|Affirmative Action ―The Meaning And Legal Justification|
|Friday, 20 July 2012 11:59|
By G.D. Zaney
The preamble of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) states that ‘...that the full and complete development of a country, the welfare of the world and the course of peace require the maximum participation of women on equal terms with men in all fields’.
CEDAW did not only call for the maximum participation of women on equal terms with their men counterparts but also enjoined in Article 7, state parties to the Convention to take all appropriate measures to eliminate discrimination against women in political and public life.
Thus sub-paragraphs (a),(b) and (c) of Article 7 deal with ensuring women’s eligibility for election to public bodies on the same terms with men, holding public office at all levels of government, participating in the formulation of government policy and participating in non-governmental organizations and associations concerned with the public and political life of the country.
And, according to the Beijing Platform for Action, 1990, the right to equal representation reached beyond a demand for justice and democracy.
These not withstanding, the fact remains that the number of women in government remains woefully insignificant with eight (8) out of thirty-five (35) ministers, representing 23 per cent and six (6) out of thirty-nine (39) deputy ministers, representing 16 per cent, while out of the two hundred and thirty (230) Members of Parliament, only 19, representing 8.3 per cent, are women.
Trends in Local Government Elections have also shown that women representatives in decision-making bodies in Ghana are increasing at less than one per cent per annum.
The low participation and representation of women in government and public life has been described by the United Nations Development Fund for Women UNIFEM as a trend which is unlikely to correct itself or change for the better. This, therefore, calls for well-designed interventions such as Affirmative Action which is defined as concrete steps that are taken not only to eliminate discrimination – whether in employment, education or contracting – but also to attempt to redress the effects of past discrimination.
Otherwise put, Affirmative Action, according to Prof. Dzodzi Tsikata, is a set of measures adopted by governments and private institutions such as political parties, educational establishments, corporations and companies to address a history of systemic discrimination and exclusion of particular social groups in the interest of certain development goals.
Being a demand of democracy, women’s participation in political decision making becomes imperative and Affirmative Action is justified by law as a tool to achieve gender-parity in political participation.
One method of Affirmative Action is to utilize laws and regulations for preferential treatment, privileges and set aside reserved slots to achieve gender-parity.
Paragraph six (6), of the Plan of Action for Gender Equality 2005 -2015 has asserted the importance of women’s full participation in democracy and peace processes as critical to the achievement of systematic development while the African Charter on Human and People’s Rights in Article 18 calls for the elimination of every discrimination against women and the protection of the rights of women.
Then Article 4 of the African Union Consultative Act and the New Partnership for Africa’s Development (NEPAD) have also agreed that gender equality and the role of women in social and economic development ought to be promoted.
Article 9 (3) of the African Charter also enjoins state parties to take specific positive actions to promote participative governance and the equal participation of women in the political life of their countries through Affirmative Action and to enable national legislation and other measures to ensure that women participate, without any discrimination, in all elections and are represented equally at all levels with men in all their electoral processes.
Article 17 (1) of the 1992 Constitution of Ghana also provides that all persons are equal before the law while Article 17(8) says that a person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, economic status.
It’s also provided in Article 17 (4) (9) that “Nothing in this article, shall prevent Parliament from enacting laws that are reasonably necessary to provide for the implementation of policies and programmes aimed at redressing social, economic or educational imbalance in the Ghanaian society”.
Again, by the provisions of Article 40(a) of the 1992 Constitution, Ghana is obliged to comply with international law including Plans of Action from international conferences, international treatises and conventions such as the UNDHR, CEDAW and the Beijing Platform for Action, among others
Currently, an Affirmative Action Project (AAP) is also being implemented by ABANTU for Development – a gender and policy advocacy non-governmental organization – and the Women’s Manifesto Coalition.
The 36-month AAP seeks to address the inequalities in representation and effective participation of women in politics and decision-making.
ABANTU, in collaboration with the Women’s Manifesto Coalition, has been holding validation workshops on a draft paper titled, “Enhancing women’s representation in governance process through Affirmative Action”.
The aim of these workshops is to finalise the draft document for incorporation into an Affirmative Action Law in Ghana. Indeed, most countries, available evidence indicates, have achieved a 30 -40 per cent representation of women in governance through quotas which is one of the strategies used to promote Affirmative Action.
Affirmative Action originated from the United States of America, when President John F. Kennedy introduced it in 1961 by an Executive Order (EO 10925) initially to address discrimination.
Subsequently, other Executive Orders 11246 of 1965 and 11373 were made by President Lyndon B. Johnson which established Affirmative Action goals and tasked the Labour Department with monitoring and enforcement.
In Ghana, Affirmative Action has been used since independence to address gender and regional imbalances in education, health, work and political representation.
Affirmative Action as a national policy received a boost when in 1998, cabinet issued guidelines ‘for the systematic and sustained implementation of the various aspect of Affirmative Action towards equality of rights and opportunities for women in Ghana’— based upon proposals submitted by the National Council on Women and Development.
However, according to the draft Affirmative Action paper produced by ABANTU and the WMC, the use of Affirmative Action in addressing participation and representation has neither been consistent nor effective.
The situation, therefore, justifies the efforts at passing a law on Affirmative Action – more importantly when Ghana is obliged by international legal obligations as well as its national law to have such a law passed.
The writer is an officer of the Information Services Department.