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					             ASSOCIATION OF TRUST SCHOOLS




                EDUCATION AMENDMENT BILL 6, 2005




PAPER PRESENTED TO THE PORTFOLIO COMMITTEE FOR EDUCATION OF THE
                    PARLIAMENT OF ZIMBABWE




                           JULY 2005
                        ASSOCIATION OF TRUST SCHOOLS
                                     TABLE OF CONTENTS



1.0   INTRODUCTION

2.0   ATS INFORMATION BULLETIN

      2.1    Composition of the ATS
      2.2    ATS Schools Legal Status
      2.3    The ATS Mandate
      2.4    Membership of the ATS
      2.5    The ATS Ethos
      2.6    Ownership Structure of ATS Schools
      2.7    ATS Staff & Pupils Racial Configuration
      2.8    ATS Schools Corporate Governance Structures
      2.9    Performance of ATS Schools ( Academics & Sport)
      2.10   Access to ATS Schools
      2.11   ATS Contribution to Education in Zimbabwe
      2.12   Impact of the 2004 Fess Crisis

3.0   EDUCATION AMENDMENT BILL: IS THERE A JUSTIFICATION FOR THE
      PROPOSED AMENDMENTS

      3.1    Setting of Fess: Proposed Section 21 & 22
      3.2    Corporate Governance: Proposed Section 36
      3.3    Determination of Teachers Qualifications: Proposed Section 59
      3.4    Disciplining of Teachers in Non-Government Schools: Proposed Section 60
      3.5    Teaching of languages: Proposed Section 62
      3.6    Implications to Future Investment in Education

4.0   ANAYSIS OF THE CONSTITUTIONALITY OF THE PROPOSED EDUCATION
      AMENDMENT BILL 6,2005

      4.1    Section 2 and the Implications
      4.2    Section 21 & 22 and the Implications
      4.3    Section 36 and the Implications
      4.4    Section 59 and the Implications
      4.5    Section 60 and the Implications
      4.6    Section 69(2) and the Implications




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5.0 CONCLUSIONS




6.0 RECOMMENDATIONS

      6.1   Stakeholder Consultations & Withdrawal of the Bill
      6.2   Proposed Alternative Education Amendment Bill Justification


7.0   ANNEXURES

      ANNEXURE A: MEMBERSHIP LIST
      ANNEXURE B: PUPILS & STAFF RACIAL CONFIGURATION
      ANNEXURE C: ATS HIGH SCHOOLS PASS RATES
      ANNEXURE D: WAITING LIST
      ANNEXURE E: 2004 ATS BURSARY AWARDS
      ANNEXURE F: 2004 6TH FORM BURSAY AWARDS
      ANNEXURE G: MINISTRY SET FEES: 2005
      ANNEXURE H: STAFF & PUPILS LOSSES 2004
      ANNEXURE I: MINISTER’S POLICY STATEMENT: AUG 2004




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1.0      Introduction


      This paper is intended to give an insight into a sub-sector of private education in Zimbabwe represented
      by the Association of Trust Schools, analyze the impact of some aspects of the proposed Education Bill
      6, 2005 on private education in particular and education in general and offer alternative amendments to
      the Education Act by way of a proposed Alternative Education Amendment Bill. The paper is addressed
      to the Portfolio Committee on Education of Parliament in particular, all the honorable members of
      parliament and the public in general. The paper is submitted for and on behalf of the ASSOCIATION
      OF TRUST SCHOOLS-ATS


2.0      Summary Background Information

         2.1     Composition of the ATS


                 Independent schooling has a long and distinguished history in Zimbabwe and several of the
                 earliest schools were religious private institutions. The Association of Trust Schools (ATS)
                 was formed in 1956 initially with a membership of 9 private Schools. The organization is a
                 representative body of the Governing Bodies (Responsible Authorities) of 61 private Schools
                 as per attached membership register in Annexure A. Affiliated and or associated to it, is the
                 Association of Trust Schools Parents (ATSP), a body representing the interests of the elected
                 Committees of voluntary Parents Associations within the ATS community. In addition, two
                 professional teachers’ organizations i.e. the Conference of Heads of Independent Schools in
                 Zimbabwe (CHISZ) and the Association of Trust Schools Teachers (ATST) are also
                 associated to the ATS.

         2.2     ATS Schools Legal Status

                 Private and or non-government schools in Zimbabwe derive their legal authority from
                 relevant provisions of Section 20 Subsection 3 of the Zimbabwean Constitution on Freedom
                 of Expression which read:

                 (3) No religious denomination and no person or group of persons shall be prevented from
                     establishing and maintaining schools, whether or not that denomination, person, or group
                     is in receipt of any subsidy, grant or other form of financial assistance from the State.

                 In addition, ATS Schools are registered with the Ministry of Education and classified as non-
                 government Schools in terms of Section 15 and Section 9 respectively of the Education Act...
                 The Schools are also regulated by various statutory instruments to the extent that they are not
                 ultra vires Section 20 Subsection 3 of the Constitution of the Republic of Zimbabwe.




