ROLE DESCRIPTION & PERSON SPECIFICATION Job Title: Research and writer consultants: human rights accountability in the extractives sector in Kenya and Tanzania and the role of national human rights institutions (two positions, one for work in Kenya and one for Tanzania) Reporting to: Director Nairobi Process Start date: Immediately/as soon as possible in June 2015 Time period: Around 30 days during June- September Location: Kenya and Tanzania (one research consultant for each country) Fee: Competitive fee based on experience (paid in local currency) BACKGROUND The Institute for Human Rights and Business (IHRB) 1 is a global centre of excellence and expertise on the relationship between business and international human rights standards. We provide a trusted, impartial space for multi- stakeholder dialogue and independent analysis to deepen understanding of human rights challenges and issues and the appropriate role of business. IHRB works to raise corporate standards and strengthen public policy to ensure that the activities of companies do not contribute to human rights abuses, and in fact lead to positive outcomes. IHRB is a think and do tank, with a strong reputation both for its business and human rights research and policy work as well as its operational engagement in a number of countries. IHRB seeks to embed international business and human rights standards and promote responsible business practice in a wide range of countries and industry sectors, working with government, business and civil society. IHRB s approach is catalytic, impartial and collaborative. The Nairobi Process: A Pact for Responsible Business is a multi- stakeholder initiative launched by IHRB with the Kenya National Commission on Human Rights in April 2013. 2 It promotes responsible business practice, based on respect for international human rights standards during the exploration phase of Kenya s emerging oil and gas sector. The vision of the Nairobi Process is that natural resources bring widespread benefits for East Africa s people, with countries avoiding the resource curse and becoming a model for equitable, sustainable development through the application of responsible business standards and international human rights principles, as embodied inter alia in the UN Guiding Principles on Business and Human Rights. 1 http://www.ihrb.org
The Nairobi Process brings together the multinational oil and gas companies, majors and juniors (smaller exploration companies), which have been granted exploration licenses in Kenya, with government and civil society stakeholders to address key areas of human rights concern as this nascent sector develops over the coming years. The Nairobi Process has also been extending its scope to other extractive activities such as mining, as well as engaging with government, business and civil society actors in other countries in East Africa such as Tanzania. PURPOSE OF THE ASSIGNMENT AND ROLES AND RESPONSIBILITIES OF THE CONSULTANTS As part of the Nairobi Process, IHRB is recruiting two East Africa- based research and writer consultants to conduct research on the policy approaches and decision- making processes affecting, positively or negatively, the capacity and commitment of governments, business and civil society to uphold and promote compliance with human rights standards in the extractives sector in Kenya and Tanzania. The research will involve a desktop review of relevant literature on the issue; interviews with a balanced and representative range of informants from government, business and civil society; and some fieldwork to look at case studies on the implications for the human rights of communities. Each consultant hired (one working in Kenya, the other in Tanzania) will produce a country report. This will contain evidence- based findings and discuss how multi- stakeholder action in particular the potential contribution of the country s respective national human rights institution (NHRI) can best promote the policies and practices needed for stronger human rights accountability in the extractives sector. Further background and information on the intended aims of the research, specifically its contribution to building the awareness, knowledge and capacity of NHRIs to strengthen their work on human rights policy and practice in the extractives sector through engagement with other key actors, can be found in the overall concept note and terms of reference (TOR) for the exercise below. The TOR will be the subject of further discussion and clarification with the successful candidate for each country as he or she prepares an inception report setting out the detail of how the research needed for the country report will be organised and carried out. Specific tasks In summary, the consultant respectively hired to conduct the research in each country to write the country report will be expected to: Hold preparatory discussions with Nairobi- based and other IHRB staff linked to the Nairobi Process, as well as partner institutions as necessary/appropriate; Gather relevant resources and engage and communicate with a representative range of strategically relevant stakeholders in making preparations for the research; 2
