The booming field of public procurement studies is increasingly open to investigating human rights issues within supply chains. However, little attention has so far been paid to the economic and political impacts of public procurement regulations and practices on gender equality. Gender and sexuality cannot be separated from workers’ rights, fair pay, modern slavery – issues that are of interest to public procurement and human rights scholars and advocates. Gender and sexuality have widely been shown to reinforce occupational segregation of socio-economic classes in the workplace.
Since the 1995 UN Fourth Conference on Women in Beijing, China, adopted the view that “women’s rights are human rights,” a worldwide agenda was set to advance gender equality. The idea that the state plays a prime role in policymaking in areas that differentially affect men and women permeated the Beijing Declaration in 1995. However, the agenda-setters in Beijing broadened the scope of action to ensure that gender equality would still be relevant even as the economic role of the state was changing.
Article 36 of the Beijing Declaration and Platform for Action specifically recognized the importance of a multi-stakeholder approach to gender equality when it recommended “adequate mobilization of resources at national and international levels as well as new and additional resources to the developing countries from all available funding mechanisms, including multilateral, bilateral and private sources for the advancement of women” (UN Women 1995). This view led to thinking about multilevel and multi-sectorial approaches to gender equality in public procurement worldwide. The Beijing’s Platform for Action had several recommendations related to public procurement and gender equality in 1995, including:
Actions to be taken by governments: “Review, formulate, if necessary, and implement policies, including business, commercial and contract law and government regulations, to ensure they do not discriminate against micro, small, and medium-scale enterprises owned by women in the rural and urban areas” (Beijing 1995 Declaration and Platform for Action, Section F.2. 166 (h)).
Actions to be taken by governments, central banks and national development banks, and private institutions, as appropriate: “Ensure that women’s priorities are included in public investment programs for economic infrastructure, such as water sanitation, electrification and energy conservation, transport and road construction; promote greater involvement of women beneficiaries at the project planning and implementation stages to ensure access to jobs and contracts” (Beijing 1995 Declaration and Platform for Action, Section F.2. 176 (d) ).
Actions to be taken by the private sector including transnational and national corporations “Adopt policies and establish mechanisms to grant contracts on non-discriminatory basis” (Beijing 1995 Declaration and Platform for Action, Section F4. 177 (a) ).
Concerns about the fate of gender equality have since been part of subsequent platforms for action informed by women’s experiences worldwide. Cited in the Beijing+10 report were factors that negatively impacted women’s lives such as change in labor practices that favored casual forms of employment through outsourcing, the commercialization of agriculture and the increasing privatization of resources and services (E/CN.6/2005/2 Chapter 3((107-8)). Women in Africa, South of the Sahara, were reportedly negatively impacted by the turn to outsourcing and privatization as a development policy E/2010/27 (SUPP) – E/CN.6/2010/11 (SUPP).
While Beijing+20 documents reiterated calls to ensure more access to affordable care, they also show that discussions about the role of public-private partnerships for the delivery of services, especially in healthcare have taken a back stage (E/CN.6/2015/3). This apparent retreat of the debate about gender equality and public procurement in the context of Beijing+20 is peculiar given the fact that the UN post-2015 Sustainable Development Goals (SDGs) plan of action rests on private and blended development cooperation based on more devolution schemes in the provision of public goods and services in the developing countries.
Although goal 5 of Sustainable Development Goals focuses on gender equality, it does not treat public procurement as a critical public policy mechanism to achieve this goal. While the Convention on the Elimination of all Forms of Discriminations Against Women (CEDAW), recognizes the rights of women to enter into private contracts, it is silent on the connection between government contracts, gender and women’s wellbeing.
More extensive in addressing the intersection of human rights and public procurement are the UN Guiding Principles on Business and Human Rights (UNGPs) . The fact, however, remains that we do not have a comprehensive instrument that addresses gender equality in public procurement from the perspectives of women’s entrepreneurship and women’s utilization of public works, goods and services. Put differently, research is not yet adequately and simultaneously addressing the gendered dynamics within the supply and demand sides of public procurement.