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2.3   The ATS Mandate

      The ATS is made up of the Chairmen of the Governing Bodies of all its members and is led
      by an executive elected at an Annual meeting. The Mandate of the ATS through its Executive
      is to “foster and promote education throughout Zimbabwe by inter alia:

           Working closely with the Ministry of Education in all aspects of mutual concern.
           Discuss matters concerning policy and administration of Trust Schools and encouraging
            co-operation between their Governing Bodies.
           Consider the relation of such schools to the general educational interests of the
            community.
           Express the views of Governing Bodies of Trust Schools on the foregoing matters and
            taking such action, as it may deem expedient.
           Co-operate with other organizations and institutions with similar objectives or concerned
            with the educational interests of the community.
           Act as an advisory body on all matters of concern to members of the Association.
           Run the ATS Teacher Bursary Scheme – i.e. source funding, make investments, select
            bursars, negotiate training at tertiary institutions both locally and internationally, monitor
            progress, make placements in ATS schools, follow progress during “bonding” period etc
           Run the ATS Bursary Fund - source funding, make investments and make awards to
            deserving pupils to enable them to attend ATS schools.
           Generally to do all things that are incidental or conducive to the attainment of the above
            objects

2.4   Membership of the ATS

      As alluded to above, currently the ATS is made up of 61 member schools consisting of 21
      secondary schools and 40 primary schools. Membership is open to all private Schools
      meeting strict criteria chief among which is that the School should be operating on a non-
      profit basis and its Governors provide their services for no financial gain.

2.5   The ATS Ethos

      The ATS is governed by a shared ethos amongst its members as follows:

      (i)    Selection of Pupils. The schools resisted the attempts of the Rhodesia Front regime to
             make them turn down pupils who were black. The schools stand for the right to select
             their own pupils on merit and on the basis of the school's own philosophy and not the
             dictates of an outside authority.

      (ii) Employment of staff: The Schools stand for the right to employ qualified staff of their
           choice in order to ensure quality and numbers of staff to head a broad based formal and
           informal curriculum.




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      (iii) In the area of both curriculum and syllabus: Trust schools are anxious to maintain
            the Internationality of the qualifications on offer and also support the development of
            local examination infrastructure and bodies. To this end, Trust Schools pupils sit for
            both local and international public examinations.

      (iv) All round education: Trust schools aim to and are perceived by the public as not only
           providing a higher quality of all-round education than that available in State Schools
           but also as providing the necessary social qualifications for entry into a higher social
           stratum- thus they are perceived as avenues of upward social and economic mobility.

      (v)   Setting of fees: Trust Schools would like to maintain and defend       their right to set
            fees based on a cost recovery/breakeven basis with full parental       involvement and
            transparency and without State interference. In this respect, we       subscribe to the
            principle of providing alternative education at the least cost         possible without
            compromising standards.

      Trust schools do not suggest that they are the best educational institutions in the country but
      they aim to offer the best optional alternative. They offer greater opportunities than State
      schools and are attractive to parents in that:

      There is more personal attention and greater freedom of choice offered by a generous
      staff/pupil ratio and an elaborate and inclusive curriculum.

      School children spend more time at school every day than do children in State schools.

      Private Trust schools are far better equipped than State schools.

      The teachers are committed and dedicated because of better remuneration;

       Lack of upward mobility by way of promotions for our teachers means greater stability
      through longer tenures of office than do their counterparts in public schools.

      Above all, the most important aspect of motivation for all in Private Trust schools is the
      necessity to provide value for money.

2.6   ATS SCHOOLS OWNERSHIP STRUCTURE

      The majority of our schools are owned by private trusts which are administered by appointed
      Trustees hence our name. The origins of the Trusts are either Christian organizations and or
      individuals. Because of the plurality of our Society and the freedom of religion our
      membership also includes schools owned by the Hindu society, the Jewish Community and
      the Greek community. Another category of our schools is made of Schools initiated by
      companies such Triangle Limited, Hippo Valley Estates, Boarder Timbers, Hwange Colliery
      and a significant number of Bulawayo based companies. The companies initiated these
      Schools to attract skilled Company Executives to relocate to small towns and areas on the
      promise of the provision of a private quality education to their children.




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      The common denominator amongst all the Schools is that they are non-profit social service
      entities which provide an all round quality education at the full cost of providing such a
      service. There are no distributed profits in the said schools.

2.7   ATS STAFF AND PUPILS RACIAL CONFIGURATION

      There have been numerous misleading public statements issued in terms of the configuration
      of the staff and pupils at our schools. Such statements as pertaining to racism were issued by
      individuals and authorities without backing them up with facts on the ground. It is important
      in our view that information is availed to all and sundry so that we can all put this matter to
      rest once and for all for the good of our country. Our country needs to heal and move forward
      and not leave in the past-for the past is another country. In addition, and most importantly,
      we felt that this information should be made public in light of the statement issued by the
      Minister on August 2 2004 wherein he wrote ”do not forget where we came from i.e. era of
      racism. You have to convince government that you are not continuing to promote the racism
      of yore” See Annexure I item number 9. This was in apparent reference to the enrolment of
      pupils in private schools on racial grounds. The table below illustrates the racial
      configuration of our schools:

      ATS RACIAL CONFIGURATION




       RACE          BLACK          WHITE          ASIAN           COLOUREDS           TOTAL


       PUPILS        12 615          5 917         1 189              946           20 667


       STAFF          836             644               61             65             1 606



       % Analysis


       PUPILS           61            29            6                 4                 100



       STAFF           52              40           4                  4                100




      In terms of pupils, there are 20 667 pupils enrolled in our Schools as at May 30, 2005. Of that
      number 62% are black, 29% are white, 6 % are Asian and 4% are coloureds. In terms of
      professional staff excluding general staff, our Schools employ 1606 staff.


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      Of that number 52% are black, 40% are white, 4% Asian and 4% are coloureds. Please
      take note that the configuration differs from each school depending with its location and the
      racial configuration of the residents of the locality.
      If one where to consider the composition of our population and the reality of our economy in
      terms of numbers in the middle to high income bracket, the racial configuration in our
      Schools is a true representation of that category of our citizens who can afford to meet the
      full cost of education at a private school. Any suggestion that our schools practice racism in
      terms of enrolment is uninformed. Unfortunately such misinformation seems to have been
      guiding policy within our Education sector.

