Academic freedom is a constitutional right that serves as one of the pillars of modern university education in Uganda.
It plays a crucial role in fostering an environment where ideas can be freely expressed, debated, and critiqued without fear of retribution.
An examination taken by law students on the 11th of May 2024 was put under investigation by the Vice Chancellor of Makerere University for including satirical references about the Speaker of Parliament Anita Among and other political persons in a hypothetical problem question.
This situation raises critical questions about the state of academic freedom in Uganda and the rule of law making this subject ripe for closer scrutiny and analysis.
The investigation into the exam depicts the degree of government control in higher education which is the greatest challenge to fulfilling this right.
This article seeks to examine the salient aspects of academic freedom and show cause for better protection of this right.
First-year law students sat the said controversial exam 10 days after Speaker Anita Among was sanctioned. /Photo: The Observer
Introduction
Academic freedom is simply the right of a teacher to instruct and a student to learn in an academic setting without interference from external sources.
This may also encompass the freedom of academics to engage in social and political criticism. (See.)
With the emergence of the modern research university, a number of key proponents of the concept of academic freedom were birthed.
One such proponent is Wilhelm von Humboldt, a philosopher and linguist who introduced the Humboldtian model of higher education in the 19th century establishing the foundational principles of academic freedom and spreading them internationally along with the creation of his new University.
Academic freedom was also explicitly defined in response to totalitarian encroachments on science and academia for instance in the Soviet Union during the 1930s where scientific research was subjected to strict political control, with certain fields, such as genetics, being labeled “bourgeois pseudoscience” a term of condemnation for disciplines that were deemed unacceptable and banned. (See).
The suppression of the voices in the academy made it necessary to afford protections for those in teaching roles and those in learning capacities that would ensure that no hindrances may deter the pursuit of knowledge hence academic freedom continued to grow and gain traction.
At an international seminar held at the Raoul Wallenberg Institute in Lund, Sweden, in March 1992, Professor Andrén reported the challenges of applying general human rights treaties to academic freedom and concluded that academic freedom had not yet been recognized as a human right. (See).
This seminar concluded that a Universal agreement was the best way to proceed and the right continued to evolve until it was codified in various jurisdictions.
Its position has notably developed over a period of 20 years between its first and second major interpretation of the International Covenant of Economic, Social, and Cultural Rights, and today it holds significant cognizance in the current society.
Despite lacking a quorum, the Bill cited in the exam, is passed and signed by President Museveni after he amends it to include references to himself and his family./Courtesy Photo
Academic Freedom
Academic freedom is a crucial facet of the right to freedom of expression, belief, and good conscience as well as the right to education.
The Constitution provides that every person has the right to education (Article 30) and also expressly provides that every person shall have the right to freedom of thought, conscience, and belief which shall include academic freedom in institutions of learning. (Article 29(1) (b)).
The right to academic freedom is also protected under the Kampala Declaration on Intellectual Freedom and Social Responsibility, an instrument adopted by the participants in the Symposium on ‘Academic Freedom and Social Responsibility of Intellectuals’ and members of the African intellectual community to address the threat to intellectual freedom in Africa.
The declaration provides that no African intellectual shall in any way be persecuted, harassed, or intimidated for reasons only of his or her intellectual work, opinions gender, nationality, and ethnicity. (Article 3).
The Universities and Other Tertiary Institutions Act (UOTIA) also incorporates academic freedom among the objectives of the Act stating that the object of the act is “to establish and develop a system governing institutions of higher education……while at the same time respecting the autonomy and academic freedom of the institutions….” (Section 3).
These provisions have indeed served their role in safeguarding the right to academic freedom for instance Dr. Jimmy Spire Ssentongo who recently received threats to his life for leading the social media campaign dubbed the #UgandaParliamentexhibition which exposed some legislators and top leaders for participation in alleged gross corruption.
Makerere University Academic Staff Association (MUASA) condemned the renewed threats utilizing the above provisions. (See).
This right also draws inference from several international human rights instruments which provide for the right to education and freedom of thought, expression, and good conscience.
These are enshrined under Article 13 of the ICESCR, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 9 of the African Charter on Human and Peoples Rights (ACHPR) which guarantees freedom of expression all of which Uganda has assented as well as other international human rights instruments.
The Committee of Economic, Social, and Cultural Rights in their general comment on the right to education averred that although Article 13 of the ICESCR does not explicitly address the issue of academic freedom, numerous reports from state parties were based on to conclude that the right to education is intrinsically linked to the academic freedom of both staff and students.
The Committee observed that staff and students in Institutions of Higher Education are particularly susceptible to political and other pressures that threaten academic freedom (General Comment No.13).
They noted that members of the academic community, whether individually or collectively, have the freedom to pursue, develop, and share knowledge and ideas through research, teaching, study, discussion, documentation, production, creation, or writing.
