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Affirmative Action as a Means of Social Inclusion: Myths and Realities

Aruna Rao and David Kelleher Gender at Work

March 2005

Background: The Gender and Social Exclusion Assessment (GSEA)’s framework for social transformation posits two intersecting processes: social inclusion and empowerment.1 Social inclusion is understood as a top down process to change the opportunity structure within which people can act and changing incentives and the capacity of institutions so that they respond equitably to citizens’ demands. The complementary process of empowerment has to do with enhancing the assets and capabilities of people to earn their livelihoods and to organize themselves to demand broader institutional change. Transformational change is seen as an outcome of the interaction between marginalized groups and the dominant institutional context. In Nepal, the GSEA asserts that “gender, caste and ethnicity are three inter-locking institutions or ‘rules of the game’ that determine individual and group access to assets, capabilities and voice based on socially defined identity.”2 As in many places but perhaps more so than most, the playing field is not level and the rules of the game are not fair but they are held in place by power and privilege embedded in dynamics of relationships, ideas, and organizations.3 Inserted into this landscape characterized by social, economic and psychological discrimination and disenfranchisement, affirmative action is posited as a means of contributing to social inclusion. This paper reviews international affirmative action theory and practice, analyzes the affirmative action debates in the Nepalese context, and proposes possible directions for action.

1 Lynn Bennett, Nepal Gender and Social Exclusion Assessment, January 2005 2 Ibid., Chapter 2: A Framework for Social Transformation 3 This conceptualization draws on North’s definition of institutions (1990) and Rao and Walton’s definitions of culture (2004)

Without institutions that make government accountable to its citizens, the idea of efficient, equitable, sustained and benevolent (pro-poor) public action …is a myth

Lynn Bennett, Nepal Gender and Social Exclusion Assessment, 2005

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Affirmative action is generally perceived as steps taken to correct historical disadvantage and unfair discrimination by enabling access to full opportunity and benefits. The term ‘affirmative action’ first emerged in an executive order signed by President John F. Kennedy in 1961. That order required government contractors not to discriminate on the basis of race, creed, color or national origin in employment. But it was the Civil Rights Act of 1964 that inserted affirmative action into political and administrative language of the country. In the United States, affirmative action is modeled on individual rights or the right to equal opportunity. It means equal opportunity for all in education, jobs, promotion, business, and governmental contracts. Candidates chosen under affirmative action have to meet the criteria laid down for the job. These policies applied to educational institutions and recruitment in both public and private sectors.4 However, the idea of compensatory measures to correct past wrongs or institutionalized discrimination predates the civil rights movement in the United States.5 The Indian Constitution which came into force in January 1950, for example, guarantees equality to all citizens, which goes beyond equality of opportunity as in the case of affirmative action in the US, to the guarantee of

reservations or quotas in education, jobs, and to legislative representation. The Indian Constituent Assembly decided that caste was the defining criterion for reservations. The array of preferential measures beyond reservations to advance the interests of those considered “weaker” sections of the

population in India extend from the allotment of petrol stations, scholarships and the construction of hostels for students to land allotments, health care, legal aid and poverty alleviation schemes. 6 Thus, the Supreme Court of India has expanded the meaning of reservations from ‘equality of opportunity’ which

4 For a full discussion of affirmative action in the US and reservations in India see Neera Chandoke, “Locating Affirmative Action” mimeo, 2004. 5 According to Gopal Guru reservations go back more than a hundred years in India and political reservations were used by the British in pre-independence for Muslims (“The reservations policy in India: An Overview with reference to dalits”, mimeo) 6 Sudhir Krishnaswamy, “Diversity and Affirmative Action in the Era of Privatisation: The Bangalore Initiative”, mimeo, Bangalore, India Sept 20, 2003

Article 14 of the Indian constitution ensures “equality before law or the equal protection of law within the territory of India”. Article 15 guarantees reservation in admission to educational institutions. Article 16 (4) guarantees reservation in service read as follows:- “Nothing in this article shall prevent the state from making any provision for the reservation of appointment or posts in favor of any backward class of citizens which , in the opinion of the state, is not adequately represented in the service under the state. Moreover, Article 17 of the Constitution abolishes “Untouchability"

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considers disadvantage to ‘equality of result’ which locks resources in place for disadvantaged groups. A parallel can be found in the distinction increasingly drawn by human rights lawyers between formal and substantive equality. Formal equality assumes that people are the same and that they start from the same point and so treats people equally. In contrast, substantive equality recognizes that treating everyone the same without recognizing inequalities ends up perpetuating inequality. So, substantive equality approaches focus on remedying past discrimination. 7

In direct contrast to the experience of the United States and India, Malaysia employs affirmative action measures to cement the privileges of the majority to counter the economic domination of the minority Chinese and Indians. Reverting form an earlier secular constitution, the 1951 constitution instituted Islam as the national religion and Malay as the national language and introduced special rights for the majority including employment quotas in public services, scholarships and business permits, and in landownership. These majority rights were further consolidated in 1971 through a special rights package for the Bhumiputras or sons of the soil and Chinese and Indians were expected to assimilate into Malay culture and their citizenship rights are based on the “consent” of the dominant group. 8

7 For greater detail see, Forum for Women, Law and Development (FWLD), Special Measures for Women and Their Impact, Khatmandu, April 2003 8 Chandoke, op. cit., p.15

While formal sex equality judges the form of a rule, requiring that it treat women and men on the same terms without special barriers or favors on account of their sex, substantive equality looks to a rule's results or effects. Formal rule equality often does not produce equal results because of significant differences in the characteristics and circumstances of women and men. Advocates of substantive equality demand that rules take account of these differences to avoid gender-related outcomes that are considered unfair. Determining what differences should be taken into account and in what ways -- in short, what is fair -- is not always an easy matter. Thus, substantive equality is not one theory, but several theories, reflecting multiple types and sources of difference and a number of alternative or overlapping substantive ideals. One version of substantive equality attempts to remedy the effects of past discrimination. For example, women historically have been excluded either by law or by gender role norms from having certain jobs excluded wages comparable to those earned by men. "Affirmative action" designed to boost women into occupational fields dominated historically by men and "comparable worth" schemes designed to restructure wage scales to eliminate the effects of past patterns of gender-based job segregation are examples of remedial measures designed to reverse the effects of this past discrimination.

Katharine T. Bartlett and Angela Harris Gender and Law: Theory, Doctrine, Commentary 261-262 (1998).

Another type of substantive equality focuses on biological differences

between women and men. Only women become pregnant, for example, and

pregnancy may disadvantage a woman worker with respect to job

opportunities, seniority, and job security. Maternity leave provisions, child

care assistance, and seniority guarantees are examples of measures within

a substantive equality framework that are designed to neutralize this

disadvantage. More radical substantive equality approaches look beyond

biological difference to social expectations and practices such as those

that steer women into lower-paying occupational categories, encourage

their economic dependence on men, and lead them to be the primary

caretakers of their children. These more radical approaches attempt to

reverse these expectations and practices, or eliminate their costs.

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There are many terms used to refer to remedial measures to address economic and social disadvantage --affirmative action, reservations, quotas etc. – which are often used synonymously, and so it would help to decipher their differences9: Affirmative action “This is an enabling concept which suggests

the conditions necessary to bring the person from disadvantaged groups to the minimum level of competition” or “where other things become equal”.

Reservations or reserved seats Setting aside a percentage of seats for certain identified disadvantaged groups. For example, reserved seats for women in a legislative assembly which can be filled by competitive election or by appointment

Quotas Requiring that a minimum number of persons selected by a system be from designated disadvantaged groups. For example, the Argentine ‘Ley de Cupos’ states that each party list should contain a minimum of 30 percent women.

Compensatory discrimination “This is defined in terms of reference to the past whereby historical wrongs such as by the whites in the case of the United States and upper castes in India is sought to be compensated in the present.” “Compensatory discrimination has reparations as its defining condition”.

The Enabling Environment: One of the enduring myths about affirmative action is that it is a one stop solution whereas, in fact, thoughtful analysts point to the limited ability of remedial measures such as affirmative action, reservations or quotas alone to trigger significant social change.

9 These definitions are drawn from Gopal Guru, op. cit, and Mala Htun, “Using Gender Quotas to Increase Representation in Politics: Experiences and Challenges”, Paper prepared for the Millennium Project Task Force on Education and Gender Equality, April 2003.

