Implementation of Geneva Conventions Act, 2012
R 385
Intergovernmental Relations Framework Act, 2005 (Act No. 13 of 2005)Guidelines for Managing Joint Programmes4. Commonly Included Clauses in a Protocol |
Consistently, institutions are faced with the challenge of developing Protocols that adequately address the needs of a variety of stakeholders. This section of the Guide describes the commonly included clauses that are necessary to prepare Protocols.
The commonly included clauses mentioned below are divided into two subsections as far as possible. The details outlined in the Instruction section provide the specific information to be addressed in that particular section. The information provided in the Guidance section is provided to promote understanding of the topic and its usefulness.
Annexure A contains an Implementation Protocol Template.
| 4.1) | Preamble |
Instruction. Identify and state any challenges that may be experienced and state how these challenges are to be addressed.
Guidance. Wording that typically could be used to state the challenges and how they are to be addressed are:
| 1) | "Having regard to" - previous events or circumstances that are being honoured (esteemed or respected or well regarded), feelings of friendship and esteem, close connection, an attitude of admiration or co-operation. |
| 2) | "Desiring to" - fulfil particular expectations or to change an unsatisfied state, and with strong intention within a framework of co-operation amongst the Parties. |
| 3) | "Recognising the" - to know and accept that something is legal, true or important. |
| 4.2) | Definitions |
(Clause 1 of the Implementation Protocol Template - Annexure A)
Instruction. Provide definitions to describe acronyms, abbreviations or terms used in the Protocol.
| 4.3) | Purpose of Protocol |
(Clause 2 of the Implementation Protocol Template - Annexure A)
Instruction.
Section 35(2) of the IGR Act contemplates four instances when an implementation protocol must be considered. Without reproducing what is stated there, the Protocol must make provision for a statement as to why the Protocol is considered necessary and then state the exercise of a particular power, and/or the performance of a particular function. All parties should be clear as to what the driving force behind the Protocol is.
Flowing from this statement, the aims and objectives that the Protocol should achieve and an outline of the priorities must be stated.
Guidance.
| 1) | "Purpose / Aim" means the broad, long-term purpose or aim(s)of the Protocol. |
| 2) | "Objective" means a concrete statement describing what the Protocol intends to achieve in support of the purpose/aim. The objective should be written at a low level so that it can be evaluated at the conclusion of a project to see whether it was achieved or not. A well-worded objective will be specific, measurable, attainable/ achievable, realistic and timebound. |
| 3) | "Priority" refers to the relative importance of the outcomes in order of importance or urgency. |
| 4) | If necessary, this clause of the Protocol could also provide for terms and conditions that should apply or principles (e.g. principles of co-operation) that Parties should observe to achieve the desired aims and outcomes. |
| 4.4) | Parties to Protocol |
(Clause 3 of the Implementation Protocol Template - Annexure A)
Instruction. State all the Parties to the Protocol.
Guidance. At this stage it is important to state the authorised signatories to the Protocol.
The implementation of a programme involving local government may require political support from an Executive Mayor. The Protocol Template should accordingly be amended to accommodate the role of an Executive Mayor as a party and signature to the Protocol.
| 4.5) | Roles and Responsibilities |
(Clause 4 of the Implementation Protocol Template - Annexure A)
Instruction.
| 1) | State the role and responsibilities of the political principal. |
| 2) | State the role and responsibilities of the principal department. |
| 3) | State the role and responsibilities of each Party to the Protocol. |
| 4) | If necessary, state the role and responsibilities of other key stakeholders. |
Guidance.
| 1) | A political principal would promote, facilitate and co-ordinate aspects of a political nature that may be required in terms of the Protocol and to support the work of the various intergovernmental forums established in terms of the IGR Act. An example would be cases where policy is jointly developed in a particular area and a political principal (Cabinet Minister) would promote and lead particular aspects in the relevant Cabinet Committee and the Cabinet. A political principal may not necessarily be a signatory to the Protocol but still has an important role to play to initiate and promote aspects pertaining to the Protocol. |
| 2) | The principal department would be responsible for overall co-ordination and facilitation of the Protocol. An example would be the department leading a particular Directors-General Cluster or a component of Government's Programme of Action. This department should preferably be a department within the portfolio of the political principal to ensure appropriate co-ordination and support to the political principal. In the case of Cluster projects, the Protocol should give guidance as to who should lead. |
| 3) | A key stakeholder is not a signatory to the Protocol but may have an important role to play to promote aspects pertaining to the Protocol. The Parties may not have direct control/influence over key stakeholders or their decision-making, which could lead to delays in implementing the Protocol. Key stakeholders are included in this clause to ensure that the Parties can manage their involvement. An example would be participation of the Parties in the relevant intergovernmental forum or consultation with organised Labour to promote a particular policy. |
| 4.6) | Workplan |
(Clause 5 of the Implementation Protocol Template - Annexure A)
Instruction. The Parties must agree on a workplan to implement the Protocol. The Workplan is an instrument to measure the effective implementation of the Protocol.
