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AFRICA
Time for an African charter on academic freedom
The UNESCO Recommendation Concerning the Status of Higher Education Teaching Personnel was adopted by the Paris-based United Nations agency’s general conference in 1997, after a thorough process of consultation with academic and legal experts and international NGOs, in particular the International Labour Organization, or ILO.

The realisation of this goal marked a watershed moment in the evolution, consolidation and standardisation of the principles promoting academic freedom in the world.

The Recommendation obliges countries to “take all feasible steps” to apply the provisions spelled out, to give effect to the Recommendation’s principles. This implies an obligation to respect the commitments made in the document, though considered not legally binding.

An assessment of the level of compliance with the Recommendation in Europe, Australia, the United States and other jurisdictions indicates that the document has been honoured more in the breach than in its observance.

Having returned to an ethos of a democratic culture and a refinement of the role of the university in the globalisation era, it is time for Africa also to be assessed on the level of compliance with the UNESCO Recommendation.

This assessment is done based on four indicators identified in the Recommendation – institutional autonomy, institutional governance, individual rights and freedoms and tenure.

It is the first part of a comprehensive “Building Academic Freedom and Democracy in Africa” project, based at the University of Lincoln in the United Kingdom. The first part measures the health of academic freedom by reviewing the laws of each country.

The second part is currently underway and comprises an empirical survey of academics to discover any gaps between what laws say and what pertains on the ground. The survey is being conducted online in English here and in French here.

The turn of Africa

It is time to assess the health of academic freedom in Africa for a number of reasons.

In the post-Cold War era, most African states have re-embraced human rights and democracy, which at least on paper grants equal opportunities and respects democratic principles. Almost all African countries are now parties to the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

Africa has come up with some key human rights instruments of its own, the most prominent being the African Charter on Human and Peoples’ Rights, to which all states are parties.

Although not specifically guaranteed under the charter, the African Commission on Human and Peoples’ Rights, in a landmark ruling in the case of ‘Kenneth Good versus Botswana’, recognised academic freedom under the African Charter.

Furthermore, African states have undertaken significant innovations in their higher education systems – privatisation, internationalisation, harmonisation, massification, adoption of the entrepreneurial university concept etc.

Also, in the face of flagrant violations of academic freedom in the past, African scholars came up with two historical documents to protect and promote academic freedom, embodied in the Dar es Salaam Declaration on Academic Freedom and Social Responsibility of Academics, and the Kampala Declaration on Intellectual Freedom and Social Responsibility – both adopted before the UNESCO Recommendation.

Additionally, a number of African countries – such as Morocco, Algeria, Tunisia and other Francophone countries – have either joined the Bologna process or adopted similar Bologna processes of their own. One may also refer to efforts being made by the Association of African Universities and the African Union towards revitalising education.

Finally, for the first time in the history of African constitutional law development, ‘academic freedom’ has been enshrined in the constitutions of some of states. Currently there are 14 (25.45%) out of Africa’s 55 countries that have specific reference or give explicit recognition to ‘academic freedom’ in their constitutions.

For example, article 16(1) of the South African Constitution provides: “Everyone has the right to freedom of expression, which includes . . . (b) freedom to receive or impart information or ideas, (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.”

Apart from explicit recognition, eight (12.7%) countries have direct reference or recognition of academic freedom in their constitutions. This includes reference to constituent elements of academic freedom in the constitution. The rest, 34 (61.8%), have indirect reference only.

Data were gathered from the majority of Africa’s 55 countries on their constitutions and national legislation on academic freedom, institutional autonomy, institutional governance, and academic tenure.

It proved impossible to gather information on all the indicators for seven countries: Guinea-Bissau, Sahrawi Arab Democratic Republic, Sao Tome and Principe, Somalia, Sudan, Togo and Tunisia. For an extra four countries, the information was inadequate, meaning having less than three of the five indicators, and these countries were also excluded from the survey.

The work was limited to public universities for two reasons. First, the private university concept is a relatively recent phenomenon in Africa. Second, their numbers far outstrip those of public universities, and including them would have made the project too big for its limited time frame. Moreover, information on private universities is even more difficult to assess.