The notion of affirmative action should not serve to drive the idea that economic and social marginality can be redressed by other remedial measures that spring from our political imaginations. Nor are affirmative action policies a substitute for the entire package of measures that address social and economic marginalization. Nor should the indiscriminate use of affirmative action policies come to serve as a soft option either for the state or for groups that struggle for justice in society. More importantly, wide ranging remedial measures such as redistribution of land ownership, which addresses the source rather than the symptoms of structural domination, may actually prove more effective in the long run to guide a society into the path of justice. To put it strongly: affirmative action policies should be taken seriously and employed sparingly.

Neera Chandhoke, Locating Affirmative Action, 2004

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While affirmative action policies to be effective must be grounded in constitutional guarantees of equality, they must also be complemented by a “confluence of factors, all of which cannot be achieved through a single legislation or through a series of legislations and executive orders”10. Gail Omvedt states for example, that “compensatory discrimination programs”, direct political power, cultural communities and economic groups converge to create the pressures necessary to achieve the goals of affirmative action initiatives.11 In keeping with this strategy, the Bhopal Declaration of 2002 which charts a new course for Dalits for the 21st century refers to several issues including access to land, the prevention of atrocities and the democratization of capital to ensure the social progress of Dalit and Scheduled Caste and Scheduled Tribe communities. Similarly, the Kathmandu Dalit Declaration of 2004 inter alia calls on governments in caste-affected countries to ensure that “all necessary constitutional, legislative and administrative measures, including appropriate forms of affirmative action and public education programs, are in place to prevent, prohibit and redress caste-based discrimination.” These include but are not limited to access to land, education, health, housing, employment and common resources, affirmative action to ensure Dalit representation in the civil service, police and judiciary, measures to end trafficking and abuse of Dalit women and girls, and reform of major institutions such as the political and criminal justice systems.12 In the political arena, the importance of other enabling factors for reservations or quotas also holds true. Mala Htun’s findings from a global study on the effect of quotas on increasing women’s political representation points out that norms and meanings codified in institutions have a lot to offer an analysis of women’s leadership. “Social democratic states are more conducive to women’s leadership, since countries where women’s representation is highest are countries with large welfare states such as in Nordic Europe and communist Cuba.” Moreover, “states that acknowledge gender difference as a constituent component of the political order, while upholding democratic equal rights, are more conducive to women’s leadership than liberal democracies that treat citizens the same regardless of sex.”13

10 Krishnaswamy, op. cit. 11 Gail Omvedt, Reservation in the Private Sector, http://www.ambedkar.org/gasil/purposeofhtml. 12 Kathmandu Dalit Declaration, International Consultation on Caste-based Discrimination,

Establishing Dalit Rights in the Contemporary World; the Role of Governments, the United Nations and the Private Sector; November 29 – December 1 2004; Kathmandu, Nepal 13 Mala Htun, op. cit., pp 21-22

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Another aspect of this myth concerns not how well it will work but what it will produce. Does women’s participation in politics, for example, change policies and politics? The use of quotas has become quite widespread – about 22 countries have statutory gender quotas; another 11 countries reserve seats in their national legislatures and/or local councils for women; and approximately 33 countries have political parties that apply gender quotas on a voluntary basis.14 Those looking for failures will find them because while “women’s presence in power serves as an indicator of a society’s fairness and has the potential to trigger more fundamental changes in gender relations”, such changes are not guaranteed. As Htun points out “…those who expect that women’s greater presence will produce major changes in governance, lead to greater human security, and reduce inequality may wait a long time.” This is both because women in power do not necessarily represent a particular or necessarily more altruistic interest but also because the ‘add women and stir’ approach does not challenge fundamental biases in power relations and system practices that favor the status quo. As we have noted in the discussion of the women’s, dalits and janajati wings of Nepal’s major political parties, organizational cultures that socialize incumbents to behave in certain ways (in this case to follow established age, caste and gender hierarchies) will tend to drown out different voices and discordant values. Indeed such organizational cultures are likely to “punish” behavior that deviates from their values by ignoring or expelling the deviant individual. The multiple aspects of social inclusion processes needed for change are illustrated in the analysis and interventions taking place in the South African public service. Under apartheid, the all white bureaucracy serviced the state by keeping resources in the hand of the minority white population. After 1994, with the new government in place under President Mandela, radical transformation was required in both the normative frameworks (constitution, laws) and institutional mechanisms to address the aspirations and needs of the new South Africa and its majority black population. To make state mechanisms serve rather than oppress the people meant changing their make-up and orientation. Affirmative action in this context was aimed at bringing into the bureaucracy hitherto excluded groups and then working with this new public service in ways that better fit the changed priorities. (For a more detailed description of the South African approach to affirmative action see Annex A)

14 Htun, op. cit., p2

Where the differences have been created through resource allocation decisions that were interventionist by nature and tantamount to social engineering, strong intervention on a political level will be required to correct such diversity issues and their consequences. Geraldine Fraser-Moleketi, Minister of Public Service Administration, Republic of South Africa, 2001

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After 10 years of a post-apartheid government, many gains have been made but the road ahead is long and rocky. A 1998 survey found that white males (approximately 6% of the population) constituted 89% of senior South African management. Even after 4 years of affirmative action white people comprised 13% of the “economically active” yet they made up 76% of the most senior positions in business15. By 2005, while the Public Service Commission reports that whites made up only 13% of the bureaucracy and that the percentages of women to men were almost equal, at management levels, blacks and particular black females lag far behind. Blacks comprised only 32% of all legislators, 18% of all top management positions and 22 % of all senior management positions in the labor force.16 Changing the face of the bureaucracy is one thing; making it act in service of the majority poor black population is quite another. While diversity in state mechanisms is seen as a necessary condition it is not sufficient for addressing the needs of the population. As in India and other places, the experience of South Africa teaches us that there are no quick one-stop means of overcoming historical discrimination which has of necessity been bolstered by powerful meaning systems that delve deep into people’s value systems and self identities. Affirmative Action and Bureaucratic Change: Affirmative action is highly contentious because it is essentially about shifting power relations. Unlike the South African case however, most affirmative action and diversity efforts in public systems and private companies sidestep political redistribution by narrowing the focus to managerial solutions within the context of the existing “rules of the game” under which the bureaucracy has habitually functioned. Even the space for such “marginal” change is highly contested because many incumbents see affirmative action as diluting the quality and standards of bureaucracy as well as unfairly limiting their own opportunities. 15 South African Department of Labor, Commission for Employment Equity, Annual Report, 2002-03. 16 Ibid., p. viii

The raison d’etre of the old South African public service was to deny access of resources to the majority of the population. The bureaucracy constituted the essence of the Apartheid state machinery. There is no reason to believe that merely exposing old style, white male public servants to sensitizing interventions and more conversation and dialogue between themselves would have sufficiently changed them. Such limited managerial interventions would not have been sufficiently strong to bring them around to become a machinery that equally enthusiastically executes policy in the interest of a non-racial, non-sexist, democratic South Africa, serving our very diverse population in commendable and responsive ways. …One had to break the monopoly that white males had on senior public service positions. By setting very clear minimal targets that moved closer to be reflecting the overall population profile, one had to introduce diversity in the first place, before you could start tapping into the advantages that a diverse public service has to offer. Geraldine Fraser-Moleketi, Minister of Public Service Administration, Republic of

South Africa, 2001

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Much of diversity management as a field and affirmative action efforts within that field, focus on the individual. The wide range of individual differences is celebrated with the intention of creating a diverse workforce and working across differences of culture, religion, experiences and work styles to accomplish organizational goals. The premise here is that for both the private and public sector a diverse workforce is better able to serve a diverse clientele. For the private sector diversity is also seen to improve the firm’s ability to respond to an increasingly volatile business climate and in the public sector, a civil service that reflects the gender, ethnic, racial, linguistic and other salient social identities of the country’s citizens becomes an important foundation for state legitimacy. This has spawned a subfield of theory and practice in public administration and management which has been utilized in many public systems contexts. 17 In contrast to the management approach to diversity, some public systems like the South African Public Service and Administration specifically chose political intervention first, to address issues of racial diversity18. This included the formulation of a series of public policies on the transformation of the public service19 including the setting of targets for hiring, and changing its ethos to a client orientation backed by a progressive constitution which establishes a human rights and democratic framework within which to proceed. Representation and the Merit Principle: As defined by Sheela Rai, “the meritocratic ideal is that positions in society should be based on the abilities and achievements of the individual rather than on characteristics such as family background, race, religion or wealth... According to this notion an individual’s work should be assessed by scientific objective criteria because an individual’s work is the outcome of his talent and not of his belonging to any group.”20 This view is attacked both on the grounds that existing standards may not be valid because they have been set by those currently in power and that a truly “objective standard” may not be possible. Critics point out that merit is often defined by the dominant group and therefore, the merit tests may not be the real indicators of a person’s ability to perform well. Critical race theorists

