IMPLEMENTING AFFIRMATIVE ACTION IN
PUBLIC SERVICES:
Comparative Administrative Practice
Acronyms
AFHQ
AIR
AIS
ANC
BN
COSATU
DPC
DPSA
HDI
IAS
IPS
IFS
INSAP
MADS
MAS
MCS
NEP
NGO
NP
OBC
PAWC
PEP
PPP
PSC
PSD
PTD
RDP
RSA
SC
SSC
ST
UNDP
UNMO
UNRISD
UPSC
WPTPS
Armed Forces Headquarters
All India Reporter
All India Services
African National Congress
Barisan Nasional
Congress of South African Trade Unions
Departmental Promotion Committee
Department of Public Service and Administration (SA)
Human Development Index (UNDP)
Indian Administrative Service
Indian Police Service
Indian Forest Service
Institute of Applied Policy
Malaysian Administrative and Diplomatic Service
Malay Administrative Service
Malayan Civil Service
New Economic Policy
Non Governmental Organization
National Party
Other Backward Classes (India)
Provincial Administration of the Western Cape
Provincial Executive Programs
Purchasing Power Parity
Public Service Commission
Public Services Department
Perkhidmatan Tadbir dan Diplomatik
Reconstruction and Development Program
Republic of South Africa
Scheduled Caste
Staff Selection Commission
Scheduled Tribe
United Nations Development Program
United Malay National Organization
United Nations Research in Social Development
Union Public Service Commission
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
Contents
I. Introduction ................................................................................................................. 1
II. Summary of findings................................................................................................... 5
II A.
Who is preferred, and to what extent? .............................................................5
II B.
Implementation ..............................................................................................10
II C.
Monitoring .....................................................................................................14
II D.
Results............................................................................................................18
III.
Affirmative Action in India’s public service: A case study .................................. 21
III A.
Background ....................................................................................................21
III B.
Implementation Framework...........................................................................24
III C.
Enforcement of Affirmative Action...............................................................29
III D.
Effect of Affirmative Action on Civil Service ..............................................32
III E.
Future of Affirmative Action in Public Service ............................................37
III F.
Appendices ....................................................................................................39
IV.
Affirmative Action in Malaysia’s Public Service: A case study .......................... 41
IV A.
Background ....................................................................................................41
IV B.
Context, Objectives, and Framework of Affirmative Action in Public Service
44
IV C.
Enforcement of Affirmative Action and its Effect ........................................46
IV D.
Consequences of Affirmative Action for Public Service...............................50
IV E.
Future of Affirmative Action in Public Service ............................................51
V.
Affirmative Action in Nigeria’s Public Service: A case Study ................................ 53
V 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 ...................................................................................................................63
V E.
Concluding Observations...............................................................................64
V F.
Appendix........................................................................................................67
VI.
Affirmative Action in the South African Public service: A case Study ............... 72
VI A.
Background ....................................................................................................72
VI 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 ................................................................................................................79
VI D.
Assessment of the Consequences for Public Service Performance ...............83
VI E.
Conclusions....................................................................................................89
VI F.
Appendix........................................................................................................90
VII.
References, by Chapter ......................................................................................... 93
iv
List of tables
Table II.1. Summary of Groups Preferred in Federal Public Service ................................. 8
Table III.1. India: Combined representation of SC and ST in different service groups (as
% of federal government employment) .................................................................... 32
Table III.2. India: Combined Representation of SC and ST public sector enterprises of
central government, 2000.......................................................................................... 32
Table III.3. India: Vacancies filled in All Civil Services ................................................. 33
Table III.4. India: Recruitment of Other Backward Classes ............................................. 33
Table IV.1. Malaysia: Ethnic composition of population in Malaysia (including North
Borneo), 1957–2000 ................................................................................................. 41
Table IV.2. Malaysia: Public Employment in Malaysia (2002) ....................................... 43
Table IV.3. Malaysia: Ethnic Composition of Public Service .......................................... 48
Table IV.4. Malaysia: Ethnic representation in top positions in federal ministries, 2000 49
Table IV.5. Malaysia: Women in public service, 1999 .................................................... 50
Table IV.6. Malaysia: Education levels in MCS by ethnic origin, 1971 .......................... 50
Table V.1. Nigeria: Selected macroeconomic and social indicators ................................ 55
Table V.2. Nigeria: Gender representation, March 2003.................................................. 58
Table V.3. Nigeria: Consolidated Statistics of FCS (Presidency, Federal Ministries, and
Extra-Ministerial Departments), 2000 ...................................................................... 67
Table V.4. Nigeria: Staff distribution summary by state and category, 2003 .................. 68
Table V.5. Nigeria: Summary of consolidated statistics of the FCS, selected years ........ 69
Table V.6. Nigeria: Total staff distribution by geopolitical zones, selected years .......... 71
Table V.7. Nigeria: Analysis of the impact of implementing federal character principle
(by state).................................................................................................................... 71
Table VI.1. South Africa: Human Development Index .................................................... 73
Table VI.2.South Africa: percentage of black managers 1995–2004 ............................... 82
Table 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.
