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Position: Consultant for a comparative study
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Status:Consultant
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Duration of consultancy: 40 working days
Due to the urgency of this position, applications will be short listed on a regular basis and we may offer this post ASAP.
1. Avocats Sans Frontières
Avocats
Sans Frontières (ASF) is an independent international non-governmental
organization founded in Belgium in 1992, with the aim of contributing to
the creation of equitable societies in which the law and its
institutions serve the most vulnerable people. ASF has been working in
the regions of the African Great Lakes and East Africa since its
creation in 1992 on various projects to enhance access to justice for
the vulnerable, projects on pre-trial detention, as well as projects for
the training and coaching of lawyers, and numerous interventions in
certain strategic litigations. Today ASF has expanded its scope of
intervention to post conflict and fragile States in South-America, Asia,
Africa and the MENA region.
To this means, ASF has been working
in formal and informal partnerships with the National Bar Associations
and other civil society organizations.
2. ASF in the region : KALIMA project
Avocats Sans Frontières (ASF) is engaged in a multi-annual project called
Kalimato
promote and protect actors and beneficiaries of freedom of expression
and freedom of speech in the MENA (Middle East and North Africa) region.
All activities are organized in three countries: Egypt, Tunisia and
Morocco within the framework of national and regional strategies.
Kalima aims to provide both an emergency response in the short-term and structural lasting solutions in the long-term.
Kalima’s
global objective is to contribute to expand the space for Freedom of
Expression (FOE) and Freedom of Press (FOP) for traditional journalists,
bloggers, and citizen journalists. The specific objective is to legally
empower and protect traditional/citizen journalists and bloggers. To
achieve this objective, the action focuses on reinforcing lawyers’
capacities to deal with FOE and FOP cases by providing legal advice,
conducting strategic litigation cases, and supporting the collective
advocacy efforts of key civil society actors.
Legally empowering
traditional/citizen journalists and bloggers will ensure:1) that they
know their FOE and FOP rights and obligations; and 2) that they have
access to mechanisms to claims their and protect their rights.
The
results to be achieved are: 1) traditional/citizen journalists and
bloggers master their legal environment and international standards; 2) A
regional network of lawyers is specialized in the legal protection of
FOE/FOP actors; 3) Legally and professionally enabling environments
consistent with international standards for FOE and FOP are promoted at
both national and regional level.
The project
Kalimainvolves
a range of civil society actors, lawyers and legal practitioners, and
key institutional and political stakeholders for freedom of expression
(FOE) in Morocco, Egypt and Tunisia.
In parallel, ASF supports
civil society actors and lawyers in establishing or consolidating the
following mechanisms to ensure effective legal protection:
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Free legal assistance in courts for those victims of violations of their right to FOE or FOP;
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Legal/technical advice for proposed legal reforms;
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Strategic litigation cases;
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Use of international recourse when possible;
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Creation of a regional platform to foster exchange of experience
among actors of the different contexts, support advocacy initiatives,
and discuss possible regional-level advocacy.
3. The comparative study
Purpose of the study
Background context
The
study conducted in the framework of the Kalima project will seek to
provide an understanding of the existing legislations and judicial
practices restricting the scope of the FOE and FOP in Morocco, Egypt and
Tunisia.
Since the Arab spring, the political and legislative
environment in the Middle East and North Africa region changed in many
ways. Even though the social and political evolutions are specific to
each country and major changes are operating at various levels, these
three countries are also facing common challenges. In this context,
human rights frameworks have also undergone a major evolution. The
protection and promotion of the FOE in the Egyptian, Tunisian and
Moroccan legislation has known important developments, most of which are
restrictive:
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Egypt’s legal framework contains broad and ambiguous restrictions to
the FOE. It has also set immense barriers for the emergence of
independent and free media and non governmental organizations (NGOs).
These laws remain into force without significant reform since the 2011
Revolution. On the contrary, since the fall of Mubarak and then Morsi,
the situation of FOE is worsening every day.
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Tunisia’s legal framework has changed since 2011. Although a new
legal framework has been adopted (The new Constitution, Decree-law 115
and Decree-law 116) , protecting the space for freedom of expression and
media freedom, it is widely unknown to the stakeholders in the sector
and remains poorly applied by the judiciary and the Tunisian
authorities.
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In Morocco, a restrictive interpretation is applied to the FOP and
FOE (despite it being set out in the Constitution) as soon as certain
sensitive subjects are raised (Islam, the King and monarchy, article 41
of the Press Code, personal wealth of government officials, the
army[1]). The new Press Code has not yet been adopted. Its project is
still in discussion and will be submitted to the vote of the parliament
in January. Today, more than twenty legal provisions exist (Mostly in
the Penal Code and Counterterrorism Law) allowing for custodial
sentences ranging from one month to five years in prison. Journalists
are convicted most commonly for slander or insulting a Head of State.