A comparative review of national public procurement laws, which I undertook reveals that women have not been integrated as an explicit category into national procurement frameworks in Africa, not even via preferential clauses:
|State||New PP Law||Revised / Amended PP Law||Preferential treatment|
|Rwanda||Public Procurement Law, 2007||Public Procurement Law (no.5/2013)||Article 41 (2007) states: “local preference not exceeding 10% may be granted to companies registered in Rwanda or to Rwandan nationals and bidders in regional economic integration bodies”|
|Seychelles||Public Procurement Act, 2008||Public Procurement Regulations (2014)||Article 92(1)(2) (2008). Unspecified. Policy is under the preview of the Procurement Oversight Unit in consultation with the government.|
Article 152 (1)(2)(3)(a)(2014) “eligibility for the margin of preferences in terms of ownership, location of the bidder or production facilities, origin of labor, raw material or components, extent of subcontracting or association with local partners or any other relevant factor”
|Senegal||Public Procurement Law, 2007||2014||Section 5, reserved for local communities, SMEs, and ECOWAS citizens.|
|Namibia||Tender Board of Namibia Act, 1996||New Procurement Bill proposed in 2015||Article 15(5); “In comparing tenders, the Board shall give effect to the price preference policy of the Government to redress social, economic and educational imbalances in a democratic society and to encourage industrial and commercial interests in Namibia.”|
-Proposed New Public Procurement Bill, 2013(84-88). Section 85(3)(a, b) articulate the promotion of empowerment for women following the provisions of the Namibian Constitution.
|Ethiopia||The Ethiopian Federal Government Procurement and Property Administration Proclamation, 2009||–||Non-discrimination on the bases of nationality, race or other criterion.|
Article 4(2009) “provisions of this Proclamation set out in masculine gender shall also apply in the feminine”
Article 25(1)(2), directives on preferential schemes are the preview of the Minister who may specify the margin allowed for nationals, SMEs, an local goods, services or companies.
-The Ethiopian Federal Government Procurement Directive, 2010 (4):“No candidate shall be discriminated or excluded from participating in public procurement on the ground of nationality or other reasons which are not related to the evaluation criteria except in accordance with the rule of preference provided in the proclamation.”
|Central Afr. Rep||Code des marchés publics, 2008||–||Article 26 preferences reserved in subcontracting schemes for local communities and businesses (15%) and ECCAS enterprises (10%).|
|Gabon||Code des marchés publics, 2002||Code des marchés publics, 2012||Article 90 (2012) SMEs, companies/citizen or residents of ECCAS and local communities/businesses are eligible for preferential treatment. 10% for works, 15% preference margin for goods.|
Article 93 (2012) a foreign company that subcontracts at least 30% of the total value of a contract to local communities may be eligible for a preferential award.
|Liberia||Public Procurement and Concessions Act, 2005||Public Procurement and Concessions Act, amended 2010||Article 45 (2005) A margin of preference applies to manufactured goods, material or labor derived from Liberia. Amended as: “the Commissioners shall by regulation set or adjust the minimum benchmarks for the application of the Margin of Preference as it may deem necessary” Article 45(3)(2010).|
99 (2005, 2010) applicable to concessions.
|Malawi||Public Procurement Act, 2003||–||Article 28(1)(2), SMEs promotion; no specific preferential language. “It is the policy of the government to provide maximum opportunities for small medium-sized enterprises to participate as suppliers, contractors, consultants and subcontractors in public procurement” (Article 28(1))|
|Mauritius||Public Procurement Act, 2006||Public Procurement Regulations 2008-2009)|
Public Procurement Act, amended 2014
|Section 16 (1)(2) (2014) domestic or regional goods are eligible for preferential treatment|
*Regulations Article 35 (1)(2) amended as per G.N. no. 86 of 2009)
|Zambia||Public Procurement Act, 2008||–||Article 63 (1)(a)(b) margin of preference for target groups (unspecified) offering goods, works or services.|
Article 63(2) (e) preference or reservation schemes may include “enterprises owned by women”
Article 63 (5). Where margin of preference is granted, distinction is made between citizen and local suppliers.
|Nigeria||Public Procurement Act, 2007||NO||“Margin of preferences only applies tender under international competitive bidding” section 34(3).|
“The Bureau shall by regulation from time to time set the limits and the formulae for the computation of margins of preference and determine the contents of good manufactured locally” section 34(4).
*Regulations 2007 Schedule 2 only recognizes preferences for goods and for domestic contractors without further specification.
|Uganda||Public Procurement and Disposal of Assets Act, 2003||Public Procurement Act, Amended &|
|-PPDA, 2003(50). May apply national preferences or reservation.|
-PPDA Regulations 2014. Preferences apply to manufactured goods and reservation to particular sector of geographic areas.
*Local Govt. Act (2001): “At least one tender member ought to be a woman/person with disability.”
|Kenya||Public Procurement and Disposal Act, 2005||Amendment debated in 2014||-Section 39 (4): “Preferences and reservations apply to, candidates such as disadvantage groups, micro, small, and medium enterprises.”|
*PPDA (Preference and Reservations) Regulations, 2011. Legal Notice No. 58 (2): “A disadvantaged group means…and includes enterprises owned by women, the youth and persons with disabilities.”