However, the exercise of academic freedom comes with responsibilities, including respecting the academic freedom of others, ensuring fair discussion of opposing views, and treating everyone without discrimination on any prohibited grounds.
The enjoyment of academic freedom also necessitates the autonomy of higher education institutions which explicitly refers to the degree of self-governance required for effective decision-making by higher education institutions concerning their Academic work, standards, management, and related activities but cautions that public accountability and transparency should be maintained.
Justice Felix Frankfurter further elaborated on the principles of academic freedom in the case of Sweezy v New Hampshire (354 U.S. 234 (1957) stating that it encompasses four fundamental freedoms.
He enunciated that it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation hence each university must possess these four essential freedoms to prevail:
1) freedom to determine who may teach; 2) what can be taught; 3) how it is taught; and 4) who will be admitted to study it.
These freedoms are representative of the principle of “university autonomy” that must be closely considered with academic freedom.
The Council of Europe Parliamentary Assembly Resolution 1762 elaborated on this principle stating that:
Universities should be expected to live up to certain societal and political objectives, even to comply with certain demands of the market and the business world, but they should also be entitled to decide on which means to choose in the pursuit and fulfillment of their short-term and long-term missions in society. (The Council of Europe Parliamentary Assembly Resolution 1762(2006) para 10).
This principle is subject to the standards set by the National Council for Higher Education which dictates that institutions of higher learning in Uganda have the right to; constitute a governing body, determine courses of study, determine the methods of teaching, and the selection of areas and problems of research, admit and discipline students, set up a reasonable fee structure, appoint staff (teaching and non-teaching) and to take action if there is dereliction of duty on the part of any employees, by virtue of that concept. (See).
The Acting Head of the Department for Public and Comparative Law Dr. Benson Tusasirwe in his report found that the paper did not violate any of the minimum academic standards as enshrined in the University policies./Makerere Law School Photo
The rationale for Academic Freedom
Warren, C. J. in his judgment in the Sweezy case above opined on the justification for academic freedom stating that: “…No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straight jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise, our civilization will stagnate and die.”
Several key proponents of this right over the years have based their thinking on the firm belief that the freedom of inquiry for students and faculty is crucial to the mission of the academy. They argue that academic communities are frequently targeted for repression because of their power to shape and control the flow of information and when scholars seek to teach or communicate ideas or facts that are inconvenient to external political groups or authorities, they may face public vilification, job loss, imprisonment, or even death.
The main value of academic freedom is that it allows for unbiased and thorough accumulation of knowledge and the development of objective explanations for natural and social phenomena.
Albert Einstein underscored the need for such intellectual freedom in his speech at the Royal Albert Hall where he said:
“Without such freedom, there would have been no Shakespeare, no Goethe, no Newton, no Faraday, no Pasteur, and no Lister.” (See)
Hence the greater need for the less scrutiny and stringency in teaching and learning in University education.
As the common saying by the French writer Voltaire goes: “I disapprove of what you say, but l will defend to the death your right to say it.”
Prof. Barnabas Nawangwe/Photo: The Independent Magazine
Challenge to the Realization of the Right in Uganda
Governmental domination of the educational process has the undesirable effect of stifling freedom of individual development which is the basis of democracy. (See).
A free society depends on free universities.
In a university, knowledge is its own end, not merely a means to an end.
A University ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest.
Imagine a village where only the chief is allowed to teach the children. He decides everything they learn and how they think.
The highest likelihood is that the children will grow up knowing only what the chief wants them to know, never questioning his authority or exploring their interests.
The State may play its role as a patron because it can but doesn’t have to remain above specific research interests however if the State tries to influence research outcomes, it undermines the very reason for its support.
It is required to maintain its role in the provision of funding and resources while allowing researchers the freedom to explore and discover independently because any unjustifiable involvement in the accumulation of knowledge compromises the integrity and credibility of the research process.
Justice Stephen Mubiru highlighted the danger of unchecked state control in higher education in the case of Dr. David Kitara Lagoro v Gulu University where he stated that exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies.
Any attempt by the government or courts to influence university and public tertiary institution decisions, especially decisions regarding academic progress would violate the concept of minimal state intervention and enhance the possibility of breaches of academic freedom.
He also noted that the Universities and Other Tertiary Institutions Act(UOTIA) attempted to provide for governmental regulation while at the same time respecting the autonomy and academic freedom of the institutions.
If the state influences the process of learning in ways that are not demonstrably justifiable in society, it undermines the very reason for which academic freedom exists.
Limitations of the Right
The right to academic freedom is not absolute and is subject to certain limitations and obligations.
Article 43 of the Constitution outlines the limitations on the enjoyment of rights specifying that while exercising these rights, individuals must not infringe on the rights of others or the public interest.
However, public interest cannot justify political persecution, detention without trial, or any excessive limitation of rights beyond what is acceptable and justifiable in a free and democratic society, or beyond what the Constitution allows.
