


Evaluation of the contract performance will be carried out by the NAO and the EC
Delegation. There will be an independent evaluation of the performance of the TFU by the
external consultants selected to conduct the mid term and end of term project evaluation
missions. In addition, it is expected that two monitoring mission will be conducted on the
overall project during the contract timeframe.

     7.2.     Submission & approval of progress reports

3 (three) copies of the progress reports referred to above must be submitted to the
Supervisor identified in the contract. The progress reports must be written in English.
The Supervisor is responsible for approving the progress reports. All reports will serve to
feed into the preparation of the two-monthly Project Steering Committees.


8.   MONITORING AND EVALUATION

     8.1.     Definition of indicators

Indicators of the results of the Project are mentioned in the logical framework attached.
These are currently broadly defined and will be further refined following the ongoing
baseline studies and/or those developed for the needs of the Project. The revised list of
indicators, baseline and targets, will have to be jointly approved by the NAO and the EC
Delegation.

     8.2.     Special requirements

The TFU will be responsible for their further refinement, if required, as well as for the
monitoring of the selected quantitative, qualitative and time indicators.




EuropeAid/122266/D/SER/MW -                                                          18
                              Terms of reference




EuropeAid/122266/D/SER/MW -                        19
                                                  Terms of reference




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EuropeAid/122266/D/SER/MW -                                    10

				
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Description: The Project Coordinator in the Ministry of Justice does not receive ... The Ministry of Justice will be the coordinator and supervisor of the Project and ...