Purpose
Affirmative 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.
Methodology
Implementation 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 inbetween 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
Scope
It 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 report
The 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
II.
II A.
SUMMARY OF FINDINGS
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?
India
The 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
 Apart from reservations, affirmation for preferred groups
categorized as ‘vertical.’ The
is in the form of
three preferred vertical groups
 Raising the maximum age limit for recruitment in public
receive slightly different
service up to five years and unlimited chances within this
preferences, as explained later
age limit;
in this section. The disabled,
 Exemption from payment of examination fees;
ex-army personnel, sports
 Notification of all vacancies of SC and ST to Employment
Exchanges and sufficient advertisement in newspapers;
persons, or legal heirs of
 Carry-forward of vacancies, which could not be filled in a
deceased government
particular year for want of suitable candidates, and
employees are also preferred
allowing these vacancies to be filled over and above the
groups in central and many
limit of 50% for all backward classes;
state governments, but
 Persons, who are appointed on merit and not owing to
reservations for these
reservation or any concession, will not be adjusted against
reservation quota.
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.
India – Preferences other than job reservations
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.
Malaysia
Affirmative 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 speechimpaired 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.
Nigeria
Affirmative 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, SouthSouth, 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
preferences, Nigeria’s Federal Character Commission (FCC) has recently re-affirmed that
6
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 Africa
In 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 preference
Ethnicity 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 Service
Affirmative Action on the basis of
India
Malaysia
Disability
Geographical Region
Ethnicity / Race
Gender
Social Stratum e.g. Caste
x
x
x
x
Nigeria
x
South
Africa
x
x
x
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 implement
In 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 framework
India
The 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.
Malaysia
Within 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.
Nigeria
The 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 Africa
The 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 patterns
Newspaper 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 Oversight
In 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 monitoring
In 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 Redress
In 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 Review
Indian 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 in
a 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 performance
This 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 nonMalays 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 action
Has 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.
Preference in promotion is contrary to guidelines in Nigeria, but nevertheless practiced.
The Civil Service (Re-organization) Decree 43 of 1988 directed positions in non19
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 measure
Although 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
affirmative action in their favor. The Directive Principles of State Policy in the
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.
3
21
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 subcastes 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 Service
Structure of Government
India 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.
Structure and Character of Public Service
The 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
22
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 governmentcontrolled 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 Service
The 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
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
23
that of social integration as they had remained in isolation from the national mainstream
for centuries.
III B. IMPLEMENTATION FRAMEWORK
Legal Framework
Constitutional Provisions
Equal 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 Review
The 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
criteria being supported by data recent enough to be reliable. A person cannot
4
Some states had extended the reservation quota to 69%, and to castes in religions outside Hinduism.
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.
5
24
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 preferences
State 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 Groups
The 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
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.
25
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 exarmy 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
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.
27
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 Service
The 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 Implementation
The 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.
Monitoring
All 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 semigovernment 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 Grievances
Opportunities 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 Composition
The 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.1. 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
9.8
B
2.82
10.16
11.65
12.17
C
8.88
14.61
14.85
12.80
D
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.2. India: Combined Representation of SC and ST public sector enterprises of central
government, 2000
Group
1975
1985
1993
A
1.44
4.12
3.37
B
3.02
5.50
9.12
C
13.73
18.34
18.71
D
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.3. India: Vacancies filled in All Civil Services
SC
ST
Year
%age of vacancies filled by this category
1998
13
6
1999
15
7
2000
14
8
2001
12
10
2002
13
7
OBC
30
31
30
31
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.4. India: Recruitment of Other Backward Classes
Group
Total employees
Reserved for OBC in
2001
A
90914
932
B
119379
565
C
2,170,788
19507
D
1,054,607
7839
Total
3,435,688
28843
OBC candidates
recruited
628
266
14842
4266
20002
Source: 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 Preferences
Credible 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 Morale
Experts 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
7
Indra Sawhney 1993 and Balaji 1963 cited earlier; Devadasan vs. Union of India 1985.
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 Cohesion
There 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 Diversity
The 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.1. Malaysia: Ethnic composition of population in Malaysia (including North Borneo),
1957–2000
Ethnic group
1957
1970
2000
Malay
49.8
47.1
53.4
Other Bumiputras
NA
8.5
11.7
Chinese
37.2
33.9
26.0
Indian
11.7
9.0
7.7
Others
NA
1.5
1.2
Source: Department of Statistics, Government of Malaysia.