17 See for example the papers presented at the United Nations Expert Group Meeting on Managing Diversity in the Civil Service (UN Headquarters, New York, 3-4 May 2001); Working with Diversity: A Focus on Global Organizations, Center for Gender in Organizations, November 2000; World Bank’s Civil service Reform website on Practitioner Literature (www.practitioner-lit.com); and papers on affirmative action and civil service reform produced for the Commonwealth Association for Public Admin and Management, Toronto, Canada. 18 See “Tackling Diversity”. Keynote Address of the Honorable Geraldine Fraser-Moleketi, Minister of Public Service and Administration, Republic of South Africa at the UN Expert Group Meeting on Managing Diversity in the Civil Service, May 2001 19 White Paper on the Transformation of the Public Service, 1995; White Paper on Transforming Public Service Delivery; White Paper on Affirmative Action in the Public Service; and White Paper on Human Resource Development, 1997. 20 Sheela Rai, “Social and Conceptual Background to the Policy of Reservation”, Economic and Political Weekly, October 19, 2002

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in the United States contend that current concepts of merit are invalid even as applied to whites.21 According to Derrick Bell for example, the standards used to evaluate employment and educational qualifications “are often irrelevant or of little importance and therefore serve mainly as barriers to most minorities and a great many whites as well”. In India, supporters of reservation argue that you cannot say that backward classes lack merit or that efficiency can be measured in terms of marks a person gets in tests and exams. Recently some have even argued that to the extent that standards have been diluted through appointments made on the basis of kinship and other ties (in other words, corruption) rather than appointments based on objective merit criteria, it is a farce to say that reservations in any way destroy merit in India. They point out that there are so many hidden reservations in appointments that it is hypocritical to oppose the official reservation policy.22 Affirmative action by definition changes the mix of people within any organizational setting. It is premised on the merit principle but is also driven by the idea that a representative bureaucracy or workforce is a better workforce. There is a long- standing and fundamental tug of war between the homogenizing impact and practices of the state – unity in diversity- versus groups asserting themselves as distinct cultural and political entities.23 Western countries like Canada which grew monoculturalism as a concept enshrined in the idea of a neutral bureaucracy have increasingly had to work with diversity in response to changing demographics particularly in the latter part of the 20th century. For the Canadian federal government, the concept of representative bureaucracy has become a means to manage diversity.24 But Canada’s tug of war with diversity started long before this. Along with native peoples, French and English settlers are seen to be two of the three founding races of Canada. In the British North America Act (The act of the British Parliament which gave birth to Canada), the French language was guaranteed a place in parliament and in federal courts. But government services were largely unavailable in French and English was the mandatory language of the civil service. By 1960, illiteracy among Francophones was double the national average and their incomes were substantially lower than non-French citizens. Wanting to be masters in their own house, the French-speaking people of Quebec and their leaders led a quiet revolution to redress their second class status in Canada. As a result, in 1963 a Royal Commission was launched on bilingualism and biculturalism, which had far-reaching effects. Its

21 Duncan Kennedy, ‘A Cultural Pluralist Case for Affirmative Action in Legal Academia’, 1990, Duke Law Journal at 710 as cited in Rai, ibid. 22 Anirudh Prasad, Reservational Justice to Other Backward Classes (Deep and Deep

Publications, 1997), 112 cited in Rai, ibid. 23 Yakin Eturk, The Challenge of Governance: Ensuring the Human Rights of Women and the Respect for Cultural Diversity, United Nations, May 2001 24 O.P. Dwivedi, The Challenge of Cultural Diversity for Good Governance, United Nations, May 2001

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work led to a national consensus on bilingualism and the passage of the Official Languages Act of 1969. The key success factors were:

The political mobilization of Francophones in Quebec and to a lesser extent in other provinces

The leadership of a new generation of French-Canadian politicians who saw that the integration of the country was at stake and who translated political will into legislation

The continuing support of many Canadian people who see bilingualism as a defining aspect of being Canadian.

The Official Languages Act focused on three areas:

Language of service—French speaking citizens would be able to access services in their own language wherever a sufficient population of French speakers was concentrated

Equitable participation—French speaking citizens were entitled to equitable opportunities for career advancement in the civil service

Language of work—Francophones had the right to work in their own language in certain regions.

The key strategy was the naming of certain posts to be bilingual. Because Francophones were more likely to be bilingual, this meant a sudden advantage to them in access to jobs at all levels. The “disadvantage” to the primarily unilingual Anglophone civil servants was balanced by a commitment to language training for unilingual civil servants who were otherwise qualified for these posts. What was agreed was that if an applicant was qualified in all ways other than linguistically for a post, he or she could be hired and the government would provide language training. This training, often up to a year in length of full time study was paid for by the government. Fifty years after the passage of the Official Languages Act, 75% of Canadians support bilingualism even though only 17% of the population can speak both languages. Since 1960, the number of bilingual Canadians has doubled. Government services are available in both languages all over Canada. In the network of 13,000 government service points, 4300 are designated as bilingual. The percentage of French speaking employees in the civil service and crown corporations are roughly equal to their proportion of the population. Twenty-seven percent of the civil service is francophone; the management group is 25% Francophone and bilingualism is required for senior management posts. It is important to add however, that even though there has been considerable success, various aspects of bilingualism policy and practice remain contentious and bilingualism will always be a fault line in Canadian society.

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The idea behind representative bureaucracy is that government should form a microcosm of the society as a whole and that representatives from different cultural groups can provide critical and often diverse perspectives to public policy. This view holds that if a bureaucracy is broadly representative of the public it serves, then it is more likely to make decisions that benefit that public.25 The existing research distinguishes between passive and active representation. Passive representation refers to how representative the bureaucracy is of a larger population in terms of demographic characteristics26. In contrast, active representation is defined as bureaucrats advocating for their constituents’ interests and making policy decisions that systematically benefit one group or another among the agency’s clientele. Critics of representative bureaucracy decry such moves as parochial, believing that it leads to a dilution of quality, promotion of less qualified minorities which in turn lead to lower public service accountability. In a traditional Western public administration emerging out of scientific management principles, merit (including an individual’s educational qualifications and training as well as their ability to develop new skills as required) is a foundation principle to control patronage and political interference and is meant to ensure that public servants would not engage in partisan work. In practice, most merit based public systems in the developing world have enshrined elitism and male dominance and churned out public servants who have little experience of development and an inadequate sense of accountability to disadvantaged citizens. Experience from many places seems to indicate that representative bureaucracy does not lead to weak accountability; in fact with appropriate changes in administrative culture, the reverse is true. 27For example, in a comprehensive review of affirmative action policies in South Asia, DL Sheth concludes that in India “despite tardy and often even dishonest implementation for over fifty years the policy of reservations has worked reasonably well. It in fact can claim some significant achievements, not only for the beneficiary groups of SCs, STs and OBCs, but for the whole nation”.28 Sheth points out that the scheduled quotas still remain unfilled at higher levels of government jobs, and the attainment of benefits such as attainment of minimum educational levels, remains very low among several smaller communities comprising the SC, ST and OBC categories. Also, other

25 Thielemann, Gregory S. and Joseph Stewart, Jr. 1996. "A Demand Side Perspective on the

Importance of Representative Bureaucracy." Public Administration Review 56 (March/April): 168-73. 26 Frederick Mosher. Democracy and the Public Service. New York: Oxford University Press, 1968. 27 Op. cit., Dwivedi, 2001 28 UNDP Human Development Report Office, Occasional Paper, DL Sheth, Caste, Ethnicity and

Exclusion in South Asia: The Role of Affirmative Action Policies in Building Inclusive Societies. Background Paper for Human Development Report 2004.

