IMPLEMENTING AFFIRMATIVE ACTION IN PUBLIC SERVICES:

Comparative Administrative Practice

Acronyms

AFHQ Armed Forces Headquarters AIR All India ReporterAIS All India ServicesANC African National Congress BN Barisan Nasional COSATU Congress of South African Trade UnionsDPC Departmental Promotion CommitteeDPSA Department of Public Service and Administration (SA)HDI Human Development Index (UNDP)IAS Indian Administrative ServiceIPS Indian Police ServiceIFS Indian Forest ServiceINSAP Institute of Applied PolicyMADS Malaysian Administrative and Diplomatic ServiceMAS Malay Administrative ServiceMCS Malayan Civil ServiceNEP New Economic Policy NGO Non Governmental OrganizationNP National Party OBC Other Backward Classes (India)PAWC Provincial Administration of the Western Cape PEP Provincial Executive ProgramsPPP Purchasing Power ParityPSC Public Service Commission PSD Public Services Department PTD Perkhidmatan Tadbir dan Diplomatik RDP Reconstruction and Development Program RSA Republic of South AfricaSC Scheduled Caste SSC Staff Selection Commission ST Scheduled Tribe UNDP United Nations Development ProgramUNMO United Malay National OrganizationUNRISD United Nations Research in Social DevelopmentUPSC Union Public Service Commission WPTPS White Paper on the Transformation of the Public Service

ii

About this report

This report is part of an initiative by PREM Network’s Public Sector Group to compile, analyze and present Comparative Administrative Practices in different areas of pubic sector management. It describes how different public services have designed, implemented and monitored affirmative action. Knowing how governments implement affirmative action is useful for understanding pressures to expand public employment. It provides insight into how difficult reform options can be carried through.

The analysis draws upon four case studies of the public services of India, Malaysia, Nigeria and South Africa that were prepared for the World Bank’s Governance Knowledge Sharing Program. Pachampet Sundaram, independent consultant, wrote the case studies of India and Malaysia. Professor John Erero of the Department of Public Administration, Obafemi Awolowo University, Ile-Ife, Nigeria and Babatunde Oyedeji, Independent Policy Group, Abuja wrote the case study on Nigeria with the assistance of Ayo Adesopo of Obafemi Awolowo University. The South African case study was written by Professor Robert Cameron of the Department of Political Studies, University of Cape Town. The study was designed by Ranjana Mukherjee and Ladipo Adamolekun who also analyzed the cases and prepared the summary of findings.

iii

ContentsI. Introduction..................................................................................................................1II. Summary of findings...................................................................................................5

II A. Who is preferred, and to what extent?.............................................................5II B. Implementation..............................................................................................10II C. Monitoring.....................................................................................................14II D. Results............................................................................................................18

III. Affirmative Action in India’s public service: A case study..................................21III A. Background....................................................................................................21III B. Implementation Framework...........................................................................24III C. Enforcement of Affirmative Action...............................................................29III D. Effect of Affirmative Action on Civil Service..............................................32III E. Future of Affirmative Action in Public Service............................................37III F. Appendices....................................................................................................39

IV. Affirmative Action in Malaysia’s Public Service: A case study...........................41IV A. Background....................................................................................................41IV B. Context, Objectives, and Framework of Affirmative Action in Public Service

44IV C. Enforcement of Affirmative Action and its Effect........................................46IV D. Consequences of Affirmative Action for Public Service..............................50IV E. Future of Affirmative Action in Public Service............................................51

V. Affirmative Action in Nigeria’s Public Service: A case Study.................................53V A. Background....................................................................................................53

V B. Objectives of Affirmative Action and Relevant Constitutional Provisions, Laws, Rules, and Regulations........................................................................................56

V C. Enforcement Record to Date and Impact on the Composition of the Civil Service 58

V D. Assessment of the Consequences of “Federal Character” for Civil Service Performance...................................................................................................................63V E. Concluding Observations...............................................................................64V F. Appendix........................................................................................................67

VI. Affirmative Action in the South African Public service: A case Study................72VI A. Background....................................................................................................72VI B. Objectives of Affirmative Action and the Relevant Constitutional Provisions, Laws, Rules, and Regulations........................................................................................75

VI C. Enforcement Record to Date and the Impact on the Composition of the Public Service................................................................................................................79VI D. Assessment of the Consequences for Public Service Performance...............83VI E. Conclusions....................................................................................................89VI F. Appendix........................................................................................................90

VII. References, by Chapter..........................................................................................93

iv

List of tables

Table II.1. Summary of Groups Preferred in Federal Public Service..................................8Table III.1. India: Combined representation of SC and ST in different service groups (as

% of federal government employment).....................................................................32Table III.2. India: Combined Representation of SC and ST public sector enterprises of

central government, 2000..........................................................................................32Table III.3. India: Vacancies filled in All Civil Services..................................................33Table III.4. India: Recruitment of Other Backward Classes.............................................33Table IV.1. Malaysia: Ethnic composition of population in Malaysia (including North

Borneo), 1957–2000..................................................................................................41Table IV.2. Malaysia: Public Employment in Malaysia (2002)........................................43Table IV.3. Malaysia: Ethnic Composition of Public Service...........................................48Table IV.4. Malaysia: Ethnic representation in top positions in federal ministries, 2000 49Table IV.5. Malaysia: Women in public service, 1999.....................................................50Table IV.6. Malaysia: Education levels in MCS by ethnic origin, 1971...........................50Table V.1. Nigeria: Selected macroeconomic and social indicators.................................55Table V.2. Nigeria: Gender representation, March 2003..................................................58Table V.3. Nigeria: Consolidated Statistics of FCS (Presidency, Federal Ministries, and

Extra-Ministerial Departments), 2000.......................................................................67Table V.4. Nigeria: Staff distribution summary by state and category, 2003...................68Table V.5. Nigeria: Summary of consolidated statistics of the FCS, selected years.........69Table V.6. Nigeria: Total staff distribution by geopolitical zones, selected years ...........71Table V.7. Nigeria: Analysis of the impact of implementing federal character principle

(by state)....................................................................................................................71Table VI.1. South Africa: Human Development Index.....................................................73Table VI.2.South Africa: percentage of black managers 1995–2004................................82Table VI.3. South Africa: Gender composition in management, 1995–2004...................83

v

I. INTRODUCTION

Affirmative action means special consideration for disadvantaged groups in publicly funded opportunities. The purpose is to level the playing field as the groups preferred are often those that have discriminated against in the past. Many governments around the world have affirmative action policies in public service composition, in publicly provided education and in government contracting decisions.

This report focuses on the implementation of affirmative action in only one of these areas — the public service, which is a critical arena for its execution. Being a government’s ‘face’ to its citizens, the public service is a vital ground for governments to demonstrate their commitment to affirmative action, and for citizens to check if the ‘face’ of the public service reflects the community that pays the salaries of the officials and uses services they provide. This investigation focused on how government policies on affirmative action in public service are converted into personnel management rules and practices. The specific objectives of the study were to check what composition of public service was sought to be achieved via affirmative action; examine patterns in implementation; review monitoring methods; and observe any discernible effects that preference might have on public service performance.

PurposeAffirmative action in public service has implications for its size and shape. Recruitment quotas are a common method of implementing preference in personnel management. Having such quotas brings forth the need to fill them even while the government attempts to control the overall size of its workforce, thus exerting upward pressure on the wage bill. Knowing that there are quotas to be filled raises the probability of patronage appointments. Affirmative action aims to alter public organizations’ demographics by increasing proportion of targeted groups. But the same lack of opportunity which caused under-representation of the disadvantaged group(s) also makes desired skills scarce in those preferred groups. So, recruitment quotas tend to become filled at lower levels of public service but under-filled at technical and managerial levels. This can run counter to governments’ attempts to shape a more professional civil service.

Observing the effects of affirmative action can provide useful guidance on what contributes to public organizations’ performance. For example, increasing functional diversity, merit-based selection and employees’ morale are all supposed to improve organizational performance. Through increasing social diversity, affirmative action also promotes functional diversity (Schneider and Northcraft, 1999). So, the performance of organizations implementing affirmative action should improve over time. On the other hand, merit-based selection is considered an essential feature of a good public service. If officials are selected according to social attributes instead of merit, then performance of organizations that implement affirmative action should deteriorate over time. If career development is based on considerations other than merit, it could lower the morale of general employees. By this argument, lowered morale of the larger population of general employees in a public organization that implements affirmative action should negatively affect that organizations’ performance.

1

Implementation success of affirmative action can help understand which institutional reforms are likely to succeed or fail in that particular administrative tradition. For example, developing countries that implement affirmative action in public service have often emerged from colonialism with Western state forms, but with societies deeply divided along tribal lines. They resemble the Napoleonic state where nation-building has focused on overcoming deep divisions in civil society. Recognizing this pattern could help identify their unified administrative structure, and potential resistance to political decentralization1.

Affirmative action’s implementation experience can provide insight on how staff incentives can challenge project implementation. Officials often resist reforms when they perceive that their current status quo will be disturbed or benefits will be eroded. For example, incorporating more women in the government’s workforce requires wider consideration of family-friendly policies and flexible schedules. Managers used to the old way and male employees who believe this will add to their workload may resent these changes. Increasing numbers from preferred ethnic groups could make existing dominant groups perceive that their preserve is threatened and lead them to resist the change. Understanding how these changes were managed during affirmative action can help implementation of other institutional reform strategies.

MethodologyImplementation patterns were observed by examining the public services of India, Malaysia, Nigeria and South Africa through the lens of affirmative action. In each of these countries, job reservation in public service has generated much debate, both for and against. The populations, from which public employees are drawn, have significant divisions along ethnicity/race, religion, language, and social groups such as class and caste. Each has a strong tradition of public service (inherited from the same British colonial power) and a career in public service is well regarded. Government employment is associated with social prestige, so there is keen interest and scrutiny of how affirmative action is implemented in service. Malaysia, the smallest among these four countries, has a population of 25 million, while South Africa’s population is 45 million. Nigeria (135 million) and India (1.06 billion) are among the ten largest countries in the world. Studying this mix of moderate and large-sized countries allows a probing of some of the complexities of affirmative action. Furthermore, these countries allow a check of whether the practice of affirmative action has changed much with time. India has been implementing affirmative action policies longer than any other developing or transition country, beginning in 1935 during British colonial times, and subsequently provided for in its constitution after independence in 1947. South Africa’s experiment was launched in the mid-1990s. Malaysia and Nigeria launched their own affirmative action policies in-between the other two countries. Taken together, this group of countries provides a range of practices that allow general lessons to be drawn.

1 See Administrative Traditions at http://www1.worldbank.org/sector/civilservice/traditions.htm

2

ScopeIt is important to clarify what this study is not about. It did not focus on the theory or why of affirmative action although that background was useful to understand the forces sustaining affirmative action. Instead, it concentrated on what groups are preferred, and how governments implement their affirmative action policies. The aim was to identify, for each of the selected countries, groups that are meant to benefit from affirmative action, what targets were set, how each government converts its social policy into affirmative action, and check for similarities and differences in implementation and its effect on public services.

The subject was not how governments manage diversity in the workplace, a topic gaining importance in the personnel management of many developed countries. Affirmative action is different from diversity management. It involves legally driven government actions of hiring and promotion decisions, while diversity management is described as a managerial process for developing an environment that works for all employees (Thomas 1992). Publicly funded organizations are bound to implement affirmative action policies while diversity management is a good practice followed by both public and private organizations. For example, most of US’s largest companies have diversity directors or managers (Ospina 2001). Affirmative action is directed towards specific target groups with the objective of changing organizational demographics, while diversity management involves the different perspectives people bring due to race, workplace styles, disabilities, and other differences.

The word public service has been used to describe employees of organizations that are funded or controlled by government. It includes employees of central ministries and departments, state owned enterprises, and sub-national governments; and education and health professionals employed in government-funded organizations2. The scope of this study was widened beyond civil service to public service as most affirmative action policies apply not only to employees who enjoy civil service status, but to employment in all public organizations that receive budget support from the government. Notable exceptions to this general rule are the armed forces of India and the police in Malaysia. However, in keeping with World Bank policies, police and armed forces were outside the scope of this investigation. Recognizing that different levels of government may have different targets and methods of achieving them, this study concentrates on the practice of affirmative action at the national level, pointing out wherever possible any major departures from this practice at the sub-national level. The words central and federal have been used to mean national government, while both state and provincial denote the next level of government.

Race and ethnicity feature frequently and together in the discuss on affirmative action not only in the four selected countries, but worldwide. They mean different things. Race refers to a biological species, while both physical and cultural characteristics can be used to classify people into ethnic groups or categories. This report has ignored the distinction

2 See Defining Government Employment at http://www1.worldbank.org/publicsector/civilservice/wageconcerns.htm

3

between race and ethnicity, and has used the terms interchangeably depending upon the tradition of the public service where it applied.

Organization of this reportThe summary of findings contained in the next chapter is followed by the four individual case studies of India, Malaysia, Nigeria, and South Africa. These provide the context and details of how affirmative action is implemented in each of the four public services.

As part of the findings, the first section (A) examines which groups are preferred within each public service. What targets are set for representation of each group? Can different groups get different preferences? Comparing across public services, which is the most popular preference ? Section B describes implementation mechanisms, and particularly how each country has structured authority and responsibility to implement, and what support and tools are available. Monitoring and grievance redressal are summarized next in Section C. Finally, Section D checks the impact of affirmative action: to what extent have the objectives intended for the public sector been achieved?

4

India – Preferences other than job reservations

Apart from reservations, affirmation for preferred groups is in the form of

Raising the maximum age limit for recruitment in public service up to five years and unlimited chances within this age limit;

Exemption from payment of examination fees; Notification of all vacancies of SC and ST to Employment

Exchanges and sufficient advertisement in newspapers; Carry-forward of vacancies, which could not be filled in a

particular year for want of suitable candidates, and allowing these vacancies to be filled over and above the limit of 50% for all backward classes;

Persons, who are appointed on merit and not owing to reservation or any concession, will not be adjusted against reservation quota.

II. SUMMARY OF FINDINGS

II A. WHO IS PREFERRED, AND TO WHAT EXTENT?This section examines which groups are preferred within each public service, and the preferences designed to benefit them. What composition targets are set for each group? The section also checks for patterns across public services: which criterion receives the most emphasis in affirmative action? Do all preferred groups receive the same preferences?

IndiaThe government’s affirmative actions are aimed at those who were historically forced to remain outside the social mainstream. This includes a. Scheduled Castes (SC) i.e. castes listed in a schedule of the constitution. Called Harijan by Mahatma Gandhi and dalits in recent times, this group suffered rigid social exclusion and untouchability by being born in the lowest stratum of Hindu society; and 15% of public service positions are reserved for this group.b. Scheduled Tribes (ST) i.e. tribes listed in the constitution. These groups, numbering 250, and speaking 105 distinct languages, remained outside the social mainstream of the country; and 7.5% of public service positions are reserved for them.

c. Other Backward Classes (OBC), which is the official name for those among the 3000 sub-castes of Hindus who also suffered discrimination based on birth, and for whom 27% of posts are reserved. This last category has been preferred since 1993, more recently than when preferences for the other two groups were made explicit.

Reservation for these three groups listed above are categorized as ‘vertical.’ The three preferred vertical groups receive slightly different preferences, as explained later in this section. The disabled, ex-army personnel, sports persons, or legal heirs of deceased government employees are also preferred groups in central and many state governments, but reservations for these categories are called ‘horizontal.’ The horizontal

reservations, made on grounds other than caste, tribe or class backwardness lay down preferences within each of the four vertical categories: Scheduled Caste, Scheduled Tribe, Other Backward Class, and General / Unreserved. A few state governments have reserved positions for women. For 10 years after independence, Anglo Indians were a preferred groups and jobs were reserved for them.

5

Apart from these preferences laid down by central government, some state governments have stated preferences for locally dominant groups like the Maratha in Maharashtra and the Assamese in Assam. These state-specific preferences are different from the centrally mandated ones: groups preferred by state governments have not suffered past discrimination, but as local candidates receive protection from competition from candidates belonging to other states. The state government of Andhra Pradesh has zonal and district level quotas in unskilled jobs for people of the Telengana region of the state.

MalaysiaAffirmative action in public service composition is aimed to benefit ethnic Malays and other bumiputras (sons of the soil) who now comprise two thirds of the population and 90% of the public service. During British colonial rule, Malays were under-represented in public service as compared with Chinese and Indian settlers, who were better qualified for government positions. British administrators supported Malaynization of the public service. Long before Malaysia’s independence (1957), a 1943 regulation reserved 80% of positions in the elite Malay Civil Service (MCS) for Malays. The Malay Administrative Service, created in 1910 for government positions subordinate to the MCS, was closed to non-Malays until 1952. Quotas for Malays were continued in the independent country’s public service.

In addition to preference for bumiputras, 1% of total public employment in federal, state and local governments and statutory boards is reserved for handicapped persons according to Service Circular 10 of 1988. The visually handicapped, hearing and speech-impaired and the physically handicapped are included in this affirmative action, but only those handicapped persons registered with the Ministry of National Unity and Social Development are eligible.

NigeriaAffirmative action in federal public service composition is aimed at proportional representation of ethno-linguistic and religious groups in the different geographical regions of the country. This goal was enshrined as the principle of federal character in the country’s 1979 Constitution. Although both the 1979 and 1999 Constitutions emphasized the need for all constituent states to be represented in the federal public service, the preferences expressed still translate broadly to ethnic preferences. Each of Nigeria’s 36 states is meant to contribute 2.75% of the federal public service, while 1% is supposed to be constituted from people belonging to the Federal Capital Territory (FCT). When the number of vacancies is too small to include representatives from all 36 states and the FCT, or when insufficient candidates from a particular state is unable to fulfill its quota of public service composition, states and clubbed into 6 zones. Positions are distributed evenly among North West, North Central, North East, South West, South-South, and South East.

The Nigerian constitution also requires public service composition at the state and local government levels to reflect the diversity of ethno-linguistic, communal and religious groups within their respective territorial areas. In addition to these centrally mandated

6

preferences, Nigeria’s Federal Character Commission (FCC) has recently re-affirmed that field offices of federal government are expected to hire at least 75% of staff in the lower grades (GL 01- 06) from among those who live in the catchment areas of the organizations.

Nigeria’s constitution makes no mention of affirmative action in favor of women, persons with disabilities or veterans. Nor is there any reference to special treatment for these groups in personnel policies, rules and regulations.

South AfricaIn South Africa, affirmative action is targeted towards race, gender and disability. As a result of apartheid, an overwhelming majority (97%) of those in middle and senior management positions were white in 1990. Africans and coloreds (official term describing persons of mixed race) dominated homeland administrations. But even after these were amalgamated with the government, their proportion in management positions did not increase. By 1994, 85% of top government managers were white men, 10% were Asian men, 2% were white women and 0.06% were Asian women. The very small remaining balance (2.94%) of top management were African men and women, and colored men.

In 1995, the White Paper on the Transformation of the Public Services included the following targets: a. Within 4 years, 50% blacks at management level in all departments, b. Within 4 years, at least 30% of new recruits at senior and management level would be women, and

c. Within 10 years, people with disabilities would comprise 2% of the public service.

Available documentation suggests that these targets were not based on any objective data.

Patterns in preferenceEthnicity is the most popular criterion for public service affirmative action. This finding

is based on South Africa’s race criterion and Malaysia’s ethnic Malay criterion being used synonymously; and also realizing that Nigeria’s preference for geographical regions is a preference for ethnic groups inhabiting these regions. Disability as the next most popular preference, being affirmed in three out of the four countries reviewed, although its proportion of reservation is also the smallest, being between 1 and 3%. Women benefit from affirmative action in only one country (South Africa) out of the four. Caste is unique to society in Hinduism, India’s largest religion, and occurs nowhere else. The preferred groups in each country’s federal public service are summarized in Table II.1 below.

7

Table II.1. Summary of Groups Preferred in Federal Public ServiceAffirmative Action on the basis of India Malaysia Nigeria South

AfricaDisability x x xGeographical Region Ethnicity / Race

x x x x

Gender xSocial Stratum e.g. Caste x

Among the four country practices reviewed, only the South African public service has explicit targets for women. The reason could be that apartheid had discriminated against women: very few senior management positions were held by white women, while colored women were not represented at all. Since the end of apartheid, significant progress has been recorded in the proportion of women in management and senior management positions. Their ratio increased from 8% in 1995 to 25% in 2004. However, this is still below the 30% target set by the government.

India has affirmative action for women in local government composition but not in central government employment: one third of seats in rural and urban local governments are reserved for women contestants. However, women’s proportion in federal public service has been rising, and women are appointed to very senior positions in central and state governments. A few state governments have implemented affirmative action for women in public service. In Karnataka, Andhra Pradesh, and Maharashtra, up to 33% of positions are ‘horizontally’ reserved for women within the preferred vertical groups, while Tamil Nadu government follows preferential appointment of women in some branches of public service.

Although there are no job quotas for women in Malaysia, government policies on women’s employment have been supportive. Recent policy guidelines permit women being hired as part-time workers, and when both husband and wife are in the public service, government posts them to the same place. Women occupy 50% of the federal posts at the professional and management levels, but only 6% at senior management (staff) level and 10% at super-scale. They are no women in the top three levels (chief secretary, staff, and super-scale) in state and local governments.

No public service positions are reserved for women in Nigeria. However, women already comprise more than one-third (37%) of the public service, though they constitute a smaller proportion at the higher levels: 24% in grades 15 to 17, and 17% at the (topmost) consolidated salary level.

Preference for the disabled receives the least attention among the preferred groups. In India, 3% of central government jobs are reserved for the disabled, with 1% each for persons suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy. But reservation for the disabled is a

8

horizontal reservation, so as not to override the less-than-50% directive of the Supreme Court. It means that 3% each of SC, ST, OBC and General positions can be filled by disabled persons. The affirmative action’s report format does not even contain a column for compiling information on disabled persons’ employment.

In South Africa, the record of affirmative action for the disabled has been so poor that the Department of Public Service and Administration does not even keep proper statistics. The disabled comprise a mere 0.3 % of management (PSC 2004, 37), which is a long way from the 2% target.

The Malaysian government’s policy has been to reserve at least 1% of total public employment in federal, state, and local governments and statutory boards for handicapped persons. Only handicapped persons registered with the Ministry of National Unity and Social Development are considered for special quota. The selection committees, including the Public Service Commission (PSC), consult the Ministry of Unity and Social Development on the kind of disability that will not affect performance on the job.

Both minor and major groups of the population are preferred for affirmative action. Target groups are usually a minority within the population in countries outside the four that were reviewed for this study. Looking to affirmative action in USA and New Zealand, blacks form one-eighth of the USA’s population, and Maoris constitute one-seventh of New Zealand’s population. In contrast, bumiputras in Malaysia (65%) and blacks in South Africa ( 75%) are the majority in those two countries’ populations. India’s Supreme Court deliberated the question of how much reservation: what proportion of positions could be reserved for affirmative action, and whether reservation should mirror the proportion of preferred groups in the population. The Supreme Court ruled that whatever the three preferred groups’ proportion in the population, reservation must be adjusted to stay within 50% of available positions. Nigeria’s affirmative action is technically aimed towards proportional representation in public service, but southerners have historically dominated the public service. So the groups that can benefit from affirmative action are the Hausa-Fulanis, who form about 28% of the population, and other much smaller ethnic groups of the north.

Preferred groups can receive different degrees of preference. In Malaysia, bumiputras do not enjoy any age-limit concessions, but those applying for positions reserved for the disabled do qualify for it. In India, one of the three vertically reserved categories—Other Backward Classes—enjoys fewer benefits of affirmative action than Scheduled Castes and Scheduled Tribes. Any person belonging to SC or ST, regardless of economic circumstance, is eligible for job reservation, but in order to be considered for reservation quota, OBC candidates must demonstrate that they have not enjoyed relative affluence and opportunities, that they do not belong to what the Supreme Court called the ‘creamy layer’. Another benefit,

9

extended to SC and ST, is unavailable to OBC. Positions filled by promotion are reserved for SC and ST, but not for OBC.

II B. IMPLEMENTATION This section examines each public service’s implementation framework for affirmative action. What gives government the authority to implement affirmative in public service? How is implementation responsibility structured? What support and tools are provided Can any broad patterns be discovered in implementation?

Authority to implementIn each of the four countries, the constitution was the source of government’s authority to implement affirmative action in public service. Indeed, affirmative action for previously disadvantaged groups is so important in the national psyche of all four countries that it is included among the founding principles in three out of the four constitutions: the Fundamental Rights and Directive Principles in the Indian and Nigerian constitutions, and in the Bill of Rights of the South African constitution.

Not only do the constitutions emphasize the need for affirmative action favoring some groups, they also provide a fairly detailed level of guidance on how to implement. For example, the Indian constitution grants overriding powers to government for making job reservations in public service, and exempts the government from consulting with the Union Public Service Commission (Article 320(4)). It directs the setting up of a National Commission for Scheduled Castes and Tribes (Article 338). The Nigerian constitution describes how the composition of the Government of the Federation or any of its agencies and the conduct of their affairs should reflect the federal character of Nigeria (Articles 14(3) and (4)). The Malaysian constitution (Article 153(2))directs that the Supreme Ruler to act on the advice of the council of Ministers and ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak. The South African constitution’s chapter on public administration makes a specific provision (Section 195(1)(i))for affirmative action in pubic service by saying that public administration must be broadly representative of the South African people, and the need to address imbalances of the past to achieve broad representation.

Institutional frameworkIndiaThe central government notifies which castes and tribes in each state are to be included in the constitution’s schedules, and can therefore qualify for affirmative action. In order to select which castes and tribes should be designated, the government conducts anthropological studies and obtains recommendations of state governments. Consultation with states is important because the designation of SC and ST is state-specific: a person may belong to a preferred caste in a particular state, but that caste may not be among the preferred castes in another state. So, a person moving from one state to another does not automatically carry over the preferred status of SC or ST to the new state. The notification of OBC is done by state governments, subject to the overall limit of 27% of the state’s population.

10

The central Ministry of Personnel, Public Grievances and Pensions frames guidelines about how to implement and monitor affirmative action in public service. Individual ministries, departments and public agencies then follow those guidelines and issue necessary executive directions. In addition, the different cadre-controlling authorities of the elite groups of civil servants (All India Services and Central Services) also issue guidelines for implementing affirmative action within their groups. The Ministry for Social Justice and Empowerment provides relevant information on disabled persons, SC and ST to the nodal Personnel Ministry.

The union and state public service commissions (UPSC and PSCs), which remain at arm’s length from line ministries and conduct recruitment, must also follow central government’s policies on affirmative action. Before advertising a position (to be filled by direct recruitment or promotion), the UPSC and PSCs obtain details of reservations for different categories and the reservation backlog for the cadre and service group to which the vacant position belongs.

MalaysiaWithin overall supervision by the Prime Minister’s Office, the federal Public Service Department (PSD) and the federal PSC are responsible for implementing affirmative action. The PSD controls the PTD service and also classifies posts and salary-scales. It controls the pension system and negotiates with staff unions. The PSC’s involvement in affirmative action is because it is in charge of personnel management practices such as appointment and promotion, and certification for pension and disciplinary matters for the entire civil service. (Commissions for Education, Police, Legal, Judiciary and Railways exercise these powers in respect of those services.) Although not formally responsible, the Ministry of Women and Family Development, in partnership with NGOs such as the National Council of Women’s Organizations, provides inputs for implementation of affirmative action.

