Submissions on the Zambia Qualifications Authority Bill, N.A.B. No. 27 of 2002

1.        PART I
PRELIMINARY PROVISIONS

Þ     SECTION 2 - Interpretation

·         Definition of “evaluation”: correct “an appropriate lvel” to “an appropriate level”.

·         Definition of “registration”: Replace “cognition” with “recognition”.

2.        PART II
THE ZAMBIA QUALIFICATIONS AUTHORITY

Þ     SECTION 4: Seal of Authority

·         Subsection (1) provides that the seal shall be kept by the Director-General. Subsection (2) provides that the Director-General can “authenticate” the affixing of the seal.

·         The one who keeps the seal cannot authenticate its use. Seals are used only for the most significant transactions (subsections (3) and (4)). Only someone else can authenticate its use because that acts as a check on the Director-General’s use of it.

·         Delete the “Director General” from subsection (2).

Þ     SECTION 5: Functions of Authority

·         Subsection (2) requires the publication of an “annual list” of prescribed standards and all registered qualifications of the sub frameworks.

·         An “publishing an annual list” is different from “publishing a list annually”. The former implies it is valid only for one year.

·         Replace “shall publish an annual list” with “shall annually publish a list”.

·         Specify where the publication shall be. It is recommended that it is Gazetted and published in a newspaper of general circulation.

Þ     SECTION 6: Board of Authority

·         We support the size of the Board and its constituents.

·         In particular, we are pleased with the inclusion of a nominee of the most representative federation of employers’ organizations on the Board (paragraph (c) of subsection (1)). This is a critical part of ensuring that the National Qualifications Framework and the national occupational standards are more responsive to the needs of the economy and the labor market.

·         The inclusion of the Director-General as an ex officio member of the Board is standard (paragraph (g) of subsection (1)). However, there does not appear to be any regulation of that specific appointment in relation to the rest of the provisions on the Board, including functions, proceedings and tenure (sections 7 to 12), and other Board provisions in the Bill.

·         The Director-General is a Board appointee and sits on the Board only as a representative of Management. He / she must be expressly restricted within the Act from being subject to all the provisions on the Board aside from the appointment as an ex officio member.

·         Remove paragraph (g) from subsection (1) and place it as paragraph (c) under subsection (1) of section 16. Leaving the Director-General under section 6 without adjusting all the other provisions on the Board creates an anomaly of corporate governance. That would be a direct contradiction with paragraph (c) of subsection (2) of section 7.

Þ     SECTION 9: Tenure of office

·         Subsection (4) provides for the Minister to appoint another Board member to serve for the remainder of the term of a Board member whose seat became vacant. However, there is no specification on the source of the nominee.

·         Subsection (5) provides for a Board member whose term has expired to continue to hold office for up to three months until another member is appointed. We support this in principle.

·         We are nonetheless concerned about events on another statutory Board that have shown that such a provision may be insufficient to support good corporate governance, both in terms of duration and scope. The TEVETA Board was dissolved more than six years ago. To date, a new one has not been appointed. We had lobbied successive Ministers of Higher Education to appoint the Board, and continued to do the same with the new Minister of Technology and Science. The response has always been that the vetting of nominees is ongoing. Clearly, a three-month transition period would have been futile even if the Board’s tenure has expired normally.

·         Additionally, we have noted at least one instance where the portfolio Minister dissolved a Board two weeks before their term expired. That statute equally had the three-month transition period. However, since it was tied to expiration and not termination of mandate, it was inapplicable. That institution did not have a Board until a new one was appointed. Fortunately, that was done within a few months.

·         These events show that in order to be efficacious, law must be tailored to reality. Statutes should not continue to replicate standard provisions that end up bring abused. It cannot be presumed that corporate governance will be upheld when there may be competing political considerations.

·         Under subsection (4), specify that the appointee shall be a representative of the Ministry, institution or organization that nominated or appointed the member whose seat fell vacant.

·         Consideration must be given to making the period under subsection (5) longer or indefinite, up to the appointment of a new Board member (singular will include plural as provided in the Interpretation and General Provisions Act, Cap 2).