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enabling measures which are necessary to compliment reservations are far from adequate. But nevertheless, “by providing a concrete basis to their mobility aspirations, [reservations have] induced them to achieve higher levels of literacy and living standards”. In the South and West Indian states where the policy has been more efficiently implemented, educational and occupational profiles of SCs and OBCs have shown much greater improvement.

First, Reservations have changed the nature and composition of the Indian middle-class, making it more inclusive. At Independence, it was a small caste-like social formation. Its membership almost entirely consisted of the English-educated, urban sections of the dvija castes. Today, thanks to Reservations, members of ‘lower castes’ have been able to enter the middle-class in significant numbers. A recent CSDS study shows that a sizeable section of India’s middle-class consists of the second and third generation beneficiaries of Reservations. Second, fifty years ago dalits, tribals and OBCs could aspire only to a limited degree of upward mobility and that too as collectivities functioning within the caste structure. Today, with Reservations opening for them gates of the middle-class, not only the incidence of their upward mobility has increased, but for achieving it they have not to depend on ritualistic modes sanctioned by the caste system, such as sanskritization. This changed pattern of social mobility—a larger number of individual members of ‘lower castes’ acquiring middle-class identity—has deeply shaken the economic and cultural roots of the caste system. For, ‘middle-class’ identity is no longer perceived in ritual status terms; computerization rather than sanskritization has become a middle-class marker. Third, working for over fifty years Reservations have made cumulative and lasting impact on India’s political system. With educational and occupational opportunities provided by Reservations a new political leadership has emerged from among the SCs, STs and OBCs. For example, the very origin and growth of the powerful dalit-based party in the north of India, the Bahujan Samaj Party (BSP) lay in the formation of a trade-union like association of the dalit and the backward class Government employees. In the course of about five decades of Reservations the entire structure of political power in almost all the states and lately at the national level has changed. The established pattern of the upper caste English educated elite rule has changed. In almost all provincial states of India the OBCs and members of the other beneficiary categories of affirmative action are now occupying important power positions in Government and, of course, at a relatively much less important levels in the bureaucracy. Reservations have made a significant impact for individuals of the beneficiary categories. The most crucial impact is that education has become a social and cultural value for the members of all the beneficiary categories. They now see education as an accessible means for them to individually attaining modernity and social mobility. Some of them having entered the middle class now, unlike their parents, go great lengths to educate their children so that they can receive benefits of reservation and are able to stay in the growing, competitive Indian middle class. Having entered the middle class not only has their lifestyle changed, they now redefine the conventional, caste-like culture of the middle class, increasingly in non-ritual status terms. Even for many non-educated, but of the aspirant generation, alcoholism is on the wane and savings are increasing. This expansion of opportunities has enabled members of these communities to attain, in greater numbers than before, high professional stature and positions of power. As in the case of every other upwardly mobile community, this has created an upper crust whose members are expected not only to serve as a role model but also provide a protective device, a ‘spearhead’ for their people to enter the system. Successful individuals always had a role model impact, but now with large enough number from among these groups having entered the power structure, they have been able to install protective mechanisms within the bureaucracy and political parties, facilitating entry of their compatriots in the power structure. D.L. Sheth, Ethnicity and Exclusion in South Asia: The Role of Affirmative Action Policies in Building

Inclusive Societies, 2004

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Similar to the belief in representative bureaucracy is the belief in “descriptive representation” now gaining increasing currency in understandings of political equality. Descriptive representation means that the political representatives of a constituency themselves resemble that constituency in terms of their person, background, and experiences. The right to be present in political office has become part of the definition of political equality where previously the equal right to vote and stand for office defined it. As Htun points out, “a legislature that fails to descriptively represent the citizenry is believed to violate the principles of political equality by not offering equal representational rights to all and therefore to be undemocratic.”

However,several studies in diversity and equality in the civil service argue that numbers are not enough and the key to success is sustainable change in organizational dynamics particularly culture. The Nepali Ministry of General Administration for example, points out that gender

mainstreaming is an organizational issue depending on a range of institutional factors including organizational culture, power dynamics, how resources are allocated, and unofficial as well as official realities.29 The UK Government’s Advisory Panel on Equal Opportunities in the senior civil service reported that despite various initiatives, progress was slow because “such initiatives have tended not to be an integral part of mainstream management and personnel practice.” 30 Similarly, analyzing gender mainstreaming, we have argued that it has been reluctantly adopted by agencies whose top leadership has not adequately supported this agenda and in organizational contexts where there are few mechanisms and ways to balance or restrain the power of those at the top. Thus it has been easier to adopt an approach that simply “adds women” to the existing configuration without questioning basic assumptions, strategic objectives, or ways of working.31 Where affirmative action or diversity

29 S.P. Mainali, Balancing Gender in the Nepalese Context, January 2004, p.2 30 UK Government, Ministry of Home Affairs, 1995 cited in Randhir Auluck, The Management of Diversity: The UK Civil Service Journey Continues, United Nations, May 2001 31 Aruna Rao and David Kelleher, Institutions, Organizations and Gender Equality in an Era of Globalisation” Gender and Development, Oxfam UKI, 2003.

Why did the “descriptive representation” of citizens come to be taken as an indicator of political equality? First, the rise of the feminist movement activated gender as a politically salient social identity, and movements for multiculturalism and group rights activated ethnic, cultural and racial identities as deserving of political representation. Next, deliberative democratic theory stressed the need for representatives to share experiences with their constituents in order adequately to communicate citizen views in open-ended political deliberation (as opposed to bargaining and interest aggregation). Finally, in the post-socialist era, claims for social justice have come to focus on the importance of recognition as much as redistribution. Equality of conditions to develop an affirming sense of personal and collective identity, including the presence of group members in power, has thus become an issue of social justice.

Mala Htun, Using Gender Quotas to Increase

Women’s Representation in Politics

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initiatives are an add-on and not integrally connected to the work of the organization and to larger reform processes aimed at more efficient functioning and effective governance, they will die a slow death and generate a good deal of opposition and resentment in the process. To be effective, affirmative action initiatives need a rationale which is connected to the core business of the organization and ways of evaluating progress. There are many important ingredients for making change happen and they include compelling leadership, learning by doing and modeling good practice, consistent and constant communication, and good accountability mechanisms and practices. The World Bank Public Sector Strategy suggests that there are three promising entry points for reform: public expenditure accountability; decentralization of the public sector bringing services down to citizens and empowering community based organizations; and e-government which is a powerful tool to help foster transparency and accountability. What is important in this set of strategies (and applicable to change strategies in general) is balancing social inclusion processes or top-down reforms with empowerment processes or bottom-up accountability. In other words, social inclusion processes that open up opportunities for hitherto excluded groups to participate need to connect with efforts by those groups to voice their priorities and influence decision making processes. But this is a tall order involving complex social dynamics. Change needs to start with concrete doable steps. This is more likely to lead to “small wins” or incremental changes aimed at changing biases so entrenched in the system that they are not even noticed until they are gone and generating a demand for reform through programs that facilitate greater accountability and encourage citizen voice. According to Myerson and Fletcher whose research focuses on shattering the glass ceiling for women in American corporations, a small wins strategy is a powerful way of chipping away at the barriers that hold women back without engendering backlash. It creates change through diagnosis, dialogue, and experimentation and usually improves efficiency and performance and benefits both women and men. 32

Affirmative Action in the Nepalese Context: Affirmative action in Nepal today is being discussed in relation to three spheres of activity -- political bodies; the education, employment and health sectors; and the civil service – and three groups -- women, janajatis (ethnic minorities) and dalits. These debates are occurring within a larger national crisis of governance. Until very recently Nepal was led by a coalition government at odds with an increasingly prominent Maoist insurgency; street protests and calls for a constituent assembly and a new constitution; calls for political reform including party reform; discussions of a federal structure of government as well as autonomous

32 Deborah E. Myerson and Joyce K. Fletcher, A Modest Manifesto for Shattering the Glass Ceiling", Harvard Business Review January-February 2000 pp. 127-136

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regional areas; greater ‘ethnicization’33 of politics; administrative decentralization and a shrinking public sector; and an interventionist but unpredictable monarchy that is in control of the country’s armed forces. In February 2005, Nepal's King Gyanendra sacked Prime Minister Sher Bahadur Deuba's government for the second time in just over two years, took full control of the state power, and declared a state of emergency. On March 28th, a large-scale demonstration was held outside the Central Secretariat in Kathmandu, the first since the King dismissed the government.