Prepare an inception report for IHRB approval outlining plans for the research, including specific methodology, key issues likely to feature in the research and the report, likely interviews for stakeholder analysis, possible locations and case studies for field research etc; Undertake the research, including desktop review, informant interviews and field research case studies; Prepare an outline of the country report for IHRB review, feedback and approval, setting out the structure of the report and listing briefly the issues to be covered in each section, taking into proper account the needs and interests of the report s intended target audiences; Write a first draft of the country report for IHRB review and feedback Incorporate IHRB s feedback and produce a satisfactory final draft ready for editing and publication; and Maintain regular communication with IHRB and its NHRI partners at each stage. Please read the below concept note and TOR for the country research for further information about this work. NECESSARY KNOWLEDGE, SKILLS AND EXPERIENCE The successful consultant will have: Qualifications Essential University degree Desirable Degree or post- qualification in relevant subject such as political science Experience Minimum 10 years of progressively responsible research management experience (national or international level) Experience in business and human rights Excellent research and writing skills, including an ability to accessibly explore and convey complex and often highly contested policy process issues in an accurate, fair and nuanced way, taking into account and respecting the different perspectives and positions involved in debates. Experience working in multi- cultural setting Experience of working within the extractives sector or of research, policy and advocacy relating to the extractive industries Experience of publishing, media Experience of capacity- building 3
Knowledge and Skills Personal Qualities Strong knowledge of business and human rights issues in the extractives sector and the governance and accountability issues involved Understanding of multi- stakeholder processes and dialogue and of the professional culture and ways of working of government, business and civil society Ability to mobilize and work sensitively and constructively with various stakeholders with different views, interests and approaches, as well as varying degrees of authority Excellent communication skills. Fluency in written and spoken English and Kiswahili Excellent time management skills and the ability to plan, organise and prioritise workload and meet deadlines. Commitment to IHRB s impartial approach on business and human rights challenges Proven ability to be proactive, self- motivating and happy to work in an unsupervised environment on a daily basis Diplomacy, tact and good judgement Attention to detail and ability to maintain a high level of accuracy in preparing and presenting information Displays cultural, gender, religion, race, nationality and age sensitivity and adaptability The highest standards of integrity, and discretion Experience of using contact management tools or databases APPLICATION PROCESS 1. Deadline for application: Sunday 17 th May, 11.59pm, East Africa time 2. Interviews will be held during May in person or via Skype. Short- listed candidates will be notified and invited by email. 3. Expected start date: immediately/as soon as possible in June 2015 4
Please consult the below concept note and TOR for the country research before submitting your application. To apply, please email your CV (with the names and contact details of two referees) to Vanessa Bissessur at recruitment@ihrb.org along with a cover letter explaining your suitability for this post and why you should be considered, and indicating where you saw this vacancy advertised. Please also include a recent and relevant sample of your research and writing. 5
Enhancing the capacity of national human rights institutions to promote human rights accountability in the extractives sector in East Africa: concept note and TOR for country research 1. Introduction and summary The extractives sector in many economies often consists mainly of oil, gas and mining activities. This is a sector with great potential to enhance the economy. 3 Indeed, experience in some countries suggests that extraction can be effectively managed to contribute to sustainable economic growth. Experience in other parts of the world suggests that extractives if not well managed can be a curse leading to conflict and impaired economic performance. Allegations of official corruption and the lack of accountability for revenues received have also contributed to poor governance in some resource rich countries. Moreover, the extractives sector has been associated with human rights violations, environmental damage and pollution as well as loss of livelihoods leading to poor socio- economic outcomes for affected communities. Thus the need for sustained independent oversight on both business and governments to expose the problems, hold institutions accountable and develop standards to mitigate these challenges. The Institute for Human Rights and Business (IHRB) 4 believes that multi- stakeholder dialogue is crucial for effective policy and practice on business and human rights accountability issues in the extractives sector, and that independent National Human Rights Institutions (NHRIs), where they exist, are potentially an important part of the oversight mechanisms required. A National Human Rights Institution (NHRI) is a state body with a constitutional or legislative mandate to promote and protect human rights within the country through handling of complaints, conducting research, advocacy and educational programmes and making recommendations for law reform 5. In promoting human rights in the extractive sector, NHRIs rely on the various United Nations human rights mechanisms, the UN Guiding Principles on Business and Human Rights, regional human rights mechanism and relevant national policies and legislations. This concept note, as well as setting out the rationale and challenges for the greater involvement of NHRIs in addressing human rights issues in the extractives sector, provides terms of reference (TOR) for country research that IHRB is planning as part of its Nairobi Process initiative. 