New legislation is a blow to university autonomy

South Africa’s universities view their autonomy as sacrosanct, and so the decision by Higher Education and Training Minister Blade Nzimande to push through legal amendments that will allow him to intervene in university governance "at whim" has come as a severe blow.

Last month parliament voted in favour of the Higher Education and Training Laws Amendment Bill, and last week it was approved in the National Council of Provinces –- the final step ahead of becoming law.

The bill essentially simplifies the process by which the government can place struggling universities under administration and sanctions other kinds of government interventions.

But it has shocked the sector is that neither Higher Education South Africa (HESA), which represents the vice-chancellors of the country's 23 universities, nor the statutory advisory Council on Higher Education (CHE), were consulted on the amendments.

Both entities had made presentations to parliamentary bodies, arguing that the amendments would affect their autonomy.

It was, said HESA Chair and Durban University of Technology Vice-chancellor Ahmed Bawa, “extraordinarily disappointing" that they had not been consulted before the bill went to parliament – especially as the amendments were "devastating".

Threats to autonomy

In its written submission to the higher education and training portfolio committee, HESA Acting CEO Jeffrey Mabelebele said that if the bill was approved in its current form, the minister would have powers to establish national institutes for higher education with a wide-ranging mandate.

If the mandate, powers and functions were not clarified upfront in the act, there was the risk that their activities would encroach on the purposes and functions previously held by universities and science councils.

On 9 October, CHE Chief Executive Officer Ahmed Essop presented the council's submission on the amendment bill to the committee, stating that the substantive nature of the new amendments went "well beyond" the amendments originally introduced.

It now sought to address "perceived inadequacies" in the efficacy of the existing intervention mechanism, the independent assessor process, and the limits to the minister's powers to address governance and management challenges in higher education.

"Any amendments to rectify inadequacies – perceived or otherwise – should be preceded by a detailed analysis...[and] the absence of such an analysis results in ad hoc amendments to address perceived rather than real inadequacies," Ahmed said.

He proposed, given the substantive nature of the amendments and the implications they held for public higher education – specifically the balance between institutional autonomy and public accountability – that a broader consultative stakeholder process was necessary.

Particularly vital was that the CHE, in line with its statutory responsibilities, be afforded the opportunity to advise Nzimande on the amendments' merits and implications.

Bawa said the preamble to the Higher Education Act stated it was "desirable for higher education institutions to enjoy freedom and autonomy in their relationship with the state within the context of public accountability and the national need for advanced skills and scientific knowledge".

Consequently, HESA submitted that the proposed amendments were "contrary to the spirit and letter" of that preamble, and further consultation was essential.

As an indication of the value South African institutions place on autonomy, HESA Vice-chair and University of Cape Town Vice-chancellor Max Price recently told University World News that one of the strengths underlying the country's higher education system was that universities had "huge autonomy" from government and outside interference.

Only four or five of the University of Cape Town’s 30-strong council were government appointments, with the balance coming from other constituencies including internal representatives, students, alumni, convocation, donors and industry.

"There is no political interference or political say in the appointment of vice-chancellors. The universities have the right to set their own salaries, whereas in many other countries, salaries are set by the ministry...we have the right to determine our research and curricula agenda," he said.

He wholeheartedly believed it was "one of the core elements of success" for South Africa's leading institutions and that advice to any university system would be to strengthen that autonomy. While acknowledging that as a public institution, there had to be accountability, this did not have to come at the cost of autonomy.

Widespread concern

Two days after Bawa’s HESA presentation, the Department of Higher Education and Training responded to written and oral public submissions concerning the amendment bill, indicating that HESA had raised concerns about the new legislation.

The minutes from that meeting reveal that the CHE and the University of Pretoria also raised concerns that the grounds on which Nzimande could issue directives would impinge on institutional autonomy.

Now, with the legislation passed without further discussion or change, Bawa said the amendments were "not only unnecessary" but allowed Nzimande to intervene in university affairs "at whim". Clauses that higher education institutions and bodies deemed wide ranging or vague had remained in the final bill.

Free State Central University of Technology (CUT) Vice-chancellor Thandwa Mthembu echoed Bawa's sentiments that the bill gave Nzimande powers to control universities at will.

He said universities could now receive directives from the minister on "just about anything" and, coupled with the bill's clause that universities report quarterly rather than annually, university councils had been rendered redundant.

"The manner in which the minister is running the show seems to suggest we do not need councils anymore," he says.

In August CUT won a Bloemfontein High Court victory against Nzimande's appointment of an administrator, after the minister appointed an assessor to look into CUT affairs. The court found that the university council – not the minister – was responsible for appointing senior personnel and that neither the minister nor the department had the powers to terminate the employment of university staff.

Department denies disregarding input

However, Nzimande's spokesman, Vuyelwa Qinga, has disputed claims that the minister disregarded input from the educational bodies. She said the portfolio committee on education accepted the concerns HESA, the CHE and other institutions had raised and "amended the bill accordingly".

The department was "not aware that the CHE requested any further opportunity to advise the minister", she said, and dismissed allegations that the bill gave Nzimande new powers, saying it was not true that he wanted to control university governance.

Rather, the amendment had been introduced to ensure a minister-appointed independent assessor had the authority to do his or her job more effectively, something that did not currently apply.

"Institutional autonomy can never be an end in itself if you are a public institution subject to the national imperatives of a developmental state like ours and sustained through public funds," she said.