UNILAG MIS-MANAGEMENT - A LEGAL ANALYSIS
UNILAG mis-MANAGEMENT – A LEGAL ANALYSIS
Joshua Omenga
Contrary to opinions and speculations, the Vice Chancellor and the Senate of the University of Lagos have not acted outside their ‘power’ in vacating the students and setting draconian policies in the school. Their (in)actions are firmly rooted in the University of Lagos Act 1962. Section 8 of the Act empowers the Senate to oversee the ‘welfare’, conduct and DISCIPLINE of the students; and Section 12 empowers the University to make regulations to that effect. Section 20 provides for the discipline of the students by the VC, which may be in the form of restriction, suspension or even expulsion on the basis of misconduct. Misconduct although not defined in the Act, seems to mean academic misconduct, as you may infer from your docket. But the Act empowers the school to discipline on other basis other than misconduct. In essence, vacating the students from the hostels and ‘purporting to expel them’ on the basis of their protest may well still fall under the disciplinary powers of the University. Added to these is the fact that the University has discretion in exercising these powers.
That much is certain and to question it is to question the law. I am not for questioning the law; therefore, pardon me if I do not dwell on the rationale for these ‘empowerments.’
What I question is the overall legal ground of these powers exercised, their arbitrariness and effectiveness – for these are not the same as legality. Oh, I will not be asking questions now: I will be answering them. But before then, some jurisprudential analogies and inferences, or, for those not legally inclined, ‘commonsensical’ inferences.
The subsistence of a legal order is premised not only on the validity – and therefore legitimacy – of the ‘individual norms’, in Kelsian language, but also on the effectiveness of the whole legal system. Simplified, whether a new order brought upon the existing one or the old order survives the onslaught of the new law, depends on the ‘principle of effectiveness’ of either law. Therefore, if the new order effectively supplants the old order, it becomes the recognised legal order; if it fails, it is regarded as act of rebellion under the old order. However, according to Professor Eekelaar, during the interregnum between the new and old orders, some principles survive, and among them is the principle of legitimate disobedience to authority exercised for wrongful purpose.
Forgive the abstruseness, it is an inevitable garb of legal language; I promise you will get the kernel of the legal nonsense by and by. To note, this is not entirely a change in ‘the University legal order’, but as noted, we are only drawing an analogy from jurisprudence.
In every legal order, substantive due process as a fundamental doctrine of law permits a person to DO ANYTHING NOT FORBIDDEN BY LAW and restricts officials FROM DOING ANYTHING NOT PERMITTED BY THE LAW (See Chief Justice Camden’s exposition in Entick v Carrington). Unless there was anything in the school rules and regulations prohibiting students from carrying out A PEACEFUL PROTEST OR MAKING LEGITIMATE DEMANDS FROM THE SCHOOL MANAGEMENT it is ultra vires of any authority in the school to restrict them from doing so, moreso as such authorities are not expressly permitted to restrict the students. Therefore, IT IS OUT OF QUESTION THAT THE STUDENTS ERRED IN CARRYING OUT A PEACEFUL PROTEST TO PUT ACROSS THEIR DEMANDS, whether reasonable or frivolous.
The whole saga of protest and suspension of activities and the new requirement of signing undertakings before ‘re-admission’ may be seen as a revolutionary change, the end result of which is that the University Management tried to impose a new condition of studentship. In this regard, whether or not the existing rules governing the school or the new one purported to be imposed on the student is in consideration, the students still have intact the right to DISOBEY AUTHORITIES EXERCISED FOR WRONGFUL PURPOSE. The new draconian requirements for ‘readmission,’ even if validly made, is not effective enough to ground a condition for supplanting the old system under which the students matriculated.
If at all there is justification for the new order of things requiring signing undertaking before getting into school, doing so would depend on the overall effectiveness of the new legal order. And this depends on whether the new order is accepted as a replacement for the old one. On this ground, I FIRMLY INSIST THAT THE NEW ORDER HAS NOT SUCCEEDED AND THAT ALL ACTIONS ARE TO BE JUDGED ON THE RULES UNDER WHICH THE STUDENTS MATRICULATED AND WHICH THE MEMBERS OF THE MANAGEMENT RECEIVED THEIR APPOINTMENTS.
But JURISPRUDENCE APART…
Every structured society works on the framework that all actions derive from law which are validated by higher norms. We have said that in this regard, issuing the undertaking form is a valid act of the Management because it emanates from the power granted them by the University of Lagos Act, which is a valid Act of the National Assembly. However, it should be noted that what is valid is the process, not the substance; and even where the process is valid, an enactment may yet be invalidated on the ground of inconsistency with a higher norm. Even those not legally inclined will understand the supremacy clause which elevates the Constitution above other laws, so that any law making provisions contrary to the provision of the constitution, or purporting to restrict or remove the rights granted by the Constitution, will be void to that extent of inconsistency.