6 3 Institute of Economic Affairs, (2014), A Primer to the Emerging Extractive Sector in Kenya: Resource Bliss, Dilemma or Curse, Nairobi, Kenya, p.2 4 www.ihrb.org/about/mission.html 5 http://nhri.ohchr.org/en/pages/default.aspx 6 www.ihrb.org/our- work/nairobi- process.html 6
Culminating in the publication and launch of two country reports, the research will both gather findings on accountability problems and opportunities in Kenya and Tanzania and nurture the knowledge and capacity of NHRIs on human rights issues in the extractives sector, with insights and potential recommendations for how NHRIs can strengthen their monitoring role and overall practice, including through stronger interaction and dialogue with government, business and civil society players. The research involved will combine evidence- based rigour and impartiality with an action- oriented commitment to yielding results geared to promoting stronger policies and practices by all stakeholders, including NHRIs. 2. The extractives sector and challenges for NHRIs The extractive sector provides an opportunity to significantly contribute to poverty reduction and improve the wellbeing not only for the different countries such as Kenya and Tanzania but also for the entire East Africa region. This will only happen if there is good resource utilisation and management, equitable sharing, effective policy dialogue, appropriate legislation, strong oversight by institutions, and communities sharing in the benefits of the extractive sector. 7 It is also essential for the polices and practices of power- holders and all stakeholders to promote and uphold the human rights of people as the extractives sector is further developed. East Africa has long since been involved in the mining industry to varying degrees, but the exploration of oil and gas, for example, is a relatively new factor. This presents additional challenges to NHRIs, which are also often less familiar with human rights issues in the extractives sector. Moreover, despite the considerable attention devoted to the extractives in recent times, for example in relation to revenue transparency, major gaps still exist in policy and practice. The challenges facing stakeholders, including NHRIs, include the following: The countries often lack adequate laws and institutions governing the extractives sector and while on- going reviews of legislation are taking place, for example in Kenya, the sector is developing faster than the formulation of the necessary legal and institutional framework needed to regulate the sector. The current regulatory framework is weak on human rights issues and this creates loopholes whereby government agencies or investor companies may fail properly to observe human rights to the detriment of the public. Many communities lack the necessary information, knowledge and capacity to negotiate and have frequently been in a weaker and less- informed position to put forward and represent their claims before governments and investors, both of which have strong economic and commercial interests and greater power and influence in policy discussions and decisions. Governments and companies also face their own challenges (and opportunities) in adopting approaches to better engage and support communities and uphold their rights as extractive projects take place, as do civil society organisations. While signs exist that some policy- makers are keen to address the challenges, stakeholder opinion canvassed at IHRB events 8 has 7 Institute of Economic Affairs (2014), op.cit., p.3 8 IHRB s report of a Nairobi Process event on security and human rights in the extractives sector held in October 2014 provides insights into the different official, business and civil society perspectives on the challenges and opportunities 7
questioned the extent to which official action is sufficiently geared to creating an enabling environment for companies, local areas and communities to benefit. This alleged lack of public policy intervention would appear to have affected companies relations with communities and their social license to operate as they become the proxy for grievances with the state, for example in relation to insufficient public investment in local public services and livelihoods, with companies themselves often expected to make up for the shortfall. Tensions and conflicts arising from extractive projects have often caused major commercial losses. In the face of frequent criticism of poor business practices in relation to communities, a trend has emerged in which many companies have invested heavily in efforts to strengthen their community engagement, with greater commitment now being shown to corporate social responsibility projects transcending merely philanthropic CSR and to more participatory