“If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”
- Oliver Wendell Holmes, Jr., U.S. v. Schwimmer, 1928.
If there is one place where the matrix of freedoms should flourish, it should be at the university. As special kinds of small societies, universities are supposed to be a demonstration of what a nation aspires to be – a free society where freedom in all its manifestations thrives. This freedom is increasingly under threat in Ugandan universities.
Recent strange developments at Makerere University, one of the oldest and most prestigious universities in Africa, have left many baffled.
On the basis of frivolous allegations, three leaders of the Makerere Administrative Staff Association (MASA) and the Makerere University Academic Staff Association (MUASA) namely Mr. Bennet Magara, Mr. Joseph Kalema, and Dr. Deus M. Kamunyu were recently indefinitely suspended. At the time, the university staff association leaders were lawfully mobilizing other staff of the organization in industrial action.
This was not a fast.
On September 10, 2018, at least 8 students were suspended from the university by the Vice-Chancellor on accusations that they were engaging in ‘unsanctioned’ and ‘illegal demonstrations’. The University Chief Security Officer was further ordered to “commence criminal proceedings” against the students. Several other students received warning letters for posting critical comments on social media platforms.
The latest onslaught on civil liberties at Makerere University is premised on the University’s Students Regulations of 2015 and section 5.9 (b) of the Human Resources Manual of 2009. These regulations contain vague provisions and to an extent, contravene provisions of the Employment Act.
For example, clause 6 (1) (d) of the regulations grant the Vice Chancellor powers to ‘suspend a student’ or ‘to discipline him in any manner he thinks fit,’ including expulsion. There is no obligation to investigate or subject the student to a fair hearing before imposing the sanctions.
All he or she has to do, after reprimanding the student, is to ‘seek approval of his action at the next meeting of the University Disciplinary Committee.’ These are excessive powers in a pre-cautionary situation. It is further not clear how often the said disciplinary committee seats.
HR Manual contravenes the Employment Act
Under section 5.9(b), the Makerere University Human Resources Manual vests powers in the Vice Chancellor to suspend an employee on half pay for a period not exceeding 90 days during the inquiries.
This contravenes section 63 (2) of the Employment Act that requires such suspension not to exceed four weeks (28 days).
The enforcement of the impugned provisions threatens constitutional freedoms and leaves a trail of many deeply concerning questions.
Precautionary suspension – vs – punitive suspension: A case for reform
Developments at Makerere University further raise questions on suspensions of employees under Uganda’s labor law.
Under section 63 of the Employment Act, 2006, an employer has power to suspend an employee on half pay for up to four weeks during an inquiry.
The framing of the law, in its current form, fuses precautionary and punitive suspension – which violates labour rights of employees and the presumption of innocence.
Whereas it may be necessary for an employer to suspend an employee pending inquiries, the suspension must be precautionary, and on full pay. This is important to avoid unnecessary disruption of the life of the employee whilst still being considered innocent.
It is my considered opinion, therefore, that the Employment Act should be amended to provide for two types of suspensions – precautionary suspension and punitive / disciplinary suspension.
Precautionary suspension should apply for suspensions to allow time for inquiries whenever justified. Punitive suspension on the other hand should be reserved for employees who have been found guilty after a fair hearing. Procedure leading to precautionary suspension should also include an opportunity for an employee to be heard on whether or not the suspension should be confirmed.
Related concerns exist in other universities.
On December 12, 2018, Bugema University, a Ugandan Seventh-Day Adventist Church institution, issued a notice banning female students from wearing “miniskirts, earrings, necklaces, bangles, sleeveless and open tops, coloured nails, lipstick, trousers, and dresses above knee line” on campus. A student found with the items in the university is to face the university disciplinary committee for “serious action.” The orders have however been challenged in the High Court.
The issue of dressing in institutions of learning, especially in church-owned or sponsored institutions, is a matter being litigated in Kenya. After a local government prevailed over a school sponsored by Methodist Church of Kenya to allow Muslim students to wear hijab and white trousers in school, the Methodist church sued charging it amounted to discrimination and special treatment of Muslims.
In agreeing with the church, the High Court ruled that the decision to allow Muslim students to wear hijab and trousers was discriminatory, unlawful and unconstitutional.
On appeal, the Court of Appeal of Kenya in setting aside this High Court judgment found that it is discriminatory for a church-funded school to bar Muslim students from wearing their dressing. Although the Supreme Court of Kenya has since quashed the decision on technicalities, a fresh petition is expected to be lodged in the High Court.
Irungu Houghton, Amnesty International Kenya’s Executive Director observed;
“Students do not abandon their constitutional rights when they enter school, therefore their choices about their appearance… must be protected.”
In April 2016, Yasin Sentumbwe Munagomba and Simon Semugoma, law students at the Uganda Christian University (UCU) were expelled from the university for participating in a peaceful protest.
While quoting regulations 6 (v) and 8 (ii) of the 2015 – 2016 UCU Code of Conduct Handbook, the Vice Chancellor accused the duo of being masterminds of a demonstration against rise in tuition fees ‘without obtaining his approval and that of police’ and thereby damaging ‘the good image and name of the university’.
Yasin and Simon dragged the university to court and won.
In her judgment, Justice Margaret Mutonyi observed,
“their (Yasin and Simon) expulsion from the university was very high-handed, it aimed at destroying the future of their very own students and creating fear among the student community.”
The Islamic University in Uganda (IUIU) is also known for controversial suspensions and expulsion of students.
This simply has to stop. Many dreams are being shuttered for no justifiable reason.
Unfettered freedom to exercise freedoms, think the unthinkable, and to challenge the unchallengeable should be the norm, not the exception. At the university, that freedom is crucial for the marketplace of ideas where intellectualism and imagination flourish.
It is sad, for example, to see a university demanding approval or permission from the administration or police before students can hold a peaceful protest. It is sad to see students being suspended for expressing themselves on social media platforms. It is sad to see a university policing bodies and dressing of female students. We are better than this.
We need to examine the condition of free expression, peaceful dissent, academic freedom, mutual respect and tolerance at our universities before it is too late.