      Our schools instead represent the multi-racial and multi-cultural nature of Zimbabwe as
      espoused in the National Policy of Reconciliation where all races and tribes work together
      for the common good as equals before the law and God. See Annexure B for the Racial
      configuration.

2.8   ATS SCHOOLS CORPORATE GOVERNANCE STRUCTURES

      Our Schools are governed by Boards of Governors which are appointed on the basis of the
      respective constitutions of the various Schools. The constitutions are inspired by the origins
      of given schools i.e. whether they were church initiated, individual and or company initiated.
      Thus for church initiated schools some of the governors come from the respective church
      structures, whilst for company initiated schools some of the governors are seconded
      employees of the said company. For those which were initiated by a group of individuals, the
      constitutions provided for the appointment of new Trustees by the existing Trustees as others
      retire. The appointment to the Boards is based on merit since the said governors have to
      provide guidance to a commercial albeit non –profit making entity. In this respect, the Boards
      are made up of professionals in various fields e.g. accounting, economics, business, law and
      education. The source of the professionals is mostly the body of current and former parents
      and or former pupils and staff of the respective schools who have the will, skill and time to
      serve for no financial gain but motivated by a desire to make a civic contribution to one’s
      country. Statements to the effect that these boards are led by people who have no intimate
      knowledge of a given School are therefore misplaced and not based on fact. In terms of the
      configuration of our Boards as at May 30 2005 the following prevails:

      We have a total number of 610 men and women of integrity managing 61 schools of which
      355 or 58% are current parents at the said Schools and 255 or 42% are non-parents. Of the
      non-parents 80% of them are made up of former parents whose children would have
      completed schooling during their term of office and they continue to serve the school for
      posterity. The balance is made up of Trustees who are either coming from churches,
      companies and or groups who established the Schools. See Annexure B for the Board
      configurations of our Schools. If one where to analyze our corporate governance structures,
      one would see that they meet international standards on Corporate Governance where they
      strike a balance between interested Governors as represented by parents and independent
      Governors as represented by non-parents. Infact, the balance in favour of “interested”
      governors i.e. 58% is unhealthy for the educational institutions because empirical evidence
      shows that a parent’s interest in the development of a School goes as far as the day that his or
      her child leaves that school. This is natural, but it is not in the interests of the long term
      development of a given school.

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      It stifles long term planning and thereby retards growth of educational institutions. As such a
      mixed Board, with a bias towards non-interested governors would augur well for the long
      term development of educational institutions. See Annexure B for the composition of
      Boards in our Schools.

2.9   Performance of ATS Schools

      ATS Schools aim to provide an all round quality educational product of international
      standards. This means the Schools do not focus their attention on preparing children for
      examinations through a rigorous process of cramming. Instead the Schools offer pupils a
      varied curriculum both in academics, sport, vocational, religious and life skills to prepare
      them to join society as responsible adults. However, the Schools do give attention to
      performance in public examinations and on average over the years have been producing
      better results than State Schools.


      2.9.1   Academic Results

              Our results compare favourably with our counterparts in private education i.e.
              Mission Schools. For the past two years as an example, the 21 Secondary Schools in
              our membership have produced the following range of results: See Annexure C for
              our public exam results:

                                                               No in Group
                                                             2003        2004

               Highest Range (70 – 100%)
               “O” Level                                      12             13
               “A” Level                                      20             20

               Mid Range (50 – 70%)
               “O” Level                                       9              4
               “A” Level                                       0              0

               Lower Range (30 – 50%)
               “O” Level                                       0              4
               “A” Level                                       1              1


      The statistics above show that in 2003 57% of our High schools achieved a pass rate of
      between 70% and 100% in “O” Levels, 43% achieved a pass rate of between 50-70%. In the
      same year, 95% achieved a pass rate of between 70 and 100% in A Level exams with only
      one school falling in the 30 to 50% range. In 2004, 62 % of the Schools achieved a pass rate
      of between 70-100% in O Levels, whilst 19% achieved a pass rate of between 50 and 70%
      and a similar percentage fell in the low range of 30 to 50%. In A Levels in 2004, 95%
      achieved the high range of between 70 and 100% and only one school was in the low range
      of between 30 and 50%.


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       2.9.2   Sport Achievements

               In addition to the above, our schools over the years have produced 250 sports
               personalities who have given their service to national teams from under 13 to the
               national teams.

               The above performance in terms of both academics and sport was achieved because
               of the following reasons among others:

               (a)  a high quality staff which is both qualified and motivated in terms of
                    remuneration
               (b) a well funded school infrastructure in terms of learning materials and sporting
                    facilities without which there will be no results to talk about.
               The experiences in Public Schools where schools have succumbed to under funding
               and a demotivated workforce which is underpaid have contributed to the poor results
               which range from 3-13%.

