Legal and regulatory frameworks can support inclusive state-society relations.
Rights-based anti-discrimination legislation
Rights-based legislation is the formal mechanism through which citizens can demand rights (DFID, 2010b; Kabeer, 2010). Examples of inclusive legislative institutions include India’s Right to Information Law, and constitutional reforms on citizen participation in Brazil (DFID, 2010b: 59).
Key resource on rights-based approaches
GSDRC Topic Guide on Human Rights (Crichton, 2012)
There is evidence of positive impacts of international and domestic rights-based legislation:
- International: The process of formulating, ratifying and monitoring an international treaty can contribute to national-level legal reform and positive outcomes for marginalised groups (Byrnes & Freeman, 2011: 6). For example, countries that ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) improved women’s access to reproductive health and non-discrimination in education and employment (Simmons, 2009).
- Domestic: Domestic legislation can secure a state’s responsibility to protect rights. For example, the Employment Guarantee Scheme in India helped incentivise social activists to mobilise poor and marginalised people to access their employment rights, because it was enshrined in law that could not be easily changed by successive governments (Joshi, 2010: 627).
However, rights-based legislation will not automatically prevent discriminatory practices. For example, although Nepal has progressive legislation in place to protect lesbian, gay, transgender and other gender and sexual minorities, these groups still face reduced economic opportunities and familial rejection (Boyce & Coyle, 2013; see Waldman & Overs, 2014 for a synthesis of this and other case studies on sexuality and the law).
Successful rights-based approaches have focused on improving accountability and redress mechanisms that enable citizens to demand and monitor their rights (Crichton, 2012: 11; O’Neil & Piron, 2003: 17; Kabeer, 2010: 45). Among these, litigation is an increasingly important tool for realising rights, albeit one that can be protracted and costly with mixed outcomes (Gauri & Gloppen, 2012; Joshi, 2010). Research has also shown that non-state actors can play a key role in demanding inclusive rights-based legislation by creating pressure for change and monitoring government performance (DFID, 2010b).
A number of countries – for example Colombia, India, Malaysia, Peru, South Africa, Sri Lanka, and Venezuela – have adopted affirmative action initiatives in the economic, political and education spheres (Kabeer, 2010: 45-36).
A prominent example of affirmative action is gender quotas. These have been introduced in many countries to strengthen women’s political participation. Studies report mixed findings on the impact of these initiatives:
- Gender quotas have increased the representation of women in many Latin American, sub-Saharan and South Asian political structures. However, women entering political office are often prevented from accessing resources and influential posts (as experienced in Bangladesh, India, and Uganda) (Nazneen & Mahmud, 2012: 33).
- Randomised control trials In India found that reserving local leadership positions for women increased their participation in local meetings, and increased investment in public services and infrastructure favoured by women (Chattopadhyay & Duflo, 2004; Beaman et al., 2010). However, other studies of the impact of local political participation by women in India have reported less positive findings (for example, Ban & Rao, 2008); some suggest there may be a time lag before positive impacts are seen as women develop skills and confidence, and citizens become more receptive to them (Haider, 2011: 3).
Key resource on gender quotas
A GSDRC Helpdesk Research Report synthesises evidence on the effects of gender quotas on social and political processes and outcomes (Haider, 2011).
Several reviews highlight that affirmative action can escalate conflict and entrench differences (Kabeer, 2010: 46; DFID, 2005: 9; DFID, 2010b: 73). These studies recommend combining approaches that target the systematically excluded groups alongside integrationist policies (e.g. requirements that political parties are demographically representative; incentives for cross-group economic activities; and civic education) (DFID, 2010b: 73, 95; Kabeer, 2010).
Research summary: Gendered Politics of Securing Inclusive Development
This study investigates women’s participation in formal/ informal political institutions and the gendered politics of policy making in South Asia and Sub Saharan Africa.
It finds that increasing women’s representation in elected bodies does not automatically enable them to be politically effective. Critical factors include: i) elite support for women’s inclusion/ gender equitable outcomes; ii) policy coalitions exerting pressure on state/elite actors; iii) male allies in state bureaucracy, civil society space, and the state; iv) femocrats/women politicians that advocate a gender agenda; v) strength of women’s movements to negotiate on gender equity; vi) supportive transnational actors/discourses and context.
Source: Nazneen & Mahmud, 2012.
Redistributive public expenditure
Regulatory frameworks for progressive public expenditure – such as taxes, cash transfers and financing mechanisms – can strengthen social inclusion. Successful interventions have directed resources to excluded groups and remote, underfunded areas, and reduced inequalities in access to basic services and social protection (Kabeer, 2010: 44-45). For example, direct taxes and cash transfers have had positive effects on inequality and poverty in Argentina, Brazil, and Uruguay (Lüstig et al., 2013). Redistributive financing targeting excluded groups has been successful in India (Jhingran & Sankar, 2009) and Brazil (UNESCO, 2010 citing Henriques, 2009).
