Achero Mufuayia
Kenya’s judicial system consists of a hierarchy of courts whose decisions are binding on the litigants. The courts are a creation of the Constitution of Kenya as well as legislation that provides for their structures, powers and roles. The law also provides for the jurisdiction of the courts. However, there are quasi-judicial bodies within the public academic institutions with powers and jurisdiction to adjudicate on disputes arising between and among staff and students.
All public academic institutions in Kenya are established by the University Act of 2012. In addition, institutions have regulations that regulate admission of students as well as their disciplinary conduct. Public academic institutions, for instance University of Nairobi, Moi University and Kenyatta University, among others, have councils and committees that are tasked with the role of disciplining irresponsible students. In this regard, it should be noted that the committees deal with matters brought before them and involving the staff or students. In many cases, the jurisdiction of the committees does not extend to matters involving non-students and non-staff of the institution, unless the laws governing them provide so. In the same vein, the jurisdiction of the committees over a student cease with the lapse of a student’s membership to the public institution.
In this regard, matters involving non-staff or students are handled and addressed in forums within the judicial system, including lower and higher courts. Once one is cleared from an institution, they remain solely members of the public. Thus, cases involving them should be handled by the police and the courts. However, it is only under special circumstances that the disciplinary committees can deal with matters involving non-students, especially the alumni. These circumstances are, but not limited to, conditions leading to compromise of academic results issued by the specific institution, including forgery of results. This is done in order to protect the academic records and repute to the public.
In undertaking their duties, disciplinary committees are made up of an institution’s council as well as the students’ body. However, the right to legal representation is not allowed in these forums. The committees have powers to give binding decisions including expulsion and suspension of a student for a given duration based on their discretion. Where a member of staff or student appearing before a disciplinary committee is aggrieved with the decision of a disciplinary committee, the Universities Act and Regulations establishing the disciplinary committees allows for the right of appeal within the available structures.
The main discourse is whether their decisions can be appealed to the High Court as it has been, for instance, the practice within the legal profession that allows advocates aggrieved with a decision of a Disciplinary Committee of the Law Society of Kenya, for instance, to appeal to the High Court. In rare circumstances have aggrieved students taken up appeals to the court level. This might be attributed to their naivety, failure to understand the court procedures and the cost implications involved. Majority of the cases that have been witnessed involves the aggrieved staff versus the public academic institutions.
As I conclude, there are two key issues arising and worth noting within the corridors of justice – the right of legal representation and that of appeal of the decisions of a disciplinary committees by the parties aggrieved. Disciplinary committees of public academic institutions are important in administration of justice to relevant parties in Kenya.
These two issues should be given uttermost consideration, including review, to suit the current judicial practice. The relevant stakeholders should start thinking of restructuring the powers of the committees.
Writer is a Ph.D. candidate at the University of Western Cape
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