BILL WATCH 3/2022
[3rd February 2022]
The Amendment of State Universities Statutes Bill
This Bill [link] was published in the Gazette on the 7th January and will amend 13 Acts establishing institutions of higher learning [We shall refer to them collectively as universities because that is what all except one are called]. The amendments are set out in a Schedule to the Bill and are basically the same for each of the Acts concerned.
According to the Bill’s memorandum, the amendments aim at:
· aligning the university Acts with the Constitution and making their provisions more uniform,
· bringing the universities’ objectives into line with the Government’s education policy, with a focus on the production of goods and services,
· reducing the size of the university councils and making them more balanced in regard to gender and regional representation,
· altering the way senior university officers are appointed,
· introducing principles of good corporate governance, and
· streamlining their disciplinary procedures.
We shall go through this list starting with the amendments to be made to the universities’ objectives, and then shall deal with the important question of how far the Bill will align the university Acts with the Constitution, looking in particular at how far the Bill will enhance or diminish academic freedom.
Objectives of the Universities
The University of Zimbabwe Act, which is typical of most of the other Acts, sets out the University’s objectives in section 4. They are lofty:
“the advancement of knowledge, the diffusion and extension of arts, science and learning, the provision of higher education and research and … the nurturing of the intellectual, aesthetic, social and moral growth of the students at the University”.
The Bill will add “community service, innovation and industrialisation” to the list of what the University is expected to provide. Similar amendments are made to the other Acts, and that seems to be all the Bill is going to do to bring the universities’ objectives into line with government educational policy. It is probably enough, because the objectives are already so widely phrased that they can accommodate virtually any educational policy.
Whether the universities’ objectives should be brought into line with government policy is another matter, which we shall touch on later when we consider academic freedom.
Changes to the Institutions’ Councils
Section 11 of the UZ Act, which sets out the composition of the University’s council, is typical of the other university Acts. According to the section, the University is to be governed by a 63-member council consisting of:
· the Chancellor, the Vice-Chancellor and the Pro-Vice-Chancellors (the chief executive officers of the University),
· 16 members appointed by the Minister,
· another 10 members appointed by the Minister to represent various specified interest groups such as commerce, industry, agriculture and religious bodies,
· the president of the students’ union,
· three members elected by the university staff (all of whom have to be approved by the Vice-Chancellor),
· nine members of staff appointed by the University Senate, and
· one distinguished academic appointed by the council.
It is an enormous and unwieldy body but it represents a wide variety of interest groups. The Bill proposes to replace it with a council of between 10 and 20 members comprising:
· the Chancellor and Vice-Chancellor (but not the Pro-Vice-Chancellors)
· 10 Ministerial appointees
· two faculty members appointed by the Senate
· the President of the Students’ Union, and
· two members elected by the University workers’ committee.
Similar amendments are made to the other university Acts.
The new councils will have to have equal numbers of men and women and give fair representation to Zimbabwe’s regions. Members will serve a maximum of two four-year terms – at present they can be re-appointed or re-elected for an indefinite number of three-year terms.
Comment: The new smaller councils are likely to be more efficient than the present ones but will not have the same broad representation of interest groups. There is also a problem with the numbers. The new provisions to be inserted by the Bill state that the councils “shall consist of not less than ten … and not more than twenty … members”, but then go on to list 17 members. There is no explanation of how the extra three members are to be appointed or elected. Unless some provision is made for them, the councils can never have more than 17 members. Similarly, the councils can never have fewer than 17 members, so the mention of 10 as the minimum number of members is odd, to say the least.
Appointment of Senior Officers
The chief officers of the State universities are their Chancellors, Vice-Chancellors, Pro-Vice-Chancellors and Registrars:
· The President is the Chancellor of all the State universities, which means he nominally heads them all.
· The Vice-Chancellors are the universities’ chief executive officers. They are appointed by the Chancellor (i.e. the President) after consultation with the Minister and the university councils.
· The Pro-Vice-Chancellors are appointed variously by the Chancellor after consultation with the Minister or (in the case of UZ and Masvingo State University) by the university councils with the approval of the Minister.
· The Registrars, who perform the functions of corporate secretaries, are appointed by the university councils with the approval of the Minister.
All these officers are therefore either State officers (the President) or are appointed by a government officer or with the approval of a government officer.
The Bill proposes to extend the government’s control by requiring the universities’ bursars and librarians also to be appointed with the approval of the Minister.
Principles of Good Corporate Governance
Although one of the avowed purposes of the Bill is to bring the university Acts into line with principles of good corporate governance, the Bill does so expressly only once – by amending section 25 of the Pan-African Minerals University of Science and Technology Act to say that the conditions of service of university staff must comply with the Public Entities Corporate Governance Act.
Nonetheless, in a more general sense the Bill does introduce principles of good governance indirectly by:
· reducing the size of unwieldy university councils, to facilitate speedy decision-making,
· limiting the terms of office of council members to ensure a regular infusion of new talent, and
· reducing the influence of senior administrative staff members on the councils (by excluding Pro-Vice-Chancellors from membership).
