AMENDMENT BILL ON HIGHER EDUCATION LAWS IMPINGES INSTITUTIONAL AUTONOMY.

The ad-hoc amendments on the higher education and training laws bill have a serious potential of encroaching our universities and are in direct opposition to the supreme law of the Republic – the constitution. The ministry of higher education and training’s attempt to extend the minister’s role and intervention on public higher education institutions beyond the limitations imposed by the Higher Education Act currently can harm the academia. This is in view of the fact that universities are autonomous institutions that enjoy academic freedom.

For example the amendments include clauses which warrant the minister to appoint an administrator for “any other circumstances arising that may reveal financial or other maladministration of a serious administration or the serious of the effective functioning of the public higher education institution”.

Does this therefore mean that in a “circumstance” whereby disgruntled individuals or constituencies may level unsubstantiated allegations (irrespective of their validity) against the council or management of the university through anonymous letters for example, the minister would then have enough reasons to appoint an administrator?

What is also awkward with the amendments is the fact that justification for ministerial intervention in public higher education institutions goes far beyond financial mismanagement and dysfunctional governance structures.

The Council on Higher Education (CHE) opposes this more expressively in its submission to the portfolio committee of higher education on the amendment of the bill when it says that the clause “is broad, open-ended and does not specify what circumstances would justify the appointment of the administrator.” Not enough clarity has been provided to eloquently define what exactly “circumstances” is in this regard.

These amendments, if officially signed as an act by the president, could warrant autocratic and unlimited powers for the minister of higher education and training and this would unfortunately impinge institutional autonomy and academic freedom (which are enshrined in the bill of rights).

In Judge Johann Daffue's recent judgement in favour of CUT, he confirmed that "Universities in this country have a significant role to play and it is desirable that they enjoy their freedom and autonomy in their relationship with the state within the context of public accountability. The minister and his department must accept the autonomy of universities and should not be allowed to intervene in the affairs of a university unless the jurisdictional facts as set out in section 41A(1) have been shown to exist."

Again, if this becomes a law, university councils would be rendered ineffective hence some of the matters that they have to deal with would now be handled directly by the minister. As Justice Daffue mentioned in the case involving the CUT and the Minister of higher education and training that “one does not need a sledgehammer to kill a mosquito”. It is the prerogative of university councils to address matters that arise at a campus level (like the appointment and remuneration of vice-chancellors and principals for example) without any bullying or intimidation from the minister.

In its preamble, the higher education act 101 of 1997 puts particular emphasis on the fact that it is desirable to “respect and encourage democracy, academic freedom, freedom of speech and expression, creativity, scholarship and research”. I am of the view that should these amendments of the act go unopposed, then higher education in South Africa would be more politicised, less autonomous and interfered with. Therefore, the “respect” for academic freedom in particular would only be imaginary and absent.

South Africa’s community of academics and universities alike should join hands with the rest of South Africans to roundly reject these amendments hence they are unconstitutional.

The reason why the state has to be circumspect about interfering, intervening in, or controlling, universities is because one of the significant roles of universities in society is to pursue truth through conducting dispassionate enquiry. Academic freedom and institutional autonomy help to assure this. Without these guarantees, dispassionate enquiry becomes curtailed. Instead, universities may easily become obsequious mouthpieces of government. Through government fiat - no matter how subliminal - their research results may be forced to fit government's chosen narrative.

Fezile Sonkwane
SRC Academic Officer: Central University of Technology, Free State.