2.10   Access to ATS Schools

       It is common cause that education is a basic right internationally and in Zimbabwe our
       constitution and Section 4 of the Education Act recognizes this fact. In this respect, ATS
       schools that provide an alternative schooling system and not the basic which is provided by
       public Schools also recognize the fact. In that regard, our Schools and or fees are set on a full
       cost recovery basis. Section 6 of the Education Act states that “it is the objective that
       tuition in schools in Zimbabwe be provided for the lowest possible fees consistent with the
       maintenance of high standards of education, and the Minister shall encourage the attainment
       of this objective by every appropriate means, including the making of grants and other
       subsidies to schools.”
       We subscribe to this view and reiterate that for you to maintain high standards you need to
       recover the full cost of providing the service but not for profit. There is no point, in our view,
       to set your fees at below the cost of providing the service because the effect of doing that is
       that you will deliver a substandard product which then defeats the provisions of Section 6 of
       our Act. Having said that, we subscribe to the principle of government subsidizing education
       and in particular in public schools so that they are able to provide the full product by
       ensuring that teachers are adequately remunerated, children have text books which are not
       shared, class sizes are reduced to increase the level of Teacher attention and generally that
       the facilites are adequate for a learning environment including sport.

       Access to a School is generally a function of proximity and level of fees. In the case of our
       Schools, evidence on the ground shows that our Schools are not only accessible but are
       failing to meet demand as exemplified by the number of pupils on our waiting lists and the
       level of bad debt in our Schools. In terms of the waiting list, out of a total enrolment of
       20667 we have a combined total of 3872 pupils or 19% who cannot be accommodated in our
       Schools but can meet their share of the full cost of our educational product. See Annexure D
       for our waiting list. The million dollar question is: “are our fees affordable”? One of the key
       scientific method that one can use to determine the appropriateness of a price is the level of
       failure to meet the same as represented by doubtful debts.

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       Term one and Term two of 2005 saw our Schools setting their own fees in consultation with
       their parent bodies and without interference from the Ministry of Education as per High
       Court order.

       An analysis of the doubtful debt situation in our Schools demonstrates that our fees are
       affordable to those parents who choose to enroll their children with us as opposed to public
       schools.
       This group of parents includes Honorable members of Parliament, Senior Civil Servants,
       Cabinet Ministers, Permanent Secretaries, Defense Chiefs, Business executives and
       diplomats. Out of a total enrolment of 20667 only 339 pupils and or 1.6% had difficulties in
       meeting their obligations more as a function of the general economic conditions in our
       country rather than the unaffordability of the full cost of education. In any industry, a bad
       debt percentage of 5% or less is no cause for alarm as to the appropriateness of a given price.
       Infact our community has internal mechanisms to deal with those pupils who have
       difficulties in meeting our costs. In this respect, a bursary managed by the ATS is utilized to
       cushion those who are financially challenged so that their children can have access to a
       quality education product.

2.11   ATS Contribution to Education Development in Zimbabwe

       2.11.1 The ATS Bursary Fund

              The ATS manages a Bursary for its member Schools with funds raised from the
              corporate world. The bursaries are given to deserving pupils as identified by the Head
              of each School. A Committee of the ATS selects and awards the Bursaries to the
              individual Schools. The Bursary acts as a safety net for pupils whose parents would
              have experienced difficulties in meeting their share of the cost of providing education
              to their children. There is within the main Bursary fund a special 6th Form Bursary
              Fund that awards bursaries to A level students who apply to join an ATS school from
              a public School. For the year 2004 the ATS disbursed a total of $ 500 million to
              deserving pupils. See Annexure E and F for our bursary disbursements. In 2005 for
              term one and two we had 752 or 3.6% of our enrolment on bursaries against 339 or
              1.6% bad debtors a clear indication that our Schooling system has sufficient internal
              capacity to create a safety net to assist parents who would have experienced financial
              difficulties during the course of their children’s’ studies within our community.


       2.11.2 ATS Teacher Bursary Scheme

              The ATS since 1990 has been running a Teacher Bursary Scheme. To date a total of
              128 bursaries have been awarded to teachers to study locally and in South Africa of
              which 92 completed their studies and were deployed in ATS schools whilst 7 are still
              studying. To date only 39 of the teachers are remaining within the community whilst
              the rest have either joined commerce and or left the country to teach in the region and
              abroad. This programme is continuing with cooperation agreements between ATS
              and Gateway which is one of the members of the community.




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       2.11.3 Contribution to the Fiscus and Subsidies to Public Schools

              Private Education is an important part of any country’s education system and should
              be encouraged to flourish because of its benefits to the public school system through
              indirect subsidies. Our schools offer an alternative education system to the
              mainstream public education system provided by and which is the responsibility of
              the State.
              By having a significant number of parents who can afford to pay for the full cost of
              an education for their children through private Schooling, those parents are in essence
              subsidizing public Schools by removing the said burden from the State which then
              redirects its resources to less privileged members of our society.
              This fact is recognized the world over. In addition, close to 40% of the fees paid for
              private education finds itself back to the fiscus through various taxes which at current
              fees levels in our schools amounts to approximately 300 billion Zimbabwe dollars in
              the year 2005.

2.12   Impact of the 2004 Fees Crisis

       It is public knowledge that in May 2004 at the beginning of the Second term the Minister
       ordered the closure of several private Schools and the arrest and detention of several Heads
       and Board Members for allegedly violating Section 21 and Section 22 of the Education Act
       with regards fee setting. This action was subsequently ruled unlawful by the High Court.
       Subsequent to the closures, the Minister went ahead to fix sub-economic fees for our Schools
       for term 1 and term 2 leading our Schools for the first time in the history of this country to
       survive from donations from the same parents who had chosen to bring their children to our
       schools. This sad chapter caused unnecessary trauma and anxiety for governors, parents,
       teachers and pupils alike. The result of the trauma and uncertainty caused by the experience
       saw the loss of 1182 pupils whose parents emigrated to either South Africa or Europe. The
       parents either left with their children or they send their children to South Africa and now pay
       their fees in foreign currency, a resource that we hardly have as a country. In addition, our
       Schools lost 143 teachers who also left the country. How much will it cost the tax payer to
       train and replace the 143 teachers? Was this cost necessary or could it have been avoided?
       The country cannot afford to lose its skilled manpower to other countries because of errors of
       judgment on our part. See Annexure H for staff and pupils losses.


