Assessment of labour migration legal frameworks in Africa
Terms of Reference
I. BACKGROUND Migration today is largely linked to the search for improved livelihoods (by means of better jobs and/or better wages/better working conditions). Even when employment is not the primary driver, it usually features in the migration process at some point. More than 80% of labour migration flows of African nationals take place within the African continent . Demand in economic sectors such as agriculture, fishing, mining and construction as well as services related to the care economy (such as domestic work and health care), hospitality (in restaurants and hotels), and retail trade are significant drivers of labour mobility to regions within the continent. The AU Heads of States and Government Summit recently adopted a Protocol on Free Movement of Persons (Addis Ababa, January 2018) containing specific labour migration related provisions that signals the intention to create a unified labour market on the continent which is extensively explained in draft Guidelines on the Labour migration related provisions of the Protocol. The objective of this Protocol is to facilitate the implementation of the Treaty Establishing the African Economic Community by providing for the progressive implementation of free movement of persons, right of residence and right of establishment in Africa. Following this, a Continental Agreement Establishing the African Continental Free Trade Agreement (AfCFTA) entered into force on 30 May 2019 for the 24 countries that had deposited their instruments of ratification. The main objectives of the AfCFTA are to create a single continental market for goods and services, with free movement of business persons and investments, and thus pave the way for accelerating the establishment of the Customs Union. It will also expand intra-African trade through better harmonization and coordination of trade liberalization and facilitation and instruments across the RECs and across Africa in general. The AfCFTA is also expected to enhance competitiveness at the industry and enterprise level through exploitation of opportunities for scale production, continental market access and better reallocation of resources. The 2017 UN International Migration Report mentions that migratory movements are widespread in Africa. In 2017, Egypt had the largest number of people living abroad, followed by Morocco, Somalia, Sudan and Algeria. In terms of the number of immigrants, South Africa is the most significant country of destination in Africa, with around 4.0 million international migrants residing in the country. Other countries with high immigrant populations as a proportion of their total populations include Côte d’Ivoire (2.2 million), Uganda (1.7 million), Ethiopia (1.3 million), Nigeria (1.2 million) and Kenya (1.1 million). Expert studies and data show that migration, particularly labour migration, is an important enabler and beneficiary of regional integration and economic development in Africa. For example, the key findings of a 2018 ILO/OECD study on the impacts of immigration on developing countries’ economies , showed the following:
o Migrants can have a positive impact on economic growth. The study’s conclusions state that overall immigration is unlikely to depress gross domestic product (GDP) per capita, on the contrary. In some countries, the estimated contribution of immigrants to GDP represents up to 19% such as in Côte d’Ivoire.
o Immigrants may also generate additional employment opportunities for native-born workers. Overall, in South Africa the study shows that recently arrived migrants actually represent a positive impact on native-born employment rates and monthly wages as well as a decrease in unemployment rates.
o At the same time, when migrant workers are employed in the formal economy, their employment can have a positive effect on public finance. In Ghana, the contribution of immigrants to the government’s fiscal balance exceeds the contribution of the native-born population (on a per capita basis). In addition, in South Africa immigrants have a positive net impact on the government’s fiscal balance.
The real question is how to make migration part of the national, regional and continental economic and social development strategies. This entails strengthening labour market institutions, including labour market Information Systems, to provide employment services and benefits that better govern intra-regional labour mobility, promoting ethical and fair recruitment processes, extending social protection to migrant workers and their families, addressing root causes of migration, and, developing social dialogue and cooperation on the governance of labour migration and improving skills recognition and portability.
Governance at the national level is of crucial importance. National policies and legal instruments (social security and labour instruments) allow member States to integrate the protection of migrant workers’ rights into the economic and social dimensions of their governance of labour migration flows.
International labour mobility is still too often impeded instead of facilitated by the absence or weak implementation of labour migration policies and legal protection frameworks and of free movement protocols’ rights and mechanisms. In addition, it can be obstructed by the lack of coherence between labour migration, employment and social protection, trade, migration monitoring, and security policies (the prevalence of rigid border formalities, the abundance of road blocks and security checkpoints on international highways, the malpractice at borders and along transportation routes). There is a need for a whole of Government and society approach to ensure effective labour migration governance, enhanced by effective social dialogue mechanisms at national and RECs levels, and a need to build capacities in governments and other stakeholders to effectively manage migration.
The 2017 International Labour Conference’s Resolution and Conclusions concerning Fair and Effective Labour Migration Governance highlights the necessity to develop tailored and effective policy responses based on reliable data and evidence that address the unique challenges of different countries, regions and actors, and that “experience demonstrates that labour migration governance models that pursue decent work for all begin with a comprehensive policy framework guided by international labour standards and the fundamental principles and rights at work” .
