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A House committee has rejected far-reaching proposals to regulate tertiary learning institutions and asked members to annul them, saying they do not conform to the provisions of the Constitution.

The Committee on Delegated Legislation chaired by Ainabkoi MP Samuel Chepkonga said they had made the decision in order to give Education Cabinet Secretary Ezekiel Machogu an opportunity to align the University Regulations 2023 with the Constitution, relevant statutes and the report of the Presidential Taskforce’s recommendations on university education.

“Having examined the universities Regulations 2023, legal notice no 56 of 2023 in accordance with the Constitution, the interpretations and General Provisions Act (Cap 2) the Statutory Instruments Act, the committee recommends that the House annuls in entirety,” reads the report.

The regulations had sought to provide for other modes of teaching and delivery such as open, distance and e-learning, taking into account the effect of Covid-19.

They provide for a framework for collaboration between local universities and other tertiary institutions as well as implementation of differentiated unit costs, and discipline differentiated remuneration for universities.

They also sought to provide eligibility and application of establishing a university, inspection of universities, eligibility of a technical university and conditions for declaration, establishment of specialized degree awarding institutions, establishments of a constituent college, establishment of a university campus as well as accreditation of academic programmes.

Foreign universities

Further, they provide for the process of application of foreign universities intending to collaborate with a local university or institution authorized to operate in Kenya, seek to provide for application for license to operate student’s recruitment exercise and activities of foreign universities as well as provide for the process of application of a local university intending to collaborate with a foreign university to operate in Kenya.

But the committee, in the report, says the ministry did not demonstrate to the committee sufficient evidence of having conducted public participation or consultations with any stakeholders, which is in contravention of the Constitution and section 5, 5A and the schedules to sections 5, 51 and 13 of the Statutory Instruments Act 2013 and Section 70 of the Universities Act 2013.

According to the committee, the regulations were ancillary to matters relating to staff/employees of the various public and private universities, the students, locations, size and procedures of operations in the institutions and ought to have been made only as envisaged with proper public participation.

Consultations

Articles 10,118 of the Constitution requires that the public be involved in any legislative agenda by a public institution and is buttressed by the Statutory Instruments Act which requires that the consultations be made with the persons to be affected by the regulations.

Reads the report: “There was a mere mention and an attachment of a list of participants attending a stakeholder’s forum in relation to the regulations such as universities and student recruitment agencies. However, there was no demonstration in the explanatory memorandum or at all of public participation having been carried out.”

In rejecting the regulations, the committee noted that while the Statutory Instruments Act 2013 requires that a Regulatory Impact Assessment be conducted where the proposed regulation is likely to impose significant costs on the community or part of the community, this was neither conducted nor demonstrated to the committee that it was done.

The committee expressed concerns that the Cabinet Secretary had inappropriately delegated legislative authority to the Commission of University Education to make guidelines and to formulate standards on 19 issues such as promotion of staff and lecturers which ought to be a preserve of labour laws, and not to be dealt with under further sub-delegated powers or legislation.

Reads the report: “The committee further noted that the areas on which the ministry proposes to formulate guidelines on, under regulations 100 are important, pertinent and touch on the very core of the universities administration and ought not to be regulated under sub-delegated authority or legislation.”

The MPs also explained that their rejection of the regulations was based on a detailed analysis of the regulations which they said failed to outline procedures for recognizing and equating degrees, diplomas and certificates offered by foreign universities and criteria for evaluating internal tools developed by universities for the purposes of assessing quality assurance.

The report adds: “The regulations are not clear on the body that is responsible for the equation of degrees offered by foreign universities as the same appeared to be a function of Kenya National Qualifications Authority.”