SAMM Project – A Call for Consultancy – Comparative analysis of National Legislation and International Labour Standards for Labour Migration

Terms of Reference

Comparative analysis of National Legislation and International Labour Standards for Labour Migration

1. Background and context

The Southern Africa Migration Management (SAMM) project is a model of a ONE-UN approach collaborative effort between 4 UN development and humanitarian agencies: the ILO, the IOM, UNODC and UNHCR. The (SAMM) project forms part of the European Union Regional Indicative Programme (11th EDF RIP) for Eastern Africa, Southern Africa and the Indian Ocean (2014–2020) which includes among its objectives the facilitation of safe, orderly and regular migration and the prevention of irregular migration. It focuses on South-South migration flows, identifying positive spill-over effects of international migration on regional integration and regional economic development.

Its overall objective is to improve migration management in the Southern Africa and Indian Ocean region guided by, and contributing to, the realisation of the 2030 Development Agenda (goals 8 and 10).

It is comprised of two main project components: 1. Labour Migration; and 2. Mixed Migration. The first component supports the implementation of the UN Global Compact on Safe, Orderly and Regular Migration (GCM) and the second one the application of the UN Global Compact on Refugees (GCR), as well as of the GCM.

Regional Economic Communities (RECs) are key stakeholders in SAMM’s implementation. One of SAMM’s key project priorities is to support the formulation and realisation of International Labour Migration and Mixed Migration Frameworks of: i) the Common Market for Eastern and Southern Africa (COMESA), ii) the Southern African Development Community (SADC) and; iii) the Indian Ocean Commission (IOC).

The project focuses on the Southern African Region, and targets the following 16 SADC countries: Angola, Botswana, Comoros, Democratic Republic of the Congo (DRC), Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia and Zimbabwe.

Work under this consultancy is linked to SAMM’s Workplan as follows:

Result/output 1.5: Regular consultations and exchange of experiences are facilitated (through existing structures and frameworks) and support is provided to RECs for monitoring of implementation and/or elaboration /completion of their existing labour migration frameworks.

Indicator 1.5.3 Policies and legislations in MS reviewed and formulated within International Labour Standards, African Union Migration Policy Framework and Joint Labour Migration Programme, and RECs existing Labour Migration Policy Frameworks

Activity 1.5.3.5 Technical assistance to relevant countries on Ratification of Convention and use of normative instruments (a) Gap Analysis on ILS Protection of Migrant Workers.

2. Technical Context (Global and at the SADC level)

The protection of migrant workers and their families is firmly rooted in the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families adopted in 1990 by the United Nations General Assembly. Lack of labour protection for migrant workers undermines protection generally for all workers. The many international labour standards adopted over the years by the International Labour Conference of the ILO are important for safeguarding the dignity and rights of migrant workers. In principle, all international labour standards, unless otherwise stated, are applicable to migrant workers.

In order to ensure an effective protection of migrant workers, the ILO and partner institutions need to continue strengthening their work on improving labour migration legislation at the country, RECs and continental level. At the same time, they should continue advancing work on advocating for the ratification and effective implementation of ILO Migrant Workers’ Conventions in Southern Africa.

The outcome of the discussion by the Committee on the Application of Standards of the General Survey concerning the migrant workers instruments stated the following: “*the Office should undertake an awareness-raising and implementation campaign on Conventions Nos 97 and 143 and Recommendations Nos 86 and 151…. Such an awareness-raising campaign should include tools to assist member States which have ratified the instruments in working towards their full implementation, as well as to assist other member States that express an interest in the possibility of ratifying the instruments”^[1].*

One major component of the SAMM project’s support to Migration Management in SADC is the capacity building and technical support to Member States on International Labour Standards. Relevant ILO and UN Labour Migration Conventions, and regional Protocols related to the SAMM project in the SADC region with ratifications are as follows:

ILO:Migration for Employment Convention (Revised), 1949 (No. 97)

• Five 5 countries (Madagascar, Malawi, Mauritius, Tanzania, and Zambia) have ratified this Convention.

ILO: Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143)

• Madagascar is the only country to ratify this Convention.

ILO:Private Employment Agencies Convention, 1997 (No. 181)

• Madagascar and Zambia have ratified this Convention.

ILO: Domestic Workers Convention, 2011 (No. 189)

• Four countries (Mauritius, Madagascar, Namibia, and South Africa) have ratified this Convention.

