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Kenya Law / Blog / Case Summary: Language Policy Adopted as a Medium of Instruction in Higher Education Institutions Should Not Be Discriminatory

Language Policy Adopted as a Medium of Instruction in Higher Education Institutions Should Not Be Discriminatory

AfriForum and Another V University of the Free State

Constitutional Court of South Africa


Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J


Reported by Linda Awuor & Wanjiru Njihia

Download the Decision


Constitutional Law-bill of rights-right to education- whether the adoption of the language policy that discontinued the use of Afrikaans as a primary medium of instruction, by the University of the Free State (University), was constitutionally valid- Constitution of the Republic of South Africa 1996, section 29.

Brief Facts: The minister of education developed a language policy framework for higher education institutions. That policy begun by recognising the use of language as a potential instrument of discrimination and oppression and set out constitutional provisions and values that ought to inform its proper understanding and application. It then ended by underscoring the need for multilingualism, expressing support for the retention and development of Afrikaans as a medium of instruction. That it said was on condition that the use of Afrikaans did not unjustly deprive others of access to higher education and wittingly or unwittingly became an instrument for the furtherance of racial or narrow cultural discrimination. It was with that understanding that in 2003, the University formalized its bilingual policy that had been proactively introduced in 1993. Two years into its implementation the then Rector, Professor Fourie, acknowledged that the policy had had the undesirable consequence of having separate lecture rooms for white and black students. Concerns were later raised by staff members and students that the dual-medium policy had given rise not only to racially segregated lecture rooms but also racial tensions.

A report that was commissioned by the University authorities to look into the appropriateness of the continued use of Afrikaans as a medium of instruction highlighted its entrenchment of racial division among students and virtual subversion of racial integration. As a result, the University Management recommended a language policy shift. After open and admittedly extensive consultations with interested parties, including AfriForum, Solidarity and language experts, the final report was presented to the University Council and it was adopted. The new language policy was that English would be the only primary medium of instruction. Afrikaans would still have an important role to play in the expanded tutorial system, and as a medium of instruction to cater for certain professional programmes like Education and Theology.


  1. Whether the adoption of the language policy that discontinued the use of Afrikaans as a primary medium of instruction, by the University of the Free State (University), was constitutionally valid.
  2. Whether the University’s policy was consistent with the Ministerial Language Policy Framework 2002 which encouraged the promotion of multilingualism

Relevant provisions of the Law

The Constitution of the Republic of South Africa

29. Education

(a) to a basic education, including adult basic education; and

(b) to further education, which the state, through reasonable measures, must make progressively available and accessible.

(2)Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account—

(a) equity;

(b) practicability; and

(c) the need to redress the results of past racially discriminatory laws and practices.

(3)Everyone has the right to establish and maintain, at their own expense, independent educational institutions that—


(b) are registered with the state; and

(c) maintain standards that are not inferior to standards at comparable public educational institutions.

(4) Subsection (3) does not preclude state subsidies for independent educational institutions.

Held by the majority

  1. It would be unreasonable to slavishly hold onto a language policy that had proved to be the practical antithesis of fairness, feasibility, inclusivity and the remedial action necessary to shake racism and its tendencies out of their comfort zone.
  2. Effective access to the right to be instructed in an official language of choice could be given effect to, but without undermining equitable access, preserving exclusivity or perpetuating racial supremacy. Inequitable access and the unintended entrenchment or fueling of racial disharmony would thus be the appropriate justification for taking away or diminishing the already existing enjoyment of the right to be taught in one’s mother tongue.
  3. Afrikaans was indeed a highly developed language of scholarship and science. Like all the official languages, it was truly a national resource to be treasured by all.
  4. The University community, Council and Senate in particular, satisfied themselves that instead of the dual language policy brightening up the prospects of redressing the damage caused by apartheid; it threatened to perpetuate racial discrimination or disharmony. The retention of the dual medium of instruction was neither considered to be fair nor feasible to satisfy the need to remedy the results of apartheid laws and practices. The University was at risk of violating poignant constitutional provisions, and the ministerial language policy, properly understood. The good sought to be achieved through a parallel medium of instruction, had backfired.
  5. Unjust denial of access and racial and narrow cultural segregation had become the consequence of seeking to have Afrikaans-speaking students enjoy their own constitutional right to be taught in their official language of choice. The University’s language policy was determined -subject to-and was thus consistent with the ministerial policy framework and the Constitution of the Republic. Its adoption was lawful and valid.

Per Froneman J Dissenting (Cameron J and Pretorius AJ concurring)

  1. The Court ought to have set the matter down for hearing. Such an approach would have enhanced the legitimacy of the outcome and better reflected the Court’s practice. It would have granted leave to appeal on the basis that the Applicants’ case bore prospects of success and concerned unfinished business under the Constitution.
  2. The Court had never held that the mere exercise of a constitutionally-protected language right could amount to unfair racial discrimination that would necessarily justify taking away that right. The Court noted that the parties did not accept the Supreme Court of Appeal’s interpretation of section 29(2) of the Constitution. It drew attention to unclear factual issues and regretted that those had not been fully ventilated. It also regretted that other institutions and organisations had not been given an opportunity to make submissions.
  3. The Court could have reserved costs and referred the matter back to the High Court so that additional evidence be taken. It expressed its hope that the outcome in the matter would not undermine the development of languages other than Afrikaans and English as languages of higher learning. In a passage written in Afrikaans, it doubted the effectiveness of the applicants’ conduct and, noting the diverse history of Afrikaans, called on young people to lead a -Derde Taalbeweging- (Third Language Movement) for an inclusive Afrikaans short of racial and other prejudices.

Application Dismissed

Relevance to Kenyan Situation

The Constitution of Kenya 2010 recognizes Kiswahili as the National Language at Article 7. It also recognizes both English and Kiswahili as the Official Languages. It tasks the state with the responsibility of promoting and protecting the diversity of language of the people of Kenya and promoting the development and use of indigenous languages, Kenyan Sign language, Braille and other communication formats and technologies accessible to persons with disabilities.

Kenya is a highly multilingual country. The use of mother tongue for instruction has always been challenged as well as supported by parents, teachers, scholars and other stakeholders in the education sector.

This is especially so in schools in villages where teachers tend to believe that all pupils or students in their classes speak in their mother tongue and use it as a means of instructions.

A research by Elizabeth Asewe Oluoch published in February 2017 recommended that Educational reforms should pay attention to the crucial question of the language of instruction and implementation of language policy in education, particularly, the use of the language of the catchment area in lower primary in schools in the rural areas because it provides a foundation for all other subsequent learning. The teachers should help parents and other stakeholders in the education sector understand the benefits of use of mother tongue in the early years of learning.

As much as this idea is recommended, people have migrated and intermingled and it is rare to find a school with children from only one tribe. Therefore, the language used for instructions in schools should never, at any point in time make our children in schools feel discriminated on basis of language used for instructions in schools.

A research by Noel Omukumbi in 2013 showed that mother tongue used as a mode of instruction in school improved the quality of education. Education being a basic human right, many children ended up missing out on it due to fact that they felt the mode of instruction used in school was too complicated for them to understand. Using mother tongue language in the former level of education had to be encouraged to help eliminate the problem.

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