Further, the global community recently adopted the Global Compact on Migration in Morocco in 2018. The Global Compact on Migration presents a significant and comprehensive opportunity to improve on the governance of migration and to specifically address the rights of all migrants, irrespective of their status, and further strengthen their contribution to sustainable development. It takes into consideration of target 10.7 of the 2030 Agenda for Sustainable Development in which Member States committed to cooperate internationally to facilitate safe, orderly and regular migration.
II. Ratification of ILO migrant workers conventions in Africa
In order to ensure an effective protection of migrant workers, the ILO needs to continue strengthening its work on improving labour migration legislation at the country, RECs and continental level. At the same time, it should continue advancing work on advocating for the ratification of ILO Migrant Workers’ Conventions in Africa.
ILO’s Migration for Employment Convention (revised), 1949 (No. 97) counts with 50 ratifications. It is worth noting that the last ratification by Morocco was received very recently and that a ratification of the same Convention by Sierra Leone is on its way.
In the region, the following 11 African States have ratified Convention no. 97: Algeria, Burkina Faso, Cameroon, Kenya, Madagascar, Malawi, Mauritius, Morocco, Nigeria, Tanzania Zanzibar, Zambia Algeria (1962)- Has excluded the provisions of Annex II; Burkina Faso (1961); Cameroon (1962)- Has excluded the provisions of Annexes I to III; Kenya (1965)- Has excluded the provisions of Annexes I to III; Madagascar (2001)- Has excluded the provisions of Annex III; Malawi (1965); Mauritius (1969)- Has excluded the provisions of Annexes I to III; Morocco (2019)- Has excluded the provisions of Annexes I to III; Nigeria (1960)- Has excluded the provisions of Annexes I to III;
Tanzania Zanzibar (1964)- Has excluded the provisions of Annexes I to III;
Zambia (1964)- Has excluded the provisions of Annexes I to III;
ILO’s Migrant Workers (Supplementary Provisions) Convention, 1975 (No.143) has received 25 ratifications. It counts with a very recent ratification by Madagascar and Mauritania. Again, Sierra Leone has deposited the instrument of ratification with the ILO. In the region, the following 9 African States have ratified Convention no. 143: Benin, Burkina Faso, Cameroon, Guinea, Kenya, Madagascar, Mauritania, Togo, Uganda
Benin (1980); Burkina Faso (1977); Cameroon (1978); Guinea (1978); Kenya (1979); Madagascar (2019) Mauritania (2019); Togo (1983); Uganda (1978).
Sierra Leone submitted in May 2019 the ratification of both: Convention 97 and Convention 143. The process of depositing the instrument of ratification is ongoing.
The 2016 “Promoting Fair Migration, General Survey concerning the migrant workers instruments, Report of the Committee of Experts on the Application of Conventions and Recommendations” identified the following countries in Africa as having reported intention to consider ratification: Algeria (C. 143), Benin (C. 97), Senegal (both), Sudan (both), Uganda (C. 97).
The Government of Sudan reported that it was currently considering ratification of the two Conventions; The Government of Benin indicated that ratification of Convention No. 97 would be included in the annual workplan for 2016 of the General Labour Directorate, and ILO technical support would be appreciated in this regard; The Government of Uganda (in relation to Convention No. 97) indicated that the instruments were among those identified to be considered for ratification. The Government of Senegal (in relation to both Conventions) stated that the possibility of ratification was being studied. The Government of Algeria stated that, with respect to the ratification of Convention No. 143, the issue required reflection in order to harmonize the labour migration governance scheme. THE AU-ILO-IOM-ECA JOINT PROGRAMME ON LABOUR MIGRATION GOVERNANCE FOR DEVELOPMENT AND INTEGRATION In 2015, the African Union (AU) the International Labour Organization (ILO), the International Organization for Migration (IOM) and the Economic Commission for Africa (ECA) adopted the Joint Labour Migration Programme (JLMP), which promotes critical areas of facilitating the free movement of workers as a means of advancing regional integration and development. Key activity areas of the JLMP include skills portability and the mutual recognition of qualifications, the development of an African Qualifications Framework, social security access and portability for migrant workers, the obtainment of labour migration statistics, protection of the rights of migrant workers as well as the ratification and effective implementation of UN and ILO labour standards on migrant workers and their family members. The JLMP is a long-term joint undertaking among the four organizations in coordination with other relevant partners operating in Africa, development cooperation actors, private sector organizations and civil society representatives. It is the instrument dedicated to the implementation of the 5th Key Priority Area of the Declaration and Plan of Action on Employment, Poverty Eradication and Inclusive Development, which was adopted by the AU Assembly of Heads of States and Governments in January 2015, Addis Ababa, Ethiopia. Its strategy focuses on intra-African labour migration and supports achievements of the First 2023 Ten Year Plan of the AU Agenda 2063 and of the Sustainable Development Goals (SDGs) recently adopted by the UN. In addition, the JLMP is a critical instrument of implementing