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of the Parliamentary Legal Committee on the Education Amendment Bill,
2005 [H.B.6, 2005]
August 23, 2005
Sir, the Parliamentary Legal Committee considered the Education
Amendment Bill 2005, [H.B.6, 2005] within the framework of its mandate
and regrets to report that it found the provisions of clauses 2, 5, 7,
13 and 14 to be in contravention of section 16 and 20 of the Constitution.
CLAUSE 2 OF THE
Sir, it is your committee’s view that the proposed definition of "responsible
authority" in clause 2 of the Bill is unconstitutional for being
inconsistent with section 20 (3) of the Constitution.
Section 20 (3) of
the Constitution confers on any religions denomination, person or group
of persons the right to establish and maintain a school. In the Education
Act, the term "responsible authority" is defined as meaning
the person responsible for establishing and managing the school concerned.
Clause 2 of the Bill substitutes a new definition of "responsible
authority". In terms of the proposed definition, the responsible
authority will mean the person, body, organisation (sic- no "or")
responsible for the establishment or management of the school will include
any person delegated by such person, body or authority to be the responsible
authority. That definition is nonsensical. It is not clear what is meant
by a person delegated to be "the responsible authority". It
appoints heads to manage the school that does not mean that the head has
been delegated to be the responsible authority because the body or person
responsible for maintaining the school retains that responsibility.
The proposed new section
36 set out in clause 7 of the Bill provides that a school development
committee shall be vested without the control and management of the financial
affairs of the school. That does not mean that it has been "delegated
to be the responsible authority".
Last year when schools
increased their fees without the necessary approval, the Minister of Education
sent the police to arrest a number of school heads. The police arbitrarily
arrested the heads and put them in the cells, even though the heads had
not committed any offence.
It was not the heads
who had increased the fees but the responsible authority. So much for
the rule of law in this country. It seems to me that what the Minister
is trying to do is to provide that if the board of governors/trustees
of a school raises the fees unlawfully, then the heads can again be arrested,
but this time with a semblance of legality. However, the drafting of the
definition is very inept.
In my view the new
definition has nothing to do with the new section 36. In fact, it might
even be counter-productive if the Minister’s reason for introducing the
definition is as I have set above. The proposed new section 36 provides
that the school development committee is vested with the control and management
of the financial affairs of the school. Does that mean that it has been
delegated to be responsible authority?
20 of the Constitution deals with the protection of freedom of expression.
Subsection (3) of that section provides that no religious denomination
and no person or group of persons shall be prevented from establishing
and maintaining schools. It is obvious from that provision that the Declaration
of Rights confers on the people in this country a right to establish and
maintain schools of their choice. Subsection (4) of section 20 of the
Constitution does limit to a certain extent the very wide ranging right
conferred by subsection (3). It provides that nothing contained in any
law shall be held to be in contravention of subsection (3) to the extent
that it makes provision which is:
- in the interests
of defence, public safety, public order, public morality, public health
or town and country planning, or
- for regulating
private schools in the interests of persons receiving instruction therein.
except so far as the
provision is shown not to be reasonably justifiable in a democratic society.
None of the provisions
of the Bill could be said to be in the interests of any of the matters
specified in paragraph (a) above. Therefore, the provisions in the Bill
can only be justified if they are in the interests of persons receiving
instruction at the school concerned and are also reasonably justifiable
in a democratic society.
Section 16 of the
Constitution deals with the protection from deprivation of property. Subsection
(1) of that section, insofar as it relates to property which is not land
or any interest or right therein, provides that such property shall not
be compulsorily acquired except under the authority of a law, amongst
- requires that the
acquisition is reasonably necessary in the interests of defence, public
safety, public order, public morality, public health, town and country
planning or the utilization of that or any other property for a purpose
beneficial to the public generally or any section of the public, and
- requires the acquiring
authority to give reasonable notice of the intention to acquire the
property to the owner thereof, and
- requires the acquiring
authority to pay fair compensation for the acquisition before, or within
a reasonable time after acquiring the property.
Subsection (7) of
that section specifies a number of cases where a law may provide for the
acquisition of property without contravening subsection (1). The only
relevant case is that specified in paragraph (a) which provides that the
law may lawfully provide for the acquisition of property by way of penalty
for breach of any law, whether under civil process or after conviction
of any offence, or forfeiture in consequence of a breach of any law.