       It is also common knowledge that during the crisis two Schools i.e. Eaglesvale and Hillcrest
       College nearly went into liquidation because of the sub-economic fees set by the Minister.
       Hillcrest College has not been able to recover from that crisis up to this day with the School
       torn apart, pupils leaving the School,some parents setting up a correspondence group next to
       the school and others crossing over to a private School in Chimoio Mozambique. This sad
       situation is unknown to the Minister and the Ministry as a whole.




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3.0   EDUCATION AMENDMENT BILL: IS THERE A POLICY JUSTIFICATION FOR THE
      PROPOSED AMENDMENTS?

      Legislation as an instrument of public policy must be justified by circumstances within a given
      sector of Society. In addition, legislation in a democratic society must be seen to be serving the
      interests of the targeted sector and society in general. In a constitutional democracy like ours, before
      coming up with new legislation, a Minister should draft a white paper which identifies weaknesses
      and or problems in a given sector which justifies intervention through legislation or other means.
      The white paper should be circulated to the stakeholders within the given sector for their input. A
      final policy document is then developed for approval by Cabinet leading to the drafting of a Bill
      which must then be presented to Parliament for debate and enactment with or without amendments
      before Presidential assent or otherwise. In our case, such a process was never done. Instead we
      started with a Bill and we are now going backwards to try and justify it.

      On the Basis of the expose above, is there a justification for the proposed amendments to the
      Education Act in the manner proposed by the Honourable Minister? In addition, considering our
      situation in Zimbabwe today, where do we have problems that require urgent Ministerial
      intervention in terms of legislative measures or otherwise? Is it the non-government school sector or
      the public school sector? Or with all due respect, is it just a problem of the current legislation not
      giving enough power to an individual Minister whether such power benefits society or not? We
      comment on each one of the proposals of the Honourable Minister as follows:

      3.1    Setting of Fees : Proposed Section 21 & 22

             The evidence on the ground in terms of private schools as represented by us and or mission
             Schools shows that there is no justification for the Minister or the Secretary to intervene in
             the setting of fees. Evidence on the ground shows that our fees are not only affordable by the
             low level bad debt percentage but also by our failure to meet demand for parents who choose
             and are willing to meet our fees. In addition, evidence also shows that the Ministry of
             Education does not have the technical capacity to determine fees for private education as
             exemplified by the sub-economic fees they determined in 2004 , leading to the donations
             crisis. See Annexure G for the sub economic fees again fixed by the Minister and the
             Secretary for the 2005 academic year which had no relationship to the actual costs of running
             the respective private schools.

             The recent increase of fees in government schools by 1000% when inflation is 144%
             vindicates our position on setting fees based on prevailing economic fundamentals. Suffice it
             to mention that the base from which the government fees were increased from is low hence
             the percentage increase, but more importantly, it indicates that the Ministry has been
             suppressing necessary increases. The result of this approach is to burden the payer with a
             hefty increase overnight.
             We must however note that their decisions in 2005 with respect to private school fees were
             overridden by the High court. However, the proposed Bill if passed will frustrate the
             particular order by the Judiciary.
             In addition, in 2004 the Ministry demonstrated that it does not have the capacity to
             administer a School Fee Setting Regime because they failed to determine fees on time and
             Schools closed in December of 2004 with parents not knowing their financial obligations for
             term one of 2005.

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      On the basis of the evidence analyzed above, the Honourable Minister needs to explain to
      both the House and the nation why he has to intervene in fee setting outside market forces.
      We have no objection to any reasonable regulation on fees for as long it is within the context
      of controlling fees that are set above scientifically and economically prescribed parameters
      such as the Consumer Price index.

      In subsection 5 and 6 of section 21 of the amendment, the Minister is indeed proposing to
      criminalize the provision of education by proposing draconian measures including
      imprisonment. We do not believe that a penalty of imprisonment in educational matters is
      justifiable in a democratic society. There are sufficient laws to deal with any criminal matters
      in our statute books and penalties in matters of fees should not go beyond a fine whose level
      is prescribed in the same manner with all other fines within the amendment bill i.e. level 14.
      We also do not believe that the Minister should be given power to deregister a school or
      forfeit to the state fees paid by parents because that would not be in the interest of the pupils
      attending the said School. Equally, we do not subscribe to the dissolution of any body
      running a private School and the take over of the management of a private entity by the
      Minister whose hands are already full with government related institutions under his control
      which are struggling.

3.2   Corporate Governance: Proposed Section 36 : School Parents Assembly & School
      Development Committees

      As alluded to above, 58% of our Governors are current parents. On that basis what could be
      the cause of concern by the Minister by wanting to establish a Parents only School
      Development Committee. We further noted that the composition of governors runs contrary
      to international best practice in terms of corporate governance. What the Minister is
      proposing takes back our private education management where everyone else the world over
      and in some sectors in Zimbabwe is coming from in terms of good corporate governance. In
      addition, there is no evidence to suggest that any of the management structures operating
      private and Mission Schools have failed to do so. In addition, the configuration of our Boards
      i.e. 58% parents is 8 percentage points above what the Minister prescribed in his policy
      statement on August 2, 2004. See Annexure I item number 12.
      What the Minister is now proposing is contrary to what he said then representing a shift in
      goal posts making second guessing him in policy matters a difficult task. Therefore, what
      could be the justification for removing the Boards now?
      They must be something that happened between August 2004 and May 2005 which is
      unknown to us. The Honourable Minister in our view and on the basis of the evidence on the
      ground owes the house, the non-government schools and the nation an explanation backed up
      by facts and figures as to why he wants to change the corporate governance structures of the
      non-government schools.

