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PASS THE AFFIRMATIVE ACTION BILL INTO LAW

By G.D. Zaney, Esq.

 

Recognizing that women’s political participation is a critical component of democratic dialogue and social cohesion, Ghana legislated an Affirmative Action Act―The Representation of the Peoples Act of 1959― which allowed 10 women unopposed to represent the administrative regions of the country in the National Assembly (Parliament) in 1960.


However, since 1998, after the turbulence of military interventions which abrogated the 1960 Affirmative Action law, renewed efforts to promulgate an Affirmative Action Law in Ghana have not yielded positive results.


In 2011, the Ministry of Gender Children and Social Protection (MoGCSP), in collaboration with other stakeholders, embarked on an agenda of developing an Affirmative Action Bill―and the process is still ongoing.


Presently, Ghana has a Draft Affirmative Action Bill which is awaiting passage into law. The final draft of the Bill received cabinet approval in 2016, but was not tabled in Parliament and, therefore, did not reach the consideration stage before the end of the 6th Parliament of the 4th Republic.


Perhaps one may wish to know what an affirmative action is and whether or not there is a justification for an affirmative action mechanism to achieve gender parity.


Affirmative Action is a set of measures targeted at protected groups in order to enable or encourage members of those groups to overcome or minimize disadvantage; or to meet the different needs of the protected group; or to enable or encourage persons in protected groups to participate in an activity.

In sections 158-159 of the Equality Act, 2010 of the United Kingdom, the term Affirmative Action is used in the context of employment to allow selection of a candidate from an "under-represented" group, so long as he or she is no less than equally qualified compared to another potential candidate that is not from the under-represented group.


Thus, Ghana’s Affirmative Action Bill, when passed into Law, will require government to ensure equitable gender representation at all levels of governance and decision-making in Ghana, as well as address other social and economic imbalances.


The Law is, therefore, expected to affect women’s representation in the public service, ministerial positions, independent constitutional bodies, boards of state institutions, the security services and political parties.


Indeed, there is evidence that African countries such as Liberia, Senegal, Rwanda, Uganda and Kenya have used Affirmative Action to enhance progression in women’s participation, with a corresponding positive impact in national development.


Prior to the drafting of Ghana’s Affirmative Action Bill, the Women’s Manifesto for Ghana, a document that gives different groups of women the chance to advocate and lobby from government and its agencies the stated demands for equal allocation and distribution of resources and create new situations to meet the challenges and threats towards gender parity, was launched on September 2, 2004.


In the Women's Manifesto document, the expression, Affirmative Action, which aims to give legal backing to promote inclusion and gender equality in Ghana, appeared eight times.


The Women’s Manifesto had demanded equal female participation in the government of Ghana; that Ghana’s Legislature become 30% female by 2008 and 50% female by 2012; and also stipulated equal female participation in the leadership of political parties.


However, from zero percent at independence in 1957, the representation of women in Parliament only increased to 7.2 percent after the Representation of the Peoples Act of 1959, falling to 2 percent in the 2nd Republic, increasing to 3.6 percent in the Third Republic, increasing to 8 percent in the first Parliament of the 4th Republic and to 13.8 percent in the 2nd Parliament of the 4th Republic.


The long and short of it is that the Women’s Manifesto remains unimplemented while the Draft Affirmative Action Bill is yet to be passed into law since efforts to that effect began in 2011.


It is to be noted that Affirmative Action finds support in both local and international law. It is an obligation on the state to empower women and girls to promote gender equity.


Through various commitments made to International Conventions and Instruments, Ghana, as a country, has acknowledged women’s empowerment as critical to democratic governance and is, therefore, bound to take all appropriate measures to eliminate discrimination against women in the political and public life of the country.


The Fourth World Conference on Women, which took place in Beijing, China in September 1995, produced the Beijing Declaration and Platform for Action― a visionary agenda and the most comprehensive global policy framework and blueprint for action for the empowerment of women and the realization of gender equality and the human rights of women and girls.


The Beijing Declaration and Platform for Action called on states to implement initiatives leading to a minimum threshold of a 30% women’s representation in all decision-making positions at all levels.


Thirty-three years ago, in 1986, Ghana ratified the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and agreed, as a state party, to take all appropriate measures, including legislation and temporary special measures, to promote and achieve gender equality.


According to Article 4 of CEDAW, States are allowed to adopt temporary special measures to accelerate de facto equality for women until the objectives of equality of opportunity and treatment have been achieved. States are also allowed to adopt special measures aimed at protecting maternity―and Affirmative Action is a special measure.

 

Article 7 of CEDAW also states as follows: States shall ensure that women have equal rights with men to vote, hold public office and participate in civil society.


Other global frameworks for development have also recognized the essence of equal political participation and women’s increased role in formal representative politics. Goal Five (5) of the United Nations (UN) Sustainable Development Goals (SDGs) is targeted at achieving gender equality and empowering all women and girls.

 

The Goal notes that while some forms of discrimination against women and girls are diminishing, gender inequality continues to hold women back and deprive them of basic rights and opportunities, for which reason, empowering women requires addressing structural issues such as unfair social norms and attitudes as well as developing progressive legal frameworks that promote equality between women and men. Affirmative Action is one measure through which such structural defects can be addressed.


Article 17 (4) (a) of the 1992 Republican Constitution of Ghana, which justifies Affirmative Action as a tool for addressing imbalances in the Ghanaian society, states: (4) Nothing in this article shall prevent Parliament from enacting laws that are reasonably necessary to provide - (a) for the implementation of policies and programmes aimed at redressing social, economic or educational imbalance in the Ghanaian society;


Equitable representation is a constitutional guarantee. As provided for in Article 35 (5) (b) of the 1992 Republican Constitution of Ghana, it is an obligation on the state to actively promote the integration of the peoples of Ghana and prohibit discrimination and prejudice on the grounds of place of origin, circumstances of birth, ethnic origin, gender or religion, creed or other beliefs.


Article 35 (6) (b) of the 1992 also states: Towards the achievement of the objectives stated in clause (5) of this article, the State shall take appropriate measures to-(a)foster a spirit of loyalty to Ghana that overrides sectional, ethnic and other loyalties; (b) achieve reasonable regional and gender balance in recruitment and appointment to public offices; (c)provide adequate facilities for, and encourage free mobility of people, goods and services throughout Ghana; (d) make democracy a reality by decentralizing the administrative and financial machinery of government to the regions and districts and by affording all possible opportunities to the people to participate in decision-making at every level in national life and in government;


Affirmative Action is, therefore, not an unjust demand from or by women, but an obligation on the state―and the longer the Bill remains unpassed into law, the longer the discrimination against women, the inequalities and social injustices will persist.


The Draft Affirmative Action Bill was reviewed and resubmitted to the current cabinet in January 2018.We urge all stakeholders to join the efforts to have the Bill passed into law without further delay.


The writer is a Free Lance Journalist and a lawyer.

 

 

 

 

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