·         Consideration must be given also to expanding the scope from mere expiration of term, to termination by the Minister. This should not include termination by the member through failure to attend meetings, resignation, or criminal conviction without the option of a fine. It should also not include termination by operation of law, e.g. in relation to bankruptcy or medical incapacity.

Þ     SECTION 16: Director-General, Secretary and other staff

·         Section 16(1) does not have any criteria on the qualifications of the Director-General.

·         It is advisable to give the Board some guidance on who to appoint. Given the nature of the institution’s mandate, knowledge and experience in matters relating to qualifications are important for its Director-General.

3.        PART II
THE NATIONAL QUALIFICATIONS FRAMEWORK

Þ     SECTIONS 17 and 19: enforceability of the National Qualifications Framework (NQF)

·         Section 17 requires that the Minister “approves” the NQF developed by ZAQA. Subsection (1) of section 19 provides for the NQF to be “arranged in a prescribed manner”, and subsection (4) provides for a level descriptor to be “developed as prescribed”.

·         There does not appear to be express provision on precisely what legal form the NQF will have.

·         The NQF should be prescribed through a statutory instrument once approved by the Minister. It governs the entire education and training system in the country and must have legislative form.

·         Notice that the SI has been promulgated should be advertised in a newspaper of general circulation.

4.        PART IV
REGISTRATION OF QUALIFICATIONS

Þ     SECTION 23: Registration of qualification

·         Subsection (1) provides that ZAQA has 60 days to determine an application for registration of a qualification submitted by an appropriate authority. There are no consequences for failure to adhere to this timeframe.

·         It is standard practice to specify in legislation that failure by the statutory institution to adhere to a timeframe for a specified function results in the application being deemed successful. Timeframes and obligations of statutory institutions that affect the rights of others should never be open ended. That is an opening for bureaucratic inertia and hence corruption.

·         Expand section 23 to include:

(i)       A timeframe for consideration of the application. 60 days is fine;

(ii)     The option for ZAQA to request further information if necessary, which must be furnished within 14 days;

(iii)   Final determination within 30 days after the receipt of the additional information; and

(iv)   Failure to communicate determination of the application in accordance with either (i) or (iii) shall result in deemed registration.

·         We acknowledge that it is not ideal for such registration to be deemed. However, a balance must be struck between the processes of ZAQA and the ease / cost of doing business in the country. In any case, section 25 provides for a period of validity of the registration, and section 28 allows for the suspension / revocation of a registered qualification.

Þ     SECTION 27: Variation of qualification

·         This section has no timeframes for the consideration of application for variation of a qualification.

·         Cross-reference this section with section 23, expanded as recommended above.

Þ     SECTION 28: Suspension and revocation of certificate of registration

·         Subsection (7) provides for ZAQA to “charge an appropriate authority the cost of carrying out the enforcement action”.

·         Include the word “reasonable” between “authority the” and “cost of”. This is to guard against all sorts of costs being added to the bill even if they could have been moderated or avoided.

5.        PART VI
FINANCIAL PROVISIONS

Þ     SECTION 32: Funds of Authority

·         Paragraph (a) of subsection (3) refers to the “salaries, allowances and loans of members of staff of the Authority”. We are concerned about the inclusion of “loans” in this manner.

·         Replace “salaries, allowances and loans” with “emoluments” to ensure consistency with section 16(4) and Act No. 1 of 2022.

6.        PART VII
GENERAL PROVISIONS

Þ     SECTION 36: Registers

·         It is not clear which “certificates” should be kept in a register and made available to the public.

·         Kindly clarify.

Þ     SECTION 37: Standards setting

·         This provision seems somewhat out of place. National occupational standards are one of the express functions of ZAQA (section 5(1)((h)). General provisions are the “miscellaneous” aspects of an Act. A function is not “miscellaneous”.

·         Subsection (3) refers to “relevant stakeholders” for consultations for the occupational standards. There can be no “irrelevant stakeholders”.

·         Consider creating a specific Part for occupational standards to show its significance. It can be placed between Verification and Financial Provisions.

·         Under subsection (3), replace “relevant stakeholders” with “principal stakeholders”.