The Higher
Education Act No 4 of 2013, as amended by the 2021 amendment, is the primary
piece of legislation that regulates the conduct of universities in Zambia.
Aside from making provision for the existence of a student affairs unit in the
office of the Dean, the need for universities to ensure quality education, and
the existence of a student union, the Act does not have a thorough legal
framework safeguarding the rights of students in Zambia. This article seeks to
emphasise why it is necessary that Zambia develop that framework.
The Duty of
Nations to Safeguard Student Rights
The concept
of student rights stems from two cardinal principles. The first principle is
that everyone is born with human rights. As stated in the preamble of the
Universal Declaration of Human Rights[1], all humans have certain
rights and freedoms that all nations are expected to protect. The second
principle is that states must put in measures to safeguard these rights. The preamble
of the UDHR calls on all states to, through “progressive measures” ensure that the
human rights of all peoples are recognised. The International Convention on
Civil and Political Rights (ICCPR), and the
International Convention on Economic, Social and Cultural Rights (IESCR) all
call upon nations to structure their laws in such a way that it safeguards the
rights promulgated in conventions[2]. In a comment by the UN on
the right to education contained in the UDHR, it was emphasised that upholding
the right to education requires the upholding of academic freedoms[3]. Thus, the right to
education (which higher learning institutions seek to promulgate) cannot be
realised without the rights of students being upheld. Paragraph 22 of the 1997
UNESCO Recommendation Concerning the Status of Higher Education Teaching Personnel
in Records of the General Conference[4] provides in summation that
universities have the duty to safeguard the human rights of students.
Zambia,
being a party conventions and has taken steps in its legal formulation to
safeguard the rights of citizens. This can be seen in the Children’s Code Act
(safeguarding the rights of children), the Employment Code Act, (which in part,
safeguards the rights of employees), the Persons’ with Disabilities Act (which safeguards
the rights of persons with disabilities) and many other Acts. However, Zambia
does not have legislation safeguarding student rights, leaving students
vulnerable to human rights violations. This shall be delved into more when the
Higher Education Act (the primary piece of legislation in Zambia on Higher
Education) is assessed.
Zambia’s
current legal framework concerning student rights
To start
with, it is necessary that the rights of all students are enshrined in the Bill
of Rights. It offers students the rights to life, freedom of expression,
freedom of assembly, protection from discrimination, among others. That being
the case, those rights have derogations. In each derogation clause of the Bill
of Rights, it starts off by stating, “Nothing shall not be considered contrary,
if a law makes provision for…” Thus, law is what defines the parameters of the
derogations of the rights. Furthermore, Acts of Parliament come in to
strengthen the rights contained in the Bill of Rights and provide further
protection.
As stated
earlier, the Act requires all higher learning institutions to offer quality
education, but aside from that, the Act is silent on the rights of students.
Though section 52 does allow for the Minister to pass a Statutory Instrument
speaking to the welfare and students, matters of rights should not be a matter
of policy, as policy can change from time to time. Having rights enshrined in
the Act would guide how policies are formulated.
Section 12(3)
of the Act, in summary provides that a higher learning institution may
determine how its affairs are run. Sections 25(2) (b) and (c), and 36(2) of the
Act outline the regulatory functions of the Council and the Senate
respectively. That said, there is no parameter that those policies must be in
line with. Thus, a higher learning institution may come up with policies that impede
on the rights of students but because the policy is within the derogations
outlined in the Bill of Rights, then nothing more can be done. Having a
provision for students’ rights in the Higher Education Act helps ensure that
the rights of students, as enshrined in the Constitution, and in international
law are safeguarded.
The Act
also establishes the Higher Education Authority in section 6 as the body that
regulates higher learning institutions for purposes of ensuring quality
education. The body has a number of regulations concerning universities,
however, enforceability becomes a challenge. The Act provides in section 41
that the Authority may close a private university if it fails to comply with
the provisions of the Act or it’s regulations. However, with a public
university, according to section 40, closure is within the jurisdiction of the
Minister. Given this and the fact that the Act does not clearly outline how
students can report their universities for not catering for their needs,
presents a major challenge in ensuring compliance, especially in public
universities.
It is a
known fact that student unions play a crucial role in advocating for the rights
of students, however, their ability in law is very limited. Section 27 of the
Third Schedule of the Act provides that there shall exist student unions and
their affairs shall be governed by their Constitution as prescribed. The
schedule is not specific on what is meant by “prescribed”. Furthermore, there
is a lack of clarity as to how independent the union is from university
management, given that section 26 of the third schedule states that the affairs
of students are overseen by the Student Affairs Unit. This lack of clarity
leads to massive limitations to how much advocacy a student union can embark on
for students.
As stated
earlier, the Act establishes the Council and the Senate. The president of the
student union and another representative have a sit in the Senate, per section 17(1)
(I) of the Second Schedule of the Act. However, that does not necessarily
entail that they have major influence in the decisions of management. As shall
be highlighted later on in this article, in South Africa, section 32 of the Higher
Education Act requires that student unions be consulted in the formulation of
disciplinary policies.