In any event, once the Bill is enacted, all the provisions of the Public Entities Corporate Governance Act will apply to the State universities covered by the Bill. This is because a majority of members of the university councils will be appointed by the Minister, bringing the universities and their councils within the definitions of “public entity” and “statutory body” in section 2 of the Act.
According to the Bill’s memorandum, the Bill will “standardise university disciplinary procedures in order to remove cumbersome and costly procedures.”
It is not clear that the Bill does this. What it does do is:
· reduce the fines that may be imposed on errant students from level four (currently Z$10 000) to level three (currently Z$2 000),
· in regard to all the Acts other than the UZ Act, replace an existing requirement that student disciplinary committees must have a member who is a legal practitioner of at least five years’ standing with a new one requiring simply that one member must be a legal practitioner [In the UZ Act none of the committee members need be a legal practitioner at all].
Neither of these amendments can be said to remove “cumbersome and costly procedures”, unless it is regarded as cumbersome and costly to engage legal practitioners with five or more years’ experience to sit on disciplinary committees, when junior lawyers straight out of law school would be much cheaper.
Aligning Acts with Constitution: Gender and Regional Balance
The Bill will align the University Acts with the Constitution, in so far as the composition of their councils is concerned, by inserting provisions in all the Acts to the effect that councils must have equal numbers of men and women and must fairly represent all Zimbabwe’s regions. This will bring the Acts into conformity with sections 17 and 18 of the Constitution.
There are two points to be made here:
1. It is not clear what “fair representation of all Zimbabwe’s regions” means in relation to the councils of provincial universities. Must the council of Lupane State University, for example, have representatives from Manicaland or Masvingo?
2. These amendments will apply only to the universities’ councils, however: they will not apply to other university bodies such as the university senates, nor will they apply to the appointment of university staff. The Bill therefore does not go all the way in introducing principles of gender parity and fair regional representation.
Aligning Acts with the Constitution: Academic Freedom
Neither the Bill nor any of the university Acts mention academic freedom. This is a very serious omission.
Section 61 of the Constitution protects academic freedom as a fundamental human right under the general heading of freedom of expression:
“Every person has the right to freedom of expression, which includes—
(c) academic freedom.”
Academic freedom broadly means the freedom of members of universities and similar academic communities to research, study and teach what they consider to be appropriate. It has three inter-related aspects:
1. Freedom of the academic community to express themselves as enquirers after knowledge and truth in a manner consistent with professional standards of enquiry. It includes freedom to teach, to conduct research and to publish their views.
2. Institutional autonomy of the university, which entails a corresponding right and obligation on the university to protect the freedom of its academic staff. While universities are entitled to determine teaching standards, they must protect their staff against external pressures that seek to limit their freedom.
3. An obligation on the State to respect and protect academic freedom in both the other two aspects.
All universities are entitled to academic freedom, including those that are established by Act of Parliament (which all the universities covered by the Bill have been) and those that receive money from the State (all the universities subsist on government grants). Universities must account for funds they receive from the State, but the fact that they receive funding is not a justification for depriving them of their fundamental right to academic freedom in all the three aspects we listed above, in particular institutional autonomy.
The university Acts in their current form seriously limit the autonomy of the universities:
· Their Vice-Chancellors, their chief executive officers, are appointed by the President, and the university councils are merely consulted about the appointments – their consent is not required.
· The Minister must approve the appointment of the Pro-Vice-Chancellors and Registrars.
· Over half the members of the university councils are government appointees or appointed with the approval of a government appointee.
· The Minister is entitled to give general policy directives to the university councils.
· The Minister must approve any amendment of the universities’ statutes and the making of ordinances by the councils.
The Bill will alter none of this, but instead will increase the government’s control even further by requiring Ministerial approval for the appointment of university bursars (finance officers) and librarians.
The form of the Bill itself implies that the Government has little or no respect for academic freedom:
· The Bill expressly seeks to bring the universities’ objectives into line with the Government’s educational policy. This is likely to limit what the universities teach and how they teach it.
· The fact that virtually identical amendments are being made to all the university Acts suggests there may not have been much consultation with the universities about the contents of the Bill. Are we to believe that all 13 university councils came up with identical amendments to their Acts, or that all 13 were unanimous in approving the amendments?
The importance of academic freedom cannot be overemphasised. In the words of a famous American judge:
“Academic freedom … is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment [i.e. the amendment to the US Constitution corresponding to section 61 of our Constitution], which does not tolerate laws that cast a pall of orthodoxy over the classroom … The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, [rather] than through any kind of authoritative selection.”
By failing to entrench or even mention academic freedom in the university Acts, the Bill signally fails to align them with the Constitution.
As we have shown, the Bill does not wholly succeed in any of the objectives set out in its memorandum, and fails completely in what is perhaps the most important one, namely bringing the university Acts into conformity with the Constitution.
In all, it is a deeply flawed Bill.