-PPDA (no. 3 of 2005) Legal Notice no. 114(31)(1) June 18, 2013. “A procuring entity shall allocate at least thirty percent of its procurement spend for the purposes of procuring goods, works and services from micro and small enterprises owned by youth and persons with disability.”
|Sierra Leone||Public Procurement Act, 2004||Regulations 2006||PPA 2004 (36) and Regulations, 2006 (74) on domestic preferences: “The percentage of preference in schemes issued by the NPPA shall be between five and ten percent. The NPPA may review these percentages periodically.”|
|Cameroon||Code des marchés publics, 2004||Article 32: national preference 10% for works and 15 % for goods.|
Table 1: National preferential schemes and gender equality in Africa (Nyeck 2015)
Three important features emerge from a comparative reading of revised or amended public procurement laws and regulations in Africa.
Firstly, nowhere except South Africa are women included as a social category in primary national public procurement legislations and a gender-based justification of women’s inclusion as a social category is not provided anywhere. To illustrate, in Kenya and Zambia, women appear as a “preferential category” but without spelling out a comprehensive justification in terms of the economic and social benefits of gender equality in public procurement. Nigeria makes provision for some preferential schemes without mentioning gender, and its Bureau of Public Procurement is yet to specify how preferences are calculated or the eligibility of women as entrepreneurs for public contracts, almost ten years after the adoption of the new procurement law.
Secondly, national legislation and policies have yet to take into account women as producers and receivers of publicly procured works, goods and services. In Rwanda, the margin of preference is ten percent and still, there is no clear language about women. In Ethiopia, gender equality appears literally in form only. Cameroon, Central African Republic and Sierra Leone have adopted quotas with preferences or reservations schemes, or both, but without mentioning women. Senegal created a National Observatory of Gender Equality in 2011, yet the words gender, women, or parity are not found in public procurement regulations. Malawi, Mauritius, Namibia and Liberia place a premium on price preference, local goods and regional benchmarks without a specific articulation of the gendered implications of this prioritization in public procurement.
One implication of this situation is the uneven implementation of gender policies in national public procurement laws. Furthermore, absence of a comprehensive approach to gender equality that takes into account the producer and consumer roles of women has the potential to polarize the entrepreneurs and rights-based advocates for inclusive development. This is owing to the fact that while many African countries have reformed procurement laws in 1990s, they invariably rely on non-elected expert regulatory bodies to determine the scope and eligibility of various groups for preferential schemes. This situation means that, at all levels, gender concerns have to be mediated through institutions with significant discretionary power. This does not make life easier for women entrepreneurs or users of public works, goods, and services.
Thirdly, there is a danger that language about gender in public procurement may become a matter of political presentation only, without sufficient attention given to substantive inequality. In Uganda, for instance, the logic of empowerment as political representation of women trumps substantive economic inclusion at the local level. Women’s representation in local government tender boards is laudable, but there is no comparable policy that guides the implementation phase in the delivery of goods and services, especially when servicing vulnerable groups.
In sum, the data in table 1 above show that, while the movement toward liberalization through procurement law reform is sweeping, procedures to assess accurate and efficient integration of gender equality concerns in Africa are not. Regardless of their position on gender equality and inclusivity in public procurement, no country is reporting gender-based data in Africa. The good news, however, is that much of this omission could be attributed to (1) the lack of sustained policy-oriented research, and (2) the quasi-absence of local community advocacy to guide public procurement reform in Africa. To move toward a more inclusive and gender-sensitive public procurement policy in Africa, critical steps need to be taken. For instance:
- Public procurement institutions should be structured in ways that enable their own transformation toward gender-sensitive practices.
- Gender equality promotion in public procurement should be clarified in national legislation and not left to the discretion of decentralized, unaccountable agencies.
- Greater efforts should be made to create a synergy of interests between women as entrepreneurs or workers within the supply chains, and women as consumers of public works, goods and services. Civil society should play a critical role in developing proposals to support substantive gender issues to policymakers.
- Research should avoid dogmatic approaches and document what works, for whom, and who is being left behind, as core public functions are increasingly being outsourced to the private sector in Africa. More evidence-based research is needed to appreciate the potential benefits or harm of public procurement reform on gender equality in Africa.
Amsterdam Research Center for Gender and Sexuality University of Amsterdam, and at the Intersectional Center for Inclusion & Social Justice, Canterbury Christ Church University, UK. She is the editor of Public Procurement Reform and Governance in Africa (Palgrave-Macmillan, 2016). This is a revised and shortened version of the article “(Out)Bidding Women: Public Procurement Reform and Gender Equality in Africa, Wagadu Vol. 14, 2015.