41
Ethnic differences and Political Developments
Earlier, 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 Government
Malaysia 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.2. Malaysia: Public Employment in Malaysia (2002)
Category
Number of agencies
Federal public service
119
Federal statutory bodies
92
State public service
259
State statutory bodies
96
Local authorities
143
Total
709
Number of employees
783,052
95,447
89,778
18,912
38,954
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 sectorspecific 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 B. 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 Quotas
After 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 C. 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
matters for the entire civil service. Commissions for education, police, legal and
46
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
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
47
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 threequarters had fewer than three non-Malays in such positions.
Table IV.3. Malaysia: Ethnic Composition of Public Service
Year
1980
1985
Ethnic group
% of public service
Bumiputra
59.1
61.7
Chinese
29.7
27.1
Indian
9.8
10.0
Others
1.4
1.2
2003
83.7
8.2
5.2
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 SecretariesGeneral 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.4. Malaysia: Ethnic representation in top positions in federal ministries, 2000
Position
Malay
Chinese
Indian
Others
Secretary General
90
5
5
0
Deputy Secretary General
93
7
0
0
Division Directors
84
7
8
1
Source: 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.5. Malaysia: Women in public service, 1999
% of women appointed to decision-making levels of public
service
Title of post (top four levels)
Federal Government
State
Local
Governments
Governments
Chief Secretary to Government
0
0
0
Staff Posts (1 to 3 levels)
6
0
0
Super-scale levels (A,B and C)
11
0
0
Professional and management
50
16
23
Source: 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 D. 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.6. Malaysia: Education levels in MCS by ethnic origin, 1971
% with this qualification among
Educational qualifications
Malay officials
Non-Malay officials
Honors degree and above
63.7
92.8
General degree or equivalent
13.2
4.8
Diploma 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-Malays
Besides 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 nonMalays 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 wellqualified 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 E. 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 Culture
Nigeria 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
territory now known as Nigeria came under one administration in 1900 (Ayoade 2003,
53
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 Americanstyle 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
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
54
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.1. Nigeria: Selected macroeconomic and social indicators
1999
2000
2001
2002a
2003*
Macroeconomic indicators
Gross national product (n billion) (at
313
323
340
344
380
constant market prices)
Gross domestic product (n billion) (at
3194
4538
5178
5454
7180
current basic prices)
Total GDP growth rate (%)
17
42
14
5
32
Inflation rate (%)(moving average)
7
7
19
13
14
Inflation rate (%) (year-on-year)
0
15
17
12
24
Social indicators
Population growth rate (%)
3
3
3
3
3
GDP per capital (n)
1039
1047
1063
1065
1029
Life expectancy at birth (in years)
54
54
54
54
57
Adult literacy rate (%)
57
57
57
57
57
Human development index (%)
0
0
0
0
0
Maternal mortality (per 1000 live births)
10
10
10
10
10
Infant mortality (per 1000 live births)
75
75
75
75
75
Crude birth rate (per 1000 persons)
49
49
49
49
49
Crude death rate (per 1000 persons)
14
14
14
14
14
Source: 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
V B.
OBJECTIVES OF AFFIRMATIVE ACTION AND RELEVANT CONSTITUTIONAL
PROVISIONS, LAWS, RULES, AND REGULATIONS
Federal Character Principle
Of 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).
56
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.
57
Gender Representation in the Nigerian Civil Service
Compared 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.2. Nigeria: Gender representation, March 2003
Grade
Female
%
Male
01–06
31,022
36.84
53,181
07–10
16,690
39.89
25,150
12–14
3,134
33.10
6,333
15–17
492
24.11
1,549
CS
8
17.02
39
Total
51,346
37.31
86,252
%
63.16
60.11
66.90
75.89
82.98
62.68
Total
84,203
41,840
9,467
2,041
47
137,598
Source: 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 C.
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.
58
Functions of the Commission
The 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 Operations
The 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.
59
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.
Performance
The 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.
60
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
sectional and regional loyalties and on the whole ensuring stability of the Nigerian
61
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 Them
In 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).
62
V D.
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 NorthSouth 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)
63
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 E.
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.
64
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 governance
Shrinking the federal government's role in the economy, thus increasing the roles of state
and local governments, the private sector, and nongovernmental organizations
Continued 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.
65
V F.