The standard for the limitation of the right has been well enunciated by the Supreme Court of Uganda, which stated that:
The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. The limitation on the enjoyment of a protected right in defense of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalized, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society. (See at Page 13.)
The enjoyment of academic freedom also entails certain obligations, such as respecting the academic freedom of others, ensuring the fair discussion of opposing views, and treating everyone without discrimination based on prohibited grounds.
University self-governance must align with systems of public accountability, particularly regarding state-provided funding.
Given the significant public investments in higher education, a proper balance must be achieved between institutional autonomy and accountability. Although there is no single model, institutional arrangements should be fair, just, and equitable, and should strive to be as transparent and participatory as possible.
The Satirical Problem Question
The hypothetical problem question set by the head of the subject of Constitutional law and his co-examiners centers around Speaker Anita Among’s reaction to sanctions imposed on her by the UK government.
In the narrative, Among vows to address those spreading malicious reports about her and introduces a “Speaker’s Bill” in the House.
This Bill contains controversial provisions, including criminalizing adverse comments about the office of the Speaker with a five-year prison sentence.
Opposition Leader Joel Ssenyonyi protests the Bill and its process, leading to a confrontational response from the Speaker, who asserts her authority and expels Ssenyonyi from the House.
Despite lacking quorum, the Bill is passed and signed by President Museveni after he amends it to include references to himself and his family.
The hypothetical also describes the arrest of Ssenyonyi and two social media activists for criticizing the Speaker. The students are then tasked with identifying constitutional law issues and discussing their implications for the rule of law, democratic governance, and constitutionalism in Uganda. (See).
Other Questions in the Constitutional Law Exam
Other questions in the exam further tested the students’ knowledge to critically respond to current issues.
The question involved an assessment of the directive from Uganda’s President, Yoweri Museveni, to the Chief Justice earlier this year, instructing the review of a judicial decision made by another judge, the constitutional court’s decision upholding the Anti-Homosexuality Act, 2023, The so-called “hand-shake” and one-off service award of UGX. 500,000,000/= to former Leader of Opposition (LoP) Hon. Matthias Mpuuga and finally The appointment of General Muhoozi Kainerugaba as Chief of Defense Forces (CDF) of the Uganda Peoples’ Defense Forces (UPDF).
The students were required to discuss the implications of the rule of law, democratic governance, and constitutionalism in contemporary Uganda. (See).
Investigation
Vice Chancellor Barnabas Nawangwe recently called for an investigation into the use of a deeply satirical essay in student exams.
Dr. Ronald Naluwairo, acting Principal of the School of Law, acknowledged the concerns but defended the exam for the course unit L1210 – Principles of Constitutional Law II, taken by first-year students on May 11.
Dr. Naluwairo opposed the investigation, calling it an “onslaught on academic freedom” and “retrogressive.”
Both Professor Nawangwe and Dr. Naluwairo received concerns about the parody and Professor Nawangwe emphasized that the investigation did not infringe on academic freedom and insisted on moderating exams. (See).
An emergency meeting was called by the Vice Chancellor to discuss whether the exam met the minimum academic standards of the University, ethical issues that fell below the expected standards, and an investigation into three past papers set by the examiner.
The major concern was whether there was moderation of the exam.
At the meeting, the Acting Head of the Department for Public and Comparative Law Dr. Benson Tusasirwe in his report found that the paper did not violate any of the minimum academic standards as enshrined in the University policies and the course outline for principles of constitutional law L1210 2023/24.
Members of the School Academic Board (SAB) agreed with him noting that the examination indeed met the minimum academic standards for the university and acknowledged that the university regulations were silent on examinations save for the requirement of moderation.
They asserted that this was in fact deliberate so as to allow for a wider range of assessment and ensure that no limits are placed on the range of ideas that a student can confront in real life. (See).
The Speaker of Parliament utilizing her social media account on X commented that she found no fault in the exam set for the students and believed that their duty was to give the students unbiased context on what exactly happened during the sitting in issue.
The uproar concerning the constitutional law exam suggests that indeed there was an outcry from those affected by the parody that in turn prompted an investigation (witch hunt) into the setting of the exam even though it is unclear who forwarded the concerns or that any were indeed forwarded.
The investigation into the examination reveals that the outcry was more about the public perception of those affected by it than the context in which the exam was set because even a cursory analysis of the exam reveals that it adheres to the objective standards typically used by examiners in assessing student learning.
The course outline for L1210 Constitutional Law II for the academic year 2023/2024 lists four expected outcomes, namely ensuring that students (a) have grasped the basic elements of Constitutional Law; (b) appreciate its over-arching character in relation to ordinary legislation; (c) fully comprehend the main principles (Rule of Law, Separation of Powers, and Fundamental Human Rights) and (d) be able to apply the key principles of Constitutional Interpretation.
Constitutional Law II at Makerere University covers constitutional law principles with particular reference to the 1995 Constitution of Uganda.