the Migration Policy Framework for Africa (MPFA) and Plan of Action (2018-2030) adopted by the AU Executive Council from 25th to 26th January 2018 in Addis Ababa, Ethiopia. In order to ensure a strong take off of the JLMP, a three-year project (2018-2021), the JLMP Priority, was developed with the overall objective of improving the governance of labour migration in order to achieve safe, orderly and regular migration in Africa as committed in relevant frameworks of the African Union (AU) and Regional Economic Commissions (RECs), as well as relevant international human rights and labour standards and other cooperation processes. Commitment to its objectives were reaffirmed during the ILO’s 14th Regional Meeting which took place in Abidjan, Côte d’Ivoire, in December 2019, where ILO’s tripartite constituents committed to “Building on the human-centred approach to the future of work, the main priorities for the African region will be built around the Centenary Declaration” by “strengthening the efficiency of the institutions of work to ensure adequate protection of all workers through (…) promoting fair and effective labour migration governance.” THE 2004 INTERNATIONAL LABOUR MIGRATION SURVEY At its 283rd Session (March 2002), the Governing Body of the International Labour Office placed on the agenda of the 92nd Session (2004) of the International Labour Conference an item on migrant workers for general discussion . The topic was to be addressed based on an integrated approach taking into consideration a broad range of measures, means of action and instruments available to meet the challenges, problems and opportunities posed by contemporary forms of labour migration. This is in recognition of the fact that migration issues cut across practically all spheres of the normative and technical activities of the ILO. Following the procedure for the consideration of items placed on the agenda for general discussion, the ILO developed a comprehensive report on the trends in migration and the conditions of men and women migrant workers; the state of law and practice regarding their treatment; the impact of migration on origin and host countries; and the experience with structures and policies established at national, regional and international levels for regulating migration and the employment of migrant workers. The general discussion aimed at developing a plan of action for ILO activities in the area of labour migration. In preparation for the general discussion of the International Labour Conference, an International Labour Migration Survey was sent to governments of all the member States of the ILO. The Survey aimed to obtain the latest information on ways in which migration and the treatment of migrant workers were being regulated through laws, policies and administrative measures; the role played by bilateral and multilateral agreements; and the way in which the tripartite partners take part in the process and the impact of the ILO instruments in this area. Replies to the Survey were received from 90 member States and summarised in the report “Towards a fair deal for migrant workers in the global economy” . II. OBJECTIVES Outcome 2 of the JLMP Priority aims to improve policy and regulatory systems on labour migration at Member State and REC levels, taking into account its gender dimension and the relevant international human rights and labour standards. Within its implementation, the ILO is seeking to replicate the 2004 labour migration survey at the scale of the African continent, with a view to (1) assessing existing labour law provisions (including labour codes) in AU Member States and RECs; (2) ensuring their relevance to labour migration governance for their coordination; and (3) assessing their gender responsiveness. In order to undertake this activity, an International AU/ILO Labour Migration survey will be shared with Ministries of Labour and Ministry of Interior/migration of all African Member States, tripartite constituents as well as REC’s. Additionally, an assessment of legislations and regulations pertaining to migrant workers’ human and labour rights and equality of treatment and opportunity will be conducted in selected member states and RECs, as well as a review of existing study and findings realised by other projects. In light of the background and introduction provided, the overall objective of this assignment is to identify gaps between legislations, regulations (including labour and social security codes) and practices affecting migrant workers’ access to labour rights and benefits, and their labour rights as contained in International Labour Standards. The specific objectives are to:
- Obtain the latest information on labour migration governance law and practice particularly through labour market institutions ; the role played by bilateral and multilateral treaties, and considering the ratification and implementation of ILO and UN Conventions on migrant workers; as well as the way in which social dialogue mechanisms and tripartite partners take part in the process;
- Assess migrant workers’ equality of treatment and opportunities with national workers considering also the gender equality and women’s empowerment aspect ;
- Evaluate the potential gaps between the AU Free Movement of Persons Protocol, RECs policy frameworks and legal instruments, International Labour Standards and national legislations, regulations and practices;
- Assess gaps between national legislations/regulations and practices in Member states;
- Identify bottlenecks in implementation of migrant workers’ equality of treatment and opportunities.