APPENDIX
Table V.3. Nigeria: Consolidated Statistics of FCS (Presidency, Federal Ministries, and Extra-Ministerial Departments), 2000
States
ABIA
ADA
AKW
ANA
BAU
BAY
BEN
BOR
CRO
DEL
EBO
EDO
EKI
ENU
GOM
IMO
JIG
KAD
KAN
KAT
KEB
KOG
KWA
LAG
NAS
NIG
OGU
OND
OSU
OYO
PLA
RIV
SOK
TAR
YOB
ZAM
FCT
NON
TOTAL
01–04
1,631
1,167
3,615
1,047
1,408
391
2,926
1.376
1,958
2,642
403
2,988
1,020
1,646
561
3,313
500
3,052
1,540
1,429
634
3,212
1,649
1,874
1,180
1,863
4,327
2,471
1,718
2,765
2,299
1,670
917
742
604
320
861
90
63,807
%
2.6
1.8
5.7
1.6
2.2
0.6
4.6
2.2
3.1
4.1
0.6
4.7
1.6
2.6
0.9
5.2
0.8
4.8
2.4
2.2
1.0
5.0
2.6
2.9
1.8
2.9
6.8
3.9
2.7
4.3
3.6
2.6
1.4
1.2
0.9
0.5
1.3
0.1
100.0
05–07
2,357
1,387
3,533
1,785
911
340
2,398
1,350
1,657
3,736
302
3,645
1,361
1,851
749
5,143
373
2,183
990
1,012
677
3,050
1,759
2,341
1,067
1,461
5,783
3,036
2,163
2,919
1,645
1,273
350
778
572
253
442
10
66,642
%
3.5
2.1
5.3
2.7
1.4
0.5
3.6
2.0
2.5
5.6
0.5
5.5
2.0
2.8
1.1
7.7
0.6
3.3
1.5
1.5
1.0
4.6
2.6
3.5
1.6
2.2
8.7
4.6
3.2
4.4
2.5
1.9
0.5
1.2
0.9
0.4
0.7
0.0
100.0
Total
01–07
3,988
2,554
7,148
2,832
2,319
731
5,324
2,726
3,615
6,378
705
6,631
2,381
3,497
1,310
8,456
873
5,235
2,530
2,441
1,311
6,262
3,408
4,215
2,247
3,324
10,110
5,507
3,881
5,684
3,944
2,943
1,267
1,520
1,176
573
1,303
100
130,449
Source: Federal Character Commission
67
%
01–07
3.1
2.0
5.5
2.2
1.8
0.6
4.1
2.1
2.8
4.9
0.5
5.1
1.8
2.7
1.0
6.5
0.7
4.0
1.9
1.9
1.0
4.8
2.6
3.2
1.7
2.5
7.8
4.2
3.0
4.4
3.0
2.3
1.0
1.2
0.9
0.4
1.0
0.1
100.0
08–10
1,578
771
1,962
2,020
511
386
1,354
771
994
2,467
257
2,149
1,079
990
512
2,984
345
1,327
801
767
574
2,156
1,360
1,526
720
1,176
2,913
1,865
1,801
1,676
1,114
809
205
414
318
177
289
24
43,142
%
3.7
1.8
4.5
4.7
1.2
0.9
3.1
1.8
2.3
5.7
0.6
5.0
2.5
2.3
1.2
6.9
0.8
3.1
1.9
1.8
1.3
5.0
3.2
3.5
1.7
2.7
6.8
4.3
4.2
3.9
2.6
1.9
0.5
1.0
0.7
0.4
0.7
0.1
100.0
11–14
478
248
455
1,047
162
98
344
207
295
807
43
688
421
239
137
909
96
325
243
242
136
581
425
563
161
381
1,063
693
597
539
284
215
64
114
107
40
68
2
13,517
%
3.5
1.8
3.4
7.7
1.2
0.7
2.5
1.5
2.2
6.0
0.3
5.1
3.1
1.8
1.0
6.7
0.7
2.4
1.8
1.8
1.0
4.3
3.1
4.2
1.2
2.8
7.9
5.1
4.4
4.0
2.1
1.6
0.5
0.8
0.8
0.3
0.5
0.0
100.0
15+
83
46
60
201
57
8
77
44
34
137
8
115
124
50
42
125
19
62
77
53
38
107
65
119
36
82
216
143
136
97
57
28
29
24
24
13
6
1
2,643
%
3.1
1.7
2.3
7.6
2.2
0.3
2.9
1.7
1.3
5.2
0.3
4.4
4.7
1.9
1.6
4.7
0.7
2.3
2.9
2.0
1.4