NigeriaThe Federal Character Commission is responsible for implementation. For almost a decade after the 1979 Constitution first laid down the principle of federal character, no implementation guidelines were available except that at least one federal minister should be appointed from each state of the federation. This was subsequently followed by the practice of appointing at least one permanent secretary from each state so that no one state or group of states had monopoly of the top civil service positions. In 1988, implementation guidelines for the federal character principle were provided in the Civil Service (Re-organization) Decree 43. These guidelines were subsequently fine-tuned by the Federal Character Commission that was established by Decree No. 34 of 1996 and which became responsible for implementing affirmative action in public services in the federation. The FCC was enshrined in the country’s 1999 Constitution.

South AfricaThe Department of Public Service and Administration is responsible for coordinating individual departments’ implementation of affirmative action. It supports other

11

departments through public service-wide communication campaigns. It also develops and disseminates practical guidelines for implementing affirmative action policies. However, DPSA’s role is limited to coordination. Each national department and provincial administration is responsible for drawing up its own affirmative action plan and is expected to ensure its faithful implementation. As laid down in Section 20 of the Employment Equity Act, each public organization’s employment equity plan must include details of objectives to be achieved for each year of the plan; the affirmative action measures to be implemented; numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce; timetable; strategies to be used to achieve those goals; procedures that will be used to monitor and evaluate the implementation; and those who are responsible for implementing the plan.

Sharing of the recruitment power has the potential to cause coordination problems. By the Public Services Law (Amendment) Act of 1998, national and provincial ministers of different departments were given the power to appoint and promote. Thus the Minister of Public Service and Administration must hold cabinet colleagues to account for affirmative action targets, something that is difficult to do.

Implementation patternsNewspaper advertisements are effective for informing preferred groups about

employment opportunities available to them. In India, all vacancies reserved for SC and ST must be notified to all employment exchanges and advertised sufficiently widely in newspapers. In Nigeria, advertisements for employment of officers at federal level GL 07 and above need to be placed in at least two national dailies, with wide enough readerships to cover the entire country, and allowing application period of at least six weeks. In addition, a copy of the advertisement has to be sent to each state government for publicity at the state level. The South African government has directed that advertising procedure is critical to the success of achieving affirmative action targets: vacancies have to be advertised so as to reach the entire pool of potential applicants, especially the historically disadvantaged.

This review found the most well-documented tools and support for affirmative action in India’s public service. The reason could be that this public service has the longest experience of implementing affirmative action. Central and state governments follow a unique system called rosters that minimize public organizations’ difficulties in appointing preferred candidates in vacancies reserved for them. The rosters, described in Appendix 1 of the Indian case study, help departments determine which vacancies are to be reserved After determining the number of reserved vacancies on the basis of the roster, the selected candidates in all categories are arranged in order of merit.

Including affirmative action implementation in managers’ performance appraisal ensures their adequate attention. India’s senior pubic officials are assessed on their helpful behavior to persons belonging to preferred groups. South Africa’s White

12

Paper on Affirmative Action recommended that affirmative action objectives should be included in the performance contracts of Director-Generals, but this has not been implemented yet.

Some countries rely on future recruitment to progressively change the public service’s demographics. When reservations were introduced in India’s constitution, it was also stated that reservations would apply to future recruitment. Malaysian policies for affirmative action have never been retroactive. In spite of stated preferences for bumiputras, the Malaysian government employed non-Malays in senior positions of the professional and technical services because of the scarcity of technically qualified Malays at the time of independence. Expatriates were retained in the MCS on short-term contracts. In 1970, Malays held only 39% of the 4744 posts in the MCS, later called the Malaysian Administrative and Diplomatic Service. In both these countries, no existing staff was removed from their positions in order to change the demographics.

In contrast, serving public officials have been replaced in Nigeria and South Africa. Between 1954 and 1958, more than 2000 southerners were fired by Nigeria’s Northern Public Service and urged to go south (Sowell 2004). There were not enough qualified northerners to immediately replace them, and so the Northern Public Service had to recruit a large number of expatriates. Most recently, however, Nigeria’s FCC has directed that while redressing the imbalances in the federal public service, organizations should not resort to retrenchments but should fill vacancies arising from resignations, withdrawals, deaths, and dismissals (for disciplinary reasons) with people from states that were either not represented or under-represented. In South Africa, the interim Constitution contained a number of power-sharing mechanisms, including the ‘sunset clauses’ that were mechanisms to protect the jobs of existing white public servants. For a specified amount of time, these ‘sunset clauses’, coexisting with affirmative action, protected the jobs of existing civil servants that were employed before 1994. However, in 1996, officials in management and senior management positions were encouraged to take advantage of a voluntary separation package (VSP) introduced by the government. The VSP was perceived to have been introduced to encourage retirement of senior white managers and create space for affirmative action appointments. The government withdrew this offer in 2000, and the ‘sunset clause’ was not included in the final constitution.

13

II C. MONITORING Affirmative action in public service receives higher level monitoring than many other personnel policies. Because the policies follow from the countries’ constitutions, implementation is monitored by the legislature and implementing bodies are answerable to it. Not only is monitoring performed at a high level, it is followed closely by legislators and representatives of all political parties as they perceive political capital in benefits to constituents.

Summarized below are some patterns in monitoring of affirmative action in the four public services. The countries’ approaches to monitoring were similar and involved tracking targets in public service composition. Monitoring focused on checking if the recruiting organizations have complied with regulations. There seems little attention to utilizing these updates for evaluating whether or not disadvantages are bring reversed as intended.

Legislative OversightIn all four countries, Parliament monitored the implementation of affirmative action.

In India, Parliament obtains reports from the central and state governments and the National Commission for SC and ST. In order to generate these reports, every department, public enterprise, and government-funded agency reports to its controlling ministry about the total and grade-wise distribution of SC/ST/OBC amongst its employees as it stands on January 1 each year. Parliament also obtains annual reports from the Union Public Service Commission (UPSC) at the center, and State Service Commissions (SSCs) in the states, which must also specify which quotas could not be filled. Parliamentary committees such as the Joint Committee on Welfare of Scheduled Castes and Scheduled Tribes and the Standing Committee on Personnel sends study groups to ministries and public enterprises to assess implementation.

Because it is an act of sedition to question policies on affirmative action, it is only in Malaysian Parliament that representation of different ethnic groups in public service can be discussed. Indian and Chinese members of Parliament reacted to the actual figures of non-Malay representation in civil service. The Perspective Plan of 1990–2000 had estimated that the proportion of Chinese and Indian ethnic groups in public service would increase by 1 % each to 26.3% and 9% respectively. However, the actual figures for 2003 were vastly different with striking declines in the proportion of Chinese and Indian groups.

In Nigeria, both Parliament and FCC are responsible for monitoring affirmative action policies and ensuring compliance. Two parliamentary committees on the federal character, one in the Senate and the other in the House of Representatives, have oversight of the implementation of affirmative action. Either committee can summon the head of a ministry, department or agency to ask about the faithful implementation of affirmative action.

The South African parliament reviews the progress of affirmative actions in public service. It does this by obtaining reports from three organizations: Department of Public

14

Service and Administration (DPSA), PSC and Department of Labor. The Parliamentary Portfolio Committee on Public Service and Administration has the authority to take action against defaulting departments and administrations. It can summon national and provincial departments, and direct that a redress strategy be put in place to deliver specific actions within specified time-tables. In their annual budget vote speeches ministers report how their departments have progressed in achieving affirmative action targets; and since 2001, departments (national and provincial) are required to include affirmative action statistics in their annual reports.

Departmental monitoringIn addition to legislative oversight and inspections by India’s National Commission on SC and ST, the central Ministry of Personnel inspects organizational units to verify implementation of affirmative action. The inspections assess the department’s compliance in implementing orders for the reservation for SC and ST, the correct maintenance of rosters, and the procedures for filling vacancies reserved for these groups. Each department inspects agencies subordinate to it.

To ensure its effective monitoring of the application of Nigeria’s federal character principle, FCC representatives now participate in recruitment interviews for candidates entering the federal civil service. Recently, the FCC instituted two high profile measures against public organizations that had violated the federal character principle. It instituted a case against the National Investment Promotion Council NIPC, and ordered the National Assembly Service Commission to halt its employment interview for an alleged breach of federal character principle in the exercise. The National Assembly Commission had to respond to the issues raised by the FCC before it held the interviews.

Since 2001, individual departments of South Africa’s national and provincial governments must include affirmative action statistics in their annual reports. DPSA is responsible for evaluating the effectiveness of affirmative actions, for reporting and proposing amendments to the Parliamentary Portfolio Committee on Public Service and Administration. South Africa’s PSC observed that departments’ reporting on affirmative action has improved. However, the trend was to report on activities rather than results achieved, and achievements were not compared against the department’s implementation plan.

Grievance RedressIn India, any employee person aggrieved about the implementation of affirmative action in public service can complain to her / his departmental head, or directly to the Ministry of Personnel. If the executive fails to enforce reservation orders, the affected persons can approach the National Commission for Scheduled Class and Scheduled Tribes, the Commission for Backward Classes or the National Commission for Women. They may also approach the central or state administrative tribunals and High Courts for legal remedy.

In Malaysia, employees can complain to higher authorities and the PSC against wrongful implementation of affirmative action policies and ineffective implementation of circulars.

15

The Public Complaints Bureau also investigates complaints but details are not available. In 1971, legal changes were effected to entrench Article 153 and to make it an act of sedition for anyone to question the policies of affirmative action.

In 2003, Nigeria’s public service employees’ union was aggrieved that transfer of officials from government of under-represented states to senior positions in the federal civil service was blocking promotion prospects for serving officials. They complained in the media about the implementation of federal character and threatened court action against the head of federal civil service and the federal government. The association only desisted from court action after obtaining assurance that the transfers would be halted. Nigeria’s Public Complaints Commission is empowered to investigate complaints about the implementation of federal character.

Judicial ReviewIndian and South African courts have reviewed conflicts concerning affirmative action in pubic service.

In a series of judicial decisions, starting with Balaji Vs. State of Mysore (1963), and more recently in Indra Sawhney Vs. Union of India (1993), India’s Supreme Court has interpreted how constitutional provisions should be translated into personnel policy. It quashed government’s efforts to expand reservation to arbitrary limits, insisted on a clear definition of backward classes, the inclusion of economic criteria for OBC, and that the data supporting that economic criteria had to be recent enough to be reliable. The Supreme Court ruled that adequacy of representation does not mean proportional representation and that combined reservation for SC/ST and OBC could not exceed 50% of vacancies within a grade, cadre or service in any year.

Supreme Court judgments forced India’s central government to pass new legislation. When the court upheld that reservation could not dilute efficiency in administration, government amended the constitution in order to relax qualifying marks and standards of evaluation for SC and ST candidates. Government also amended the constitution in 1995 to make reservations for SC and ST (but not for OBC) in promotion to services and cadres, which did not have adequate representation of preferred groups in the opinion of the government.

Two recent court judgments during 2003-2004 have important implications for affirmative action in South Africa’s public service. In a landmark decision favoring affirmative action, the Cape Town Labor Court ruled that affirmative action provisions in the Employment Equity Act were more than just a shield to justify the appointment of designated groups over non-designated groups. The court ruled that it was more than just a defense in the hands of employers, and that onus is on the employer to eliminate unfair discrimination and promote affirmative action in the work place. It ruled that the Act ‘also serves as a sword’. However, in the recent Dudley vs. City of Cape Town case the Labor Court ruled that when an applicant is unhappy with the way in which an organization applies its affirmative action policy, (s)he must complain to the labor inspector and not go directly to the Labor Courts. Dudley had appealed this case and

16

referred the matter directly to the Constitutional Court. The Constitutional Court ruled against her arguing that the Employment Equity Act did not establish an individual right to affirmative action. It stated that the matter should have been referred to the Labor Appeal Court because it was a specialized court ‘charged with the responsibility of overseeing the on-going interpretation and application of labor laws’.

Prosecution Violating instructions about affirmative action is liable for prosecution in both India and South Africa.

Besides being liable for disciplinary action under civil service rules, heads of government departments in India can be prosecuted under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Persons with Disabilities Act. provides for punishment in respect of offenses listed in the Act. Prosecution can be initiated by the police or civil authorities. An aggrieved person can also file First Information Report ina police station, and also approach the court to order the police to investigate the offense.

South African government’s Department of Labor has the authority to take action against defaulting departments that fail to prepare and implement employment equity plans. A first time offender can be fined about R500 000 (approximately US $ 8000) for contravention of employment equity measures. Any employee or trade union representative may bring an alleged contravention of the Employment Equity Act, and especially chapter 5, which outlines monitoring, enforcement and legal proceedings, to the attention of another employee, an employer, a trade union, a workplace forum, a labor inspector, the Director-General or the PSC. Government has met its targets for black, but not for women or the disabled. But government departments are not being prosecuted for not following these provisions of the Employment Equity Act.

17

II D. RESULTS

The result of implementing affirmative action in public service can be evaluated for (a)the preferred groups that were intended to benefit from the policy, and (b)the public service, which is the arena for its implementation. The first evaluation, an area of concern to those working in social development, could cover large scale and targeted surveys of attitudes towards preferred groups, and examine issues such as preferred groups’ economic conditions before and after implementation, other social indicators, and the distribution of benefits. The latter evaluation, which is of interest to those working in public sector management and the present study asks: What have been the effects of affirmative action on public service performance? In the four country practices reviewed, where was there any attempt to evaluate if public organizations’ performance—whether service delivery or policy-making—had changed in any way as a result of artificially changing the demographics of the work force?

Affirmative action and public service performanceThis study could not locate any systematic evaluation of the impact on affirmative action on public service performance, either within the case studies of the four selected countries or outside them.

Positive outcomes of affirmative action were reported in the Indian and South African public service. Good effects included greater sincerity of purpose among officials who implement government-funded programs designed to benefit the preferred groups in the population at large. In India, fewer instances of corruption were reported of officials trying to extort money from beneficiaries belonging to disadvantaged groups. In South Africa, affirmative action has resulted in an increasing number of public servants that are able to communicate in the variety of languages spoken and significant increase in the number of public servants who have a greater understanding of the needs of the sections of communities who were neglected under apartheid.

Negative results were also reported. One Malaysian research, focusing only on public enterprises, found that performance was poor where senior personnel, including seconded PTD officers, have been overwhelmingly Malay. Flawed investment decisions and little effective supervision and oversight was reported in central enterprises staffed by PTD. Responses to surveys in Malaysia showed the prevalent perception of preference to non-Malays in public service career advancement deterred non-Malays from entering public service. The Nigerian report noted a decline in the quality of the public service since the 1980s but there was no evidence of its being the fallout of applying the federal character principle. Both the Malaysian and South African case studies highlighted significant numbers of managers and professionals from excluded groups leaving the public service, either for private sector jobs within the country or to seek opportunities abroad. However, no empirically robust connection was established between this large-scale exit and any glass ceiling experienced by non-preferred groups. Research in South Africa found that women appointed to top positions perceived being marginalized by their male colleagues.

18

Does affirmative action dilute the merit principle in pubic service?

This investigation attempted to find if any conflict between the two principles—affirmative action and merit principle—was confronted in any of the four public services. Was the risk of dilution of merit principle ignored, or acknowledged but accepted as small compared with the benefits?

In India, the issue was raised before Supreme Court in Devadasan Vs. Union of India (1985), K.C.Vasanthkumar Vs. State of Karnataka (SC 1985), and Comptroller and Auditor General Vs. Jagannatahn (SC 1987). Following Supreme Court’s warning about compromising the merit principle, government amended the constitution to allow preferences even if it conflicted with the merit principle. Currently, general administrative and managerial positions are amenable to preferences, but highly specialized technical positions (in medicine, engineering, electronics, and nuclear and space applications) are exempt from reservations.

Expanding scope of affirmative actionHas affirmative action been restricted to recruitment or extended to promotion? Does a member of a preferred group need assistance only to overcome the barrier to entry, and then encounter a level playing field? Does (s)he quickly acquire the attributes necessary to advance competitively within the public service, or need assistance to cross the hurdles of promotion? In all four public services, affirmative action extends beyond recruitment into promotion. Preference in promotion ranges from a legal basis, in India, to unstated practice in Malaysia and South Africa, to contradicting guidelines in Nigeria.

India’s Supreme Court had ruled that reservation could not extend beyond recruitment to promotion. The constitution was amended (85th amendment); and central government extended preference for SC and ST employees to promotion to all positions having annual base pay up to Rs. 18300 (approximately US $ 4900). A 2002 circular directed that SC and ST employees would supercede general category employees in the seniority list for promotion posts.

Preference in promotion is not directly stated in Malaysia. According to formal rules, preference to Malays applies only to recruitment. In practice, affirmative actions have been reported in promotion. Observers cite that comparing across levels within the public service, there are proportionately much fewer non-Malays in super scale positions than at lower levels. The elite PADS is also comprised of Malays.

In South Africa, the merit principle is applicable except at the two topmost positions in senior management: Director-General and Deputy Director-General. Persons appointed to these two positions are regarded as political appointees and, unlike career senior civil servants, they do not enjoy security of tenure. For other managerial appointments, merit principle carries more weight than it does at lower levels. This translates to appointing the best affirmative action candidate rather than the best candidate overall.

19

Preference in promotion is contrary to guidelines in Nigeria, but nevertheless practiced. The Civil Service (Re-organization) Decree 43 of 1988 directed positions in non-managerial levels (grades 07 to10) would be filled according to federal character principle. At grades 11 and above, promotion would be based on merit. Although FCC continues to maintain these guidelines, there were many recent transfers from state civil services to grade 11 positions and higher in federal civil service without regard to the merit-oriented principles set out in the 1988 Decree. Although such transfers from states to the federal civil service have slowed down in recent years, promotions to grade 11 and above is still perceived to depend on proportional representation in federal civil service than on merit or seniority. The armed forces’ high command recently testified before the House of Representatives Committee on Federal Character, opposing the application of the federal character principle beyond the point of entry or recruitment into the officer corps.

The need for extending affirmative action beyond the point of entry points to preferred groups reflects their need support for career advancement beyond the preference at entry. However, this study could not find—either within the case studies or outside them—any special training or mentoring programs designed for entrants from the preferred groups that could fast-track their technical expertise or enhancement of managerial skills aside from training available to all members of higher services.

Continuation of a temporary measureAlthough three of the four countries (India, Malaysia and South Africa) have considered the exit option of affirmative action in public service, none of them has taken any step toward ending its implementation. Most politicians believe that terminating affirmative action will lose the votes of those benefiting from it. Therefore the %age of the electorate benefiting from affirmative action can determine the continuation of affirmative action in public service. Reservation for SC and ST was considered a temporary measure in India’s first constitutions, but that constitutional provision has been extended repeatedly, until the last instance in 1998. Extension of job reservation to India’s private and voluntary sector has also been discussed. In Malaysia, affirmative action originally had a 20-year life span beginning in 1970, but continues until the present time. In the Nigerian case, there is no official mention of an expiry date for the federal character principle; therefore, it appears destined to last for the foreseeable future. In South Africa, ANC leaders have debated the continuation of affirmative action in public service: there are opinions for and against.

20

III. AFFIRMATIVE ACTION IN INDIA’S PUBLIC SERVICE: A CASE STUDY

III A. BACKGROUND

India is a multicultural, multiethnic, and multi-religious country in Asia. It is the world’s largest democracy with a population of little over 1 billion in 2001. Over three-fourths of the population lives and works mainly in villages, although the cities contribute increasing shares of national income. The sex ratio of men to women has been unfavorable to women: for every 1000 men, it has declined steadily from 946 to 927 over the last 50 years. The human development indicators such as literacy and maternal mortality are also more adverse for women.

India has a secular polity and no state religion. Approximately 80 % of the population is Hindu, and 14 % is Muslim. Other religions include Christianity, Sikhism, and Buddhism. Although Hindi (spoken in the north) and English are used officially, more than 1,500 languages and dialects are spoken in India. The Indian Constitution recognizes 15 regional languages.

Historical Context of Social Justice and Constitutional Principles

For many centuries, social stratification in Hinduism has been structured on the basis of castes and sub-castes, with a person’s social position being determined on by birth and occupation. Over the past few centuries, the caste system degenerated into rigid social exclusion. Castes at the bottom of the social scale were considered untouchable by those in comparatively higher castes. Those discriminated against are described Scheduled Castes3 in the Constitution, as Harijans by Mahatma Gandhi and referred as dalits in recent times. Also described in the Constitution are Scheduled Tribes (ST), who were subjected to spatial and cultural isolation, and lack of opportunity.

Before independence, British colonial administrators and rulers of some Indian states, such as Mysore, were guided by considerations of social justice and diversity in public employment. The first quarter of the twentieth century saw reservations in Government employment in almost the whole of Southern India, which covered not only the depressed classes (see footnote 1) but also other backward classes. The Poona Pact on communal harmony, in which Mahatma Gandhi participated, made a provision for fair representation of depressed classes in public employment. The British Act of 1935 provided a legal basis for the principle. In 1943, a quota of 8.33 % was reserved for SC. There was no quota for the scheduled tribes before independence.

In the post-independence period, the leaders carried forward the realization that the persons belonging to the SC and ST would require special protection and legal provisions to emancipate them from centuries of prejudices and exploitation. The strategy therefore rested on the twin planks of deterrence against discrimination of SC and ST, as well as

3 The term “Scheduled Caste” was used for the first time in the Government of India Act, 1935 in place of “depressed classes” and was retained in the 1950 Constitution.

21

affirmative action in their favor. The Directive Principles of State Policy in the Constitution cast a special duty on the State to “promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes” and enjoined the State to “protect them from social injustice and all forms of exploitation.” These provisions found potent expression in several articles of the Constitution.

The Constitution authorizes the central government to notify the list of Scheduled Castes and Scheduled Tribes in different states. The criteria for designation include anthropological studies and recommendations of states and central ministries. There have been disputes about which castes should be categorized as SC in different states, and whether SC can be notified from religions other than Hinduism. There is less dispute surrounding the designation of ST on the basis of social, religious, linguistic, and cultural distinctiveness. Approximately 179 million persons were listed in the 2001 Census as belonging to SC, or approximately 17.5 % of the population, including those practicing Buddhism, Sikhism, and Christianity. There are 250 recognized tribes, who speak 105 distinct languages and practice a number of religions and formed 7.8 % of the population in 2001. Apart from SC, members of some other Hindu castes had also been discriminated against, and are officially referred as Other Backward Classes (OBC). Even before India’s independence in 1947, 13 states had identified socially backward (meaning disadvantaged) classes for job reservation. However, census data does not provide detailed information about which castes comprise OBC. In 1978 the Mandal Commission on Backward Classes provided an estimate that 52 % of the population in 3,743 sub-castes could be categorized as OBC. The Supreme Court laid down that no more than 50% of positions could be reserved for preferred groups. With 22.5% government positions reserved for SC and ST (15% and 7.5% respectively), no more than 27% of jobs are reserved for OBC.

Structure of Government and Public ServiceStructure of GovernmentIndia adopted a democratic, secular and federal Constitution in 1950, which installed a parliamentary democracy in the Westminster model. India’s federal structure and local government provides adequate scope to reflect the diversity of the country and people. The Indian federation is now composed of 28 states and 7 union territories, with the boundaries mainly based on linguistic reorganization in 1956. Three new states came up a few years ago due largely to agitation for regional autonomy. The Constitution provides for multilevel governance, with both the central and state governments exercising independent and concurrent powers according to subject lists mandated in the Constitution. Elected local government bodies in rural and urban areas enjoy constitutional status as a third tier of government since 1993, but they are subject to control of state governments. II.

22

Structure and Character of Public ServiceThe federal civil service consists of three All India Services and 66 central civil services, all of whose members are recruited by the Union Public Service Commission. The All India Services include the Indian Administrative Service (IAS), Indian Police Service (IPS) and Indian Forest Service (IFOS). They are considered as instruments of national unity. Central government employees are divided into four groups A to D on the basis of pay scales. The higher civil service in India comprises groups A in policymaking positions and B in front-line supervisory and secretariat positions in generalist and technical positions. Together they form just 7 % of the employees. Seventy % of staff works in support positions in group C. Group D consists of artisans, unskilled workers and cleaners. There are 2.86 million women employees in central government, but women are under-represented in senior positions.

Selection to public services can be on the basis of direct recruitment, promotion, deputation, or contract. The central and state governments have notified rules relating to the recruitment to posts in services under their control with due regard to reservation for different categories. The Constitution provides for independent public service commissions in the central and in states, to ensures protection to civil servants from arbitrary punishment or removal from service except after reasonable opportunity and due process. Public Service Commissions (PSC) at the central and state levels operate independently to undertake merit-based recruitment, while enforcing reservation policy. There are separate selection bodies for support staff such as the Staff Selection Commission (SSC). Some state governments operate rules designed to ensure adequate representation of majority groups in the state. State governments have set up their own services for administration at state and local levels. There are many government-controlled or funded public enterprises and autonomous agencies whose personnel policies are subject to government direction. Government seeks to ensure the merit principle in promotion through the preparation of panels by Departmental Promotion Committees (DPC), which take note of performance assessment and reports of integrity. Apart from stipulation of reservation in promotion for SC and ST, the seniority principle is generally respected

Public sector employment grew 24% between 1981 and 1991. Over the next 10 years, its growth was constrained to 2%. Central government employment grew least: 7% between 1981 and 1991, and shrank 5% between 1991 and 2001. Employment in state governments and government funded agencies grew most during this period.

Objective of Affirmative Action in Public ServiceThe main objective of affirmative action for Scheduled Castes, Scheduled Tribes and Other Backward Classes in public service positions, and special policies for women is to increase their representation in public service, consistent with the principle of egalitarian social order and justice underlying the Directive Principles and protective discrimination. The effort is part of the package of positive and protective measures for the amelioration of the economic and social condition of disadvantaged classes and disabled persons and for making the public service truly representative of the socioeconomic composition of

23

the population (Government of India 2003). The objectives of affirmative action were different for groups other than SC. In the case of Scheduled Tribes, the greater need was that of social integration as they had remained in isolation from the national mainstream for centuries.

III B. IMPLEMENTATION FRAMEWORK Legal Framework

Constitutional ProvisionsEqual treatment and opportunity for all sections of the population in all matters including employment and the prohibition of discrimination on grounds only of race, religion, caste, sex, and place of birth under is affirmed in Articles 14, 15 and 16 of the Constitution.

At the same time, affirmative action and reduction of inequality are also laid down in the Constitution. Article 17 of the Constitution abolishes untouchability and makes its practice in any form punishable by law. Article 338 provides for a National Commission for the Scheduled Castes and Scheduled Tribes (earlier called the Commissioner) with duties to investigate and monitor all matters relating to safeguards provided for them, to inquire into specific complaints, and to participate and advise on the planning process of their socioeconomic development. Provisions such as Article 15 (4) and 16 (4), circumscribe the principles of equality before the law and prohibition of discrimination (box 1). Article 320 (4) exempts government from the requirement of consultation of Union Public Service Commission (UPSC) on the manner of implementation of Article 16 (4) and Article 335. Article 336 provided for reservation in jobs to the Anglo-Indian community but this lapsed after 10 years.

Appendix 1 lists the Constitutional provisions described above.

