A FEW weeks ago, Senator Heineken Lokpobiri, (representing Bayelsa West) tabled a motion before the Senate seeking to declare the Post-Unified Tertiary Matriculation Examination (Post-UTME) test conducted by universities across the country illegal. Senator Lokpobiri forcefully argued that 'the Joint Admissions and Matriculation Board (JAMB) is the sole body charged with the responsibility of conducting matriculation examination for admission into tertiary institutions in the country and that the Post-UTME test is a gross violation of the JAMB Act.'Some senators who supported his argument cited other reasons for their opposition including the allegation that candidates were being made to pay prohibitive cost to sit for the test. A number of other senators expressed strong support for the test, citing the need to maintain standards in admission into tertiary institutions in the country. As reported by the media, the Senate finally mandated its Committee on Education to undertake a comprehensive investigation into the activities of universities involved in the test.In this contribution, I shall restrict myself to the debate on the legality of the Post-UTME test since in truth that remains the only real substance of Senator Lokpobiri's motion. In my view, all other arguments against the conduct of the test are rather unsustainable as they amount to an effete but rather tendentious attempt by the senators to micro-manage the affairs of the universities even in the face of extant statutes which have conferred autonomy on universities, especially in academic matters, including most notably the Universities (Miscellaneous Provisions) (Amendment) Act, passed by the fifth National Assembly and assented to by President Olusegun Obasanjo on 10th July 2003. Before proceeding to extrapolate our position, it is necessary to provide a brief insight into what informed the institution of the Post-UTME test.Within a period of less than two decades from 1978 when the centralized tertiary matriculation examination conducted by the JAMB was introduced by the then military administration of General Olusegun Obasanjo, it became embarrassingly clear that candidates with fantastic scores in the examination could no longer justify their scores in the course of their studentship.In fact, a disturbingly high number of them were being withdrawn even during the first year of their course of study. Many of them were also found to form the bulk of cultists in their various institutions. On the contrary, it was found that a good number of candidates with modest scores constitute the rank of excellent students and those who graduate without being involved in cultism, examination malpractices or other forms of nefarious activities in their institutions. These findings were the result of empirical studies carried out and published by scholars in the country over the years. Convinced that the findings were alarming enough to deserve a fresh policy approach with a view to redressing them, all stakeholders in the sector, including officers of the Federal and State Ministries of Education, JAMB, the National Universities Commission (NUC) and the Association of Vice-Chancellors of Nigerian Universities (AVNU) resolved that tertiary institutions be permitted to conduct a form of quality assurance test on candidates that have scored at least 200 and above (or as the case may be, 180 and above) in the UTME. As we shall now illustrate below, the stakeholders were able to find sufficient legal bases for this initiative, hence there was no need to approach the National Assembly for a special legislation to give effect to their decision.To understand the legal justification for the test, the following pieces of legislation are relevant, namely: Joint Admissions and Matriculation Examination Board Act, (as amended), Universities (Miscellaneous Provisions) (Amendment) Act and the statutes establishing universities in Nigeria; for instance, the University of Benin (Transitional Provisions) Act, an Act which is almost entirely similar to other statutes establishing universities in the country. It is conceded that Senator Lokpobiri was partly correct when he argued that the JAMB (hereafter, 'the Board') is the sole body charged with the power to conduct matriculation examination for undergraduate admissions into tertiary institutions in the country. This is by virtue of the clear provisions of section 5 (1) (a) and (2) of the JAMB Act. Nevertheless, in placing or admitting suitably qualified candidates into these institutions, the Board is required by section 5(1)(c) of the JAMB Act to act in collaboration with the tertiary institutions after taking into account (i) the vacancies available in each tertiary institution; (ii) the guidelines approved for each tertiary institution by its proprietor or other competent authority; (iii) the preferences expressed or otherwise indicated by candidates for certain tertiary institutions and courses; and (iv) such other matters as the Board may be directed by the Minister to consider or the Board itself may consider appropriate in the circumstances.It is immediately obvious from the foregoing that after the matriculation examination which is virtually the sole responsibility of the Board to administer, the JAMB Act requires the Board to collaborate with tertiary institutions for the purpose of placing qualified candidates into such institutions regard being had to some parameters set out in section 5(1)(c)(i)-(iv) thereof. Of particular relevance to our discourse is the mandatory requirement placed upon the Board to take account of 'the guidelines approved for each institution by its proprietor or other competent authority' (section 5(1)(c)(ii)) and 'such other matters as the Board may be directed by the Minister to consider'.' (section 5(1)(c)(iv)). Indeed, the