4.0
2.5
4.5
1.4
3.1
8.2
5.4
5.1
3.7
2.2
1.1
1.1
0.9
0.9
0.5
0.2
0.0
100.0
Total
08–15+
2,139
1,065
2,477
3,268
730
492
1,775
1,022
1,323
3,411
308
2,952
1,624
1,279
691
4,018
460
1,714
1,121
1,062
748
2,844
1,850
2,208
917
1,639
4,192
2,701
2,534
2,312
1,455
1,052
298
552
449
230
363
27
59,302
%
08–15+
3.6
1.8
4.2
5.5
1.2
0.8
3.0
1.7
2.2
5.8
0.5
5.0
2.7
2.2
1.2
6.8
0.8
2.9
1.9
1.8
1.3
4.8
3.1
3.7
1.5
2.8
7.1
4.6
4.3
3.9
2.5
1.8
0.5
0.9
0.8
0.4
0.6
0.0
100.0
Grand
total
6,127
3,619
9,625
6,100
3,049
1,223
7,099
3,748
4,938
9,789
1,013
9,583
4,005
4,776
2,001
12,474
1,333
6,949
3,651
3,503
2,059
9,106
5,258
6,423
3,164
4,963
14,302
8,208
6,415
7,996
5,399
3,995
1,565
2,072
1,625
803
1,666
127
189,751
%
3.2
1.9
5.1
3.2
1.6
0.6
3.7
2.0
2.6
5.2
0.5
5.1
2.1
2.5
1.1
6.6
0.7
3.7
1.9
1.8
1.1
4.8
2.8
3.4
1.7
2.6
7.5
4.3
3.4
4.2
2.8
2.1
0.8
1.1
0.9
0.4
0.9
0.1
100.0
Table V.4. Nigeria: Staff distribution summary by state and category, 2003
GL
State
Abia
Adamawa
Akwa Ibom
Anambra
Bauchi
Bayelsa
Benue
Borno
Cross River
Delta
Ebonyi
Edo
Ekiti
Enugu
FCT
Gombe
Imo
Jigawa
Kaduna
Kano
Katsina
Kebbi
Kogi
Kwara
Lagos
Nassarawa
Niger
Other countries
Ogun
Ondo
Osun
Oyo
Plateau
Rivers
Sokoto
Taraba
Yobe
Zamfara
Total
Zones
SE
NE
SS
SE
NE
SS
NC
NE
SS
SS
SE
SS
SW
SE
NC
NE
SE
NW
NW
NW
NW
NW
NC
NC
SW
NC
NC
SW
SW
SW
SW
NC
SS
NW
NE
NE
NW
-
01–06
2,817
1,521
5,022
1,591
1,308
647
33,823
1,715
2,671
4,135
589
4,118
2,243
2,353
452
943
4,213
663
3,766
1,622
1,437
812
4,542
2,040
2,603
1,279
2,011
3
6,556
3,302
2,878
3,505
2,401
1,641
801
1,069
619
491
84,203
07–10
1,950
480
1,976
1,778
289
354
1,160
504
876
2,784
261
2,240
1,526
1,023
126
302
3,363
177
993
460
413
289
1,868
1,371
1,699
375
616
59
4,107
1,984
2,158
2,139
783
577
152
310
696
122
41,840
12–14
432
115
328
833
49
59
242
85
167
632
35
470
399
225
17
48
734
39
177
84
99
45
403
329
378
66
139
2
882
526
561
445
165
117
21
51
36
29
9,467
15–17
75
30
30
174
27
6
62
47
33
122
10
83
101
39
5
23
131
14
43
54
29
29
78
54
86
10
54
170
106
140
80
23
15
15
14
12
16
2,040
CS
1
1
1
2
2
1
1
2
1
1
1
2
1
1
1
1
1
1
1
2
1
1
1
2
1
1
2
2
2
1
2
1
1
1
1
1
1
47
Total
5,275
2,148
7,357
4,379
1,675
1,067
5,289
2,353
3,748
7,674
896
6,916
4,272
3,641
601
1,317
8,441
894
4,980
2,222
1,979
1,175
6,891
3,795
4,768
1,731
2,821
64
11,717
5,922
5,738
6,172
3,373
2,351
990
1,445
864
659
137,598
Source: 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.
