"Higher Education Access in South Africa For
Total Page:16
File Type:pdf, Size:1020Kb
Higher education access in South LAW LAW Africa for students with criminal DEMOCRACY DEMOCRACY records & DEVELOPMENT & DEVELOPMENT TAABO MUGUME Researcher, University of the Free State 1 INTRODUCTION The post-1994 South African democratic State has been successful in reconfiguring the national higher education system from one based on racial divide to a more inclusive regime1. While access has improved tremendously, there are still challenges which include: student success; funding; unemployed graduates; and infrastructure to accommodate growing student numbers, etc.2 These challenges are better illustrated by the 2015-2016 #FessMustFall student protests.3 Nixon expounded on the role of higher education institutions in a modern society as follows. They exist so that people from all different backgrounds - economic backgrounds, cultural backgrounds, 1 Leibowitz B & Bozalek V “Access to higher education in South Africa: a social realist account” (2014) 16 (1) Widening Participation and Lifelong Learning 91 at 92. 2 See Leibowitz & Bozalek (2014) at 96. 3 Luescher T, Loader L & Mugume T VOLUME 21 (2017) “#FeesMustFall: an internet-age student movement in South Africa and the case of the DOI: http://dx.doi.org/10.4314/ldd.v21i1.2 University of the Free State” (2017) 44(2) Politikon 231. ISSN: 2077-4907 Page | 25 LAW, DEMOCRACY & DEVELOPMENT/ VOL 21 (2017) and races can have access to the things that they need. ... If our public institutions are going to fulfill their mission they have to consider that the large majority of people who are impacted by the criminal justice system are the very people that they have a mission to serve. And unless they make that connection they are going to miss the mark in achieving their very own missions.4 Therefore, higher education access is fundamental for societal progress. In relation to ex-offenders, it is argued that, for example, getting a higher education reduces the possibility of recidivism.5 According to Walmsley, data from the South African national prison administration shows that with more than one and a half million South Africans in prison by 2013, South Africa has very congested prisons.6 Even though the country has higher education access prison programmes,7 there should be more opportunities to access higher education after serving prison sentences, and even for those with criminal records who may not have served a prison sentence. Moreover, access to higher education is very important for the process of reintegration into communities and reducing recidivism.8 This article analyses the 2016 academic year application forms of 16 South African universities to explore: the kind of mechanisms they have in place to promote access, whether institutions require potential students to provide information about their criminal records, the reasons provided for requiring such information, and any indication of how the information is stored, accessed and shared. Therefore, it focuses on access to higher education in South Africa since, as explained above, higher education is fundamental to societal development. The following discussion includes: a brief discussion of South African higher education; the literature on students with criminal records generally and in South Africa; research methodology; higher education in South Africa and students with criminal records; analysis; a possible route for South Africa; a research agenda; and conclusion. The article is limited by the use of university application forms as the only source of data. 2 HIGHER EDUCATION ACCESS IN SOUTH AFRICA South Africa under democratic leadership has undergone drastic higher education reforms. While there are challenges, progress is noticeable in the levels of access due to 4 Nixon V “Opening remarks at: New York Reentry Education Network pathways of possibility conference” (27 February 2013, City University of New York: Baruch College). 5 Sokoloff NJ & Fontaine A “Systemic barriers to higher education: how colleges respond to applicants with criminal records in Mayland” (2013) at 11. 6 Walmsley R “World prison population list” (10 ed) (2013) available at http://www.aidsdatahub.org/sites/default/files/publication/World_prison_population_list_10th_edition _2013.pdf (accessed 15 November 2016); Maravanyika EO “Understanding overcrowding in South African prisons” (2016) available at http://www.sabc.co.za/news/a/b7d0fd004f36e769aa33aed37832bbf1/Understanding-overcrowding- in-South-African-prisons-20161205 (accessed 28 June 2017). 