In the understanding of this Court, a normal closure of an education institution, as in the sense of a holiday, is the recession that follows completion of learners’ examinations as per scheduled on the guiding tool called ‘academic calendar’. Any sudden closure that comes before the writing of exams, and ahead of, or excessively beyond, a purported closure date, is abnormal.
Chancellor College (hereinafter to be referred to as Chanco), the constituent college of the University of Malawi (hereinafter to be referred to as Unima), was abnormally closed in the end of the year 2016.
The Academic Staff Union of the college, the CCASU (read as Chancellor College Academic Staff Union) embarked on a strike aimed at forcing the Unima Council to resolve salary disparities among staff of similar grades in the four constituent colleges of Unima, namely Chanco, The Malawi Polytechnic, Kamuzu College of Nursing (KCN) and the College of Medicine (CoM). In particular, the CCASU was demanding a 40 percent salary increment (to achieve the sought balance).
Citing unfavourable economic climate of the country, the Council could not meet the demands as expected by CCASU. This generated a serious standoff which prompted the Counsel to suspend business at the institution, demanding students to pack and go. The college was unceremoniously closed.
The Students’ Union of Chanco, led a students’ demonstration during which they petitioned the State President, Professor Arthur Peter Mutharika, in his capacity as Chancellor of Unima, to consider re-opening Chanco. The petition prayed to the President to address the issues raised by the striking academic staff so they could lift their downed tools up for duties. The justification and validity of writing the President and Chancellor, will be understood later in this judgement.
Sustaining the voice of the students, members of the legislature echoed the matter in the Parliament. Standing on ‘matters of urgent public importance’ the opposition Member of Parliament representing Dowa Ngala, Elias Chakwera, asked Minister of Education, Science and Technology, Dr. Emmanuel Fabiano to explain to the House what his ministry was doing about the continued closure of Chanco. The honorable minister pushed the blame to the Ministry of Labour and Manpower Development, saying the college was failing to open because of labour-related matters.
In place of all the students suffering and pleas which were reiterated in the Parliament, none of the hair of the ultimate authority, the Head of State and Government, got moved. Several of months defining the history of this closure, it still remains unclear as to when the academic business at the college will resume.
Thus in this Court, we seek to examine the commitment of the Head of State and Government to resolve the issue and, in any case, recommend the way forward thereto. This Court reserves the right to follow extraordinary procedure capable of yielding and delivering extraordinary justice. Thus while other Courts out there cannot go beyond granting or rejecting a prayer and revolve within the limits of the applicable law relied in the case, this Kangaroo Court enjoys the freedom of manufacturing recommendations that will sit well with justice even if it means stretching the boundaries of the applicable law. This is to caution that this Court can, indeed, as a matter of necessity and pursuit of justice, incite such an action that may not fully enjoy recommendation of statute(s).
One of the purposes of law is to regulate and guide relations in a society. One of the ways it does so is by providing remedies and facilitating access to courts and other fora for the settlement of disputes. As supreme law, the Constitution protects basic rights. These include the rights to fair labour practices, right to education, and to just administrative action.
Relevant legislation (Acts) based on the Constitution are there to concretize and enhance the protection of these rights, inter alia, by providing for the speedy resolution of disputes in the workplace and by regulating administrative conduct to ensure fairness and safeguard to the right so underlined in education.
The right to education is directly guaranteed in Malawi’s Constitution, and Malawi is a party to the most important regional and international conventions protecting the right to education. Article 13 (f)(iii) of the Constitution of Malawi as falling under Chapter III, makes a call for access to education.
When institutions of learning are abnormally closed as such, the said access comes under serious threat. Actually, it becomes compromised. Thus in particular, this unwarranted abnormal closure of Chanco, which has been worsened by abnormally long period of inactions by the passive relevant authorities, translates into denying learners (and prospective learners) of the institution their access to education and this is frowned upon by Article 13 highlighted above.
By virtue of his being elected as President of the Republic, Mutharika is the Chancellor of Unima as per Section 13 (2) of the Unima Act. So true with other public universities (namely, Mzuni, Luanar and MUST) which are also established by their own Acts. The President who is also endowed with power to appoint chairman of the Council (see s.11 (1)(a) of the Unima Act), is the ultimate authority as far as administrative matters are concerned owing to his seat as the Chancellor thereto.
Indeed, s.13(1) places the Chancellor as the head of the University. He sits at the helm of the Council that is responsible for all management roles of the varsity including employment of staff and their welfare. Furthermore, the President, as Head of Government, sits at the helm of the Executive under which both the concerned two ministries of Labour and Education operate.
The Treasury which is responsible for disbursing funds, as approved in the legislature, also operates under his Executive authority. The scenario above testifies to the fact that if there is any ultimate authority that can solve the stalemate decried herein, is none other than the President himself.
Not for a moment does this Court doubt the lack of seriousness and/or interest in the office of the President in dealing with this academic stalemate. The President has openly demonstrated his lack of heart and political will towards the plight of Chanco, its learners, the protesting staff and, indeed, the entire education fabric in the country. To qualify this conclusion, by this Court, let us quickly consider the President’s misplaced willingness to deliver academic wisdom to learners and aspiring politicians at the Oxford University in the United Kingdom at a world-class conference reportedly organized by Oxford Union while leaving an assortment of academic problems back home.