Now that
the defects of the Acts have been highlighted, let us look at what other
jurisdictions provide in relation to student rights.
Provision
of student rights in other jurisdictions
Europe
Europe, at
a broader scale has seen massive development of student rights. During the era
of the League of Nations, there developed an organisation known as Confédération
Internationale des Étudiants[5]. The body mainly
promoted interaction between students of different nations, but was not active
in terms of advocacy for legal reformation[6].
After the World War II, the was a growing census internationally to create a
legal framework that safeguards the rights of all peoples. This was seen in the
Universal Declaration of Human Rights, which among other things, enshrines the
right to assembly, conscience and expression (fundamental components of
academic freedom). The Declaration also enshrined the right to education. The
European Convention on Human Rights and Fundamental Freedoms[7]
obliges all European states to ensure fundamental freedoms such as freedom of
expression, association, and assembly are protected with minimum derogations. The
European Social Charter[8],
which is a treaty, provides in Article 8-9 provide for the right to education
at tertiary level and specifically, the right for students to receive
vocational training that will enable them to enter the work.
Apart from the general
human rights provisions covering Europe, it is also necessary to highlight the Budapest-Vienna
Declaration on the European Higher Education Area[9]. The
Declaration calls on European states to ensure that they provide quality
education to all students and ensure that academic freedoms are safeguarded[10].
Though this is a declaration, it brings to the fore how cardinal it is to
safeguard the rights of students in higher learning institutions.
The Students’ Rights
Charter and Romania
The European Students’
Union, a body established by students across Europe, was formulated in 1982,
with the goal of ensuring that students enjoy their rights as enshrined in the
European conventions already discussed[11].
The Union in 2008 drafted the Students’ Rights Charter[12].
The Charter safeguards fundamental rights of students such as academic freedom,
freedom of association, right to quality education and the right to seek remedy
for rights violations. One European nation that incorporated this declaration
in its laws is Romania[13]. The Codes of Student Rights and Obligations,
which is the law in Romania, safeguards fundamental rights of students, provides
for the protection of the rights of students such as the right to quality
education, right to freedom of association, academic freedom, right to an
accessible learning environment for students with special needs, right to
evaluate the education offered at their university, right for students to
participate in the decision-making of their institutions[14],
and many more rights.. Interesting enough, the Code, in Article 11(k) provides
that students have a right to access all the policies and meeting resolutions
of their universities.
The law in Romania is
very comprehensive in its protection of student rights. Because of this piece
of legislation, students in Romania are able to comfortable enjoy their
education.
With that discussed, it
is necessary to look at the state of student rights in Africa.
Africa
A starting place if the African
Charter on Human and People’s Rights[15].
The Charter provides for many rights, including the right to education in Article
17(1). The Charter that caters for student rights is the African Youth
Charter[16].
In Article 13, state parties are obliged to ensure that higher learning
institutions offer quality education and provision of education to all,
especially the underprivileged.
From the above, we see
Zambia’s obligation to uphold student rights. A model Zambia can look to is
South Africa.
South Africa
The South African
Constitution is progressive in many ways in that both civil and political
rights, and economic, social, and cultural rights are included in their Bill of
Rights. Of particular focus will be the sections relating to student rights.
Section 16 (1) (d) provides
for the right to freedom of expression, with explicit inclusion of academic
freedoms. Section 25 provides for the right to education at tertiary education
and obliges all universities to ensure that they offer quality education and do
not discriminate on the basis of race or sex.
Aside from the
Constitution, the affairs of students are governed by the Higher
Education Act[17].
This Act, together with its amendments, ensures that students are part and
parcel of the decisions made concerning higher education. Section 3 of the Act,
as read together with Act No 9 of 2016 provides that education
policy must be formulated in consultation with the Council of Higher Education
(CHE, the equivalent of the Higher Education Authority in Zambia), with
consideration of the provisions of the Constitution. This Council, as provided for in section 8(2) (b) must broadly
represent every aspect of higher education. This is inclusive of student
bodies, given that section 8(3) (b) provides that the Minister may nominate a
student body representative as either a chairperson or a member upon their
application for the position. The Act, in mandating that there be broad
representation in the CHE, and intentionally mentioning student bodies shows
inclusiveness of students in decision-making.
Section 27 then
provides, as read together with Act No 9 of 2016, for the
establishment of the University Council, which is the governing body. In the
Act, this body includes the members of the student union executive (unlike the Act
in Zambia which does not) and provides that the Council must consult student unions
(student representative council as it is called in South Africa) in the formulation
of policies that will aid in giving student support in public universities.
Subsection 7(b) further provides that members of the Council (which includes
the student union) must participate in the deliberations of the Council.
This is worth highlighting as the Act not only includes students in the
decision-making of the university, it also requires that the Council consults
the union (which is a part of the Council), in the formulation of policies
concerning student welfare and overall decisions formulated by management.
Section 28 provides for
the Senate, which formulates academic and research policies for the university.