decision- making on extractive projects through approaches such as Free, Prior, Informed Consent (FPIC). However, a frequent business concern voiced at IHRB events is that companies are unsure of who has the power and authority to represent a community, begging questions about the legitimacy of discussions and the sustainability of decisions reached. This in turn has led to multi- stakeholder debate at IHRB events of whether and how civil society organisations and networks of various kinds represent the views and advocate the interests of communities effectively and could strengthen their own practice. As watchdog institutions, NHRIs need a broad understanding of the extractives sector and the roles and obligations of each of these stakeholders. Yet NHRIs lack personnel with adequate knowledge and expertise in the extractive industry 9. There is an urgent need to strengthen the institutional capacity of NHRIs, considering that other players in the extractives arena could look to them as potentially legitimate interlocutors on business and human rights 10. This includes their ability to monitor and deal with problems in policies and practices, as the extractives sector continues to be a major source of business and human rights related complaints 11. A recent example is the injury and fatalities case brought against Africa Barrick Gold (now Acacia Mining) and its North Mara Gold Mine Limited by Tanzanian villagers that was settled out of court 12. As the economic significance of the extractives grows, there is increased need for preparedness by NHRIs to handle human rights issues emanating from the sector. Some have suggested that cost- effective and impartial processes to monitor and address the impact of mining projects need to be considered and put in place. 13 for better approaches to the extractives sector, including through multi- stakeholder dialogue and action: http://www.ihrb.org/pdf/2015-02- 02- Sharing- Stories- Developing- a- Joint- Narrative.pdf 9 From the Report of the NANHRI Mapping Survey on Business and Human Rights NANHRI, 2013, p.13 10 The UN GPs make specific mention of the potential role of NHRIs and even the UN Human Rights Council has recognized this role, see 11 Morrison John, The Social License, Palgrave Macmillian, London, 2014, p.128 12 http://business- humanrights.org/en/tanzania- african- barrick- gold- makes- out- of- court- settlement- for- claims- by- locals- at- its- north- mara- mine- for- injuries- fatalities 13 Society of International Development, (2009), The Extractive Resource Industry in Tanzania: Status and Challenges of the Mining Sector, Nairobi, Kenya, p.73 8
3. Mandate of NHRIs and overall rationale for strengthening their role on the extractives NHRIs have the primary obligation to inculcate a culture of human rights by advising the government and other stakeholders on human rights issues and their obligations under national, regional as well as international law and standards. They act as watchdogs on the actions of state and non- state actors, promoting public awareness on their human rights obligations, highlighting shortcomings that impede the enjoyment of human rights and proposing remedial actions. Indeed, some NHRIs have quasi- judicial powers that enable them to receive, investigate and seek to resolve complaints of human rights violations and this means that they have the potential to play an important role in relation to grievance mechanisms and overall access to remedy in the extractives sector. Furthermore, their role in public education could also strengthen citizen demand for government accountability as well as create a stronger enabling environment for business awareness of their human rights responsibilities and for greater community and civil society involvement in decision- making regarding the exploitation of natural resources. The important role of NHRIs with regard to business and human rights was recognised by the UN Human Rights Council in its June 2011 resolution A/HRC/17/L.17/Rev.1, "...the important role of national human rights institutions established in accordance with the Paris Principles in relation to business and human rights, and encourages national human rights institutions to further develop their capacity to fulfil that role effectively, including with the support of the Office of the High Commissioner and in addressing all relevant actors...". Furthermore, the International Coordinating Committee of NHRIs long recognized the role of NHRIs on business and human rights. In 2009, it established a working group on Business and human rights, the first thematic group of the ICC to further the work of NHRIs on business and human rights to support the capacity of NHRIs to fulfil their mandate with regard to business and human rights. On their part, African NHRIs through their regional organization, the Network of Africa National Human Rights Institutions (NANHRI) affirmed their collective commitment to strengthen their capacity on business and human rights issues with focus on labour, environment and land 14. Additionally, the October 2013 NANHRI biennial conference in Ghana focused on business and human rights. While NANHRI member institutions have displayed a high level of engagement on business and human rights capacity, resources, training and education gaps remain a challenge to their effectiveness. 4. Aims and objectives of the research and building NHRI capacity on the extractives NHRIs seek to be an authoritative voice on issues of human rights within their countries of operation. To do so effectively, they need access to up- to- date, accurate and impartial information and analysis regarding human rights issues in their countries. Complaints can be a useful source of information, particularly in analysing trends, but they may not necessarily capture cases from all 14 Ibid (pg.15) 9
