TERMS OF REFERENCE
Institutional contract – providing expertise on civil society observatories of constitutional courts
- Context of Tunisia
The Tunisian constitution foresees the creation of a Constitutional Court (CC), which will replace the temporary Instance provisoire de la constitutionnalité des projets de lois. The law on the CC was adopted in 2015 (loi organique n° 2015-50 du 3 décembre 2015, relative à la Cour constitutionnelle) and it is now expected that the Court would be established in 2017. According to the Constitution, the CC is composed of 12 members. The members are appointed by the President of the Republic, the Assembly of the Representatives of the People (the Parliament), and the Supreme Judicial Council on equal shares, according to the procedures defined by the Constitution and the law. Similarly, the Constitution and the law determine requirements, which candidates must fulfil in order to be considered for the appointment.The choice of the CC judges will be critical for development of this institution, in particular in a situation where the Constitutional Court does not have precedence in the Tunisian legal system. It will be then critical to guarantee utmost popular legitimacy of the Court through ensuring the transparency of the process of selecting/appointing the judges and, once the Court is in place, implementing a well-planned communication strategy. Tunisian civil society has been actively engaged, through outreach and advocacy, in the constitution-making process and later in developing the law on the CC. In addition, there are excellent existing examples of civil society observatories monitoring the work and performance of state institutions. Furthermore, there are organisations and academic associations, which bring together highly qualified Tunisian legal experts in the domains of constitutional law, public law and human rights. Thanks to that and the proactive engagement, civil society and academic experts have been involved directly in the democratic reforms in Tunisia throughout the transition process and they remain key contributors, but also critical observers of the democratic reforms in the country.
In this context, one of the emerging priorities is to reinforce civil society’s mechanisms and capacities, which could serve firstly to monitor the process of electing and appointing the CC judges and, secondly, to follow up on the Court’s work and to contribute to increasing citizens’ awareness on its mission and role in the rule of law system set up by the Constitution. At this stage, following the formation of the Court civil society could for example play a role in monitoring the quality of the external communication of the Court. A quality communication by the Court will be important to build its image as a transparent institution and to enable it to educate citizens about its role in protecting the rule of law in Tunisia. For this to happen, the communication should, among other things, ensure that the Court’s decisions are not only easily accessible to the public but are also put into a user-friendly language that comprehensible for the average citizen following their publication. This is where the CSOs could contribute by preparing interpretations of the Courts decisions in a simple language and format as well as by organising a wide dissemination of these documents. A similar approach has already been used by Tunisian civil society during the constitution-making process and through engagement in advocacy. In the case of the Court, this would further contribute to strengthening citizens’ awareness and understanding of their constitutional rights and the role that the Court plays in protecting these rights and the rule of law in Tunisia. It is even the more relevant since the Constitutional Court has no precedent in Tunisian history. Therefore, an average citizen cannot be expected to easily understand the Court’s mission and mandate. On the contrary; there is a risk that the Court might be perceived as an abstract body with little connection to the day-to-day life of Tunisians. At the same time, the citizens’ sense of ownership and responsibility as well as their consciousness of the Court’s role as part of the constitutional rule of law system in Tunisia will be important in protecting its independence from any political attempts to curb or limit its powers in the future.
- DRI’s Programme in Tunisia
DRI has supported the Tunisian democratic transition since February 2011, contributing, among other things, to the process of drafting the Tunisian Constitution and developing the law on the Constitutional Court. In the course of these activities DRI cooperated directly with state institutions, academia and civil society. DRI recognises the critical role of civil society in implementing the Constitution. Therefore it emphasises support to strengthening civil society participation in monitoring democratic processes and institutions in Tunisia. This role of civil society is particularly important in the period of consolidating the democratic gains in order to ensure that citizens participate in the public life and that they are aware of the direct impact of these institutions on protecting their constitutional freedoms and rights.
- Expected output
Tunisian civil society Constitutional Court Observatory established and provided with substantive support, institutional support in setting up the organisational structures as well as assistance in designing the monitoring tools and applying suitable techniques in order to monitor the process of electing and appointing judges and ensuring subsequent follow up on the Court’s work.
- Process methodology and approach
DRI will provide support to the selected Tunisian academic associations and CSOs in the process of developing the civil society CC monitoring mechanism. The support will include trainings and coaching. Subject to the participatory planning and needs assessment, which constitutes part of the project, the trainings may include: substance topics regarding the CC with reference to comparative experiences, setting up the institutional mechanisms of the functioning of the observatory, operational and communication techniques related to the monitoring of the elections, the techniques of vulgarisation of the legal texts and evaluation of the Court’s communication, transparency of the Court’s work, the relations with the media or the Court’s educational role. In this process, DRI will draw from the existing experiences of similar initiatives in other countries. At the same time, DRI will strive to ensure the local ownership of the initiative. To that end, the final format of the observatory will depend of the Tunisian partners who, with DRI’s support, will decide on applying particular approaches addressing the actual needs and reflecting the conditions of working in Tunisia.
DRI will work directly with the Tunisian partners as well as with Tunisian and international experts and is seeking partnership with an international organisation (Contracted Institution).
The following activities will be implemented:
- A cycle of three workshops of four days each, bringing together approximately 10-15 participants representing Tunisian society and academia who will then be involved in the future observatory. The workshops will take place at the end of October 2016, early December 2016 and in January 2017 in Tunisia. The programme for each workshop will be developed jointly with the Tunisian organisations participating in creating the initiative. The First workshop session will focus, among other issues, on the detailed participatory planning for the entire process. Other topics, which will be included in the workshops’ sessions will cover an introduction to the role of the CC based on the Tunisian Constitution and the law; procedures related to election of the judges; presentations of the comparative experience with the details on methodology, techniques and instruments used as well as development of a strategic planning for developing the initiative. Participants will be given individual homework tasks between the workshops.