CLAUSE 5 OF THE
of the Bill amends section 21 of the Education Act (the Act) in a number
of respects. The new subsection (1) that is inserted empowers the Minister
to "prescribe the amount or percentage of the fees and levies to
be charged by non government schools in a given year". No responsible
authority may charge or increase any fee or levy by more than the amount
or percentage that is prescribed, unless the fee or levy or the increase
has been approved by the Permanent Secretary. The new subsection (3) provides
that where such an application has been made, the Permanent Secretary
must have regard to various factors, such as the costs of operating and
maintaining the school, any programme for improving facilities thereat,
representations made by parents or pupils and other relevant factors.
He may then grant or refuse the application or fix the fee or levy.
It is significant
that subsection (1), in empowering the Minister to prescribe the amount
or percentage of the fees or levies charged, does not require him to have
regard to any factors. He is at liberty to prescribe whatever he wants
to fix. Having regard to the vast range of private schools in this country,
it will be impossible for the Minister to prescribe a fee, or a schedule
of fees, that would be appropriate and reasonable for each individual
The right of the responsible
authority to maintain its school, which is conferred by section 20 (3)
of the Constitution, will be effectively nullified by the new provisions
that are to be inserted in section 21 of the Act. The proposed new subsection
(1) is clearly unconstitutional because the responsible authority will
not be able to maintain its school if it is not able to get the money
it needs for that purpose by charging the necessary fees and levies. The
Minister or the Permanent Secretary will be able to close the school by
fixing fees or levies which are inadequate.
Clause 5 of the Bill
also amends section 21 of the Act by inserting new provisions in subsection
(5) thereof. The effect of the new provisions is that if the Permanent
Secretary is satisfied that his approval was obtained on the basis of
false or incorrect information or that the proceeds have been applied
for different purposes, he may place the school under the direct management
of the Ministry for a specified period or cause the excess amount to be
forfeited to the State or to deregister the school.
These provisions are
also clearly unconstitutional because they effectively prevent the responsible
authority from maintaining the school. If the school is placed under the
direct management of the Ministry (whatever that may involve), clearly
the responsible authority would no longer be in a position to continue
maintaining the school. When one has regard to the state of most government
schools, it is difficult to imagine that it would be in the interests
of the children attending the school for the school to be placed under
the direct management of the Ministry. Since the parents of children at
the school will have paid the fees or levies concerned, how could it be
in the interests of the children for the monies to be forfeited to the
State. Likewise, if the school is deregistered, the children would have
to be sent to another school. The deregistration can surely not be held
to be in their interests.
The provision empowering
the Permanent Secretary to cause the excess amount to the State is clearly
in contravention of section 21 of the Constitution. By the time the Permanent
Secretary acts in terms of this provision, the money would have been spent
on maintaining the school. Therefore the excess amount that is to be forfeited
could only be taken from the fees and levies collected in the succeeding
term or terms. That would have a disastrous effect on the running of the
school. Whilst, the forfeiture of the excess amount would amount to a
deprivation of property belonging to the responsible authority, it would
no doubt be argued that the deprivation is authorised by subsection (7)
(b) of section 16 of the Constitution in that it is acquired by way of
forfeiture in consequence of a breach of section 21 of the Act.
CLAUSE 7 OF THE
of the Bill substitutes a new section 36 in the Act. The new section requires
the responsible authority of a school to ensure that the parents elect
a school development committee which shall be vested with "the control
and management of the financial affairs" of the school. In the opinion
of your committee, that provision is also clearly unconstitutional because
it impacts on the right of the responsible authority to maintain the school
and therefore contravenes section 20 (3) of the Constitution. If the responsible
authority does not have effective control and management of its financial
affairs, it will not be able to maintain its school.
The responsible authority
of a private school raises money, by way of fees and levies, for maintaining
the school. All monies paid to the school become the property of the responsible
authority. By vesting "the control and management of the financial
affairs" of the school in the School Development Committee, the new
section 36 is authorizing that committee to spend money which belongs
to the school. If it has no authority to spend any money, how will it
be able to exercise "control and management"? The effect of
the provision is that the responsible authority will be deprived of its
property or its interest or right therein. Such a deprivation is not authorised
by any of the paragraphs in subsection (7) of section 16 of the Act. Therefore,
in my opinion, the new section 36 also contravenes section 16 (1) of the
CLAUSE 13 OF THE
of the Bill seeks to limit membership of teachers’ organisations to specified
persons. It appears to us that this clause does not comply with the provisions
of section 21 of the Constitution to the extent that it restricts the
freedom of association. It should be stressed that the Constitution does
not create room for the State to prescribe who should and who should not
belong to an association of this nature. The permissible derogations in
section 21 (3) of the Constitution do not save the proposed provision.