In requiring every ASSOCIATION to be approved by the Management before any one may join it, the Management has made a rule contrary to the Constitution which grants everyone the right to freedom of association, subject of course to public interest. Unless the Management is able to show that any association is contrary to the public interest and safety, it has no power to restrict the joining of such an association by students as it purports to do under the new law.
Since there was nothing under extant rules restricting the students from making peaceful demands (whether the demands are granted or not) suspending ULSU on the basis of the protest is an improper exercise of the discretionary power of the University, and if it is purported to be done on the basis of the new rules, it would be invalid on two reasons. 1. The new order is not even a recognised dispensation. 2. It would amount to a retrospective legislation. If the school makes a rule prohibiting students from forming any peaceful association for the protection of their interest, it will be invalidated on the basis of inconsistency with the constitutionally guaranteed rights.
To even require that students keep mute and not express their opinion in matters concerning them is a restriction on their right to freedom of expression. This right does not imply freedom of REASONABLE EXPRESSION, so the Management cannot justify itself by insisting that the students’ expressions of concern are unreasonable (and I patiently await an explanation that would render a demand for water and electricity an unreasonable one). It may choose to hear or ignore them, BUT NOT RESTRICT THEIR EXPRESSION.
We have noted elsewhere that it is wholly irrelevant to talk about ‘readmission’ or ‘reabsorption’ when the students have not – under old or new order – been expelled or suspended. But supposing (without conceding) that it is not a misnomer to sign such undertaking, it is still unnecessary for the School to demand it. In a functional legal system, the law does not require you to sign an undertaking to indemnify a victim in a tortious accident caused by you before you are allowed to drive; the law simply stipulates the penalty for reckless driving and implements it in case of violation. In school, you need not sign an undertaking that you will not cheat in an examination before you are allowed to enter the hall; the examination regulation simply stipulate the punishment for cheating and allows you to cheat at your own peril. It is therefore unethical for the School to require signing undertaking as a prerequisite for re-entering school when it could simply state the penalty for certain actions and then leave the students to (dis)obey at their peril. And any such rules must be promulgated, for according to Lon Fuller, an un-promulgated law is impossible to obey.
Of course, all these polemics are moot if the essence of the undertaking is to READMIT the students. It cannot be emphasised enough that on no pretence can it be shown that the students were EVER EXPELLED in order to require their READMISSION.
I therefore submit that legally and ‘commonsensically,’ it is superfluous to require the students to sign any undertakings. In this wise, NO UNDERTAKINGS NEED BE SIGNED BEFORE THE STUDENTS ARE ALLOWED BACK TO THE SCHOOL (assuming we have concurred to expunge the word READMISSION)!
Joshua Omenga
Contrary to opinions and speculations, the Vice Chancellor and the Senate of the University of Lagos have not acted outside their ‘power’ in vacating the students and setting draconian policies in the school. Their (in)actions are firmly rooted in the University of Lagos Act 1962. Section 8 of the Act empowers the Senate to oversee the ‘welfare’, conduct and DISCIPLINE of the students; and Section 12 empowers the University to make regulations to that effect. Section 20 provides for the discipline of the students by the VC, which may be in the form of restriction, suspension or even expulsion on the basis of misconduct. Misconduct although not defined in the Act, seems to mean academic misconduct, as you may infer from your docket. But the Act empowers the school to discipline on other basis other than misconduct. In essence, vacating the students from the hostels and ‘purporting to expel them’ on the basis of their protest may well still fall under the disciplinary powers of the University. Added to these is the fact that the University has discretion in exercising these powers.
That much is certain and to question it is to question the law. I am not for questioning the law; therefore, pardon me if I do not dwell on the rationale for these ‘empowerments.’
What I question is the overall legal ground of these powers exercised, their arbitrariness and effectiveness – for these are not the same as legality. Oh, I will not be asking questions now: I will be answering them. But before then, some jurisprudential analogies and inferences, or, for those not legally inclined, ‘commonsensical’ inferences.
The subsistence of a legal order is premised not only on the validity – and therefore legitimacy – of the ‘individual norms’, in Kelsian language, but also on the effectiveness of the whole legal system. Simplified, whether a new order brought upon the existing one or the old order survives the onslaught of the new law, depends on the ‘principle of effectiveness’ of either law. Therefore, if the new order effectively supplants the old order, it becomes the recognised legal order; if it fails, it is regarded as act of rebellion under the old order. However, according to Professor Eekelaar, during the interregnum between the new and old orders, some principles survive, and among them is the principle of legitimate disobedience to authority exercised for wrongful purpose.
Forgive the abstruseness, it is an inevitable garb of legal language; I promise you will get the kernel of the legal nonsense by and by. To note, this is not entirely a change in ‘the University legal order’, but as noted, we are only drawing an analogy from jurisprudence.
