This paper was commissioned as support material for the book TRANSFORMATION IN HIGHER EDUCATION Global Pressures and Local Realities in South Africa

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1 Commissioned Papers: The Relationship between the State and Higher Education Institutions with Reference to Higher Education Policy Documentation and the Legislative Framework NIC OLIVIER April 2001 This paper was commissioned as support material for the book TRANSFORMATION IN HIGHER EDUCATION Global Pressures and Local Realities in South Africa It has particular relevance for Section 1: The Transformation Context Section 3: Policy, Institutions and Globalisation The views and opinions are those of the author and do not reflect the views of either the Editorial Group or the CHET Board. CONTENTS 1. Introduction 2 2. Policy Documentation Informing the Content of Co-operative Governance National Commission on Higher Education Green Paper on Higher Education White Paper on Higher Education 7 3. Constitutional and Statutory Framework Constitution of the Republic of South Africa 108 of Higher Education Act 101 of Conclusion Suggestions for Related Issues to be Researched 13

2 1. Introduction At present the principle of co-operative governance underpins the relationship between the South African State and higher education institutions (hereafter HE institutions). The acceptance of the notion of co-operative governance in the White Paper on Higher Education (hereafter White Paper) heralded the finalisation of an ongoing discussion in HE circles, HE NGOs and government on the precise relationship between government and the HE sector. In this context the policy decision by the South African Parliament not to include institutional autonomy as a fundamental freedom in either the 1993 (Interim) Constitution 200 of 1993 (hereafter 1993 Interim Constitution) or the final Constitution of the Republic of South Africa 108 of 1996 (hereafter 1996 Constitution) gave a clear indication of an approach that would favour a fundamental re-evaluation of the old order relationships between government and the distorted and racially determined (also from an administrative perspective) HE sector. In addition, the content and ambit of the notion of cooperative governance as a guiding principle within the HE context is determined by the core constitutional value of co-operative government as a binding principle for all intergovernmental relations between the three spheres of government (including all government departments) and organs of state (including HE institutions). 2. Policy Documentation Informing the Content of Co-Operative Governance The following policy documents need to be analysed so as to identify the various governance models that were under consideration during the period up to 1996, as well as to determine why co-operative governance was identified as the most suitable model at the time of the completion of the policy process: National Commission on Higher Education Report (hereafter NCHE) Green Paper on Higher Education (hereafter Green Paper) White Paper on Higher Education (hereafter White Paper). 2.1 National Commission on Higher Education The National Commission on Higher Education (NCHE) identified three models that were in existence elsewhere in the world and that regulated the governance of the HE systems concerned. These models define the different forms of relationships, even today, between respective Governments and the HE systems concerned: State control In terms of the State control model the State is seen as the fons et origo of all decisions regarding Higher Education. This implies a strong bureaucracy, and includes the planning of the system, the financing of the system, controls in 2

3 respect of access (absolute numbers, as well as to specific programmes) and expenditure, as well as the central planning and implementation of quality assurance programmes as regards tuition and research. Monitoring and evaluation (as well as the identification and implementation of corrective steps) are inherent key components of this approach. The NCHE Report gives the following description of the state control model which starts from a normative ideal of rational decision making based on firm knowledge of the object of regulation and the possibility of controlling the behaviour of actors. It has generally operated in Europe where the higher education system is created by the state and almost completely funded by it with key aspects managed by government bureaucrats. These systems are characteristic not only of central planning economies such as the former USSR, but also of a western democracy such as France, and in the east, Malaysia and Singapore. State supervision According to the state supervision model, the State is responsible for the broad framework and planning for the HE system, its financing as well as quality control at the macro level. Accountability by the individual HE institutions is less specific, and is often limited to the submission of annual reports, which are subject to serious review only when the system itself is being reviewed. The institutions (as well as voluntary associations of institutions) are primarily responsible for the particularisation of the broad framework. This approach often results in major differences between institutions, and the growth (and maintenance) of divergent institutional cultures. The NCHE report refers to this model as follows: the state sees its task as supervising the higher education system to ensure academic quality and maintain a certain level of accountability. In terms of regulatory theory, this model is based on a cybernetic perspective on decision making, recruiting the self-regulatory capacities of decentralised decision-making units. The government sets the overall policy objectives of the system, monitors the achievement of these objectives, and influences the rules that guide the behaviour of the actors so as to maximise the chances of achieving the objectives. State interference Within this model, the state in principle allows HE institutions to largely plan and proceed at their own discretion. At most, Government provides the broad outline of a rather vague HE policy, as well as funding. For the rest, institutions are not directly (or, in most cases, even indirectly) controlled; the principle of institutional autonomy applies. However, when problems at those institutions present themselves, and especially when the institutions are used as a basis of opposition against the government (or are being perceived to have become 3

