TERMS OF REFERENCE FOR A WWF FEASIBILITY STUDY FOR A BMZ-BENGO PROJECT PROPOSAL

 Applicable law: Public Procurement Law of Germany and BMZ’s Contract Award Procedure for Supplies and Services  

Contracting agency: WWF Germany, Reinhardtstraße 18, 10117 Berlin, Germany

Type of contracting agency: Non-profit, non-governmental, charity organisation

Title: Procurement of Services: WWF Feasibility Study for a BMZ-BENGO Program Proposal on Human rights due diligence in the Congo Basin (namely Democratic Republic of Congo, Republic of Cameroon, Central African Republic)

Type of Contract: Services

 1 Lot: One overall report comprising a dedicated chapter for a) the regional level and b) each of the three countries and sites 

Award criteria: Price is not the only award criterion and all criteria are stated in the procurement documents

Duration of the contract: Estimated Start of the contract: start asap, end the latest by 31 March 2020; maximum duration of assignment is 20 days 

The contract is subject to renewal: no

Information about funds: The procurement is related to a project and/or program financed by the German Government, BMZ (grant) and Project Partners (own funds)

Additional information: Right of the granting governmental organization for audit according to the project approval

Type of procedure: < 15.000 EUR contract, 

Time limit for sending the proposals:  10 days after the launch of the ToR Time limit for sending questions to this tender is: 2 days before the deadline

Opening of the tenders: 1 day after the deadline for sending, at WWF Berlin Office

Language in which tenders are requested: English   

Address where the tenders shall be sent, duly signed (scan send via email is sufficient), within the time limit: 

1) INTRODUCTION

Being the second largest tropical forest on earth, the Congo Basin is a biodiversity hotspot and home to a great variety of rare and often endemic species that together build an ecosystem that also forms the second largest carbon sink on the planet. In today’s climate crisis this eco-system is inseparable from the wellbeing of humans around the world and makes its protection a major concern. 

To succeed with conservation efforts the buy-in by the local population is tantamount and an improvement of their livelihoods a meaningful way to guarantee their support. Unfortunately, local livelihoods in the target areas are generally weak and the lack of tenure rights often results in a so called “sell-out” of local forests to private and public entities with dramatic consequences for Indigenous Peoples and Local Communities (IPLC)[1] that usually do not benefit. Especially

Indigenous Peoples (IP) who often live in the most remote corners of the Congo Basin, where many protected areas are located, suffer from discrimination and a lack of basic support by governmental structures (e.g. hospitals, schools).

Conservation actors, such as protected area managers, are often the only longterm partners in those rural areas. Thus, IPLC expect conservation actors to support their needs and livelihoods as well. Despite rural development efforts by park managements, the acceptance of protected areas (PA) by the IPLC is often low due to limited direct benefits from PAs and their buffer zones (e.g. hunting or forest concessions) paired with access restrictions. Further, the feeling prevails amongst IPLC that they are not adequately included in conservation decisions. Combined with a widespread lack of knowledge about environmental and forestry laws as well as natural resource use regulations (both on IPLC and conservation authority side), this often causes land use conflicts between stakeholders. In a context of weak adherence to international human rights standards this can lead to violations of rights and a discrimination of marginalized groups. Particularly vulnerable are IP and women, that are often victims of discrimination or even abuse and seldomly benefit from legal assistance. Thus, IPLC need support in building knowledge and means to claim their rights and advocate against discrimination.

Despites an effort to streamline laws related to forest uses in the Central African countries (e.g. under COMIFAC), policies on indigenous peoples and local communities’ rights and their level of implementation in the three target countries in the Congo Basin are very different:

The Central African Republic (CAR) is the first and only African country that has ratified the International Labor Organization (ILO) Convention 169 on Indigenous Rights of 1989. This convention recognizes the unique characteristics and life plans of IP and promotes their special rights. At the heart of ILO Convention 169 are consultation and participation procedures to ensure the participation and input of IP in projects that affect them. However, as with many  ratifications, the regulations for implementation and follow up mechanisms are lacking. The CAR forest code recognizes some indigenous people rights and introduces community forests as a mean to enable the local population to manage forest resources. The environment code introduces the consultation of local population to enable its participation in local decision-making processes.

Cameroon has adopted the UN Declaration on Human Rights in 2007 but has not yet ratified ILO Convention 169. Cameroonian forestry law recognizes only the right of use of communities in the forests of the permanent domain while the state retains ownership of the land and resources. However, community managed forest (some of them by Baka) as well as community managed hunting concessions have been attributed. In addition, an MoU granting access of indigenous Baka to protected areas in south-east Cameroon - e.g. in Lobéké National Park - has been signed by the relevant ministries in 2019.  