economic sectors, including the extractives as an increasingly important sector less known to NHRIs and in which they have been relatively less involved. NHRIs could build on their existing role on human rights in their countries through greater engagement on the human rights impacts of extractives sector, including through involvement in evidence- based research and action disseminating findings and proposing and promoting recommendations to stakeholders. As well helping to engage official policy- and decision- makers and extractive companies, the role of NHRIs in developing and strengthening such an evidence base could help to enhance the efforts of civil society and community groups to monitor activities in the extractives sector. This action- oriented research project, through its evidence- based findings on human rights accountability issues in the oil and gas and the mining sectors in Kenya and Tanzania, aims to strengthen the understanding of East African NHRIs of the extractives sector and how it intersects with human rights, building their knowledge of relevant international and regional frameworks and how they relate to national policy, law and regulation. The research in Kenya and Tanzania will complement findings already generated by a study conducted by an NHRI in Uganda. By working closely with the NHRIs at each stage, the research process in Kenya and Tanzania is also aimed at strengthening the range of stakeholders with which they have contact and interact on the extractives, with findings providing practical insights and leads on how best NHRIs can best contribute most effectively to the wider body of stakeholder action in relation to policies and practices on the extractives. In view of NHRIs mandate to recommend legal reforms, the research process will focus in particular on an analysis of the legal, policy and regulatory regime, producing findings on the extent to which there is compliance with human rights frameworks and standards as well as recommendations on addressing gaps and opportunities for the adoption of better policy and practice approaches. These could then form the potential basis of advocacy by NHRIs themselves and help inform the efforts of stakeholders from government, business and civil society. Finally, the research process and findings, as well as supporting a stronger role for NHRIs, can be used and promoted to contribute to the body of existing knowledge on the extractives sector that is available in the whole East Africa region. The overall aim of the research initiative therefore is: To promote improved understanding and capacity of East African NHRIs on how to provide effective oversight of business (the extractives sector) and human rights issues, including relevant national, regional and international frameworks, as part of wider multi- stakeholder engagement on this issue. 10
Its specific objectives are: To deepen NHRIs understanding of the extractives sector and its impact on human rights (including the role played by different stakeholders and their different perspectives and positions on addressing the accountability issues at stake); To produce findings that can be used to encourage stronger contact, dialogue and interaction between NHRIs and other stakeholders with an interest in the extractives sector, such as government agencies, investor companies, communities, civil society, the media, research bodies and academia; To produce findings on national compliance with human rights frameworks and standards and the gaps and opportunities for policy and practice approaches as the basis for plans for NHRI and wider stakeholder action to strengthen human rights accountability in the extractives sector; To provide insights that can help inform NHRIs capacity in work on the extractives to advance the interests of minority groups of concern to them such as women, children, persons with disabilities; To expose NHRIs to best practices on the challenges and opportunities for investigating, reporting and redressing cases of human rights abuses within the extractive sector, with a view to enhancing their capacity in this area. 5. Methodology As part of the Nairobi Process, IHRB is recruiting two East Africa- based research and writer consultants to conduct research on the policy approaches and decision- making processes affecting, positively or negatively, the capacity and commitment of governments, business and civil society to uphold and promote compliance with human rights standards in the extractives sector in Kenya and Tanzania. The research process will involve: A desktop scoping review of the policy approaches and decision- making processes affecting, positively or negatively, the capacity and commitment of governments (host and home), business and civil society to uphold and promote compliance with human rights standards protecting communities in the extractives sector in each of the countries; Exploring in greater depth the issues raised through interviews and informal discussions with a selected range of key informants from across government, business and civil society stakeholder groups, including relevant ministries, public oversight bodies, licensing and regulatory authorities, companies and business associations, embassies, NHRIs, NGO networks and civil society and faith- based groups, as well as community- based organizations; Selecting representative case studies to undertake targeted field research in communities where oil and gas exploration and mining is taking place, with a view to highlighting the overall challenges and opportunities for government, business and civil society stakeholders as well as NHRIs to ensure greater human rights accountability protecting the rights of communities in the extractives sector. 11