      The Hon Minister has in a public written statement also indicated that parents should manage
      the Schools finances because they own the fees that they pay at Schools. See Annexure I
      item no 16 on his views on this matter. This thinking and logic needs revision. It is common
      knowledge that money is an instrument to facilitate exchange of goods and services. The
      parents pay a fee to the Educational Service provider (School) in exchange for an educational
      service for their children.



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      Once the fee has been paid, ownership of the money transfers to the Responsible Authority
      who now has a contractual obligation to deliver the education service which is retained by
      the pupil. The Responsible Authority also has a constitutional right to manage the said funds.

      If the Responsible Authority does not provide the educational product then he will be in
      breach of contract and can be sued. By the same token if a pupil receives an education and he
      or she does not pay a fee then the parent/guardian is in breach of contract and liable to be
      sued. It is as simple as that.

      The house must also bear in mind that the same Ministry made an attempt to introduce
      similar provisions through SI 87, but the government realized the folly and exempted
      Catholic Schools from the said regulations. The exemption, by default then covered all non-
      government schools on the basis of a reasonable expectation by everyone in the same
      situation with Catholic schools to be exempted also. As to why today the same Ministry
      would like to bring back the same provisions through the Act which they acknowledged were
      not proper and expecting to get a different result is hard to understand.

3.3   Qualifications of Teachers (Non government Schools): Proposed Section 59

      In his preamble to the Bill, the Minister justifies the repeal of Section 59 of the principal Act
      by saying that most non-government schools i.e. private and Mission Schools employ
      experienced Sports Teachers who are not necessarily qualified.

      The evidence on the ground in the first instance demonstrates that non-government Schools
      have indeed produced a significant number of our sports personalities’ to-date. Secondly, the
      Minister in his proposed Section 59 proposes to determine the qualifications of all teachers in
      non-government Schools (not Sport teachers only) and to have their employment subject to
      the Secretary’s approval.
      The evidence on the ground in terms of our results both in sport and the academics does not
      suggest that our teachers are unqualified compared to the results obtained in public Schools.
      To the contrary, the Minister is aware that most of our public Schools, particularly the ones
      in rural areas are manned by unqualified teachers. The Deputy Minister of Higher Education
      has indeed confirmed that the country has a deficit of 776 teachers. As to why the Minister
      then chooses to target private Schools when there is an obvious problem of qualified
      teachers in public Schools defies all logic.

      Whilst we do not object to the establishment of minimum qualifications for teachers, we
      want this to be for all teachers within and outside the public service, otherwise the provision
      in its present form is discriminatory. This is important in terms of quality assurance for our
      whole education system. We however do take great exception to having our teachers
      employment being subject to the Secretary’s approval because he is simply not the employer.
      The Minister and the Secretary should in turn leave the Responsible Authorities to administer
      their own recruitments.

      Evidence on the ground also shows that without a Minister having the powers that he is
      asking for from the House, most of our leaders in politics, civil service and business are
      products of non-government schools in terms of either Private or Mission Schools. Do our
      results justify the legislative intervention proposed by the Minister.

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      As Responsible Authorities we have the right to establish and manage our Schools that
      includes the human resources aspect. The Minister therefore owes the august House, the non-
      government Schools and the nation an explanation as to the reasons behind his proposed
      repeal of Section 59.

3.4   Disciplining of Teachers (Non- Government Schools): Proposed Section 60

      Firstly, there is no evidence on the ground that Private and Mission Schools which
      collectively make up non-government schools have failed to manage disciplinary cases in
      their Schools if any. Secondly, there is no proven wide spread indiscipline that would suggest
      the need of the intervention of the Minister through legislation. The Minister owes the House,
      the nation and the non-government schools an explanation with facts and figures as to what
      problem has motivated his proposed repeal of section 60 of the Education Act. The facts he
      needs to put before the house are that they have been so many disciplinary cases in the non-
      government sector which the authorities have failed to address warranting his intervention by
      way of legislation and direct involvement in the disciplining of all non government Schools
      teachers which he does not employ.

      The Minister further suggests that his regulations and code of conduct would prevail over the
      Labour Relations Act. If every Minister were to ask the House to give him or her such power
      for every professional who falls under a given Ministry indirectly (i.e. outside the public
      service) then there will be no need for the country to have a Labour Relations Act let alone a
      Ministry responsible for labour. The minister of Justice for instance would preside over the
      hiring and firing of lawyers in private practice whilst the Minister of Health would do the
      same for Health professionals. The Minister might want to take a cue from the two
      professions and encourage the establishment of a self regulatory professional body for this
      noble profession called teaching.

3.5   Teaching of 3 languages: Proposed Section 62

      The teaching of our all our main languages in our Schools is a noble idea. It promotes unity
      amongst the people of Zimbabwe of all races and cultures. However, the Minister needs to
      take into account the practical difficulties involved in terms of congesting the teaching
      programme to the detriment of other broad curriculum subjects.

      Consideration should also be given to the resources needed to implement this project in terms
      of the teachers and the text books required by all the Schools, taking into account that
      currently Zimbabwe has a deficit of 776 teachers according to the Deputy Minister of Higher
      Education. The Hon Minister also has to consider this provision together with his proposals
      to introduce specialization after form 2 and determine the practicalities of this provision.
      The solution in our view lies with the Minister engaging stakeholders in the planning and
      implementation of this proposal. There might be need to incorporate an exemption clause
      which is resource related and also to provide for pupils to have a choice of one vernacular
      language post form 2.




