By Meryl Kenny
Constitutions capture aspirations for the future, setting out broader principles of fair treatment and representation. As such, constitutions inevitably have a gendered impact – they frame women’s inclusion in, or exclusion from, the constitutional community (as well as that of other marginalized groups), and can, therefore, promote, or alternatively, present obstacles to gender equality. Moments of institutional and constitutional restructuring thus offer ‘windows of opportunity’ for gender equality agendas, giving women and other traditionally marginalized groups a chance to integrate gender concerns into these processes. While women’s interest in constitutional design is certainly not new, women’s constitutional activism has taken off in the last several decades, while the importance of a gender perspective in constitution-making is also increasingly recognized by international bodies, most notably in UN Security Council Resolution 1325.
As the constitutional lawyer Helen Irving notes, for women to be full members of the constitutional community, they must be represented and they must take part in all dimensions of the law-making process. Yet, women continue to be politically under-represented around the world – women hold only 22% of parliamentary seats worldwide, and only three countries in the world have achieved 50% women or better in their national parliaments. These are, currently, Rwanda at 64% women and Bolivia at 53% women; and, previously, Andorra at 50% women (dropping to 39% in 2015). Many democratic countries with long constitutional histories continue to perform poorly on women’s representation: in Australia, the first country in the world where (most) women had the right to both vote and stand for the national parliament, women are only 27% of the House of Representatives; meanwhile, the UK has 29% women in the House of Commons; Canada has 25%; and the United States comes in even lower at 19% women in the House of Representatives.
Globally, gender quotas have become an increasingly prominent and popular solution to the problem of women’s political under-representation – and, increasingly, these measures are entrenched in constitutions and/or electoral law, rather than simply left up to individual political parties. Gender quotas in the form of reserved seats are usually explicitly outlined in constitutional provisions – Article 76 of the 2003 Rwandan constitution, for example, reserves 24 of the 80 seats in the Chamber of Deputies for women. Meanwhile, Article 83 of the 2004 Afghan constitution specifies the total number of seats in the lower house, and mandates that at least two women should be elected to this body from each province – in practice, at least 68 women (27%). In other cases, constitutional quota provisions are directed at political parties. The French Constitution, as amended in 1999, states that ‘statutes shall promote equal access by women and men to elective offices and posts’ (Article 1), and also requires that political parties ‘contribute to the implementation of [this] principle’ (Article 4). This was followed in 2000 by new legislation – known as the ‘parity law’ – which mandates that French political parties nominate an equal number of male and female candidates in municipal, national and European elections.
Are constitutional or legislative quotas more effective than voluntary quotas used by political parties? Research in this area shows that legal quotas do not in themselves guarantee increases in women’s political presence – they need to be well-designed and effectively implemented to produce results. Crucial here are placement mandates – for quotas to work, they must not only stipulate that more women be selected, but must also ensure that parties are running them in seats or list places that they actually have a chance of winning. In Iraq, for example, the 2005 Electoral Law (which supports the gender quota provision in the Transitional Guidelines of the Iraqi Constitution) mandates that at least one of the top three candidates on each of the parties’ electoral lists must be a woman.
However, one of the advantages of constitutional and/or legislative quotas over voluntary party ones is that they allow for legal sanctions in cases where parties don’t follow the quota rules. The most effective type of sanctions are those that give electoral authorities the power to reject party lists that don’t include a sufficient number or percentage of women candidates, as seen in countries like Belgium and Spain, for example. Other countries have financial sanctions on the books, which are often less effective. In France, for example, the parity law does not specify any placement mandates and only includes weak financial sanctions for non-compliance – the larger parties can therefore afford to pay a fine rather than comply with the quota law. Thus, despite the existence of the above-discussed constitutional provisions and the parity law, women are still only 26% of the National Assembly.
The other advantage of constitutional and/or legislative quotas is that they apply to all parties in a country. Voluntary party quotas, in contrast, apply only to those parties that have chosen to implement them. In cases where multiple parties across the political spectrum have chosen to adopt voluntary quotas – for example, some of the Scandinavian countries – these measures can have a significant impact on levels of women’s representation. In countries like the UK, however, where the use of voluntary party quotas has been largely one-sided, gains in women’s representation continue to be slow and incremental. Responding to these trends, repeated calls have been made by campaigners at Scottish and UK level for the need for legislative quotas to ensure real change. These kinds of measures are potentially more difficult to adopt than party quotas – legal gender quotas require parliamentary support – but they are also necessary in order to achieve more equal and inclusive decision-making bodies.