In addition to the issues linked to the application of the FOE and
FOP legal framework, important issues and restriction to these public
freedoms also results from the misapplication of common legislation,
such as the penal code, antiterrorist laws, laws on public
demonstrations or legislation on drugs. In fact, many journalists,
bloggers and other FOE stakeholders are arrested or pursued based on
such legislation.[2] Even if these laws are not expressively designed to
regulate the FOE and FOP, their extensive application contributes to
create a highly restrictive environment for these actors.
Justification
In
view of the above, the purpose of the study is to provide a thorough
analysis of the legislative and judicial restrictions to the FOE and FOP
in Morocco, Egypt and Tunisia through:
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A review of the national and international legal framework on FOE and
FOP in force in the countries under study, and a review of the
jurisprudence relevant to their application;
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A review of the legislations used to restrict the scope of FOE and
FOP in the countries under study, and a reviews of the jurisprudence
resulting from this practice;
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An analysis of the extent to which the legislative and judicial
practices reduce the scope for FOE and FOP in the region and comply with
international standards in the sector;
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The development of a set of recommendations to contribute to the full
application of the FOE and FOP by state institutions, with a focus on
the judicial and legislative bodies.
Through its publication and wide dissemination, the study will
ultimately aim to initiate a shift in the legislative and judicial
practices in the region. It is designed to drive the advocacy efforts
implemented by ASF and its partners in the sector. It will also
constitute a reference document for all actors working in the field of
FOE and FOP and manly Lawyers, Judges, local and international NGOs.
The
study will be particularly relevant to the work of the regional
platform which will be created in the framework of the Kalima project.
The platform will bring together FOE stakeholders committed to promote a
wider scope for FOE and FOP in the region through the compliance with
and the proper application of international standards. It will allow for
the emergence of debates among a wide range of actors, such as legal
practitioners, key political actors, government representatives, local
media and advocacy groups, members of the civil society, etc.
The
objective of this inclusive platform is to meet the need of FOE
stakeholders to participate in the regulation of their activity and
gradually to draw up rules of practice and monitor sensitive situations.
It will support advocacy efforts at national level, and encourage the
development of regional advocacy initiatives. The study will therefore
constitute a basis for discussions and will directly to inform the
platform members in the development and implementation of their advocacy
strategies.
Expected results
This study should allow ASF to
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Obtain a throughout analysis of the legislative and judicial restrictions to FOE and FOP
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Obtain recommendations to counter the misuse of penal legislations to
censor FOE stakeholders and the misapplication of FOE- and FOP-related
legislation
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Obtain recommendations to enlarge the space of FOE and FOP in the
region and improve the judicial and legislative practices in the sector.
Methodology
In order to reach the above-mentioned objectives, the consultant shall:
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Review the relevant literature and project documents ;
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Review the relevant national, regional and international legal and judicial framework ;
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Analyse the jurisprudence selected by ASF and its partners
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Develop the comparative study based on the legislation, the cases / decisions selected and draw recommendations ;
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Present and discuss the recommendations with the advocacy platform actors before finalising the study ; and
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Discuss the study with the project partners and review their comments for completion of the study.
Deliverable
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A proposition of methodology to carry out the study ;
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Brief outline of the study
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A first draft of a comparative study, including research setting,
case selection, law analysis, case analysis, impact assessment (when
possible) and recommendations ;
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A final comparative study, including research setting, case
selection, law analysis, case analysis, impact assessment (when
possible) and recommendations ;
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A list of material used and bibliography.
Timescale
The consultant would work around 40 days from February 2015 to April 2015 to carry out the assessment.
4.Consultant profile
The ideal candidate will have the following profile:
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Lawyer / magistrate with advanced education in the field of human rights or legal studies or equivalent experience ;
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Experience in research, conduct surveys, qualitative content analysis ;
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Significant knowledge or experience analysing legal, judicial and
quasi-judicial decisions with regards to their compliance to
international standards of freedom of speech and expression ;
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Significant knowledge or experience of MENA Region judicial systems and Freedom of Expression mechanisms ;
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Strong analysing and writing skills ;
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Fluency in Arabic, English and/or French.
Desirable:
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Experience in the field of human rights and protection in the regions of implementation
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Academic background and experience in the field of human rights ;
[1]http://aan.mmsh.univ-aix.fr/volumes/2000-2001/Documents/lib-opinion-Maro...
[2] For exemple : The case of Ali Anouzla in Morocco, Alla Abdel Fatah in Egypt, Aziz AMAMI in Tunisia…
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