- Propose way forward for the harmonization and coordination of legal instruments and policy frameworks (at RECs level) on the protection of the rights of migrant workers Component 1: Conduct a desk study • Activity 1.1: Conduct a desk research and review literature from studies conducted by other projects (e.g. FMM, IGAD, Ghana, Nigeria, Ethiopia, IOM Comparative Study on free movement of workers in Burundi, Kenya, Rwanda and the United Republic of Tanzania etc.).
Component 2: Conduct a Labour Migration survey • Activity 2.1: Update the questions of the 2004 International Labour Migration Survey (ILMS) considering labour migration-related standards adopted since (e.g. the Domestic Workers Convention, 2011 (No. 189), as well as the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205); and guidelines (e.g. General Principles and Operational Guidelines for Fair Recruitment; Guidelines for the collection of Statistics on SDG indicator 10.7.1 on reducing recruitment costs, as well as continental (AU Free Movement of persons Protocol, AfCFTA) and RECs frameworks and instruments). Include a stronger gender equality and women’s empowerment angle; • Activity 2.2: Send the updated survey to relevant Ministries and social partners, of all the AU member States as well as AU/RECs. The survey should be answered by officials responsible for, and knowledgeable about, national laws, policies and programmes pertaining to labour migration governance and migrant workers; • Activity 2.3: Responses from governments will be compared with those of social partners and RECs and analysed in a specific report.
Component 3: Conduct an assessment of labour legislations and regulations • Activity 3. 1: Assess legislations and regulations of 10 selected Member States and 5 RECs based on the response received to the survey to analyse whether: a. The ratification of regional protocols (E.g. RECS free movement protocols, AU Free Movement Protocol, AU Migration Policy Framework) has impacted MS’s legal and policy frameworks. b. Some RECs are more advanced than other in the implementation of their sub-regional protocols. c. Some member states comply with International Labour Standards relating to labour migration despite having not ratified them. d. The promotion of ratification led to legal reforms. e. Countries who have recently ratified convention/s relating to labour migration made progress in domesticating them (e.g.: Morocco (C.97); Madagascar (C143, C181, C189); Mauritania (C143), Rwanda (C181)). f. The drafting of labour migration policies led to legal reforms. Geographical coverage: Algeria, Egypt, Côte d’Ivoire, Ethiopia, Morocco, Nigeria, , Somalia, South Africa, Sudan, Uganda, EAC, ECCAS, ECOWAS, SADC.
Component 4: Drafting of a report of findings • Activity 4.1: Compile and analyse information from the desk research, labour survey, and assessment of the questionnaire into a report (including graphs and tables); Identify gaps and provide recommendation on policy, regulations, projects needs and possible technical assistance to member states. • Activity 4.2: Carry out a Validation workshop of the findings through the most appropriate way (i.e. depending on Covid 19 situation). III. SCOPE The survey aims at obtaining the latest information from AU Member States and the RECs on: ways in which labour migration and the equality of treatment and opportunities of migrant workers are being regulated or managed through laws, administrative measures and specialized bodies of the State; their gender responsiveness, the role played by bilateral and multilateral treaties, regional and continental instruments/frameworks, and ILO Conventions on migrant workers, the impact of their ratification on national legal and policy framework and vice versa, and the way in which the tripartite partners take part in the process. IV. METHODOLOGY It is envisaged that:
- The survey questionnaire would be reviewed and revised (Including with all RECs, considering an online consultation with them) to ensure that current issues are taken into account, such as the promotion of gender equality and women’s empowerment responsiveness.
- The revised questionnaire would then be sent out to governments and social partners and civil society of all the African Union member States, through the Secretariat of the RECs, with support of the JLMP PSU, ILO and IOM. It should be answered by officials responsible for and knowledgeable about national laws, policies and programmes about labour migration governance and the treatment of migrant workers. Consultations between the government and representatives of employers’ and workers’ organizations are therefore essential. In the concluding part of this survey governments are invited to provide relevant details concerning the consultations they have held before replying to this survey. The survey consists of several parts. Depending on the internal structure of a particular member State, governments may wish to request different ministries or officials to reply to these parts separately, under the coordination of the focal person in the Ministry of Labour. The survey is structured in such a way as to make a distinction between those questions relevant to countries that employ foreign labour (Part IB: Employing migrant workers) and those relevant to member States in which many nationals work in foreign countries (Part IC: Foreign employment of nationals). There are also questions relevant to both (Part IA: General issues; Parts II and III). If a member State employs foreign workers and at the same time sends nationals to work in foreign countries, it is requested to reply to all the questions in Part I.
