DR.STELLA NYANZI’S SUSPENSION AND HER CONDUCT ARE BOTH A CHALLENGE TO THE RIGHT TO ACADEMIC FREEDOMS OF ALL MAKERERE ACADEMIC STAFF AND STUDENTS.

A letter to my Senior Brother Bruce Balaba Kabaasa the Chair to Makerere University Appointments Board written by JEREMIAH KEEYA MWANJE formerly a member of Makerere University Council.

Dear Bruce,

Please accept my salutations after such a long period of time. I pray you are hale and hearty.

I came across a letter you authored on various Social Media Platforms notifying the Vice Chancellor of the Apponitment Board’s Decision to Suspend Dr. Stella Nyanzi a decision I clearly understand that you made within the confines of your authority. However I want to put to your attention a few things that you could not have considered.

As you know there is no place I like like Makerere University and ofcourse Iam always greatful to you and many colleagues for the nurturing you offered me when I had just joined the University Council. The experience was indeed enriching and the exposure to reality was enormous.

I understand that by the ruling of the Appointments Board you Chair Dr. Stella stands suspended. Ofcourse Iam alive to Section 50 of The Universities and other Tertiary Institutions Act which is to this effect;

 Appointments Board

50. (1) there shall be a Committee of the University Council to be known as the Appointments Board.

(2) The Appointment Board shall consist of nine members appointed under section 43.

(3) The Appointments Board shall, except where provided otherwise under this Act, be responsible to the University Council for the appointment, promotion, removal from service and discipline of all officers and staff of the academic and administrative service of the University, as may be determined by the University Council.

(4) The Appointments Board may in the discharge of its functions invite any person to give technical advice in any meeting of the Board.

I therefore have no doubt that you exercised a mandate that you have as a Board, the mandate to discipline staff members.

THE PROPRIETY OF THE PROCEEDINGS BEFORE SUSPENSION.

Iam also alive to the Provisions of the Makerere University Human Resource Manual in which you must have based to suspend Dr. Stella and more specifically Section 5 of the manual. Section 5.1 provides for staff’s general code of behavior, Section 5.7.7 classifies use of abusive language as a form of Misconduct and Section 5.8 Creates a more serious form of Misconduct dubbed Gross Misconduct.

However as you know with dismissals the problem is always around the issue of following due process and as you know Makerere University has been a prey to litigation after litigation for a failure to follow the stipulated processes and I hope that unlike our past like the process that led to the case of Bwowe Ivan and Others .v. Makerere University, this time we have taken all precaution. I will take off a moment to interest you in Section 5.9 b) of the Human Resource Mannual which ofcourse you interface with more often than I do and I will state it here for ease of reference;

Suspension

The power to suspend services of an employee shall be vested in the Vice – Chancellor or the appointing authority.

i. Failure of an employee to reform after the second written warning, shall lead to suspension on half pay for a period not exceeding 90 days or the duration of an inquiry whichever is shorter.

ii. An employee shall be suspended from duty on half pay to enable commencement of investigations into allegations.

iii. An employee may also be suspended from duty on half pay where such an employee has been apprehended on account of an offence that requires investigations or is charged in a court of law or is remanded pending criminal proceedings.

iv. The appointing authority shall take a decision in the case of a suspended employee at the expiry of 90 days or conclusion of an inquiry into the case, whichever comes first.

v. Where an employee is re‐instated, he/she shall be entitled to claim the half pay of the salary withheld during the suspension period.

The language of the manual as you know, read together with the spirit in it is to imply that there should have been two prior written warnings regarding this misconduct and with no reform on the part of the employee in question and ofcourse suspension can only be done by the Vice Chancellor or the appointing authority which I hope for all purposes and intent is the Appointments Board in regard to Dr. Stella Nyanzi’s case.

THE SUSPENSION VIZ- A- VIZ THE RIGHT TO ACADEMIC FREEDOMS

As you know Article 29(1) of our National Constitution provides for a right to academic freedom and I will state it here for ease of reference still;

29. Protection of freedom of conscience, expression, movement, religion, assembly and association.

(1) Every person shall have the right to—

freedom of speech and expression which shall include freedom of the press and other media;

freedom of thought, conscience and belief which shall include academic freedom in institutions of learning

Whereas there have not been local attempts to explain in detail the bounds of this right the Committee on Economic Social and Cultural Rights[1] has explained in detail the constituent elements of this right. Allow me re-state Paragraphs 39 and 40 here;

39. Members of the academic community, individually or collectively, are free to pursue, develop and transmit knowledge and ideas, through research, teaching, study, discussion, documentation, production, creation or writing. Academic freedom includes the liberty of individuals to express freely opinions about the institution or system in which they work, to fulfil their functions without discrimination or fear of repression by the State or any other actor, to participate in professsional or representative academic bodies, and to enjoy all the internationally recognised human rights applicable to other individuals in the same jurisdiction. The enjoyment of academic freedom carries with it obligations, such as the duty to respect the academic freedom of others, to ensure the fair discussion of contrary views, and to treat all without discrimination on any of the prohibited grounds.

40. The enjoyment of academic freedom requires the autonomy of institutions of higher education. Autonomy is that degree of self-governance necessary for effective decision-making by institutions of higher education in relation to their academic work, standards, management and related activities. Self-governance, however, must be consistent with systems of public accountability, especially in respect of funding provided by the State. Given the substantial public investments made in higher education, an appropriate balance has to be struck between institutional autonomy and accountability. While there is no single model, institutional arrangements should be fair, just and equitable, and as transparent and participatory as possible.