The body is also includes members of the student union of that university.
Section 31 provides an
interesting body. It establishes the institutional forum, which is an advisory
body of the university, composed of members from management, the council, the
senate, regular students, and employees of the university, both academic and
non-academic. The forum, among other things, advises the council on the
formulation of policies and creation of a culture that promotes fundamental
human rights.
Section 32 provides for
the formulation of institutional statutes, which are the governing frameworks
of the university. The Council formulates them (keeping in mind that the
Council has the student union in it). Subsections 2(c) and (d) highlight
interesting points in relation to students. It provides that the Council cannot
alter the composition of the student representative council, nor can it
formulate disciplinary measures and procedures without consulting the student
representative council. It is of high note that matters concerning students require
the participation of students.
Section 36, which
provides for the establishment of the student representative council, states
that all that concerns it is determined by the statute of the university. It
must be mentioned again that the Council, which formulates the statute,
includes the students in that formulation, and is advised by the institutional
forum (which is includes students), to formulate policy and statutes in a way
that is friendly for students.
Section 42 brings forth
an interesting provision, something that is lacking in the Zambian Act. In that
section, it provides that if a public university does not comply with the
provisions of the Act, the Minister may withhold funding from the public
university.
Lessons Zambia can glean
from
The statutes that have
been covered, both international and regional give a roadmap in which Zambia’s
legislation can move in relation to student rights. What can be noted is the
following:
1.
Comprehensiveness:
The Romanian
law governing student affairs, as well as the African Youth Charter, cover
every facet student rights. From access to education, inclusivity of the
education environment for people with special needs, academic freedoms, quality
education, right for students to participate in the decision-making of their
institutions, right to due process, and many more rights. This indicates that
Zambia should have a very comprehensive framework for student rights.
2.
Enforcement:
In
South Africa and Romania, some of the student rights their pieces of
legislation contain can be enforced by the courts of law. A right is only as
strong as the enforcement measures. If the Higher Education Act can have a
similar provision like the Children’s Code Act in section 28
where one can file violations of the Act before the High Court, the Higher
Education Act should have a similar provision, allowing for students to
bring action against their universities. Seeing that there exists the Higher
Education Authority, its role in enforcing student rights should be similar to
the way the Labour Commissioner safeguards employee rights, and where that
intervention fails, one can go to the courts of law.
3.
Student
participation in policy formulation: The Acts that have been highlighted
provide for student participation and consultation when it comes to academic
policies at the university. It is no coincidence that the universities of South
Africa have one of the best statutes when it comes to safeguarding student
rights. Inclusion of students in decision-making is crucial for the development
of quality education.
Recommendation
In
conclusion, the Act must be amended to provide for the following:
1. Enshrine
student rights, including academic freedoms, freedom of association and the
right to participate in decision making at universities.
2. Strength
the student union to be as independent as possible and further incorporate it
in the decision-making process management.
3. Creation of
an advisory forum composed of both students and management, that shall advise the
university on policy formulation.
4. Strengthen
the enforcement power of the Higher Education Authority to be able to take disciplinary
actions against both private and public universities.
5. Creation of
welfare centres in universities which shall be a subdivision of the Higher
Education Authority that shall receive disciplinary appeals, provide mental
health services, advise universities on ways it can aid vulnerable students and
ensure university policies are in the best interests of students.
For
the betterment of the welfare of students, it is necessary that the rights of
students be incorporated in our legislation.
[1] UNGA 217 A (III)
[2] This provided for in both their preambles and the Articles that
provide for particular rights.
[3] General Comment by ESCR Committee
[4] 29th Session, Paris, 21 October to 12 November 1997, Vol 1,
Resolutions (Paris: UNESCO 1997) para 74. The 1966 ILO/UNESCO Recommendation
was adopted on 5 October 1966 at a conference held in Paris at UNESCO
headquarters and organised in close cooperation with the ILO.
[5] ‘Activisim in the Students’ ‘League of Nations’: International
Student Politics and the Confédération Internationale des Étudiants, 1919-1939’ (English Historical Review Vol. CXXXII No. 556, 2017) 608. <doi:10.1093/ehr/cex153>
accessed on 14/02/2025
[6] Ibid.
[7] CETS 155
[8] CETS 163
[9] BFUG (ES) 20_7b
[10] Ibid, Paragraphs 8-9
[11] ‘Our History’ (2025, European Students’ Union) https://esu-online.org/about/our-history/
accessed on 12th March 2025
[12] ‘Students’ Rights Charter’ (2025, European Students’ Union) https://esu-online.org/policies/student-rights-charter-2/
accessed on 12th March 2025.
[13] ‘Romania has a brand new student statute,’ (31st March, 2012, European
Students’ Union) https://esu-online.org/romanian-education-has-a-brand-new-student-statute/
accessed on 12th March 2025
[14] Articles 11-12
[15] OAU Doc CAB/LEG/67/3 rev 5
[16] AU Doc Assembly /AU/6/(VI)
[17] Act No 101 of 1997
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