International Women’s Day 2020 is upon us, and the African Union Gender Champion, Nana Akufo-Addo, is under increasing pressure to bring an Affirmative Action Bill before parliament in his home nation, Ghana. In the first two years of his presidency, Nana Akufo-Addo made commitments to the passage of an Affirmative Action Bill in his State of the Nation Addresses. But presidential and parliamentary elections are scheduled for 7 December 2020, and if an Affirmative Action Bill is not read in parliament very soon, there will not be enough time for it to pass through all the necessary stages to enter the statue books.
Civil society organisations have ramped up their advocacy in order a bid to get the bill to parliament before time runs out. The African Women’s Development Fund is supporting a renewed campaign by ABANTU-for-Development. Demonstrations have taken place in the capital city, Accra, and in regional capitals such as Tamale.
Meanwhile, Kate Skinner has been talking to the Affirmative Action Bill Coalition convenor, Sheila Minkah-Premo, to find out more about legal basis for Affirmative Action and the progress of the draft legislation.
Q. Sheila, can you tell me a bit about yourself, and how you came to be involved in Affirmative Action for gender equality in Ghana?
A: I did my first degree in law at the University of Ghana, and I have been in legal practice in Ghana for about 30 years. But in addition to practice, I am also heavily involved in legal research and advocacy.
I did my LL.M at Georgetown University Law Centre, as part of the Women’s Law and Public Policy Program’s Leadership and Advocacy for Women in Africa (LAWA) component. Through that, I became part of a LAWA alumnae network whose members are in many parts of Africa. What LAWA-Ghana does is to scan the Ghanaian environment for areas where legislation is needed, or where existing laws to protect women are non-existent or inadequate, and then we step in with research, advocacy and drafting of memoranda calling for laws or policies to be enacted.
Since about the year 2000, LAWA has identified the relatively low number of women in public life in Ghana as a problem, and we have worked with other groups to research on this issue and advocate for change. So through that, I became convinced of the need for an Affirmative Action Law to achieve the equality of men and women when it comes to their participation in public life in Ghana.
Q. Some critics of Affirmative Action argue that it is not tenable to pursue equality by adopting measures that discriminate in favour of women. What do you think?
There is a constitutional and legal basis for positive, specific, temporary measures to address the under-representation of women in public life in Ghana.
First, let’s be clear that women are indeed under-represented in so many areas of public life, and this is a key part of the broader problem of mainstreaming gender throughout public policy, and tackling gender inequalities in the wider society. There is a large volume of research attesting to this under-representation, and consensus about the need to address it. This consensus was strengthened in 2004 through the Women’s Manifesto for Ghana which is hosted by ABANTU-for-Development and supported by a broad coalition of women’s groups.
Secondly, the 1992 constitution of Ghana allows for Affirmative Action. Article 17 deals with equality and freedom from discrimination. Sub-article 1 stipulates the equality of all persons before the law. Sub-article 2 prohibits discrimination on grounds of gender (and certain other specified characteristics). Sub-article 3 defines discrimination. And sub-article 4 makes clear that nothing in article 17 should 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”.
Thirdly, Ghana has an international obligation to tackle the under-representation of women in public life. Since 1980, Ghana has been a signatory to the international Convention on the Elimination of All Forms of Discrimination Against Women, also known as the CEDAW. Article 4, clause 1, of the CEDAW clarifies that temporary special measures to accelerate the de facto equality of men and women should not be considered as discrimination.
Ghana is also a signatory to the African Charter on Human and People’s Rights. Article 9 of the 2003 Maputo Protocol to this Charter calls on state parties to take specific positive action to ensure that “women are represented equally at all levels with men in all electoral processes” and are equal partners with men in the development of state policies and programmes.
Ghana is also a member-state of the United Nations, and we are thus committed to Sustainable Development Goal 5 on Gender Equality. So as a country, we are obliged to take steps to rectify the under-representation of women in the interests of achieving gender equality.
Q. Ghana has had an Affirmative Action directive since 1998, setting a target quota of women on public bodies. Why does it need an Affirmative Action Law, instead of continuing through policy?
Well, although we have had a policy, we have not met targets on increased representation of women in public life. Different governments may adopt different approaches to a policy, and pursue it with differing levels of vigour. The representation of women in the district assemblies is a case where we have had a policy, but the results are still quite limited.
A law is binding. It does not change because there is an election. And when there is a law, civil society can call for enforcement. Looking at it comparatively, around the world, gains in gender equality have often come about through legislation.
Q. So what exactly does the current draft Affirmative Action Bill cover? Is it political representation in particular, or other institutions as well?
The draft bill, as it stood in 2018, is very comprehensive. It covers the private sector as well as the public sector, but we had to identify mechanisms that would be lawful and workable for many different types of institutions and organisations.
For example, in the 2018 draft bill, private sector employers would be compelled to have a gender equality policy, and to submit an annual report to the Gender Equality Committee. Trade unions would be required to ensure that gender equality is reflected in their constitutions and on their executive boards.
The draft bill also covers appointive positions in the public service generally. This would include positions such as district chief executive, member of the Council of State, cabinet minister, member of a governing body of a state institution, or member of an independent constitutional body. It also covers elective offices such as members of parliament.
So identifying the actual mechanisms that we could use to achieve gender parity, either immediately or progressively, in all of those different bodies, was a complicated task. And we also had to identify suitable means of monitoring and enforcing. So that required a lot of research and consultation, involving different experts and stakeholders, going all the way back to the year 2000.