The subjugation of ethnic minorities in Nepal has a long history; it was only in the second half of the nineteenth century for example, that certain ethnic groups were freed from the threat of enslavement. Unlike in India, to this day, untouchability has not been officially ‘abolished’ in Nepal. Over the course of centuries, high caste, capital-centered Hindu elites achieved dominance over strategic resources including political power, land and other economic resources and depleted the periphery where the ethnic minorities predominated. They also shaped ritual and symbolic values in ways that designated non-Hindu elite cultures as inferior and perpetuated untouchability denying dalits access to their sacred and secular places. The consequences of this hegemony are playing out in the uneven field of political competition today.

After the overthrow of the Panchayat system, the 1990 Constitution for the first time recognized the multi-ethnic nature of Nepalese society and guaranteed all citizens equality. (This had been guaranteed in the 1963 constitution but not with such specific reference to ethnicity, religion, caste, etc.) It stipulates that through the enactment of special laws, the

state can institute special measures for socially and economically “backward” groups. The constitutional provisions for the equality of women are longer standing and more specific. Article 11 (3) of the constitution allows for special provisions that may be enacted for the advancement of women. Moreover, the CEDAW Convention which has been ratified by Nepal obligates the government

33 According to Joanna Pfaff-Czarnecka, “ethnicization of politics” connects specific notions of culture to political mobilization. “Ethnicization occurs when ethnic groups emerge as collective political agents.” (Debating the State of the Nation: Ethnicization of Politics in Nepal – A Position Paper, in Ethnic Futures: The State and Identity Politics in Asia edited by Joanna Pfaff-Czarnecka et.al., missing publication place and date. I can fill in Lynn pls do

The capacity to dominate the state opens up a variety of options: channeling resources to preferred groups and regions, providing employment and, last but by no means least, acquiring legitimacy through claiming the focal role in societal progress. The ability to selectively distribute contracts and licenses or provide infrastructure enhances, in turn, the ability to mobilize lasting political support. The more those in power grant privileges to their own ethnic brethren as clients, the more likely it is that a direct competition among ethnic blocks will ensue.

Joanna Pfaff-Czarnecka

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to implement temporary special measures to achieve de facto equality between men and women. A study conducted by the Forum for Women Law and Development in Kathmandu has identified 150 legal provisions that have been enacted with the objective of women’s advancement.34 (we will cross reference chapter 12 here which is being written by Sapana for FWLD) Affirmative Action in Civil Service: Affirmative action constitutes one part of the HMGN’s Governance Reform Program which broadly aims to make the civil service more effective and efficient in delivering services and benefits, corruption-free, more accountable and transparent, and more representative of the population as a whole. The history of civil service reform globally is a long one and in many countries in the South it is closely intertwined with changing administrative structures and systems placed there by colonial regimes. Even in those few countries like Nepal which have not endured colonialism, such governance structures have typically been built on a foundation of institutional rules that have privileged some and excluded many, resulting in skewed access to assets, capabilities, voice and influence. The affirmative action goals of HMG/N’s governance reform program (GRP) are aimed specifically at increasing the representation of women, Dalits and Janajatis in the civil service and in policy decision making more broadly. Nepali women are almost invisible in the civil service making up only 8% of overall staff and 4% of officers. The initial ADB support for affirmative action in GRP was focused on women, as was UNDP’s support for affirmative action in the civil service through its Mainstreaming Gender Equity Program. However, Dalits are highly disadvantaged as are some but not all Janajati groups. In all three cases, the disadvantage relates to resources and power. The issue is less about individual differences that affect performance of tasks and the conduct of relationships, and more about groups of people who have been systematically denied access to resources and opportunities. This fundamental issue of inequality is acknowledged by the Nepali Ministry of General Administration (MOGA) which in a recent paper states that “achievement of gender justice is not possible if other forms of social injustice continue”, and calls for a “holistic approach” to the problem.35 Pressed by Maoist on the one hand who have placed the rights of disadvantages group at the center of their demands and pressure from civil society groups and donors for greater democratization and justice on the other, the government in early 2004 set up a high level Reservations Committee headed by the former Finance Minister to generate recommendations to the Prime Minster in the following areas: reservation in political bodies, in the education, employment and health sectors, and civil service; revisions in the structure of political bodies; and current issues of decentralization, federalism, local autonomy and 34 Forum for Women, Law and Development, Special Measures for Women and Their Impact, Kathmandu, April 2003 35 S.P. Mainali, op. cit., p.2

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preservation of “endangered” ethnic traditions as a criterion for reservation. The work of the main committee was supplemented by four sub-committees but the main committee was dissolved in July 2004 before it could formally submit its final report. Each subcommittee developed its own recommendations and worked with a different reservation formula. Some focused primarily on the number issue and others such as the dalit committee went much further in their recommendations to include distribution of state assets at the district level and land distribution; recommendations on reservations in the private sector including international NGOs and bilateral agencies; representation in political bodies and a change to proportional representation; representation of dalits in the Election Commission, and civil service; penalties for non-compliance by implementation agencies; strengthening the Dalit Commission; and establishment of an employment equity commission. Women’s Participation: On the issue of women’s participation in the civil service, considerable work has been done in the last few years developing credible proposals for effective affirmative action interventions. They include studies and proposals from, the Asian Development Bank (ADB), the Mainstreaming Gender Equity Program of the UNDP (MGEP-UNDP), the Ministry of General Administration, the World Bank and the Planning Commission (see Annex A: Analysis Matrix). The MoGA36, ADB and MGEP-UNDP all support increasing the percentage of women in the civil service though there is some variation over the issue of reservations for women (whereby certain seats would be “reserved” only for women) and numerical targets to be achieved in hiring and promotion of women across the civil service. But little background work has been done to document the size of the current qualified available pool of women who could be recruited to meet these targets although some work is planned on this issue by the Planning Commission. The MoGA, ADB and MGEP-UNDP proposals all suggest revising the civil service examination and curriculum37. In addition, the World Bank supports a review of the exam to ascertain biases against women, Dalits and Janajatis. There are several prevailing views on this issue. One that has already been tried without much success is to provide coaching to women who wish to take the exam. A second approach is to revise the entry gate (exam – especially with respect to the highly Sanskritic Nepali that is used and expected , curriculum, and selection process) in order to make it more possible for women and other disadvantaged groups to gain entry. The third is to examine and revise the

36 The “Roadmap” was announced by the government and publicized in the newspapers in December 2003

37 In response to many complaints over the years, in November 2000, the Nepali Public Service Commission publicly announced that it was going to revise the syllabus for civil service exam to

make it more practical and analytical.

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entry gate in a way that searches for and allows in people with the kinds of qualifications and skills that are required by an effective, efficient and accountable civil service. The first would not alter the entry gate but would coach hitherto excluded groups to compete better; the latter would overhaul the system so that it is attracting the kinds of people – men and women with diverse backgrounds, skills and experience – that a reformed civil service requires. MoGA supports limited exam and curriculum reform and there is some discussion within the Public Service Commission about the issue of making the exam system more “gender-friendly” -- a term that is used but not clearly defined. Our understanding is that it might include shifting to a more commonly spoken form of Nepali as well as offering the entrance exam in other languages spoken in Nepal; not requiring memorization of the vast number of government laws/rules/regulations normally required (this is deemed difficult for women because their household responsibilities do not allow them sufficient time to memorize all); and possibly requiring a lower pass grade for women. In contrast, both the ADB and MGEP proposals advocate a more comprehensive revision of the entry gate requirements and some in government also support the idea of deeper reforms. None of these proposals make an explicit connection between affirmative action and better public administration and governance. Though both and ADB and World Bank programs are advocating for a far more comprehensive reform of the civil service that includes a clearer distinction between the roles of the political and administrative in matters such as transfers and promotions and also the establishment of separate civil service administration for employees of decentralized local government, the affirmative action piece has been relegated to a political space justified by equity concerns. In contrast, the experience globally suggests that for affirmative action to stick in the long term, it must be intimately connected to more effective and efficient functioning of the public administration. The MoGA Roadmap and the ADB and MGEP documents propose a variety of steps to make the workplace more “women-friendly”. Some of these like putting toilets for women in workplaces are quite straightforward. Others, however, that require changes in attitudes and in the way in which power relationships are played out across gender and hierarchies, will require many innovations and learning by doing. The government proposals belie a tendency to look for quick, short-term solutions whereas in fact, organizational cultural change which is central to the success of this effort is long-term, and incremental. The actors involved will need to prepare a long-term plan with short-term deliverables and ways to measure performance on the more complicated issues of organizational systems and cultural change. MoGA’s Road Map does not include any proposals on accountability but both the ADB and MGEP do. The development of tools and indicators to monitor institutional performance and governance improvements on the ground would enhance