First I will dwell on the requirements of Paragraph 40 which in particular require autonomy of an Institution from the State so as to have decisions made with no fear or favour of the state all those associated to it.

In light of Dr. Stella’s case we have had her suspension coincide with her recent churnout to the person of the First Lady who also happens to be the Minister of Education and Sports, after the Honorable Minister uttered words that can be considered to have been making fun of we the poor common Ugandans and indeed showed a clear misunderstanding of the plight of the common man. As you know the words of the First Lady were likened to the utterances of the wife to former Kenyan President Mwai Kibaki and the historic Marie Antoinette of France. Ofcourse I don’t agree that Maama Janet is anywhere near these two but the public says so. In line with that exposition my brother allow me ask a very innocent question Did the state ask you to suspend Stella for touching the untouchable? And I hope my inquisition is in good faith. My second question is Whether you are aware that you are opening a pandola’s box of state interference with academic freedoms?

Yes I know that Stella’s utterances were so vulgar indeed but did you consider that by opening this door you could call in political persecution for many of our Intellectuals whose comments are fair and just like Prof.Oloka Onyango, Dr.Ndebesa, Lumumba and many others?

The situation that Stella puts Makerere in is that of a mosquito sucking blood from a two days baby’s arm,  if you slap the mosquito hard you risk breaking the baby’s arm and I therefore call for restraint.

Paragraph 39 of the General Comments as already stated above clearly explains the ways one can utilize his or her academic freedom. Do you see any way in which Stella derogated from this?

Ofcourse I know that Article 43 of our Constitution establishes limitations to all the Freedoms in Chapter Four which no doubt includes those in Article 29 and I will waste no time in quoting Article 43;

General limitation on fundamental and other human rights and freedoms.

In the enjoyment of the rights and freedoms prescribed in this Chapter, no person shall prejudice the fundamental or other human rights and freedoms of others or the public interest.

Public interest under this article shall not permit—

political persecution;

detention without trial;

any limitation of the enjoyment of the rights and freedoms prescribed by this Chapter beyond what is acceptable and demonstrably justifiable in a free and democratic society, or what is provided in this Constitution.

I will particularly put my efforts on the last paragraph of Article 43 commonly reffered to as a limitation of/within the limitation and I will refer you to the Constitutional Court’s treatment of the same the reason for this being that you should see what the Justices thought should be a yardstick for one to restrain him or herself when dealing with matters of Human Rights and Freedoms.

In Charles Onyango Obbo and Another v Attorney General (Constitutional Petition No. 15 of 1997) Twinomujuni J.A/J.C.C quoted with approval the would be yardsticks from a Canadian case of Zundel .V. Queen this paragraph;

"Before we put a person beyond the pale of the Constitution, before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for offering protection. The criterion of falsity falls short of this certainty, given that false statements can sometime have value and given the difficulty of conclusively determining total falsity. Applying the broad, purposive interpretation of the freedom expression guaranteed by s.2 (b) hitherto adhered to by this Court, I cannot accede to the argument that those who deliberately publish falsehoods are for that reason alone precluded from claiming the benefits of the constitutional guarantees of free speech.”

Twinomujuni J.A further noted;

"To establish that a limit (to rights and freedoms) is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective that the measures responsible for the limit on a charter right or freedom are designed to serve must be of sufficient importance to warrant overriding a constitutionally protected right or freedom The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s.l (Our article 43 (2)) protection. It is necessary at a minimum, that an objective related to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.

Secondly, once a sufficiently significant objective is recognized, then the party invoking s.l must show that the means chosen are reasonably and demonstrably justified. This involves a form of PROPORTIONALITY TEST.... Although the nature of the proportionality test will vary depending on the circumstances, in each case

There are in my view three important components of the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short they must be rationally connected to the objective. Secondly, the means, even if rationally connected to the objective in the first sense, should impair "as little as possible" the right or freedom in question: RVs Big M Drug Mart Ltd Supra. Thirdly, there must be proportionality between the effects of the measures which are responsible for limiting the charter right or freedom and the objective which has been identified as of "sufficient importance.”

When you clearly scrutinize the words of Twinomujuni J.A you will no doubt see that merely by a person behaving in an alarming manner does not justify a limitation or more bluntly an abuse of his or her right(s). Actually the learned Justice concluded by saying that mere publication of false news by The Monitor Publication did not warrant a limitation to their freedoms in Article 29 of our Constitution and in the same limb I wish to also tell you that whereas Stella’s words are vulgar and indeed shaking to ears of any listener, they do not by themselves warrant an abuse of her freedoms under Article 29 academic freedoms inclusive.  

But above all is the fact that by helping the state in their repression of Stella we are surrendering our own academicians to the horrible monster called state repression in future because we are unlocking our own safe heathen and inviting rapists to rape our children and mothers. We are exposing everyone to danger including those that might be supporting her suspension and we need to restrain ourselves by making baby steps. We should not allow shock to make us surrender our jewel called freedom to the monster.

As I wait to hear from you allow me leave you with this very famous quote which I consider so meaningful in days of darkness like these.

“First they came for the Communists and I did not speak out because I was not a Communist. Then they came for the Socialists and I did not speak out because I was not a Socialist. Then they came for the trade unionists and I did not speak out because I was not a trade unionist. Then they came for the Jews and I did not speak out because I was not a Jew then they came for me and there was no one left to speak out for me.”

Pastor Dr. Martin Niemoller

Jeremiah Keeya Mwanje

From the Most rural corner of Bukomansimbi

[1] [E/C.12/1999/10, CESCR General comment 13 on the Right to Education, Article 13, 8 December 1999, paragraphs 38-40.]