Judicial ReviewThe Supreme Court has interpreted Constitutional provisions relating to job reservation. In a series of judicial decisions, starting with Balaji vs. State of Mysore (All India Recorder, 1963 Supreme Court 649), and more recently in Indra Sawhney vs. Union of India (AIR SC 1993 477), the Court has upheld the validity of reservation for socially backward classes in recruitment and promotion. At the same time, the Supreme Court has imposed safeguards against the violation of the principle of equality and merit and the dilution of administrative efficiency (Agarwal 2003 and Maheshwari 2000). The Supreme Court quashed efforts to expand reservation to arbitrary limits4 and insisted on a clear definition of backward classes including economic criteria. The Court held that adequacy of representation does not mean proportional representation and that reservation for SC/ST and OBC should not exceed 50 % of vacancies within a grade, cadre, or service in any year.5 Further, the benefit of backwardness would be confined to those who are demonstrably backward by some tangible criteria, the application of

4 Some states had extended the reservation quota to 69%, and to castes in religions outside Hinduism. 5 However, the state of Tamil Nadu passed a law in 1993 to increase reservation to 69%, which was given Constitutional protection by the 85th Amendment.

24

criteria being supported by data recent enough to be reliable. A person cannot automatically carry the status of scheduled caste and tribe when he or she migrates to another state, because the designation is state-specific.

To prevent affluent families belonging to backward classes from cornering the benefits of reservation, the Court directed (in the Indra Sawhney case) that the benefit of reservation must be denied to what are known as the “creamy layers,” or the more affluent among other backward classes. This decision came in the wake of the violent agitation over the extension of reservation to other backward classes in 1990. Based on a decision of an expert committee on creamy layer in 1993, children of the following categories of persons cannot avail of reservation for OBC: persons holding Constitutional positions; officers of All India Services and Central Services Groups A and B; senior officers of universities, army, and public sector; professionals, including medical officers, lawyers, chartered accountants, financial and management consultants, and architects; those engaged in trade and industry, those with agricultural holdings/urban land and having an annual income more than Rs.250,000 (approximately US$6000). The UPSC and SSCs screen applications of candidates from OBC with reference to these criteria and government instructions.

Legal provisions for persons with disability The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 provides for both preventive and promotional aspects of rehabilitation including education, employment, and job reservation. Section 33 of the Act provides that every appropriate government shall appoint to posts in all groups in every establishment a %age of vacancies for persons with disabilities as defined in the Act of not less than 3 %.

State-level preferencesState governments are allowed (Article 16(3) of the Constitution) to prescribe preferential appointments, usually to blue collar positions, for “sons of the soil” preference (Weiner and Katzenstein 1981. In 1975, Andhra Pr)adesh implemented the Six Point Formula: the state government created zonal cadres and prescribed quotas ranging from 60 % to 80 % for different categories of supervisory and support posts for persons from the Telengana region. Local preferences are implemented according to domicile status which required 10 years’ residence in the state in Maharashtra. All public agencies were directed in 1973 to give preference to local persons for all categories of jobs and enforce the caste-based reservation within this preference The Supreme Court endorsed this policy as in the judgment in Joshi vs. Madhya Bharat. The state government of Assam followed similar policies.

Preferred GroupsThe framers of the Constitution expected reservation in government jobs and electoral constituencies for SC and ST to be a temporary measure, but that constitutional provision has been extended repeatedly, the last time in 1998. Government extended reservation in 1954 to public sector enterprises, local government, and autonomous agencies funded or

25

controlled by government. Affirmative action in public employment began with the SC and ST but was extended in the early 1990s to Other Backward Classes.

Employment quotas for the disabled were introduced in 1977, to provide equal opportunity for employment, participation, and protection of rights. Three % of central government jobs are reserved for the disabled, with 1 % each for persons suffering from blindness or low vision, hearing impairment, and locomotor disability or cerebral palsy. The reservation is available for direct recruitment to identified posts in all groups of posts, and in promotion in groups D and C.

Ten % of certain posts in paramilitary forces and Group C services, and 10 % of Group D posts, are reserved for ex-service personnel, subject to certain conditions. The candidates are entitled to relaxation in age and educational qualifications for the job. Job reservation for ex-service personnel is intended as a rehabilitation measure similar to the policy for veterans in countries such as the United States.

Under the policy of compassionate appointment for legal heirs of deceased employees, 5 % of the vacancies in groups C and D are available for eligible legal heirs in penury.

The Anglo-Indian community benefited from reservation in jobs only for the first 10 years of the Constitution. The proportions for SC/ST/OBC could vary in individual states within the ceiling of 50 %. For direct recruitment to posts in groups C and D from a locality or region, the reservation is in proportion to the population of SC and ST in the concerned state or union territory. Reservation applies as well to recruitment cases in which lateral entry is allowed for specialist services such as the Legal Service at higher levels.

As stipulated by the Supreme Court in a number of cases, where the government wishes to provide quotas for categories other than SC/ST/OBC, such as disabled persons or ex-army personnel, sportsmen, or legal heirs of deceased government employees, it would be considered “horizontal reservation,” as distinct from “vertical reservation” of posts for SC, ST, and OBC. Horizontal reservation (including quotas for women in some states) is made on the basis of criteria other than ethnicity or caste. Hence, persons selected under horizontal quotas would be adjusted against the available %age of jobs for different backward and non-backward classes, thus ensuring that the ceiling of 50 % is not exceeded.

While the SC/ST are legally entitled to nationwide preferences, locally dominant groups such as the Maratha or Assamese or the people of Telengana in Andhra Pradesh have resorted to violent agitation to enforce preferences within the state (as in Malaysia) through legal or administrative tools. The aim is to protect the local candidates from excessive competition from candidates of other states or other communities in employment, education, and housing. The goal is distinct from protection for depressed castes to remedy past discrimination and rests on reduction of inequalities (Weiner and Katzenstein 1981).

26

Quotas and Concessions Since 1950, job reservation policy has evolved and been shaped by political debate and Constitutional amendments. When affirmative action policy was first announced in 1950, the only concessions were for SCT and ST, and in the maximum age limit and in the examination fee.

Affirmative action in public service currently consists of job quotas as well as concessions in employment. SC and ST receive preferences other than job quotas. These are a higher age limit and unlimited attempts within that age limit; exemption from paying examination fees, relaxation of the qualifying marks, and separate interviews for direct recruitment. SC / ST candidates selected on their own merit cannot be counted as quota candidates. Also SC / ST vacancies remaining unfilled in a particular year have to be carried forward even if that increases the %age of reserved jobs to more than 50%. Pre-examination training is given to preferred groups, as well as travel allowances to reach examination centers. Only some of these concessions are available for OBC: relaxation of age limit up to three years, number of appearances in the examination, and not being counted as OBC candidates if selected on merit. Reservation in promotion is not available to OBC. Unfilled vacancies are carried forward into subsequent years and are allowed to be filled independent of the ceiling of 50 % for direct recruitment during the year. There was wide criticism of efforts to de-reserve posts meant for SC and ST in earlier years on the plea of non-availability of qualified candidates. There is now a ban on de-reservation of posts in case of direct recruitment except for specialized posts and subject to the Minister’s approval (Article 16 (4B) in the Constitution). It is possible to fill the unfilled vacancies of SC with ST candidates and vice versa with the permission of government. Actions to downsize staff and declare redundant posts are subject to the need to maintain the required proportion of SC/ST employees in the department. Certain categories of scientific or technical posts above the lowest grade in Group A in departments such as Space, Electronics, and Atomic Energy have been exempted from the reservation requirement as specified in the government circular.

Reservation was extended to different modes and levels of promotion in stages, being initially confined to regular posts in which there was no direct recruitment. The policy was not effectively implemented in initial years apparently due to biased attitudes of heads of departments (Galantar 1984). Following a Supreme Court judgment that objected to reservation in promotion, the Constitution was amended in 1995 to enable the government to make reservation in matters of promotion of any class of posts in favor of SC and ST that, in the opinion of the State, are not adequately represented in the services. At present, reservation in promotion by non-selection method is available for SC and ST in all groups at the rate of 15 % and 7.5 %, respectively. In case of promotion by selection (that is, on merit), reservation is available up to the lowest rung of Group A in central government. Government has decided to continue such reservation until the representation of these two categories in each cadre reaches the prescribed %ages of

27

reservation. There are various demands now to extend reservation in promotion to senior management levels as well as other categories such as physically handicapped and OBC.

In a further dilution of the seniority principle, the SC/ST employees shall, on their promotion by virtue of reservation, be entitled to consequential seniority in the higher post as well. In 2000 government prescribed lower qualifying marks and standards of evaluation in matters of promotion of SC and ST officials. Subsequent to amendment to Article 335, standards of evaluation and qualifying marks in examinations in direct recruitment and promotion, as well as essential experience, were relaxed in 2000. Government issued orders to enable persons belonging to SC/ST to be considered for promotion to posts up to the level of Director to Government. Cadre authorities are required to consider all qualifying candidates from SC/ST at the time of drawing up panels for promotion and also consult associations of SC and ST employees regarding availability of candidates.

Women in Civil ServiceThe Constitution declares the equal right of women and men to wages and livelihood and empowers the State to make special provisions for women and children. There is no reservation of jobs for women in the central government or its undertakings. Under British colonial administration, women could not hold Group A posts. Since the 1980s, government has adopted a comprehensive approach to the empowerment of women, with an emphasis on security, legal rights, education, health, and livelihood. The reservation of one-third of the seats in local government councils at all levels for women has energized women’s leadership in local development.

However, despite the enabling provision of Article 15(3), central government has not acted on job reservation for women in central government. There are contrasting views within the country whether positions should be reserved for women in public service and parliament as they are in local governments. A number of states such as Karnataka have reserved up to 33 % of jobs for women, subject to the principle of horizontal reservation. States such as Tamil Nadu follow a scheme of preferential appointment of women to identified areas., but the Constitution assures equal opportunity for both sexes. but a few states including Andhra Pradesh, Maharashtra, and Karnataka have reserved one-third of government organizations’ vacancies for women.

28

III C. ENFORCEMENT OF AFFIRMATIVE ACTION

Policy Formulation and ImplementationThe federal Ministry of Personnel, Public Grievances and Pensions is responsible for framing policies relating to affirmative action in public service and for monitoring their implementation. The task of implementing the policies, including framing the necessary executive directions lies with individual ministries, departments, and public agencies. In addition, the different cadre-controlling authorities of the All India and Central Services are also responsible for issuing and enforcing the policy guidelines for staff in their cadres. The Ministry for Social Justice and Empowerment also provides advice and information to the nodal central Ministry on disabled persons, SC and ST. There are procedural and institutional safeguards to ensure the strict compliance with the reservation policy.

The union and state public service commissions, although at arm’s length from line ministries, are also responsible for implementing the central policies for affirmative action. Before advertising a vacancy under direct recruitment or promotion, the PSCs obtain details of reservations for different categories and the backlog for the concerned cadre and service group. UPSC and SSC scrutinize the applications to exclude OBC candidates who fall under the creamy layer.

Enforcement Tools Central and state governments follow a unique system called rosters to ensure that there is no default by departments in appointing the SC and ST candidates to vacancies reserved for them. The rosters are intended to help the departments determine the number of vacancies; departments cannot use them for determining the order of appointment or seniority. After determining the number of reserved vacancies on the basis of the roster, the selected candidates in all categories are arranged in order of merit. Appendix 2 describes how rosters are maintained. Negative incentives and sanctions are expected to ensure positive attitudes toward disadvantaged groups. For example, an officer’s performance appraisal takes into account the officer’s attitude to members of SC/ST and weaker sections, and an adverse entry could affect promotion prospects. Offending heads of departments are liable for prosecution under the legislation for the prevention of atrocities against scheduled castes and the Persons with Disabilities Act, besides liability for disciplinary action under civil service rules.

MonitoringAll government departments, public enterprises, and agencies controlled or funded by government are required to submit annual statements to government with information on the total number of SC/ST/OBC among the number of government servants on January 1 and the number of grade-wise appointments of all categories made under different modes during the year with details of reserved categories. Federal and state governments are required to submit annual reports to the legislature about achievements of targets under affirmative action in public employment. The annual reports of UPSC and SSC, which

29

are placed before Parliament, include information on recruitment of SC/ST and OBC and shortfalls in implementation.

Article 338 of the Constitution created the post of a Commissioner for SC and ST to safeguard the interests of these groups and submit periodical reports to the Parliament on developmental and enforcement aspects of affirmative action. Since 1990, these functions have been entrusted to the National Commission for SC and ST. Central ministries are required to consult the commission on the implementation of job reservation policy. The commission submits annual reports to Parliament in which critical deficiencies of implementation are highlighted including the enforcement of job reservation policy. The commission has the right to compel the presence of witnesses and record evidence under oath. Similar reports are submitted by the National Commissions for Backward Classes and the National Commission for Women. These commissions monitor the implementation of policies for reservation and welfare of these groups.

Parliament has the opportunity to debate the reports of all the national commissions and question concerned departmental heads. The Standing Committees of Parliament in charge of Personnel can call for explanation from senior officials of ministries for acts of commission and omission in respect of reservation policies. Among other matters, the Joint Parliamentary Committee on the Welfare of Scheduled Castes and Scheduled Tribes examines the measures taken by the Union Government to secure due representation of the Scheduled Castes and Scheduled Tribes in services and posts under its control (including appointments in the Public Sector Undertakings, statutory and semi-government bodies, and in the Union Territories) having regard to the provisions of Article 335. The state legislatures undertake similar scrutiny of job reservation policies, including policies for local preferences. In each Ministry and agencies under it, liaison officers at senior level are appointed to monitor matters relating to the representation of SC, ST, and OBC in all establishments and agencies under the department. An officer from a disadvantaged group is included in all selection boards and departmental committees constituted for various services in each department as well as committees for recruitment to vacancies in groups C and D. All such committees are also required to include women officers.

Administrative inspection is carried out periodically by teams from the Ministry of Personnel. They provide the departmental head with an assessment of performance of the department in implementing orders for the reservation for Scheduled Castes and Scheduled Tribes, maintaining rosters, and filling vacancies reserved for these communities. Similar inspections are carried out by each department for agencies under it. The Parliamentary committee also deputes study groups to ministries and public enterprises to assess and report on the implementation of reservation policies.Apart from job quotas, welfare programs of government for SC and ST provide scholarships for secondary and higher levels of education and quotas for entry into professional and arts colleges. Besides outreach efforts to raise awareness of job opportunities, government supports training schools to prepare candidates for competitive

30

examinations. These efforts have increased the intake and quality of candidates from disadvantaged classes.

The prescribed format of reports does not contain a column on women or disabled persons. It is unfortunate that, despite its access to reports of all public agencies, the nodal central Ministry of Personnel, Public Grievances and Pensions does not conduct systematic analysis on the impact of policy changes and on the representation of different groups including SC/ST/OBC, disabled, and women across ministries, services, groups, and grades over the years. This lapse deprives government of the necessary feedback required for updating existing policies or considering new ones. The obligation imposed by the Supreme Court for rational identification of backward castes and determination of backlog has helped to institutionalize regular collection of data and has made the discourse on OBC in states more precise and open. Karnataka and other states produce excellent analytical reports on representation of backward classes and women.

Women’s representation in public service is monitored. A Focal Point was set up in the Ministry of Personnel that networks with cadre authorities in all departments on issues affecting women in civil service and conducts review of rules and regulations to reduce gender bias. A steering committee in the ministry oversees publicity efforts to enable more women to enter public service, training programs for gender sensitization, and changes in policies and regulations to remove gender bias. The committee’s efforts have led to the elimination of service rules that permit gender discrimination. The National Women’s Commission also advocates the cause of increased representation of women at all levels of public service and intervenes in cases of discrimination.

Redress of GrievancesOpportunities are available to preferred groups under affirmative action in civil service to register complaints with the departmental head or the Ministry of Personnel if regulations and orders relating to appointment and service conditions are violated. They can also complain about harassment in the workplace to the departmental head. If the executive fails to enforce reservation orders, the affected persons can approach the concerned National Commissions, administrative tribunals, and High Courts for legal remedy. Following directions from the Supreme Court, government notified rules in 1997 to ensure immediate action and punishment for sexual harassment of women employees and provide opportunities for complaints by women to go to committees with female representation.

As mentioned earlier, the Supreme Court and High Courts have played a major part in the evolution of the policy for affirmative action and the maintenance of balance among competing considerations of meritocracy and social justice. The courts’ interpretation of the Constitution has led to Constitutional amendments and restatement of policy.SC/ST employees often form a vocal group in staff unions, and are able to influence government policies through legislators and joint consultative committees in matters that include seniority, decisions on promotion, enforcement of quotas, and filling backlog vacancies. To diffuse incipient tensions, public agencies have been advised to inform

31

associations of SC and ST about vacancies and consult them on the implementation of reservation policy

III D. EFFECT OF AFFIRMATIVE ACTION ON CIVIL SERVICE

Change in Public Service CompositionThe impact of reservation policy on civil service can be studied in terms of growth in absolute numbers and %ages of preferred groups in public employment. The qualitative aspects are explored in the next chapter.

Between 1965 and 1993, SC and ST representation grew in all service groups (A, B, C and D) but their combined representation remained less than the 22.5% of positions reserved for them. Their proportions were higher in the lower two groups (C and D) of service, which also comprise the bulk of the public service.Table III.2. India: Combined representation of SC and ST in different service groups (as % of federal government employment)

Group 1965 1983 1989 1993%age of SC and ST is central government employment

A 1.64 6.71 8.57 9.8B 2.82 10.16 11.65 12.17C 8.88 14.61 14.85 12.80D 17.75 19.58 20.41 20.73

Note: There is some reclassification of Groups C and B; hence the decline in 1993 for C Group.Source: Report of the National Commission for SC and ST 1993–94.

In 2001, total SC employment was 18% and total ST employment was 6%, thus fulfilling the jobs reserved for them. Groups C and D comprised higher proportion of SC and ST than Groups A and B. Even though SCs comprised 18% of central government employment in 2001, a significant share of that proportion came from sanitary workers.

The record of public enterprises and nationalized banks has been less satisfactory in filling vacancies reserved for SC and ST, especially at higher levels. The National Commission on SC and ST has complained that dalits occupy only 55 % of vacancies in public enterprises and 1.2 per cent of university teaching positions (National Commission for SC/ST 2003).

Table III.3. India: Combined Representation of SC and ST public sector enterprises of central government, 2000

Group 1975 1985 1993A 1.44 4.12 3.37B 3.02 5.50 9.12C 13.73 18.34 18.71D 26.29 27.20 21.90

Due to vigorous steps for implementation in the 1980s, the proportion of SC and ST has steadily increased in the elite All India Services, and because of the intensive training given by government-funded training schools for the candidates, all the vacancies are fully allotted (table 7). Other factors have been the relaxation of standards, separate

32

interviews for the candidates, and close scrutiny by UPSC. Successful candidates from Other Backward Classes in the unreserved category are not counted against the quota, and this number is growing. The proportion of OBC in the civil service has risen above 30 % due to their selection also in the unreserved positions.

Table III.4. India: Vacancies filled in All Civil Services

Year SC ST OBC%age of vacancies filled by this category

1998 13 6 301999 15 7 312000 14 8 302001 12 10 312002 13 7 29

Source: Union Public Service Commission.

The recruitment of OBCs has steadily gone up as they are better placed to use the reserved vacancies in full, in addition to their ability to enter service under the general category. During 2001, 20,002 persons from OBCs were recruited against reserved vacancies of 28,843. Government is aware that the affluent sections from Backward Classes benefit more from job quotas than the less affluent. Table III.5. India: Recruitment of Other Backward ClassesGroup Total employees Reserved for OBC in

2001OBC candidates recruited

A 90914 932 628B 119379 565 266C 2,170,788 19507 14842D 1,054,607 7839 4266Total 3,435,688 28843 20002Source: Ministry of Personnel, Public Grievances and Pensions.

Disabled Persons Detailed data in respect of the persons with disability is not available, but officials confirm that job advertisements specify the quota for disabled persons and that the vacancies are fully filled, including the backlog of previous years. The central Ministry of Personnel does not regularly gather information in respect of vacancies filled up on account of reservation for ex-servicemen, sportsmen, and legal heirs of deceased employees.

Local PreferencesCredible data on the impact of local preferences in different states is not available although there was a definite move to employ local people for many lower positions. It was found in the analysis of Weiner and Kazantstein (1981) that the effect varied according to the economic growth in the state. In Maharashtra, employment prospects for local people grew independent of preference policies; hence, punitive sanctions did not play a major part in enforcement. In Assam, the central public enterprises increased the employment of ethnic Assamese more rapidly than the private sector firms, but the increase was mainly in manual jobs. Andhra Pradesh enforced the Presidential order

33

more strictly, but its legislature has been critical of loopholes that permitted the employment of Telengana population to fall behind stipulated quotas.

Representation of Women There are no quotas for women in central government, where the proportion of women employees is increasing, but at a slow rate—from 4% in 1983 and 7% in 1989 to 8% in 1991. State governments employ higher %ages of women (13%) than central government and public enterprises (3%) as they comprise significant proportion of nurses and teachers.

Women’s opportunities for appointment to top positions opened up during the 1970s . Until 1972, rules provided that no married women could be automatically entitled to enter the IAS and that government could call upon a single woman officer to resign if she married subsequently. Until 1979, the rules for the diplomatic service required women officers to obtain government permission before marriage, and government could require her to resign if it were felt that her marriage was likely to get in the way of efficient discharge of duties. Until 1980, women could not join Indian Forest Service because of the prescription of physical standards appropriate to men. Presently, the posting of husband and wife in the same station is considered only if both of them work in the public sector, but such posting is easier if they are in the same cadre.

Results of a 1997 survey conducted by the National Academy of Administration showed that women represented 4% % of Secretaries, 7% % Additional Secretaries, 13 % of Joint Secretaries, and 17% of Directors in central government. The proportion of women in central public enterprises was 3% % in 1998. In 2000 there were only 2 women chief executive officers (CEOs) of 209 positions on central enterprises.

Women comprise 8% of Group A staff, 13% of Group B, and 10 % of Groups C and D employees in central government. In 2001, women represented 10 % of the IAS, 4% % of the IPS, 3% % of the Forest Service, and between 10 and 20 % of the Central Services. The proportion of women employees in the nationalized banks ranged from 6 % to 24 % with a concentration among clerical staff. Some states in southern India provide have the policy that in posts for which women are better suited, preference shall be given to women. In Karnataka, the overall representation of women in state services was 22 % in 1997. However, 85% of women employees were in Group C, 11% in group D, and only 4 % in the higher groups A and B (Karnataka 1999). In direct recruitment by the UPSC, women were 27% in the general category, but 7, 15 and 18 % in OBC, SC and ST categories.

Who benefits most from affirmative action?Affluent families among the preferred groups have obtained most of the benefits of job reservation. The National Commission for SC and ST has not paid adequate attention to this aspect. Elitist bias of selection committees and ineffecgive checks on applicants’ families actual income from trade, business and agriculture make it possible for affluent persons to obtain the benefit of job reservation. In a number of states, the chamars have secured over 60 % of the benefits earmarked for dalits, despite the lower %age of the former. In Tamil Nadu, the more fortunate backward castes secured four times as much educational and job benefits as the other castes (Sowell 2004). These disparities have led

34

to demands for “quotas within quotas,” as in Rajasthan and Uttar Pradesh states, to prevent the creamy layer from monopolizing the benefits and has created more tensions among different layers of SC or OBC than across ethnic groups.

Officials admit that affluent persons might gain entry into public service under job quotas because of ineffective mechanisms to check income in trade, business and agriculture and the elitist bias of selection committees. Some independent observers have noted that the panoply of institutions and policies has failed to substantively address the disadvantages that mark the condition of the vast majority of SC and ST (Jayal 2004, Sowell 2004). It has been overlooked that job quotas are just one among many factors enabling an individual to secure public employment. Pre-existing prosperity, urban location, and parents in preferred occupations provide the supplementary factors, which poor rural candidates lack. More alarming is the fact that, even where the politics of participation has been advanced through quotas, this has not translated into effective representation or preferential implementation of programs for the weaker sections among SC and ST as happens in Malaysia.

Effect on Public Service MoraleExperts note the mixed results of affirmative action for efficiency and meritocracy in public service. Deterioration in quality of administration cannot be attributed entirely to increased representation of SC, ST, and OBC. Independent observers note other contributory factors to lowered administrative efficiency and responsiveness, such as excessive numbers, fragmentation, poor performance evaluation, archaic systems, and political interference (World Bank 2003). There are many government employees with no employees from SC and ST, which are seen as inefficient and corrupt. The Supreme Court has consistently advocated the need to keep efficiency criteria in mind and to exclude promotion posts from reservation so that all employees are assessed and promoted on the same criteria once they enter service.6 The court also suggested that government should specify certain services and positions like technical posts in research and development organizations, specialties in medicine and engineering, areas of nuclear and space applications in aviation, for which reservation may not be advisable because of the highly technical nature of the job and limited opportunities. The court had also disallowed lowering of qualifications for admissions in super-specialty medicine courses in favor of reserved categories (Kartar Singh vs. State of Madhya Pradesh 1999). The government did not accept the advice of the Court and went on to dilute the effect of the proviso to Article 335 in 2000. Only senior posts in few scientific organizations are exempted. It is learned that the Health Ministry has not been able to fill some specialist positions such as plastic surgeons in hospitals and positions in advanced medical research institutes for a number of years because candidates from reserved categories are not available.7 These unfilled positions naturally affect the quality of services to people. Reservation has affected the filling of specialist positions in autonomous institutions of higher learning and research as well.

6 Indra Sawhney 1993 and Balaji 1963 cited earlier; Devadasan vs. Union of India 1985. 7 These and other insights are derived from conversations and focus group meetings in June 2004.

35

The morale of some general (unreserved) category officers’ morale is affected by affirmative actions. For example, an assistant is sometimes able to advance to the position of the Deputy Secretary while his former boss stagnates in the position of Section Officer. Surveys of agriculture personnel in Rajasthan indicate that many employees believe that, besides reservation, caste and nepotism played a major factor in transfers and promotion (Sharma and Lal 2002). Apart from inter-group hostility, the policies may have led to withdrawal of meritorious candidates from competing for entry into public service and to reduced morale and efficiency from persons superseded in promotion.

Effect on Social CohesionThere had been little resistance from the non-preferred groups to the inclusion of the Scheduled Castes and Scheduled Tribes under the Constitution or to concessions in recruitment. As fiscal pressure drives central and state governments to freeze future recruitment and cut salary costs, there are declining opportunities for employment in public sector including state enterprises, even as the organized private sector generates few jobs for less skilled youth. Quotas and preferences affect the excluded groups (higher castes), and those among them who depend on access to education and government jobs. After the government announced the expansion of quotas to OBC in 1990, there were violent reactions, including self-immolation, from the non-preferred groups. There is agitation against the intrusion of political considerations in the expansion of the universe of reservation, first, to cover the OBC and then the inclusion of most castes in OBC in each state. In the Indra Sawhney case, cited earlier, the Supreme Court observed that, aside from the protection of merit and equality, reservation must not be so excessive as to create hateful caste prejudices and divisions between classes of people. Quotas have spread perversely to local groups in states, where the main problem was not historical discrimination but resentment of other groups who were more successful in education and economic pursuit.

36

III E. FUTURE OF AFFIRMATIVE ACTION IN PUBLIC SERVICE

Although the goals of equal opportunity and preference have been irreconcilable, support from all political parties have resulted in successive government continuation with affirmative action in pubic service. The issues that arise most frequently in this debate are:

A temporary measure becoming permanent

Dilution of affirmative action’s original objective by widening the scope of preferred groups

Extension of affirmative action beyond recruitment to promotion

Increasing the %age of reservation in jobs to over 50 % in states

Ineffective mechanisms to exclude the better-off SC/ST and OBC from monopolizing benefits

Inadequacy of efforts to address more positive elements of affirmation including access of the poorer sections to higher education and the opportunity to enter public service

Caste is used as a proxy for social backwardness and virtually the sole criterion in public policy for job reservation. This criterion hampers the emergence of class-based organizations cutting across caste lines. Sociologists question whether caste is an appropriate indicator of deprivation and whether non-ascriptive factors can be used in public employment (Weiner and Kazantstein 1981). Dr. Babasaheb Ambedkar, the arch advocate against untouchability, had pleaded for the elimination of caste while proposing temporary affirmative action (Galantar 1984). It is worth noting that the Indian Army became ethnically representative by invoking the martial spirit in all communities and does not rely on reservation.

