Consultant – Legislative Gaps Analysis For Counter Human Trafficking

TERMS OF REFERENCE FOR LEGISLATIVE REVIEW AND GAP ANALYSIS TO COUNTER TRAFFICKING IN PERSONS

USAID Hamro Samman Project

Legislative review of laws and policies as it relates to counter trafficking-in-persons in Nepal under the new federal structure

I. BACKGROUND

Nepal is a source, transit, and destination country for sex, labor, and organ trafficking. A 2014 report estimates that 230,000 Nepalis are subject to slavery at any given time, and nearly 30 percent of the economically-active population is unemployed or underemployed.1 The Government of Nepal (GON) has demonstrated commitment to combating trafficking in persons (TIP) through the formation of Committees to Counter Human Trafficking (CCHTs); adoption of the Human Trafficking and Transportation Control Act (HTTCA), Foreign Employment Act (FEA), and Bonded Labor Act; and ratification of the ILO Forced Labor Convention No. 29, Abolition of Forced Labor Convention No. 105, and Worst Forms of Child Labor Convention No. 182. In 2015, the National Human Rights Commission recommended ratification of the Palermo Protocol to the 2000 Convention against Transnational Organized Crime but, to date, the Government of Nepal has not yet ratified the Protocol.

Though the Government of Nepal (GON) has made strides to address TIP in Nepal, gaps and loopholes in legislation, and the recent shift to a federal system have weakened their ability to respond to TIP. The recent elections , combined with the passing of the Local Government Act,2017, has resulted in the need for new mandates, communication lines, and roles to be defined between the various levels of government. Laws, including the existing TIP framework must also be amended to harmonize with the new legislative roles, in addition to international standards. The government at the national, provincial, and municipal levels will require support to ensure that counter trafficking-in-persons (CTIP) is prioritized and does not fall through the cracks during the reorganization of authority and responsibility.

USAID’s Hamro Samman is a five-year program generously supported by the American people and implemented by Winrock International. It seeks to build the capacity of and facilitate coordination among the GON, civil society, and private sector to combat TIP in Nepal. Hamro Samman seeks a consultant to conduct a legislative review and gap analysis to identify misaligned or inadequate policies related to counter-trafficking in persons. The review will inform advocacy efforts and identify existing laws and policies that support trafficking victims and at-risk populations to access legal support and compensation.

** The review and analysis will cover all national and international laws, regulations, rules, policies and Court judgments that impact counter-trafficking in person ins Nepal including laws related to foreign migration both documented and undocumented, the regulation of recruitment agencies and regulation of the adult entertainment sector. The analysis will consider the impact of the new

1 Modern Slavery in Nepal: Understanding the problem and existing responses. Accessed here.

federal structure on CTIP initiatives, as well as the impact of the new Criminal (Code) Act, 2017 and the Criminal Procedure (Code) Act, 2017.

PART A – HARMONIZATION AND POLICY GAPS (approximately 25 - 30 pages excluding annexes)

1. Provide a comprehensive list all international and national laws, regulations, rules and policies (the Legal Framework) that impact TIP in Nepal. Identify the applicable provision and the authority and level of government responsible for its implementation.

2. Analyze the impact of federalism on CTIP. Identify changes necessary to the Legal Framework to accommodate new responsibilities set out in the Constitution, Local Governance Act, 2017, and any other relevant laws. The analysis should identify the roles of responsibilities of different levels of government and administration (ward, municipal, district, provincial, federal) related to TIP and foreign migration.

3. Recommend changes required to the Legal Framework to harmonize with federal structure. Indicate which policies and regulations will need to be adapted and by which level of government. Particular focus should be placed on:

1. the Human Trafficking Transportation Control Act 2007 and accompanying rules, regulations and policies;
2. the Foreign Employment Act, 2007 and accompanying rules and regulations. This should include a discussion of the existing regulation of recruitment agencies.

4. Recommend a subnational governance framework or system that can be used to improve the implementation of CTIP policies.