68
%t
3.83
1.56
5.35
3.18
1.22
0.78
3.84
1.71
2.72
5.58
0.65
5.03
3.10
2.65
0.44
0.96
6.13
0.65
3.62
1.61
1.44
0.85
5.01
2.76
3.47
1.26
2.05
0.05
8.52
4.30
4.17
4.49
2.45
1.72
0.72
1.05
0.63
0.48
100
Table V.5. Nigeria: Summary of consolidated statistics of the FCS, selected years
States
ABIA
ADAMAWA
AKWA-IBOM
ANAMBRA
BAUCHI
BAYELSA
BENUE
BORNO
CROSS RIVER
DELTA
EBONYI
EDO
EKITI
ENUGU
GOMBE
IMO
JIGAWA
KADUNA
KANO
KATSINA
KEBBI
KOGI
KWARA
LAGOS
NASARAWA
NIGER
OGUN
ONDO
OSUN
OYO
PLATEAU
RIVERS
1996
Total
8,919*
8,593
16,784
9,229
7,409**
17,188
7,176
12,185
17,034
17,525
8,847*
19,069
2,263
13,731
6,620
6,624
3,616
15,936
8,259
11,517
8,508
21,182
17,930***
8,270
12,569
15,047+
11,936 
%
2.7
2.6
5.1
2.8
2.3
5.3
2.2
3.7
5.2
5.4
2.7
5.8
0.7
4.2
2.0
2.0
1.1
4.9
2.5
3.5
2.6
6.5
5.5
2.5
3.8
4.6
3.6
69
1999
Total
7,668
7,303
13,116
7,629
5,099
2,691
15,393
6,498
10,086
15,045
2,261
17,035
4,731
9,847
4,293
16,202
1,896
12,314
4,566
6,553
3,014
16,736
6,877
8,611
4,988
6,436
16,675
11,775
9,511
9,633
8,460
7,510
%
2.6
2.5
4.5
2.6
1.7
0.9
5.3
2.2
3.4
5.1
0.8
5.8
1.6
3.4
1.5
5.5
0.6
4.2
1.6
2.2
1.0
5.7
2.3
2.9
1.7
2.2
5.7
4.0
3.2
3.3
2.9
2.6
2000
Total
6,127
3,619
9,625
6,100
3,049
1,223
7,099
3,748
4,938
9,789
1,013
9,583
4,005
4,776
2,001
12,474
1,333
6,949
3,651
3,503
2,059
9,106
5,258
6,423
3,164
4,963
14,302
8,208
6,415
7,996
5,399
3,995
%
3.2
1.9
5.1
3.2
1.6
0.6
3.7
2.0
2.6
5.2
0.5
5.1
2.1
2.5
1.1
6.6
0.7
3.7
1.9
1.8
1.1
4.8
2.8
3.4
1.7
2.6
7.5
4.3
3.4
4.2
2.8
2.1
2003 (as at March 21)
Total
%
5,275
3.83
2,148
1.56
7,357
5.35
4,379
3.18
1,675
1.22
1,067
0.78
5,289
3.84
2,353
1.71
3,748
2.72
7,674
5.58
896
0.65
6,914
5.02
4,272
3.10
3,641
2.65
1,317
0.96
8,441
6.13
894
0.65
4,980
3.62
2,222
1.61
1,979
1.44
1,175
0.85
6,891
5.01
3,795
2.76
4,768
3.47
1,731
1.26
2,821
2.05
11,717
8.52
5,922
4.30
5,738
4.17
6,172
4.49
3,373
2.45
2,351
1.71
SOKOTO
TARABA
YOBE
ZAMFARA
FCT
NON-NIGERIANS
TOTAL
4,633****
4,008
1,750
2,677
187
327,221
1.4
1.2
0.5
0.8
0.1
100.0
2,319
3,867
2,177
1,318
2,547
44
292,724
0.8
1.3
0.7
0.5
0.9
0.0
100.0
1,565
2,072
1,625
803
1,666
127
189,751
0.8
1.1
0.9
0.4
0.9
0.1
100.0
990
1,445
864
659
601
64
137,598
0.72
1.05
0.63
0.48
0.44
0.05
100.0
Sources: 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%.
70
Table V.6. Nigeria: Total staff distribution by geopolitical zones, selected years
Zones
1996
1999
No. of staff
% of total
No. of staff
% of total
North Central
67,615
20.68
61,437
20.99
North East
28,936
8.85
29,237
9.99
North West
37,487
11.46
31,980
10.93
South East
46,064
14.09
43,607
14.90
South South
75,464
23.07
65,483
22.37
South West
71,468
21.85
60,936
20.82
TOTAL
327,034
100.00
292,680
100.00
2000
No. of staff
% of total
36,655
19.33
16,114
8.50
19,863
10.47
30,490
16.08
39,153
20.65
47,349
24.97
189,624
100.00
2003 (as of March 21)
No. of staff
% of total
24,501
17.81
9,802
7.13
12,899
9.38
22,632
16.45
29,111
21.17
38,589
28.06
137,534
100.00
Sources: 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.7. 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,
Abia/Ebonyi, Adamawa, Borno, Enugu/Ebonyi, Jigawa, Kano, Katsina,
Delta, Edo, Imo, Kaduna, Kogi, Lagos, Ogun, Ondo, Oyo,
Kebbi, Kwara, Niger, Osun, Sokoto/Zamfara, Taraba, Yobe, FCT (15)
Plateau/Nassarawa, Rivers/Bayelsa (16)
1999
Akwa-Ibom, Benue, Cross River, Delta, Edo, Enugu, Imo,
Abia, Adamawa, Anambra, Bauchi, Bayelsa, Borno, Ebonyi, Ekiti,
Kaduna, Kogi, Lagos, Ogun, Ondo, Osun, Oyo, Plateau (15)
Gombe, Jigawa, Kano, Katsina, Kebbi, Kwara, Nassarawa, Niger,
Rivers, Sokoto, Taraba, Yobe, Zamfara, FCT (22)
2000
Abia, Akwa-Ibom, Anambra, Benue, Delta, Edo, Imo,
Adamawa, Bauchi, Bayelsa, Borno, Cross River, Ebonyi, Ekiti, Enugu,
Kaduna, Kogi, Kwara, Lagos, Ogun, Ondo, Osun, Oyo,
Gombe, Jigawa, Kano, Katsina, Kebbi, Nassarawa, Niger, Rivers,
Plateau (16)
Sokoto, Taraba, Yobe, Zamfara, FCT (21)
March 2003
Abia, Akwa-Ibom, Anambra, Benue, Delta, Edo, Ekiti, Imo,
Adamawa, Bauchi, Bayelsa, Borno, Cross River, Ebonyi, Enugu,
Kaduna, Kogi, Kwara, Lagos, Ogun, Ondo, Osun, Oyo (16)
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.