In the Democratic Republic of Congo (DRC) there is no legal definition of the term “indigenous” and thus there are no laws or policies specifically targeting the promotion and protection of IPs’ rights. However, under the DRC’s 2014 Forest Code, IPLC have the right to own community forests covering an area of up to 50.000 hectares. Since the law is rather new, the first community concessions were only accredited recently and the realization of the legal framework on provincial level is still at the very beginning. Hence, IPLCs need support to claim their rights.  

WWF Germany proposes a program that aims to strengthen the rights of IPLC (general human rights and indigenous rights in particular) which reside in and around three protected areas in the Congo Basin. WWF aims to promote the recognition of these rights at local, national and regional level by advocacy work, local access to grievance mechanisms and by enhancing the capacity of civil society organizations that will continue their work on IPLC rights beyond the scope of this program.  

The following program outline is foreseen to contribute to the objective stated above:

Theory of change

The program shall promote IPLC rights on micro (local), meso (national), and macro (regional) level through three work streams. The work streams and the respective activities thereunder shall be interlinked and inform and enhance each other. For example, we see the following connections between levels and work streams:

Firstly, strengthened capacities of civil society organizations enable the implementation of grievance mechanisms on the local level and advocacy work on national and regional level.

Secondly, a monitoring of complaints via grievance mechanisms allows to draw conclusion about IPLC rights at local level with regards to types of violations of rights, degree of severity or frequency. This information will be crucial to develop policy asks in line with the needs on the local level. On the local level (apart from DSPA) a systematic monitoring of complaints is lacking and thus the exact reasons for conflict, types of violations and needs remain unknown. 

Thirdly, policy and advocacy work on the regional level raises awareness about IPLC rights and triggers debates on shortcomings and needs on the regional level. Eventually this leads to a better understanding of IPLC rights amongst civil society actors and political decision makers which in the long-term will contribute to legislative procedures better reflecting realities and needs on the ground.

The three work streams are described in the following.

Work Stream 1:

Existing networks advocating IPLC rights such as the Network of Indigenous and Local Communities for the Sustainable Management of Forest Ecosystems in Central Africa (REPALEAC) (https://pfbc-cbfp.org/REPALEAC.html) will strengthen IPLC rights at regional and national level through measures like the promotion of ILO169, the popularization of free prior informed consent (FPIC), and coordination with UNDRIP. Further, the Indigenous Peoples of Africa Coordinating Committee (IPACC) will build capacity with the partner organizations on the ground and carry out advocacy work in international fora such as UNESCO, United Nations Permanent Forum on Indigenous Issues (UNPFII), Convention on Biological Diversity (CBD), Congo Basin Forest Partnership (CBFP) and Global Landscape Forum (GLF).

Work Stream 2

Local rights will be promoted through the implementation of grievance/conflict resolution mechanisms and legal assistance in two UNESCO world heritage sites in the Congo Basin: Salonga National Park (SNP, DRC) and the Sangha Trinational[2] (more precisely in Lobéké National Park (LNP, CAM) and DzangaSangha Protected Areas (DSPA, CAR)). This work shall be closely linked with work stream 1 as findings from complaints on site will shape the policy work on national and regional level. For example, findings on the local level could reveal that women rights must be promoted on policy level that advocacy efforts should thus evolve around this particular issue. Therefore, the program aims to create an exchange between the civil society organisation implementing the grievance mechanisms and the regional actors such as REPALEAC and IPACC to ensure that both work streams go hand in hand.

The grievance mechanisms in and around the three Protected Areas (PAs) shall be implemented/supported by local Civil Society Organization (CSOs) and/or Community Based Organizations (CBOs): Maison de l'Enfant et de la Femme Pygmées (MEFP) for DSPA, Centre pour l’Education, la Formation et l’Appui aux Initiatives de Développement (CEFAID) and Association Sanguia Buma’a Kpode (ASBABUK) for Lobéké NP and “tbc” Salonga NP[3].

 The grievance mechanisms do not only serve to collect and file complaints and to launch resolution procedures, but also carry out the following activities:

• Sensitization of the local population including public (local and provincial) authorities and park administration, e.g. through local community radios or workshops
• Creation of a network of local contact/trusted persons in the villages and social workers to gather complaints
• Access to traditional conflict resolution mechanisms and legal assistance
• Trainings for nature conservation and law enforcement personnel

Being part of UNESCO world heritage sites, the three PAs are obliged to promote UNESCO policies inspired by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). 