4 central rallying points for opposing and overthrowing the government), the state then takes direct steps in an attempt to eradicate the (perceived) opposition. (In some instances this might also result in the temporary closure of HE institutions, as well as in government interference in the re-admission of students and the continuation of services of, especially, academic staff members who are deemed to be openly critical of the government of the day.) The NCHE Report describes this model as follows: the term interference is used to signify that it is not a systematic control or intervention policy model. Rather, interference occurs when higher education institutions become sites of opposition to the state s development path. In state control the intention is either political or bureaucratic control while in state interference autonomy is the official policy. Examples include Zimbabwe and the former South Africa. However, the NCHE opted for a new model, referred to as co-operative governance. As regards its relationship with the three above-mentioned models (state control, state supervision and state interference), it is most closely linked to the state supervision model. However, the proposed model differed on a number of substantive issues from the standard state supervision model. In particular, these related to the context of fundamental norms for the new democratic South African state, which accepts that partnership between government, institutions and civil society should exist, and that these relationships should be structured in such a manner that they would give content to the transformatory, participatory and equity values underpinning the new constitutional order: This model can be broadly located within the framework of state supervision. However, the choice is not for or against a simple model; there are variations of state supervision within which the government can have a more or less directive role. Considering that conditions in South Africa do not favour a conventional sate supervision mode, the Commission proposes a model called cooperative governance. This model could be regarded as a South African variant, with several distinguishing features, of a state supervision approach. This new approach to government shifts from a narrow concern with government to a wide range of governance mechanisms which are concerned with the growing role of associations, different agencies and partnerships, and that reflect the dynamic and interactive nature of coordination. Co-operative governance is to be located within a legitimate state that is striving to become democratic and encourage a strong state, strong civil society model in the sense of an assertive government bureaucracy that 4

5 has capacity, and has a multiplicity of autonomous civil society constituencies which acknowledge their different interests, maintain separate identities and acknowledge their mutual interdependence and responsibilities for attaining a common goal. Conflicts between the various interest groups should be mediated, and conflict resolution should take place in a participative and transparent manner. In this context it requires responsibility and compliance with an agreed upon code of conduct by all stakeholders. In addition, government should accept that the proper development of the HE system would require recognition of some form of institutional autonomy, limited, of course, by accountability to the state, as well as to stakeholders inside and outside the HE institution concerned: Government as a main role player should exercise its authority and its powers over the higher education system in a transparent, equitable and accountable manner and in a discernible pursuit of the public good. It should understand the social, cultural and economic needs and concerns of all potential (direct or indirect) beneficiaries of higher education, to be able to steer the system in a desirable direction. In its relation to institutions and to the system as a whole, there should be a recognition of the maximum degree of practicable autonomy and a commitment to consultation and negotiated solutions of problems. The three assumptions underlying the co-operative governance framework were described by the NCHE in the following manner: Differentiation and sharing of functions and powers. Policy formulation, decision making, implementation and monitoring are separate, yet connected functions. Multiple levels and facets of policy making, decision making, implementation and monitoring. In conclusion, the NCHE in effect opted for a model that consisted of strong steering elements, whilst providing for a limited form of institutional autonomy subject to a defined regulatory framework (applicable across all HE institutions) for the internal transformation and democratisation of the HE institutions themselves: Co-operative governance offers a strong steering model with a planning role and a strong co-ordinating role, which provides for increased and stronger government and stakeholder participation, as well as expert input from the sector. The model allows for the mobilisation of policy and implementation capacity located outside government. A fundamental tenet is that stakeholders will participate in policy development and that structures and mechanisms should be put into place to give effect to this. 5