As shown by the aim and objectives above, one of the key functions of the research will be to act as a catalyst for multi- stakeholder action, in particular the potential contribution of NHRIs. This means that the research, while producing informative evidence- based findings, should not be of an academic nature but oriented to helping guide follow- up action by NHRIs alongside key stakeholders in response to the key business and human rights issues in the extractives sector. Indeed, the results of the research will used to inform the organisation of a series of multi- stakeholder dialogue events involving NHRIs later in 2015 aimed at developing individual and joint work plans (to be implemented with IHRB support and advice) to address business and human rights accountability issues affecting communities in the extractives sector. 6. Outputs The expected outputs of the initiative are: An inception report setting out plans for each country research exercise; Two country reports (one for Kenya, the other for Tanzania) on the human rights accountability challenges and opportunities in the extractives sector in each country. The country report in each case will include among others: o An overview of the priority human rights and human rights accountability issues in the extractives sector in the country; o An overall assessment, in East African context, of the state of compliance with international, regional and national human rights standards in the extractives sector by governments and companies in the country; o An analysis of the current legal, policy and regulatory frameworks and institutional structures and the extent to which they provide a solid foundation for protection against human rights abuses in the extractives sector, paying attention to issues of policy coherence, coordination and enforcement as well as stakeholder representation, participation and influence in decision- making; o An analysis of the strengths and weaknesses of multi- stakeholder dialogue and interaction affecting the quality and effectiveness of policy and practice in upholding the rights of communities; o An analysis of the gaps and opportunities for NHRIs to provide effective oversight of human rights standards in the extractive sector, including through engagement with other stakeholders, drawing out practical insights and leads for recommendations on how NHRI approaches and practices and stakeholder collaboration can be strengthened; o Representative case studies illustrating where possible examples of good policy and practice; o Analysis of the mandate and efficacy of NHRIs in promoting effective judicial and non- judicial remedies for business- related human rights abuses and how their efforts to handle complaints from the extractives sector can be improved. 12
7. Specific responsibilities and tasks of consultants Each consultant hired (one working in Kenya, the other in Tanzania) will produce a country report. This will contain evidence- based findings and discuss how multi- stakeholder action in particular the potential contribution of the country s respective NHRI can best promote the policies and practices needed for stronger human rights accountability in the extractives sector. The consultant respectively hired to conduct the research in each country and write the country report will be expected to: Hold preparatory discussions with Nairobi- based and other IHRB staff linked to the Nairobi Process, as well as partner institutions as necessary/appropriate; Gather relevant resources and engage and communicate with a representative range of strategically relevant stakeholders in making preparations for the research; Prepare an inception report for IHRB approval outlining plans for the research, including specific methodology, key issues likely to feature in the research and the report, likely interviews for stakeholder analysis, possible locations and case studies for field research etc; Undertake the research, including desktop review, informant interviews and field research case studies; Prepare an outline of the country report for IHRB review, feedback and approval, setting out the structure of the report and listing briefly the issues to be covered in each section, taking into proper account the needs and interests of the report s intended target audiences; Write a first draft of the country report for IHRB review and feedback Incorporate IHRB s feedback and produce a satisfactory final draft ready for editing and publication; and Maintain regular communication with IHRB and its NHRI partners at each stage. For further information on the research, please contact Programme Manager (East Africa) Rose Kimotho, rose.kimotho@ihrb.org 13