In an article published in the online Daily Times edition of July 28 2012, Vice-Chancellor of the University of Malawi (Unima) Professor Emmanuel Fabiano is credited with a call to Malawians to engage in a â€˜reasoned, open and fact-based discussionâ€™ on access to third level education generally, and in particular, on the University Quota System Policy (UQS). I am delighted to respond to Professor Fabianoâ€™s challenge.
The previous government implemented the UQS and rationalised it as a tool for â€˜equal accessâ€™ to, and for addressing â€˜underrepresentationâ€™ in, public universities. We were informed that some groups experience difficulty accessing public universities and are consequently underrepresented. The UQS is intended to be an affirmative action policy and Section 20(2) of the Constitution does authorise affirmative action assuming certain conditions are met.
Media reports suggest that the UQS Policy allocates and guarantees a specified number of places in publicly funded universities (assuming the merit criteria is met), and the â€˜remaining (unfilled) places are allocated on the basis of a districtâ€™s population size and set criteria. Failure by a district to meet its quota will result in the quota being shared by neighbouring districts located in the same region as the failing district. What follows next is an evaluation of the implementation of the UQS.
Furthermore, the previous head of State charged, on record, that some groups cheat their way into public universities. It is not clear whether the alleged cheating causes the access difficulties, and ultimately, the underrepresentation. The UQS, it appears, identifies those with access problems as all Malawians excluding Northern Malawians. The allegation of fraud strongly suggests the fraudsters are exclusively Northern Malawians. It also seems that the regional and district divide which anchors the UQS Policy is used by it as a code for ethnicity. Although Section 20(2) does anticipate affirmative action measures the operation of the UQS raises serious doubts about its constitutionality.
Equality as a prescriptive value
Equality is an important public value, and also a standard against which public or private conduct can be measured and ultimately declared acceptable or not. Equality in this sense is prescriptive and is crystalised in the Constitution and written laws of Parliament. In this way, the Constitution and the laws of Parliament indicate what the constitutional policy and a governmentâ€™s public policy positions on a specific equality concern are or ought to be. Therefore, constitutional provisions, the laws of Parliament and public policy directives are coercive tools a government will use to extend entitlements or withdraw privileges for the benefit or to the disadvantage, respectively, of specific groups in society. Significantly, the design of a public policy implementing mechanism must be sound because it is at the point of implementation that a public policy actually touches the lives of people in real and significant ways. At this point, the tensions, dilemmas and contradictions embodied in the policy get into contact with the Constitution. In the following section I will suggest that the means for putting into practice a public policy preference, and in this case the UQS, ought to be, constitutionally, sound.
Implementation of policy
This concern has both procedural and substantive aspects. Procedurally, the issue is whether the means for putting into practical operation the UQS conforms to the requirements of the Constitution. Substantively, the issue is whether the type of equality remedy in the UQS, and the design of the remedy, coincide with the type of equality remedies and the design of policies envisioned by the Constitution. Failure to take into account these concerns has the potential to derail the implementation of the UQS on the basis that it is unconstitutional. The implementation of equality, its meaning, its function and also its scope will, to a large extent, depend on the specific words used in the relevant constitutional provision.
The Constitution uses the concept of non-discrimination in order to advance its equality agenda; but it does not define it. A helpful definition of discrimination is provided by the Supreme Court of Canada. Discrimination may be understood as â€œa distinction, intentional or otherwise, which involves prejudice or imposes disadvantage. The distinction, must, relate to personal characteristics; impose burdens, obligations, or disadvantages on an individual or a group which are not imposed on another individual or group.
Alternatively, the distinction must effectively withhold or limit access to opportunities, benefits and advantages on an individual or a group which are available to another individual or group. A distinction made on the basis of an individualâ€™s merits and capacities will rarely be characterised as discrimination.â€ What follows next is an explanation of the content of Section 20 of the Constitution and an evaluation of the implementation of the UQS on the basis of the Constitution.
Section 20 of the Constitution on Equality
Section 20 (1) lists prohibited grounds of discrimination, but impliedly it also has grounds that are non-listed (analogous grounds). The wrong that Section 20(1) seeks to address is illegal or unfair discrimination. Section 20(1) in part reads â€œâ€¦all persons are, under any law, guaranteed equal and effective protection against discriminationâ€¦â€™ The phrase â€˜under the lawâ€™ requires that â€˜equals should be treated equallyâ€™; people in a similar position ought to be treated in the same way. The phrase also requires that unequals should be treated unequally; those in a different position ought to be treated differently.
Section 20 (2) permits a government to eliminate inequality by extending opportunities, benefits or advantages to one group and at the same time withholding or limiting the same from others. This implies that discrimination, may, in some cases be legal and this is also called affirmative action. Affirmative action is, in many respects, the essence of substantive equality which may justify treating an individual or a group more favourably than another individual or group because the targeted beneficiary individual or group comparably has less resources or advantages than another individual or group. The UQS claims to do this. The next section addresses the nature of equality envisioned in Section 20(2).
The Nature of Equality in Section 20(2)
An affirmative action measure rolled under Section 20(2) may be explained as the extension to a member of a particular group of opportunities, benefits or advantages denied to a member belonging to another group, in order to eliminate inequality, so long as it is established that unequal or unjustifiable discriminatory treatment is the cause of the lack of opportunities, benefits or advantages. Consequently, an affirmative action measure must comply with the discrimination test and also other tests required under Section 44 of the Constitution collectively referred to as the proportionality test.
An affirmative action measure must establish that because an individual belongs to a particular group, the individual is then subjected to unjustifiable discriminatory treatment which results in a specific inequality.Â
To be continued next week….