Post-1994 situation

Chapter 3: Academic freedom – the South African debates

3. Post-1994 situation

The Bill of Rights in the South African Constitution, 1996, lists “academic freedom and freedom of scientific research” among the fundamental rights of SA citizens.²²³ The new democratic government elected in 1994 set out to reinvent South African society through far-reaching policy change in almost every area of life. With respect to higher education, a National Commission on Higher Education (NCHE) was in 1996 given the brief to examine higher education in its entirety and to suggest future directions for a completely reengineered system. A number of consultative processes were set up to inform the respective Green and White Papers on Higher Education,²²⁴ which led to the Higher Education Act being passed in 1997.²²⁵ These policy documents collectively form what I have here treated as the early phase of post-apartheid policy formulation in higher education, and together they provided for a remodelled higher education system using the following principles:

There would be a single higher education system. Whereas previously, so-called technikons and universities were subject to different funding and governance regimes, they were all to be brought under the same funding umbrella. The

222 John Higgins, “Academic freedom in the new South Africa”, boundary 2, 27 (1) 2000, pp.100-102.

223 The South African Constitution, Bill of Rights, 1996, 16 (1) d.

224 Green Paper on Higher Education Transformation, Pretoria, Department of Education, 1996; White Paper 3: A programme for the transformation of higher education, Pretoria, Department of Education, 1997.

225 Higher Education Act, Republic of South Africa, 1997.

differences between the groups of universities were to be lessened, and later this was to be brought about by a strategy of merging institutions, as well as the introduction of far-reaching equity legislation which required a change in the existing demographics of those institutions.

In terms of student enrolments, the system was set to grow to accommodate increasing demand for higher education and the increase in access to the whole population, with the greatest growth intended in the technikon sector, to right the inverted pyramid of the then higher education system in which a majority of students studied at universities.

In terms of curriculum, the intention was to grow the Science, Engineering and Technology (SET) fields, and to introduce more vocational-type courses in the humanities, for example, Media and Communications in the place of English.

Certainly, an articulation between university education and the world of work was sought in policy emanating from the Department of Labour that introduced a National Qualifications Framework, a common ladder of qualification registration with the intention for students to be able to transfer credits from learning in one domain to another, and to assist in their career-pathing. Educational offerings were also to be modularised, and specific outcomes-based programmes offered rather than generic degree courses.

The higher education system would be monitored and crises averted by the introduction of a permanent Council on Higher Education (CHE) which was to advise the minister on policy issues. In terms of quality, there was to be a buffer body between government and the universities to carry out quality assurance processes in higher education, the Higher Education Quality Committee (HEQC), a permanent sub-committee of the CHE.

A new funding regime was to be introduced that would emphasise institutional planning, and which would allocate funding according to performance rather than the retrospective block grants that then obtained.

Kraak notes that there were “five key pillars” of the new framework: “a single nationally coordinated system of HE [higher education]; increased access and raised participation rates; increased responsiveness to societal and economic needs;

programme differentiation and the development of institutional niche areas; and a

planning and coordination imperative.”²²⁶ In short, a new unified higher education system, catering for the needs of a newly democratised society, and redressing the ills of the apartheid system, was to be developed.

The emphasis in these early policy documents was on goals and challenges and higher education transformation needing to be achieved within “a social justice frame and following a cooperative process.”²²⁷ Additionally, academic freedom, as a constitutional right and understood as an “absence of outside interference, censure or obstacles in the pursuit and practice of academic work” was protected.²²⁸ Academic freedom is here understood as in Quadrants One and Three, as a negative right – that is the right to be free of constraints, although it is understood as a specific subset of the right to freedom of expression. Of importance here is the notion of governance advanced in the early policy documents, that is, of a social contract between all stakeholders, with higher education policies to be carried out within a political philosophy known as cooperative governance, a “South African variant … of a state supervision approach.”²²⁹ Within state supervision, institutions were to remain autonomous and to participate in a power-sharing model of governance in higher education. The NCHE understood this approach as “an attempt to combine, in a particular South African way, more democracy with more modern management.”²³⁰ As Cloete notes, the vision of cooperative governance put forward in the early policy documents is of “a form of state supervision that relied on a political mode of coordination based on the participation of diverse stakeholders within a hierarchical system of authority, and with formal constraints on the exercise of power.”²³¹

226 Andre Kraak, “The South African context: planning and legislation in higher education”, Pretoria HSRC, December 2001, p.2.

227 White Paper 3: A Programme for the Transformation of Higher Education, Pretoria, Department of Education, 1997, 1.13, 1.19.