Reservation by itself has not been able to bring about the total social transformation envisaged in the Constitution. The use of available benefits by the really poor groups has required complementary inputs like awareness, quality education and job skills, and family support—most or all of which the most deprived backward classes lack. Many officials and experts believe that, in the long run, the increased representation of poorer disadvantaged classes from urban and rural areas would depend on the success of policies to raise incomes, enhance literacy and entry into higher education, and changes in social attitudes toward the depressed classes and women.

A political consensus had been reached before the recent national elections on extending reservation to the economically disadvantaged among the forward castes (including brahmins), but it is not clear if the new government will pursue this change. The new government in 2004 has announced a national dialogue on extending reservation to the private sector. The proposal has already excited much conflict. The industry associations submit that there is no discrimination, but they also oppose legal reservation on the ground of compromising merit and efficiency and adverse effect on the competitiveness

37

of Indian industry in global competition. Some feel that, instead of pursuing job quotas, government should build on the social responsibility of corporate sector and encourage it to undertake projects that would generate employment and improve skill levels, competency, literacy, nutritional standards and knowledge that might actually benefit over 100,000 youth from SC and ST in selected regions. Others feel that, given the range of economic discrimination against the SC and ST, reservation policy for the private sector should cover not only employment but also agricultural land, markets, education, and government contracts.

38

III F. APPENDICES

Appendix 1. Constitutional Provisions on affirmative action

Article 15(4) enables the State to make special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. Article 46 commits the State to promote with special care the educational and economic interests of the weaker sections of society, and in particular of the Scheduled Castes and Scheduled Tribes, and their protection from social injustice and all forms of exploitation. Article 16 (4) amends the principle of equal opportunity in matters of employment under the State as follows: “Nothing in this Article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.”

Articles 15 (4) and 16 (4) have to be read with Article 335. Article 335 provides that the claims of the Scheduled Castes and Scheduled Tribes shall be taken into consideration, consistent with the maintenance of efficiency in the administration, in making appointments to services and posts in connection with the affairs of the center or states. However, this provision was diluted later. Article 16 (4A) enables the state to provide for reservation in matters of promotion in favor of the SC and ST, which in the opinion of the State are not adequately represented in the Services.

UPSC is not required to be consulted in the implementation of these provisions. The Constitution has been amended many times to expand the benefit of reservation to other backward classes and to extend reservation in promotion as well to SC and ST.

39

Appendix 2. Rosters are an effective tool for implementing affirmative action

Source: Ministry of Personnel, Public Grievances and Pensions.Model post-based rosters up to 200 points and 13 points each have been prescribed by central government (and 100 points in some states) for giving effect to the reservations in posts filled by direct recruitment on an all-India or regional basis as well as by promotion. There are separate rosters for direct recruitment and promotion, and each department has to devise the roster according to the number of posts in the cadre. Similarly, the concerned authorities are required to prepare rosters in respect of local or regional recruitment to Group C and Group D posts on the basis of the same principles. Entries are made against each point of the roster after appointments are made, and gaps are checked during inspection.

For example, in a 100 point roster for recruitment on a regional basis for one southern state, the points for SC would be 1, 8, 14, 20, 27, 33, 38, 44, 51, 57, 64, 70, 77, 84, and 90. The points for ST would be 4, 23, 40, 60, 79, and 96. The vacancies of SC and ST can be exchanged.

The appointing authorities must treat a vacancy as reserved or unreserved according to the roster. Vacancy-based rosters can operate only until such time as the representation of persons belonging to particular reserved categories in a cadre reaches the prescribed %age. Cases of supersession of SC/ST employees and proposals for de-reservation should be reported to the Minister-in-charge.

A separate roster is maintained for temporary appointments.

40

IV. AFFIRMATIVE ACTION IN MALAYSIA’S PUBLIC SERVICE: A CASE STUDY

IV A. BACKGROUND

Malaysia, a democracy in Southeast Asia, has a population of 25 million, with an urban share of 57.4 %. The country was a British colony until it gained independence in 1957. Malaysia was created in 1963 through the merger of Malaya (independent in 1957), former British Singapore, and the North Borneo states of Sabah and Sarawak. Malaysia’s society is multi-ethnic and multi-religious. Apart from the official Malay language, other recognized languages are English, Chinese, and some Indian languages. Islam is the official religion and is practiced by most Malays and some non-Malay population as well. However, people have the freedom to practice other religions including Buddhism, Taoism, Confucianism, Hinduism, and Christianity. Government has introduced an Islamization program as intrinsic to Malay identity, but without disturbing racial harmony.

Women form approximately 49 % of the population. In 1998 Malaysia ranked 45 of 130 countries in the Gender Development and Empowerment Index of UNDP. Gender discrimination in schooling and literacy has been eliminated in Malaysia. In many areas, women enjoy employment opportunities equal to men in many areas. The framework for women’s development followed a Constitutional amendment on gender equality and the creation of the Ministry of Women and Family Development in 2001.

Ethnic DiversityThe ethnic composition of Malaysian society has changed since the country’s independence in 1957. Previously, Malays were in a minority. The Chinese were the largest group, and the Indian population constituted a significant minority. By 2000, Malays and indigenous groups comprised the majority (66%) of the population. The Constitution defines ‘Malay’ as a person who professes the religion of Islam, habitually speaks the Malay language, conforms to Malay custom, and (a) was born in the Federation or in Singapore or born of parents one of whom was born in the Federation or in Singapore before Merdeka (Independence) Day, or is on that day domiciled in the Federation or in Singapore; or (b) is the issue of such a person.

Table IV.6. Malaysia: Ethnic composition of population in Malaysia (including North Borneo), 1957–2000

Ethnic group 1957 1970 2000Malay 49.8 47.1 53.4

Other Bumiputras NA 8.5 11.7Chinese 37.2 33.9 26.0Indian 11.7 9.0 7.7Others NA 1.5 1.2

Source: Department of Statistics, Government of Malaysia.

41

Ethnic differences and Political DevelopmentsEarlier, Malays felt threatened by their minority status in relation to the economically and educationally advanced Chinese and Indian communities. They were unable to take advantage of the English school system, and could not gain sufficient entry into senior bureaucracy. The Malays and other indigenous people believed that they had a special claim to be dominant in government because they were the Bumiputras, or the original sons of the soil. British administrators recognized this claim. There is no legal definition of Bumiputra but is widely used in literature describing affirmative action in Malaysia and in many official documents. Technically, the Bumiputras are the indigenous peoples of the Malay peninsula, Sabah, and Sarawak; and they include the Malays and other ethnic sub-groups .

Since its inception in 1946, the United Malay National Organization (UMNO) focused on consolidating Malay political control and its use to improve the condition of Malays. UMNO has dominated the political system and federal government since its founding. UMNO is the leading member of the ruling National Front Barisan Nasional, or BN, which comprises other ethnic groups as well as Malays. Malay political dominance was backed by the domination of the institutional pillars of the state: the bureaucracy, armed forces, police, judiciary, and monarchy. At the same time, being mindful of the ethnic clashes over special privileges to Malays in 1969 and later, UMNO has successfully assimilated influential sections of other minority groups. In 1970 the Board of National Unity and its successor ministry of National Unity and Social Action scrutinized all government programs in relation to social integration and national unity.

New Economic Policy With a per capita income of $3640, Malaysia is a middle-income country and part of the East Asia Miracle. During the two decades following 1970, Malaysia transformed itself from a producer of raw materials into a multi-sector, service-oriented economy. Starting with the New Economic Policy (NEP) of 1970, successive economic plans have guided the country’s goals of economic development. The first prong of NEP aimed at reducing and eventually eradicating poverty by raising income levels and increasing employment opportunities for all Malaysians. The second prong aimed at restructure Malaysian society to correct economic imbalances to reduce and eventually eliminate the identification of ethnicity with economic functions. Thus, the second prong was the essence of Malaysia’s affirmative action scheme in public employment and other spheres.

The government set up a timetable of 20 years from NEP’s inception for the achievement of the “restructuring targets.” Parallel to job quotas for Malays, the actions in social and economic policy included replacement of English by Malay as the medium of instruction, quotas for Bumiputras in admission to universities, and preference to Malays in obtaining government licenses, permits, and contracts.

42

Machinery of GovernmentMalaysia has a parliamentary democracy modeled on the British system. After Singapore separated as a separate country in 1963, the Malaysian Federation was formed by a new Constitution with 13 states and 3 federal territories (including the capital city of Kuala Lumpur). The federal government exercises a number of financial and administrative controls over the states. The federal public service is also much larger than states’ public services. Under Article 132 of the Constitution, Public Service includes Armed Forces, Judicial and Legal Service, General Public Service of the Federation, Police Force, Joint Public Service of the Federation and State, State Public Service, and Education Service. Table 2.2 shows the number of agencies and employees in federal and lower levels of government in December 2002.

Table IV.7. Malaysia: Public Employment in Malaysia (2002)Category Number of agencies Number of employees

Federal public service 119 783,052Federal statutory bodies 92 95,447

State public service 259 89,778State statutory bodies 96 18,912

Local authorities 143 38,954Total 709 1,026,143

Source: Commonwealth Secretariat 2004.

Malaysia has federal and state services besides the unique arrangement of joint services. Officers of different services move between states, from federal government to state and vice versa. The federal Public Services Department (PSD) has full authority over the establishment schedule, including creating and filling posts, in the states and in central ministries.

In establishment terms, Division I consists of top management including the elite Malaysian Administrative and Diplomatic Service (Perkhidmatan Tadbir dan Diplomatik or PTD), which is the successor to Malaysian Civil Service; various professional services such as those of doctors, engineers, and educationists; and senior positions in sector-specific services. Division II consists of executive and technical staff. Division III are clerical and semiprofessional staff, and Division IV consists of unskilled workers. Throughout the 1980s, no less than 85 % of employees were in the lower two divisions.

Since the restructuring of 1992, the horizontal service groups include the Top Management Group (Premier Grade), Top Management Group (Special Grade), Management and Professional Group, and Support Group. The two top management groups form 0.13 % of the public service, while the third and fourth groups comprise 15% and 84% respectively. Recruitment of personnel to the public service is the responsibility of various service commissions established under the federal and state Constitutions. These include the federal and state Public Service Commissions; Legal and Judiciary Service Commission; and Commissions for recruitment in Railways, Police Force, and Education Services.

43

Government has delegated powers to individual departments to recruit staff of selected support services. No discrimination on grounds of sex, race, or religion is permitted. However, the policy of Malayanization and quotas under Article 152 are exceptions to the principle.

IV A. CONTEXT, OBJECTIVES, AND FRAMEWORK OF AFFIRMATIVE ACTION IN PUBLIC SERVICE

Context Since colonial times, ethnic representation in civil service has been a major political issue. The Malayanization of higher civil service and the enforcement of safeguards to improve the position of Malays in public service, education, and industry were explicit policy goals of British colonial administrators (Puthucheary 1978). In his statement of the before the Federal Legislative Council in 1953, the British High Commissioner cited the under-representation of Malays in professional services as justification for total Malay control of the elite Malayan Civil Service (MCS) (Lim Hong Hai 2002). Malay officers progressively replaced British officers in the MCS. The Malay Administrative Service (MAS) was created in 1910 to open up clerical and subordinate positions to Malays. Promotion from MAS to MCS was allowed and, after Independence, MAS was the main source for replacing expatriate officers. However, the British rulers also believed that MCS would not remain a preserve of the Malays. Hence, 80% of the jobs were reserved for Bumiputras by a 1943 regulation to preserve the special position of the Malays. The administrative branch of the civil service was closed to non-Malays until 1952. But, senior personnel in the professional and technical services, which comprised 86,000 posts at Independence, were recruited largely from non-Malays in the first few decades after Independence because of the scarcity of qualified Malays.

Goals, Policies, and QuotasAfter independence in 1957, Malayanization of the civil service a conscious goal of government carried over from colonial times. Until the ethnic clashes in 1969, non-Malay leaders supported this policy to some extent. NEP integrated this affirmative goal into objectives of economic and social policy. The Constitution made special provisions for promoting the special position of the Malays and indigenous peoples. Constitution makers were inspired by the Indian Constitution’s provision to protect the Scheduled Castes and Scheduled Tribes (see chapter 1 on India). Malaysia’s Article 153 has been used to continue reservation policies, which were already in force before Independence, for instance, as regards admission into certain branches of civil service and for particular types of licenses. The New Economic Policy and the quotas in civil service reinforced the Constitutional intent of preference to Bumiputras.

44

Article 153 of the Constitution enabled the government to continue the colonial quota system of 80 % of positions for the Bumiputras at all levels of civil service. Besides the MCS, safeguards were considered necessary in branches other than MCS to reduce the proportion of non-Malays. (Police was the exception.) However, independence came before sufficient Malays could be trained to take over all the jobs held by British officers. A program was drawn up to set targets for the Malayanization of all branches of civil service over several years and retain foreign officers in MCS on short-term contracts. This program operated in tandem with efforts to increase the number of Malays graduating from universities and professional institutes though quotas and scholarships, thus enabling them to apply for the reserved jobs in public service.

The goal of the quota system was not just to ensure the presence of Malays and indigenous groups in proportion to their presence in the population but to ensure Malay representation far above their presence in population (Esman 1972). Malaysia’s quota system was not targeted to a minority share of the population, but the largest single group in the country (Puthucheary 1978). Besides job reservation, other affirmative measures were introduced to achieve this goal. The quotas were instituted as temporary measures, but became permanent due to pressure from the Malay population and ineffective opposition.

Article 153 of the Constitution limits the entry of non-Malay candidates to 20% of annual vacancies in MCS from 1952 until the present. MCS’s role in controlling and directing policy makes it the most influential branch of public service, especially because of its links to the coalition that has been in government since independence.

Since 1988 (Service Circular 10 of 1988), government’s policy has been to reserve at least 1 % of total public employment in federal, state, and local governments and statutory boards for handicapped persons. The three types of disability covered by this policy are the visually handicapped, hearing and speech-impaired, and physically handicapped. Only handicapped persons registered with the Ministry of National Unity and Social Development are considered for special quota. Widespread information on the facility, available jobs, and the requirements of registration are circulated through state welfare offices and voluntary offices.

While all vacancies in public sector are open to persons with disabilities, selection is based primarily on suitability for the job from among those who are eligibile for this quota. Relaxation of eligibility is considered only in maximum age. Government does not waive any service condition, including academic qualification, which is laid down in the scheme of services. The selection committees, including the PSC, consult the Ministry of Unity and Social Development on the kind of disability that will not affect performance on the job and on any relaxation of age. There are equal opportunities for men and women in public service recruitment and promotion, but there are no job quotas for women. There is no information on quotas for war veterans.

45

Constitutional Provisions and Administrative Circulars

Article 8 prohibits discrimination against any citizen on the grounds of religion, race, descent, or place of birth by any law relating to any matter including employment. Article 136 states that all persons of whatever race in the same grade in the service of the federation shall be treated impartially. Affirmative action necessitated exceptions to the equality rule. Article 153 has been used to continue pre-independence reservation policies, for instance, as regards admission into certain branches of civil service and for particular types of licenses. In 1971 legal changes were effected to entrench Article 153 and to make it an act of sedition for anyone to question the policies for affirmative action.

Article 153 (2) of the Constitution states:

“The Supreme Ruler shall exercise his functions under this Constitution and federal law in such manner as may be necessary to safeguard the special provision of the Malays and natives of any of the States of Sabah and Sarawak. Acting on the advice of the Council of Ministers, the Supreme Ruler shall ensure the reservation for Malays and natives of any of the States of Sabah and Sarawak of such proportion as he may deem reasonable of (a) positions in the public service of the Federation, (other than the public service of a State); (b) scholarships, educational, or training privileges accorded by the Federal government; and (c) permits or licenses required for any trade or business. The reservation also extends to scholarships, exhibitions, and other similar educational or training privileges or special facilities given or accorded by the Federal Government; and permits and licenses for trade and business. Government may give direction to the PSC and other Commissions to enforce this requirement."

Since Independence, the federal government has issued a number of development circulars to implement the policy of reservation for the Bumiputras and disabled persons and to ensure equal opportunity for women in civil service. These circulars are binding on federal and state agencies, state enterprises, and local governments.

IV B. ENFORCEMENT OF AFFIRMATIVE ACTION AND ITS EFFECT

Institutional Responsibility for Policy Formulation and Implementation

At first, the Board of National Unity coordinated the overall policy for affirmative action for Malays, but this function has now been taken over by the Ministry of National Unity and Social Action. The responsibility of public service and affirmative action in it are shared between the federal Public Service Department (PSD) and the federal Public Service Commission (PSC), subject to overall supervision by the Prime Minister’s Office. The PSD is responsible for scheme and conditions of service, salary scales, negotiating with staff unions, controlling the pension system, and other duties. PSC is concerned with appointment and promotion, certification for pension, and disciplinary

46

matters for the entire civil service. Commissions for education, police, legal and judiciary, and railways exercise powers with respect to specified services. The Ministry of Women and Family Development safeguards the interests of women in consultation with national nongovernmental organizations such as the National Council of Women’s Organizations.

Information about changes in the ethnic composition of the public service has to be compiled from research agencies, staff lists published by government, and Parliamentary proceedings. Data analysis is challenged by the 1992 change in classification of civil servants, and the distribution of employees across divisions before and after 1992. Information released by the government is too aggregated to permit in-depth analysis such as the grouping of doctors and teachers in management and professional groups to demonstrate a higher share for the non-Malays. Furthermore, most researchers tend to use the data for the Malay peninsula alone to calculate the extent of Malay representation. Using the Malay proportion of the entire population (including North Borneo) would raise the estimate of Malay under-representation.

The employees are entitled to represent to the higher authorities and to the PSC against injustice under the affirmative action policies and ineffective implementation of circulars. The Public Complaints Bureau also investigates complaints, but details are not available. Information on court judgments relating to affirmative action is not available. However, courts appear to have generally supported executive action in enforcing affirmative action in public service. Some non-Malay officials reported discrimination in promotion could have been held as violating Article 136 of the Constitution, but that aggrieved persons could not find judicial redress.

It is only in the Parliament that the declining representation of non-Malays in civil service can be criticized. Although Parliament is overwhelmingly controlled by the Barisan Nasional coalition, in recent years, the criticism has resulted in some liberalization policies for admissions to universities and public service. Press reports are conditioned by apprehensions over the sedition law.

Effect of Affirmative Action on Public Service Composition

By 1970 the British officers in MCS were totally replaced by Malay officers. The quota of 80 % for Malays was enforced even in PTD, the successor to MCS. Malays always exceeded the 4:1 ratio in MCS and the elite PTD, because the calculation of the Malay quota excluded those Malays who entered MCS from the MAS and state services. In 1970, 87% of PTD’s 696 members were Malay (Puthucheary). The PTD itself expanded rapidly due to demands of implementing NEP. It comprised 1568 officers in 1975, 2500 in 1984, 3700 in 2002, with a continuous Malay proportion of over 85 %. In the early 1980s, PTD hired 200 to 250 recruits per year, all of them Malays.

At Independence, there appeared to be ethnic separation according to function in the higher service. While the administrative and semiprofessional posts could be filled by Malays from the PTD or state services, the Chinese and Indians had to be recruited to fill

47

the shortfall of qualified Malays for posts in professional and technical services. In 1970 Malays held only 39% % of the 4744 posts in these services compared to the Chinese and Indian groups The Chinese occupied 64% % of posts in Public Works, 41% % in Medical, and 40% % in Education (Puthucheary 1978). The Malay share of division I personnel increased steadily from 14.1 % in 1957 to 37.4 % in 1968 and 49 % in 1978.

To offset the shortage of qualified Malays in professional and technical services, more Malays were recruited under the quota system in middle and lower echelons of executive, technical, and clerical cadres, when sufficient candidates were available. During 1969–72, 80% of recruitment in public service were Malays, but 58% of recruits in professional and technical services were non- Malays. Between 1969 and 1973, 98% of new government employees were Malays. The clerical and technical cadres were largely occupied by Malays.

Bumiputra proportion in public service has consistently been higher in civil service than in the population. In 1972, they constituted 53% of the population but 57% of the public service. The trend continued and in 2000, they comprised 80% of public service (excluding police) while comprising 65% of the population. In state services, the Malay proportion was 79% (Lim Hong Hai 2002). A survey by the Kuala Lumpur Institute of Applied Policy (INSAP) showed the participation of non-Malays to be approximately 13 % in executive positions in 23 federal ministries and departments (Wong 2002). Almost one-third federal ministries did not have non-Malays in executive positions, while three-quarters had fewer than three non-Malays in such positions.

Table IV.8. Malaysia: Ethnic Composition of Public ServiceYear 1980 1985 2003

Ethnic group % of public serviceBumiputra 59.1 61.7 83.7

Chinese 29.7 27.1 8.2Indian 9.8 10.0 5.2Others 1.4 1.2 3.3

Source: Malaysian Parliament Proceedings 2003.

According to Parliamentary proceedings, the Members of Parliament from Chinese and Indian sections reacted angrily to the actual figures of non-Malay representation in civil service (Table 2.3), in contrast to the projections in the Third Outline Perspective Plan 2001–2010.8 The Perspective Plan 1990–2000 estimated that the composition of Bumiputras would go down in 2000 from 65.9 % to 64.4 % while the proportion of Chinese and Indian ethnic groups would increase by 1 % to 26.3 % and 9 %, respectively. However, the actual figures for 2003 were vastly different with striking declines in the proportion of Chinese and Indian groups. They demanded that the government spell out the strategy of the Mid-Term Review of the Eighth Malaysia Plan to reverse the plunge of the non-Malay ratio in the civil service and ensure that civil service employment reflect the ethnic composition of the population by the year 2005. Furthermore, they demanded that the government give a specific report on the targets for the ethnic ratios of the civil service employment and how the shortfalls arising from the plunge of the non-8 Website (which, can you give the date?) for Malaysian news

48

Malay ratios in the civil service could be rectified in the Mid-Term Review of the Eighth Malaysia Plan by 2005.

Because Malays comprise the majority of PTD is dominated by Malays, they hold most top positions including the position of chief secretary, and departmental secretaries. In 1989, of the 22 department secretaries, 19 were Malay and over 80 % of Secretaries-General were Malay. In 1980 Malays held 58% of all posts that range from grades A to F, while they accounted for 78 % of the posts in the 3 highest super-scale grades (table 2.4). Malay proportin is highest in key ministries such as the Prime Minister’s Department, Finance, Foreign Affairs, Education, Defense, Trade and Industry, and Home, with Malays holding 81.2 % of all super-scale posts in these ministries. In universities, in addition to top administrative officers, the deans of all schools are invariably Malay (Navaratnam 1997, Lim Hong Hai 2002). Table IV.9. Malaysia: Ethnic representation in top positions in federal ministries, 2000Position Malay Chinese Indian OthersSecretary General 90 5 5 0Deputy Secretary General 93 7 0 0Division Directors 84 7 8 1Source: Wong 2001.

Within the Bumiputras, Malays outnumber the other indigenous groups by almost five to one, and in public service, by much more. As the Bumiputras in Sabah and Sarawak are drawn largely from the state civil service of these states, Malays comprise close to all the Bumiputra civil servants at the federal level and virtually all civil servants in the states of the peninsula.

Women initially occupied positions of teachers and nurses in government. Large-scale recruitment of women in clerical, professional, and supervisory positions started in the 1970s. Recent policy guidelines permit the hiring of women as part-time workers in public service. In cases in which the wife and husband belong to public service, government ensures posting in the same location. In the absence of adequate efforts to publicize job opportunities and increase education levels of women, there are not enough women at decision-making levels, as seen from a recent statement by the Minister for Women and Family Development (New Straits Times, May 2003. Women councilors comprise 10 % of the total number of councilors in local government. There are no programs designed solely to train women to hold posts in civil service. In civil service, women occupy a high proportion of jobs in support groups and the professional and management categories, such as engineers, architects, and town planners. However, the gap widens as women move into higher grades. The degree of representation is much less at state and local levels (table 2.5).

49

Table IV.10. Malaysia: Women in public service, 1999

Title of post (top four levels)

% of women appointed to decision-making levels of public service

Federal Government State Governments

Local Governments

Chief Secretary to Government 0 0 0Staff Posts (1 to 3 levels) 6 0 0Super-scale levels (A,B and C) 11 0 0Professional and management 50 16 23Source: Information Technology Unit, Public Service Department.

There is no official information on the impact of quotas for disabled persons and the number of posts actually filled in different grades by these persons.

IV C. CONSEQUENCES OF AFFIRMATIVE ACTION FOR PUBLIC SERVICE

Effect on Meritocracy In the initial years after Independence, excessive recruitment of Malays in MCS raised doubts about the quality, educational background, attitudes, and social make-up of the recruits. The educational level of non-Malay candidates in the MCS was higher.

Table IV.11. Malaysia: Education levels in MCS by ethnic origin, 1971

Educational qualifications % with this qualification amongMalay officials Non-Malay officials

Honors degree and above 63.7 92.8General degree or equivalent 13.2 4.8Diploma and secondary school level 23.1 2.4

Source: Puthucheary 1978.

Administrative careers were denied to many non-Malays with outstanding university degrees, while Malays with marginal academic records gained entry. (Esman 1972, 1997). Recent Malay recruits to PTD have more varied educational background and higher qualifications than earlier Malay recruits, but their quality is still reported to be below par. Former officials have called on government to attract the best brains in the country and make the PTD more multiracial (Navaratnam 1997).

The federal Constitution provides for several service commissions vested with responsibility for appointments to top and middle posts. However, Article 144 (3) enables the government to designate special posts that shall be excluded from the purview of the service commissions. Similar excluding provisions are available at the state level. The non-Malays point out other deviations from Article 136 and the merit criterion. Under the Rules framed under the Constitution, special rights applied only to recruitment, but in practice, Malays also were promoted many times because of the need to ensure that Malays would fill the highest policymaking positions regardless of performance standards (Navaratnam 1997).

50

Perception of Non-MalaysBesides the public sector’s lower wages and declining prestige, Malay domination in recruitment and promotion makes government jobs less attractive to non-Malays (New Straits Times 25 May 2001). The declining attraction of public service among non-Malays is seen from an analysis of applications for pubic sector jobs in 2001. Of the 1.05 million applications received in 2001, 80 % were from Malays, 1.5% from Chinese, 2% from Indians, and 16.5% were from Bumiputras and others (New Straits Times, 8 October 2002). Despite preferential admission to universities and scholarships, the number of well-qualified Malays in the pool of university graduates is lower than that of non-Malays, and the relatively lower performance of Malay graduates provokes official concern (Lim Hong Hai 2002).9 The public service faces keen competition for quality candidates from the vibrant and better-paying private sector, which is also under pressure to increase its Malay workforce at higher levels. Because of the superior attraction of the private sector and the quota system, civil service is scraping the bottom of the barrel for talented Malays and is unable to close the talent gap by recruiting non-Malays.

Independent surveys of officials revealed non-Malays’ resentment and frustration over denial of promotion opportunities beyond a certain level as the higher posts are filled from the Malay-dominated PTD. (Puthucheary 1978, Navarnam 1997, Lim Hong Hai 2002).