It scrutinizes the constitutional provisions, the exercise of government authority, and case law to know the role of the Constitution in good governance and development. (See)
The investigation was premised on the view that the examination falls below the minimum academic standards of the university and violated ethical standards but these assertions are baseless and here is why:
Problem questions normally combine factual and hypothetical scenarios using real names of individuals.
Examiners abroad have utilized a similar module for the assessment of students for instance President Obama’s presidential election campaign in 2012 was made the subject of a constitutional law examination at Emory University School of Law in Atlanta (See) and similarly, the approach taken by the examiner critically evaluates constitutional law issues.
What matters is that a student or any reasonable observer can recognize that the actions and statements attributed to these names or public figures are purely hypothetical and the examiner makes it clear that the students are to discuss the constitutional law issues in the above “scenario” indicating that this is a postulated sequence of events.
Political satire which is the basis of the satirical problem question is a form of humor that uses irony, sarcasm, and ridicule to critique political figures, institutions, and policies.
It serves as a powerful tool for engaging the public in critical thinking about politics by presenting unconventional perspectives and challenging the dominant narrative. (See).
It is not only for the interior pages of the newspaper anymore.
These satirical works not only captivate readers but also encourage them to critically analyze current political events.
This engagement can motivate individuals more so students to consider various viewpoints before forming their own opinions hence it is indeed an effective tool for the education and even assessment of students.
The examiners are well within their right to examine their students utilizing political figures in such a satirical fashion and are offered constitutional protection for it under academic freedom.
Protection of this right as a form of freedom of expression must include pluralism, tolerance, and broadmindedness from public officials regarding open criticism.
Any inquiry into this exam should be based on violation of academic integrity principles like fraud, plagiarism, deceit, falsification of data, or breach of any limitation placed on the right to academic freedom as earlier stated.
The satirical problem question which is the main concern of this examination falls within the legitimate exercise of academic freedom as it induces the students’ thought process on issues with significant likeness to those currently in Uganda and encourages independent thinking against the biased narratives that already exist regarding them.
The references in the problem question are synonymous with the allegations faced by the Speaker of Parliament for blocking debates about her assets in the UK implicating her in corruption.
She is subject to travel bans and asset freezes, as well as reputational damage.
However, she denies any wrongdoing and recently addressed parliament, blaming homosexuals whom she derogatorily referred to as ‘bum shafters’ for the allegations against her.
The use of satirical references that deviate from the actual sequence of events encourages an unbiased interrogation of the state of the rule of law and democratic governance in Uganda.
The examiners exercised their prerogative to promote critical thinking and healthy skepticism of their students and as David Edwards, Deputy General Secretary of Education International, noted while addressing the state of academic freedom today, “a free teaching profession must inculcate students with the values of democracy and the competencies of healthy skepticism, critical thinking, scientific methods, understanding of history, and media and internet literacy.” (See).
Ordering an investigation into the examination is a blatant violation of the right to academic freedom because it deters the students’ pursuit of knowledge.
The absence of probable cause to justify the investigation into the exam, coupled with the fact that this exam is consistent with those set in the past without any prior investigations, suggests that external influences, possibly from the government, may be at play.
“…. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise, public debate may be stifled altogether.”
An understanding that public officials will face scrutiny and criticism from society for their actions allows freedom of thought, conscience, and expression to flourish hence what basis can justify an investigation into an exam that allows the unbiased interrogation of a hypothetical societal event?
The President of the Uganda Law Society Mr. Bernard Oundo spoke out against the investigation of the examination stating that:
“Teaching and examining students about current affairs is critical in producing graduates who can effectively address contemporary problems and contribute to societal progress. Academic freedom involves the freedom of lecturers, teachers, students, and academic institutions to pursue knowledge wherever it may lead, without undue or unreasonable interference in their research and teaching activities. “
Conclusion
In conclusion, academic freedom in Uganda is a fundamental right that should be jealously protected.
We understand that much like other rights, it is not absolute and is subject to various limitations however none of those limitations would warrant an investigation into the constitutional law examination.
In the words of Dr. Busingye Kabumba, a lecturer at the Makerere University School of Law, “it appears that we are now living in a Uganda in which university exams which directly or indirectly call into question the propriety of the actions of public officials – exercising public duties – are unacceptable.”
I hope that the understanding of academic freedom I have depicted above will encourage fewer incidents that deter lecturers from exercising their autonomy to teach students effectively as it is crucial to maintain an environment where educators can operate without undue interference, ensuring that their expertise and judgment guide the educational process.
Passionate about the Rule of Law and Seeks to Educate Members of the Public on various rule of law issues in the Country. Also enthusiastic about the corporate space.
Defending Academic Freedom in Uganda: The Controversy Around A Law Exam at Makerere
Abstract
Academic freedom is a constitutional right that serves as one of the pillars of modern university education in Uganda.