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3.6 Implications to future Investment in Education in Zimbabwe

      3.6.1 Foreign and Local Investment

         The proposed amendments have the potential of discouraging both foreign and local
         investment in Education. The Honourable Minister in a public statement quoted in the Herald
         of June 2005, alluded to an Educational reform programme which among other things
         targets to reduce enrolment to 1000 pupils per school within 5 years starting 2006.This is a
         commendable objective, but it must be understood that government alone cannot achieve it.
         There is need for participation by the private sector including churches. However, the
         proposed amendments in particular, section 21,22,36,59 and 60 will act as a disincentive for
         any group to invest in private education and thereby frustrated the Minister’s noble objective
         to reduce school sizes to 1000 pupils per school.

         In our expose, we did indicate that some of the schools that we have today were initiated by
         companies that wanted to invest in remote areas and used private schools as one of the
         incentives to attract skilled executives to relocate. In addition, the country is currently on a
         drive to attract foreign direct investment, and one of the key considerations in investing in
         any given economy is the existence of private educational institutions which the seconded
         staff can send their children to. If one carefully analyses the amendments, it is clear that if
         they are passed, private schools will remain private by name only with the management and
         control effectively in the hands of the Minister and the Secretary from the setting of fees, the
         management of finances and human resources.


         3.6.2 International Relations

         The amendment of the Education Act has the potential of damaging Zimbabwe’s
         international relations. The majority of the private mission schools in Zimbabwe inclusive of
         such Schools as SOS, Nhowe Mission and Dadaya of Church Christ, Catholic, Salvation
         Army and Methodist church schools have a direct funding and or management relationship
         with the respective head offices of the said churches abroad. The amendments will see the
         removal of the direct participation of the said organizations in the running of their schools
         which might not augur well for the country’s international relations at a time when we are in
         the process of trying to mend our relationships.



4.0      Analysis of the Constitutionality of the Education Amendment Bill 6, 2005


         4.1    Section 2 and the Implications

         The amendment of the definition of the Responsible Authority is unconstitutional in that it
         seeks to separate the establishment and maintenance role of the Responsible Authority. The
         Responsible Authority or owner of the School has a constitutional right to establish and
         maintain not to establish or maintain as proposed in the amendment of the definition.



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4.2    Section 21 & 22 and the Implications

The right of the Responsible Authority to maintain its School will be nullified by the
amendments inserted in Section 21 (1) wherein the Minister will be empowered to prescribe
fees and or fee increases without regard to any factors. If the responsible Authority is unable
to charge fees sufficient to cover its costs, then it will be unable to maintain its School. In
addition, if one considers the varied nature of our schools in the private sector including
Mission Schools, it is impossible for the Minister to prescribe a fee that would be reasonable
for each individual School. The effect of the amendments is that the Minister and or the
Secretary will be able to close down Schools by fixing fees which are inadequate.

The amendments to subsection 5 of Section 21 are unconstitutional. In particular, if the
Secretary is empowered to take over the management of the School and or deregister it, or
forfeit funds meant for the running of the School, then the Responsible authority will be
unable to maintain its School and it will not be in the interests of the pupils attending that
School.

4.3    Section 36 and the Implications

The proposed amendments to Section 36 takes away from the Responsible Authority the
right of management and or maintenance of the School in violation of Section 20(3) of the
constitution. If the Responsible authority does not have control of its finances then it will not
be able to maintain its school. In addition, the effect of the amendment is that it takes away
from the Responsible Authority, property (money and its control) which belongs to it in
contravention of Section 16 subsection 7 of the Constitution.

4.4    Section 59 and the Implications

The Minister can prescribe the Minimum qualifications for teachers for all Schools but must
take into account the varied curriculum in our Schools in relation to the actual training
courses available in State and Private Colleges. It would be discriminatory and unjustifiable
in a democratic Society if this is done for Non-government schools only.The Responsible
Authority should remain the Authority to engage and dismiss employees based on the
minimum qualifications without reference to the Secretary otherwise its constitutional right
to maintain its school is diminished.

4.5    Section 60 and the Implications

It is not justifiable in a democratic society for a Minister to determine the code of conduct
and related penalties for staff that he does not employ. The Responsible Authority’s right as
an employer is diminished if the amendment is passed.




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      4.6 Section 69(2)

      The proposed amendment empowering the Minister to make regulations on School uniforms
      is not justifiable in a democratic society if the power entails him prescribing one uniform for
      every school as he attempted two years ago. The Responsible Authority as part of his
      management role has a right to determine a uniform of its choice.

5.0   Conclusions

      5.1 Justification for the bill

      On the basis of the information given above, there is no evidence to suggest that there are any
      problems within private and mission schools in Zimbabwe in terms of fee setting, corporate
      governance, academic performance, employment and disciplining of teachers to justify
      legislative intervention in the form proposed by the Honourable Minister of Education Sport
      & Culture. To the contrary, there is evidence that non-government schools have been
      performing on average better than public schools in all respects. Honourable members of the
      august House are therefore requested to call for such evidence and justification before
      enacting the proposed bill.

      5.2 Constitutionality of the Bill

      As indicated in section 4 of this document, the bill, in particular Sections 21,22,36,59, 60 and
      62 are unconstitutional and the House needs to safeguard our supreme law by not enacting
      any legislation that violates the constitution

      5.3 Stakeholder Consultation

      The Hon Minister did not consult on the proposed bill in order to secure a stakeholder buy in
      as is expected in a democratic society. The house is therefore requested to facilitate a public
      debate of the Bill, before it is presented in parliament for its 2nd and 3rd reading.