The Workplan must state the following minimum information:
| 1) | Objectives. |
| 2) | Measurable Indicators. |
| 3) | Outcomes and/or Outputs. |
| 4) | Allocated Responsibilities. |
| 5) | Timelines. |
| 6) | Budget. |
Guidance: It is not the intention to unnecessarily include project management principles in this guide, but rather for Parties to agree on the definitions and terminology used in the workplan:
| 1) | "Objective" means a concrete statement describing what the Protocol aim(s) are trying to achieve. The objectives should be written at a low level so that it can be evaluated at the conclusion of a project to see whether it was achieved or not. A well-worded objective will be specific, measurable, attainable/achievable, realistic and timebound. |
| 2) | A "Measurable Indicator" indicates progress (or lack thereof) towards a result. It is a specific, observable, and measurable characteristic that shows the progress toward achieving a specified objective. |
| 3) | "Outcome" means the result or the effect that the objective intends to achieve. |
| 4) | "Output" means the desired or anticipated measurable product or result that is normally tangible. |
| 5) | "Responsibility" means the department responsible for the stated outcome or output. |
| 6) | "Timeline" means the end date on which the stated outcome or output should be achieved. |
| 7) | "Budget" means the amount committed to achieve the stated outcome or output. |
| 8) | The Workplan, duly initialised by the Parties, should be attached to the Agreement. |
| 9) | The Parties should also supplement the Workplan with their individual departmental workplans. |
Annexure B contains an example of a Workplan.
| 4.7) | Contributing Resources |
(Clause 6 of the Implementation Protocol Template - Annexure A)
Instruction. The Parties must determine, agree on and state the financial and nonfinancial resources and associated costs each will contribute in terms of the Protocol.
An inventory of assets, liabilities, contractual rights and obligations must be compiled and attached to the Agreement
Each Party must ensure that its financial contribution is authorised for the purpose of implementing the Protocol.
Guidance. The following types of resources could be considered:
| 1) | Personnel and human resource management matters. |
| 2) | Funding, service and operating costs and financial arrangements. The Parties should be clear how the costs of the co-operation should be borne by the Parties through contributions by the Parties. This part of the Protocol should include information describing the costs for services, identifying the methods to be used to allocate the costs of services and operating costs, providing a detailed description of the payment system and identifying the cost-sharing methods for all partners. |
| 3) | Procurement of services and service providers (consultants). Individual departments should be responsible for procuring service providers. |
| 4) | Assets such as facilities, equipment, property and supplies. |
| 5) | Accommodation and travel arrangements. |
| 6) | Legal expertise. |
| 7) | Rent. |
| 8) | Identify assumptions and risks of the programme / project and the steps to be taken to manage the programme. |
| 4.8) | Managing the Protocol |
(Clause 7 of the Implementation Protocol Template - Annexure A)
Instruction. The Parties must determine, agree on and state the institutional mechanisms, including their composition and functions that are necessary for the effective management and implementation of the Protocol.
Guidance. The following institutional and management instruments could be considered:
| 1) | Oversight mechanisms and procedures to monitor and review the effective implementation of the Protocol. Measures to annually review multi-year Workplans or the Protocol. |
| 2) | Decision-making mechanisms and procedures. |
| 3) | Standard operating mechanisms and procedures. These include technical committees. liaison, consultation and communication required or permitted under the Protocol. |
| 4) | Project management mechanisms and procedures. These include developing and managing time-schedules, reporting, secretarial services, data collection, record keeping and document management. |
| 5) | Management of possible conflicts that may arise with respect to contributing to cluster projects versus the department's line function responsibilities. |
| 6) | The appropriate intergovernmental forum may co-ordinate the implementation of the Protocol (Section 35(6) of the IGR Act). |
| 4.9) | Good Faith and Reasonableness |
(Clause 8 of the Implementation Protocol Template - Annexure A)
Instruction. The Parties must undertake to act in good faith and reasonably and warrant that they shall not do anything or shall refrain from doing anything that might prejudice or detract from the powers or functions of each other in the implementation of the Protocol.