In every legal order, substantive due process as a fundamental doctrine of law permits a person to DO ANYTHING NOT FORBIDDEN BY LAW and restricts officials FROM DOING ANYTHING NOT PERMITTED BY THE LAW (See Chief Justice Camden’s exposition in Entick v Carrington). Unless there was anything in the school rules and regulations prohibiting students from carrying out A PEACEFUL PROTEST OR MAKING LEGITIMATE DEMANDS FROM THE SCHOOL MANAGEMENT it is ultra vires of any authority in the school to restrict them from doing so, moreso as such authorities are not expressly permitted to restrict the students. Therefore, IT IS OUT OF QUESTION THAT THE STUDENTS ERRED IN CARRYING OUT A PEACEFUL PROTEST TO PUT ACROSS THEIR DEMANDS, whether reasonable or frivolous.
The whole saga of protest and suspension of activities and the new requirement of signing undertakings before ‘re-admission’ may be seen as a revolutionary change, the end result of which is that the University Management tried to impose a new condition of studentship. In this regard, whether or not the existing rules governing the school or the new one purported to be imposed on the student is in consideration, the students still have intact the right to DISOBEY AUTHORITIES EXERCISED FOR WRONGFUL PURPOSE. The new draconian requirements for ‘readmission,’ even if validly made, is not effective enough to ground a condition for supplanting the old system under which the students matriculated.
If at all there is justification for the new order of things requiring signing undertaking before getting into school, doing so would depend on the overall effectiveness of the new legal order. And this depends on whether the new order is accepted as a replacement for the old one. On this ground, I FIRMLY INSIST THAT THE NEW ORDER HAS NOT SUCCEEDED AND THAT ALL ACTIONS ARE TO BE JUDGED ON THE RULES UNDER WHICH THE STUDENTS MATRICULATED AND WHICH THE MEMBERS OF THE MANAGEMENT RECEIVED THEIR APPOINTMENTS.
But JURISPRUDENCE APART…
Every structured society works on the framework that all actions derive from law which are validated by higher norms. We have said that in this regard, issuing the undertaking form is a valid act of the Management because it emanates from the power granted them by the University of Lagos Act, which is a valid Act of the National Assembly. However, it should be noted that what is valid is the process, not the substance; and even where the process is valid, an enactment may yet be invalidated on the ground of inconsistency with a higher norm. Even those not legally inclined will understand the supremacy clause which elevates the Constitution above other laws, so that any law making provisions contrary to the provision of the constitution, or purporting to restrict or remove the rights granted by the Constitution, will be void to that extent of inconsistency.
In requiring every ASSOCIATION to be approved by the Management before any one may join it, the Management has made a rule contrary to the Constitution which grants everyone the right to freedom of association, subject of course to public interest. Unless the Management is able to show that any association is contrary to the public interest and safety, it has no power to restrict the joining of such an association by students as it purports to do under the new law.
Since there was nothing under extant rules restricting the students from making peaceful demands (whether the demands are granted or not) suspending ULSU on the basis of the protest is an improper exercise of the discretionary power of the University, and if it is purported to be done on the basis of the new rules, it would be invalid on two reasons. 1. The new order is not even a recognised dispensation. 2. It would amount to a retrospective legislation. If the school makes a rule prohibiting students from forming any peaceful association for the protection of their interest, it will be invalidated on the basis of inconsistency with the constitutionally guaranteed rights.
To even require that students keep mute and not express their opinion in matters concerning them is a restriction on their right to freedom of expression. This right does not imply freedom of REASONABLE EXPRESSION, so the Management cannot justify itself by insisting that the students’ expressions of concern are unreasonable (and I patiently await an explanation that would render a demand for water and electricity an unreasonable one). It may choose to hear or ignore them, BUT NOT RESTRICT THEIR EXPRESSION.
We have noted elsewhere that it is wholly irrelevant to talk about ‘readmission’ or ‘reabsorption’ when the students have not – under old or new order – been expelled or suspended. But supposing (without conceding) that it is not a misnomer to sign such undertaking, it is still unnecessary for the School to demand it. In a functional legal system, the law does not require you to sign an undertaking to indemnify a victim in a tortious accident caused by you before you are allowed to drive; the law simply stipulates the penalty for reckless driving and implements it in case of violation. In school, you need not sign an undertaking that you will not cheat in an examination before you are allowed to enter the hall; the examination regulation simply stipulate the punishment for cheating and allows you to cheat at your own peril. It is therefore unethical for the School to require signing undertaking as a prerequisite for re-entering school when it could simply state the penalty for certain actions and then leave the students to (dis)obey at their peril. And any such rules must be promulgated, for according to Lon Fuller, an un-promulgated law is impossible to obey.
Of course, all these polemics are moot if the essence of the undertaking is to READMIT the students. It cannot be emphasised enough that on no pretence can it be shown that the students were EVER EXPELLED in order to require their READMISSION.
I therefore submit that legally and ‘commonsensically,’ it is superfluous to require the students to sign any undertakings. In this wise, NO UNDERTAKINGS NEED BE SIGNED BEFORE THE STUDENTS ARE ALLOWED BACK TO THE SCHOOL (assuming we have concurred to expunge the word READMISSION)!
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