 Work Stream 3

Organizational Development shall support the local/national CSOs and/or CBOs in strengthening their organizational capacity and enable them to firstly manage the grievance mechanisms in the three PAs and secondly to enhance their skills to translate findings from the local level in advocacy work for both national and regional forums. In broader terms, any organizational development and capacity building measures to CSOs shall enhance their capacities to work on human rights issues even beyond the scope of this program.

Being committed to a human rights-based approach to nature conservation worldwide and having common goals with the BMZ, WWF Germany is negotiation a funding opportunity with the BMZ with the following key data:

Target groups: Indigenous and local populations in and around the protected areas of Salonga (DRC), Dzanga Sangha (CAR) and Lobéké (CM), park administrations, local and provincial authorities, national governments, Civil

Society Organizations, Community Based Organizations, judicial institutions

2) PURPOSE, SCOPE AND METHODOLOGY OF STUDY

Rationale / Purpose

This program shall be designed to link local issues with policy processes on the national and regional (i.e. Congo Basin) level. For this reason, a multi-level approach across the three work streams will be key to achieve the program goals. Further, only through an exchange between actors working on micro, meso and macro level and the identification of synergies between them will create the intended impact. The purpose of this feasibility study is to provide a sound basis for the development of the program concept by identifying prerequisites, opportunities and risks. In this regard, the general program context, the political framework and key stakeholders shall be assessed (see chapters 3 and 4). The information obtained shall serve as baseline to develop SMART (Specific, Measureable, Achievable, Relevant and Time-Bound) indicators for the impact matrix and give an overview of the current situation of human and IP rights, grievance mechanisms and related CSO capacities in the target areas.  The program shall further be evaluated against the OECD DAC criteria (see chapter 5).

Finally, recommendations shall be given on the structure, set-up and content of the program concept and the planned activities.

 The study is also expected to assess and comment the (draft) impact matrix (see an extract in Annex D).

 Scope

The program enhances the Human Rights situation of IPLC in three target areas in the Congo Basin through advocacy work, access to legal support, sensitisation, and capacity building of civil society. It covers three countries, the Democratic Republic of Congo (DRC), the Republic of Cameroon (CAM), the Central African Republic (CAR).

Human rights centres and complaint mechanisms already exist around DSPA and LNP but need improvement e.g. with regards to gender-sensitivity or social safeguards. However, there is neither a grievance mechanism nor a human rights centre or a strong CSO present around SNP. Therefore, the focus of this program will be on Salonga National Park in the DRC, where the needs are the most urgent. This focus may also be reflected in the feasibility study in terms of level of details.

 Methodology

The feasibility study is to be designed and conducted as a desk study combined with remote interviews (via Skype/Email/ Telephone etc.). The contract will include the preparation and write-up of an overall report that covers country and site-specific information in dedicated chapters. The consultant is expected to use the following approaches in an adequate and useful mix: 

1. Desk review of the program concept, and related WWF and BMZ documents
2. Desk review of Human and indigenous rights situation, legislations and their implementation in each of the three countries/sites
3. Interviews with WWF Germany focal points as well as with WWF CAR,cCameroon and DRC
4. Interviews with IPACC and REPALEAC partners as well as with civil society and community-based organizations: CODHOD (tbc), the Carter Center (tbc), JUREC (tbc), CEFAID, RACOPY, MEFP focal points and others as relevant (e.g. catholic church)
5. Interviews with at least one representative of the National governments or park administrations (at least one per country/sit
6. Interviews with representatives of indigenous and local groups or those working to support their livelihoods around the protected areas: OXFAM and I.S.C.O (Salonga), Ndima Kali (Dzanga Sangha, CAR), ASBABUK (Lobéké, CAM)
7. Interview with complaint mechanism expert or grievance mechanisms managers from other protected areas (tbd)
8. Interview with judicial authorities around protected areas regarding law enforcement

 With respect to a) the following documents should be consulted:

• Current program concept and draft impact matrix
• BMZ documents relevant for the program: Global Programme handout and guidance on Impact matrix, BMZ Human Rights Strategy and related BMZ and WWF Social Policies and the Environmental and Social Safeguards Framework (ESSF) and related documents, e.g. ESS Screening Tools
• Documents on similar projects/programs and other relevant information of the partners
• Project documents, audits, reports of similar projects (within and – if available – outside the WWF Network)
• WWF policies on human rights and indigenous peoples 