71
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.
VI 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 nonEnglish 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
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the employed, 87.5 % of earn less than R3200.00 (approx. US$500) per month. In
contrast, 6.3 % of whites are unemployed, and 30 % earn less than R3200.00 per month.
According to the UNDP’s latest human development index, South Africa is ranked
number 119 of 177 countries. Some of the relevant statistics are (table 1):
Table VI.1. South Africa: Human Development Index
Life expectancy at birth (years) (HDI), 2002
Adult literacy rate (% ages 15 and above) (HDI), 2002
Combined gross school enrolment ratio (%), 2001/02
GDP per capita (US$) (HDI), 2002
Estimated earned income, female (PPP US$), 2002
Estimated earned income, male (PPP US$), 2002
48.8
86
77
10,070
6,371
14,202
Source: United Nations Development Program. Human Development Report, 2004 at
http://hdr.undp.org/statistics/data/cty/cty_f_ZAF.html.
History of the Public Service
Apartheid South Africa
Until 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).
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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 twophase 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
74
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 B. 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 thenMinister 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.
75
 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 Action
The 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).
76
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 lowerlevel 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 Equity
In 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.
77
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 Regulations
People 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
78



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 C. 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-servicewide 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.
79
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.
80
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
81
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 DirectorGeneral 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.2.South Africa: percentage of black managers 1995–2004
Year
%age of black managers
1995
37
1996
39
1997
42
1998
43
1999
41
2000
53
2001
57
2002
60
2003
63
2004
64
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).
82
Table 3 summarizes the data of the evolving gender composition of the public service in
the management and senior management echelons.
Table VI.3. South Africa: Gender composition in management, 1995–2004
Year
Percentage of women managers
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
8
11
13
14
17
20
20
22
24
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 D. 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.
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.
83
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
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.
84
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
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
85
neither feasible nor desirable. It is not desirable in that it can lead to a rather onedimensional 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
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
86
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
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
87
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).
88
VI E. 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 lowerskilled 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%20provinc
e2004629172254.xls) [page cannot be found]these links are often withdrawn after a while.
89
VI F. APPENDIX.
Affirmative Action Statistics
Classification
male
Black
female
Lower skilled
Skilled
Highly skilled production
Highly skilled supervisor
Management
Senior management
Total
173,588
93,288
152,140
4,860
828
194
424,898
115,871
65,399
199,117
1,371
111
15
381,884
Lower skilled
Skilled
Highly skilled production
Highly skilled supervisor
Management
Senior management
Total
134,511
109,488
147,650
8,707
984
141
401,481
88,992
86,642
175,635
3,010
172
24
354,475
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
Total
124,254
94,873
167,862
9,729
896
111
397,725
83,851
89,944
202,390
3,684
214
24
380,107
Lower skilled
Skilled
Highly skilled production