6 2.2 Green Paper on Higher Education In the Department of Education s Green Paper on Higher Education the following assumptions are said to underpin its acceptance of co-operative governance as the determining framework for the relationship between government and the HE institutions and stakeholders: No-one has the exclusive responsibility or authority for the final determination of policies and priorities; Competition, complementation as well as interdependence and the acceptance of common goals are characteristics of the proposed HE system; The system should provide for a balance between the two goals of participation and effectiveness; The existence of power relations, shared accountability and responsibility result in the need for co-operative conduct on the part of all stakeholders; Against the backdrop of a set of national goals, government would play a steering and co-ordinating role (with stakeholder participation). The Green Paper refers to the place and role of academic freedom and institutional autonomy (self-regulation and administrative independence to decide on its own programmes and priorities). However, this should be balanced by accountability to all relevant stakeholders (with specific reference to the utilisation of funding). Explicit provision is made for the right to be vested in the Minister to appoint independent assessors in cases of alleged mismanagement, corruption or persistent turmoil. The Green Paper says the following regarding governance at system level: 3.1 Governance of South Africa s higher education system is a matter of significance, complexity and sensitivity. The NCHE has argued that to transcend the adversarial relations between state and civil society arising from the apartheid era, a unique form of system level governance is required for South Africa. It notes that an integrated system still has to be created; that the planning, regulatory and administrative structures and capacity are lacking; and that the historical legacy makes it difficult for organised constituencies to prioritise their concerns and direct their behaviour for the common good. 4.8 The division of responsibilities between the CHE and the Department will provide two important protections for higher education institutions: first, against the Department s intrusion on the autonomy of institutions; and second, against a punitive approach to the reduction of differences between institutions on the basis of factors and qualitative performance. The functions of the CHE include a watchdog role over the Department s relations with institutions, so that if problems arise they can be brought to the attention of the Minister and Parliament. 6

7 The implications of co-operative governance are stated as follows: The directive role of the state is reconceived as a steering and coordinating role. The relationship between the state and higher education providers should reconcile the self-regulation of institutions with the planning and broad policies of central authorities. However, this should not result in involvement of the State in the micromanagement of the system; diversity and flexibility should be allowed as they would, amongst other things, be indicative of institutional responses to changes in the immediate contexts facing individual HE institutions. On account of the system wide characteristics of limited resources, demands for greater participation, expanded student numbers, and a need for more efficiency and accountability, the Green Paper s proposed approach of the cooperative governance of the HE system as a whole should be mirrored in the internal structures and relations within each individual HE institution. This dual context of co-operative governance is referred to in the Green Paper as follows: Two central issues for institutional governance are the relationships between the institution and other external social interests (autonomy and accountability) and internal decision-making arrangements (representation, participation and structures). 2.3 White Paper on Higher Education The White Paper on Higher Education emphasises the need for the realisation of wholly transformed governance arrangements at national (system) and at institutional level. 3.1 For the first time in their history, our higher education institutions have the opportunity to achieve their full potential, but they will not do so until their system of governance reflects and strengthens the values and practices of our new democracy. Furthermore, wholly transformed governance arrangements are needed to chart and steer the development of a single, integrated national system of higher education. The transformation of governance in the national system and its institutions are therefore a fundamental policy commitment of the Ministry of Education. Co-operative governance arrangements should reflect agreed upon values as regards the distribution and exercise of authority, responsibility and accountability. Some of the main characteristics of the then existing HE system were struggles for control, lack of consensus and even conflict over differing interpretations of higher education information with views and expectations differing (and often 7

8 competing) between the categories of HE stakeholders. These divergences could only be resolved by means of participative and transparent processes within the context of co-operative governance. With reference to local and international experience, the principle of cooperative governance should form the basis of the relationship between government and the HE system; this model is by its very nature interactive. However, the Minister - as the representative of the democratically elected government is in the final instance (after appropriate consultation in an inclusive, participatory and transparent manner) obliged to make final decisions. It goes without saying the Minister has to take full political responsibility for such decisions. Provision is also made for the establishment of the Council on Higher Education, which is to play a mediating role in cases of disputes between government. The composition of the CHE mirrors the most important categories of HE role players and stakeholders on account of its composition being in part professional, in part stakeholder representative. The White Paper indicated that it should have a strong advisory role as regards policy formulation, planning and implementation by the Minister of Education. In addition, the relationship at national (system) level is described as pro-active and being within a partnership mode. This pro-active and transformative nature of co-operative governance is explained as follows: Co-operative governance assumes a proactive, guiding and constructive role for government. It also assumes a co-operative relationship between the state and higher education institutions. One implication of this is, for example, that institutional autonomy is to be exercised in tandem with public accountability. Another is that the Ministry s oversight role does not involve responsibility for micro-management of institutions. A third implication is that the Ministry will undertake its role in a transparent manner. The above approach of co-operative governance at the national (system) level) should also be mirrored at the individual (institutional) level, without the Minister obtaining the power to micromanage any individual institution. However, in line with the Green Paper, provision is made for the appointment of an independent assessor in cases where in the opinion of the Minister serious circumstances (eg. mismanagement or inefficiency) warrant an inquiry. 3. Constitutional and Statutory Framework As regards the legal framework, the relevant provisions of the following key national statutory instruments determine the prescriptive aspects of cooperative governance: 8