With respect to b) the following documents should be consulted:

• Background information relevant for the region and the site, including national legislation in the three countries related to forest, wildlife and indigenous people/local communities 
  Official documents, especially regarding the national legal framework (including ILO169) and policies on human rights, indigenous rights and land use rights of the three countries and regionally such as Regional Human Rights Mechanisms and Arrangements as well as World Bank standards on human rights / OECD principles on human rights
• Universal Declaration on Human Rights, UN Declaration on the Rights of Indigenous Peoples, UN Guiding Principles on Business and Human Rights, International Social and Environmental Safeguards and Standards including FPIC and Human Rights Based Approach
• Participatory forest management guidelines and policies on local community user rights for each of the three countries

Most relevant preparatory documents will be provided by WWF Germany. 

With respect to the points c) to h) WWF Germany will compile a list of staff members, partners and stakeholders to be consulted on the regional and the three national levels (a maximum of 20 remote interviews to be held):

3) CONTEXT AND PROBLEM ANALYSIS

Current Situation / socio-economic, political & cultural context

The assignment shall analyse the current situation and problems with regards to IPLC rights in the target areas. The analysis will serve as basis for the program planning and therefore create baseline data where possible. In a second step the overall feasibility to implement the program shall be assed including upscaling potentials.
The two terminating BMZ-funded projects in Dzangha-Sangha focus on education, health and one health/zoonosis and thus only have limited intersections with the global program that shall be assessed within this feasibility study. However, the planned human rights program builds on the BMZ-funded Fit project (implemented between 2015-2018) which enabled the establishment of the existing human rights centre in Bayanga (DSPA).

The assignment is further expected to give specific information on the following issues/questions:

Work Stream 1 – National and regional advocacy work The study is expected to provide:

• An overview on the current state and the legal framework of human and indigenous rights in the three countries; a variety of studies and documents already exists and will be provided by WWF Germany, however, a concise overview and up-to date compilation of existing information is still missing.
• Possible areas of intervention, windows of opportunity, and limits for advocacy work in view of the program’s objective to strengthen the IPLC rights at regional and national level through measures like the promotion of ILO169, free prior informed consent (FPIC), UNDRIP, etc.
• In what way and format can experience from the three specific sites inform advocacy work on the national and regional level?
• What tangible results could be achieved within the scope of the program and linked to the work on the local level (work stream 2)? How can work stream 1 best be linked to work stream 2?
• Which risks for the program and its implementing actors may arise from linking work stream 1 and 2 (e.g. shrinking spaces, protection of victims) -         Specifically for DRC:
  • What are key relevant actions that are not related to governmental procedures where IPLC could exercise their rights with regards to equitably benefit from sustainable natural resources management
  • What does the lack of a legal definition of “indigenous” and the subsequent lack of specific recognition and rights of IPs mean for this work?
  • What challenges and opportunities may arise from the decentralised governance system in the DRC?
• Specifically for CAM/Lobéké o How does the existing and new forest law consider land usage rights?
  • How can the MoU that guarantees access to natural resources for IP within LNP help to safeguard IPs usage of natural resources? o Which pathways do exist to promote ILO169 in Cameroun?
• Specifically for CAR/DSPA o How can the successfully implemented human rights center in DSPA inform at the national level?
  • What national support is needed to improve the situation of the target group? For example with regards to more awareness of IPLC rights among judges and other representatives of public authorities? 

 Work Stream 2 – Grievance mechanisms

•  What are international best practices and which gaps in the current setups need to be addressed to align the three grievance mechanisms to these best practices?
• How can learnings from the human rights centre in PA Dzanga-Sangha be capitalised for the other two grievance mechanisms? 
• DRC/Salonga:
  • Assessment of feasibility and suitability of planned grievance mechanism for Salonga National Park; does the current set-up comply with best practices and meet the needs of the IPLC?
  • How can the functionality and visibility of the grievance mechanism be guaranteed around the large Salonga landscape?
  • How can the grievance mechanism be adequately upscaled to cover the entire landscape in due time?
• CAR:
  • DSPA already has a human rights center with its own local lawyer. This center needs to be expanded (e.g. additional female staff for improved gender-sensitive access and the village monitors;

more awareness through different means). How can this best be implemented in view of limited funding?

• • DSPA shall under this program function as a model for the other two protected areas. How can this best be implemented?
• CAM: 
  • How can the grievance mechanism/human rights centre on site ensure timely follow up of cases? 
  • How can we apply the lessons learned from DSPA and put them into the Cameroonian context and the different set up of the grievance mechanism?
  • How can other traditional groups (Bantu) and particularly women be better integrated in the grievance mechanism?