      5.4 Investment in Education & International relations

      The bill has the potential to discourage investment in education and also potentially tarnish
      the international image of the country and the relations between the State and the Church.
      What the Minister is in essence saying (which will be difficult to sell) is that anyone can
      come to Zimbabwe to establish a School but after establishment you are not allowed to
      manage it. You must instead handover the financial management to your clients the parents
      and the human resources management to him.

      5.5 Nationalization of Private Schools

      The objective of the Minister it appears is to nationalize private schools in Zimbabwe if his
      proposals are read with the statement he issued on August 2 2004 wherein he stated that
      “there are no private or independent schools in this country”. See Annexure I item
      number 22.



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      This is being achieved by the proposed Amendment of Section 2 which has the effect of
      amending the constitutional definition of a Responsible Authority from one “that
      establishes and manages a school” to one “that establishes or manages a school”, with
      the key words being and & or. If that is the intention as is apparent, then the legislation must
      be clear and not ambiguous as is the case. The Bill, in a rounded way centralizes control
      around the Minister and Secretary for Education and removes the right of use of private
      property.

      The Bill also appears to be empowering the parents but in reality disempowering them
      through the determination of their powers by the Minister and the provision for the
      dissolution of the School development Committee by the Secretary on matters concerning
      fees.
      Furthermore, if it is the objective of the Minister to nationalize, then there is need to amend
      the Bill of rights in the constitution first to allow for nationalization of private Schools and
      then enact the necessary legislation. Through this change in definition the Minister has
      enabled himself to repeal Section 36, 59 & 60 and amend section 21 and 22.

6.0   Recommendations

6.1   Stakeholder Consultations & Withdrawal of the Bill

      We propose that the Minister considers withdrawing the bill and then reengage the
      stakeholders. In particular, it is proposed that the Minister engages the stakeholders on the
      proposed education reform programme first and thereafter let the reform blue print lead to the
      amendment of the Act if necessary. That way we will put the horse and the cart in the correct
      order.

6.2   Proposed Alternative Education Amendment Bill & Justification

      In the event that the Minister does not see the wisdom of withdrawing the bill from
      Parliament, we recommend that the house considers amending his proposed bill taking into
      account the provisions that we propose in the alternative bill that we will be submitting to the
      Portfolio Committee for Education soon. The proposals that we will present in the alternative
      Bill are justified as follows:


      6.2.1   Alternative Section 2:Definitions

      The definition of the Responsible Authority of a Private School is derived from Section 20(3)
      of the constitution and needs to be retained as in the principal act as the person, body or
      organization responsible for the establishment and management of the school.




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6.2.2   Alternative Section 21

The alternative proposed Section 21 recognizes that non-government schools are private
institutions and as such should have responsibility to set their own fees as determined by
market forces with the participation of parents but regulated only to the extend that the fees
fall outside economic fundamentals. The Section also decriminalizes the provision of
education by enacting penalties which are reasonable. The Section also intends to empower
parents in a meaningful way by giving them the final say on the level of fees to be paid in
private institutions outside market forces.

6.2.3   Alternative Section 22

The alternative proposed Section 22 intends to give the Minister power to regularize or other
wise the decisions of the Secretary on appeal, but removing the power to fix fees which must
be market determined and approved by the parents in cases where the Responsible Authority
would like to charge or increase a fee by more than 10% of the published Consumer Price
index as will be outlined in the proposed alternative Section 21.
The Section also intends to ensure that whilst the fee determination process is still pending in
terms of Section 21 & 22, then the pupils and Responsible Authorities are not prejudiced by
allowing for a provisional fee.

6.2.4. Alternative Section 36

Alternative Section 36 proposes to reinstate the parents’ right of association by making the
establishment of Parent Associations in non government schools voluntary rather than
compulsory. The alternative retains the Minister’s prerogative to handover the management
of state schools to parents.

6.2.5   Alternative Section 59

The alternative Section 59 recognizes the importance of minimum qualifications for all full
time teachers in all schools but gives room to Responsible Authorities in non-government
schools to administer their own recruitment in line with their mandate to establish and
manage schools.

6.2.6   Alternative Section 60

The alternative section 60 recognizes the Minister’s prerogative to give guidelines for a
national teacher code of conduct but leaves room for Responsible authorities to administer
their own school specific codes of conduct and employment conditions of service guided by
the Labour Relations Act. The proposed alternative reinstates the supremacy of the Labour
Relations Act on labour matters.




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 6.2.7   Alternative Section 62

 The alternative Section 62 recognizes the importance of all national languages to be taught. It
 however proposes that this be up to form 2. Post form two where there will be specialization
 in the academics (science and art) vocational and commercial then pupils must be allowed to
 take up English and one other vernacular language of their choice.



 6.2.8   Alternative Section 68

 The alternative Section 68 makes provision for the Minister to not only recognize
 associations of teachers but also the associations of Responsible Authorities in non
 government Schools including but not limited to church groups, local authorities associations
 and other groups who have a direct interest in educational matters.

 6.2.9   Alternative Section 69

 We have restricted the power of the Minister to regulate on government School uniforms
 and not all schools, and not to regulate for voluntary Teachers associations but instead to
 encourage the formation of a Self Regulatory Professional Teaching Services Body along the
 lines of the Health Professions Council and the Law society.




Jameson Timba
Chairman
Association of Trust Schools




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