228 Ibid. 1.23.

229 Ibid. p.177.

230 National Commission on Higher Education Report: A Framework for Transformation, Pretoria, NCHE, 1996, p.199.

231 Martin Hall and Ashley Symes, “South African higher education in the first decade of democracy: from cooperative governance to conditional autonomy”, Studies in Higher Education, 30 (2) 2005, p.202.

While institutional autonomy is writ large in the early policy documents, the White Paper of 1997 cautions that “institutional autonomy is … inextricably linked to the demands of public accountability”,²³² and this is a theme that recurs in all the later policy documents. While the central tenets of cooperative governance are repeated in the early policy documents, a number of policy studies suggest that in later policy formulation there is a gradual accumulation of powers to the state, to the extent that the early vision of cooperative governance has become somewhat undermined. In the first instance, the Higher Education Act of 1997 gave the Minister more extensive powers to establish a higher education institution, to “merge two or more public higher education institutions into a single public higher education institution”, or to close an institution after consultation with the Council on Higher Education.²³³ That same Act also required that up to five council members of each university be ministerial appointees, signifying a certain level of control over the institutions.²³⁴

In a narratology of higher education policy in South Africa post-1994, Winberg distinguishes a difference in the „narratives‟ of the early policy-making, that is, in the National Commission of Higher Education‟s Report of 1996 and the Education White Paper No. 3: A Programme for Higher Education Transformation of 1997, and later versions, that is the Higher Education Act of 1997 and its 1999, 2000 and 2001 amendments (this is, as she notes, the most amended piece of post-apartheid legislation), the Council on Higher Education‟s “Towards a New Higher Education Landscape: Meeting the equity, quality and social development imperatives of South Africa in the 21^st century”, 2000, and, in particular, the National Plan for Higher Education in South Africa, 2001. In a relatively short space of time, no more than five years, she argues that the discourse on the relationship of higher education and the state changed considerably.

232 White Paper 3: A Programme for the Transformation of Higher Education, Pretoria, Department of Education, 1997, 1.24.

233 Martin Hall and Ashley Symes, “South African higher education in the first decade of democracy: from cooperative governance to conditional autonomy”, Studies in Higher Education, 30 (2) 2005, p.204.

234 Ibid.

According to Winberg:

The story which „White Paper No. 3‟ tells, is one in which institutions that were fragmented, inefficient and elitist, become integrated, professionalized and democratised … The narrator‟s censure is reserved for the apartheid past; higher education is assumed to be a partner in the democratic state, and together they will realise the new vision and embark on the „exciting journey‟ towards transformation, reconstruction and development. The authorial voice of the earlier policy documents aligns itself with the interests of higher education, at times slipping into „us‟ and „we‟

and „our‟ pronouns: „the policy challenge is to ensure that we engage critically and creatively with the global imperatives as we determine our national and regional goals, priorities and responsibilities‟.²³⁵

In the early documents, higher education is seen as a partner in creating a new democratic order, and the values of democracy, academic freedom, freedom of speech and expression, creativity, scholarship and research are affirmed.

However, Winberg notes that the „story‟ changes in the later policy documents, as they move from outlining the general policy direction to an implementation phase. The National Plan for Higher Education of 2001 “brings to a close the first or preparatory planning phase, which began in 1998 with the submission of the first set of institutional three-year „rolling‟ plans. It signals the start of the second phase in which … the planning process and funding framework are aligned, and in which, specifically, the allocation of funds will be linked to the approval of institutional plans.”²³⁶ In the harder planning phase, according to Winberg, “the focus of transformation shifts. The universities are no longer perceived to be battling alongside the policy makers to transform society. The higher education institutions are themselves the problem. The heroes of the earlier policy documents now become villains.”²³⁷ Indeed, the National Plan comments on cooperative governance thus: “voluntarism has failed to encourage institutional collaboration” and

“policy has been undermined by the competitiveness of individual institutions”.²³⁸ A note

235 Christine Winberg, “Symbolic representations of the post-apartheid university”, Theoria: A Journal of Political Theory, 105, 2004, p.90. The quote is from the White Paper of 1997, Section 1.81.

236 National Plan for Higher Education, Department of Education, 2001, Section 1.6.

237 Christine Winberg, “Symbolic representations of the post-apartheid university”, Theoria: A Journal of Political Theory, 105, 2004, p.95.