IV D. FUTURE OF AFFIRMATIVE ACTION IN PUBLIC SERVICE

The reason for the greater success of affirmative action in civil service in Malaysia (in comparison with India, for example) is due to the greater growth of literacy, incomes, and jobs for all communities, including the Bumiputras, and the coordinated pursuit of NEP. Costs appear in the form of intra-ethnic tensions among Bumiputras; non-Malay resentment and withdrawal.

As in India, empirical studies in Malaysia revealed that the principal beneficiaries of preferences and quotas were those who were already fortunate and who could use the job quotas to enter civil service in large numbers. This possibility had been recognized in 1970 in the book by former Prime Minister Mahathir Mohamad, The Malay Dilemma, which laid the basis for affirmative action (Sowell 2004). In this book he considered special rights for Malays to be a crutch and accused the Malays of relying too much on affirmative action and failing to work hard The quota system could have been phased out by the 1990s, because Malays were represented adequately in technical and professional services; however, the government does not consider it politically opportune to phase them out.

9 In 2003 the Malaysian government announced that admissions to the universities henceforth would be by academic records, with computers determining who gets in and who does not, without regard to ethnicity.

51

Following severe shortages of qualified Malays in professional and technical fields in government as well as in state-aided institutions, in 2001 government reversed the language policy and the policy for educational institutions to base admissions on individual achievement. In 2003 the government responded to public disillusionment with its entrenched policy of positive discrimination in favor of Malays in the country’s public universities and restored merit as the basis of admission. According to 2001 newspaper reports, former Prime Minister Mohamad announced government’s keenness to ensure sufficient representation of all races in the civil service. Government urged non-Malays to join the police as well as various health care services such as nursing (New Straits Times 20 May 2001) However, no concrete proposals to improve the access of non-Bumiputras to higher bureaucracy have come forth.

52

V. AFFIRMATIVE ACTION IN NIGERIA’S PUBLIC SERVICE: A CASE STUDY

V A. BACKGROUND

Size and Population The Federal Republic of Nigeria is a large West-African country with a total area of 923,768 sq km (365,669 sq mi) on the shores of the Gulf of Guinea, with Benin Republic to the west, Niger to the north, Chad to the northeast, and Cameroon to the east and southeast (Mabogunje 1999, 797). It is a country within the tropical zone lying between latitudes 40 and 140 north of the equator and longitudes 30 and 140 east of the Greenwich meridian. With a population enumerated at 88,514,501 at the last census of November 1991 and today estimated at about 120 million (Bande 2001), Nigeria is the most populous nation in Africa (Leith and Solomon 2001, 2).

Diversity of Peoples and CultureNigeria is a multiethnic country consisting of between 250 and 400 ethnic groups (Olowu 1995:200) with 3 dominant ones. These are the Hausa-Fulani in the north, the Yoruba in the southwest, and the Igbo in the southeast. Others are the Edo in the Midwest; the Kanuri in the northeast; the Tiv and Nupe in the middle-belt; and the Urhobo, Isoko, Ijaw, Itsekiri, and Efik in the south or Niger Delta region. The diverse nature of these ethnic groups is evident in differences in religion, languages, cultures, resources, and indigenous styles of governance. There are two major religions in Nigeria: Islam and Christianity. Islam is practiced primarily in the northern part of the country while the eastern part is predominantly Christian. The west and the middle-belt are part-Christian and part-Muslim. Substantial adherents of traditional religion also exist in the country. The official language of the country is English but section 55 of the Nigerian Constitution recognizes the three major languages: Hausa, Ibo, and Yoruba. The use of pidgin English is widespread in Nigeria and serves as a medium of communication among people from different ethnic groups.

Overview of Political History and Machinery of Government

Sometimes described as a geographical expression (Awolowo 1947, 47), the mistake of 1914 (Bello 1962, 133) or the product of political cloning (Ayoade 2003, 101), Nigeria as a political entity was created by the British in 1914. Prior to 1900, the nationalities that now make up Nigeria had either been conquered by the British colonialists or made to sign treaties of “protection.” These nationalities were then governed by three separate arms of the British government. The colony of Lagos, with its Yoruba hinterland was administered by the colonial office. By 1900 it became the colony and protectorate of Lagos. The Niger coast protectorate, comprising the Bights of Benin and Biafra with their hinterlands, was administered by the foreign office. In 1900 it became the protectorate of Southern Nigeria and came under the colonial office. What was later known as Northern Nigeria was originally administered by the Royal Niger Company. In 1900 it became the protectorate of Northern Nigeria and also came under the colonial office. Thus, the

53

territory now known as Nigeria came under one administration in 1900 (Ayoade 2003, 101). In 1906, the colony and protectorate of Lagos and the protectorate of Southern Nigeria were amalgamated to form a new protectorate of Southern Nigeria. However, the territories were not governed as one country until the amalgamation of the protectorates of Southern and Northern Nigeria in 1914.

In 1946 for administrative convenience, Sir Arthur Richards restructured the country into three regions: Western, Northern, and Eastern. In 1951 a quasifederal system of government was introduced and later, in 1954, a new Nigerian (Lyttleton) Constitution establishing a full fledged federal system of government was enacted based on the aforementioned three regions. The federal arrangement sought to reconcile regional and religious tensions and to accommodate the interests of Nigeria’s diverse ethnic groups.

Nigeria maintained the federal form of government when she became independent in 1960 and became a Republic in 1963, when the number of regions was increased to four with the creation of the midwest region. In 1967 Nigeria became a federation of 12 states. The number of states was increased to 19 in 1976, 21 in 1987, 30 in 1991, and 36 in 1996. The criteria used by the military regimes which created the states were mostly political. Nigeria’s federal system also comprises local government areas (LGAs) which increased from 299 in 1976 to the current 774.

Nigeria inherited from Britain a parliamentary system of government. This system was overthrown in January 1966 when the Nigerian military staged its first coup d’état. From 1966 to 1979 the country was governed by the military including the civil war years of 1967–70.

In 1979 the military handed over power to the civilian politicians under an American-style presidential system of government. This did not last when the military struck again on the last day of 1983 and remained in power until May 1999, except for the short interim national government of Chief Ernest Shonekan between August and Novermber 1993. Since 1999 Nigeria has operated a presidential-style government.

Scholars of Nigerian federalism generally agree that the earlier years of post-colonial federation (1960–65) exhibited more faithfulness to the “federal ideal.” But with military rule from 1966, centralization of political and economic life became the dominant feature. The increase in state revenues owing to the importance of petroleum in the global political economy from the 1970s made available to military leaders unimaginable financial resources. The center became dominant, and this dominance was reflected in all the constitutions drafted under military supervision (1979, 1989, 1995, and 1999).

Highlights of Social and Economic Development Performance

Following the Nigerian Civil War, the economic objectives were designed such that the growing oil revenues of the 1970s were converted into investments in social and physical infrastructure. Before the end of that decade, the economy had become essentially a

54

consumer of imports and a nation dependent almost solely on crude petroleum. The agricultural sector, which had been the major source of export earning, was allowed to decline. In effect, the agricultural sector's share in gross domestic product (GDP) fell rapidly, and this declining performance led to a progressive dependence on imported food and other imported consumer goods. In addition, manufacturers depended on imported raw materials. Furthermore, on the basis of the Nigerian Enterprises Promotion Decree of 1972, the government extended its participation in the ownership and management of banking, insurance, and other industries. These developments and such others compounded the problems of Nigeria to a great extent when the world oil market collapsed in the early 1980s. The collapse led to deficits in government finances. To compound the situation, the adjustment programs initiated to revive the economy distorted the activities of important sectors and subsectors within it. Finally, the growing external debt service obligations produced an economic situation that can best be described as harsh.

Basically, the performance of the economy in recent years has been mixed. The government is fast reversing some of its past policy decisions. For example, through privatization, it is reducing its participation in the ownership and management of business-oriented concerns. However, the economy remains dependent on crude petroleum, which accounts for over 96 % of its revenue. Furthermore, the reports on selected macroeconomic and social indicators have not been encouraging (Table V.1).

Table V.12. Nigeria: Selected macroeconomic and social indicators  1999 2000 2001 2002a 2003* Macroeconomic indicatorsGross national product (n billion) (at constant market prices)

313 323 340 344 380

Gross domestic product (n billion) (at current basic prices)

3194 4538 5178 5454 7180

Total GDP growth rate (%) 17 42 14 5 32Inflation rate (%)(moving average) 7 7 19 13 14Inflation rate (%) (year-on-year) 0 15 17 12 24Social indicators Population growth rate (%) 3 3 3 3 3GDP per capital (n) 1039 1047 1063 1065 1029Life expectancy at birth (in years) 54 54 54 54 57Adult literacy rate (%) 57 57 57 57 57Human development index (%) 0 0 0 0 0Maternal mortality (per 1000 live births) 10 10 10 10 10Infant mortality (per 1000 live births) 75 75 75 75 75Crude birth rate (per 1000 persons) 49 49 49 49 49Crude death rate (per 1000 persons) 14 14 14 14 14Source: Central Bank of Nigeria 2003.Notes:a Revised, * means provisional, In October 2003, the inflation rate was 10.1%.For Human Development Index, Nigeria's Position is on a scale of 1.0.

55

56

V A. OBJECTIVES OF AFFIRMATIVE ACTION AND RELEVANT CONSTITUTIONAL PROVISIONS, LAWS, RULES, AND REGULATIONS

Federal Character PrincipleOf all government policies deliberately put in place to address problems of discrimination and under-representation in Nigeria through affirmative action, the federal character principle occupies a pride of place. Regardless of the nature and extent of defects that may characterize the federal character principle in theory and practice in Nigeria, it has, for quite some time, come to represent an important element in the country's policies and politics (Obiyan and Akindele 2002, 241).

To start with, the makers of the 1979 constitution who introduced the "federal character" principle specifically linked it to the objective of achieving national unity. It was also believed that the principle would help to "secure and maintain stability in the country" (Adamolekun, and others 1991, 75).

Ever since 1954, when the federal constitution was adopted, "unity in diversity" has been Nigeria's main goal. As provided for in section 15 (2) of the 1999 constitution, the cornerstone of state policy is national integration. Accordingly, discrimination on the grounds of place of origin, sex, religion, status, and ethnic or linguistic association or ties shall be prohibited. Despite the elaborate constitutional and statutory provisions on merit and the professionalism of the civil service, recruitment into the service takes cognizance of the country's diversity (Balogun 2001, 22).

The main provisions of the principle that relate to public office as spelled out in section 14, subsections 3 and 4 of the 1979 constitution and retained in section 14, subsections 3 and 4 of the 1999 constitution, are:

(3) The composition of the Government of the Federation or any of its agencies and the conduct of its affairs shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity, and also to command national loyalty thereby ensuring that there shall be no predominance of persons from a few states or from a few ethnic or other sectional groups in that government or in any of its agencies.(4) The composition of the Government of a state, a local government council, or any of the agencies of such government or council, and the conduct of the affairs of the government or council or such agencies shall be carried out in such manner as to recognize the diversity of peoples within its area of authority and the need to promote a sense of belonging and loyalty among all the peoples of the federation.

What the federal character principle seeks to achieve, therefore, is representative bureaucracy, with the emphasis being on fairness and equity in representing the nation's ethnic groups and component states in the public service. All of these measures are expected to contribute to the larger goal of national unity (Adamolekun, and others 1991, 75).

57

The problem with the above clauses when initially formulated in 1979 was that there were no guidelines on how the federal character principle was to be reflected in the Federal Civil Service (FCS). The reaction of the leadership of the FCS consisted of two measures. The first concerned the transfer to the federal service of officers from states that did not have a sufficient number of persons originating therefrom in the administrative cadre. Second, it was stipulated that at least one permanent secretary was to be appointed from each of the states in the federation such that no one state or group of states had monopoly of all permanent secretary positions.

One of the first attempts to provide guidelines for the implementation of the federal character principle was within the context of the civil service reform program launched by the Babangida military administration in 1988. This program was set out in the Civil Service (Re-organization) Decree 43 of 1988, which sought to fine-tune the constitutional provisions on "federal character.” First, it provided that:

The principle of Federal character shall be faithfully adhered to at the point of entry, i.e., Grade level 07–10, while thereafter, from Grade 11 and above, the mechanisms or criteria for promotion shall be based on the universally accepted principles of experience, performance on the job, length of service, good conduct, relevant qualification, training, performance at interview and relevant examination where appropriate.

Second, while allowing for transfers of officers from the states to the FCS, the transfer mechanism was so regulated that the transferee was given a post and grade that will put him or her at par with serving federal officers with the same amount of post-qualification work experience. Ministries and departments were also required to ensure that a proposed transfer would not jeopardize the prospects of officers already in the service. To this end, each ministry and department was expected to satisfy itself that the qualifications, experience, and career progression of an officer being considered for transfer are: (a)comparable to those of officers already in the grade to which he or she seeks transfer, and (b)superior to those of officers in the grade just below that to which he or she seeks to be transferred.

Third, the institutions that manage civil service personnel (the Personnel Management Board and its committees) were required to take account of the geographic spread factor in their composition. The geopolitical representation on the board and its committees was intended to ensure that they are not packed with officers from one area of the country.

With regard to grade level 01–06 positions, the 1988 reforms maintained the existing regulation that required that such officers be recruited from the geographical areas in which the federal agencies are located.

The 1988 reforms have been superceded by the 1997 White Paper on the report of the Review Panel on the Civil Service Reforms (Ayida Report). The report and the White Paper maintained the federal character guidelines of the 1988 reforms.

58

Gender Representation in the Nigerian Civil ServiceCompared to the ethnic diversity issue, gender as a factor of diversity, has not generated attention or focus. Although there are International Conventions (such as the Beijing Declaration of 1995) urging increased women’s participation in the public service at all levels and prohibiting discrimination in any form, the issue remains subdued. The current Nigerian government has chosen to push for increased women’s participation in governance to a high level with many appointments of females to trail-blazing positions of significance. There is a Ministry of Women Affairs and strong nongovernmental organizations (NGOs) pressing for the rights of women. However, their concern appears to be with political appointments rather than with career positions in the civil service.In the Federal Civil Service data under consideration, the following situation existed as of March 2003.

Table V.13. Nigeria: Gender representation, March 2003Grade Female % Male % Total01–06 31,022 36.84 53,181 63.16 84,20307–10 16,690 39.89 25,150 60.11 41,84012–14 3,134 33.10 6,333 66.90 9,46715–17 492 24.11 1,549 75.89 2,041CS 8 17.02 39 82.98 47Total 51,346 37.31 86,252 62.68 137,598Source: Office of the Head of Service of the Federation.Notes:a These data do not include those of the Ministries of Foreign Affairs, Health, and Petroleum.b CS = consolidated salary.

The male-female disparity is more poignant in grade levels 15–17 with 1549 males (75.9 %) as against 492 (24.11 %) females as well as in the consolidated salary (CS) level with 39 men (82.98 %) and 8 (17.02 %) women. There is at present no policy on the representation of women or the disabled and veterans in the Federal Civil Service in Nigeria.

V B. ENFORCEMENT RECORD TO DATE AND IMPACT ON THE COMPOSITION OF THE CIVIL SERVICE

The government agency responsible for implementing affirmative action (federal character) in the Nigerian Civil Service is the Federal Character Commission (FCC). As seen earlier, the 1979 constitution made specific provisions for all states of the federation to be equitably represented at all levels of the government of the federation, but it fell short of creating guidelines and means to enforce compliance. Although the 1988 Civil Service Reforms (CSR) did provide guidelines for the implementation of the federal character, they apparently did not satisfy members of the 1994–95 Constitutional Conference, who decided to recommend the establishment of a permanent executive body for coordinating, monitoring, and enforcing compliance with the federal character principle in all its ramifications. The commission was established by the Federal Character Commission (Establishment) Act No. 34 of 1996 and entrenched in the 1999 constitution.

59

Functions of the CommissionThe functions and powers of the Commission as spelled out in Sections 4 and 5 of the FCC Act can be classified into four broad categories:

To ensure fair and equitable distribution of posts in the public services throughout the federation among the indigenes of the various states and the Federal Capital Territory To ensure fair and equitable distribution of social services, economic amenities, and infrastructural facilities throughout the Federation To redress in a fair manner the problems of existing imbalances in the public services and in the economy throughout the Federation To prosecute defaulters.

Scope of OperationsThe commission operates at national, state, and local government levels. At the national level, the commission is to ensure that employment opportunities available in the Federal Public Service–Civil Service, Armed Forces, Nigeria Police, Federal Statutory Bodies and state-owned companies–are equitably distributed among the indigenes of the states of the Federation and the Federal Capital Territory. Similarly, investments at the national level for services, economic amenities, and infrastructural facilities are to be spread equitably among the geopolitical units of the Federation (states or geopolitical zones as appropriate). The FCC is expected to perform similar functions at the state and local government levels (FCC 2000, 2-3).

Guiding Principles and Formulae for the Distribution of All Cadres of Posts

According to the FCC Act of 1996:

Each state of the Federation and the Federal Capital Territory (FCT) shall be equitably represented in all national institutions and in public enterprises and organizations.The best and most competent persons are recruited from each state of the Federation to fill positions reserved for the indigenes of that state or the Federal Capital Territory.Once a candidate has attained the necessary minimum requirement for appointment to a position, s/he shall qualify to fill a relevant vacancy reserved for indigenes of his/her state or the Federal Capital Territory.

Where the positions available are not enough to allow the same number for each state of the Federation and the Federal Capital Territory, the distribution shall be on zonal basis; but in the case in which only two positions are available, the positions shall be shared between the northern zones and the southern zones.

Where the indigenes of a state or the Federal Capital Territory are not able to take up all the vacancies meant for them, the indigenes of any other state(s) or the Federal Capital Territory within the same zone shall be given preference in filling such vacancies. Provided that the zone to which the preference is given fails to take up such vacancy, the indigenes from any other zone shall be considered for the appointment.

60

Each state shall produce 2.75 % of the total work force in any Federal establishment, while the Federal Capital Territory shall produce 1 % for the indigenes of the Federal Capital Territory, provided that the commission may adopt a range so that the indigenes of any state of the Federation shall not constitute fewer than the lower limit or more than the upper limit of the range as set out in paragraph 12 (a) of the FCC Act.In the case of the distribution on zonal basis, the commission shall adopt another range such that the indigenes of a particular zone shall not constitute fewer than the lower limit or more than the upper limit of the range as set out in Paragraph 12 (b) of the FCC Act.The six zones each shall consist of the following:

North Central - Benue, Federal Capital Territory, Kogi, Kwara, Nassarawa, Niger, Plateau North East - Adamawa, Bauchi, Borno, Gombe, Taraba, Yobe North West - Jigawa, Kaduna, Kano, Katsina, Kebbi, Sokoto, Zamfara South East - Abia, Anambra, Ebonyi, Enugu, Imo South South - Akwa-Ibom, Bayelsa, Cross River, Delta, Edo, Rivers South West - Ekiti, Lagos, Ogun, Ondo, Osun, Oyo.

Depending on the number of states within each zone, the commission shall adopt three ranges such that the indigenes of any state within a zone shall not constitute fewer than the lower limit or more than the upper limit of the range applicable to the zone as set out in paragraph 12 (c) of the FCC Act.

PerformanceThe composition of the FCS is summarized in Table V.3. Staff distribution by state and category is summarized in Table V.4, while the changes are summarized in Table V.V. The geopolitical zone distribution is shown in table V.6. For the purpose of assessing the performance of FCC in implementing the federal character principle, information on these tables will be used as basis. Going through the tables, it is clear that the equitable representation in the FCS has not been achieved. This can be seen from the point of view of the 2.75 % workforce expected to be produced by each state in (any) federal establishment (and 1 % by the FCT) to achieve the said equitable representation. The tables listed above read with the analysis summarized in Table V.7 clearly show that, as of 1996, the 2.75/1 % was achieved in only 16 of the existing 30 states. The gap was wider in 1999 when it was achieved in only 15 of 36 states. In years 2000 and (March) 2003, it was achieved in only 16 of 36 states. The 1 % work force to be produced by the FCT was equally not met for the years under consideration. All of these missed targets amount to imbalances in the composition of the FCS.

On zonal basis, the picture is very clear (TableV.6). In 1996 the South South geopolitical zone produced the highest work force with 23.07 %. It was followed by South West with 21.85 % contribution. North Central, South East, North West and North East produced workers in descending order of 20.68, 14.09, 11.46, and 8.85 %, respectively. There was not much difference in 1999 when South South had the highest figure of 22.37 %, followed by North Central, South West, South East, North West and North East in descending order of 20.99, 20.82, 14.90, 10.93, and 9.99, respectively.

61

In 2000 South West zone contributed the highest %age of 24.97, followed by South South zone with 20.65 %. Others were North Central, South East, North West, and North East with 19.33, 16.08, 10.47, and 8.50 %, respectively. As at March 2003, South West produced the highest work force of 28.06 %, followed by South South with 21.17 %, North Central 17.81 %, South East 16.45 %, North West 9.38 %, and North East 7.13 %. The picture of the zonal contribution to the work force is simply one of imbalance. The South South and South West zones were more favored throughout the period, followed by the North Central. The North East zone is the most under-represented throughout the period.

The attainment of numerical equality or equal representation, at both state and zonal levels, in the federal civil service has been difficult due to several factors, most especially the differences in the level of educational development and to the inability of the FCC to effectively monitor and enforce adherence to the principle. It must be added that the FCC now appears to have commenced monitoring compliance with the federal character principle. Apart from the case already instituted against the National Investment Promotion Council (NIPC) in the law court for violating the federal character principle, as gathered from the FCC Secretariat, it was reported in the Vanguard newspaper (Lagos) on May 14, 2004 that the FCC ordered the National Assembly Service Commission (NASC) to halt its employment interview scheduled for March 29, 2004, for an alleged breach of federal character principle in the exercise. The NASC had to respond to the issues raised by the FCC before it held the interviews. In fact, it is now mandatory for the FCC to be represented at FCS recruitment interviews.

Views of Selected Officials on the Federal Character Principle

In the course of our investigations, we held interviews with selected officials in the Federal Character Commission, the Federal Civil Service Commission and office of the Head of Civil Service of the Federation (OHCSF) on issues including acceptance of the principle; the use of state representation as proxy for ethnic, religious, and linguistic diversities; as well as the roles of key institutions (National Assembly, Courts, Federal Civil Service Commission, OHCSF) in its implementation.

Below we provide a summary of respondents' views on the issues raised above.

Acceptance of the Federal Character Principle. It was generally accepted that the Federal Character Principle has come to stay. The only problem, as gathered from the officials, was with respect to "transfers" from state civil services to senior positions in the federal service, which tended to affect the promotion prospects of those already on the ground. We have however learned that such transfers are being streamlined to avoid the usual complications.

Using state as proxy. Issues were raised on the use of state representation as proxy for ethnic, religious, and linguistic diversities. There were two views. Some officials were of the opinion that the use of state as the basis for representing the federal character in Nigeria would summarily amount to playing down ethnic factors and de-emphasizing

62

sectional and regional loyalties and on the whole ensuring stability of the Nigerian federation. The second view was that use of state as proxy would be to the disadvantage of the minority ethnic groups, especially when they are in the same state with bigger ethnic groups.

Roles of key institutions. It was revealed that although the listed institutions have oversight (National Assembly) and implementation (FCSC and OHCSF) roles to play, it is the Federal Character Commission (FCC), through the courts, that has the power of enforcing the principle.

Imbalances and Suggestions to Redress ThemIn its Fifth Annual Report (2000) the commission admitted that:

There was no ministry, parastatal, or agency without imbalances in its human resources distribution. However, the degree of lopsidedness varied from one organization to the other. Some of the reasons identified as responsible for the imbalances included historical factors, ethnicity, and inadequate information given to prospective candidates about recruitment exercises (FCC 2000, 5).

In a series of meetings throughout the year with Permanent Secretaries of Ministries and Chief Executives of Parastatal Organizations, the following suggestions for redressing existing imbalances were advanced, discussed, and accepted:

In the process of redressing the imbalances, Ministries, Departments, Parastatals, and others should not resort to retrenchments but should fill vacancies arising from resignations, withdrawals, deaths, and dismissals with people from states that were either not represented or under-represented.

Advertisements for employment of officers at GL 07 and above should be placed in at least two national dailies, with wide enough readerships to cover the entire country giving and application period of at least six weeks. In addition, a copy of the advertisement should be sent to each State Government for publicity at the state level.Priority should be given to the states that were not adequately represented.The minimum qualifications and requirements needed for employment should be adhered to, and once a candidate has attained such qualification s/he should be qualified to fill existing vacancies reserved for his/her state. There should be no arbitrary change of minimum qualification requirements.At branch or local offices, at least 75 % of staff at GL. 01–06 should come from the catchment areas of the establishments.

In concluding the Fifth Annual Report, the commission asserted that:

It can now be safely said that two critical phases in the commission's mandate had been taken care of. These are working out and educating the public on the guidelines and formulae and monitoring of same. The commission would in the succeeding years embark upon the third phase, that is, enforcement. It would also focus on Public Limited Companies in accordance with the constitutional provisions (FCC 2000, 19).

63

64

V C. ASSESSMENT OF THE CONSEQUENCES OF “FEDERAL CHARACTER” FOR CIVIL SERVICE PERFORMANCE

What difference has the adoption or implementation of the federal character principle in the federal civil service made to the performance of the service?The scope and intent of the federal character principle and its implementation have generated heated debate. Its critics regard it as a smoke screen for ethnic favouritism. Its advocates see it differently–as the only safeguard against nepotism (Balogun 2001, 16).Indeed, as Agbodike (2003, 185) has argued, the result of the undue application of quota and lack of regard for merit in the application of federal character principle is that standards and professionalism are compromised and endangered. Moreover, the use of the formula is known to imbue civil and public servants in the country with a tendency to developing constituency consciousness and to remove the safeguards that protect them from the ravages of politics. Above all, the principle creates tension and frustration among some public servants, particularly the Southerners, whose career expectations are adversely affected by the need to reflect the federal character and who see the measure as a ploy to deprive them of jobs for the benefit of the Northerners. All these make the civil service an arena of sectional struggles and competition and make people to lose confidence in the impartiality of the government and the neutrality of the civil service as an instrument of state policy.

One of the major and most problematic features of the federal character principle as presently operated is the complexity of the interests and units represented by the North-South zone, state government, local government, and ward affiliations. For example, the creation of more states and local governments and the establishment of federal educational institutions in every state to enhance greater representational opportunities lead to the multiplication of governmental and administrative units and facilities, which become disturbingly expensive to the nation. This multiplication is often done against the evidence of the inability of the new states and local governments to discharge their statutory duties as a result of their unviability. As a result, the federal character principle, asserts Bala Usman (1977, 46–48) has deepened the problems it was devised to tackle.Alhaji Bargudu Shettima, a one-time chairman of the Federal Public Service Commission (FPSC), had asserted that the federal character principle can enhance the efficiency of the service. Nonetheless, it is not clear how such efficiency can be attained when there is considerable distrust among officials from different zones and ethnic groups who feel discriminated against, especially with regard to promotion and the impossibility of rising to the highest post in the service because their zone, state, local government, or ward of origin happens to be “over-represented.”

To underscore the problems in implementing federal character, the high command of the Nigerian Armed Forces recently (Guardian, June 10, 2004, 6), in testimony before the House of Representatives Committee on Federal Character, opposed the application of the “federal character” beyond the “point of entry” or recruitment into the officer corps.Whether caused by “federal character” or a combination of other factors, perceptive observers and scholars have bemoaned the continued decline in the performance of the FCS since the onset of military rule in 1966. Recent reports now have it (Onuorah 2004)

65

that President Obasanjo confirmed a rumored but long-awaited retrenchment in the civil service. The reasons he allegedly gave included decay, inefficiency, waste, corruption, and in some cases, arrogance.