It plays a crucial role in fostering an environment where ideas can be freely expressed, debated, and critiqued without fear of retribution.
An examination taken by law students on the 11th of May 2024 was put under investigation by the Vice Chancellor of Makerere University for including satirical references about the Speaker of Parliament Anita Among and other political persons in a hypothetical problem question.
This situation raises critical questions about the state of academic freedom in Uganda and the rule of law making this subject ripe for closer scrutiny and analysis.
The investigation into the exam depicts the degree of government control in higher education which is the greatest challenge to fulfilling this right.
This article seeks to examine the salient aspects of academic freedom and show cause for better protection of this right.
Introduction
Academic freedom is simply the right of a teacher to instruct and a student to learn in an academic setting without interference from external sources.
This may also encompass the freedom of academics to engage in social and political criticism. (See.)
With the emergence of the modern research university, a number of key proponents of the concept of academic freedom were birthed.
One such proponent is Wilhelm von Humboldt, a philosopher and linguist who introduced the Humboldtian model of higher education in the 19th century establishing the foundational principles of academic freedom and spreading them internationally along with the creation of his new University.
Academic freedom was also explicitly defined in response to totalitarian encroachments on science and academia for instance in the Soviet Union during the 1930s where scientific research was subjected to strict political control, with certain fields, such as genetics, being labeled “bourgeois pseudoscience” a term of condemnation for disciplines that were deemed unacceptable and banned. (See).
The suppression of the voices in the academy made it necessary to afford protections for those in teaching roles and those in learning capacities that would ensure that no hindrances may deter the pursuit of knowledge hence academic freedom continued to grow and gain traction.
At an international seminar held at the Raoul Wallenberg Institute in Lund, Sweden, in March 1992, Professor Andrén reported the challenges of applying general human rights treaties to academic freedom and concluded that academic freedom had not yet been recognized as a human right. (See).
This seminar concluded that a Universal agreement was the best way to proceed and the right continued to evolve until it was codified in various jurisdictions.
Its position has notably developed over a period of 20 years between its first and second major interpretation of the International Covenant of Economic, Social, and Cultural Rights, and today it holds significant cognizance in the current society.
Academic Freedom
Academic freedom is a crucial facet of the right to freedom of expression, belief, and good conscience as well as the right to education.
The Constitution provides that every person has the right to education (Article 30) and also expressly provides that every person shall have the right to freedom of thought, conscience, and belief which shall include academic freedom in institutions of learning. (Article 29(1) (b)).
The right to academic freedom is also protected under the Kampala Declaration on Intellectual Freedom and Social Responsibility, an instrument adopted by the participants in the Symposium on ‘Academic Freedom and Social Responsibility of Intellectuals’ and members of the African intellectual community to
address the threat to intellectual freedom in Africa.
The declaration provides that no African intellectual shall in any way be persecuted, harassed, or intimidated for reasons only of his or her intellectual work, opinions gender, nationality, and ethnicity. (Article 3).
The Universities and Other Tertiary Institutions Act (UOTIA) also incorporates academic freedom among the objectives of the Act stating that the object of the act is “to establish and develop a system governing institutions of higher education……while at the same time respecting the autonomy and academic freedom of the institutions….” (Section 3).
These provisions have indeed served their role in safeguarding the right to academic freedom for instance
Dr. Jimmy Spire Ssentongo who recently received threats to his life for leading the social media campaign dubbed the #UgandaParliamentexhibition which exposed some legislators and top leaders for participation in alleged gross corruption.
Makerere University Academic Staff Association (MUASA) condemned the renewed threats utilizing the above provisions. (See).
This right also draws inference from several international human rights instruments which provide for the right to education and freedom of thought, expression, and good conscience.
These are enshrined under Article 13 of the ICESCR, Article 19 of the International Covenant on Civil and Political Rights (ICCPR), and Article 9 of the African Charter on Human and Peoples Rights (ACHPR) which guarantees freedom of expression all of which Uganda has assented as well as other international human rights instruments.
The Committee of Economic, Social, and Cultural Rights in their general comment on the right to education averred that although Article 13 of the ICESCR does not explicitly address the issue of academic freedom, numerous reports from state parties were based on to conclude that the right to education is intrinsically linked to the academic freedom of both staff and students.
The Committee observed that staff and students in Institutions of Higher Education are particularly susceptible to political and other pressures that threaten academic freedom (General Comment No.13).
They noted that members of the academic community, whether individually or collectively, have the freedom to pursue, develop, and share knowledge and ideas through research, teaching, study, discussion, documentation, production, creation, or writing.
However, the exercise of academic freedom comes with responsibilities, including respecting the academic freedom of others, ensuring fair discussion of opposing views, and treating everyone without discrimination on any prohibited grounds.
The enjoyment of academic freedom also necessitates the autonomy of higher education institutions which explicitly refers to the degree of self-governance required for effective decision-making by higher education institutions concerning their Academic work, standards, management, and related activities but cautions that public accountability and transparency should be maintained.