Whether the Malawian leader has gone there to lecture to the “Oxifodians” on the ‘dangers of keeping universities open all the time’ or he has gone there seek solutions to the academic blackouts perpetuated by his leadership or lack thereof back in Malawi, is a confusion which only he explain.
Comfortably travelling to Oxford University to deliver a speech on any political governance issue, leaving behind a myriad of governance problems and a compromised education system where teachers in all public schools in the country are protesting delayed pay, is an act tantamount to spitting upon the plight of the citizenry. This Court frowns upon such act. In such move, there is no demonstration of reasonableness whatsoever. It is an ill wind that blows no good. As a lawyer, it is expected of the Malawi leader to be better calculated and tactful in his approach. Malawi’s leadership should have benefited from his legal insight. But alas! His manifested horizontal priorities and blatant abuse of discretionary powers in so many actions of his administration persuades this Court to support those who have lost and/or are losing hope in the learned President.
As to the position of this Court, it is not only desirable, but necessary, to see to it that Chanco opens its doors as soon as the word soon sounds. The President should, therefore, spring up to duty, not of travelling to other universities around the world to deliver empty speeches, but of struggling to uplift the local education standards, by among others, faithfully providing adequate and desirable management of our education system, so that, perhaps, we can at least be as half the quality of the universities where he is hearting to go.
The President, as a Chancellor, should endeavor to secure harmony and consistency in the academic calendar so as to give effect to the quality access to education to both the present and pending cohorts.
The habit of the President, of resorting to an iron fist as a means of showcasing his intolerance to strikes has overstayed its welcome. It, actually, is not only worrisome, but also undemocratic. It speaks of brawn in a case designed for brain. This Court is well-positioned to understand that indeed, at times, situations do evaporate from the hand, leaving the head of the authority smoked in confusion and devoid of immediate corrective solution.
Thus an order to close down the school may, in such circumstances, be understandable as the only prompt measure for as long as such suspension is opted for the purpose of securing a calm environment to allow the contemplation and search for the necessary solutions.
Having regard to this allowance of action, this Court is fortified in its view that, unless the aggravation of the situation necessarily require, that such a closure order be granted as to only operate on an interim basis of short duration and, as a general rule, in the aggravated circumstances, the orders must turn to the Courts to gain anointing and power of extension and that the stakeholders who are to be impacted by the same (in this case the learners) be heard before the Court could endorse such extension. Commensurate to any judicial rules of notice, the Courts will always desist from granting without notice on the other concerned party.
On the other note , sad in nature, sympathizers of the regime are on record to have expressed an understanding that it is the lecturers’ right, as employees, to claim for a better remuneration that answers to fairness and uniformity, BUT also advised them to observe the need to make sure that the academic calendar is not disturbed. How these sympathizers managed to claim sense without turning to the Ministry of Labour, for the purpose of urging it to look into the labour issues raised by the lecturers as government employees, is an art of mastered confusion that continues to surprise this Court. Having admitted the employment rights of the staff members, the logical expectation was, for the sympathizers, to call upon the Ministry of Labour to appear with solutions.
Reaching this far, it is the regarded view of this Court that, saying that Ministry of Education, Science and Technology; the Ministry of Labour and Manpower Development; and President are cut from the same cloth of failures and love-void hearts, would not be a statement of mockery. It would be a well-placed statement befitting these cold-hearted public administrators.
The fury in this Court is founded upon the consideration that the continued closure of Chanco, now greeted by yet another unwarranted closure of all other public schools across the country, is distressing not only to the youths, but also to the parents who cannot wait any longer to see their wards graduate and start contribute towards uplifting their struggling families.
This Court is further mindful of the fact that others do have the wish to go for postgraduate studies but are delayed with the closure of the college. Affording a smile to this sad scenario would be an act of alien bravery, which this Court denies to attempt.
This Court therefore, wishes to remind the President that he, on May 31, 2014, took an oath that he would preserve and protect the Constitution of the Republic of Malawi. Included in that Constitution is the right to education and fair administrative practice. Attached to this Constitution is Labour Relations Act that requires his administration to respond to the demands of the public employees. Attached to this Constitution is the Unima Act which portions responsibilities to him as a Chancellor. Attached to this Constitution is the Education Act which define his roles towards the administration of the education sector in the country. He must shift from protecting interests of his person and his party to protecting the interests of the Constitution.
A plea is hereby extended to the general public to stop smiling at the mediocrity being displayed by this administration. The lukewarm approach that this administration has taken on this and many other issues has not only overstayed its term, but also reached iritating levels and it must be demonstrated as such. This national tragedy must be denounced!
Pronounced in this Kangaroo Court, on this 9th Day of June, 2017 in this extraordinary sitting by:
Lord Denning is a Facebook username for Negracious Justin. A Diploma Law Student at Chancellor College.
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