Martin van Staden | Legal Researcher | The Rule of Law Project (RLP) | Free Market Foundation | mail me |
On Saturday 30 March, University of Cape Town (UCT) council members will vote on a controversial motion to restrict interaction between UCT and any Israeli academic institution. If adopted, not only would this be unconstitutional, discriminatory and flout the doctrine of academic freedom, it would be unlawful for certain members to have voted if they have previously been involved in actions relating to a boycott of Israeli institutions.
This is the legal opinion of Adv Mark Oppenheimer. The Rule of Law Project (RLP) obtained the opinion, as a public service, to clarify what a publicly funded organ of state, especially a university, may lawfully do. RLP has no bias or preference regarding the concerns of those for or against the motion. Oppenheimer advises the Council Chair to consider the legal implications of the vote.
Oppenheimer concludes that, since UCT is a publicly funded organ of the state, it must respect, protect, promote and fulfil the rights protected by the Bill of Rights including the right to freedom of expression and academic freedom. It also protects against discrimination based on ethnicity, religion, and language.
This Bill of Rights is the cornerstone of democracy in . It enshrines the rights of all people in South Africa and affirms the democratic values of human dignity, equality and freedom. The right to receive or impart information or ideas and freedom of scientific research are unequivocally protected in the right to freedom of expression.
The UCT motion is explicit:
‘UCT will not enter into any formal relationships with academic institutions operating in the Occupied Palestinian Territories as well as academic institutions enabling gross human rights violations in the Occupied Palestinian Territories.’
If adopted, the decision would not only violate students’ and academics’ right to freedom of expression and critically, academic freedom, the proposal singles out Israeli institutions, which include Palestinian or Islamic institutions. Since an overwhelming number of staff and students in Israel are ethnic Israelis, are Jewish by religion and speak Hebrew by language, the effect of the policy would constitute direct and unfair discrimination on the grounds of ethnicity and religion, and thus contravene section 9 of the Constitution. This is particularly unwelcome in the context of South Africa’s apartheid history of discrimination.
Furthermore, the policy would have an adverse effect on all staff and students in Israel regardless of whether they support or oppose the actions of the Israeli government. Such discrimination is arbitrary and capricious.
Oppenheimer says that the proposal constitutes an imposition of the political beliefs of university administrators on staff and students who have a right to be exposed to ideas from the entire globe. Impeding access from one country violates this right of academic freedom, access to information and freedom of expression.
Academic freedom is explicitly protected in the right to freedom of expression. It gives both students and faculty the right to express their views without fear of sanction, and to study and do research on the topics they choose. It preserves the intellectual integrity of our educational system and thus serves the public good.
To protect academic freedom, instead of boycotting Israeli academic bodies, UCT and all academic institutions should actively oppose efforts by corporate or government sponsors to block dissemination of any research findings. Academic freedom means that the political, religious, or philosophical beliefs of politicians, administrators, and members of the public cannot be imposed on students or faculty. Yet the motion would do precisely this.
Enshrined in the Bill of Rights, freedom of expression lies at the heart of our democracy and constitutional order. It allows everyone to engage in the search for truth, enables democratic government, enhances and respects the moral agency of all people, and instils tolerance.
If UCT adopts the motion proposed, members would be voting against everything academic freedom stands for and breaking their covenant with students and their chosen profession. Clarity of thought and purpose must direct individual members when casting their vote and each should consider their personal responsibility to uphold the Constitution and the human rights it protects.
Read Adv Oppenheimer’s full opinion here.
