Faking of academic papers fraught with legal dangers

Kenya is in the throes of an election expected to be held on August 9. Within this big stream, an undercurrent of qualifications for various offices and allegations of falsifications abound.

One creation of the Elections Laws after the promulgation of the Constitution of 2010 is a requirement that candidates for the presidency and governors of counties be degree holders from recognised universities.

This legal requirement saw many aspirants seeking university education in droves. But it appears that not all were diligent. Some indolent and perhaps more accurately, fraudulent, politicians are thought to have sought the easy way out by falsifying qualifications.

Yet, Kenya is not the only country in which the question of academic qualifications of prospective office holders is an issue.

A few weeks ago, just after his election in a landslide, the president of the Philippines, Ferdinand Marcos Jr, faced challenges to his claim to have obtained a bachelor’s degree from Oxford University in the United Kingdom.

The university was compelled to come out thus in response to a freedom of information request: “According to our records, he did not complete his degree, but was awarded a special diploma in social studies.”

Credential padding

This, despite the fact that the electoral laws of the Philippines, unlike those of Kenya, do not require a formal university education for a candidate seeking the office of the president. All a candidate needs is to be a literate citizen and of a certain age.

Whatever the case, the fact is that credential padding in the form of claiming qualifications that one does not possess is a clear indicator of dishonest character worldwide that perhaps is best exemplified by politicians.

Falsification of academic qualifications, whether for political office or any other purpose, is, at the base, a criminal act in most countries and the presentation of untrue academic papers such as certificates claiming qualifications that one does not possess constitutes forgery or the offence of uttering a false document, among others.

But professional credential padding is not limited to academics. At its base, it comes from a wannabe desire for a status that the individual admires or aspires to.

Because of the admiration for its military servicemen, a number of Americans who have never served in the military have over the years claimed to have been in the forces. This is what is called “stolen valor” in the United States.

In response, a law was enacted to criminalise false claims of having served in the military. However, the first law was struck out by the Supreme Court as an abridgment of the right to free speech under the US Constitution.

The reasoning of the court was that freedom of speech under the First Amendment protects speech, even pure lies, except for lying under oath. This meant that even if someone falsely claimed to have served in the military, he could not be prosecuted for that. The law had to be amended to make it criminal to lie about military service with the intention of obtaining a personal benefit, such as job or money.

The prohibition of fake credentials also applies in most countries, specifically with regard to the term and title of ‘Doctor’. An unqualified person using the title Doctor in Belgium, England and the Netherlands, for example, would be prosecuted.

Masquerading as a doctor

In 2014, the Helsinki Court of Appeal sent Juhani Zarianov to prison for masquerading as a doctor and practising medicine without a licence.

In South Africa, President Ramaphosa assented to the National Qualifications Framework Amendment Act in 2019 with the aim of tightening the law to ensure that persons did not lie about their qualifications on their resumes or on social media.

The Act states that a person may be prosecuted for false or fraudulent claims of holding a qualification awarded by an educational institution or from a recognised foreign institution.

The Act creates a mechanism for shaming persons masquerading as holders of credentials they do not really hold. Any person found guilty of making a false claim on their credentials faces imprisonment for a term of up to five years and a fine.

The legislation goes further to establish a mechanism for state organs, potential employers in the private sector and educational institutions to authenticate a person’s qualification claims and academic and professional credentials before engaging with that person in any undertaking that requires such qualifications.

The authority established by that Act is entitled to identify whether a person’s qualifications are credible and declare as such, and may indicate misgivings where there are any. However, only a court may declare qualifications to be fraudulent under South Africa’s law.

But the misrepresentation of qualifications, skills and education does not just expose the masquerader to criminal charges. In the context of employment, it often results in instant dismissal. But it does not end there.

Employers now have other options, as one Mshishisi Mthimkulu discovered. Mr Mthimkulu misrepresented to his employer, the Passenger Railway Agency of South Africa, that he held a diploma and a bachelor’s degree, and was appointed as a senior manager.

He later claimed, again falsely, that he had earned a doctorate from a university in Germany and that he had received an offer for a better paying job in another company. In an effort to retain him, the company offered him higher pay.

When the falsehoods unravelled, the employer filed a suit seeking recovery of the amounts by which his salary had been increased based on the false qualifications. The court found that the employee’s action had constituted fraudulent misrepresentation and awarded the employer damages as compensation for the overpayment.

Like in most other countries, the falsification of professional qualifications is an offence in Kenya. For instance, it is a criminal offence for any person who is not a qualified and licensed medical doctor, or who is not a registered veterinary surgeon, or academic who has acquired a doctorate degree, to use the term “Doctor” as a title. On conviction, a fake doctor faces five years in prison and a fine of Sh5 million.

Null and void

The Advocates Act makes it a criminal offence for any person to purport to render services to the public which only advocates are by law entitled to perform. Examples include drawing of conveyancing documents and/or representing litigants in court.

The consequences are prosecution and imprisonment upon conviction. As for the services rendered by such unqualified person, they are null and void.

In the context of employment, in a Kenyan case, an employee who had presented a fake university degree certificate to an employer was denied an award of damages for unfair dismissal when he sued.

The court held that although the termination was unlawful and unfair in law, the employee could not be awarded damages because he had unjustly enriched himself by being paid a higher salary than his qualifications merited.

In short, though the embellishment of credentials and professional qualifications is the hobby of the shameless, it is fraught with dangers of a legal kind.

The writer is Head of Legal at Nation Media Group PLC. [email protected]