119,239
93,523
173,958
81,020
91,396
213,052
White
female
September 1995
23,696
26,032
29,533
34,767
84,735
99,271
10,352
2,225
1,905
128
125
3
150,346
162,426
Nov 1996
9,036
8,027
24,797
47,956
74,688
83,648
15,310
3,952
2.099
,176
123
4
126,053
143,763
Dec 1997
4,456
3,891
15,121
36,654
68,556
74,305
13,614
4,014
1,878
183
118
9
103,743
119,056
Jun 1998
3,600
3,019
13,561
31,799
66,497
76,593
male
90
male
Colored
female
male
Asian
female
Total
18,712
12,600
26,481
1,419
49
14
59,275
18,152
9,969
32,990
155
6
3
61,275
1,682
2548
9737
617
51
9
14,644
1841
1815
9204
150
7
1
13,018
379,574
249,919
613,675
21,149
3,085
364
1,267,766
12,977
11,257
23,497
1,987
74
12
49,804
12,359
17,676
30,067
295
18
2
60,417
3,087
7,273
12,318
1,292
94
11
24,075
1,920
3,842
9,634
351
22
1
15,770
270,909
308,931
557,137
34,904
3,639
318
1,175,838
11,183
8,722
23,398
1,732
103
16
45,154
9,841
15,212
27,819
309
25
4
53,210
2,556
7,249
12,372
1,149
129
12
23,467
1,696
3,968
10,020
375
26
2
16,087
241,728
271,743
586,722
34,606
3,454
296
1,138,549
10,605
8,412
23,980
9,414
14,686
28,624
2,367
7,112
12,898
1,588
4,030
10,835
230,852
264,519
606,437
Highly skilled supervision
Management
Senior management
Total
male
9,896
975
109
397,700
Black
female
3,803
234
22
389,527
male
13,277
1,865
126
98,926
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
Total
107,744
85,383
173,989
10,274
577
96
378,063
73,775
86,781
215,688
3,944
144
24
380,356
2,008
9,676
57,417
11,936
1,314
86
82,437
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
Total
100,838
82,560
173,385
10,481
1,327
136
368,727
71,634
83,256
219,721
4,168
400
41
379,220
1,339
8,037
54,819
12,238
1,746
104
78,283
Personal notch/no key scale
No salary level
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
Total
617
7
68,945
97,619
210,720
4,118
466
46
382,538
1,979
25
92,505
85,566
171,529
10,152
1,424
149
363,329
77
0
1,221
2,926
11,211
577
62
5
16,079
Classification
White
female
4,269
203
12
115,895
Dec 1999
1,380
21,647
67,771
4,046
223
8
95,075
Dec 2000
1,012
17,407
65,942
4,272
343
13
88,989
Dec 2001
325
1
1,619
5,573
12,357
1,434
200
21
21,530
91
Colored
male
female
1,729
339
108
28
19
3
44,853
53,094
Asian
male
female
1,189
419
143
30
15
2
23,724
16,904
Total
34,921
3,586
308
1,140,623
1,917
6,304
12,218
1,411
96
15
21,961
1,304
3,410
10,674
487
28
4
15,907
9,421
7,212
23,693
1,609
111
17
42,063
8,547
13,152
28,022
374
37
5
50,137
206,096
233,565
589,472
34,081
2,530
255
1,065,999
8,737
7,088
23,927
1,648
182
28
41,610
8,205
12,765
28,332
413
61
8
49,784
1,706
5,774
12,336
1,521
206
17
21,560
1,222
3,088
10,871
541
57
5
15,784
194,693
219,975
589,333
4,322
352
147
0
7,890
15,358
25,358
429
52
8
49,242
561
0
7,671
7,139
23,476
1,582
194
28
40,651
717
5
850
14,482
64,473
3,915
296
11
84,749
1,993
3
1,141
6,505
52,000
10,173
1,591
70
73,476
6,416
41
181,842
235,168
571,124
32,380
4,285
338
1,031,594
1,043,957
Classification
male
Black
female
male
No salary level
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
80
67,478
83,541
236,648
5,152
619
57
393,575
49
84,943
80,412
183,949
11,858
1,715
179
363,105
0
1,280
3,040
11,485
635
81
6
16,527
No salary level
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
Unknown
0
64,977
86,485
240,936
5,507
756
75
0
398,736
5
78,271
82,573
184,458
12,393
1,915
186
1
359,802
0
1,290
3,180
11,786
665
97
7
0
17,025
No salary level
Lower skilled
Skilled
Highly skilled production
Highly skilled supervision
Management
Senior management
Unknown
3
63,896
87,317
243,923
5,682
807
78
1
401,707
6
75,612
84,518
185,219
12,722
1,989
187
1
360,254
0
1,267
3,261
11,982
689
105
7
1
17,312
White
female
Dec 2002
2
1,598
5,222
12,766
1,580
250
29
21,447
Dec 2003
1
1,538
5,182
12,721
1,573
293
31
0
21,339
Mar 2004
1
1,527
5,254
12,718
1,544
296
30
0
21,370
92
male
Colored
female
male
Asian
female
Total
0
7,874
13,585
28,121
512
70
8
50,170
1
7,207
8,503
23,542
1,825
234
33
41,345
2
977
13,528
64,241
4,228
350
19
83,345
4
1,153
6,591
50,076
11,384
1,699
84
70,991
138
172,510
214,422
610,828
37,174
5,018
415
1,040,505
3
7,623
14,427
27,905
543
88
11
0
50,600
4
6,638
9,400
23,196
1,857
263
36
0
41,394
3
1,003
12,797
62,351
4,122
384
24
0
80,684
5
1,096
6,499
47,778
10,934
1,669
94
0
68,075
21
162,436
220,543
611,131
37,594
5,465
464
1
1,037,655
0
7,474
14,457
28,907
579
86
11
0
51,514
1
6,418
9,849
23,797
1,906
271
38
0
42,280
1
896
12,507
62,517
4,199
395
27
0
80,542
2
1,073
6,686
47,460
10,801
1,680
100
0
67,802
14
158,163
223,849
616,523
38,122
5,629
478
3
1,042,781
VII.
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