Q. Were you able to draw on the experience of other countries to help you through these challenges?
We did look at the issues comparatively. But when we look at countries in Africa that have high numbers of women in their parliaments, we see that many of them are proportional representation systems, and they have used quotas to achieve their goals. Ghana has a single-member constituency, first-past-the-post electoral system for parliament. So it is difficult to apply in Ghana exactly what has been done in a country like Rwanda or Uganda.
Our Constitutional Review Commission  also made clear that our political parties are voluntary associations. There is no public funding for political parties in Ghana. So finding a mechanism to ensure equal numbers of men and women being nominated to stand for parliament, and then actually being elected to parliament, is not straightforward.
The draft bill, as it stood in 2018, obliged political parties to “support the candidature of women” and to “ensure that a woman has equal opportunity to serve as a party official and be nominated as a candidate for election”. The Electoral Commission would be tasked with ensuring that a political party progressively achieved gender parity in terms of its own internal positions and its nomination of candidates for election.
Parties would have to submit an annual gender equality report to the Electoral Commission and this would be published in the Gazette. Parties that did not comply with the provisions would not receive support-in-kind from the Electoral Commission or the normal courtesies of state protocol.
Q. You have made a strong case for an Affirmative Action Law, and you have been looking at these issues since 2000. There is a draft Affirmative Action Bill, but it hasn’t yet been debated in parliament. Why is it taking so long?
A. Well, a lot of research and consultation has been done, going back to the year 2000. Then, [following the Constitutional Review Commission] in 2011, the Minister of Women and Children’s Affairs, Juliana Azumah-Mensah, called a team to come up with a collective set of proposals. We were a twenty-one member team, including civil society organisations like ABANTU, NETRIGHT and LAWA, and representatives from the political parties. So we started with a literature review, including Professor Dzodzi Tsikata’s report among other studies. We looked at why existing policies were not sufficient, and set out a justification for an Affirmative Action Bill. But in order to propose legislation to parliament, government always requires consultations to be held.
At this stage, we were not ready to consult on an actual draft bill. We set up the key issues, the main talking points, and then we divided ourselves, and went out to the regions of Ghana to speak on local radios and hold forums. We aimed to include a wide range of people, including the traditional authorities, the local community-based organisations, and others. We explained article 17 of the constitution, which allows for parliament to come up with measures to redress imbalances. We sought their views on what an Affirmative Action Law should look like.
Then we brought back all the different views that had been aired, and myself, Joana Opare and Hilary Gbedemah worked on a summary of key findings. All of this was done with support and funding from the United Nations Development Programme. Then we hired a professional drafter, to translate those findings into specific proposals, and those too went out to a nationwide consultation to find out people’s views and to get feedback on how to improve the draft bill. So by about 2012 to 2013, we had a draft in a fairly good shape.
Then there was a changeover at the ministry. The new Minster for Gender, Children and Social Protection was Nana Oye Lithur. She called a smaller team together, and she wanted us to help her to take this bill to the cabinet, so it could get their approval and be recommended to be laid in parliament. So the cabinet referred us to the sub-committee on governance. We did some lobbying and supported the Minister to take the proposals successfully to the cabinet sub-committee. We helped to answer their questions. And the bill was actually gazetted and sent to parliament, but that was in 2016. It was too late [to complete all the stages of parliamentary processes before the December 2016 elections]. By October, the parliamentarians are out campaigning!
The elections brought a change of government. So the new minister started in January 2017 – that was Otiko Afisa Djaba. In April 2017 she also wanted to consult on the bill, and one of the contentious issues at that time was the kind of body that should be tasked to do the monitoring.
Towards the end of 2017, a new team was called, this time with Professor Akua Kuenyehia chairing, with a view to getting a draft bill ready to go back to cabinet for approval. When an initial draft was sent the president asked about the particular targets the bill was aiming to reach by which dates, and alignment to the SDG. Given that the bill is so comprehensive, and it tackles the difficult issue of gender parity in several areas including within political parties, he wanted to see particular details in schedules attached to the bill.
Q. So how do things stand now?
A. Under the current minister, Cynthia Mamle Morrison, there has been another push to get the bill ready for parliament and clarify particular details. I am convening a group of civil society organisations that have come together as an Affirmative Action Bill Coalition, to advocate for the passage of this bill before the elections in December 2020.
This Q and A is based on an interview on 5 June 2019 and subsequent updates in December 2019 and February 2020.
Equality of outcome isn’t a desirable goal and it is impossible to achieve. No where in this world do we see equal presentation of people in the World and the fact that people are underrepresented in certain areas doesn’t necessarily mean some form of discrimination has gone on.
I’ll also like to say that two rights don’t make and you won’t be doing any good for both males and females with Affirmative Action as has been shown by Professor Thomas Sowell. I’ll like that people who pass such bills look at research surrounding that law and stop basing the reason for choosing a law on just rhetoric.
To conclude the Scandinavian countries are those that have been able to achieve the highest form of egalitarianism; and in those societies are where the biggest disparities in males and female lie. More males are in Engineering and more females are in Medicine. Scientists have realized that the more egalitarian societies become the more disparities will exist between males and females in terms of occupation and character and many more.
What I mean to say is equality of outcome isn’t desirable at all and very unrealistic and we should chase after equality of opportunity and not outcome.