Professor Odinkalu
6 August 2007
opinion
Lagos — For CHIDI ANSELM ODINKALU, nothing positive can be said about the policy of compulsory pregnancy and HIV-AIDS by Covenant University as that policy is founded on and sustained by prejudice and considerable hysteria, the kind of things that universities exist to fight. He argues compellingly that as desirable as the goal of preserving public morality is, its pursuit must be built on respect for the Constitution and our rights physical indignity and economic death
Covenant University's policy and practice of compulsory HIV and pregnancy testing for its graduating students has no basis in law, morality or common sense. On the contrary, it clearly discriminates against women, feeds public prejudice and discrimination against women and persons living with HIV-AIDS, fulfills no rational public policy or purpose, and is plainly egregious in its illegality. This policy has no place in a society founded on law or the values of a constitutional bill of rights and should be stopped. This brief article explains why. First, it is necessary at the outset to provide a background to both Covenant University and its policy.
A university with a Christian mission?
Established in 2002 as a private university under a license granted by Nigeria's National Universities Commission (NUC), Covenant University advertises itself as a "vision-birthed, vision-driven university" with the mission "to be a leading, world-class Christian Mission University, committed to raising a new generation of leaders in all fields of human endeavour." The university is located in a place called Canaanland in Ota, Ogun State, near Lagos, Nigeria. Dr. David Oyedepo, the University's Chancellor, is President of the Living Faith Church Worldwide Inc., Senior Pastor at Faith Tabernacle, a Church located also in Canaanland, and President of World Mission Agency Inc., a Christian missionary organization with international outreach.
Academic activity in Covenant University is organized around a collegiate system presently comprising three colleges: Business and Social Sciences; Human Development; and Science and Technology. The University requires intending applicants to "fulfill the statutory requirement of sitting for the UME (universities matriculation) examination of the Joint Admissions and Matriculations Board (JAMB) in the year they intend to apply for admission." Students who fulfill these basic requirements are then put through a Covenant University Scholastic Aptitude Test (CUSAT) and interview.
According to information in the University's latest admission's brochure and web-site, CUSAT comprises two phases and takes place in April. The first is a written aptitude test in English language, mathematics and a general paper. The second is "an eligibility inquiry to ascertain mental, medical and spiritual readiness of applicants for the Covenant University experience." There is no further information to applicants concerning the elements of these procedures or the protocols employed in carrying them out. However, at a press conference at the University's second convocation ceremony on July 16, 2007, Chancellor Oyedepo disclosed that the University's practice includes a compulsory medical procedure to test students for pregnancy and HIV-AIDS. He indicated that this is consistent with the Christian provenance of the university and its commitment to society's moral growth and suggested that for these reasons, positive results from these tests would render the affected students ineligible for graduation.
University education is governed by public law
THISDAY's editorial opinion last Friday, August 2, 2007, claimed that as a university inspired by a Christian worldview, "Covenant University has a right to adopt any requirements or tradition which it considers appropriate to the attainment of its lofty mission." This is a charter for sectarian warfare masquerading as university education. The prospect of a university system as an anarchical contest for supremacy between competing sectarian interpretations of theological or naturalist moral order hardly bears even perfunctory thought.
Covenant University may well be an institution inspired by Christian teachings but it is not created by any Holy Book. As the Privy Council well showed in BISHOP OF ROMAN CATHOLIC DIOCESE OF PORT LOUIS & ORS v TENGUR & ORS (2004) UKPC 9, even missionary schools are created by law and bound to operate in accordance with the law, including the prohibition against discrimination. The legal framework governing private providers of education in Nigeria - including tertiary education - bears recapping. Evidently, this legal regime is founded on Nigeria's constitutional Bill of Rights.
Nigerian courts have long recognized that private schools straddle the fine line between public service and economic activity. In ARCHBISHOP OKOGIE & 6 OTHERS v ATTORNEY GENERAL OF LAGOS STATE [1981] 1 NCLR 337, the Court of Appeal founded the role of private providers of education on the right in what is now Section 39(1) of the Constitution to "freedom of information, including freedom to hold opinions and to receive and impart ideas and information without interference", and to establish and operate media for that purpose. In particular, the Court declared that "a school must be accepted as a medium for the dissemination of knowledge and ideas". In ADEWOLE v ALHAJI JAKANDE & ORS (1981) 1 NCLR 262, 279, the High Court of Lagos State held that proprietors of private schools also have a constitutionally protected property and economic interest in such schools.