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transparency and encourage greater citizen trust in government and governance. The Current State of Play: There is still a fair amount of divergence on what constitutes affirmative action: most believe it means quotas but some equate quotas with reservations. Still others believe it refers to building capacities and training. But the discourse is overly focused on the issue of reservations as a tool to remedy discrimination. None of the groups who are trying to get into the system are challenging the need for reservations in the first place or whether they would work better in some arenas (e.g. political bodies) and less well in others (e.g. civil service or private sector). They are however, clear that reservations primarily affect entry into a system and that changing the mindset and informal culture of the whole system will take a long time. They see this as a problem that lateral entry only partially solves. While reservations are on everyone’s minds, there is disagreement on the basis for reservations. One proposal on the table is to base reservations on a Human Development Index (HDI). One effort to do this was made by members of the Reservation Committee 38and another was carried out by the GSEA team39 based on the 2001 Census data. Most agree however, that this data base is not adequate for the construction of an empirical basis for reservations in the way that the Committee had hoped. The problems with the census data include: it does not contain data on income or consumption and the data on assets are only indicative, the data on health status is also not ideal; further, according to some dalit activists, the Census under enumerates the dalit population in the country. Currently, the formula for reservations circulating in the halls of the bureaucracy is for 20% reservations for women; 10% for janajatis and 5% for dalits40 or a 35 % reservation without these breakdowns specified for the three groups concerned. However, a recent Draft Local Services Act that lays out the ground rules of the establishment of a local civil service serving decentralized agencies specifies 20% reservations for women, 10% for Dalits and 10% for Janajatis. Although a consensus seems to be emerging, it has not yet been agreed upon. But the real story is that reservations face significant hurdles ahead on many fronts. At the broadest level, senior bureaucrats voice concerns about the potential of reservations to dilute the meritocracy principle of entrance into the civil service and therefore the efficiency of the service as a whole. Some also believe that while representation in decision-making should be more broad based, politics and not the civil service is the appropriate place for this. Whether this position is genuinely believed or is put forward by elites as a ploy 38 This work was lead by Dr. Bal Gopal Baidya 39 The results of this work, lead by Meena Acharya is reported in Chapter 4. 40 These would apply to vacancies only.

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to weaken efforts towards greater “inclusion” and accountability in order to maintain their control, matters little to the end result: opposition to reservations within the bureaucracy is pervasive and high. Those who genuinely believe that reservations are good for the civil service are in a distinct minority and even they are more likely to support women’s greater inclusion in the bureaucracy than increased representation by janajatis and dalits. For Janajati and Dalit groups, the concessions that are being hotly debated among those in power are seen as “peanuts” – far less than what they expect and are demanding. For women, janajati and dalit activists, making the bureaucracy more representative is an end in itself as well as a means for a more egalitarian of distribution of state controlled resources. This assumes that representatives of these groups would advocate on behalf of those groups in the larger polity. In contrast, those who advocate for an ‘efficient’ though ‘neutral’ civil service in the Weberian sense, oppose this kind of politicization of bureaucracy (ignoring the fact that historically those in power have always manipulated state resources to stay in power). At the same time, the notion that a group’s interests can only be adequately articulated and lobbied for by a member of that group (which is how these three disadvantaged groups in the Nepal context see it) is questioned by others. Will those who get into the bureaucracy do anything beneficial for the larger group or are they in it simply for their own aggrandizement? The so called “creamy layer” of elite dalits who have benefited from reservations in India, but done little to improve the conditions for their group, is often cited. This is a clear ‘damned-if-you-do’ and ‘damned-if-you-don’t’ argument that is currently circulating in the halls of the bureaucracy. At an institutional level, reservations face considerable challenges as well. Under present conditions with no parliament in place, proposals must be passed in the form of acts or ordinances which have a 6-month life after which they must be extended or else dissolve. A proposal for reservations in the civil service must be drafted by the Ministry of General Administration as an amendment to the Civil Service Act and presented to Cabinet for approval which in turn refers it to the Ministry of Law and Justice for approval and then it goes back to Cabinet. Any amendment to the Civil Service Act also requires the consent of the Public Service Commission. Once Cabinet approves the amendment, it goes to the King for royal seal. However, reservations are not the only issue awaiting a decision. One rumor is that approximately 50 other issues are waiting for approval by the Ministry of Law and Justice. In the meantime the proposal may be challenged in the courts. (See Chapter 12) This is clearly not the best avenue for enacting legislation and some of the powerful ministries would rather wait for parliament to be reinstated through fresh elections and for the legislative process to take its normal course. That, of course, could take some time.

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Even if the amendment goes through these hurdles, how will it be implemented? Change will require a complex mixture of political and senior management commitment, the communication of that commitment, pressure for results, as well as negotiation and dialogue. It will also require support for learning and capacity building – both for the new entrants and for those already in the system who may need to un-learn certain behaviors and assumptions. The process needs to focus on numbers, human resources systems such as recruitment, testing, hiring, training, mentoring, and promotions and cultural change. The change process is not linear and sequential. It is a continuing process without a clear beginning or end. Rather than a clear sequence of logically ordered tasks, it is more like an array of tasks and activities set in motion in various parts of the organization as change agents respond to events, are able to secure resources, information and legitimacy. The diagram below is an effort to show the cyclical and nature of the process41.

41 This framework is an adaptation of the work of Kelleher, McLaren and Bisson, Grabbing the Tiger by the Tail, Canadian Council for International Co-operation, 1996 and Agnocs, Burr and Somerset, Employment Equity: Co-operative Strategies for Organizational Change, Prentice Hall, 1992.

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The process begins with a confluence of pressure, support and capacity for change. This energy needs to be translated into three streams of movement: Building Clarity, Building Support and Taking Action. At the beginning, the Building Clarity track needs to be focused on an overview plan. In this case, the plan should include: getting more specific about how the target can be met, what is the availability of skilled labor, what strategies are possible, and what makes sense in the Nepali context. Building support needs to focus on developing the stakeholder group, ensuring political action and building accountability mechanisms. The broader support and the increased specificity will make pilot projects possible. These pilot projects will allow for internal learning and help develop greater specificity about what needs to be done as well as deepening the support for the effort. All of this must benefit from continued pressure to change along with sufficient capacity. It is a cyclical process which requires pressure and accountability, learns from experience, continually builds support and is focused on action. The table below shows, in a more linear way, possible early stages of the change process for affirmative action in Nepal.

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Start-up/Gestation Early Implementation

Wider Implementation

Building Clarity

Research studies: labor market, position availability, interest of women, dalits and janajatis in the public service, organizational culture, the experience of excluded groups. Building knowledge regarding the international experience, the affirmative action continuum, change leadership, resistance, questions of meritocracy, cultural change and HR systems. A focus for this learning could be the existing Gender Focal Points in each line Ministry. A team of two from each Ministry can be given the broader task of looking for constraints and opportunities for dalit, janajati and women’s inclusion both in staffing of a given ministry and in the public services delivered by that ministry, i.e. This team could be responsible for the quality of the client interface with these groups. Beginning the design of a state of the art examination system that is not biased against Dalits, Janajatis

Pilot Ministries develop affirmative action targets and strategies Monitor and report on work in Ministries Develop central database of successful and less than successful practices Develop an inclusive examination system that is congruent with larger civil service reform efforts.

Develop wider implementation plans

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Start-up/Gestation Early Implementation

Wider Implementation

or women and that seeks out the skills needed by a contemporary civil service that wants to become more responsive to citizens. Developing an implementation strategy: pilot ministries, affirmative action enablers, measurement, and budgets.