238 National Plan for Higher Education, Department of Education, 2001, Sections 1.3, 6.4.

of censure has entered the discourse, as in “the Ministry will not however, allow institutional autonomy to be used as a weapon to prevent change and transformation”.²³⁹

This change was largely precipitated by the crisis in governance in many of the historically black institutions, by dubious entrepreneurial practices of some institutions, poor graduation rates and poor outputs altogether, as well as a change of Minister of Education.²⁴⁰ The CHE/HEIAAF Overview of Recent and Current Debates on Academic Freedom and Institutional Autonomy similarly argues that cracks began to appear in the consensus on cooperative governance and that “variously nuanced understandings of institutional autonomy began to emerge.”²⁴¹ That report notes that the amendments to the Higher Education Act arose in response to governance crises and mismanagement.

The 1999 Amendment allowed for the Minister to appoint an administrator for a troubled institution for six months, with a permissible extension of a further six months. In 2001, this was again amended to allow the Minister to appoint an administrator to take over the authority of the council or management of the institution for a period not exceeding two years. “In 2000, the Act was amended to require public institutions to secure council approval, and under certain circumstances, the Minister‟s concurrence, to enter into loan or overdraft agreements or to develop infrastructure.”²⁴² The Report notes that “concern arose within the higher education sector around these amendments because they were seen to set general limits upon the autonomy of all institutions, rather than to set particular limits according to the circumstances of particular institutions.”²⁴³

239National Plan for Higher Education, Department of Education, 2001, Section 1.5.

240 Nico Cloete, “Policy expectations”, in Cloete, N., Maassen, P. et al (eds), Transformation in Higher Education: Global Pressures, Local Realities, Dordrecht, Springer, 2006, p.62.

241 Overview on Recent and Current Debates in South African Higher Education: Academic Freedom, Institutional Autonomy and Public Accountability, Commissioned report to HEIAAF Task Team, Pretoria, CHE, October 2005, p.8.

242 Ibid.

243 Overview on Recent and Current Debates in South African Higher Education: Academic Freedom, Institutional Autonomy and Public Accountability, Commissioned report to HEIAAF Task Team, Pretoria, CHE, October 2005, p.8.

Apart from the increase in the Minister‟s powers to intervene directly in institutions, the National Plan sought to establish regulation in what had been seen as a policy implementation vacuum, in a way that “seemed to emphasise efficiency and responsiveness goals at the expense of democratisation, equity and redress goals.”²⁴⁴ Indeed, there is an increase in steering mechanisms such as new funding formulae that allow the Minister a large degree of latitude to change the definitions and values of all the framework‟s components and to significantly curtail autonomous choices on the part of institutions,²⁴⁵ a new enrolment planning framework, new quality assurance and accreditation requirements, control over an institution‟s programme and qualification mix, restructuring through mergers and incorporations and a proposed central applications process.

As Winberg notes, “the concept and practices of managerialism enter later policy texts as a means to meet the key challenges of effectiveness, efficiency and equity. For South African higher education this is a time of benchmarks, measurable and comparable outcomes, and quality audits.”²⁴⁶ She concludes, “in short, South African higher education is to cost the state less, and deliver more: academic staff are to do more work as teachers, researchers, community activists and administrators; they are to be monitored and evaluated, and made accountable upwards to management, downwards to students, and outwards to communities.”²⁴⁷

Hall and Symes similarly trace a difference in the early and later policy documents, noting that:

The defining trend in governance over the past decade has been a systematic increase in direct state control over higher education. For many, this has been counter to expectations. Many educational institutions had been focal points of opposition to the apartheid state through the 1970s and 1980s and many believed that the post 1994 higher education sector would be shaped around the model of the

244 Overview on Recent and Current Debates in South African Higher Education: Academic Freedom, Institutional Autonomy and Public Accountability, Commissioned report to HEIAAF Task Team, Pretoria, CHE, October 2005, p.9.

245 Ibid. p.10.

246 Christine Winberg, “Symbolic representations of the post-apartheid university”, Theoria: A Journal of Political Theory, 105, 2004, p.97.

247 Ibid.

liberal South African university, with a high degree of institutional autonomy (particularly in the use of funds and the determination of the curriculum) and a national Department of Education that would apply a light hand in steering the public higher education system.²⁴⁸

Indeed, Hall and Symes argue that these expectations were systematically eroded and the consensus on cooperative government undermined through a variety of policy measures. One such was the composition of the Council on Higher Education, originally conceived as a buffer body between the state and the institutions, which, under the Higher Education Act of 1997, was established as a body of ministerial appointees, albeit with advertised positions. Having outlined the policy changes, and noting the fading of idealism in the heat of political realities, Hall and Symes argue that “we have shown how, through a series of amendments to the legislation and a hardening of policy culminating in the 2001 National Plan for Higher Education, the state has asserted its right to be regarded as the primary and determining stakeholder in a way that was unanticipated by the National Commission.”²⁴⁹

It is in this policy context that I now examine some of the main debates on academic freedom and institutional autonomy in South African higher education.