On the whole then, ineffectiveness and inefficiency have become evident in the Nigerian public administration system because it has lost its mission. Merit has been subverted due to unchecked ethnic loyalties, and of concern here is the corrupt tendencies it has promoted. This view is in line with that of Essien-Udom (1968, 128), who is quoted as saying:

…where the kinship system (or clan organization) has a great deal to do with the organization of social life, it can be a source of nepotism and corruption in public life, especially in the recruitment and promotion of men in the public service.

Also, as put by M.J. Balogun (2001, 17):

…the conflict in the various groups’ world-views tends to promote relativist responses to critical ethical and professional management questions. If the anti-corruption program of the government has not proceeded as smoothly as originally intended, this should be blamed on the lack of consensus on the consequences of institutional decay as well as on the measures deemed adequate and appropriate to stem the rot.

Tijjani Bande (2001, 5) has also raised the issue of "the heightening sense of separateness arising from an excessive concern over ‘origins’…especially in a situation where nation building is a goal.” It is really disturbing when one's zone, state, local government and even ward take precedence over one's citizenship as a Nigerian in the complex permutations of the federal character guidelines.

On a final note, it needs to be stressed that it is not so easy to draw a correlation between “federal character” and the performance of the Federal Civil Service. There are so many other factors that could be co-responsible for the poor performance of the system.

V D. CONCLUDING OBSERVATIONS

What this investigation reveals is that while the objectives of the federal character principle seem clear, and minimum and maximum targets have been provided, the issue of timeframes is unaddressed. Perhaps the real solutions are to continually look at systematic obstacles to recruitment and to guarantee open systems so that any charges of non-inclusion can be investigated and rectified, where needed as suggested by Bande (20 01).

The issues of the disabled and veterans need to be looked into. In addition, the embarrassing imbalance in favor of men is an issue that must be part of the interpretation of the "federal character" principle.

66

A fourth issue relates to the scope of the work of the FCC. The scope is too wide and unrealistic, especially in the light of the implementation of a federal constitution and the privatization and deregulation policies of the federal government.

As Adamolekun, and others (1991) have asserted, the federal character principle is clearly a symbol of some of the tensions and conflicts in Nigeria's federal system. To the extent that it is no more than a symbol, its importance can be exaggerated.For one, there is a real sense in which the controversy over the federal character principle is an expression of intra-elite and inter-elite competition over appointments, especially those of patronage or elective character, and the material advantages associated with them.

However, to the extent that openly acknowledged or thinly disguised ethnic, religious, communal, or regional interests feature prominently in the federal character debate, the principle’s symbolism becomes linked to a salient feature of the Nigerian federal milieu: the importance of centrifugal forces that need to be accommodated within the federal system. Although it can be argued that the federal character principle is a mechanism for coping with this reality, it would also be correct to say that there has been a lack of vision to transcend it. The National Conference that is being advocated by some segments and groups in the country could provide an appropriate forum for this exercise.Another issue lying behind the symbolism of the federal character principle is federal dominance in terms of both the exercise of political power and control over the allocation of national resources. Thus, the FCS as a beneficiary of this process was accurately perceived as political arena in spite of its theoretically apolitical nature. One obvious solution is a retreat from federal dominance. The following three actions could help to achieve such a retreat:

Uninterrupted democratic governanceShrinking the federal government's role in the economy, thus increasing the roles of state and local governments, the private sector, and nongovernmental organizationsContinued liberalization of the education sector, especially higher education, to ensure that the idea of equal opportunities for all citizens to compete for positions on the basis of merit will eventually replace the current preoccupation with the federal character principle.

67

Source: Federal Character Commission

V E. APPENDIX Table V.14. Nigeria: Consolidated Statistics of FCS (Presidency, Federal Ministries, and Extra-Ministerial Departments), 2000

States 01–04 % 05–07 % Total01–07

%01–07

08–10 % 11–14 % 15+ % Total08–15+

%08–15+

Grand total

%

ABIA 1,631 2.6 2,357 3.5 3,988 3.1 1,578 3.7 478 3.5 83 3.1 2,139 3.6 6,127 3.2 ADA 1,167 1.8 1,387 2.1 2,554 2.0 771 1.8 248 1.8 46 1.7 1,065 1.8 3,619 1.9 AKW 3,615 5.7 3,533 5.3 7,148 5.5 1,962 4.5 455 3.4 60 2.3 2,477 4.2 9,625 5.1 ANA 1,047 1.6 1,785 2.7 2,832 2.2 2,020 4.7 1,047 7.7 201 7.6 3,268 5.5 6,100 3.2 BAU 1,408 2.2 911 1.4 2,319 1.8 511 1.2 162 1.2 57 2.2 730 1.2 3,049 1.6 BAY 391 0.6 340 0.5 731 0.6 386 0.9 98 0.7 8 0.3 492 0.8 1,223 0.6 BEN 2,926 4.6 2,398 3.6 5,324 4.1 1,354 3.1 344 2.5 77 2.9 1,775 3.0 7,099 3.7 BOR 1.376 2.2 1,350 2.0 2,726 2.1 771 1.8 207 1.5 44 1.7 1,022 1.7 3,748 2.0 CRO 1,958 3.1 1,657 2.5 3,615 2.8 994 2.3 295 2.2 34 1.3 1,323 2.2 4,938 2.6 DEL 2,642 4.1 3,736 5.6 6,378 4.9 2,467 5.7 807 6.0 137 5.2 3,411 5.8 9,789 5.2 EBO 403 0.6 302 0.5 705 0.5 257 0.6 43 0.3 8 0.3 308 0.5 1,013 0.5 EDO 2,988 4.7 3,645 5.5 6,631 5.1 2,149 5.0 688 5.1 115 4.4 2,952 5.0 9,583 5.1 EKI 1,020 1.6 1,361 2.0 2,381 1.8 1,079 2.5 421 3.1 124 4.7 1,624 2.7 4,005 2.1 ENU 1,646 2.6 1,851 2.8 3,497 2.7 990 2.3 239 1.8 50 1.9 1,279 2.2 4,776 2.5 GOM 561 0.9 749 1.1 1,310 1.0 512 1.2 137 1.0 42 1.6 691 1.2 2,001 1.1 IMO 3,313 5.2 5,143 7.7 8,456 6.5 2,984 6.9 909 6.7 125 4.7 4,018 6.8 12,474 6.6 JIG 500 0.8 373 0.6 873 0.7 345 0.8 96 0.7 19 0.7 460 0.8 1,333 0.7 KAD 3,052 4.8 2,183 3.3 5,235 4.0 1,327 3.1 325 2.4 62 2.3 1,714 2.9 6,949 3.7 KAN 1,540 2.4 990 1.5 2,530 1.9 801 1.9 243 1.8 77 2.9 1,121 1.9 3,651 1.9 KAT 1,429 2.2 1,012 1.5 2,441 1.9 767 1.8 242 1.8 53 2.0 1,062 1.8 3,503 1.8 KEB 634 1.0 677 1.0 1,311 1.0 574 1.3 136 1.0 38 1.4 748 1.3 2,059 1.1 KOG 3,212 5.0 3,050 4.6 6,262 4.8 2,156 5.0 581 4.3 107 4.0 2,844 4.8 9,106 4.8 KWA 1,649 2.6 1,759 2.6 3,408 2.6 1,360 3.2 425 3.1 65 2.5 1,850 3.1 5,258 2.8 LAG 1,874 2.9 2,341 3.5 4,215 3.2 1,526 3.5 563 4.2 119 4.5 2,208 3.7 6,423 3.4 NAS 1,180 1.8 1,067 1.6 2,247 1.7 720 1.7 161 1.2 36 1.4 917 1.5 3,164 1.7 NIG 1,863 2.9 1,461 2.2 3,324 2.5 1,176 2.7 381 2.8 82 3.1 1,639 2.8 4,963 2.6 OGU 4,327 6.8 5,783 8.7 10,110 7.8 2,913 6.8 1,063 7.9 216 8.2 4,192 7.1 14,302 7.5 OND 2,471 3.9 3,036 4.6 5,507 4.2 1,865 4.3 693 5.1 143 5.4 2,701 4.6 8,208 4.3 OSU 1,718 2.7 2,163 3.2 3,881 3.0 1,801 4.2 597 4.4 136 5.1 2,534 4.3 6,415 3.4 OYO 2,765 4.3 2,919 4.4 5,684 4.4 1,676 3.9 539 4.0 97 3.7 2,312 3.9 7,996 4.2 PLA 2,299 3.6 1,645 2.5 3,944 3.0 1,114 2.6 284 2.1 57 2.2 1,455 2.5 5,399 2.8 RIV 1,670 2.6 1,273 1.9 2,943 2.3 809 1.9 215 1.6 28 1.1 1,052 1.8 3,995 2.1 SOK 917 1.4 350 0.5 1,267 1.0 205 0.5 64 0.5 29 1.1 298 0.5 1,565 0.8 TAR 742 1.2 778 1.2 1,520 1.2 414 1.0 114 0.8 24 0.9 552 0.9 2,072 1.1 YOB 604 0.9 572 0.9 1,176 0.9 318 0.7 107 0.8 24 0.9 449 0.8 1,625 0.9 ZAM 320 0.5 253 0.4 573 0.4 177 0.4 40 0.3 13 0.5 230 0.4 803 0.4 FCT 861 1.3 442 0.7 1,303 1.0 289 0.7 68 0.5 6 0.2 363 0.6 1,666 0.9 NON 90 0.1 10 0.0 100 0.1 24 0.1 2 0.0 1 0.0 27 0.0 127 0.1 TOTAL 63,807 100.0 66,642 100.0 130,449 100.0 43,142 100.0 13,517 100.0 2,643 100.0 59,302 100.0 189,751 100.0

69

Table V.15. Nigeria: Staff distribution summary by state and category, 2003

GL 01–06 07–10 12–14 15–17 CS Total %tState Zones - - - - - - -

Abia SE 2,817 1,950 432 75 1 5,275 3.83Adamawa NE 1,521 480 115 30 1 2,148 1.56Akwa Ibom SS 5,022 1,976 328 30 1 7,357 5.35Anambra SE 1,591 1,778 833 174 2 4,379 3.18Bauchi NE 1,308 289 49 27 2 1,675 1.22Bayelsa SS 647 354 59 6 1 1,067 0.78Benue NC 33,823 1,160 242 62 1 5,289 3.84Borno NE 1,715 504 85 47 2 2,353 1.71Cross River SS 2,671 876 167 33 1 3,748 2.72Delta SS 4,135 2,784 632 122 1 7,674 5.58Ebonyi SE 589 261 35 10 1 896 0.65Edo SS 4,118 2,240 470 83 2 6,916 5.03Ekiti SW 2,243 1,526 399 101 1 4,272 3.10Enugu SE 2,353 1,023 225 39 1 3,641 2.65FCT NC 452 126 17 5 1 601 0.44Gombe NE 943 302 48 23 1 1,317 0.96Imo SE 4,213 3,363 734 131 1 8,441 6.13Jigawa NW 663 177 39 14 1 894 0.65Kaduna NW 3,766 993 177 43 1 4,980 3.62Kano NW 1,622 460 84 54 2 2,222 1.61Katsina NW 1,437 413 99 29 1 1,979 1.44Kebbi NW 812 289 45 29 - 1,175 0.85Kogi NC 4,542 1,868 403 78 1 6,891 5.01Kwara NC 2,040 1,371 329 54 1 3,795 2.76Lagos SW 2,603 1,699 378 86 2 4,768 3.47Nassarawa NC 1,279 375 66 10 1 1,731 1.26Niger NC 2,011 616 139 54 1 2,821 2.05Other countries - 3 59 2 - 2 64 0.05Ogun SW 6,556 4,107 882 170 2 11,717 8.52Ondo SW 3,302 1,984 526 106 2 5,922 4.30Osun SW 2,878 2,158 561 140 1 5,738 4.17Oyo SW 3,505 2,139 445 80 2 6,172 4.49Plateau NC 2,401 783 165 23 1 3,373 2.45Rivers SS 1,641 577 117 15 1 2,351 1.72Sokoto NW 801 152 21 15 1 990 0.72Taraba NE 1,069 310 51 14 1 1,445 1.05Yobe NE 619 696 36 12 1 864 0.63Zamfara NW 491 122 29 16 1 659 0.48Total - 84,203 41,840 9,467 2,040 47 137,598 100Source: Office of the Head of the Civil Service of the Federation.Notes: The above data do not include those of the Ministries of Foreign Affairs, Health, and Petroleum.CS = consolidated salary; SS = South South Zone; GL = Grade Level; NC = North Central Zone; FCT= Federal Capital Territory; SW = South West Zone; SE = South East Zone; NW = North West Zone; NE = North East Zone.

70

Table V.16. Nigeria: Summary of consolidated statistics of the FCS, selected years

States 1996 1999 2000 2003 (as at March 21)Total % Total % Total % Total %

ABIA 8,919* 2.7 7,668 2.6 6,127 3.2 5,275 3.83ADAMAWA 8,593 2.6 7,303 2.5 3,619 1.9 2,148 1.56AKWA-IBOM 16,784 5.1 13,116 4.5 9,625 5.1 7,357 5.35ANAMBRA 9,229 2.8 7,629 2.6 6,100 3.2 4,379 3.18BAUCHI 7,409** 2.3 5,099 1.7 3,049 1.6 1,675 1.22BAYELSA - - 2,691 0.9 1,223 0.6 1,067 0.78BENUE 17,188 5.3 15,393 5.3 7,099 3.7 5,289 3.84BORNO 7,176 2.2 6,498 2.2 3,748 2.0 2,353 1.71CROSS RIVER 12,185 3.7 10,086 3.4 4,938 2.6 3,748 2.72DELTA 17,034 5.2 15,045 5.1 9,789 5.2 7,674 5.58EBONYI - - 2,261 0.8 1,013 0.5 896 0.65EDO 17,525 5.4 17,035 5.8 9,583 5.1 6,914 5.02EKITI - - 4,731 1.6 4,005 2.1 4,272 3.10ENUGU 8,847* 2.7 9,847 3.4 4,776 2.5 3,641 2.65GOMBE - - 4,293 1.5 2,001 1.1 1,317 0.96IMO 19,069 5.8 16,202 5.5 12,474 6.6 8,441 6.13JIGAWA 2,263 0.7 1,896 0.6 1,333 0.7 894 0.65KADUNA 13,731 4.2 12,314 4.2 6,949 3.7 4,980 3.62KANO 6,620 2.0 4,566 1.6 3,651 1.9 2,222 1.61KATSINA 6,624 2.0 6,553 2.2 3,503 1.8 1,979 1.44KEBBI 3,616 1.1 3,014 1.0 2,059 1.1 1,175 0.85KOGI 15,936 4.9 16,736 5.7 9,106 4.8 6,891 5.01KWARA 8,259 2.5 6,877 2.3 5,258 2.8 3,795 2.76LAGOS 11,517 3.5 8,611 2.9 6,423 3.4 4,768 3.47NASARAWA - - 4,988 1.7 3,164 1.7 1,731 1.26NIGER 8,508 2.6 6,436 2.2 4,963 2.6 2,821 2.05OGUN 21,182 6.5 16,675 5.7 14,302 7.5 11,717 8.52ONDO 17,930*** 5.5 11,775 4.0 8,208 4.3 5,922 4.30OSUN 8,270 2.5 9,511 3.2 6,415 3.4 5,738 4.17OYO 12,569 3.8 9,633 3.3 7,996 4.2 6,172 4.49PLATEAU 15,047+ 4.6 8,460 2.9 5,399 2.8 3,373 2.45RIVERS 11,936 3.6 7,510 2.6 3,995 2.1 2,351 1.71

71

SOKOTO 4,633**** 1.4 2,319 0.8 1,565 0.8 990 0.72TARABA 4,008 1.2 3,867 1.3 2,072 1.1 1,445 1.05YOBE 1,750 0.5 2,177 0.7 1,625 0.9 864 0.63ZAMFARA - - 1,318 0.5 803 0.4 659 0.48FCT 2,677 0.8 2,547 0.9 1,666 0.9 601 0.44NON-NIGERIANS 187 0.1 44 0.0 127 0.1 64 0.05TOTAL 327,221 100.0 292,724 100.0 189,751 100.0 137,598 100.0Sources: Federal Character Commission, Abuja; data for 2003 obtained from the Office of the Head of the Civil Service of the Federation (OHCSF).Notes: * includes part of Ebonyi State.

** includes Gombe State.*** includes Ekiti State.**** includes Zamfara State.+ includes Nasarawa State.

includes Balyesa State.Above information include junior staff cadre.Data in 2003 column do not include those of the Ministries of Foreign Affairs, Health, and Petroleum.

Caution: In the 1996, 1999, and 2000 analyses, the %ages are rounded up to one decimal place using computerized formulae. The %ages may not necessarily add up to exactly 100%.

72

Table V.17. Nigeria: Total staff distribution by geopolitical zones, selected years Zones 1996 1999 2000 2003 (as of March 21)

No. of staff % of total No. of staff % of total No. of staff % of total No. of staff % of totalNorth Central 67,615 20.68 61,437 20.99 36,655 19.33 24,501 17.81North East 28,936 8.85 29,237 9.99 16,114 8.50 9,802 7.13North West 37,487 11.46 31,980 10.93 19,863 10.47 12,899 9.38South East 46,064 14.09 43,607 14.90 30,490 16.08 22,632 16.45South South 75,464 23.07 65,483 22.37 39,153 20.65 29,111 21.17South West 71,468 21.85 60,936 20.82 47,349 24.97 38,589 28.06TOTAL 327,034 100.00 292,680 100.00 189,624 100.00 137,534 100.00Sources: Federal Character Commission Annual Reports for various years; information for 2003 are as obtained and compiled from the office of the Head of the Civil Service of the Federation (OHCSF).Note: The above do not include data for non-Nigerians.

Table V.18. Nigeria: Analysis of the impact of implementing federal character principle (by state)Year Above 2.75/1.0 % Below 2.75/1.0 %

As of 1996 Akwa-Ibom, Anambra, Bauchi/Gombe, Benue, Cross River, Delta, Edo, Imo, Kaduna, Kogi, Lagos, Ogun, Ondo, Oyo, Plateau/Nassarawa, Rivers/Bayelsa (16)

Abia/Ebonyi, Adamawa, Borno, Enugu/Ebonyi, Jigawa, Kano, Katsina, Kebbi, Kwara, Niger, Osun, Sokoto/Zamfara, Taraba, Yobe, FCT (15)

1999 Akwa-Ibom, Benue, Cross River, Delta, Edo, Enugu, Imo, Kaduna, Kogi, Lagos, Ogun, Ondo, Osun, Oyo, Plateau (15)

Abia, Adamawa, Anambra, Bauchi, Bayelsa, Borno, Ebonyi, Ekiti, Gombe, Jigawa, Kano, Katsina, Kebbi, Kwara, Nassarawa, Niger, Rivers, Sokoto, Taraba, Yobe, Zamfara, FCT (22)

2000 Abia, Akwa-Ibom, Anambra, Benue, Delta, Edo, Imo, Kaduna, Kogi, Kwara, Lagos, Ogun, Ondo, Osun, Oyo, Plateau (16)

Adamawa, Bauchi, Bayelsa, Borno, Cross River, Ebonyi, Ekiti, Enugu, Gombe, Jigawa, Kano, Katsina, Kebbi, Nassarawa, Niger, Rivers, Sokoto, Taraba, Yobe, Zamfara, FCT (21)

March 2003 Abia, Akwa-Ibom, Anambra, Benue, Delta, Edo, Ekiti, Imo, Kaduna, Kogi, Kwara, Lagos, Ogun, Ondo, Osun, Oyo (16)

Adamawa, Bauchi, Bayelsa, Borno, Cross River, Ebonyi, Enugu, Gombe, Jigawa, Kano, Katsina, Kebbi, Nassarawa, Niger, Plateau, Rivers, Sokoto, Taraba, Yobe, Zamfara, FCT (21)

Source: Extracted from table 7. Notes:FCT is counted in this case as a state for memorandum only; 2.75 % applies to states; 1.0 % applies to FCT only.

73

VI. AFFIRMATIVE ACTION IN THE SOUTH AFRICAN PUBLIC SERVICE: A CASE STUDY

The purpose of this study was to

Examine the objectives of affirmative action and the relevant constitutional provisions, laws, rules, and regulations

Examine the enforcement record to date and its impact on the composition of the public service

Assess the consequences for public sector performance.

The research methodology involved conducting a number of interviews. It also involved accessing the database of the Department of Public Services and Administration, which keeps comprehensive records on public sector personnel practices. In addition, the research drew on data of previous broader projects on public sector reform in South Africa. Finally, government legislation and White Papers along with secondary literature were perused.

The public service in South Africa consists of a national and nine provincial governments. Although there are some provincial-specific affirmative action issues, due to space and time constraints, the focus of this paper will be on trends in the public service as a whole.

V A. BACKGROUND

The Republic of South Africa occupies the southernmost part of the African continent and has a surface area of 1 219 090 km2. It has boundaries with Namibia, Botswana, Zimbabwe, Mozambique and Swaziland, and surrounds Lesotho. To the west, south and east are the Atlantic and Indian Oceans.

According to the 2001 census, there were 44,819,778 people in South Africa. Of the total population, 79 % classified themselves as African; 9.6 % as white; 8.9 % as colored; and 2.5 % as Indian/Asian (hereafter referred to as “Asian”). In line with the definitions used in South African legislation, “African” in this paper refers to indigenous Africans. “Colored” is used to describe are people of mixed descent. The term is used to refer to all non-whites (that is, Africans, coloureds, and Asians). Of the total population, 21,685,415 people were male, and 23,662,839 were female. South Africa has 11 official languages. In practice, the language of the public sector has become de facto English although Afrikaans is the predominant language in some provinces, most notably, Western Cape and Northern Cape. (Those who are least likely to speak English are poorer, rural people. While some information is translated into all languages, the extent to which this non-English speaking group is able to comprehend public sector policies and practices is questionable.

Despite the formal ending of apartheid, there are still vast inequalities in South Africa. Over 6 million South Africans are unemployed, an unemployment rate of 50.2 %. Among

74

the employed, 87.5 % of earn less than R3200.00 (approx. US$500) per month. In contrast, 6.3 % of whites are unemployed, and 30 % earn less than R3200.00 per month.

According to the UNDP’s latest human development index, South Africa is ranked number 119 of 177 countries. Some of the relevant statistics are (table 1):

Table VI.19. South Africa: Human Development IndexLife expectancy at birth (years) (HDI), 2002 48.8Adult literacy rate (% ages 15 and above) (HDI), 2002 86Combined gross school enrolment ratio (%), 2001/02 77GDP per capita (US$) (HDI), 2002 10,070Estimated earned income, female (PPP US$), 2002 6,371Estimated earned income, male (PPP US$), 2002 14,202Source: United Nations Development Program. Human Development Report, 2004 at http://hdr.undp.org/statistics/data/cty/cty_f_ZAF.html.

History of the Public ServiceApartheid South AfricaUntil 1994, apartheid policies systematically relegated the majority of South African’s citizens to a second-class status. Blacks were allowed into white areas for labor purposes only, and they had to live in segregated residential areas. They were also not allowed to own land in white South Africa. The majority of South Africans were forced to live in poor rural areas called homelands (Welsh 1982).

Before 1994, apartheid had effectively divided South Africa into 11 separate “states,” each with its own government, legislation, and administrative system. The main South African public service consisted of the national government and four provinces. In the 1980s the government established separate ethnic administrations within the public service for whites, coloreds, and Asians. Due to legislated job reservation practices, Africans were employed only in low-skilled positions in the public service.

Historically, white Afrikaner males held most middle and senior management positions. In 1990, 96.9 % of employees in the total income categories of the South African public service were white (Commonwealth Secretariat 1991, 53; also see Hugo and Stack 1992, 56). Apartheid also discriminated against white women, and very few held senior management positions.

There were also 10 ethnic administrations (called bantustans, or homelands) reflecting the “different” African ethnic groups (such as Zulu and Xhosa). Four of these bantustans or homelands received nominal independence. These administrations had more African people at management level (Presidential Review Commission 1998, 123), although whites were still disproportionately represented in management. However, accurate statistics for these administrations were never kept (Hugo and Stack 1992, 54).

75

Interim Phase of Democratization (1994–96)During the 1990s, a new constitutional system was negotiated that heralded a democratic era. The 1993 Constitution (RSA 1993) was a historical compromise between the ruling NP (National Party) and the ANC (African National Congress). It was agreed that a two-phase constitutional process would guide democratization in South Africa. The interim 1993 Constitution contained a number of power-sharing mechanisms to protect minority (largely white) interests in the interim phase. The agreement was that a final Constitution had to be adopted within two years.

The Public Service Act of 1994 provided for one single public service in South Africa. This legislation ended apartheid administration in that it reintegrated public servants of the nominally independent homelands (bantustans) and self-governing territories into a single South Africa, which comprised the central government and nine newly created provinces (Cameron and Stone 1995).

One of the crucial negotiated deals between the NP and ANC that was entrenched in the interim Constitution was a number of power-sharing mechanisms, including the “sunset clauses,” For a specified amount of time, these “sunset clauses” protected the jobs of existing civil servants who had been employed before 1994. The “sunset clauses” were largely seen as a mechanism to protect the jobs of existing white public servants (Cameron and Stone 1995; Levy 1999, 317). However, these provisions coexisted with the affirmative action policies that were enshrined in the interim Constitution.

As part of its election manifesto, the ANC released a document entitled “The Reconstruction and Development Program. A Policy Framework” (RDP) (ANC 1994). The section on the public service called for an extensive program of affirmative action, particularly at the level of management and senior employees. Race, gender, and disability were mentioned as key affirmative action areas.

Once in power, the ANC-led government set the reform of the public sector as one of its primary goals. Subsequently, the reforms pursued aimed to restructure the new state to make it more legitimate and accountable to the majority of South Africans (Cameron and Tapscott 2000). The government’s public sector reform program included new public management measures such as right-sizing, performance management systems, decentralized human resources management, and public–private partnerships (Cameron and Tapscott 2000, Ncholo 2000, Hughes 2003). One of the flagship reform measures was affirmative action. The RDP White Paper encapsulated the goals of affirmative action and argued that there was a need to ensure that “the public service is representative of all the people of South Africa, in racial, gender and geographical terms” (RSA 1994, 102).

Final Constitution (1996)The interim Constitution was short-lived (1994–96). The (final) Constitution of the Republic of South Africa (Act 108 of 1996) was approved by the Constitutional Court on 4 December 1996 and took effect on 4 February 1997. The Constitution is the supreme law of the land. No other law or government action can supersede the provisions of the

76

Constitution. In the final Constitution (RSA 1996), affirmative action is enshrined in the Bill of Rights. Section 9(2) states that:

…[e]quality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

In the chapter on public administration in the Constitution, specific provision is made for affirmative action in the public sector. Section 195(1)(i) states that:

…[p]ublic administration must be broadly representative of the South African people, with employment and personnel management practices based on ability, objectivity, fairness and the need to address the imbalances of the past to achieve broad representation.

The final Constitution did not include the power-sharing (sunset) clauses protecting public servants’ jobs.