Nigeria's Supreme Court established the legality of private universities in DR. BASIL UKAEGBU v ATTORNEY-GENERAL OF IMO STATE, [1983] NSCC 160. Here, the then Imo State government instituted proceedings to preclude Dr. Ukaegbu, a private operator, from establishing or operating a private university. The Supreme Court found in favour of Dr. Ukaegbu affirming, however, the need to balance his entitlement with the right of every member of the community to what it called freedom from unsavoury and diabolical institutions and teachings. The Court thus created both the bases for private universities and the justification for their regulation.
The expression "private university" is somewhat mis-leading given the extensive interposition of governmental activity that mediates their existence and functioning. The regulation of "minimum standards of education at all levels" is a subject matter under item 60(e) of the Exclusive Legislative List of Nigeria's 1999 Constitution. The NUC is the statutory body that performs this function with respect to tertiary education. The licensing of private universities takes place through the powers of the Commission in Section 4(1)(ii) of the NUC Act (Cap N.81) to make "recommendations for the establishment of and location of new universities in order to ensure that they are fully adequate to meet national needs and objectives."
The Federal government licenses Private Universities for operation. JAMB mediates the admission of students into these universities and the NUC regulates academic standards and monitors their continued fitness for existence. The concurrence of these strands of state activity in the existence and sustenance of private universities indicates that these entities are quasi-public actors and subject to the standards of public law applicable to universities.
Two broad legal principles underlie the governance of universities. First, as a general rule, the Supreme Court has recognised in a long line of cases ending more recently with FETUGA v UNIVERSITY OF IBADAN [2000] NWLR (Part 683) 118 and UNIVERSITY OF ILORIN v OLUWADARE [2003] All F.W.L.R., (Part 338) 747 that "disputes involving the setting, sitting, marking of examination papers and publishing the results as well as the conferment and award of degrees, diplomas and certificates to deserving students are matters within the domestic forum of a university." However, secondly, the relationship between (tertiary) education and qualification providers and their students is regulated not by private or contract law but by public law, including administrative and constitutional law. See OMODOLAPO ADEYANJU v WEST AFRICAN EXAMINATIONS COUNCIL [2002] 13 NWLR (Part 785) 479
A Policy with nothing to commend it
Covenant University's policy of pregnancy and compulsory HIV testing, however, deserves close examination on its own terms. Irrespective of the motives that inform their establishment, universities, whether public or private, are legal citizens, obliged to respect and observe the laws that create them. Above all, as a mechanism for the "dissemination of knowledge and ideas," university education is associated with academic freedom underpinned by rational methods of inquiry and verification.
THISDAY's editorial opinion of Friday 2 August, offered a comprehensive set of reasons in support of Covenant's policy, including "the promotion of high scholarship and character formation in university education", and "primary prevention (of HIV-AIDS) through sexual discipline". It concludes that "the tradition of Covenant University stands as a big moral check on the sexual escapades of many of its students." The desirability of a university patrolling public pathways as a self-proclaimed chastity police is certainly open to question. As a package, these reasons do not stand up to any tests of legality, public policy, teleology, morality, or theology.
To begin with the last two, the moral and theological assumptions implicit in this policy create a theologically unsupportable hierarchy of wrongdoing, within which sexual activity emerges as easily the most damnable. Other wrongs, such a lying, stealing, etc., are omitted, presumably because there are no scientific instruments for damning their perpetrators. The policy instruments employed - testing for pregnancy and HIV-AIDS but not other sexually transmitted conditions - target not the presumed immoral conduct (sex), but only two of its consequences, which are largely preventable. Not all persons who indulge in sexual activity become pregnant or contract HIV-AIDS. Indeed, sexual activity is only one of several means of contracting HIV-AIDS. Among those who do sex, only females can get pregnant (within a narrow window in the periodic fertility cycle). And, among those who become pregnant, only those who decide to keep the pregnancy can be caught by a pregnancy test. Those who terminate their pregnancy will not. Effectively, a test for pregnancy, as a test of moral character, may actually end up compelling young persons down the route of greater "Christian" immorality. It also falls into a time-worn but dated pattern of feminizing sin and excusing males from responsibility from the consequences of our sexual activity.