Institutional autonomy

Under institutional autonomy, we examined whether higher education institutions are set up with, among others, financial, administrative, pedagogical, proprietary and disciplinary autonomy and possess the right to sue and to be sued in their own capacity.

This also involves whether the head of state of a country doubles as the chancellor of the university and-or whether the appointment of vice-chancellors is done by or influenced in any way by the head of state or the governing authority.

None of the countries surveyed had specific reference to the protection of institutional autonomy in their constitutions. Respect for institutional autonomy was therefore referred from legislative enactments.

Of 43 countries surveyed, 13 – 30.2% – qualified as meeting full compliance in terms of providing institutional autonomy for higher education.

For example in Ghana, public universities are established as a body corporate with perpetual succession, with the right to sue and be sued. The chancellor is elected by an electoral college made up of an equal number of members from the university council and academic board.

The qualification of a chancellor is provided for in the constitution and sitting presidents are specifically barred from holding the office of chancellor or head of any university. Vice-chancellors are appointed by each university’s electoral college.

The majority of countries – 20 or 46.5% – met qualified compliance. In most of these cases, the laws setting up universities confer on them various forms of institutional autonomy. But this is often followed by other prescriptions that take away a good share of autonomy.

The survey revealed 10 countries (23.3%) where there is non-compliance.

In the Democratic Republic of Congo, for example, the rector is appointed by the country’s president on the proposal of the commissioner of state for higher education. Even so, the president can appoint any person he deems worthy as rector and can also appoint people to other key positions. The rector appoints deans, vice-deans and heads of departments, and ministerial regulations determine programmes, their duration and conditions for admissions.

Individual rights and freedoms

This indicator refers to the individual rights and freedoms of academics – or specific academic freedom in relation to teaching and research.

The indicators for determining compliance are the elements that the UNESCO Recommendation assigns to academic freedom for academics – teaching, research, freedom of expression about the institution, freedom from censorship and freedom of association.

This is in addition to “internationally recognised civil, political, social and cultural rights applicable to all citizens”. Academic freedom in this respect is with reference to one of the specific forms that come together to constitute broad or general academic freedom.

The level of compliance was determined by examining the legislative enactments of countries, and the statutes of some of their public universities to determine the extent to which these rights and freedoms are incorporated in those laws.

Complete information for this measure was found for 34 out of the 55 countries (61%). Of the 34 countries, 21 (61.7%) met the compliance test, one country met qualified compliance, and 12 (35.2%) were non-compliant.

Kenya is an example of a compliant state, with the University Act 2012 (No 42) section 29 providing for universities to preserve and promote academic freedom and providing for academic freedom for academic staff.

A non-compliant state was determined mainly by the fact that, although information was available, there was no reference to recognition of individual academic freedom. In Eritrea, there was even an indication in one document of non-recognition of academic freedom.

Institutional self-governance

The third indicator is self-governance and collegiality.

Paragraph 31 of the UNESCO Recommendation talks about two bodies – the governing council and academic board or senate. It calls for including academics in the council; and for academics to be in the majority in the senate. This element deals with democracy within the university system, in order to ensure accountability and enable academic freedom to flourish.

Hence this measure includes the internal processes and protocols which ensure the effective exercise and enjoyment of civil and political rights, such as the right to criticise and the right of participation, as well as the inclusion of broad issues over which academics could exercise critical review.

Also critical to determining the democratic structure of these bodies is representation of the national government in them and the extent to which its presence defers undue authority and therefore may derail the ability of the university to use these structures to ensure institutional autonomy.

The survey focused on the university council, being equivalent to the executive, and the senate, the legislature. Of course, the council is also reserved some legislative powers, or at least the power to propose issues for the senate to deliberate upon.

In the case of councils, it assessed whether control and representation are subject to the whims and caprices of the government and what decisions councils, as compared to government, can make for the university. It is also about the balance of representation of the university hierarchy, the academic staff association, government and the community.

Of the 55 countries, available information was collected for 35 – 63.6%. Of the 35 countries, 16 recorded compliance (61.7%), six (17.1%) had qualified compliance and 13 had non-compliance (37.2%).

Information on the senate was found for 36 countries – 61.8%. The survey revealed that 77.7% (28 countries) had compliance; 22.3% (eight countries) non-compliance and zero had qualified compliance.

