Quotas for Electing Women: Path to Empowerment or Peril? Part 2

Part I >> Part II

Part II continues the discussion on whether legally mandated quotas should be used as affirmative mechanisms to increase women’s political representation in national legislatures. The discussion explores the advantages of legally mandated quotas systems used in 46 countries, the perils of quotas, and whether quota systems could be considered discriminatory under international human rights law.

The Argument in Support of Gender Quota Systems

The 2008-2009 Report asserts that the political accountability cycle requires the transformation of politics to include women’s representation and that quotas do work to achieve that goal.

Pro Argument #1: Beneficial Policy Outcomes
To show the successful and beneficial outcomes, the 2008-2009 Report relies on case studies in Norway and India to show that women “often have a different set of demands than men, and a more representative assembly will lead to a different set of policy outputs.” In Norway, public childcare coverage increased in municipalities with women on the city council. In India, women influenced increased funding for drinking water projects rather than road projects.

To help underscore and demonstrate why women are necessary in the political process, the report divided women’s perspectives and their contributions to the policy outputs into three categories: women’s interests, gender interests, and gender equality interests. Women’s interests include the broad range of interests from social to defense, and are not necessarily gender-specific. Gender interests include those “because of” being a woman and may include pregnancy, reproductive health, and violence against women. Gender equality rights are those that seek to rectify inequities between men and women and may include divorce rights, inheritance, and real estate property rights. The report likely would assert that these three interests also are reflected in the high-level positions of national public office currently held by women. According to the IPU, of the portfolios held by high-level women in elected or appointed Ministerial positions, the top five categories are social affairs, family/children, women’s affairs, education, and the environment. Less than 10 portfolios are held in information and the media, parliamentary affairs, and defense/veteran’s affairs.

Pro Argument #2: Statistical Success in Mandated Quotas
The strongest arguments in favor of imposing quotas, either voluntary or compulsory, include their prevalence in countries with the highest percentages of women in legislative office and their relative efficiency at producing quantitative results. Proponents of quotas will point out the strong relationship between quotas and the reality of women in office. Worldwide, 46 countries rely on some type of constitutional or electoral quota system and have a combined higher average rate of women’s representation than without quotas. Significantly, of the 23 countries with more than 30% representation by women in national legislatures, 11 countries impose mandatory quotas, and 8 countries have political parties that voluntarily establish quotas. (see table below).

In 7 of the 11 countries with constitutional and electoral law quotas, legal sanctions can compel compliance: Argentina (30% minimum women), Belgium (30% minimum both genders), Costa Rica (40% minimum women), Macedonia (30% minimum both genders), Nepal, Rwanda (30% minimum women), and Spain (40% minimum/60% maximum both genders). Sanctions for electoral law violations generally obligate the electoral authorities to reject individual candidates and/or entire party lists. Three countries allow financial penalties for noncompliance: Albania, France, and Portugal.

The Institute for Democracy and Electoral Assistance attributes the dramatic increases in women’s representation in specific countries to the mandatory quotas and their enforcement mechanisms. For example, Rwanda’s “fast-track” representation model began with mandated Constitutional quotas adopted in 2003 and substantially increased women in office in the span of 5 years. In the first election after the adoption of the 2003 Constitution, women gained 48% in the lower house and 30% in the upper house. By 2008, Rwanda surpassed Sweden, the long-time champion, and, at 56.3%, achieved a landmark by becoming the first country to have a women majority in parliament. In addition to the constitutional quotas, Rwanda also imposes quotas through its election laws and provides for legal sanctions for noncompliance.

Only 4 of the leading countries impose no quotas: Cuba (43.2%), Denmark (38%), Finland (41.5%), and New Zealand (33.1%).

The report concludes that increasing the number of women in elected or appointed public office through mandated quotas is an “important means” to achieving accountability to women and to politics. It further cautions that “States that do no endorse these measures [quotas] should be held to account if they do not take alternative steps to enable more women to attain representative office.”

Pro Argument #3: Elimination of Discrimination Against Women
The 2008-2009 Report cites a study by UK-based Fawcett Society that asserts the barriers are due to the “four Cs” of: (1) confidence, (2) culture, (3) childcare, and (4) cash. As such, the gender-role expectation poses actual barriers to political participation, especially with respect to leadership positions. Thus, quotas are necessary measures to correct historic discriminatory barriers faced by women seeking political seats and equal representation. Such removal of barriers is necessary to make real the promises of Article 21 of the Universal Declaration of Human Rights, which grants every person the basic right to participate “in the government of his country, directly or through freely chosen representatives.”

