KENYA
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MPs reject bill aimed at curtailing university autonomy

Kenya’s parliament has rejected a legal framework that would have given the cabinet secretary for education sweeping powers in the appointment of vice-chancellors, deputy vice-chancellors, principals of university constituent colleges and members of university councils in public universities.

If the members of parliament, or MPs, had assented to the Universities Amendment Bill 2021, the cabinet secretary would have acquired the authority to revoke appointments, transfer or sack such office bearers and even set aside decisions of senates and university councils.

In order to achieve that objective, the cabinet secretary would have acquired powers to appoint and control selection panels for the appointment of the top university officials.

In total, the bill had 20 amendments which, according to MP Amos Kimunya, the leader of the majority Jubilee Party in parliament, were meant to improve governance in higher education.

But MPs who were debating the bill on its third reading on 7 June argued that the amendments were unconstitutional as there had been no public participation on those issues.

“We are aware that other stakeholders in higher education were not consulted,” said Kimani Ichung’wah, another MP.

A matter of ‘great public interest’

Many MPs were opposed to suggestions to restructure the Universities Fund, a facility that was established to raise funds for public universities and to start providing resources to private universities that admitted government-sponsored students.

MPs said it would be illegal to use public money to support for-profit private universities, as that would lead to defunding public universities that are currently in a financial crisis.

In his ruling, the speaker of the national assembly, Justin Muturi, concurred with the MPs and said the suggested amendments had failed to meet the threshold of the provisions of the Kenyan Constitution in terms of public participation in matters of great public interest. He said stakeholders in the higher education sector were not given an opportunity to express themselves on the proposed changes.

Is the government usurping universities’ powers?

The MPs had accused the government of plotting to change the law to enable it to control university councils by usurping some of their powers.

The issue is that the Universities Act No 42 of 2012, of which the changes were being sought, had provided unfettered powers to public university councils amid efforts to decentralise governance and management of universities.

Currently, a public university council has the authority to employ staff and to approve university statutes, budgets and, above all, recommend to the cabinet secretary the appointment of the vice- chancellor, deputy vice-chancellors and principals of constituent colleges through a competitive process, and cabinet secretary has no power to reject the council’s recommendations.

But, in October last year, Professor George Magoha, the cabinet secretary for education, told parliament that he wanted additional powers to enable him to run universities properly.

University autonomy in jeopardy

“University councils in public universities have been raising tuition fees, restructuring staff and reorganising departments without consulting me,” said Magoha.

He faulted the University of Nairobi for raising tuition fees, a move that was quickly followed by other public universities, resulting in a public outcry and student protests.

“The proposed Universities Amendment Bill 2021 will allow the cabinet secretary for education to take appropriate action to ensure proper governance in these academic institutions,” said Magoha.

By then, the move to interfere with powers of university councils was opposed by the chairman of the vice-chancellors’ committee, Professor Geoffrey Muluvi.

“Should parliament pass the proposed law, the autonomy and oversight authority of the university councils vested by the respective charters will be in jeopardy,” said Muluvi.

But the government went ahead to suggest the amendments without holding consultations with other higher education stakeholders that would have included members of the university councils, vice-chancellors, staff unions, employers’ representatives and professional bodies.

Faulting the proposals, MP Gitonga Murugara said that, without proper safeguards, members of university councils will be dancing to the tune of the cabinet secretary for education.

But the far-reaching reforms that the government wants goes beyond the sheer appointment of the top university cadres or chipping away powers of university councils.

In their entirety, the proposed amendments were meant to turn over control of bodies that are involved in university education management and governance to the cabinet secretary.

For instance, whereas the existing legal framework had provided powers to promote university education in the country to the Commission for University Education, or CUE, if the bill had sailed through, most of those powers would have shifted to the cabinet secretary for education.

The CUE could also have lost authority to license private universities as those powers could have shifted directly to the cabinet secretary for education.

Call to return to drawing board

Although Muturi urged the committee that drafted the reforms to go back and incorporate inputs from other higher education stakeholders, that is not likely to happen in the foreseeable future as the bill was being debated just two days before dissolution of the current parliament, prior to the general elections that will be held on 9 August.

Still, with the declining fortunes of the Jubilee Party as the dominant party in the country and with President Uhuru Kenyatta heading for retirement in the next few months, it is not clear as to whether the next president will be pushing for the proposed radical reforms in higher education.

But, even more pertinent, no matter who becomes the next president – whether Raila Amolo Odinga or Dr William Ruto – there is no indication that either of them would have Magoha in the cabinet; his vision of being a higher education reformer is up in flames, at least for now.