Justice Felix Frankfurter further elaborated on the principles of academic freedom in the case of Sweezy v New Hampshire (354 U.S. 234 (1957) stating that it encompasses four fundamental freedoms.
He enunciated that it is the business of a university to provide that atmosphere which is most conducive to speculation, experiment, and creation hence each university must possess these four essential freedoms to prevail:
1) freedom to determine who may teach; 2) what can be taught; 3) how it is taught; and 4) who will be admitted to study it.
These freedoms are representative of the principle of “university autonomy” that must be closely considered with academic freedom.
The Council of Europe Parliamentary Assembly Resolution 1762 elaborated on this principle stating that:
Universities should be expected to live up to certain societal and political objectives, even to comply with certain demands of the market and the business world, but they should also be entitled to decide on which means to choose in the pursuit and fulfillment of their short-term and long-term missions in society. (The Council of Europe Parliamentary Assembly Resolution 1762(2006) para 10).
This principle is subject to the standards set by the National Council for Higher Education which dictates that institutions of higher learning in Uganda have the right to; constitute a governing body, determine courses of study, determine the methods of teaching, and the selection of areas and problems of research, admit and discipline students, set up a reasonable fee structure, appoint staff (teaching and non-teaching) and to take action if there is dereliction of duty on the part of any employees, by virtue of that concept. (See).
The rationale for Academic Freedom
Warren, C. J. in his judgment in the Sweezy case above opined on the justification for academic freedom stating that:
“…No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any straight jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise, our civilization will stagnate and die.”
Several key proponents of this right over the years have based their thinking on the firm belief that the freedom of inquiry for students and faculty is crucial to the mission of the academy. They argue that academic communities are frequently targeted for repression because of their power to shape and control the flow of information and when scholars seek to teach or communicate ideas or facts that are inconvenient to external political groups or authorities, they may face public vilification, job loss, imprisonment, or even death.
The main value of academic freedom is that it allows for unbiased and thorough accumulation of knowledge and the development of objective explanations for natural and social phenomena.
Albert Einstein underscored the need for such intellectual freedom in his speech at the Royal Albert Hall where he said:
“Without such freedom, there would have been no Shakespeare, no Goethe, no Newton, no Faraday, no Pasteur, and no Lister.” (See)
Hence the greater need for the less scrutiny and stringency in teaching and learning in University education.
As the common saying by the French writer Voltaire goes: “I disapprove of what you say, but l will defend to the death your right to say it.”
Challenge to the Realization of the Right in Uganda
Governmental domination of the educational process has the undesirable effect of stifling freedom of individual development which is the basis of democracy. (See).
A free society depends on free universities.
In a university, knowledge is its own end, not merely a means to an end.
A University ceases to be true to its own nature if it becomes the tool of Church or State or any sectional interest.
Imagine a village where only the chief is allowed to teach the children. He decides everything they learn and how they think.
The highest likelihood is that the children will grow up knowing only what the chief wants them to know, never questioning his authority or exploring their interests.
The State may play its role as a patron because it can but doesn’t have to remain above specific research interests however if the State tries to influence research outcomes, it undermines the very reason for its support.
It is required to maintain its role in the provision of funding and resources while allowing researchers the freedom to explore and discover independently because any unjustifiable involvement in the accumulation of knowledge compromises the integrity and credibility of the research process.
Justice Stephen Mubiru highlighted the danger of unchecked state control in higher education in the case of Dr. David Kitara Lagoro v Gulu University where he stated that exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies.
Any attempt by the government or courts to influence university and public tertiary institution decisions, especially decisions regarding academic progress would violate the concept of minimal state intervention and enhance the possibility of breaches of academic freedom.
He also noted that the Universities and Other Tertiary Institutions Act(UOTIA) attempted to provide for governmental regulation while at the same time respecting the autonomy and academic freedom of the institutions.
If the state influences the process of learning in ways that are not demonstrably justifiable in society, it undermines the very reason for which academic freedom exists.
Limitations of the Right
The right to academic freedom is not absolute and is subject to certain limitations and obligations.
Article 43 of the Constitution outlines the limitations on the enjoyment of rights specifying that while exercising these rights, individuals must not infringe on the rights of others or the public interest.
However, public interest cannot justify political persecution, detention without trial, or any excessive limitation of rights beyond what is acceptable and justifiable in a free and democratic society, or beyond what the Constitution allows.
The standard for the limitation of the right has been well enunciated by the Supreme Court of Uganda, which stated that:
The yardstick is that the limitation must be acceptable and demonstrably justifiable in a free and democratic society. The limitation on the enjoyment of a protected right in defense of public interest is in turn limited to the measure of that yardstick. In other words, such limitation, however otherwise rationalized, is not valid unless its restriction on a protected right is acceptable and demonstrably justifiable in a free and democratic society. (See at Page 13.)