UN: 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW)

• Four countries (Lesotho, Madagascar, Mozambique and Seychelles) have signed the ICRMW.

SADC:Protocol on Facilitation of Movement of Persons

• Six countries (Botswana, Eswatini, Lesotho, Mozambique, South Africa, and Zambia) have signed this Protocol.

COMESA: Protocol on Free Movement of Persons, Labour, Services, the Right of Establishment and Residence

• Zero countries have signed this Protocol.

3. Objectives and Outputs

The objective of the consultancy is to compile all relevant national legislative, regulatory and policy measures related to migrant workers and intended to give effect to the provisions of ILO Conventions Nos 97, 143 and the UN 1990 ICRMW. The compilation is also expected to better identify existing challenges and obstacles to realizing the rights of migrant workers and female migrants (including emigrants, immigrants, and returnees), both in law and in practice.

Specifically, the objectives are to:

(i) Compile existing quantitative and qualitative information drawn from current laws and regulations, collective agreements, bilateral and multilateral labour migration agreements, judicial decisions, as well as practices in the field of labour migration in Botswana, Comoros, DRC, Eswatini, Lesotho, Mauritius, Mozambique, Seychelles, South Africa and Zambia through desk review and interviews of key stakeholders, except in Member States where a Convention has been ratified;

(ii) Prepare a table comparing specific elements of national laws and regulations with provisions of the Conventions, as well as of practical application of these laws and regulations with respect to migrant workers, including female migrants, and those in an irregular situation. The consultant will identify all elements of law and regulations applicable to labour migration as they relate to the articles of Conventions Nos 97, 143, 181, and 189. The analysis will be in the form of a matrix that proceeds article by article for each Convention.

4. Methodology

The methodology will include:

• a desk review; and,
• key informant interviews and/or consultations (virtual or face to face) with stakeholders in the Southern Africa and IOC region. The organisation of face-to-face meetings or interviews will depend on the lifting of COVID-19 imposed travel restrictions and physical gatherings.

One Chapter per country covered will be produced including an analysis of the tables.

5. Qualifications and Experience Required

Education: Advanced university degree in Labour Law, Development Studies, Economics, Migration studies, Public Policy, Management, or other relevant Social Sciences degree.

Experience: At least 5 years of demonstrated experience in International Human Rights and International Labour Standards and/or labour migration governance particularly in SADC countries as well as working with COMESA, IOC. Country level experience in at least some of the SADC countries is an asset.

Languages: Excellent command of English. Working knowledge of French and/or Portuguese is an advantage.

6. Terms of Contract for Consultant

The service provider will be responsible for all expected outputs mentioned in the terms of reference.

Daily fees will range between 200 to 450 USD.

Fees will be determined depending on the qualifications, knowledge and experience of the consultant(s) on the subject (particularly job experience in SADC countries), as well as on the technical area under study: International Human Rights and International Labour Standards and/or labour migration governance.

COVID-19 restrictions permitting. the ILO will separately cover the cost of travel and DSA of the consultant (in case of need) to organise face to face meetings or interviews.

7. Timeline and payment breakdown

The consultant will work for a total of 4 months or 80 working days.

Starting date: day/month/year

End date: day/month/year

Total agreed consultant(s)’ fees represent**amount** US dollars based on a daily fee of _$/day for number of working days.

Payments will be disbursed as follows:

30% of the total or amount US dollars upon the completion of a first draft no later than day/month/year _ to the satisfaction of the ILO.

30% of the total or _amount**US dollars** upon the completion of the second draft no later than day/month/year __ to the satisfaction of the ILO**.

40% of the total or amount**_** US dollars **upon the completion of the final product no later than ** day/month/year _ to the satisfaction of the ILO**.

8. Supervision and Reporting

The service provider will report to Ms. Gloria Moreno-Fontes, Chief Technical Advisor of the Southern Africa Migration Management (SAMM) project, who will coordinate with ILO/MIGRANT in HQ and share it broadly with other ILO Technical Specialised Departments.

The ILO will liaise with the IOM, UNHCR and UNODC (if pertinent) and be in charge of the overall supervision for incorporating inputs and comments and validation of the work.

FOOTNOTES

[1] International Labour Organization: Report of the Committee on the Application of Standards, Third item on the agenda; Information and reports on the application of Conventions and Recommendations, Provisional Record 16 part one, 105^th Session of the International Labour Conference, Geneva, May-June 2016.