Challenges highlighted by evaluations of these types of initiatives include:
- Meeting the need: Mechanisms should be proportionate to the need. For example, in Tanzania, despite a needs-based financing formula for education, funding gaps between local government authorities have widened. Research suggests this is because underlying inequality heavily outweighs the effects of redistribution (UNESCO, 2010: 211).
- Political will: Redistribution policies can challenge existing power relations. As found in Kenya, even when a budget in principle supports poverty-oriented, decentralised spending, the level of political will to implement and maintain this investment is critical (UNSECO, 2010: 211)
- Coherent approach: Piecemeal interventions that target resources to disadvantaged groups may exacerbate social tensions, and may not translate into overall equality (Ferguson, 2008: 3). A coherent, cross-sectoral approach is required to deal with the multiple, interlocking issues in fiscal and tax design, employment, social protection, civic participation, education, gender and migration (Ferguson, 2008; OECD, 2011: 17).
- Ban, R. & Rao, V. (2008). Tokenism or Agency? The Impact of Women’s Reservations on Village Democracies in South India. Economic Development and Cultural Change, 56, 501-530. See document online
- Beaman, L., Duflo, E., Pande, R., & Topalova, P. (2011). Political reservation and substantive representation: Evidence from indian village councils. In S. Bery, B. Bosworth & A. Panagariya (Eds.) India Policy Forum 2010-11 (vol. 7). Washington D.C. / New Delhi: Brookings Institution Press and The National Council of Applied Economic Research. See document online
- Boyce, P. & Coyle, D. (2013). Development, discourse and law: Transgender Nepal. Evidence Report No. 13. Brighton: Institute of Development Studies. See document online
- Byrnes, A. & Freeman, M. (2011). The impact of the CEDAW Convention: Paths to equality. Background Paper. World Development Report 2012. Washington D.C.: World Bank. See document online
- Chattopadhyay, R. & Duflo, E. (2004). Women as policy makers: Evidence from a randomized policy experiment in india. Econometrica, 72(5), 1409-1443. See document online
- Crichton, J. (2012). Topic guide on human rights. Updated version. Birmingham: GSDRC, University of Birmingham. See document online
- DFID (2005). Reducing poverty by tackling social exclusion. A DFID Policy Paper. London: Department for International Development. See document online
- DFID (2010b). The politics of poverty: Elites, citizens and states: Findings from ten years of DFID-funded research on governance and fragile states 2001–2010. London: Department for International Development. See document online
- Ferguson, C. (2008). Promoting social integration: Background paper for discussion. Report commissioned by the United Nations Department of Economic and Social Affairs (UNDESA) for the Expert Group Meeting on Promoting Social Integration, Helsinki, Finland, 8-10 July. See document online
- Gauri, V. & Gloppen, S. (2012). Human rights based approaches to development: Concepts, evidence, and policy. Policy Research Working Paper No. 5938. Washington D.C.: World Bank. See document online
- Haider, H. (2011). Helpdesk research report: Effects of political quotas for women. Birmingham: GSDRC, University of Birmingham. See document online
- Henriques, R. (2009). Educational marginalization in Brazil. Background paper for EFA Global Monitoring Report 2010. Unpublished.
- Jhingran, D. & Sankar, D. (2009). Addressing educational disparity using district level education development indices for equitable resource allocations in India. Washington, D.C.: World Bank. See document online
- Joshi, A. (2010). Do rights work? Law, activism, and the employment guarantee scheme. World Development, 38(4), 620–630.
- Kabeer, N. (2010). Can the MDGs provide a pathway to social justice? The challenge of intersecting inequalities. New York: MDG Achievement Fund, Institute of Development Studies and UNDP. See document online
- Lüstig, N., Pessino, C. & Scott, J. (2013). The impact of taxes and social spending on inequality and poverty in Argentina, Bolivia, Brazil, Mexico, Peru and Uruguay: an overview. Working Paper 1313. Tulane University. See document online
- Nazneen, S. & Mahmud, S. (2012). Gendered politics of securing inclusive development. Working Paper No. 13. Manchester: Effective States and Inclusive Development Research Centre, University of Manchester. See document online
- O’Neil, T. & Piron, L-H. (2003). Rights-based approaches to tackling discrimination and horizontal inequality. London: Overseas Development Institute. See document online
- OECD (2011). Perspectives on Global Development 2012: Social cohesion in a shifting world. Paris: OECD. See document online
- Simmons, B. A. (2009). Mobilizing for human rights. Cambridge: Cambridge University Press. See document online
- UNESCO (2010). Education For All Global Monitoring Report. Reaching the marginalized. London and Paris: Oxford University Press and the United Nations Educational, Scientific and Cultural Organization. See document online
- Waldman, L. & Overs, C. (2014). Sexuality and the law: Case studies from Cambodia, Egypt, Nepal and South Africa. Synthesis. Brighton: IDS. See document online