Universities in South Africa are organs of the state. This has somewhat important consequences for attempts by groups such as the Palestine Solidarity Forum to promote an academic boycott as part a Boycott Divestment Sanctions (BDS) campaign against Israel, for example by the University of Cape Town.
This piece examines the legal context of such a proposed boycott, but does not in any way comment on the wisdom or merits of BDS or any other topic involving Israel and Palestinian politics.
The Bill of Rights
The Constitution requires organs of state to at all times and in everything they do respect, protect, promote and fulfil the rights in the Bill of Rights. Private parties, on the other hand, are bound by the Bill of Rights in more limited circumstances.
The only time a right in the Bill of Rights may be limited — violated — by the state (which includes universities) is on the basis of a law of general application and that it is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including (a) the nature of the right; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relation between the limitation and its purpose; and (e) less restrictive means to achieve the purpose.
Protecting our Freedoms
Now, there can be no doubt that an academic boycott violates or limits rights protected by the Bill of Rights. Section 16 of the Constitution protects everyone’s right to freedom of expression, which includes freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research. Section 18 protects everyone’s freedom of association, and a more nuanced right to tertiary education, which the state, must through reasonable measures make progressively available and accessible. So, if UCT or any South African university imposes an academic boycott on its faculty and/or students it would clearly be limiting at least the entrenched rights to academic freedom and freedom of association. When would that limitation of academic freedom rights be permissible? Only on the basis of a law of general application. To limit rights a University could not simply impose a boycott.
The law must empower the University to violate rights, and the law must be of general application.
What is a law of general application?
An empowering law to limit rights will lack the quality of general application if it simply grants an administrator (a University) a wide and unconstrained discretion to limit rights.
A law of general application must possess four formal attributes. First, the law must ensure parity of treatment in two respects: it must treat similarly situated persons alike; and it must impose the same penalties on the governed and the governors, and accord them the same privileges.
Second, the rule of law — as opposed to the rule of man — requires that those who enforce the law — the executive or the judiciary — do so in terms of a discernible standard. South Africa’s rule of law paradigm sets its face against the arbitrary exercise of State power.
Third, the law must be precise enough to enable individuals to conform their conduct to its dictates. A law may not grant University officials largely unfettered discretion to exercise their powers as they wish, nor may the law be so vaguely worded as to lead reasonable people to differ fundamentally over their extension.
Fourth, a commitment to the non-arbitrary exercise of power entails that the law must be accessible to the affected persons.
It is doubtful whether such a law exists. Thus, any imposition of an academic boycott by a University would be unconstitutional and invalid for that reason alone.
Justifying the limitation
Even if such a law does exist, the University in limiting the entrenched constitutional rights will have to consider what is reasonable and justifiable in an open and democratic society based on human dignity and freedom. The onus is on the violator of rights to justify the limitation. A court challenge to any imposed academic boycott would require the University to prove that the violation of rights is justifiable.
The University would then be required to demonstrate for example that there are less restrictive means to achieve the purpose of the violation.
In the BDS context the purpose may be regarded as principally to advance Palestinians’ rights.
Are there ways to advance those goals without violating the rights to academic freedom and association of faculty and students?
The University would probably need to prove by way of evidence that short of a boycott there are no other means of advancing the stated purposes of BDS. It would also need to show that limitation of rights is closely connected with the goals of BDS; that is the academic boycott would go some way to achieving the purpose of BDS. Like all violations by the state of any of the rights protected under the Constitution it may be tough. The University would need to base the violation on a law of general application and factually prove that the violation of academic freedom a boycott imposes would actually achieve its purpose.
Following fair process
Apart from the above substantive constraints on the University’s power to impose a boycott the process leading up to its violation of rights must also be considered.
The process must be fair. Fair process, I suggest, requires meaningful and proper consultation and engagement with all those who may be affected by the boycott.
Engagement would probably not require every single faculty member to have an opportunity to make both written and oral presentations for or against the boycott to the decision-making body. But it would demand that faculty members and students be given proper notice of the terms of proposed boycott. At least four terms of any boycott would need to be set out.
Who would be bound by the boycott, what exact conduct does the boycott demand, what are the consequences to those who do not comply with it, and it’s duration — for how long is the boycott to endure, and when and under what conditions is it to be lifted.