The Perils of Quota Systems

If mandated gender quotas have achieved such success, where are the pitfalls and dangers?

Peril #1: Undemocratic
In an effort to promote equality by giving preference to women, quotas denote a sense of violating the principle of equal opportunity for all citizens. Should qualified male candidates be excluded to promote the opportunity for a less-electable female candidate? This question raises two issues: equal opportunity and competitive equality. Equal opportunity means to ensure that there are no legal barriers to suffrage, to formation of or participation in political parties, and/or to petition to run as an independent candidate as applicable by national law. Competitive equality refers to the competition of candidates for selection, nomination to the ballet, and votes. If candidates have equal opportunity, should there be quotas to promote competitive equality? If so, when should those quotas be imposed, by which institutions, for how long, and for what outcome?

The United States offers an interesting example because it is an established democracy with historic under representation of women in national elected office. Women received equal opportunity to participate in the national political process when they gained suffrage under the 19th Amendment on August 26, 1920. Yet, 88 years later, the statistics suggest that the American women still lack competitive equality in running and holding national office. In its history, only 246 women have served in Congress, 90 of which currently are in office. In the 110th U.S. Congress, which took office in January 2007, women comprise 74 of 435 in the House of Representatives (17%) and 16 of 100 in the Senate (16%). In the 2008 election cycle, of the 33 Senate races, women are running for 7 seats, with 3 women incumbents. In races for the House of Representatives, 133 women candidates are running on major party tickets. See the Center for American Women in Politics at Rutgers University for updates. For the U.S. to achieve the goal of 30% recognized at the Fourth World Conference on Women. Action for Equality, Development and Peace in 1995 in Beijing, nearly every female candidate currently running would need to be elected in November 2008. Further, according to the 2008-2009 Report, the U.S. government should be “held to account” if the government does not take steps to enable more women to attain representative office and if women’s representation continues to fall below target levels. Such governmental interference, however, screams “undemocractic” because it removes the choice from the voters to select, nominate, and elect the candidates of their choice without governmental interference. Moreover, the doubling of women candidates in 1992 did not require mandated quotas. Would the use of quotas to require a minimum of additional female candidates on all ballots be valued as democratic? Would reserving Congressional seats based on gender, rather than geographical distribution, be valued as democratic? Or would such action be perceived as direct discrimination of men? Are the compensatory measures needed to achieve what the 1995 Beijing Conference referred to as “equality of result”? Or will the answer be found in overall increased political participation by women in political parties and by the exercise of their votes?

In contrast to the situation of the United States, would compensatory measures to promote gender representation in a post-conflict or emerging/reforming state, such as those without a history of women involved in democratic processes, be valued as beneficial temporary mechanisms to ensure appropriate power-sharing? Does the establishment of equal opportunity in emergent states or re-establishment of it in post-conflict societies provide greater justification for quotas as a means to implement equal opportunity and sustainable competitive equality? This argument can best be articulated by the experiences of women in Kuwait, who have twice unsuccessfully put forth women candidates for national assembly since gaining the right to vote in 2005. No woman has yet to be elected into office. Kuwaiti women advocates contend that this demonstrates a glass ceiling in society that is impairing competitive equality at the polls and preventing equal opportunity for eligible women voters to register and to exercise their right to vote. These advocates call for increased affirmative mechanisms as a requirement of democracy.

Peril #2: Lack of Enforcement Mechanisms
Women in Ecuador and Peru have discovered the perils of having quotas without effective enforcement. In Ecuador, Article 7 of the Electoral Law of 2000 requires the Supreme Electoral Tribunal/National Elections Panel to reject noncompliant party lists. When some parties did not have the requisite quota in 2000, the Tribunal did not reject the noncompliant lists, leaving potential women candidates without recourse. In Peru, the National Board of Elections has the permissive authority to reject noncompliant lists. When the Board failed to exercise its authority, women’s organizations brought the case to the Inter-American Commission of Human Rights on the basis of three human rights violations: the rights to participate in government, equal protection, and freedom from discrimination. See Janet Espinoza Feria et al. v. Peru, Case 12.404, Report No. 51/02, Inter-Am. C.H.R., Doc. 5 rev. 1 at 403 (2002). The Commission accepted the admissibility of the case but has not issued further decisions or reports.