Inherent in this flawed morality are even more far reaching legal issues. A policy that targets pregnancy as a basis for reprobation clearly targets women unfairly. Conception which leads to pregnancy intimately involves male and female actors. Yet, a pregnancy test can only be performed on females. These tests breach the clear constitutional prohibition of sex discrimination in S. 42(1)(a) of Nigeria's 1999 Constitution. In ROCHES v WADE (Action No. 132, unreported judgment of Supreme Court of Belize of April 30, 2004), an unmarried pregnant teacher was first denied maternity leave and then compulsorily laid-off by her employers, a Roman Catholic School, through a letter informing her that she was "not complying with the contract to live according to Jesus' teaching on marriage and sex." The Court easily held that this was unlawful sex discrimination.
In MFOLO v MINISTER OF EDUCATION, BOPHUTHATSWANA [1994] 1 BCLR 136, female students who had been expelled from school for being pregnant sued claiming that their exclusion violated their rights to equality under the then Homeland of Bophuthatswana's Constitution Act, 19 of 1977. The court upheld their claim holding, additionally, that the policy of excluding pregnant women from school was also arbitrary and discriminatory. The Supreme Court of Zimbabwe reached a similar conclusion in LLOYD CHADUKA AND MORGENSTER COLLEGE v ENITA MANDIZVIDZA (Zimbabwe, Supreme Court, Judgment No. SC 114/2001; Civil Appeal No. 298/2000) in striking down a contract between a female student and a private school run by the Reformed Church in Zimbabwe requiring female students to withdraw from school if they became pregnant.
Similarly, the policy of compulsory HIV-Testing violates the norm of equality and equal protection of the laws in Article 3 of the African Charter on Human and Peoples' Rights (which is domestic law in Nigeria) and constitutes impermissible discrimination on grounds of "other status", prohibited by Article 2 of the same Charter. In FESTUS ODAFE & 3 OTHERS v AG FEDERATION & 3 OTHERS (Unreported, Suit No. FHC/PH/CS/680/2003, Judgment of Honorable Nwodo J., of 23 February 2004), Nigeria's Federal High Court affirmed that persons living with HIV-AIDS are entitled to Constitutional protections of personal dignity and rights. In DIAU v BOTSWANA BUILDING SOCIETY Case No. 50 of 2003 (unreported judgment of Botswana Industrial Court, 16 December, 2003), the Court found that a requirement of compulsory, pre-employment HIV-AIDS testing violated the protection of human dignity, and was both discriminatory and unlawful.
In HOFFMAN VS. SOUTH AFRICAN AIRWAYS (2000) 1 SALR, 1, the South African Constitutional Court similarly ruled as discriminatory and unlawful the blanket decision by South African Airways not to employ HIV+ persons as cabin staff in disregard of medical and scientific evidence on the nature of HIV-AIDS. In reaching this conclusion, the court observed:
The devastating effects of HIV infection and the widespread lack of knowledge about it have produced a deep anxiety and considerable hysteria. Fear and ignorance can never justify the denial to all people who are HIV positive of the fundamental right to be judged on their merits. Our treatment of people who are HIV positive must be based on reasoned and medically sound judgments. They must be protected against prejudice and stereotyping. We must combat erroneous, but nevertheless prevalent, perceptions about HIV. The constitutional right of the appellant not to be unfairly discriminated against cannot be determined by ill-informed public perception of persons with HIV. Nor can it be dictated by the policies . not subject to our Constitution.
Nothing positive can be said about the policy of compulsory pregnancy and HIV-AIDS by Covenant University. It is founded on and sustained by prejudice and considerable hysteria, the kind of things that universities exist to fight. It is plainly ill-informed and is egregiously unlawful. The only purpose to conducting pregnancy and HIV-AIDS tests on young persons seeking certification of university education must be to exclude students who have fulfilled other academic requirements for graduation from attaining that goal and achieving take-off in life. There is no morality to this. The policy is, presumably, pay-back for the sin of extra-marital sex. As desirable as the goal of preserving public morality is, its pursuit must, however, be built on respect for the Constitution and our rights. The desecration of these values constitutes even greater burden on public morals than extra-marital connubium.
The additional burdens placed by Covenant University on students and fee-paying parents are both unlawful and extraneous to the requirements for graduation. Within the narrow compass of its theological rationales, the institution that maintains this policy is clearly guilty of un-Christian lack of compassion. Affected students may well become resentful of a society that cosigns them in this way to physical indignity and economic death. As the South African Constitutional Court again observed in HOFFMAN, "People who are living with HIV must be treated with compassion and understanding. They must not be condemned to 'economic death' by the denial of equal opportunity." The same must be said for single mothers.
- Professor Odinkalu is Co-ordinator, Section on Public Interest and Development Law (SPIDEL) of the Nigerian Bar Association (NBA).
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