TERMS OF REFERENCE
|Research into the application and effect of customary law principles and structures as they relate to land allocation, access to land and the resolution of land disputes|
|Information, Counselling and Legal Assistance (ICLA)|
|07 November 2011|
A. Project Background
NRC’s Programmes in South Sudan
NRC programmes are designed to provide protection and durable solutions for IDPs, refugees and returnees in South Sudan, thereby contributing to the improvement of their living conditions and the development of viable and sustainable solutions. The ICLA programme is closely involved in ensuring effective reintegration into the economy and society of South Sudan, and monitoring and advocating on protection issues related to this. Access to land is an essential factor in obtaining sustainable durable solutions, and so the programme focuses in particular on South Sudan’s law and practice in relation to land, both in the statutory/formal system and the customary system.
Components of NRC’s ICLA programme in South Sudan
The ICLA programme has three main components: staff provide information and counselling on key problems, assistance with land and property cases, and training to communities on protection issues and on land law and the legal structure of South Sudan. Land and property cases are handled through advice and informal advocacy, rather than formal legal representation, since NRC staff are not legally qualified and the formal systems are still barely functional in South Sudan. Customary law and practice are therefore a key focus for the programme’s work, since much land and many disputes are handled by such systems, but relatively little is known about how the systems function or the protection implications of these procedures and practices in particular for women who have specific challenges in accessing land in South Sudan. For this reason, and in view of the somewhat limited literature and publicly available research on the subject, the programme wishes to commission some additional research on the application and effect of customary law principles and structures on vulnerable groups as they relate to land allocation, access to land and the resolution of land disputes.
B. Purpose and intended use of this research
The purpose of this consultancy assignment is to enhance the general understanding of customary law and practice as it relates to land in South Sudan; identify the protection implications of customary practices for vulnerable groups in particular women; and to identify possible entry points for NRC’s work.
The analytical report produced under this consultancy assignment will be used to:
1) Add detail to the trainings carried out by NRC staff;
2) Improve and widen the scope of the work of the ICLA land and property team;
3) Increase the level of public knowledge in relation to customary law and land through dissemination of the report to relevant stakeholders.
C. Scope of work and methods
The methodology should include:
- Literature review: The consultant should review existing research concerning post conflict land disputes, alternative dispute resolution techniques and informal dispute resolution structures in South Sudan, along with existing literature on land related issues in South Sudan. The consultant should also draw on relevant general scholarship on African customary law and land, especially in post-conflict settings, as appropriate.
- Observation and discussion of customary law activities related to land: The consultant should observe land allocation and dispute resolution activities in the field (travelling to Northern Bahr el Ghazal and Warrap states, as well visiting sites in Central Equatoria) and discuss the general procedures and practices with customary leaders, local government officials, participants and other relevant stakeholders.
- Interviews of ICLA staff and clients: The consultant shall interview ICLA staff and clients to assess their understanding, practices and views with regard to customary land allocation and dispute resolution.
D. Specific issues to be covered
The following questions should guide the consultant’s investigation and analysis, with a strong focus on the gender dimensions of each issue:
- How widespread is the use of customary law and practice in the allocation of land and the resolution of disputes relating to land? How does law and practice vary with location? Is it static or subject to change and what are the factors affecting such change?
- How widely understood are the key principles or procedures of customary law, by participants or those administering the processes? To what extent are such principles and procedures contingent upon other factors such as relative considerations of power or authority or relationships between the parties?
- How can stakeholders (disputants, informal authorities, statutory authorities) positively or negatively affect the outcome of allocation or dispute resolution processes?
- How have the major series of returns since the CPA in 2005, along with ongoing internal displacement due to conflict, affected customary law and practice in relation to land?
- What specific protection implications do customary practices related to land have on women compared to men? How can NRC capture how customary justice systems affect women’s access to land within the ICLA programme and where possible in other NRC programmes (with reference to access, equal participation and long-term sustainable benefits).
- What effects do current customary law and practice have on tenure security? Are there any potential harmful effects on individuals, particular groups or communities, for example in terms of the formalization/lack of formalization of title resulting from the process and the effects of the changing land situation on community systems for land management?
- How do or could NRC (and other agencies) engage with customary structures?
E. Consultant profile
NRC seeks an international consultant with experience of post-conflict HLP issues, alternative dispute resolution techniques and informal (i.e. customary) remedies and a good background in protection analysis. Previous experience working with NRC ICLA programmes is preferred.
F. Steering committee
A process analysis and documentation steering committee shall be established to support the consultant:
- Gregory Norton, Programme Manager, NRC South Sudan
- Jamila El Abdellaoui, Project Coordinator, NRC South Sudan
- Laura Cunial, ICLA Adviser, NRC Oslo
- Kirstie Farmer, HLP Advocacy Coordinator, NRC Oslo
G. Timeframe and budget considerations
This research exercise is schedule to take place over four weeks, beginning 7 November 2011. The research and preparation of the report should be completed in-country, but amendments to and the finalisation of the report can be dealt with over email. The overall fee for the consultancy shall be payable at the conclusion of the contract, and NRC will meet or reimburse the reasonable costs of travel to and within South Sudan and of accommodation within South Sudan, which will generally be at NRC’s own residential facilities. The consultant is responsible for providing their own insurance.
A draft report should be submitted no later than 5 December 2011. The steering committee will review the report and provide comments to the consultant by 12 December 2011. The completion date for the final report will be 17 December 2011 with the consultant having addressed NRC’s comments as appropriate.
The size of the report should be approximately 20 pages using Arial 11 point. The report should consist of:
- Summary of the post-conflict HLP situation in South Sudan, including key protection concerns related to land
- Review of available literature on customary law and practice in South Sudan
- Discussion of the sources of customary law and practice in relation to land, the extent of its operation and the degree to which clear and/or widely binding principles can be ascertained
- The protection implications of the operation of customary law and practice in relation to land, especially in terms of the ability of vulnerable groups to access land and obtain durable solutions.
- Examination of NRC’s current engagement with customary systems and recommendations for future work.