Re­cast­ing the place of dis­ci­plinary com­mit­tees in pub­lic aca­demic in­sti­tu­tions

Nairobi Law Monthly - - Analysis - ACHERO MUFUAYIA Writer is a PH.D. can­di­date at the Univer­sity of Western Cape

Kenya’s ju­di­cial sys­tem con­sists of a hi­er­ar­chy of courts whose de­ci­sions are bind­ing on the lit­i­gants. The courts are a cre­ation of the Con­sti­tu­tion of Kenya as well as leg­is­la­tion that pro­vides for their struc­tures, pow­ers and roles. The law also pro­vides for the ju­ris­dic­tion of the courts. How­ever, there are quasi-ju­di­cial bod­ies within the pub­lic aca­demic in­sti­tu­tions with pow­ers and ju­ris­dic­tion to ad­ju­di­cate on dis­putes aris­ing be­tween and among staff and stu­dents.

All pub­lic aca­demic in­sti­tu­tions in Kenya are es­tab­lished by the Univer­sity Act of 2012. In ad­di­tion, in­sti­tu­tions have reg­u­la­tions that reg­u­late ad­mis­sion of stu­dents as well as their dis­ci­plinary con­duct. Pub­lic aca­demic in­sti­tu­tions, for in­stance Univer­sity of Nairobi, Moi Univer­sity and Keny­atta Univer­sity, among oth­ers, have coun­cils and com­mit­tees that are tasked with the role of dis­ci­plin­ing ir­re­spon­si­ble stu­dents. In this re­gard, it should be noted that the com­mit­tees deal with mat­ters brought be­fore them and in­volv­ing the staff or stu­dents. In many cases, the ju­ris­dic­tion of the com­mit­tees does not ex­tend to mat­ters in­volv­ing non-stu­dents and non­staff of the in­sti­tu­tion, un­less the laws gov­ern­ing them pro­vide so. In the same vein, the ju­ris­dic­tion of the com­mit­tees over a stu­dent cease with the lapse of a stu­dent’s mem­ber­ship to the pub­lic in­sti­tu­tion.

In this re­gard, mat­ters in­volv­ing non-staff or stu­dents are han­dled and ad­dressed in fo­rums within the ju­di­cial sys­tem, in­clud­ing lower and higher courts. Once one is cleared from an in­sti­tu­tion, they re­main solely mem­bers of the pub­lic. Thus, cases in­volv­ing them should be han­dled by the po­lice and the courts. How­ever, it is only un­der spe­cial cir­cum­stances that the dis­ci­plinary com­mit­tees can deal with mat­ters in­volv­ing non-stu­dents, es­pe­cially the alumni. Th­ese cir­cum­stances are, but not lim­ited to, con­di­tions lead­ing to com­pro­mise of aca­demic re­sults is­sued by the spe­cific in­sti­tu­tion, in­clud­ing forgery of re­sults. This is done in or­der to pro­tect the aca­demic records and re­pute to the pub­lic.

In un­der­tak­ing their du­ties, dis­ci­plinary com­mit­tees are made up of an in­sti­tu­tion’s coun­cil as well as the stu­dents’ body. How­ever, the right to le­gal rep­re­sen­ta­tion is not al­lowed in th­ese fo­rums. The com­mit­tees have pow­ers to give bind­ing de­ci­sions in­clud­ing ex­pul­sion and sus­pen­sion of a stu­dent for a given du­ra­tion based on their dis­cre­tion. Where a mem­ber of staff or stu­dent ap­pear­ing be­fore a dis­ci­plinary com­mit­tee is ag­grieved with the de­ci­sion of a dis­ci­plinary com­mit­tee, the Univer­si­ties Act and Reg­u­la­tions es­tab­lish­ing the dis­ci­plinary com­mit­tees al­lows for the right of ap­peal within the avail­able struc­tures.

The main discourse is whether their de­ci­sions can be ap­pealed to the High Court as it has been, for in­stance, the prac­tice within the le­gal pro­fes­sion that al­lows ad­vo­cates ag­grieved with a de­ci­sion of a Dis­ci­plinary Com­mit­tee of the Law So­ci­ety of Kenya, for in­stance, to ap­peal to the High Court. In rare cir­cum­stances have ag­grieved stu­dents taken up ap­peals to the court level. This might be at­trib­uted to their naivety, fail­ure to un­der­stand the court pro­ce­dures and the cost im­pli­ca­tions in­volved. Ma­jor­ity of the cases that have been wit­nessed in­volves the ag­grieved staff ver­sus the pub­lic aca­demic in­sti­tu­tions.

As I con­clude, there are two key is­sues aris­ing and worth not­ing within the cor­ri­dors of jus­tice – the right of le­gal rep­re­sen­ta­tion and that of ap­peal of the de­ci­sions of a dis­ci­plinary com­mit­tees by the par­ties ag­grieved. Dis­ci­plinary com­mit­tees of pub­lic aca­demic in­sti­tu­tions are im­por­tant in ad­min­is­tra­tion of jus­tice to rel­e­vant par­ties in Kenya. Th­ese two is­sues should be given ut­ter­most con­sid­er­a­tion, in­clud­ing re­view, to suit the cur­rent ju­di­cial prac­tice. The rel­e­vant stake­hold­ers should start think­ing of re­struc­tur­ing the pow­ers of the com­mit­tees.

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