Work stream 3 – Organisational development 

4) STAKEHOLDER ANALYSIS

The feasibility study is expected to provide a stakeholder analysis for relevant governmental and non-governmental stakeholders on micro, meso and macro level and describe how they are interlinked. In this context, a power analysis and the template in Annex B shall be used.Additionally, the following questions shall be addressed:

Related to the program set-up/ program management

• What level of coordination and interaction between the program stakeholders exists in terms of communication, barriers etc.?
• Please provide a job description for a WWF program coordinator who will be based in Kinshasa and bundle and coordinate the activities
• How can learning, cooperation, knowledge management, communication and networking approaches between implementing partners and beyond be included in the programme concept? Which approaches are recommended?

Work Stream 1 – Advocacy work on national and regional level

• Can REPALEAC and IPACC support advocacy and influence policies both in the three target countries and on the international level as described in the impact matrix and how?
• Describe the current and future role of key stakeholders on regional, national, and local level (state institutions, communities and civil society) in the improvement of indigenous and human rights 
• What is the expected role / responsibility of each relevant stakeholder and partner in the programme with regards to work stream 1?
• Where are risks of overlaps/ chances of synergies/ with existing projects/ programs and what synergy effect can be created by the involvement of identified stakeholders and coordination with existing programmes?
• How can the proposed program successfully be embedded in the respective national context? 
• What upscaling potential can be identified?

  Work Stream 2 – Grievance mechanisms

• Are the local implementing partners (likely to be) accepted and trusted at local level? 
• Are there overlaps or conflicts of interest between key stakeholders/ partners?
• To what extend do stakeholders identify with the programme and are willing to make it a success?
• What synergy effects can be created by the involvement of relevant stakeholders and coordination with existing programmes?
• How can learning, cooperation, knowledge management, communication and networking approaches between implementing partners and beyond be included in the programme concept? Which approaches are recommended?

 Work Stream 3 – Organisational development

5) ASSESMENT OF THE PLANNED PROGRAMME BASED ON OECD:DAC CRITERIA

Criterion 1: Relevance

• To what extent are the objectives valid and relevant for the beneficiaries?
• Are the outputs and outcome of the programme consistent with the intended impacts and effects on micro, meso and macro level?
• What are necessary external factors / conditions to achieve the programs’ results  (assumptions)?

Criterion 2: Effectiveness

• To what extent are the objectives achieved / are likely to be achieved? 
• What are the major factors influencing the achievement or non-achievement of the objectives (for each work stream and programme level)?

Criterion 3: Efficiency

• Can the objectives be achieved within the given time frame?
• Is the programme designed in the most efficient way compared to alternatives?
• What would the general outline of an appropriate management structure for an efficient program set up look like in the respective country and for overall programme steering? 

Criterion 4: Impact

• What is expected to happen as a result of the programme – in regards to societal and political impact?
• What difference will the programme make – for civil society / communities / political stakeholders in the programme countries and on the regional level?
• Who is affected / benefitting directly / indirectly by the programme?

Criterion 5: Sustainability

• To what extent will the benefits of the programme continue after funding?
• What are major factors influencing the achievement or non-achievement of sustainability of the programme especially with regards to the multilevel approach?

Criterion 6: Coherency, Complementarity

• Coherency and complementarity to BMZ priorities for the region: Does the program make a clearly aligned and meaningful contribution to BMZ  goals and local priorities?
• Is this approach complementary to relevant BMZ supported projects/programs in the region?

6) EXPECTED DELIVRABLES; TIMELINE AND COSTS

7) PROFILE OF CONSULTANT

The consultant will state that he/she does not have and never had any role in the program to be analysed, and no hierarchical or other relationship with, or dependency from the project managers. For further information and requirements please consult the Declaration of Honour form, as attached to the tender package. 

The consultant will be responsible for the overall implementation of the respective desk research including interviews and the report writing. 

Selection Criteria and Technical and professional ability

 Award criteria

The contract will be awarded based on the most economically advantageous tender, according to the 'best price-quality ratio' award method. The quality of the tender will be evaluated based on the following criteria.  The maximum total quality score is 100 points. Tenders that receive less than 70% of the maximum possible mark for the whole quality evaluation or less than 60% for one of the quality criteria will be eliminated and their final score will not be calculated. Tenders that do not reach the minimum quality levels will be rejected and will not be ranked.