| 4.10) | Dispute Resolution |
(Clause 9 of the Implementation Protocol Template - Annexure A)
Instruction. In the spirit if the IGR Act, the Parties have a duty to avoid disputes and to settle disputes without resorting to judicial proceedings. The Protocol must specify dispute-settlement mechanisms and procedures should disagreement or dispute arise in the:
| 1) | Implementation of the Agreement. |
| 2) | Interpretation of the Agreement. |
| 3) | Non-compliance with the Agreement. |
| 4) | Exercising statutory powers or performing statutory functions. |
Guidance. It is suggested that the following aspects be considered to settle disagreement or disputes:
| 1) | The Parties must initially make all reasonable efforts to settle any such difference or dispute through consultation and negotiation. A disagreement or dispute must be initiated in writing. |
| 2) | If the difference remains unresolved, any Party may refer it for arbitration by an arbitrator agreed to by the Parties. |
| 3) | If the Parties fail to reach agreement on the appointment of an arbitrator, the political principal must nominate an arbitrator. If the political principal is a Party to the Protocol, the Cabinet member responsible for provincial and local government must be requested to nominate an arbitrator. |
| 4) | The arbitrator must conduct the arbitration in a manner that the arbitrator considers appropriate in order to determine the matter fairly and quickly, but must deal with the substantial merits with a minimum of legal formality. |
| 5) | The arbitrator's determination is final and binding on the Parties. |
| 6) | The Parties to the disagreement/dispute must share the costs of the arbitration equally. |
| 7) | If a Party is not satisfied with the determination of the arbitrator, Chapter 4 of the IGR Act will apply to settle a dispute. |
| 8) | The Arbitration Act, 1965 (Act 42 of 1965) does not apply to settle disputes. |
Despite the intergovernmental requirement that organs of state must strive to avoid judicial proceedings against each other, current legislation may contemplate criminal proceedings against parties that transgress certain legislative requirements. In the event that there is a Protocol between two or more parties where one party has the power to institute criminal or civil action against another party, the Protocol must:
| 1) | Acknowledge such a fact. |
| 2) | Within the framework of existing legislation, specify intergovernmental processes and procedures that will precede the institution of criminal or civil actions. |
| 4.11) | Confidentiality |
(Clause 10 of the Implementation Protocol Template - Annexure A)
Instruction. All Parties must treat information furnished by any other Party or another person for purposes of the execution of the Protocol, as confidential.
| 4.12) | Duration, Execution and Amending the Agreement |
(Clause 11 of the Implementation Protocol Template - Annexure A)
Instruction. The Protocol must specify:
| 1) | The date of its commencement. |
| 2) | The duration of the Protocol. |
| 3) | That it will remain in effect until a date stipulated in the Protocol or terminated through mutual agreement of all the Parties, in writing. |
| 4) | That the Protocol constitutes the whole agreement. |
| 5) | The Protocol may be amended in terms of an Addendum to the Protocol. |
| 6) | An Addendum to the Protocol must be in writing and signed by all the Parties. |
Guidance. It is suggested that the following aspects be considered as part of the wording contained in the Protocol:
| 1) | The Protocol should commence on the date of its signing and will remain in effect until a date stipulated in the Protocol or terminated by all the Parties in writing. |
| 2) | The Protocol constitutes the whole agreement between the Parties relating to the subject matter of the Protocol. |
| 3) | The Parties should agree that there are no other conditions, representations, whether oral or written and whether expressed or implied, applicable to the Protocol, save for those contained in the Protocol. |
| 4) | No amendment, alteration, addition or variation of the Protocol should be of any force or effect unless reduced to writing and signed by the Parties. |
| 4.13) | Domicilium |
(Clause 12 of the Implementation Protocol Template - Annexure A)
Instruction.
| 1) | Parties must state their physical addresses as their domicilia citandi et executandi for all purposes under the Protocol. |
| 2) | Notice of change of address must be given in writing by the Party concerned and delivered by registered mail to the other Party(s). |
| 4.14) | Miscellaneous Provisions |
(Clause 13 of the Implementation Protocol Template - Annexure A)
Instruction. Other provisions or special circumstances that are important to the success of implementing the Protocol that do not fall under one of the other headings already discussed should be included in the miscellaneous clause of the Protocol.
| 4.15) | Legal Certification |
Instruction.
| 1) | The head of legal services of each Party must ensure that the Protocol is consistent with the exercise of statutory powers or the performance of statutory functions of that Party. |
| 2) | The head of legal services, or his/her duly authorised representative, of the Principal Department, after consultation with the heads of legal services of the other Parties must certify in the Protocol that the Protocol is consistent with the exercise of statutory powers or the performance of statutory functions of the Parties to the Protocol. |
| 4.16) | Signatures of the Parties |
Instruction. The Protocol concludes with the signature page. The duly authorised persons representing the Parties must confirm their acceptance of its terms by signing the Protocol.
Signatories must append their signatures at the right-hand corner of each page, except for the signature page where they sign in full.