- A seminar on comparative experiences of monitoring constitutional courts, which will take place in Tunis in January 2017. The seminar will focus on presenting the initiative of the Constitutional Court Observatory; presenting the comparative experiences of monitoring constitutional courts and debate on the role the Tunisian Observatory can play in ensuring the transparency of the CC election and appointment procedure as well as follow up of the work of the Court.
The objectives of the workshops are:
- Support a participatory process of designing tailor-made monitoring and reporting systems reflecting the Tunisian context on the basis of comparative experience (the Contracted Institution will be responsible for this component) including:
- To plan and design application of the most relevant monitoring methodologies, techniques, and forms;
- To plan, design, develop relevant procedures, protocols, documents, forms;
- Develop participants’ knowledge on reporting requirements, instructions, principles and code of conduct to be applied;
- Develop participants’ skills in information gathering;
- Develop participants’ knowledge on communication and advocacy in the context of the work of the Observatory;
- Provide support in designing the strategic planning for the initiative (the Contracted Institution will not be responsible for this part).
The objectives of the seminar are:
- introduce the Observatory to the relevant stakeholders and wider public;
- Discuss with stakeholders concrete arrangements regarding the work of the Observatory during the period of electing/appointing the judges of the CC;
- Provide a platform for public discussion on the role of the Observatory in Tunisia;
- Provide an opportunity for wider consultations with other stakeholders on the possible ways of cooperation/coordination.
- Tasks and Deliverables
Under the direct supervision of the DRI Tunisia Country Director, the Contracted Institution will contribute to the three workshops and the seminar by Contracted Institution proposing experts who will support the workshops and seminars. It is envisaged that the first and the third workshop will be supported by two experts and the second workshop by one expert. The seminar will be supported by two experts.
The actual planning of experts’ engagement in the following phases of the project will be confirmed during the first workshop.
The experts will be responsible for:
- Presenting details of comparative experience of monitoring the selection of judges of constitutional courts;
- Presenting comparative examples on the follow up of the work of constitutional courts including courts’ communication;
- Presenting detailed comparative examples of monitoring of other institutions as applicable to the process of developing the monitoring modalities for the Tunisian CC;
- Facilitating the participatory work of developing tailor-made observation and monitoring methodology, techniques, forms and workplans based on the specific context of Tunisia.
Deliverables for each workshop:
- Design and finalisation of curriculum and agenda;
- Workshop materials, handouts and presentations;
- Pre- and post-evaluation of the participants;
- Overall workshop coordination and facilitation;
- Delivery of sessions/exercises;
- Report for each of the workshops of approximately 4 pages in English or in French (agenda, curriculum, workshops materials used, evaluation of participants will be annexed to the report) delivered 7 days following completion of each of the workshops.
Deliverables for the seminar:
- Seminar materials, handouts and presentations;
- Delivery of sessions and presentations;
- Report of 1 page in English or in French (agenda, curriculum, workshops materials used, will be annexed to the report) delivered 7 days following completion of each of the workshops.
- The experts
The Contracted Institution will propose two or more experts who will present the minimum qualifications and competences:
- University degree in law, political science or related;
- Experience working on civil society monitoring of constitutional courts and/or other state institutions;
- Experience working with members of parliament, government and senior representatives of government institutions as well as with civil society;
- Teaching/training experience, experience in presenting during the conferences;
- Ability to provide written and oral concise analysis and to develop documents;
- Fluency in spoken and written Arabic or French or English.
The experts will support all the workshops and the seminar based on the following planned engagement:
- First workshop – 2 experts. For each of the experts maximum: 2 preparatory days, 4 workshop days, 1 reporting day;
- Second workshop – 1 expert, maximum: 2 preparatory days, 4 workshop days, 1 reporting day;
- Third workshop – 1 expert. maximum: 2 preparatory days, 4 workshop days, 1 reporting day;
- Seminar – 2 experts. For each of the experts maximum: 1 preparatory/reporting day, 1 seminar day.
The experts will be directly involved in designing, coordinating and facilitating the workshops and the seminar. The experts will work in close collaboration with DRI Tunisia’s dedicated team members. They will take responsibility for the learning process during the workshop including assessing baseline data and developing the curriculum and workshop materials. They will undertake quality assurance and conduct monitoring and evaluation exercises.
The actual allocation of the experts’ days may change based on the participatory planning with the Tunisian partners of the project.
- Duration of the assignment
The Contracted Institution will be contracted for the period from October 2016 till February 2017 with the total maximum number of days corresponding to the number of the experts days provided in the section “The experts”. The working days will include home-based work and mission days in Tunisia.
- Information and Instructions
Non-governmental organisations, legally registered in the country of origin, with extensive experience working on monitoring of constitutional courts, judiciary and other institutions are invited to submit bids.
The contract will be awarded to the bidder based on:
- The technical proposal including: the registration document of a bidding organisation, the organisation profile outlining the relevant experience and at least two projects carried out in the area of monitoring (max 2 pages); CVs of the relevant experts; proposed outline methodology for the first 4 day workshop (max. 2 pages);
- Financial proposal: For the proposed contract, DRI will pay the fees of experts only for the maximum number of days as per the section “The experts”. No other costs will be covered. DRI will separately cover the experts’ in-country costs during missions to Tunisia.
Submission of offers:
The offers, consisting of the CVs and methodology should be sent to Tunisia@democracy-reporting.org by end of the day on 2 October 2016.