Two out of the 36 countries surveyed had information on one of the institutions only, 13 had full compliance for both bodies and 13 met compliance for one body. South Africa is an example of a country that meets full compliance for both bodies.

Djibouti typified non-compliance: members of council are appointed by decree for three years and most represent the public service. In Rwanda, a prime minister’s order determines the organisation, functioning and responsibilities of the senate, and in Ethiopia, the university president determines who is appointed to senate.

Tenure

The last indicator is tenure. According to the UNESCO Recommendation, tenure refers to security of employment following rigorous evaluation, and dismissal of academics can only be on “professional grounds and in accordance with due process”.

There have been several instances of abuse of the right to work in various African countries, by governments and university management against academics as a means to silence them.

In recent times, violation of right to tenure takes more subtle forms such as bullying, ‘marriage and baby penalties’ imposed on women, reassignment to a new faculty or department or new teaching areas etc.

Information was gathered on the following, among others, whether: there is protection against arbitrary dismissal; there are procedures set up to be followed before dismissal or disciplinary sanctions are applied; there is recourse to appeal to a higher body or to a regular court; and the rights exist to form a union, to strike and engage in collective bargaining etc.

It is important to note that in most African countries, due to the continued dominant role of governments in financing education, lecturers are recognised as part of the civil service.

Perhaps for this reason, a significant number of African universities do not have protection of tenure in the laws establishing or regulating them. For this reason, the survey relies on the constitutional provisions on right to work or the country’s labour laws to determine if tenure is protected for academic staff.

Information was not available on eight out of the 55 countries (15%). Therefore assessment was done on 47 countries (85%).

Of these, 43 countries (91.5%) met the compliance standard based on their constitution protecting right to work, laws in the university statutes or labour codes. There was one case of qualified compliance (constituting 2.1%) and three cases (6.4%) of non-compliance.

Ghana is an example of compliance. For instance, appointments and promotions of academics is based on merit and fairness, there are university appeals boards to hear matters of breach of employment contracts, and there is recognition of employee rights to freedom of association and demonstration to protect economic and social interests.

Mauritania is an example of non-compliance. The board of directors of the university creates within it a disciplinary board and, if necessary, ad hoc committees. Some sanctions are imposed by the minister of higher education, or by joint order of ministers, based on a report of the chair of the board. Disciplinary action against a university president is reserved for the higher education minister.

Overall assessment

Due to the extremely difficult circumstances encountered in gathering data for this project, where information was gathered on less than three of the five indicators for a country, the data was considered not adequate to merit an assessment.

Using this yardstick, information – covering three to five of the indicators – was found for 44 countries, representing 80% of the total number of African countries.

The tally is broken into ‘free’ (for the countries that garnered between 75% to 100%), ‘partly free’ (50%-74%) and ‘not free’ (0%-49%).

The survey found nine countries (20.5%) to be ‘free’: Cape Verde, Ghana and South Africa (100%); Kenya (90%); Uganda (85%); Equatorial Guinea, Namibia and Seychelles (80%); and Rwanda (75%).

The largest conglomerate is found in the ‘partly free’ category – 20 countries, making up 45.5% of the total.

This is followed by the ‘not free’ category which is made up of 15 countries – Cameroon and Mauritania (45% each); with a score of 40% were Benin, Burundi, Cote d’Ivoire, Djibouti, Lesotho and Niger; with 30% were Botswana, Congo (Brazzaville), the Democratic Republic of Congo and Gabon; followed by Zambia (25%), Gambia (20%) and Eritrea on zero.

Conclusion and recommendations

The results show that while Africa has come a long way in restructuring its laws to accommodate academic freedom, most countries are lagging behind.

To enable countries to improve their laws and grant greater respect for academic freedom, external entities such as the Joint Committee of Experts on the Application of the Recommendations Concerning Teaching Personnel, or CEART – the body set up to monitor progress towards compliance with the UNESCO Recommendation and investigate allegations of non-observance — and the African Commission on Human and People’s Rights will need to scale up their activities.

For CEART, it is evident that the current schedule of a meeting every three years is woefully inadequate. Moreover, to be effective CEART needs to engage directly in more effective promotional activities and engagement with all relevant stakeholders.