Building Support

Political leadership—legislation and accountability Building a network of committed stakeholders Developing accountability mechanisms to stakeholder groups Publicize top management support

Training to build awareness Build central support team including external consulting help Build Ministry change teams Regular reporting to high level team and political level

Publicize success Reward success

Taking Action

Pilot projects Living the vision Building relationships with stakeholder groups

Begin work in selected Ministries

Broaden implementation—expand ministries and districts

Early work needs to focus on:

Discussions with MoGA and other affected ministries regarding their willingness to be involved in a process of implementing affirmative action which includes: the involvement of a stakeholder group, accountability to groups outside the bureaucracy as well as to a high level group within the government, building and deployment of gender focal point teams to diagnose the inclusion challenges in staffing and services, and the involvement of international consultants at the design overview stage.

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A knowledge building process that focuses on such questions as: what is the turnover rate at various levels, how many positions will open up as a result of turnover and new positions being created? What is the nature of the labor market that might fill positions at different levels with Dalits, Janajatis or women? What is the interest of these groups in government careers? (This would also serve as a baseline for later monitoring). What are the various strategy options open to the government? One way of seeing these options is “The Affirmative Action Continuum” in which we look at a range of strategies from the most aggressive (such as that used in some American cities-- if a department is not meeting its targets it must hire one person in a target group for every two positions filled) to softer efforts such as making it easier for women or Dalits, Janajatis to access the system as it is.

Political and senior bureaucratic action to specify the directions and targets and to develop accountability mechanisms.

A “business case” which develops an understanding of how greater diversity will result in better services to citizens.

This is just the beginning of a change process, which if it is to be successful, will unfold over years42, involve hundreds if not thousands of people and require change at the personal, organizational and political levels. Affirmative Action in Politics: Much of what happens in the bureaucracy hinges on what happens in the broader political landscape of Nepal. Janajati and Dalit groups in addition to many other political and civil society groups are interested in a new constituent assembly charged with rewriting the constitution. In addition, Janajati and Dalit groups are interested in a federal structure of governance with the redrawing of some districts which would institute a fair amount of regional autonomy through regional assemblies and control over finances and the distribution of development resources in such areas as education. The issue of a constituent assembly (which can come into force in a number of ways – through appointment or election) and the rewriting of the constitution however is deadlocked between a variety of competing interests – the Maoists are interested in establishing Nepal as a republic with no monarchy which is not favored by the Palace and the political parties need the King’s support to go ahead with elections. Will need to rewrite this – it is much more complex than this –especially now. Take a look at Pratyoush’s chapter and some of the background stuff I am sending. But message is ok. Lynn can you pls rewrite as needed At stake are the system of government, processes of governance and control over both. Currently two much debated topics are a

42 For example, after a generation of effort, in 1990, women and minorities made up less than 11% and 8% respectively of the executive grades of American Federal Civil Service. (Golembiewski, R., Managing Diversity in Organizations, University of Alabama Press, 1995.

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proportional representation system and reform of political parties though neither are supported by the political parties themselves. Critical analysts believe that the former without the latter will yield few gains for the representation of disadvantaged groups in politics because it will leave the selection of candidates in the hands of the parties’ central committees which have historically subordinated the interests and voices of ethnic and other marginalized groups to those of the Parbatiya and Newar. The key role of political will and effective lobbying for the interests of marginalized groups and its effect in bureaucratic functioning is illustrated by the case of bilingualism in Canada (See Annex C for details). Conclusion: Affirmative action as a lever for social inclusion in a larger process of change is a necessary but not sufficient intervention in bringing about significant and sustainable positive outcomes for socially marginalized groups. Greater representation of hitherto excluded groups in a the political process and bureaucracy can be a stepping stone to structuring of opportunities and incentives that helps those voices and interests gain influence in policy decision making and positive discrimination interventions that help to better distribute material goods and services. But to be effective and sustainable, affirmative action requires a broader commitment to equality and human rights as articulated by a country’s constitution, laws and policies. Within the bureaucracy, affirmative action is a long, hard process which only begins once the policy and institutional frameworks are in place. Affirmative action is both a political and an organizational change problem. Political action imposing an affirmative action program and a set of targets without an organizational change process will result in a policy and little action. Organizational change without political involvement maintains the interests of privileged groups and uncouples affirmative action from the larger question of social exclusion. At the end of the day, affirmative action must benefit those who most need help. Paraphrasing Gandhi, we have to ask if the steps we are contemplating will restore them to a control over their life and destiny.

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Annex A: Affirmative Action: The South Africa Example Affirmative action in the public service in South Africa is happening within a broad transformational context. The coming to power of the ANC in 1994 began a process of political, economic and social change designed to right the wrongs of the South Africa’s apartheid history and to bring South Africa into the family of nations as a modern, equitable state. The largely peaceful transition to democracy has been hailed as a miracle with the accompanying expectations. Ten years after the first democratic election, there is much debate as to whether the “miracle” is actually happening. We do know that South Africa has:

Adopted a new constitution (perhaps the most progressive in the world)

Set in place a constitutional court to protect and enforce the constitution

Established institutions such as The Human Rights Commission, Independent Electoral Commission, The Employment Equity Commission and others

Elected close to 30% of women to the Parliament

Diversified the senior levels of the public service so that by 1999, 57% of senior managers were black43.

In more concrete terms it has brought clean water to 9 million people, electricity to 2 million. It has integrated 30,000 schools as well as the countries universities and brought free health care to millions of children44. From all this, it is clear that the state can act for social transformation but it is also clear that its capacity to act is also limited. Since 1994 the wealth gap between rich and poor has widened, poverty continues at near historic levels and whites continue to dominate business and the economy. Some of the issues include:

Black economic empowerment is criticized as concentrating wealth in the hands of a few black entrepreneurs

Many whites resist the changes and hold on to privilege

Women parliamentarians find it hard to advance a women’s agenda as they are submerged in conditions of party loyalty and cut off from their previous sources of support

43 Fraser-Moloketi, op. cit. 44 Sparks, Allister, Beyond the Miracle: Inside the New South Africa, Johannesburg: Jonathan Ball, 2003.

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A major aspect of the transformation is equity in employment. A 1998 survey found that white males (approximately 6% of the population) constituted 89% of senior South African management. Even after 4 years of affirmative action white people comprised 13% of the “economically active” yet they made up 76% of the most senior positions in business45. The Employment Equity Act (EEA) was passed in 1998 and came into effect in 1999. Its purpose is to achieve equity in the workplace ,

"the purpose of the Act is to achieve equity in the workplace, by a) promoting equal opportunity and fair treatment in employment through the elimination of unfair discrimination; and b) implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, to ensure their equitable representation in all occupational categories and levels in the workforce46”.

The onus is on all employers of more than 50 people to ensure that black people47, women and disabled people are fairly represented in the workforce and that they have equal opportunities to compete for and advance in jobs. This means also the identification and elimination of barriers to employment, taking special measures to retain and train people (including preferential treatment and numerical targets). Perhaps the most controversial is the provision that a person can be hired who may not have the required skills but could acquire them in a reasonable amount of time. Employers are required to draw up an equity plan which spells out how the organization will move toward employment equity given their particular situation. They are required to report annually to the Employment Equity Commission. Results indicate that transformation of the workplace is a long-term proposition. Some results from the most recent report48:

Not all employers bother to report. There was a 15% drop between 2002 and 2002 for example

The number of Black people in senior management remained low but has grown slightly

Improvement in females’ representation at all levels was insignificant although they had made some gains at senior levels.

45 Commission for Employment Equity, Annual Report, 2002-03. 46 www.labour.gc.za 47 Africans, Indians and “coloured” are classified as black. 48 Employment Equity Commission Annual Report 2002, www.labour.gov.za

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The Public Service: Employment Equity in the public service has been driven by the EEA as well as a White Paper on Affirmative Action49. The transformation of the public service was initiated in the belief that its history of ineffectiveness, unfair discrimination and division on the basis of race and gender meant that it lacked credibility and legitimacy in the eyes of South Africans. One government minister said that the purpose of the previous public service had been to ensure that resources did not reach black people50. The White Paper targets three groups: black people, women and people with disabilities. The goal of affirmative action in the public service is

“…to speed up the the creation of a representative and equitable public service and to build an environment that supports and enables those who have been historically disadvantaged by unfair discrimination to fulfil their maximum potential within it so that the Public Service may derive the maximum benefit of their diverse skills and talents to improve service delivery51”.