VI A. OBJECTIVES OF AFFIRMATIVE ACTION AND THE RELEVANT CONSTITUTIONAL PROVISIONS, LAWS, RULES, AND REGULATIONS

Despite amalgamation with homelands administrations, the representativity of the main public service, at least in the short term, was not substantially improved. The then-Minister of Public Service and Administration, Zola Skweyiya, announced that, of top management, 85 % were white men, 10 % were Asian men, 2 % were white women and 0.06 % were Asian women. The remainder (2.94 %) of top management were colored men and African men and women. Colored women were not represented at all (The Argus, 11 October 1994; Cameron and Stone 1995).

White Paper on the Transformation of the Public Service

The new government’s first public sector policy reform document was the influential White Paper on the Transformation of the Public Service (WPTPS). The WPTPS defined affirmative action as (RSA 1995, 19):

…laws, programs or activities designed to redress past imbalances and to ameliorate the conditions of individuals and groups who have been disadvantaged on the grounds of race, colour, gender and disability.

Among other things, the WPTPS laid down the minimum affirmative action targets that the public service had to achieve (RSA 1995, 20):

Within 4 years, all departments should have 50 % blacks at management level. In addition, within 4 years, at least 30 % of new recruits at senior and management level should be women.

77

Within 10 years, persons with disabilities should comprise 2 % of the public service personnel.

In addition, each department was required to draw up detailed affirmative action plans (RSA 1995, 20). Furthermore, affirmative action had to be part of a broader approach to human resources development and capacity building. It had to be seen not only as a hiring game but also as a holistic approach that empowers previously disadvantaged people, and it had to be devised in ways that complement rather than conflict with other transformation goals and programs (RSA 1995, 20).

Information gathered from documentation and interviews suggests that these targets were not based on any objective data. While there was some examination of comparative trends, for the most part, given the apartheid legacy, there was little data on which to base projections. Many of these projections had to be developed from scratch. One interviewee in fact suggested that the targets were based on “sentimentality.”

White Paper on Affirmative ActionThe White Paper on Affirmative Action in the Public Service set out a framework for creating a representative public service. The ultimate goal is that all groups and levels within the public service should be representative of the society as a whole. It recommended that the WPTPS affirmative action targets should serve as minimum guidelines but also called on departments to develop more refined targets based on their unique circumstances and specific inequalities. These were only interim steps toward the goal of full demographic representation. It was stated that the government would review and reset national minimum targets in 1999 and every three years thereafter (RSA 1998a, 22–23; Ncholo 2000, 94).

The objectives of affirmative action were to (RSA 1998a, 28):

Enhance the capacities of the historically disadvantaged through the development and introduction of political measures that support their advancement within the public service Inculcate in the public service a culture that values diversity and supports the affirmation of those who historically have been unfairly disadvantaged Speed up the achievement and progressive improvement of numeric targets set out in the white paper.

The Affirmative Action White Paper argued that such programs had to be integrated with good human resources management in line with the recommendations of the White Paper on Human Resources Management, which was aimed at modernizing human resources practices in the public sector (RSA 1997a). It was also argued that a more representative workforce would assist in the development of a more responsive and effective public service and an improved relationship with the public. For example, affirmative action would increase the number of public servants who are able to communicate with the people in their own languages (RSA 1998a, 29–30).

78

The Affirmative Action White Paper also recommended that affirmative action objectives be included in the performance contracts of Directors-Generals (RSA 1998a, 14). It spelled out in detail why blacks, women, and disabled people had been chosen as designated groups (RSA 1998a; see also Ncholo 2000, 94):

While during apartheid the majority of the public service consisted of blacks (especially Africans), they had been denied the opportunity to advance to management positions. The majority of black (especially African) people were employed to do menial work with low pay. Gender stereotyping had resulted in the majority of women being employed in lower-level positions in departments such as education and health. It was suggested that there was a culture in which men did not readily accept female colleagues as equals. This culture was compounded by a working culture in which domestic responsibilities such as child rearing were regarded primarily as a female concern. Finally, concession had to be made for people with disabilities. During apartheid, disability was treated as a social welfare problem. Negative attitudes, inaccessible and unsupportive working environments, and inadequate training and development continued to limit the recruitment of people with disabilities into the public service.

The White Paper on Affirmative Action in the Public Service provided guidelines but did not include an implementation framework. In fact, there were no teeth to implement affirmative action until the 1998 Employment Equity Act and Public Service Regulations provided the legal framework to do so.

Employment EquityIn terms of Section 20 of the Employment Equity Act (RSA 1998b), to achieve employment equity, all government departments must implement affirmative action measures for people from designated groups (blacks, women, and people with disabilities) in terms of this Act. Among other things, an employment equity plan must include:

Objectives to be achieved for each year of the plan Affirmative action measures to be implemented Where under-representation of people from designated groups has been identified by the analysis, numerical goals to achieve the equitable representation of suitably qualified people from designated groups within each occupational category and level in the workforce, timetable within which this is to be achieved, and strategies to be used to achieve those goals Timetable and duration for the plan Plan for the achievement of goals and objectives other than numeric goals Procedures that will be used to monitor and evaluate the implementation of the plan and whether reasonable progress is being made toward implementing employment equity People in the workforce, including senior management, who are responsible for monitoring and implementing the plan.

79

The Employment Equity Plan targets are broader than those of the WPTPS. The former state that there needs to be equitable representation of suitably qualified people from designated groups in all occupational categories and levels in the workforce. It also states that there needs to be appropriate training measures for people from designated groups (Section 15(2)).

Public Service RegulationsPeople in the workforce, including senior managers, are responsible for monitoring and implementing the plan. The New Management Framework of July 1999 made operational proposals emanating from the White Papers. The set of Public Service Regulations implemented from 1 July 1999 stated that each department had to have affirmative action plans or programs.

The executing authority (heads of departments) has to develop and implement an affirmative action program that contains the following minimum information (RSA 2001, Part III, D2):

Policy statement that sets out the department’s commitment to affirmative action, and how the policy will be implemented Numeric and time-bound targets for achieving representativity Annual statistics on the appointment, training and promotion within each grade of each occupational category, of persons historically disadvantaged Plan for redressing numeric under-representativeness and supporting the advancement of persons historically disadvantaged.

When it comes to procedures for appointment, affirmative action is enshrined as a principle to speed up the creation of a representative and equitable public service and to give practical support to those who have been previously disadvantaged by unfair discrimination (RSA 2001, Part VII, A).

What are critical in implementing this goal of affirmative action are the advertising procedures. Posts have to be advertised to reach the entire pool of potential applicants, especially the historically disadvantaged. Advertisements must include the job requirements. Advertisements for senior management services must be advertised nationally. Other posts must be advertised within the relevant department at a minimum but could also be advertised elsewhere within or outside the public service. However, posts could be filled without complying with these regulations for a variety of reasons including if a department could absorb into the post an employee who was appointed under an affirmative action program, if s/he meets the requirements of the post (RSA 2001, Part VIII, C2).

The selection committee must make a recommendation on the suitability of a candidate based on (RSA 2001, Part, VII, D):

Information based on valid methods, criteria, or instruments for selection Training skills, competence, and knowledge necessary for the post

80

Needs of the department for developing human resources Representativeness of the component in which the post is located Department’s affirmative action program.

These criteria are weighted heavily in favor of affirmative action. The latter two factors are based specifically on affirmative action factors. Arguably, the need of the department to develop human resources is another affirmative action-oriented criterion. Only one criterion deals specifically with the training skills, competence, and knowledge necessary for the post.

Each department has discretion on how to frame advertisements in the press. A typical example of an affirmative action advertisement of a government department is: (Sunday Times, 13 June 2004):

This department is an equal opportunity, affirmative action employer. It is our intention to promote representivity (race, gender and disability). The candidature of persons whose transfer/promotion/appointment will promote representivity will receive preference.

VI B. ENFORCEMENT RECORD TO DATE AND THE IMPACT ON THE COMPOSITION OF THE PUBLIC SERVICE

In the first instance, responsibility for implementing affirmative action lies with national departments and provincial administrations themselves (RSA 1998a, 47). This was in line with the White Paper on Human Resources Management in the Public Service (RSA 1997a) and subsequent amendments to the Public Service Act, which devolved management responsibility and accountability in the human resources field to line managers (University of Western Cape 1998).

Implementing, Monitoring, and Enforcing Affirmative Action

The Department of Public Service and Administration (DPSA) is the central government department responsible for the public service. Its role is to facilitate affirmative action by supporting departments. It is responsible for helping departments with public-service-wide communication campaigns and for developing practical guidelines to implement affirmative action policies. It also will seek to abolish or amend rules and regulations that unnecessarily restrict affirmative action activities (RSA 1998a, 48).

It also has to evaluate and report to the Parliamentary Portfolio Committee on Public Service and Administration on the effectiveness of the policy and, if need be, propose amendments. In particular, its task is to review departments’ progress in achieving representation and to propose targets with the aim of reaching the ultimate goal of full demographic representation. The DPSA has to report every three years, beginning in 2000, on improved minimum targets for representation (RSA 1998a, 49–50). There are, however, no provisions for direct enforcement by the DPSA.

81

The Constitution makes provision for a Public Service Commission (PSC), whose functions include to investigate, monitor, and evaluate the personnel practices of the public service (RSA 1996, Section 196). The PSC is one of the state institutions supporting constitutional democracy. Reporting through the PSC is one of the main mechanisms for ensuring progress (RSA 1998a, 49).

Chapter 5 of the Employment Equity Act (RSA 1998b) addresses monitoring, enforcement, and legal proceedings. Any employee or trade union representative may bring an alleged contravention of this act to the attention of another employee, an employer, a trade union, a workplace forum, a labor inspector, the Director-General, or the PSC.

Reporting in terms of the Act also occurs through the Department of Labor. All departments are required to report to the Director-General on progress made in implementing its employment equity plan. The Department of Labor has the authority to take action against defaulting departments that fail to prepare and implement employment equity plans. A first-time offender can be fined approximately R500 000 (approximately $8000 dollars) for contravention of employment equity measures.

Political reporting occurs through the Parliamentary Portfolio Committee on Public Service and Administration, which has the power to hold hearings to scrutinize the performance of national and provincial departments in implementing affirmative action policies. It holds the DPSA accountable for the overall successes of the policies and has the authority to take action against defaulting departments and administrations. It can request that a redress strategy be put in place within specific deliverables and within specific timeframes. Failure to do so will result in the sanctioning mechanisms of the Employment Equity Act being applied (RSA 1998a, 49–50).

Ministers mention in their annual budget vote speeches how their departments have progressed in achieving affirmative action targets. Since 2001, departments (national and provincial) have to include affirmative action statistics in their annual reports (RSA 2001, Part 111, J3).

What was revealed in the interviews was that, in practice, this issue of enforcement tends to be very hazy. Because of the human resources decentralization policy, the Minister of Public Service and Administration is responsible to set policy, and departments are responsible to implement policy. The Public Services Law Amendments Act of 1998 gives responsibility to national and provincial ministers for staff matters such as internal organization, appointments, and promotions. While, in practice, some of these powers tend to be delegated, ministers keep rather tight control over some issues such as the appointment of senior managers. The ANC controls national government and 7 of the 9 provinces, and rules by coalition in the other 2 provinces. These, in effect, mean that the Minister of Public Service and Administration must hold political colleagues to account for affirmative action targets, something which is difficult to do.

82

Compounding the problem is that, in terms of the Public Finance Management Act, heads of departments are financially accountable for running the departments while, in terms of the Public Service Act, the minister of the department is accountable for senior staff appointments. Departmental heads can legitimately argue that, since they are not accountable for staff matters, they cannot be held responsible for not reaching targets.

In addition, the Affirmative Action White Paper recommendation that affirmative action objectives should be included in the performance contracts of Directors-General has not yet been implemented.

The PSC suggests that, while the quality of department’s annual reports has generally improved, there is still the tendency to report on activities rather than impact and not to use plans as the basis against which to compare achievements (PSC 2004, 4).

Since 1994, the PSC has produced three State of the Public Service reports (PSC 2000, 2002, 2004). The commission monitors and evaluates the public service, looking at the 9 constitutional principles, 1 of which deals with affirmative action. In this regard, the PSC focuses on how government is faring in terms of meeting its targets. Its reports are reasonably comprehensive, but it uses government’s policy as its starting point and focuses on implementation issues. Its “independence” does not go as far as questioning government policy.

The influence of the Parliamentary Portfolio Committee on Public Service and Administration was difficult to gauge. Attendance at its meetings has shown that it is a rather vigilant group that has kept departments on their toes. Information from interviews, however, suggest that the monitoring role of this committee could be strengthened.

The Employment Equity Act stipulates that there must be reporting on affirmative action to the Department of Labor. It is shown in the next section that government has met its targets for blacks but not its gender or disabilities targets. However, the sanctions in the Employment Equity Act are not being enforced on government departments. It would be extremely embarrassing for the government to take itself to court.

What about the role of the courts? There have been two court cases in the last year that have had important implications for affirmative action. First, in a landmark decision, the Cape Town Labour Court (Harmse vs. City of Cape Town) ruled that affirmative action provisions in the Employment Equity Act were more than just a shield to justify the appointment of designated groups over nondesignated groups. The court ruled that it was more than just a defense in the hand of employers. There is positive onus on the employer to eliminate unfair discrimination and promote affirmative action in the work place. The court ruled that the act “also serves as a sword” (Local Government Bulletin, July 2003).

However, in the recent Dudley vs. City of Cape Town case, the Labor Court ruled that when an applicant is unhappy with the way in which an organization applies its affirmative action policy, s/he must lodge a complaint with the labor inspector and not go directly to the Labor Courts. Dudley appealed this case and referred the matter directly to

83

the Constitutional Court. The Constitutional Court ruled against her, arguing that the Employment Equity Act did not establish an individual’s right to affirmative action. It stated that the matter should have been referred to the Labor Appeal Court because it was a specialized court “charged with the responsibility of overseeing the on-going interpretation and application of labor laws.” The matter has gone back to the Labor Appeal Court, and, depending on the ruling, the matter may be referred back to the Constitutional Court (Business Day, 21 May, 2004, Sunday Times, 6 June, 2004).

Impact of Affirmative Action on the Composition of the Public Sector

This investigation requested and was granted access to the DPSA’s database on annual affirmative action statistics since 1995 (the year they were first kept) until 2004. A breakdown on race and gender per occupational category was provided (DPSA 2004) and is attached as Appendix.

Senior management categories consist of the Director-General and Deputy Director-General ranks, while management consists of the Chief Director and Director ranks. However, these categories are not consistently applied. In some cases, the definition of senior management will include Director upward. In addition, Deputy Directors who are part of the highly skilled category are sometimes included in the management category.

Has enforcement of affirmative action policies had an impact on the composition of the public service? Racial composition overall has never been a problem in that, even under apartheid, there were always high numbers of blacks in low-paid positions. This analysis will focus on the WPTPS targets. The target for black people in management (management and senior management categories) was 50 %. Despite uneven enforcement, this target was overwhelmingly met with the take-up rate at approximately 63 %–64 %. In 2003 Cabinet adjusted this target to 75 % (PSC 2004, 37).

Table 2 summarizes the data of the evolving racial composition of the public sector in the management and senior management echelons.

Table VI.20.South Africa: percentage of black managers 1995–2004Year %age of black managers1995 371996 391997 421998 431999 412000 532001 572002 602003 632004 64

84

The target that 30 % of all new recruits at the managerial level should be women was retained by Cabinet in 2003 for a second term. For three consecutive years, the actual %age of women managers was less than 25 % (ANC 2004).

Table 3 summarizes the data of the evolving gender composition of the public service in the management and senior management echelons.

Table VI.21. South Africa: Gender composition in management, 1995–2004Year Percentage of women managers

1995 81996 111997 131998 141999 172000 202001 202002 222003 242004 25

Affirmative action for disabled people was the one area that was a dismal failure. The record was so poor that the DPSA does not even keep proper statistics. The disabled comprise a mere 0.3 % of management (PSC 2004, 37), which is a long way from the 2 % target. This target remained set at 2 %.

VI C. ASSESSMENT OF THE CONSEQUENCES FOR PUBLIC SERVICE PERFORMANCE

This final section deals with an assessment of the affirmative action policy. The first part examines how successful the government has been in meeting its affirmative action goals. The second part answers the broader question of how successful the consequences of affirmative action have been for service delivery.

Have Affirmative Action Goals Been Met?Although the WPTPS did not weight the three designated groups, there is no doubt that racial transformation of the management echelons was the major priority. Given South Africa’s apartheid history, the moral imperative to transform its public service was both overwhelming and justifiable. Racial transformation of management has been successful despite rather haphazard reporting. The reasons for the success is that hanging the racial composition has been the “holy grail” of public sector transformation. Arguably, this quest has been at the expense of other key areas of public sector reform, an issue that will be examined below.

85

There has been debate about whether non-African minorities who were discriminated against under apartheid, Asians particularly, have benefited disproportionately from affirmative action. However, this concern should not detract from this remarkable racial change over the last 10 years.

Another significant achievement has been the empowerment of women. The government has made a significant achievement in that it has raised the number of women at management level from a negligible level to over 20 %. This is quite an accomplishment, even though the WPTPS target has not yet been achieved. According to the ANC (2004):

This ceiling was not unexpected since international comparisons have shown this 20 % ceiling for women managers to be a fairly standard phenomenon, and that it is only with extra-ordinary effort and dedication that this artificial upper limit is pierced.

Provision also has been made for supporting the reality that the burden of childbearing places on the female employee through, for example, the introduction of paternal leave (ANC 2004).

Despite these advances, the results have to be tempered. First, one interviewee argued that with more vigorous recruitment procedures, the target of 30 % could have been met. Second, the PSC found that while women are finding employment in the public sector, it is rarely at senior levels and is still congregated in traditional “caring” professions, such as teaching and nursing (PSC 2004, 37).

Third, research by Maphunye (2000) found that some women appointed to top positions expressed the view that they are still being marginalized by their male counterparts, although blatant gender or other discrimination is no longer official policy. These women attributed such marginalization to the “traditional” view that only males are appropriate as senior public servants. These views were echoed in interviews, in which it was argued that women are not treated as equals and have to make their points far more forcefully than their male counterparts. One interviewee even suggested that “we have moved from one form of a patriarchal public service to another.”

The reasons why women are battling to assert themselves are far broader than public service dynamics. It is a social issue in that society, particularly African culture, affirms the superiority of men and expects women to do menial tasks as part of their socialization.

There is also a general sense among feminist groups that, although their numbers are increasing, women are as disempowered as ever. There is a feminist position that suggests that women’s empowerment has degenerated into “state feminism,” which means that once women move into senior positions, they shun the gender agenda (State Feminism on the Rise, This Day, 1 June 2004).

Finally, there has been a debate as to which category of women should be affirmed. There was a tendency in some administrations to affirm white women at the expense of women from other disadvantaged groups. Du Toit and others (2003, 597) suggest that

86

this tendency is at odds with the purpose of the act, which is equitable representation of suitably qualified people from designated groups. This practice of discriminatory affirmation affirming white women disproportionately appears to be less widespread in recent years.

As pointed out, the figures for disabilities (0.3 %) were extremely poor. Physical boundaries still exist, in that many government buildings have escalators and steps and no lifts. Lack of resources in upgrading facilities is often used an excuse, but the real reason appears to be a lack of political will. In most cases, there do not even appear to be plans and estimates on how much it will cost to upgrade buildings. The promotion of disabled people does not appear to have been a government priority. Education of people with disabilities is also still a problem. The government is concerned about this. Some departments have begun to develop policies on how to promote the career paths of people with disabilities (PAWC 2004a).

Maphunye (2000) comes to similar conclusions, arguing that those appointed because of disability usually find that they have to operate in an environment that is inaccessible to or not user-friendly to people with disabilities.

The public sector unions affiliated to COSATU (Congress of South African Trade Unions), the biggest trade union federation in the county, have focused their attention on improving the career conditions of the lower-skilled category of workers. The congress has had a number of disputes with the state and public service management over issues such as improved service conditions and proposed retrenchments (Business Day, 18 January, 2001, Sunday Times, 21 October, 2001). These unions have not paid too much attention to WPTPS targets and are indeed often critical of the high salaries paid to public service managers.

Has Affirmative Action Helped Public Service Delivery?

The second part of this final section part deals with the broader question of how successful the consequences of affirmative action have been for service delivery. There have been more general studies on lack of skills in the public sector reform, but there has been no specific study on the effects of affirmative action on service delivery.

It was also not possible, given the short-term nature of this project, to undertake any comprehensive research on this topic. However, the author has undertaken broader public reform research projects, conducted numerous training interventions throughout the country and perused the available secondary evidence. Based on this background and the interviews conducted, a few tentative observations were made.

Affirmative action appears to have had positive spin-offs in that an increasing number of public servants are able to communicate in the variety of languages that clients speak and have a greater understanding of the needs of the sections of communities who were neglected under apartheid. This is in line with the goals of the White Paper on Transforming Public Service Delivery (Batho Pele) , which aims to improve service

87

delivery in the public service (RSA 1997b). Batho Pele is a Sesotho word meaning ‘People First’).

Is the ultimate goal of making all groups and levels within the public service representative of society a realistic one? While there was an undoubted need post-1994 to have a more representative public service, the ultimate goal of full representation is neither feasible nor desirable. It is not desirable in that it can lead to a rather one-dimensional view of public sector recruitment and promotion that could be at the expense of efficient service delivery. It is probably not achievable, even in the long term, given the legacy of apartheid underdevelopment and, as experience has shown, the problem of attracting women managers and the disabled.

Some of these reservations about representativity have been reflected in the affirmative action debate. There is the concern that affirmative action has sometimes been promoted at the expense of efficiency. The WPTPS had a nuanced view and warned that affirmative action policy had to be devised in a way that complements rather than contradicts other transformation goals and programs, particularly efficiency and effectiveness. However, the White Paper on Affirmative Action and the Employment Equity Act have seemingly prioritized affirmative action as the major transformation initiative. This priority is reflected in the selection procedures in the public regulations, which set an inordinate emphasis on affirmative action. Indeed, the employment equity considerations for advertised posts often appear in bolder print than the skills required for the job!

Some interviewees said that these practices have led to people palatably out of their depth being promoted to management positions. There is an acknowledged capacity and skills deficit in the public sector. This deficit in turn is leading to poor service delivery (DPSA 1997, Presidential Review Commission 1998, The Presidency 2003, PSC 2004).

The reasons for lack of skills are, however, multifaceted. The apartheid legacy that deliberately kept blacks (especially Africans) under-educated is undoubtedly the major factor. This legacy will not be overturned overnight. Due to the nature of political transformation in the country, many young black managers were being thrust into the public service and into management positions with little working experience. One interviewee quipped that it was a situation of “from cradle to senior management.” However this transformation was in many ways a “one-off”’ event, and there is evidence that many of these new recruits are beginning to find their feet.

This post-apartheid continuity is being undermined by the growing “brain drain.” First, there is a “brain drain” to the South African private sector. Under apartheid the public service was regarded as a career for life. There was very little cross-fertilization between the public and private sectors. However, the post-apartheid public service is beginning to show a trend of senior managers working for 5–7 years in the public service (commonly called national service) and then moving into greener pastures in the private sector (Sunday Times, 10 February 2002). This trend means that many public managers who have just developed scarce skills resign. The state’s Black Economic Empowerment

88

policy is encouraging professional blacks to move into the more lucrative private sector. For example, there is a preferential state tendering system favoring black companies or firms with black partners (Habib 2003).

There is also a growing “brain drain” of professionals from the public sector to developed countries, in particular, medical staff (nurses and doctors) and teachers. This is a matter of concern to the State, which is considering strategies to retain such skilled staff. There is also the exodus of newly trained doctors who otherwise may have worked for the public sector to developed countries.

It also needs to be emphasized that the apartheid state existed primarily to provide services to its white constituency. The post-apartheid state is pursuing the provision of quality services to all of its constituents, thus increasing its target group from approximately 4 million to 44 million. This expansion in turn requires a far more capacitated public service. The public sector is struggling to adapt to this gargantuan challenge. Furthermore, there was also a lack of skills even in the old white public sector in some areas, most notably proper financial systems.

Notwithstanding these challenges, it can be suggested that the mechanistic application of affirmative action through targets in some cases is not helping these skills deficits. In some areas, there has been a noticeable decline in the efficiency of the State, for example, in records (archives) management. A number of state and provincial departments lack the capacity to spend their annual budgets, and there is often under-spending on key areas such as housing and infrastructure. This view is supported by the UNDP in its 2004 Human Development Report, in which the agency suggests that many under-qualified black people have been appointed to the public sector, which has necessitated the hiring of a large number of local consultants to assist them (UNDP 2004).

The voluntary severance package (VSPs) was a program introduced by government in 1996 to encourage existing staff to retire prematurely (Ncholo 2000, 98). Although it was never promoted as such, there was a widespread perception that VSPs were introduced to make provision for the retirement of senior white managers and create the space for the appointment of affirmative action employees. This program was a failure. Not only were these premature packages costly, but the program led in many cases to marketable staff with scarce skills leaving the public service. Conversely, many of those who did not apply for VSPs were staff with limited marketable skills. The government eventually abolished VSPs in 2000.

There is also the question of whether affirmative action appointees have been given sufficient support. Appointing affirmative action candidates without support is often called “setting up people to fail.” The Presidential Review Commission on the Reform and Transformation of the Public Service (1998, 129) pointed to the need for a strong link between transformation, and training and development. The commission’s suggestions included the use of fast-track programs for new managers, comprehensive induction processes, mentoring schemes, and ongoing capacity development programs in line with the recommendations of the White Paper on Public Service Training and Education (RSA 1997c). The commission also suggested that, for the most part, there were few linkages

89

between the transformation process and training. The Employment Equity Act also states that there is a need to train people from designated groups.

Evidence suggests that many affirmative action appointees still have not been given sufficient support. The Provincial Administration of the Western Cape (PAWC) appears to be a noticeable exception. It has a training program that fast-tracks affirmative action appointees. Fifty-seven candidates from designated groups participated in its fast-tracking program for junior managers from 1998 until 2001. Thirty-six, or 63.2 %, of these candidates have been promoted (PAWC 2004b). (These numbers include three candidates who were promoted and then resigned, but it excludes three candidates who resigned without having been promoted.) This outcome must be considered a good return rate.

No other department or administration appears to have such a systematic program. Mentoring programs also appear to be lacking.

There is also the influence of the controversial deployment policy of the ANC, which deploys party members to senior management positions in the public sector (Cameron 2003a). In effect, the top two ranks, Director-General and Deputy Director-General, are political appointments only, although they are projected as affirmative action appointments. While the party was correct to move away from the artificial notion of neutrality when appointing senior staff, it has been argued elsewhere that senior appointments should be made both on the basis of confidence (political acceptability) and competence (merit and professionalism) (Cameron 2003b). It is suggested by the author that in many (if not most) cases, only the principle of confidence has been met. Even the few white Directors-General seemingly have been appointed primarily for their “struggle” credentials during the fight for liberation. This indifference to the competence principle is not conducive to optimal service delivery.

At the management echelon in the public sector, the merit principle is more likely to be used, although it is often within the context of appointing the best affirmative action candidate rather than the best candidate overall. However, in some poorer provinces, there still appear to be large-scale patronage appointments. This fact was admitted by the Premier of the Eastern Cape in a recent statement (Business Day, 27 July 2004).

90

VI D. CONCLUSIONS

This paper is not suggesting that affirmative action should be abolished. It is still vital to redress the historical inequalities of apartheid. While in some provinces and national departments, it probably led to a more inefficient public service, it also has performed an important role in stabilizing South Africa’s political situation. Census statistics have shown that the fastest growing income group is the black middle class. Public service affirmative action appointees form a major component of this growing middle class. The size of the richest income docile has risen from 9 % in 1991 to 20 % in 2001.10 Without affirmative action, the racially based income differentials would have been more stark than they are today. The disparity would have been a certain recipe for social unrest.

