What next after the revocation of Fairland University license?

The Constitutional court has agreed with the High court in Jinja by ruling in favor of the National Council for Higher Education (NCHE) for revoking the provisional license of Fairland University in Jinja.

The ruling comes eight years since the university petitioned court in this matter. In her ruling dated March 17, 2023, Justice Hellen Obura dismissed the Fairland University petition “for lacking merit”. She ordered each party to bear its costs.

“The qualifications and or awards obtained from the petitioner after the purported revocation are not valid. The petitioner is not entitled to any of the remedies, reliefs and declarations sought and accordingly, they are not granted,” Obura ruled.

The petition was heard by four justices of the Constitutional court; Geoffrey Kiryabwire, Elizabeth Musoke, Hellen Obura, Monica Mugenyi, and the deputy chief justice, Richard Buteera.

Fairland was represented by Seth Rukundo, and Ali Kankaka for the NCHE, while Franklin Kwizera, a state attorney, represented the Attorney General.

During the hearing, Rukundo informed court that they were unable to proceed with the hearing of the petition because the counsel who had instructions to handle the same passed on and the petitioner had not been able to access the documents to enable him to instruct another advocate as the chambers were closed.

The ruling indicates that an adjournment was sought and the parties were directed to file written submissions within a given timeline.

“However, as at the time of preparing this judgment long after the timeline had passed, no written submissions had been filed by either party. This judgment is, therefore, based on the petitioner’s case as stated in the petition and the supporting affidavit, affidavit in rejoinder and sur- rejoinder as well as the petitioner’s very brief conferencing notes which had five issues. For the respondent, I only considered the response to the petition, the supporting affidavit, and the supplementary affidavit since no conferencing notes were filed,” Obura noted in the ruling.

The then Fairland University vice chancellor, Dr Solomon Wakabi, swore affidavits to support their petition while the answer to the petition was deposed by the NCHE deputy executive director, Dr Alex Mugisha Kagume. The former NCHE executive director, Prof John Opuda Asibo, later swore a supplementary affidavit.

PETITION IN DETAIL

Established in 2001, Fairland has been in legal battles with NCHE since the revocation of its provisional license in 2013. The university filed the petition to challenge the “impugned decision” by the council to revoke its license without a substantive notice to the management.

It further argued that it was judged unfairly by a council headed by a vice chancellor who also heads a university dubbed a competitor in the same field. Fairland contended that under such circumstances, “it is difficult to rule out actual or imputed bias in coming to a resolution to revoke its license.”

At the time, the council was chaired by the former Gulu University vice chancellor, Prof Jack Nyeko Pen-Mogi. The revocation was also followed by a letter dated February 2, 2015, to the Chief Administrative Officer (CAO) requesting assistance in enforcing the closure as the university had continued to operate illegally.

In her judgment, Obura observed that the council gave the university adequate notice and ample time for it to act upon its shortcomings.

Two years after a notice of intention to revoke the license was issued by NCHE, there was lack of substantial progress towards the full establishment of the university, conducting unaccredited programs, lacked adequate financial and human resources, and physical infrastructure for the smooth running of the institution.

The university had also presented false documents to the council. Whereas the counsel for the petitioner argued that they were not accorded a fair hearing, Obura explained that the council was/is not required to follow the technical procedures for courts or tribunals in its administrative decision-making process.

“Be that as it may, I find that not only was the petitioner informed of the areas that needed rectification, but it was also given ample time and many opportunities to rectify them, that is, from 2007 up to 2013. In my view, the respondent followed the procedure laid down in the Act. The onus to prove the allegation was squarely on the petitioner but it failed to do so,” Obura ruled.

She added: “On the whole, I find that the respondent made a fair and just decision, the petitioner having been accorded many opportunities and ample time to rectify the deficiencies but to no avail. Having lost those opportunities, the appellant cannot now use the court to sanction compromise of the rules that govern establishment, administration, and standards of higher institutions of learning set out in the Act.”

On whether Prof Nyeko’s position biased the council’s decision and in contravention of the constitution, Obura found Fairland’s allegations of bias and impartiality “baseless” and a mere suspicion that was not backed by any evidence.

It was also argued for the petitioner that there is no statutory provision for Nyeko to hold that office by being a vice chancellor of a public university as that would be detrimental to good governance.

However, contrary to that argument, Obura concluded that his services are permitted by sections of the Universities and Other Tertiary Institutions Act and were not inconsistent with section 8(2) (a) and (b) of the Leadership Code Act 17,2002 and does not undermine the provision of Article 44 (c) of the Constitution.

NCHE, FAIRLAND SPEAK

Commenting on the ruling, the NCHE spokesperson, Saul Waigolo, urged institutions of higher learning to comply with the set guidelines by the council.

“We welcome the ruling because it re-affirms our mandate and gives assurance to the public that whatever we do is legally binding. It is okay for anyone to seek court redress but they should be mindful of the students whose time and money are wasted while operating an illegal institution,” Waigolo said.

He also warned institutions that are still contravening the law.

“We are receiving reports that some students to date are still being duped by institutions whose licenses were revoked. Please take note that as NCHE, we do not and we shall not recognize such qualifications obtained from a closed institution.

The former Fairland University vice chancellor, Prof Solomon Wakabi, told The Observer that efforts are being made to resume operations.

“We abandoned that Constitutional court case because we are in talks with the council to reinstate the license of the university. We didn’t make any submissions in that matter. Our infrastructure is still in place and nobody can take it. We are not only refurbishing the buildings but also constructing new ones. Anytime from now, we are going to resume operations,” Wakabi said.

Whereas NCHE submissions indicated that the university license was revoked in 2013 and doesn’t recognize qualifications awarded thereafter, Wakabi insisted that they ceased operations in 2019.

“We operated up to 2019 and resumed talks with the national council because we didn’t want to offend them. We are going to formally restart that university,” he said. Currently, the university website, www.fairvarsity.ac.ug, is also no longer accessible.

UNIVERSITIES WHOSE LICENSES HAVE BEEN REVOKED

nangonzi@observer.ug