South African higher education needs an audit of university regulations and a free speech code to thwart creeping infringements of academic freedom that hark back to apartheid, says Freedom of Expression Institute (FXI) director Jane Duncan. She warns that laws and rules, and interventionist and disciplinary trends, are undermining democracy.
Several disciplinary cases in the past few years suggest that the university community is becoming increasingly divided over what can and cannot be said in university contexts, Duncan says. They indicate “a growing disciplinary culture in universities” and a “systemic shift in the academic freedom climate. We should be very concerned”.
The Council on Higher Education, a statutory advisory body, is conducting a major investigation into university autonomy, academic freedom and accountability. Four research papers have been produced, informing lively debates within a task team that will publish a report later this year, says one of its members, political scientist Professor Steven Friedman.
In a Harold Wolpe Memorial Lecture delivered last year titled, “The rise of the disciplinary university”, Duncan outlines recent academic freedom-related cases at four universities:
Tshwane University of Technology charged administrative staff member Moses Peo with the apartheid-era offence of ‘immorality’ for allegedly distributing an e-mail containing sexually explicit photographs to friends – even though immorality is no longer recognised as a ground for publications control. Peo was a key figure in a union that was about to hold a strike.
At the University of Fort Hare, law lecturer Dieter Welz was disciplined for criticising management at conferences and in lectures, conversations, e-mails and the media. Welz said he did this because the university’s huge administrative problems made it a good example of how not to practice administrative law.
His and another Fort Hare disciplinary case landed up in the Commission for Conciliation, Mediation and Arbitration but have since been sent to court because they were based on conditions of service dating back to 1971, which could now be unconstitutional.
“Fort Hare is in a real legal pickle,” says Duncan.
In a case now before the commission – one of three worrying instances at the University of KwaZulu-Natal – academic Fazel Khan was dismissed for allegedly leaking confidential information to the media. He was accused of lying about why he was left out of an article and photograph in an in-house publication, about a film in which he had played a key role. Khan claimed the university played a role in his exclusion in retaliation for his role in a strike.
Although Khan was unable to prove the accuracy of his statements, Duncan says there was enough evidence to make it reasonable for him to have believed they were true. In any case, false statements are constitutionally protected: “This is an academic freedom issue.”
The freedom of students also needs to be examined, especially at the University of the Witwatersrand (Wits). Students there were charged with bringing the institution into disrepute after they criticised lack of freedom of expression on campus, in the media.
Student societies at Wits have been made to “jump through hoops” to express themselves, often having to submit posters and leaflets to the SRC and dean of students. Banners have been vetted by council members before protests begin. Wits also forbids groups with opposing ideologies from staging activities on the same day, a rule dating back to the 1980s.
When the FXI met with the university, Duncan told University World News, representatives admitted their rules had not been considered in light of South Africa’s new constitution. “The university reviewed its big laws but not the small rules that regulate how it operates, many of which date back to apartheid and have an imprint of control and a ‘nanny state’ approach to free expression,” she says.
Duncan suggests two main actions to support academic freedom in South Africa. The first is an “audit of all subsidiary legislation at university level”. It should, she says, cover conditions of service, rules governing student activities on campus and all rules and by-laws impacting on academic freedom. “The purpose is to test their constitutionality.”
Recently the FXI made a submission to the higher education council, requesting that its upcoming autonomy report endorse the idea of an audit, to be undertaken by the FXI.
Second, she suggests a freedom of expression code for higher education, similar to that of the American Association of University Professors. Aside from free speech, it suggests that institutions invoke measures that penalise conduct and behaviour, rather than speech. The FXI has had discussions with academics in several institutions and, Duncan says, there are moves to create a professional association interested in academic freedom.
Debate leading to a code should provoke academics and students to “challenge one another’s assumptions about what constitutes acceptable and unacceptable speech”, she says. “It is important that these standards are defined by knowledge workers, and not managers, as is the case at the moment.”
There also needs to be debate on “the pros and cons of establishing an academic self-regulatory structure that could adjudicate on violations of the code, and impose sanctions including censure of institutions or individuals for failing to adhere to principles of academic freedom. This body would effectively become the Press Ombudsman of academia”.
Duncan outlines macro-trends behind a disciplinary shift in the climate on campuses. First, a rise in labour cases relating to freedom of expression of university staff which she says mirrors the upward trend in freedom of expression-related labour cases generally. These flow from a corporate managerial restructuring of labour that intensified in the late 1990s.
Second, globalisation pressures and declining budgets have pushed universities towards corporatisation and the need to attract private funding which has compromised important areas of research. Also, when a university is corporatised it becomes a ‘brand’ and power is ‘sucked’ to the top and often centralised in the vice-chancellor.
Criticism of management amounts to criticism of the university and is punished through disciplinary measures that place reputation above free expression. The senate becomes marginalised and the disciplinary process is taken out of the hands of academics.
Third, state steering of higher education has brought pressure to bear on academic freedom. Since 2001, the Ministry of Education has adopted a more interventionist policy that requires universities to increase research outputs, encourage innovation and increase enrolments in business, commerce, science, engineering and technology, and career-orientated courses.
Steven Friedman, a visiting Rhodes University professor, told University World News that along with a new quality control system, increased state intervention had prompted academics and managers to complain of infringements on their autonomy:
“Some have even said, though I do not agree, that there is more intervention now than there was under apartheid. While there is no pressure to toe a political line, universities feel that the government is telling them how to run their affairs and that requirements like quality assurance are burdensome and distracting them from academic work.”
Finally, says Duncan, post-9-11 neo-conservatism is impacting on academic free speech.
Draconian electronic communications policies ban “huge swathes of internet content” using a post-9-11 law, the Regulation of Interception of Communications Act as justification.
Despite its “sheer stupidity”, some universities have based draft communications policies on the act. She also warns of the potential impact of a Film and Publications Amendment Bill which could require academics to have some publications vetted by the state.
Academics, Duncan says, are not taking academic freedom infringements seriously enough. It is time for them, students and society to debate the issue: “It is time to codify these matters, given that state, commercial and managerial forces have clearly been writing their own code for some time now, and are now starting to implement it, whether we like it or not.”
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