power of the Minister in this regard is further strengthened by section 6 of the JAMB Act which provides that 'subject to the provisions of this Act, the Minister may give the Board directives of a general character or relating generally to particular matters with regard to the exercise by the Board of its functions (set out in section 5) under this Act and it shall be the duty of the Board to comply with such directives'.It is, therefore, submitted that even within the framework of the JAMB Act alone, the Post-UTME test is quite legal indeed as the input of tertiary institutions and that of the Minister (responsible for education) are mandatorily required to conclude the admission process. As already hinted above, it is within this legal context that Mrs Chinwe Obaji, the then Minister of Education instituted the Post-UTME test in 2005. It is also within this legal context that the position of tertiary institutions in the country and their heads as represented especially by the Association of Vice-Chancellors of Nigerian Universities (AVNU) supporting the continuance of the test remain unassailable. Indeed, the position of the AVNU in particular can be further fortified by reference to the provisions of the Universities (Miscellaneous Provisions) (Amendment Act) 2003 and the various statutes establishing universities across the country which guarantee autonomy to university senate in academic matters, including admission of students.For the avoidance of doubt, Section 7A(2)(b) of the Universities (Miscellaneous Provisions) (Amendment Act) provides that 'the Senate (of each university) shall have powers in all academic matters including the organization and control of '. admissions of students'; while section 10(2)(e) of the University of Benin (Transitional Provisions) Act (which is impari materia with those of other universities in Nigeria) provides that ' it shall in particular be the function of the Senate to make provision for '. the selection of persons for admission as students of the University'. Judicial support for the inviolate power of the university in academic matters is quite ample. To cite just one relatively recent case, in Magit v. University of Agriculture, Makurdi [2005] 19 NWLR (Pt.959) 211, the Supreme Court of Nigeria affirmed the unquestionable discretion of the university in academic matters when in dismissing the appellant's case the Court declared (per, Pats Acholonu JSC, of blessed memory) 'A University is a place of great learning and research. I would view with consternation and trepidation the day the court (or parliament!) would immerse itself into the cauldron of academic issues which is an area it is not equipped to handle'.' (Italicized words supplied).Two reasons may have accounted for the recurrent complaint of a few uninformed persons against the Post-UTME test. The first is that for many years universities' administrators took a rather passive interest in the process of admitting candidates into their institutions, contrary to what is required of them by the JAMB Act and the statutes establishing them. Instead, they turned themselves into mere collation centres for the Board in the admission process. This may have erroneously led these set of persons including Senator Lokpobiri to believe that the universities are usurping or interfering with the statutory mandate of the Board by conducting the Post-UTME test. It is our firm view that the test is fully in conformity with the 'guidelines approved for each institution by its proprietor or other competent authority', one of which requirements the Board is to take account of under section 5(1)(c)(ii) of the JAMB Act to place or admit a qualified candidate in a tertiary institution. As a matter of fact, pursuant to this provision, the University of Benin Senate has since the institution of the test continued to set out such guidelines from time to time with a view to fine-tuning the exercise to make it more qualitative.The second reason is the wrong steps taken by some universities at the start of the Post-UTME test to discard the UTME scores obtained by candidates and resort only to the outcome of the test in placing them into the institutions. Happily, in order to redress the obvious illegality of that practice, the Federal Ministry of Education again in conjunction with other stakeholders including JAMB, NUC and the AVNU has since worked out an acceptable template by which candidates who are successful in the UTME (with score of 200 and above) are subjected to verifying aptitude test by their choice of universities the result of which is matched with the candidates' UMTE score to find a mean average for placement in the institutions. What can be more transparent and quality assured'From the foregoing disquisition, it is our informed view that the Post-UTME test and the subsequent effort to fine-tune it both at ministerial level and at the level of the universities are fully within the framework of the relevant laws on admission into tertiary institutions in the country. The test is also valid in light of the autonomy of tertiary institutions in the country, notably universities especially in academic matters of which admission forms an integral part. Indeed, it is correct to submit that viewed from the perspective of the JAMB Act, the Universities (Miscellaneous Provisions) (Amendment) Act and the various Acts establishing universities in the country, the Post-UTME test is not only legally justifiable, but a most timely initiative of stakeholders in the tertiary education sector to rescue tertiary institutions from the terrible undergrowth which was threatening to asphyxiate tertiary admission process in the country!' Dr. Omoregie is of the Faculty of Law, University of Benin, Benin City, Nigeria.
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