There is evidence to suggest that at least some elements in the ANC are debating the utility of affirmative action. The Defence Minister and national chair of the ANC, Mosiuoa Lekota recently stated that a time will come when representativity according to race may have to be scrapped (Cape Times, 2 June 2004; Business Day, 2 June 2004). However, some of his senior colleagues have disputed this argument, and it appears as though affirmative action is to stay, at least for the time being (Cape Times, 14 July, 2004).

While it is premature to phase out affirmative action, consideration should be given to introducing a broader form of it. Habib (2003) suggests that there is a need to move toward a class-based affirmative action policy. The training and development of lower-skilled workers to improve the skills base of the public sector should be as an important affirmative action goal as racial representativity in the higher ranks. Narrowly based targets have in some cases contributed to lowering standards and poor service delivery.

10 Habib 2003; Statistics South Africa, Census, 2001. http://www.statssa.gov.za/census2001/Census/temp/Income%20amongst%20the%20employed%20province2004629172254.xls) [page cannot be found]these links are often withdrawn after a while.

91

VI E. APPENDIX. Affirmative Action Statistics

Classification Black White Colored Asianmale female male female male female male female Total

September 1995Lower skilled 173,588 115,871 23,696 26,032 18,712 18,152 1,682 1841 379,574Skilled 93,288 65,399 29,533 34,767 12,600 9,969 2548 1815 249,919Highly skilled production 152,140 199,117 84,735 99,271 26,481 32,990 9737 9204 613,675Highly skilled supervisor 4,860 1,371 10,352 2,225 1,419 155 617 150 21,149Management 828 111 1,905 128 49 6 51 7 3,085Senior management 194 15 125 3 14 3 9 1 364Total 424,898 381,884 150,346 162,426 59,275 61,275 14,644 13,018 1,267,766

Nov 1996Lower skilled 134,511 88,992 9,036 8,027 12,977 12,359 3,087 1,920 270,909Skilled 109,488 86,642 24,797 47,956 11,257 17,676 7,273 3,842 308,931Highly skilled production 147,650 175,635 74,688 83,648 23,497 30,067 12,318 9,634 557,137Highly skilled supervisor 8,707 3,010 15,310 3,952 1,987 295 1,292 351 34,904Management 984 172 2.099 ,176 74 18 94 22 3,639Senior management 141 24 123 4 12 2 11 1 318Total 401,481 354,475 126,053 143,763 49,804 60,417 24,075 15,770 1,175,838

Dec 1997Lower skilled 124,254 83,851 4,456 3,891 11,183 9,841 2,556 1,696 241,728Skilled 94,873 89,944 15,121 36,654 8,722 15,212 7,249 3,968 271,743Highly skilled production 167,862 202,390 68,556 74,305 23,398 27,819 12,372 10,020 586,722Highly skilled supervision 9,729 3,684 13,614 4,014 1,732 309 1,149 375 34,606Management 896 214 1,878 183 103 25 129 26 3,454Senior management 111 24 118 9 16 4 12 2 296Total 397,725 380,107 103,743 119,056 45,154 53,210 23,467 16,087 1,138,549

Jun 1998Lower skilled 119,239 81,020 3,600 3,019 10,605 9,414 2,367 1,588 230,852Skilled 93,523 91,396 13,561 31,799 8,412 14,686 7,112 4,030 264,519Highly skilled production 173,958 213,052 66,497 76,593 23,980 28,624 12,898 10,835 606,437

92

Classification Black White Colored Asianmale female male female male female male female Total

Highly skilled supervision 9,896 3,803 13,277 4,269 1,729 339 1,189 419 34,921Management 975 234 1,865 203 108 28 143 30 3,586Senior management 109 22 126 12 19 3 15 2 308Total 397,700 389,527 98,926 115,895 44,853 53,094 23,724 16,904 1,140,623

Dec 1999Lower skilled 107,744 73,775 2,008 1,380 1,917 1,304 9,421 8,547 206,096Skilled 85,383 86,781 9,676 21,647 6,304 3,410 7,212 13,152 233,565Highly skilled production 173,989 215,688 57,417 67,771 12,218 10,674 23,693 28,022 589,472Highly skilled supervision 10,274 3,944 11,936 4,046 1,411 487 1,609 374 34,081Management 577 144 1,314 223 96 28 111 37 2,530Senior management 96 24 86 8 15 4 17 5 255Total 378,063 380,356 82,437 95,075 21,961 15,907 42,063 50,137 1,065,999

Dec 2000Lower skilled 100,838 71,634 1,339 1,012 8,737 8,205 1,706 1,222 194,693Skilled 82,560 83,256 8,037 17,407 7,088 12,765 5,774 3,088 219,975Highly skilled production 173,385 219,721 54,819 65,942 23,927 28,332 12,336 10,871 589,333Highly skilled supervision 10,481 4,168 12,238 4,272 1,648 413 1,521 541 4,322Management 1,327 400 1,746 343 182 61 206 57 352Senior management 136 41 104 13 28 8 17 5Total 368,727 379,220 78,283 88,989 41,610 49,784 21,560 15,784 1,043,957

Dec 2001Personal notch/no key scale 617 1,979 77 325 147 561 717 1,993 6,416No salary level 7 25 0 1 0 0 5 3 41Lower skilled 68,945 92,505 1,221 1,619 7,890 7,671 850 1,141 181,842Skilled 97,619 85,566 2,926 5,573 15,358 7,139 14,482 6,505 235,168Highly skilled production 210,720 171,529 11,211 12,357 25,358 23,476 64,473 52,000 571,124Highly skilled supervision 4,118 10,152 577 1,434 429 1,582 3,915 10,173 32,380Management 466 1,424 62 200 52 194 296 1,591 4,285Senior management 46 149 5 21 8 28 11 70 338 Total 382,538 363,329 16,079 21,530 49,242 40,651 84,749 73,476 1,031,594

93

Classification Black White Colored Asianmale female male female male female male female Total

Dec 2002No salary level 80 49 0 2 0 1 2 4 138Lower skilled 67,478 84,943 1,280 1,598 7,874 7,207 977 1,153 172,510Skilled 83,541 80,412 3,040 5,222 13,585 8,503 13,528 6,591 214,422Highly skilled production 236,648 183,949 11,485 12,766 28,121 23,542 64,241 50,076 610,828Highly skilled supervision 5,152 11,858 635 1,580 512 1,825 4,228 11,384 37,174Management 619 1,715 81 250 70 234 350 1,699 5,018Senior management 57 179 6 29 8 33 19 84 415  393,575 363,105 16,527 21,447 50,170 41,345 83,345 70,991 1,040,505

Dec 2003No salary level 0 5 0 1 3 4 3 5 21Lower skilled 64,977 78,271 1,290 1,538 7,623 6,638 1,003 1,096 162,436Skilled 86,485 82,573 3,180 5,182 14,427 9,400 12,797 6,499 220,543Highly skilled production 240,936 184,458 11,786 12,721 27,905 23,196 62,351 47,778 611,131Highly skilled supervision 5,507 12,393 665 1,573 543 1,857 4,122 10,934 37,594Management 756 1,915 97 293 88 263 384 1,669 5,465Senior management 75 186 7 31 11 36 24 94 464Unknown 0 1 0 0 0 0 0 0 1  398,736 359,802 17,025 21,339 50,600 41,394 80,684 68,075 1,037,655

Mar 2004No salary level 3 6 0 1 0 1 1 2 14Lower skilled 63,896 75,612 1,267 1,527 7,474 6,418 896 1,073 158,163Skilled 87,317 84,518 3,261 5,254 14,457 9,849 12,507 6,686 223,849Highly skilled production 243,923 185,219 11,982 12,718 28,907 23,797 62,517 47,460 616,523Highly skilled supervision 5,682 12,722 689 1,544 579 1,906 4,199 10,801 38,122Management 807 1,989 105 296 86 271 395 1,680 5,629Senior management 78 187 7 30 11 38 27 100 478Unknown 1 1 1 0 0 0 0 0 3  401,707 360,254 17,312 21,370 51,514 42,280 80,542 67,802 1,042,781

94

VII. REFERENCES, BY CHAPTER

Chapter 1. IntroductionOspina, Sonia. 2001. “Managing Diversity in Civil Service: A Conceptual Framework for

Public Organizations” presented at United Nations Expert Group Meeting on Managing Diversity in Civil Service, UN Headquarters, New York, 3-4 May 2001.

Schneider, Sherry K., and Gregory B. Northcraft. 1999. “Three Social Dilemmas of Workplace Diversity in Organizations: A Social Identity Perspective.” Human Relations. Volume 52, No.11, pp.1445-1467.

Sowell, Thomas. 2004. Affirmative Action Around the World: An Empirical Study. Yale University Press, New Haven.

Thomas, R. Roosevelt, Jr. 1992. Beyond Race and Gender: Unleashing the Power of Your Total Workforce by Managing Diversity. Amacom, New York.

Chapter 3. Implementing Affirmative Action in India: a case studyAgarwal, U.C. 2003. Reservation for Whom, Why and How Much: Constitutional

Provisions and Judicial Verdicts. Vol. XLIX: 107–18. New Delhi: The Indian Institute of Public Administration.

Bakshi, P.M. 2001. The Constitution of India. Delhi: Universal Law Publishing Company.

Beschel, R., and P. Sundaram. 2002. “Rationalization of Manpower” in “Indian Civil Service.” World Bank. Mimeo.

Bhargava, B.S. 1999. “Protective Discrimination and Development of Scheduled Castes.” Indian Journal of Public Administration Vol. XLIV No. 3: 508–19. New Delhi.

Chaudhry, P. 2004. “The Creamy Layer: Political Economy of Reservations.” Economic and Political Weekly (May 15). New Delhi

Galantar, M. 1984. Competing: Law and the Backward Classes in India. Berkeley: University of California Press.

Government of India. 2000. Constitution of India. Ministry of Law. New Delhi____. 2003. Report of the Committee to Review the Constitution. Ministry of Law. New

Delhi_____. 2002. Tenth Five Year Plan. Planning Commission. New Delhi._____. 2003. Annual Report 2002–2003 of Ministry of Personnel, Pensions and Public

Grievances. Ministry of Personnel, Pensions and Public Grievances. New Delhi._____. 1993. Brochure on Reservation for Scheduled Castes and Scheduled Tribes in

Services. Ministry of Personnel, Public Grievances and Pensions. New Delhi._____. 2003. Annual Report 2002–2003 of Ministry of Social Justice and Empowerment.

Ministry of Social Justice and Empowerment. New Delhi._____. 2003. Annual Report of the Department of Women and Child Welfare 2002–2003.

Department of Women and Child Welfare. New Delhi. _____. 1997. Increasing Awareness for Change: A Survey of Gender and the Civil

Services. Department of Administrative Reforms and Public Grievances. New Delhi.

95

_____. 1998. Women in Civil Service. Lal Bahadur Shastri National Academy of Administration. Mussoorie, India.

Government of Karnataka. 1999. Report of the Representation of Scheduled Castes and Scheduled Tribes in State Services. Directorate of Economics and Statistics. Bangalore.

Lal, Shatrughan. 2000. “Reservation Policy in Services.” Management in Government Vol. XXXII. No.1. New Delhi.

Maheshwar, S.R. 2000. Public Administration in India. New Delhi: Macmillan India. National Commission for Women. 2003. Women in Governance. New Delhi.Nehru, J. 1946. The Discovery of India. London: Meridian Books.National Commission for Scheduled Classes and Scheduled Tribes. 2003. Annual Report

for 2002–2003. New Delhi.Sharma, R., and R. Lal. 2002. “Administrative Culture of Agriculture Personnel.” Indian

Institute of Public Administration Vol. XLVIII. No. 4: 635–54. New Delhi.Sowell, T. 2004. Affirmative Action Around the World. London: Yale University Press.Thorat, S. 2004. “On Reservation Policy in Private Sector.” Economic and Political

Weekly (June 19). New DelhiUnion Public Service Commission. 2001. Annual Report, 2000–2001. New Delhi.Vakil, A.K. 1985. Reservation Policy and Scheduled Castes in India. New Delhi: Ashish

Publishing House. Weiner, M., and M.F. Katzenstein. 1981. India’s Preferential Policies: Migrants, Middle

Classes and Ethnic Equality. University of Chicago Press. World Bank. 2003. India: Sustaining Growth and Reducing Poverty. New Delhi.

Chapter 4. Implementing Affirmative Action in Malaysia: A case studyCaiden, G., and N. Caiden. 2001. “Strategies for Meeting the Challenge of Diversity

Management in the Civil Service.” Paper presented in the United Nations Expert Group Meeting on Managing Diversity in the Civil Service. New York.

Commonwealth Secretariat, United Nations. 2004. Current Good Practices and New Developments in Public Service Management: Malaysia. London

Crouch, H. 1996. Government and Society in Malaysia. London: Cornell University Press.

Esman, M. 1972. Administration and Development in Malaysia. Ithaca: Cornell University Press.

_____. 1999. “Public Administration and Conflict Management in Plural Societies: The Case for Representative Bureaucracy.” Public Administration and Development 19 (4). London

Government of Malaysia. 1969. New Economic Policy. [Dept?] Kuala Lumpur. _____. 2004. http://mcsl.mampu.gov.my/. Official government website. _____.2004. Report on the State of Women in Urban Local Government in Malaysia.

Kuala Lumpur.Jayal, N. G. 2004. “Ethnic Inequality and Public Sector Governance in India.” Paper

presented at the UNRISD Conference on Ethnic Inequality and Public Sector Governance. United Nations Research in Social Development. New York

Khoo, B.T. 2004. “Ethnic Inequality and Public Sector Governance in Malaysia.” Paper presented at the UNRISD Conference on Ethnic Inequality and Public Sector

96

Governance. United Nations Research in Social Development. New York (I cannot help you on if Khoo is the last or first name)

Lee, H.G. 2000. Ethnic Relations in Peninsular Malaysia Social and Cultural Issues Vol. 1. New York

Lim, H.H. 2002. Representativeness of the Bureaucracy in Malaysia. Socioeconomic Development and Research Institute. Kuala Lumpur. www.sedar.org.

_____. 2002. “Public Administration: The Effects of Executive Dominance” in F.L.K. Wah and K.B. Teik, eds., Democracy in Malaysia: Discourses and Practices. Richmond, Surrey, UK: Curzon Press.

Lucas, R., and D. Verry. 1999. Restructuring the Malaysian Economy: Development and Human Resources. New York: St. Martin’s Press.

Malek Shah Mohd. Yusoff. 2002. “Motivation and Retention of Senior Officers in the Public Service: The Malaysian Experience.” Paper presented at the conference on Emerging Issues in Senior Management Development. Commonwealth Association of Public Administration and Management, Toronto.

Milne, R.S., and D.K. Mauzy. 1978. Politics and Government in Malaysia. Vancouver: University of British Columbia Press.

Mohamad, M. Bin. 1970. The Malay Dilemma. Selangor Darul Ehsan, Malaysia: Pelanduk Publications.

Navaratnam, R.V. 1997. Managing the Malaysian Economy. Selangor Darul Ehsan, Malaysia: Pelanduk Publications.

Puthucheary, M. 1978. Politics of Administration: The Malaysian Experience. Kuala Lumpur: Oxford University Press.

Sowell, T. 2004. Affirmative Action Around the World. London: Yale University Press. Sundaram, P. 2004. “Human Resource Management in Malaysia.” Unpublished. South

Asia Department, World Bank.Wong, S. 2002. Malayan Public Sector Dynamism and Civil Service Diversity. Institute of Applied Policy (INSAP), Kuala Lumpur.

Chapter 5. Implementing Affirmative Action in Nigeria’s Public Service: A case studyAbubakar, D. 2003. "The Federal Character Principle, Consociationalism and Democratic

Stability in Nigeria" in K. Amuwo, A.A. Agbaje, R.T. Suberu, and G. Herault, eds., Federalism and Political Restructuring in Nigeria. Ibadan: Spectrum Books Ltd.

Adamolekun, L. 1983. Public Administration: A Nigerian and Comparative Perspective. London: Longman.

_____. 1986. Politics and Administration in Nigeria. London: Hutchinson._____. 2002. "Central Government Organization" in L. Adamolekun, ed., Public

Administration in Africa: Main Issues and Selected Country Studies. Ibadan: Spectrum Books Ltd.

Adamolekun, L. J. Erero, and B. Oshionebo. 1991 "’Federal Character’ and Management of the Federal Civil Service and the Military." Publius: The Journal of Federalism 21 (Fall).

Agbodike, C.C. 2003. "Federal Character Principle and National Integration" in K. Amuwo, A. A. Agbaje, R. T. Suberu, and G. Herault, eds., Federalism and Political Restructuring in Nigeria. Ibadan: Spectrum Books Ltd. 177–90.

97

Awolowo, O. 1947. Path to Nigerian Freedom. London: Faber & Faber. Ayoade, J.A.A. 2003. "The Federal Character Principle and the Search for National

Integration" in K. Amuwo, A. A. Agbaje, R. T. Suberu, and G. Herault, eds., Federalism and Political Restructuring in Nigeria. Ibadan: Spectrum Books Ltd. 101-120.

Balogun, M. J. 2001. "Diversity Issues Facing the Public Service in Sub-Saharan Africa." Paper prepared for the United Nations Expert Group (UNEG) meeting on Managing Diversity in the Civil Service, New York, May 3–4.

Bande, T.M. 2001. "Managing Diversity in the Civil Service: A Brief Examination of the Nigerian Case." Paper prepared for the UNEG meeting on Managing Diversity in the Civil Service, New York, May 3–4.

Bello, A. 1962. My Life. London: Cambridge University Press, 133.Central Bank of Nigeria. 2000. Annual Report and Statement of Accounts for the Year

ended 31st December. Lagos. _____.2001. Annual Report and Statement of Accounts for the Year ended 31st

December. Lagos._____. 2002. Annual Report and Statement of Accounts for the Year ended 31st

December. Lagos._____ 2003. Annual Report and Statement of Accounts for the Year ended 31st December.

Lagos.Ekeh, P. and E. Osaghae, eds. 1989. Federal Character and Federalism in Nigeria.

Ibadan: Heinemann.Essien-Udom, E.U. 1968. “The Responsibilities of the Higher Civil Servant in Nigeria”

in A. Adedeji, ed., Nigerian Administration and Its Political Setting. London: Lutchinson.

Federal Character Commission. 1996. 1st Annual Report. Abuja._______ .1996. Federal Civil Service Manpower Statistics; Senior, Middle and Top

Management Staff on State by State Basis, Abuja.______.1999. Fourth Annual Report Abuja._____. 2000. Fifth Annual Report Abuja.Federal Republic of Nigeria. 1979. Constitution of the Federal Republic of Nigeria.

Lagos: Federal Government Press.________ .1997. Federal Civil Service Manpower Statistics. Vol. 30 (Nos. 1 and 2)

(March and June). Abuja.________ .1997. White Paper on The Report of Review Panel on the Civil Service

Reforms. The Cabinet Secretariat, The Presidency, Abuja.________1999. Constitution of the Federal Republic of Nigeria. Lagos: Federal

Government Press.Gboyega, A. 1984. "The 'Federal Character' or the Attempt to Create Representative

Bureaucracies in Nigeria." IRAS 51 (March)._____. 1989. "The Public Service and Federal Character" in P.P. Ekeh and E.E. Osaghae,

eds, Federal Character and Federalism in Nigeria. Ibadan: Heinemann.Kauzya, J. 2001. "A Holistic Model for Managing Ethnic Diversity in the Public Service

in Africa.” Paper prepared for the UNEG meeting on Managing Diversity in the Civil Service, New York, May 3–4.

98

Kirk-Greene, A.H.M. 1983. "Ethnic Engineering and the 'Federal Character' of Nigeria: Boon of Contentment or Bone of Contention?"Ethnic and Racial Studies 6 (October).

Leith, R., and H. Solomon. 2001. "On Ethnicity and Ethnic Conflict Management in Nigeria." African Journal of Conflict Resolution, No 1.

Mabogunje, A.L. 1999. "Nigeria: Physical and Social Geography" in Africa South of the Sahara. 28th ed. London: Europa Publications.

Obiyan, A. S. and S.T Akindele. 2002. "The Federal Character Principle and Gender Representation in Nigeria" in Journal of Social Sciences. India, Delhi: KRE Publishers, 241–46.

Office of the Head of the Civil Service of the Federation (OHCSF). 2003. Report on The Computerisation of the Records of Civil Servants in the Federal Republic of Nigeria Service.

Ojeifo, S. 2004. "NASC and the Federal Character Question" in Vanguard (Lagos). May 14.

Olowu, B. 2001. "Pride and Performance in African Public Services: Analysis of Institutional Breakdown and Rebuilding Efforts in Nigeria and Uganda." International Review of Administrative Science 67 (1) (March).

Olowu, D. 1995. “Centralization, Self-Governance and Development in Nigeria" in J. Wunsch and D. Olowu, eds., The Failure of the Centralized State: Institutions and Governance in Africa. Oakland, CA: ICS Press.

Onuorah, M. 2004. "Government Confirms Planned Sack in Civil Service.” The Guardian (Lagos). June 25.

Tamuno, T. N. 2003. "Nigerian Federalism in Historical Perspective" in K. Amuwo, A.A. Agbaje, R.T. Suberu, and G. Herault, eds., Federalism and Political Restructuring in Nigeria. Ibadan: Spectrum Books Ltd.

Usman, Y.B. 1977. "National Cohesion, National Planning and the Constitution" in S. Kumo and A. Aliyu, eds., Issues in the Nigerian Draft Constitution. Zaria: Baraka Press Ltd., 45–46.

World Bank. 1996. "Nigeria" in Trends in Developing Economies. Washington, DC.

Chapter 6. Implementing Affirmative Action in South African Public Service: A case studyANC (African National Congress). 1994. The Reconstruction and Development Program.

Cape Town._____. 2004. “Public service transformation: Women manage to break through artificial ceiling.” ANC Today 4 (8) (27 February–4 March). http://www.anc.org.za/ancdocs/anctoday/2004/at08.htm.

Cameron, R. 2003a. “Political decentralisation, party control, corruption and mismanagement.” In A. Hadenius, ed., Decentralisation and Democratic Governance Experiences from India, Bolivia and South Africa. Stockholm: Almqvist & Wiksell, 105–50.

_____. 2003a.b (sorry my mistake) “Politics-administration interface: The case of the city of Cape Town.” International Review of Administrative Sciences 69 (1): 51–66.

Cameron, R, G. [G. who?]take out the G, and A.B. Stone. 1995. Serving the Public. A Guide for Practitioners and Students. Pretoria: J.L. van Schaik.

99

Cameron, R., and C. Tapscott. 2000. “Challenges of state transformation in South Africa.” Public Administration and Development 20: 81–86.

Commonwealth Secretariat. 1991. Report of a Commonwealth Expert Group, Human Resources in a New South Africa. London: James Currey.

DPSA (Department of Public Service and Administration). 1997. The Provincial Review Report. Pretoria: Department of Public Administration.

_____. 2004. Public Service Employment Statistics. Department of Public Administration, Pretoria.

Du Toit, D., D. Bosch, D. Woolfrey, S. Godfrey, J. Rossouw, S. Christie, C. Cooper, G. Giles with C. Bosch. 2003. Labour Law Relations. 4th ed. Durban: Butterworth.

Government Communication Information Service 2004. South African Yearbook 2003/2004 at http://www.info.gov.za/yearbook/2004/landpeople.htm.

Habib, A. 2003. “Conversation with a Nation: Race and Redress in South Africa.” Paper presented at International Political Science Association Conference, Durban.

Hughes, O. E. 2003. Public Management and Administration. An Introduction. 3d ed. New York: Palgrave MacMillan.

Hugo, P., and L. Stack. 1992. “Whites in the South African public service: Angst and the future.” In P. Hugo, ed., Redistribution and Affirmative Action: Working on South Africa’s Political Economy. Southern: Halfway House, 51–70.

Levy, N. 1999. “Affirmative action interventions.” In P. Fitzgerald, A. McLennan, and B. Munslow, eds., Managing Sustainable Development in South Africa. Cape Town: Oxford University Press Southern Africa, 309–22.

Local Government Bulletin. 2003. “A right to affirmative action” 5 (3): 16–18. [add publisher and city]It is a magazine type format. It is published in Cape Town but does not appear to have a publisher of a sort.

Maphunye, K.J. 2001. “The South African senior public service: Roles and structures in post-1994 departments.” Journal of Public Administration 36 (4): 312–23.

Ncholo, P. 2000. “Reforming the public service in South Africa: A policy framework.” Public Administration and Development 20: 87–102.

PAWC (Provincial Administration of the Western Cape). 2004a. “Draft Policy Statement on the Management of the Employment, Development and Career Progression of Persons with Disabilities in the Western Cape Provincial Administration.” Cape Town.

_____. 2004b. Record of Provincial Executive Programmes candidates. Cape Town.Presidential Review Commission. 1998. Developing a Culture of Good Governance.

Report of the Presidential Review Commission on the Reform and Transformation of the Public Service in South Africa. Pretoria: Government Printer.

Public Service Commission. 2000. Report on the State of Representativeness in the Public Service. Pretoria: Government Printer.

_____. 2002. State of the Public Service Report. Pretoria: Government Printer. _____. 2004. State of the Public Service Report. Pretoria: Government Printer.RSA (Republic of South Africa). 1993. Constitution of the Republic of South Africa Act

No. 200 of 1993. Pretoria: Government Printer._____. 1994. White Paper on Reconstruction and Development, Government’s Strategy

for Fundamental Transformation. Government Printer: Pretoria.

100

_____. 1995. “The White Paper on the Transformation of the Public Service.” Government Gazette Vol. 365, No. 16838 of 1995. Pretoria: Government Printer.

_____. 1996. The Constitution of the Republic of South Africa Act No. 108 of 1996. retoria: Government Printer.

_____. 1997a. “White Paper on Human Resource Management in the Public Service.” Government Gazette Vol. 390, No. 18594. Pretoria: Government Printer.

_____. 1997b. “White Paper on Transforming Public Service and Administration (Batho Pele),” Government Gazette Vol. 388, No. 18340. Pretoria: Government Printer._____. 1997c. “White Paper on Public Service Training and Education.” Government Gazette Vol. 394, No.18800. Pretoria: Government Printer.

_____. 1998a. “White Paper on Affirmative Action in the Public Service.” Government Gazette Vol. 394, No. 18800 (23 April). Government Printer: Pretoria.

_____. 1998b. Employment Equity Act, Act No. 55 of 1998. Pretoria: Government Printer._____. 2001. Public Service Regulations. 2001. Government Gazette, No. R. 1 of 5

January 2001 as amended. Government Printer: Pretoria.Statistics South Africa, Census, 2001.UNDP. 2004. United Nations Development Programme. Human Development Report at

http://hdr.undp.org/reports/global/2004/pdf/hdr04_chapter_3.pdfUniversity of the Western Cape School of Government. 1998. “Extracts on Human

Resources Management and Development from the Presidential Review Commission Report on the Transformation and Reform of the Public Service.” In Human Resources Management. Western Cape Provincial Administration Executive Training Program. University of the Western Cape, Bellville.

The Presidency. 2003. “Toward a Ten-Year Review. Synthesis Report on Implementation of Government Programs.” Discussion Document. Policy Co-ordination and Advisory Services, Pretoria.

Welsh, D. 1982. “The politics of control: Blacks in the common areas.” In R. Schrire, ed., South Africa: Public Policy Perspectives. Cape Town: Juta, 87–111.

101