9 The Constitution of the Republic of South Africa 108 of 1996 The Higher Education Act 101 of Constitution of the Republic of South Africa 108 of 1996 The 1996 Constitution provides for higher education to be in the functional domain of the national sphere of government. As discussed above, the Constitution does not contain any reference to the institutional autonomy of HE institutions. In view of the fact of Higher Education institutions being public bodies, established in terms of legislation and performing public functions, the Constitution categorises them as organs of state. Within this context, the relevant constitutional provisions dealing with co-operative government (Chapter 3) and public administration (Chapter 10) apply to all HE institutions. This entails, amongst others, the following: compliance with the constitutional provisions as regards the relationship between the national sphere of government and higher education institutions (Chapter 3). Key provisions in this regard which are characterised by the peremptory nature of sound intergovernmental relations (and which are applicable also to the relations between the Minister, the Department of Education, the CHE and the HE institutions) stress the need for sound relations and mutual respect for the integrity of the functional sphere of the parties concerned. In cases of conflicts every attempt should be made to effect resolution; a court of law is required to adjudicate on disputes only where it is satisfied that all attempts have been made by the parties concerned, and the court is in effect the last resort. A constitutional provision (section 41(2)) for the enactment of national legislation determining the norms, mechanisms, structures and systems for the resolution of disputes. This legislation has not yet been enacted. (However, the Higher Education Act 101 of 1997 does contain a few indirect mechanisms for dispute resolution within the HE context.) In addition, the Constitution (Chapter 10) also provides for the compliance of all government departments and organs of state (including HE institutions) with the principles of public administration. In this regard, the provisions in respect of equity, accountability and transparency are also binding on all HE institutions. 3.2 Higher Education Act 101 of 1997 The Higher Education Act 101 of 1997 refers, in its preamble, to the need for the establishment of a single co-ordinated HE system that promotes cooperative governance. Institutional freedom and autonomy in the HE institutions relationship with the State are specifically mentioned. However, these two 9

10 notions are circumscribed by the need for public accountability, advanced skills and scientific knowledge: to establish a single co-ordinated higher education system which promotes co-operative governance and promotes programme-based higher education. for higher education institutions to enjoy freedom and autonomy in their relationship with the state within the context of public accountability and the national need for advanced skills and scientific knowledge. The Higher Education Act provides for the following categories of governance structures at national (system) level: The Minister of Education The Department of Education The Council for Higher Education (partly stakeholder representative, partly professional) which might be characterised in its mediating role as a buffer body between the State and HE institutions. In addition, the CHE has a number of strong advisory powers; in a number of instances, the Minister cannot act without having first consulted the CHE. Although he/she doesn t have to follow the advice of the CHE, a report with written reasons why said advice had not been followed, should be submitted to Parliament. This would imply that in the context of dispute resolution (based on the principle of co-operative government), Parliament has the final say in cases where the Minister and the CHE are unable to resolve their differences in a cooperative governance mode. As regards the direct relationship between the Minister and individual institutions, the Act provides for the principle of compulsory consultation in a number of instances (eg. mergers, etc.). However, the Minister is not bound by such advice. In addition, the Minister is empowered to intervene in the affairs of a specific institution by means of, inter alia, the appointment of an independent assessor and by attaching conditions to the granting of funding. In the case of a decision by the Minister to appoint an independent assessor, the Minister is not obliged to consult the HE institution concerned. At institutional level, the Act provides for the following internal governance structures whose relationships and functioning should be underpinned by the notion of co-operative governance: Council Senate Principal Institutional forum Students representative council. 10