The enjoyment of academic freedom also entails certain obligations, such as respecting the academic freedom of others, ensuring the fair discussion of opposing views, and treating everyone without discrimination based on prohibited grounds.
University self-governance must align with systems of public accountability, particularly regarding state-provided funding.
Given the significant public investments in higher education, a proper balance must be achieved between institutional autonomy and accountability. Although there is no single model, institutional arrangements should be fair, just, and equitable, and should strive to be as transparent and participatory as possible.
The Satirical Problem Question
The hypothetical problem question set by the head of the subject of Constitutional law and his co-examiners centers around Speaker Anita Among’s reaction to sanctions imposed on her by the UK government.
In the narrative, Among vows to address those spreading malicious reports about her and introduces a “Speaker’s Bill” in the House.
This Bill contains controversial provisions, including criminalizing adverse comments about the office of the Speaker with a five-year prison sentence.
Opposition Leader Joel Ssenyonyi protests the Bill and its process, leading to a confrontational response from the Speaker, who asserts her authority and expels Ssenyonyi from the House.
Despite lacking quorum, the Bill is passed and signed by President Museveni after he amends it to include references to himself and his family.
The hypothetical also describes the arrest of Ssenyonyi and two social media activists for criticizing the Speaker. The students are then tasked with identifying constitutional law issues and discussing their implications for the rule of law, democratic governance, and constitutionalism in Uganda. (See).
Other Questions in the Constitutional Law Exam
Other questions in the exam further tested the students’ knowledge to critically respond to current issues.
The question involved an assessment of the directive from Uganda’s President, Yoweri Museveni, to the Chief Justice earlier this year, instructing the review of a judicial decision made by another judge, the constitutional court’s decision upholding the Anti-Homosexuality Act, 2023, The so-called “hand-shake” and one-off service award of UGX. 500,000,000/= to former Leader of Opposition (LoP) Hon. Matthias Mpuuga and finally The appointment of General Muhoozi Kainerugaba as Chief of Defense Forces
(CDF) of the Uganda Peoples’ Defense Forces (UPDF).
The students were required to discuss the implications of the rule of law, democratic governance, and constitutionalism in contemporary Uganda. (See).
Investigation
Vice Chancellor Barnabas Nawangwe recently called for an investigation into the use of a deeply satirical essay in student exams.
Dr. Ronald Naluwairo, acting Principal of the School of Law, acknowledged the concerns but defended the exam for the course unit L1210 – Principles of Constitutional Law II, taken by first-year students on May 11.
Dr. Naluwairo opposed the investigation, calling it an “onslaught on academic freedom” and “retrogressive.”
Both Professor Nawangwe and Dr. Naluwairo received concerns about the parody and Professor Nawangwe emphasized that the investigation did not infringe on academic freedom and insisted on moderating exams. (See).
An emergency meeting was called by the Vice Chancellor to discuss whether the exam met the minimum academic standards of the University, ethical issues that fell below the expected standards, and an investigation into three past papers set by the examiner.
The major concern was whether there was moderation of the exam.
At the meeting, the Acting Head of the Department for Public and Comparative Law Dr. Benson Tusasirwe in his report found that the paper did not violate any of the minimum academic standards as enshrined in the University policies and the course outline for principles of constitutional law L1210 2023/24.
Members of the School Academic Board (SAB) agreed with him noting that the examination indeed met the minimum academic standards for the university and acknowledged that the university regulations were silent on examinations save for the requirement of moderation.
They asserted that this was in fact deliberate so as to allow for a wider range of assessment and ensure that no limits are placed on the range of ideas that a student can confront in real life. (See).
The Speaker of Parliament utilizing her social media account on X commented that she found no fault in the exam set for the students and believed that their duty was to give the students unbiased context on what exactly happened during the sitting in issue.
She remarked, “Let the children learn”.
Analysis
The uproar concerning the constitutional law exam suggests that indeed there was an outcry from those affected by the parody that in turn prompted an investigation (witch hunt) into the setting of the exam even though it is unclear who forwarded the concerns or that any were indeed forwarded.
The investigation into the examination reveals that the outcry was more about the public perception of those affected by it than the context in which the exam was set because even a cursory analysis of the exam reveals that it adheres to the objective standards typically used by examiners in assessing student learning.
The course outline for L1210 Constitutional Law II for the academic year 2023/2024 lists four expected outcomes, namely ensuring that students (a) have grasped the basic elements of Constitutional Law; (b) appreciate its over-arching character in relation to ordinary legislation; (c) fully comprehend the main principles (Rule of Law, Separation of Powers, and Fundamental Human Rights) and (d) be able to apply the key principles of Constitutional Interpretation.
Constitutional Law II at Makerere University covers constitutional law principles with particular reference to the 1995 Constitution of Uganda.