5. Analyze the Legal Framework and identify gaps, loopholes, and inconsistencies. Incorporate a gender, equality and social inclusion (GESI) and a victim-centered analysis. The Legal Framework analysis should consider:

1. identification (including definitions of trafficking, legal obligations to report TIP, individual and corporate responsibility, etc.);
2. investigation (roles and responsibilities under different legislation);
3. coordination and referral mechanisms;
4. delivery of services to victims and at-risk population;
5. victim’s rights including to protection, legal representation in court and tribunal proceedings, legal aid, compensation in both the civil and criminal process, access to services, repatriation between provinces and between countries, etc.
6. prosecution (provisions related to TIP, foreign and domestic labor exploitation, etc);
7. penalties;
8. any other relevant factors

6. Develop a set of recommendations to harmonize the Legal Framework and address gaps, that satisfy the following minimum requirements:

1. incorporate international minimum standards and consistent with the Palermo Protocol definition of trafficking;
2. harmonize with other Nepal laws;
3. incorporate a GESI perspective and victim-centered approach;

PART B – LEGAL AID FRAMEWORK (approximately 2 pages)

7. Provide an overview of the legal aid framework in Nepal including identifying potential sources of government and non-government legal aid support for trafficking victims, and/or migrants who have been exploited in the foreign migration process.

PART C – REMEDIES AND SOURCES OF COMPENSATION (approximately 2-4 pages)

8. Provide an overview of all remedies (including compensation and sources of compensation) available to victims of trafficking and labor exploitation including those who have been trafficked or exploited in the foreign labor migration process (both documented and undocumented).

PART D – SUPREME COURT JUDGMENTS (approximately 4 – 6 pages)

9. Provide an overview of key Supreme Court judgments or ongoing cases impacting investigation, prosecution, sentencing and victim compensation in trafficking cases, including cases involving trafficking, exploitation in the foreign labor migration process (both documented and undocumented) and the entertainment industry. Identify any cases specifically impacting the regulation of recruitment agencies.

10. Identify new potential issues for strategic litigation.

II. ACTIVITIES

Desk review

Conduct consultations with relevant stakeholders including GON officials and civil society representatives where needed

Compile a report that satisfies Part A, Part B, Part C and Part D above.

III. EXPECTED OUTPUTS

1. An initial outline of the report submitted and approved
2. An interim report submitted for comments and feedback
3. A final report integrating the comments and feedback from relevant stakeholders
4. A ½ day debriefing presentation to Hamro Samman, donors and other stakeholders on the key findings in the report.

IV. POINT OF CONTACTS

The consultant will report to the Hamro Samman Chief of Party.

V. CONSULTANCY TIMELINES

All activities outlined under this legislative gap analysis are to be completed within two months from the date of award of the contract. Deliverable dates will be negotiated with the successful candidate.

VI. ORGANIZATION OF WORK

The consultant will work collaboratively with the project team and other relevant officials. In addition to e-mail and phone, the consultant should be available for face to face meetings and regular contact.

VII. QUALIFICATIONS

• University degree in law or human rights with at least 5 years of practice. Advanced university degree preferred.
• Experience completing legislative reviews, drafting legislation and writing analytical reports
• Familiarity with laws of Nepal
• Knowledge of human trafficking, and/or foreign migration
• Fluency in English required. Many policies and laws are available only in Nepali.

Core Competencies

• Professionalism: Strong knowledge of the relevant technical areas;
• Planning & Organizing: Ability to plan work and manage conflicting priorities;
• Communication: Good spoken and written communication skills, including the ability to liaise with technical staff and present information in a clear and concise style. Fluency in written in English;
• Teamwork: Good interpersonal skills and ability to establish and maintain effective partnerships and working relations in a multi-cultural, multi-ethnic environment with sensitivity and respect for diversity.
• Analytical skills: Ability to analyze information and solve problems

VIII. APPLICATION DOCUMENTS TO BE SUBMITTED

• Cover letter detailing how your skills and experiences match the assignment
• CV, including contact information for three (3) references from supervisors of similar assignments
• 1 writing sample of work written by you
• Outlined work plan including a description of how the team will work, if a team is proposed
• Budget including all costs to complete.

IX. SUBMISSION OF APPLICATION PACKAGE

Eligible persons or teams are invited to submit an application by email, referencing the legislative review and gap analysis in the subject line to:

hamro.samman@winrock.org

The deadline for submission is May 19, 2018.