South Africa’s higher education system is highly regarded the world over. That reputation is driven by the constitutional and legislative environment that guarantees institutional autonomy and academic freedom, the transparency of the mechanisms for funding, the arrangements in place for appropriate accountability, the authority of the Council for Higher Education (CHE) and the SA Qualifications Authority in standards setting, and its role as an independent voice that advises the minister on any matter relating to higher education.
That is a remarkable achievement that our country can be justly proud of. But for that reputation to be sustained and deserved, there are some co-ordinate functions within the checks and balances system provided by the constitution.
First, ministers must exercise their executive functions within the law and the constitution, and must be accountable to Parliament. Second, public higher education institutions receive public funds to achieve the objectives set out in the Higher Education Act of 1997 and to advance the system of knowledge and research on the national agenda. For that, the Bill of Rights allows academic freedom, and the preamble to the Higher Education Act states that “higher education institutions must enjoy freedom and autonomy in their relationship with the state within the context of public accountability…”
The proposed amendments to the Higher Education Act by the Minister of Higher Education and Training, now before Parliament, threaten to upset that balance. What they do, rather as in apartheid-style legislating, is to give the minister open-ended and ill-defined powers to intervene in public higher education institutions well beyond the powers already available to him. No justification is being provided for this extraordinary intervention.
It is evident that the higher education system as a whole is not in crisis. Generally, highly-skilled and much-respected South Africans give of their time and expertise in the governance of higher education, often for token reward. Second, many higher education institutions have adopted the King governance principles, for example, in recognition of the fact that higher education institutions are multi-million rand operations and much depends on efficiency in management and governance, in clarity of definable objectives, and in their ability to respond to the expectations of a modern economy and a knowledge society.
It is therefore unprecedented that as many as four higher education institutions are either under investigation by an assessor or have a sitting administrator appointed by the minister. When the amendments were enacted in 2001, allowing the minister to act in cases of serious financial and other maladministration under then minister of education Kader Asmal, a warning was voiced that this might become a slippery slope towards discreditable control of public higher education by the state well beyond what was envisaged by the act.
Assurances were given that ministerial action in these matters would be slow and deliberate, would be circumscribed by the act and the constitution and would never be arbitrary, and would be directed only at addressing problems that threaten the functioning of higher education. The current amendments go well beyond what was envisaged. Besides, there is no evidence of widespread and chronic maladministration and breakdown in higher education.
Given the extent of corruption in the country, it is remarkable that higher education institutions in general have not been affected. In cases where such a breakdown has been evident, it would seem the Asmal amendments are capable of addressing the problems.
That system involves the appointment of an assessment panel bythe CHE. The duty of the council is to give advice to the minister “on any aspect of higher education”, which advice the minister must consider in his decision-making processes.
The administrator appointed as a result is not an employee of the government although appointed by the minister. He or she has power to “take over the authority of council or the management of the institution… and must perform such functions relating to governance or management on behalf of the institution…”
Clearly, the administrator is not an employee of the minister, nor is he accountable to the minister. He acts and performs his functions on behalf of the institution.
The Minister of Higher Education and Training, Blade Nzimande, now seems set to upset that carefully balanced apple-cart. He ought to listen more carefully to the CHE, and be slow to discard such advice. The chief executive of the CHE, Ahmed Essop, has made a careful and nuanced submission to Parliament stating that the proposed amendments go against the spirit of the CHE and may fall foul of the constitution, and go way beyond what is necessary to correct misgovernance in higher education institutions. There is no evidence that Higher Education SA, the representative body of higher education vice chancellors, was consulted.
We thus remain with a situation whereby the minister may well interfere in the day-to-day management and administration of universities on the perceived basis, for example, of discrimination, in councils and on the basis of imposing systems of governance. Lest we forget, higher education institutions are subjected to high levels of accountability, for good reason. They are entrusted with billions of rand in public funds, and the future of the youth of this country and its capacity to contribute to knowledge and thus shape the quality of the life of our nation.
But if universities are to be run and directed from Sol Plaatjie House, Soviet-style, then the very fabric of higher education system in the country is under threat.
One would have thought that the recent reversal in the matter of the Central University of Technology in Free State of Nzimande’s supposed substitution of the council by his own administrator would have given him cause for thought. But not so. Instead he seeks to give himself legislative powers to justify high-handed and arbitrary interventions in higher education in a manner that is not accountable.
It therefore surprises me that there is not more of an outcry about the proposed measures. The minister ought not to be allowed to transfer the problems of the ANC government with pervasive corruption and then judge higher education with such a jaundiced eye.
Higher education functions best only through the light, invisible hand of the state, and not by control and command, or by threats of pulling the purse strings.
- Barney Pityana is Emeritus Professor of Law at Unisa and honorary visiting professor, Allan Gray Centre for Ethics in Leadership, Rhodes University. This article was published on http://www.iol.co.za/sundayindependent