7 See Walmsley (2013) 8 See Sokoloff & Fontaine (2013) at 11. Page | 26 LAW, DEMOCRACY & DEVELOPMENT/ VOL 21 (2017) policy changes designed post-1994 to support mass higher education.9 Informed by the National Commission on Higher Education of 199610 and the White Paper on Higher Education of 1997,11 the Higher Education Act of 199712 was the first post-1994 fundamental policy initiative designed to ensure regulated transformation of institutions of higher learning. The Act was designed with the main intention of ensuring access to higher education for more students from previously disadvantaged communities and also to avail employment opportunities. In line with promoting access, the State introduced the National Student Financial Aid Scheme (NSFAS) targeting poor students.13 The fund has had a fundamental positive effect on access.14 Moreover, the South Africa Constitution of 199615 considers education as a right, rather than a privilege (Bill of Rights). While student access to higher education in South Africa is noted in a positive light, success still faces serious challenges. In response, many initiatives have been introduced in institutions and supported by the State. However student success is beyond the scope of this article.16 Although some scholars have published on criminal records in South Africa, there is a dearth of literature on access to higher education for students with criminal records. Mujuzi and Tsweledi provide legal clarification on a criminal record “[i]n South African law, there are three situations in which a person may get a criminal record – when he enters a plea of guilty, when he is 9 Badat S “The challenges of transformation in higher education and training institutions in South Africa” (2010) available at http://www.dbsa.org/EN/About- Us/Publications/Documents/The%20challenges%20of%20transformation%20in%20higher%20educati on%20and%20training%20institutions%20in%20South%20Africa%20by%20Saleem%20Badat.pdf (accessed 15 October 2016). 10 National Commission on Higher Education (1996) available at http://www.che.ac.za/sites/default/files/publications/Acknowledgement%20%26%20Content.pdf (accessed 28 June 2017); also see chapter one available at http://www.che.ac.za/sites/default/files/publications/Chapter%209.pdf (accessed 28 June 2017); 11 Education White Paper 3: A Programme for the Transformation of Higher Education (1997) available at http://www.che.ac.za/sites/default/files/publications/White_Paper3.pdf (accessed 28 June 2017). 12 Higher Education Act 101 of 1997 available at http://www.up.ac.za/media/shared/409/higher- education-act-1997.zp86770.pdf (accessed 28 June 2017). 13 Cele MBG “Student politics and the funding of higher education in South Africa: the case of the University of the Western Cape, 1995-2005” (unpublished PhD thesis, University of the Western Cape 2014). 14 Luescher T “Student representation in a context of diversity, massification and democratisation in African higher education: key concepts, perspectives, and common concerns” in Luescher TM, Klemenčič M & Jowi OJ (eds) Student politics in Africa: representation and activism (Cape Town & Maputo: African Minds 2016). 15 The Constitution of the Republic of South Africa 1996 available at https://www.ru.ac.za/media/rhodesuniversity/content/humanresources/documents/employmentequit y/Constitution%20of%20the%20Republic%20of%20South%20Africa%201.pdf (accessed 28 June 2017). 16 Akoojee OS & Nkomo M “Access and quality in South African higher education: the twin challenges of transformation” (2007) 21(3) SAJHE 385; Bokana KG & Tewari DD “Determinants of student success at a South African university: an econometric analysis” (2014) 17(1) Anthropologist 259; Strydom F, Kuh G & Mentz M “Enhancing success in South Africa’s higher education: measuring student engagement” (2009) 42(1) Acta Academica 259. Page | 27 STUDENTS WITH CRIMINAL RECORDS & ACCESS TO HIGHER EDUCATION prosecuted after a plea of not guilty and he is convicted, and when he pays an admission of guilt fine.”17 3 HIGHER EDUCATION AND STUDENTS WITH CRIMINAL RECORDS The institutions considered in the following discussion include Harvard University and Yale University in the United States of America (US), and Cambridge University and Oxford University in the United Kingdom (UK). In the US, legalising the request for college applicants to report their criminal history and for further screening of such applicants in higher education is associated with a 1989 Act: the “Clery Act requires colleges to publish information about campus crime, allowing parents and applicants to compare safety across schools.”18 The Act does not “specify preventive interventions” and as a result institutions responded to the Act by screening applicants’ criminal history in two ways: requesting applicants to self- report specific information about their criminal history, and running independent criminal background checks. The primary reason given by most institutions for inquiring about the criminal records of applicants during college admissions is safety of the campus