The white paper makes the point that affirmative action means a fundamental shift in administrative practice. It is seen as an essential tool for achieving the organizations’ mission. Each department is responsible for developing and implementing a programme in line with the White Paper and to ensure that it is integrated into every aspect of management practices. The implementation of the plan is the responsibility of all managers not just specialist units. The mandatory requirements are:

1. Numeric targets—each department must set targets (short term as well as longer term) that are aimed at achieving full demographic representation within a specified time period. These targets are for the 3 designated groups in each occupational grouping.

2. Employee profile—each department must maintain a data base updated annually on all employees broken down by gender, race and disability for all levels and categories. Among other things it must show number of employees recruited, promoted, and trained in the past 12 months in each of the categories.

49 Affirmative Action in the Public service, Department of Public Service and Administration, March 1998. 50 Fraser-Moloketi, op.cit. 51 www.labor.gc.za

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3. Affirmative action survey—An in-depth survey of staff needs and perceptions regarding employment equity

4. Management Practices Review—A regular review of management practices to determine whether any contribute to barriers to the recruitment, retention, development and advancement of members of the target groups. More broadly, it is intended to develop a culture of respect for diversity.

5. Performance Management—implementation and demonstrable support for employment equity is included in every employees performance management criteria

6. Affirmative Action plan—a plan needs to be developed and adopted and promoted that includes such things as objectives and targets, strategies for achieving them, responsibility, financial resources required and methods for resolving conflict.

7. Responsibilities—Responsibilities are clearly identified for each level in management hierarchy

8. Policy statement—A policy statement is required which sets out the business reasons for adopted affirmative action, the core values which underpin affirmative action, strategies to be used and the expected benefits.

The results are slow in coming although the most success has been at the top of the hierarchy where political forces have the most impact. By 1999 57% of the senior management cadre was Black (7% above the target). Interestingly only 21% of the same cadre was female (9% below target.)52 In the larger economy, the results are also sobering. Although there has been some movement on race as blacks have moved slowly into management positions, much less movement was made by women. Their numbers actually decreased in professional and technical positions (the feeder jobs for management). The Commission on Employment Equity concluded in its 2002 report that,

“…there is slow progress in the implementation of the of the Employment Equity Act. [Although] it appears that momentum is building as demonstrated by the increase in employment of Blacks (5.7% in two years).”

What does the South Africa experience have to teach us?

1. South Africa has many positive factors for change—the national feeling of riding a historical moment of transformation, the election of the majority to positions of power, the many commitments to equality, the constitution, the various institutions to safeguard and implement it, and

52 Fraser-Moloketi, op.cit.

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resources to devote to guides, training, consultants, road shows, consultations and advocacy.

2. Even in a society so committed to righting the wrongs of the past there was tremendous resistance to Employment Equity and there continues to be considerable “scholarly” and popular writing critical of the Employment Equity enterprise.

3. The reach of the law is limited. The law can provide the framework and promotion of employment equity but true implementation depends on a shift in power relations in the country and a commitment at the organizational level to cultural change and the transformation of individual attitudes.

4. This scale of social change takes time. The Employment Equity Act was proclaimed 4 years after the first democratic election. It came into effect a year later in 1999. The first base line study was done in 2000, in 2002 it is possible to see difficulties and begin to take remedial action. The gains to date are small but significant.

5. Affirmative action risks capture by elite groups. For some in South Africa, it is still a question whether affirmative action is challenging racist and sexist power or is it simply diversifying the pool of people who can occupy positions of class privilege.53

6. In this context at least, it seems that advances on race drive out change for gender equity. Both in published material and in informal discussions, it has been clear that transformation of gender relations lags well behind that of race relations. For example even though women make up approximately 30% of parliamentarians, they are kept at the bottom of legislative hierarchies and are under-represented in executive bodies.54

53 Msimang, S., Affirmative Action in the New South Africa: The Politics of Representation, Law and Equity. 54 Hassim S., Representation, Participation and Democratic Effectiveness: Feminist Challenges to Representative Democracy in South Africa in Goetz, A-M. and Hassim, S., No Shortcuts to Power: African Women in Politics and Policy Making, London: Zed, 2003.

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Annex B (add another colum for the Local Service Act?) Lynn --I don’t have any information on this

Analysis Matrix: Proposed Approaches to Affirmative Action

MoGA Road Map

MGEP- UNDP55

ADB World Bank National Planning Commission56

Main Idea/Focus

Increase representation of women, Dalits, Janajatis in the civil service Focus on Women

Increase women’s representation in decision-making positions in the civil service Exclusive focus on Women

Cabinet to approve an affirmative action policy and program Focus on Women

Support affirmative action policy and implementation system Focus on Dalits & Janajatis as well as women

Adopt affirmative action policy and programmes to promote participation of women, Dalits and Janajatis

Targets, reservations, etc

20% of staff positions reserved for women, 10% for Dalits, 5% for ethnic groups – need to ask Mukta to check if the Janajati reservation has gone to 10% as well. Create one first class and one second class gender contact job in all ministries. Permits lateral entry into civil service for higher level positions Ensure women’s rep on constitutional bodies

Option 1: Women’s Quota: 25% all levels, promotion: 25% to class 2 and class 1 positions. Option 2: Two merit lists(eg women would compete only against other women and men against men for entry and promotion) ; adjustment of marks for service period and work in regions

Increase women in civil service by 33% through policy reform Create 25% positions in all center and field offices all levels by 2010. 25% women as dept heads through contract and lateral entry Target number of women’s seats in the 8 service sectors in educational institutions

10th plan has provisions for inclusion as part of decentralization. Dalits and Janajatis are supposed to be on the committee that allocates resources.

Examinations, Curriculum

Revise the civil service curriculum to make it ‘gender friendly’ Coaching classes (for women only in regions

Revise the syllabus: Class 3 officers, 2 papers: on government and disciplines, including gender studies. Class 1 and 2, open competition, 3 papers: government, current

Affirmative action in exam system: separate merit list etc. PSC revise exam - make it more scientific and objective; Revise exam grading process—

Carry out review of civil service exam to assess possible sources of bias (women, Dalits and Janajatis. (PRSC: Medium Term Policy

Training provided to women, Janajati and Dalit graduates

55

Mainstreaming Gender Equity Program 56

Immediate Action Plan, Draft Progress Report, 2003/04.

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MoGA Road Map

MGEP- UNDP55

ADB World Bank National Planning Commission56

Remove the age limit for women to compete in examinations

policies, and discipline. For internal and inter-service competition, test problem solving capacity. Marking system: assess personality and problem solving Establish regional exam centers, change exam timing, allow responses in English Info dissemination on lateral entry Capacity building for women (coaching)

Test contextual and practical knowledge; provide job specific training Course curriculum include women’s studies, gender issues Training for women as preparation for exams and promotion Outreach, district women’s development office involved

Reform Matrix)

Women Friendly Environment

Family friendly—maternity leave, flex time, complaint management, child care facilities

Post women as CDO, LDOs and DGs Family friendly provisions, day care, husband and wife in same district, paternity leave, increased maternity, mourning leave, provision of toilets in workplaces , etc

Family friendly—flex-time, maternity leave, sexual harassment code, etc Toilets, day care, transparent work places, etc

Employment Conditions, Promotion etc.

Conduct a study on appointing only women as WDOs and other similar positions. Mandatory inclusion of women in award program each year. Priority for scholarship

Regularize WDOs At least one woman promoted to Secretary level Regularly assess promotion opportunities Pension adjustment

Regularize WDOs through merit-based exam system Remote area experience reduced Non residential, 6 months on the job training for women Civil service awards

Accountability Gender audit gender audits Organizational Gender audit—program,

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MoGA Road Map

MGEP- UNDP55

ADB World Bank National Planning Commission56

of policies, program benefits to women

goal and mission Develop performance indicators re: increase of women Develop a performance management system to include budget and program for gender mainstreaming

Organizational strengthening for gender equality

Mobilize tech assistance for women’s empowerment in the civil service

Gender mainstreaming committee of secretaries Establish a Gender Unit at MoGA, other ministries monitor gender issues in all civil service Generate and maintain data base on women in civil service

High level cross-ministerial committee to monitor and encourage gender mainstreaming Representation of women compulsory on constitutional bodies Benefits and motivations for women Establish a Women in Public Management Institute; women's mentoring system Senior position in MoGA to oversee gender mainstreaming Sensitization program for men and women; involve NASC in gender sensitization program

Workshop in collaboration with MOGA and other donors on approaches to affirmative action (CAS) Scholarship and intern program (PRSC)

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