It scrutinizes the constitutional provisions, the exercise of government authority, and case law to know the role of the Constitution in good governance and development. (See)
The investigation was premised on the view that the examination falls below the minimum academic standards of the university and violated ethical standards but these assertions are baseless and here is why:
Problem questions normally combine factual and hypothetical scenarios using real names of individuals.
Examiners abroad have utilized a similar module for the assessment of students for instance President Obama’s presidential election campaign in 2012 was made the subject of a constitutional law examination at Emory University School of Law in Atlanta (See) and similarly, the approach taken by the examiner critically evaluates constitutional law issues.
What matters is that a student or any reasonable observer can recognize that the actions and statements attributed to these names or public figures are purely hypothetical and the examiner makes it clear that the students are to discuss the constitutional law issues in the above “scenario” indicating that this is a postulated sequence of events.
Political satire which is the basis of the satirical problem question is a form of humor that uses irony, sarcasm, and ridicule to critique political figures, institutions, and policies.
It serves as a powerful tool for engaging the public in critical thinking about politics by presenting unconventional perspectives and challenging the dominant narrative. (See).
It is not only for the interior pages of the newspaper anymore.
Modern political satire garners the attention of millions of viewers each year through witty commentary and exaggerated depictions of real-life situations.
These satirical works not only captivate readers but also encourage them to critically analyze current political events.
This engagement can motivate individuals more so students to consider various viewpoints before forming their own opinions hence it is indeed an effective tool for the education and even assessment of
students.
The examiners are well within their right to examine their students utilizing political figures in such a satirical fashion and are offered constitutional protection for it under academic freedom.
Protection of this right as a form of freedom of expression must include pluralism, tolerance, and broadmindedness from public officials regarding open criticism.
Any inquiry into this exam should be based on violation of academic integrity principles like fraud, plagiarism, deceit, falsification of data, or breach of any limitation placed on the right to academic freedom as earlier stated.
The satirical problem question which is the main concern of this examination falls within the legitimate exercise of academic freedom as it induces the students’ thought process on issues with significant likeness to those currently in Uganda and encourages independent thinking against the biased narratives that already exist regarding them.
The references in the problem question are synonymous with the allegations faced by the Speaker of
Parliament for blocking debates about her assets in the UK implicating her in corruption.
She is subject to travel bans and asset freezes, as well as reputational damage.
However, she denies any wrongdoing and recently addressed parliament, blaming homosexuals whom she derogatorily referred to as ‘bum shafters’ for the allegations against her.
The use of satirical references that deviate from the actual sequence of events encourages an unbiased interrogation of the state of the rule of law and democratic governance in Uganda.
The examiners exercised their prerogative to promote critical thinking and healthy skepticism of their students and as David Edwards, Deputy General Secretary of Education International, noted while addressing the state of academic freedom today, “a free teaching profession must inculcate students with the values of democracy and the competencies of healthy skepticism, critical thinking, scientific methods, understanding of history, and media and internet literacy.” (See).
Ordering an investigation into the examination is a blatant violation of the right to academic freedom because it deters the students’ pursuit of knowledge.
The absence of probable cause to justify the investigation into the exam, coupled with the fact that this exam is consistent with those set in the past without any prior investigations, suggests that external influences, possibly from the government, may be at play.
The African Commission has stated that:
“…. People who assume highly visible public roles must necessarily face a higher degree of criticism than private citizens; otherwise, public debate may be stifled altogether.”
An understanding that public officials will face scrutiny and criticism from society for their actions allows freedom of thought, conscience, and expression to flourish hence what basis can justify an investigation into an exam that allows the unbiased interrogation of a hypothetical societal event?
The President of the Uganda Law Society Mr. Bernard Oundo spoke out against the investigation of the examination stating that:
“Teaching and examining students about current affairs is critical in producing graduates who can effectively address contemporary problems and contribute to societal progress. Academic freedom involves the freedom of lecturers, teachers, students, and academic institutions to pursue knowledge wherever it may lead, without undue or unreasonable interference in their research and teaching activities. “
Conclusion
In conclusion, academic freedom in Uganda is a fundamental right that should be jealously protected.
We understand that much like other rights, it is not absolute and is subject to various limitations however none of those limitations would warrant an investigation into the constitutional law examination.
In the words of Dr. Busingye Kabumba, a lecturer at the Makerere University School of Law, “it appears that we are now living in a Uganda in which university exams which directly or indirectly call into question the propriety of the actions of public officials – exercising public duties – are unacceptable.”
I hope that the understanding of academic freedom I have depicted above will encourage fewer incidents
that deter lecturers from exercising their autonomy to teach students effectively as it is crucial to maintain an environment where educators can operate without undue interference, ensuring that their expertise and judgment guide the educational process.
Jambuka Arnest
Passionate about the Rule of Law and Seeks to Educate Members of the Public on various rule of law issues in the Country. Also enthusiastic about the corporate space.