Peril #3: Reverse Discrimination Effects
In arguing its case before the Inter-American Commission on Human Rights in 2002, Peru argued that minimum quotas for women create a distinction in favor of women and thus constitutes anti-male discrimination. With minimums but no maximums, all the candidates could be women with no men. Thus, because the law protects a minimum number of women but not the minimum number of men, Peru argues that the law supports reverse discrimination.

Peril #4: Quotas as Representation Without Actual Power
Mandated quotas carry the risks of restricting women to specific or narrow functions in national office. For example, women may be elected into reserved seats with the power to vote for/against legislation but then may be precluded from participation in committees or the shaping of the legislative agenda. For example, women may be excluded from the committees determining which bills will reach the floor for a vote or the committees responsible for drafting of budget legislation. Thus, statistical representation does not confer adequate opportunities of participation or the effectiveness of quotas at achieving policy outcomes. To achieve the goal of improved and effective governance and to ensure substantive representation, quotas also may require institutional reforms, capacity building, resource allocation, and mentorship/training.

Peril #5: Quotas as a Glass Half-Full/Half-Empty: Elected for the “Women’s” Agenda
Some women candidates disfavor quotas because they undermine their political strength once in office or limit their range of actions. They contend that colleagues tend not to view them as equal in competence. This situation becomes even more problematic in reserved-seat quota systems when a woman wins a non-reserved “open” seat and thus achieve greater representation by women than mandated. Moreover, some women candidates feel that quotas reinforce the preconception that any woman candidate will represent and be limited to the “women’s agenda.” These agenda items include, among other things, the traditional issues of childcare, social welfare, and families. This preconception is seen as making it harder for women to participate in the substantive agenda items related to defense, budgets, agriculture, communications, and national security. It also favors the assignment of women’s agenda items to women because they are women.

Are Quotas Discriminatory? Do Quotas Violate International Human Rights Law?

Article 21 of the Universal Declaration of Human Rights guarantees: (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives, and (2) Everyone has the right of equal access to public service in his country. Do gender-based quotas infringe on individual rights by favoring one gender or by restricting the ability to “freely” chose?

Similarly, Article 25 of the International Covenant on Civil and Political Rights (ICCPR) grants every citizen the rights: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; and (c) to have access, on general terms of equality, to public service in his country.

Quotas arguably constitute a legitimate means to ensure the rights of equality and political participation. As a result, quotas may be lawful under international human rights law provided that they constitute a permissible temporary derogation. Article 4 of the Convention on the Elimination of All Forms of Discrimination Against Women supports such “temporary” derogations when necessary to achieve gender equity. When the measure is no longer required because equity has been achieved, the affirmative mechanism must be terminated.

The issue then becomes what constitutes a temporary measure, and, second, when have the objectives been achieved?

Should quotas in constitutions be considered permanent or non-temporary measures because of the normative value placed on national constitutions as slowly changing instruments? An argument could be made that constitutions do change and have been changing frequently worldwide and thus, such constitutionally mandated quotas could be temporary. A different argument could be made that the constitution defines the quota but that the implementation is temporary and is triggered only when necessary. As such, the quota’s implementation is solely temporary and discontinued during times when equal rates of representation are achieved. The counterargument is that codification in a constitution violates international law because the restriction is always mandated and thus is not temporary.

Upcoming Book: For supply and demand proponents who question whether the gender divide issue is one of democratic and free markets at work, Mona Lena Krook at Washington University examined the counterargument in a 2006 article: Beyond Supply and Demand, Gender Quotas and Institutions of Candidate Selection. She reflects on the normative values of quotas and institutional roles. Her book, Quotas for Women in Politics: Gender and Candidate Selection Reform Worldwide, will be published in early 2009 by Oxford University Press.

Quota Statistics

• UNIFEM: Progress of the World’s Women 2008-2009 Report
• Inter-Parliamentary Union (IPU)
• Global Database of Quotas for Women
• International Institute for Democracy and Electoral Assistance (International IDEA)

UN Agencies and Programs

• UN Development Fund for Women (UNIFEM)
• UN Division for the Advancement of Women (DAW)
• United Nations Economic and Social Council (ECOSOC), Commission on the Status of Women
• United Nations Development Programme, Millennium Development Goals

International Instruments, Agreements, and Declarations

• Universal Declaration of Human Rights
• International Covenant on Civil and Political Rights (ICCPR)
• Convention on the Elimination of All Forms of Discrimination Against Women and Optional Protocol
• 1995 Beijing Declaration and Platform for Action (1995)
• 23rd Special Session of the UN General Assembly (2000)