CLAUSE 14 OF THE
of the Bill inserts two new paragraphs in section 69 (2) of the Act. The
effect of one of the paragraphs is to empower the Minister to make regulations
providing for school uniforms. It is difficult to see how any regulations
providing for school uniforms can be said to be in the interests of the
children attending the school. If the regulating authority wants to provide
for uniforms then it must be free to be able to do so.
If the power conferred
on the Minister was to be used to impose a national uniform for all schools,
as he tried to do some months ago, it could be argued that such a regulation
could not be reasonably justifiable in a democratic society. A democratic
society requires that every responsible authority should be free to adopt
a uniform of its choice.
SOME GENERAL REMARKS
It is our
view that the person who drafted the Bill did not apply his/her mind carefully
to the matter. These are our reasons:
- The existing subsection
(1) of section 21 of the Act provides that a responsible authority cannot
change or increase a fee or levy without obtaining the approval of the
Permanent Secretary. Subsection (2) of that section then provides for
the manner in which an application should be made for approval "in
terms of subsection (1)". Clause 5 of the Bill repeals subsection
(1) and substitutes a subsection which authorises the Minister to prescribe
the fees and levies. However, it does not amend subsection (2) of the
Act. Therefore, if the Bill remains as presently drafted, subsection
(2) of section 21 of the Act is meaningless because neither the Permanent
Secretary nor the Minister can grant approval in terms of subsection
- There is no provision
in the proposed new subsection (1) of section 21 of the Act to "save"
fees and levies that were approved before the Bill becomes law. If,
therefore, a school is charging fees and levies which have been approved
and the Minister, in terms of the new provision, prescribes a lower
fee or levy, the school will have to drop its fees and levies to the
new level. If some of the fees and levies have been collected, the responsible
authority would be able to keep the full amount but, in the case of
fees and levies which have not been paid, the "lucky" parents
will only have to pay the new lower rates.
- The proposed new
subsection (3) of section 21 of the Act specifies various factors which
the Permanent Secretary must have regard to when he considers an application
made in terms of subsection (2) of that section. However, that subsection
(2) refers to applications for approval in terms of subsection (1).
When the Bill becomes law, the Permanent Secretary will no longer have
the authority to grant approval in terms of subsection (1) of section
- It is anomalous
that the Permanent Secretary is required by the proposed new subsection
(3) of section 21 of the Act to have regard to a number of specified
factors before he grants or refuses an application and yet the Minister,
in exercising his powers under the proposed new subsection (1) of that
section, is bound by no restrictions. He can be as arbitrary as he wants.
If regard is given to the very wide range of private schools in Zimbabwe,
it will be impossible for the Minister to prescribe fees and levies
that will be appropriate for every individual school. He will have to
prescribe different levels of fees for different classes of schools.
If the fee is appropriate for the top-of-the-range schools in a specific
category, it would mean that the lesser schools could easily increase
their fees to match the level prescribed for their category.
- Paragraph (c) of
Clause 5 of the Bill inserts a new paragraph (c) in subsection (5) of
section 21 of the Act. The new paragraph refers to a "non-Government
school" contravening subsection (1) of that section. However, the
proposed new subsection (1) prohibits the responsible authority from
charging higher fees, so it is the responsible authority, not the school
which contravenes subsection (1).
- Paragraph (c) of
clause 5 of the Bill also confers certain powers on the Permanent Secretary:
- He may "dissolve"
the School Development Committee. What does that mean? Is it only
the members of the committee who are kicked out of office? If that
is so, what is intended should be said. If the committee is dissolved,
can the parents elect a new committee? Are they required to do so?
- He may place
the school under the direct management of the Ministry. Does that
mean that the Ministry can issue cheques, etc? Are the employees answerable
to the Permanent Secretary or to any official in the Ministry? What
happens if the Head refuses to do what he or she is told to do?
- He may cause
the excess amount collected to be forfeited to the State. In the case
of forfeiture, it is the actual object concerned in relation to the
breach which is forfeited. Once money is banked or spent it cannot
be forfeited. The Permanent Secretary would not be able to cause money
in a bank account to be forfeited because that is merely a figure,
not actual money.
- Clause 12 of the
Bill deals with subjects to be taught in schools. The proposed new section
61 (1) provides that the three main languages and "such other local
language" shall be taught on an equal-time basis. The reference
to "such other local language" is completely meaningless.
PROF. W. NCUBE
CHAIRMAN - PARLIAMENTARY LEGAL COMMITTEE
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