Perhaps CEART can do a better job by creating two separate committees to monitor compliance with the 1966 Joint ILO/UNESCO Recommendation Concerning the Status of Teachers in schools, and the 1997 recommendation for academics in higher education institutions.

Further, the two committees should have regional sub-committees to take into account the cultural, political and developmental peculiarities which affect each region and to address them, taking into account existing region-specific instruments on academic freedom, such as the Kampala Declaration in the case of Africa.

Additionally, it is proposed that CEART sub-committees be given additional resources to enable them to meet twice a year, with the powers to also schedule special sessions to deal with emergency situations.

CEART should also set up a special rapporteur system, on thematic basis, to cover the four pillars of academic freedom – institutional autonomy, self-governance, individual rights and freedoms and tenure.

The mandate should be to, among others, gather information on violations of academic freedom, make recommendations on how to better promote and protect academic freedom as well as to transmit urgent appeals on alleged violations of academic freedom and undertake fact-finding visits.

Another function CEART should take upon itself is the task of delivering general comments in order to provide comprehensive interpretation of substantive provisions of the two UNESCO recommendations.

The African Commission on Human and Peoples’ Rights, or ACHPR, also has a role to play to ensure that academic freedom finds its rightful place among the list of rights provisions in the African Charter on Human and Peoples’ Rights.

The Commission’s Principles and Guidelines on the Implementation of the Economic, Social and Cultural Rights Guaranteed in the African Charter on Human and Peoples’ Rights gives room for the recognition of academic freedom, but not in the Declaration of Principles on Freedom of Expression in Africa.

This was in spite of the fact that at the time the Declaration came into existence in 2002, a number of African states had broken away from the past and began to give explicit recognition of academic freedom in their constitutions.

Probably on the basis of that narrow approach to the application of academic freedom, the Special Rapporteur on Freedom of Expression and Access to Information, established by the ACHPR in 2004, has shied away from making public interventions where violations of academic freedom have taken place in countries such as Malawi, Sudan and Egypt – even where they fall directly in the realm of freedom of expression.

It is therefore suggested that the African Commission reformulate the Declaration of Principles on Freedom of Expression in Africa to cover academic freedom and extend the mandate of the special rapporteur to specifically cover academic freedom issues, as it did in the case of ‘Good versus Botswana’.

Also, it would appear that the previous impetus towards protecting academic freedom provided by the Kampala and Dar es Salaam Declarations has been dissipated. Moreover, the historical circumstances that gave birth to them has changed dramatically.

In 1990, the transition to democracy had just been triggered and most African states were still in the throes of dictatorship – and the UNESCO Recommendation was seven years away from birth.

For this reason, it is perhaps now time for academics across Africa to start to consider drafting an African version of a Magna Charta Libertatis Academicae — similar to the American Association of University Professors statement on academic freedom, described as constituting a professional ‘common’ or customary law of academic freedom and tenure.

In the current socio-economic and political climates of many African states, such a task will prove to be daunting.

However, the costs of failing to protect this basic human right, as the remainder of nations across the globe use universities to create new ideas and intellectual properties essential to the growth of the knowledge economy, will be great for African universities and nation states.

Furthermore, this study reveals that the general absence of formal legal constraints on the abuse of academic freedom means that departmental customs, standards and mores – which have frequently been developed in response to the dearth of legal protection – may be of crucial significance in the day to day running of university departments, as they undertake teaching and research often despite unwelcome and unnecessary pressures from governments.

Future studies are needed for a more detailed analysis of academic freedom which takes into consideration Africa’s history and culture and level of development of university education.

It is equally important to move away from a de jure protection of academic freedom to a de facto one, which is underpinned by a university’s internal cultural norms and attitudes that shape the relationship between faculty and management.

* Dr Kwadwo Appiagyei-Atua is a Ghanaian and a research fellow at the University of Lincoln in the United Kingdom.

* This article has been extracted from a longer paper by Dr Kwadwo Appiagyei-Atua, titled “A Review of Academic Freedom in Africa – Through the prism of the 1997 IL0/UNESCO recommendation”. It is part of a comprehensive review of academic freedom in Africa under the Building Academic Freedom and Democracy in Africa project at the University of Lincoln, begun by Appiagyei-Atua as a European Union Marie Curie fellow.

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