11 At institutional level the Higher Education Act provides also for co-operation between public higher education institutions. The minister is empowered to force such co-operation in cases where it is, in his opinion, appropriate to merge HE institutions (or parts thereof), or even to close HE institutions, after all the requirements (inter alia with regard to consultation with the HE institution(s) concerned) have been complied with. The Higher Education Act was amended in 1999 and The effect of the amendments has, broadly speaking, been the strengthening of the Minister s approval and interventionist powers, as well as increasing the Department of Education s powers and discretion in respect of the registration and the scope and range of operation of private higher education providers. The following examples are indicative of the strengthening of the Minister s role and powers within the domain of public Higher Education: The determination by the Minister of the scope and range of operations of public (and private) HE institutions (in terms of the HE policy issued by the Minister in terms of section 3 of the Higher Education Act 101 of 1997) in the interest of the HE system as a whole, and also that of individual public (or private) HE institutions. The appointment of an administrator by the Minister subsequent to an audit of the financial records or a report of an independent assessor, revealing financial or other maladministration of a serious nature after consultation with the council of the HE institution concerned (if practicable) to perform the functions relating to the governance or management on behalf of the HE institution concerned. (The reference to if practicable ensures that the Minister may also without any consultation appoint an administrator, and the references to governance or management would imply that the administrator may take over the role of the council (governance) and/or of the principal (management) of the institution concerned.) The requirement to obtain the Minister s approval for the entering into an agreement by a council as regards the acquisition of funds by means of a loan or overdraft in excess of the amount as determined by the Minister for the institution concerned, or, in the absence of such limit, of an amount in excess of 5% of the average income received by such institution during the previous two years immediately preceding such envisaged agreement. The requirement to obtain the Minister s approval for the construction of permanent buildings or other immovable infrastructural development, the purchasing of immovable property, or the long term lease of immovable property by a council in excess of the amount of 5% of the average income received by such institution during the previous two years immediately preceding such envisaged action. 11

12 The compulsory submission by a council of a report containing information on the overall governance of the institution, a duly audited statement of income and expenditure, and a balance sheet and cash flow statement, in the format as required by the Minister. The above amendments are indicative of a change in emphasis on the part of government as regards the form and content of the relationship between government and the HE sector as a whole, as well as between government and individual HE institutions. This approach (which seems to be in line with the basic philosophy underlying the Green Paper on Higher Education) is characterised by: the incorporation of additional aspects of a strong steering model, resulting in an increase in the role and powers of the Minister in the governance and management of the HE system as a whole as well as of individual HE institutions; the strengthening of the Minister s interventionist powers, especially with respect to individual HE institutions, but also to the HE system as well (in terms of the Higher Education Plan as issued by the Minister). 4. Conclusion It is clear that the co-operative governance model, which was identified in the White Paper on Higher Education, has its roots in the initial discussions on the remaking of the diverse and racially based HE system that was part and parcel of the pre-1994 legacy. However, it would appear that this principle has an increasingly strong steering aspect, and also, to some extent, interventionist elements. The undisputed increase in the powers and functions of the Minister in terms of the 1999 and 2000 amendments to the Higher Education Act 101 of 1997 also evidence this. It is suggested that it might be appropriate to consider the evaluation of the present context, content and application of the notion of co-operative governance as guiding principle which was meant to underpin all relations between the Minister, the CHE and the HE institutions. In this regard the increasing utilisation by the Minister of interventionist powers in terms of the Higher Education Act and conduct of all HE stakeholders, should be measured against the overriding and peremptory provisions of the Constitution, especially in respect to co-operative government (with specific reference to conflict management and dispute resolution), and to a lesser extent, in respect to the Constitutional principles with regard to public administration. 12

13 5. Suggestions for Related Issues to be Researched The above overview indicates that there are a number of related issues that need to be researched in order to have an all-encompassing and coherent understanding of the policy and legal framework as well as its application by the role players as identified in the Higher Education Act (see discussion above). The envisaged research should focus on governance from an application perspective, and should consist of an audit of all relevant administrative practices executed, and planning and policy documents produced, by said role players, as well as of the constitutional provisions concerned and would include, amongst others, the following: An audit of all administrative acts as executed by the Minister and by the Department of Education (as regards requests for information, the day to day management of HE institutions, interventions, planning, etc); An audit of the Council on Higher Education s work within the governance context, including its proposals on mergers, etc (which might be interpreted as being indicative of a state interventionist approach); An audit of governance at the institutional level, with regard to the establishment of the new prescribed structures and the relationship between those structures, as well as compliance by the individual institutions with the Higher Education Act and the White Paper on Higher Education; An audit of the National Plan on Higher Education; As regards the Constitution: an analysis of the contents and the implications of the chapters dealing with: - Co-operative government and intergovernmental relations (Chapter 3); - Public administration (Chapter 10). (In this context the national government departments responsible for the administration of the chapters concerned should be contacted in order to determine official government policy and thinking on these issues, so that the HE legislation and practice (if deviating) could be considered for alignment therewith.). FOR COMMENTS PLEASE CONTACT oliviern@mweb.co.za ACRONYMS AND ABBREVIATIONS 1993 Interim Constitution Interim Constitution 200 of Constitution - Final Constitution of the Republic of South Africa 108 of 1996 CHE - Council on Higher Education Green Paper - Green Paper on Higher Education HE - Higher Education 13

14 NCHE - National Commission on Higher Education NGO Non-governmental Organisation White Paper - White Paper on Higher Education 14