University councils are ‘illegal’ and will be disbanded

Kenya’s Ministry of Education, Science and Technology is disbanding the councils of all public universities and their constituent colleges after a court ruled that the councils, as currently constituted, are in breach of the Universities Act and the country’s constitution.

The ministry is about to begin reconstituting the councils through an open and competitive process, as stipulated by the law.

The councils of 31 higher education institutions are affected, including at 22 universities and nine constituent university colleges.

The ruling

The decision follows a high court ruling that the councils were improperly constituted, in a case filed by Dr Joseph Mberia, a lecturer at Jomo Kenyatta University of Agriculture and Technology, on behalf of the Universities Academic Staff Union or UASU.

In a notice in daily papers on 16 January, signed by Education Cabinet Secretary Fred Matiang’i, the government said the court had found that councils, as presently constituted, contravened Section 3 of the Universities Act as well as Article 10 of the constitution, in regard to national values and principles of governance.

The decision had left the ministry with no option but to disband all councils in order to ensure compliance with the law.

“The Ministry of Education, Science and Technology notifies the serving members of all governing councils of public universities, members of the general public and all stakeholders of its intention to reconstitute governing councils of all public universities and constituent colleges,” the notice said.

“We wish to assure all stakeholders and the general public that the exercise will be carried out responsibly, and in an open and competitive manner.”

In the interim, the cabinet secretary said all operations in universities should continue uninterrupted in compliance with the ruling, which ordered that decisions made by existing councils in relation to the running of institutions should be adhered to.

Going forward

The ministry will reconstitute councils one after the other and in a systematic manner, to avoid disruption, and existing councils will continue to hold office until new ones are appointed and sworn in.

The first council to be disbanded is that of the University of Nairobi, followed by its constituent Embu University College. The two will have new governing bodies by the end of February after the cabinet secretary, in the same notice, asked interested candidates to send applications to his ministry by 28 January.

According to the Universities Act, councils should consist of nine members including a chair, principal secretaries in the ministries responsible for education and finance, five other members and the deputy vice-chancellor as an ex officio member.

The five members plus the chair are to be appointed by the education cabinet secretary, after sending applications and undergoing interviews. They must hold at least a masters degree from a recognised university and have a minimum of five years' experience in leadership, management or academia, according to the act. The chair must have a PhD from a recognised university.

Under law, governing councils are the most powerful bodies in universities and legally hold the power to hire staff, approve the statutes of the university and have them published in the Kenya Gazette, approve budgets and recommend for appointment (by the cabinet secretary) the vice-chancellor, deputy vice-chancellors and principals of constituent colleges through a competitive process.

In the past, education ministers through the president had powers to unilaterally appoint councils without consultation with anyone and using opaque or unknown criteria. Positions often went to the politically connected, and relatives or friends of government officials – a process certainly not based on merit.

This practice continued even after the Universities Act of 2012 and university regulations of 2014 came into force, compelling the academic union to take legal action.