- Detailed literature review of the references provided by partners as well as other relevant resources (academic pieces, others) identified by the consultant. Some similar legal reviews have already been conducted by other projects such as the FMM. The consultant will summarise those findings.
- Assess legislations, regulations and practices (through remote (telecommunications) consultations with social partners and civil society) of member states.
- Identify gaps and bottlenecks in the implementation of international labour standards, legislations, and regulations.
- Responses of the survey will be collected, analysed and compiled with information from the literature review of studies – including their methodologies – conducted by other projects (e.g. FMM, IGAD, Ghana, Nigeria, etc.) – and the findings of the assessment.
- Drafting of a report which will summarize findings of the survey, assessment and desk review and provide recommendations, including the identification of potential technical assistance needs of member states. V. DETAILS OF THE REPORT AND EXPECTED OUTPUTS
The report will specifically cover the following:
- Draft inception report including: a. Work plan and timetable for the research phase; b. Methodology of the assessment;
c. Draft literature review; d. Methodology and questions for survey; e. A draft table of contents for the final report.
- Submit a revised/updated draft questionnaire to the ILO, receive comments and incorporate these (RECs will lead the process to assist the consultant).
- Send and follow-up to ensure a good response rate from Ministries of Labour and collect questionnaires from member states tripartite constituents and RECs. (same as above)
- Conduct assessment in selected member states.
- Compile survey responses with desk review findings and assessment into a report. .
- Present report and recommendations to the ILO and AUC regional stakeholders and validate findings (through validation workshop if possible, depending on COVID 19 evolving situation, otherwise remote modalities will be considered).
- Finalise report after receiving feedbacks from JLMP partners and other relevant stakeholders.
- An inception report including
- First draft report compiling desk research, questionnaires and assessment.
- Final, validated report and presentation of findings and recommendations.
VII. PAYMENT SCHEDULE
- 20% upon satisfactory submission of the inception report and draft questionnaire – by 30/10/2020
- 50% upon satisfactory submission of the draft report by 20/02/2021
- 30% upon satisfactory submission of final report and presentation – by 28/04/2021
Deliverable Timeframe Payment Submission of inception report 20% 30/10/2020 Submission of draft report 50% 20/02/2021 Final report 30% 28/04/2021
VIII. REPORTING The consultant will report to Silvia Cormaci, Project manager ([email protected]), and Ms. Gloria Moreno Fontes ([email protected] ) who will coordinate with MIGRANT Unit in HQ and share it broadly with NORMS colleagues, the African Union and the IOM for their review/comments. The consultant will also benefit from the support of the JLMP technical officer, in particular in liaising with country offices to follow up on the submission of the questionnaires.
The ILO will be responsible for coordinating the work of the consultant, including coordination with partners AUC and IOM. The ILO will be the leading agency responsible for incorporation of inputs and comments and validation of the deliverable. The ILO is available to provide information and resources in the countries selected- where feasible-, but it remains the primary responsibility of the selected consultant to collect relevant information as per ToR and be able to work in the selected countries.
IX.BUDGET Costings should include the daily rate of all personnel involved in the study; the cost of national consultations including travel and meeting expenses. The ILO will separately cover costs associated with the validation workshop.
X. DURATION It is expected that the firm will complete the work over the course of six (6) months.
XI. CONSULTANT REQUIREMENT Advanced degree in law At least 7 years demonstrated experience conducting similar studies, including good knowledge of labour mobility, labour migration governance and international labour standards. Proven experience in carrying out analytical work and legal reviews related to labour migration. Good knowledge of the African context. Experience working with labour ministries and social partners. Excellent command of English and working knowledge of French. Ability (and equipment) to perform efficiently remotely.
XII. Ownership and Disclosure of Data/Information All documents, project data and information obtained in connection with this assignment shall be treated confidential and shall not without the written approval of ILO be made available to any third party. All the documents provided by ILO, both soft and hard copies are to be returned to ILO upon completion of the assignment. All documentation and reports written as, and as a result of this assignment or otherwise related to it shall remain the property of ILO. No part of the report shall be reproduced except with the prior, expressed and specific written permission of ILO.
XIII. Proposal should be send via email to [email protected] by September 25, 2020.
How to apply:
Proposal should be send via email to [email protected] by September 25, 2020.