Introduction
New enactments usually have mechanisms contained therein to ensure continuity or beginning of the new orders they create. One of such mechanisms is the transitional provisions.
These provisions take care of the gaps that the new enactments may create. And one common feature adopted by drafters of these enactments is the popular clause: “Shall be deemed.”
For instance, for the 1979 Constitution to create a Supreme Court to become the highest court instead of the Court of Appeal, which hitherto was the highest court of the land, the clause shall be deemed was used.
The legal drafters were not perturbed by the great controversy to have ever occurred within the Ghanaian legal system in 1979 culminating in one of the most popular and important Constitutional Law cases, Tuffour v. Attorney-General [1980] GLR 637-667.
And they have gone ahead in 2016 to use the same expression in the Technical Universities Act, 2016 (Act 922) and its amendment, Technical Universities (Amendment) Act, 2018 (Act 974).
When it appeared in 1979, it was used to convert or transition Court of Appeal Justices into Supreme Court Justices. Yet when it was used in 2016, it became so weak that it could not transition Polytechnic workers into University workers. Maybe 37 years is long enough to weaken the provision shall be deemed. Or maybe it is not the years that have weakened it but a mere lack of judicial pronouncement in recent times.
In 2016, Act 922 established six Technical Universities which were hitherto, Polytechnics and in 2018, the amendment, Act 974 added two additional Polytechnics to the list of Technical Universities.
Act 922 was potent enough to transition the physical infrastructure from a Polytechnic one into a University one. Expectantly, the drafters could not have forgotten the transition of the workers including lecturers into University staff.
They made adequate provision for them. Section 42(6) of Act 922 provides a transition for the workers of the newly created Technical Universities.
However, the administrative body in-charge of higher education in the country has placed a certain interpretation on the said provision as contained in the section supra.
The National Council for Tertiary Education (NCTE) has conducted staff audit and is purporting to transition some of the workers to the University status while some other staff members are being downgraded in order to be transitioned to the new order.
To say this in the context of Tuffour v. Attorney-General, the NCTE’s interpretation of section 42 (6) of Act 922 is to the effect that, hypothetically speaking, “some of the Justices of the Court of Appeal were competent enough to become Justices of the Supreme Court but some had to be downgraded before transitioning them to the Supreme Court”.
This article attempts to place section 42 (6) of Act 922 within the principle enunciated in the case of Tuffour v. Attorney-General. The effect of section 42 (6) of Act 974 shall be explored also.
The Legal Principles
With the coming into force of the 1979 Constitution, in the case of Tuffour v. Attorney-General supra, the incumbent Chief Justice, Mr Justice Fred Kwasi Apaloo, was purported to be nominated as Chief Justice by the President of the Republic of Ghana in consultation with the Judicial Council. Parliament purported to ‘vet’ the said Mr Apaloo in Parliament and subsequently rejected his nomination.
The plaintiff, Dr Kwame Amoako Tuffour, invoked the original jurisdiction of the Supreme Court under article 118(1) (a) of the 1979 Constitution. The plaintiff sought a declaration that upon the coming into force of the 1979 Constitution, Mr Apaloo was deemed to have been appointed Chief Justice of the Republic and as such became president and member of the Supreme Court.
He also prayed the Court that the purported vetting and rejection by Parliament were in contravention of the Constitution, 1979 and were therefore all null, void and of no effect. Consequently, he sought a declaration that Mr Apaloo remained Chief Justice of the Republic and President of the Supreme Court.
On the substantive matter, the lead counsel for the plaintiff submitted that on the coming into force of the 1979 Constitution, a new order was created. And for there to be continuity between the old and new orders the framers put in place schemes by which certain office holders were deemed to have been appointed into the equivalent offices upon the coming into force of the Constitution.
To him, one such scheme was article 127(8) and (9) of the Constitution, 1979. Further, he forcefully argued and urged upon the Court that upon a true and proper construction of article 127, those Justices of the Superior Court of Judicature who held office on 23rd September 1979, retained their offices upon their taking the oaths referred to in the Second Schedule.
He argued that Mr Justice Apaloo who was the Chief Justice of the Republic became the Chief Justice under the 1979 Constitution. And thus, having been pronounced Chief Justice by the Constitution itself, it was incompetent for him to be nominated, endorsed and subjected to parliamentary approval.
On the other hand, the Attorney-General conceded Mr Apaloo was Chief Justice but he submitted that the Courts he presided over were different from which the new Constitution created; in that a new Supreme Court had been superimposed onto the hierarchy of courts.
Since there was no Supreme Court, no Justice could be holding office of a justice of the Supreme Court. He averred that Mr Apaloo was a Chief Justice of the Court of Appeal. To qualify him to be Chief Justice now, he must be a member of the Supreme Court. And he must go through the procedure under article 127(1) of the Constitution, 1979.
The Court held that the incumbent Chief Justice became the Chief Justice after the coming into force of the Constitution, 1979.
To reach that conclusion, the Court considered the interpretation of the clause “shall be deemed” contained in clause (8) of article 127 of Constitution, 1979. The Court took the view that their first duty was to give the words their true construction always preferring the natural meaning of the words involved, but also giving the words their appropriate construction according to the context as enunciated in Barnard v. Gorman [1941] A.C. 378.
To the Court, “shall be deemed” was a legislative device used to say a thing is something else which it, in fact, is not. Its definition is contained in the case of St. Aubyn v. Attorney-General [1952] A.C. 15. The Constitution, 1979 employed such clause to give the first President and the first Parliament of the third Republic their legitimacy under the 1979 Constitution as though they were elected under the Constitution. And this was true of public officers holding public offices.
It is this clause that the 1979 Constitution used in article 127(8) to hold that the Chief Justice was appointed as Chief Justice under the 1979 Constitution as if he went through the process laid down in it. This was the intention or purpose of the framers of the Constitution. Therefore, Mr Justice Fred Kwasi Apaloo was the Chief Justice of the Republic of Ghana under the 1979 Constitution; he automatically became a member of the Superior Court (and therefore any court) and the head of the judiciary.
This case establishes the legal principle on which the transitional provision in Act 922 is to be placed.
Section 42(6) of the Technical Universities Act, 2016 (Act 922) says thus of workers of the then Polytechnics who were being established as Universities:
A person in the employment of a polytechnic in existence immediately before the coming into force of this Act, Shall be deemed to have been duly employed by the respective Technical University established under this Act on the terms and conditions attached to the post held by that person before the coming into force of this Act. (The emphasis is mine).
And section 42(6) of the Technical Universities (Amendment) Act, 2018 (Act 974) provides:
A person in the employment of a Polytechnic in existence immediately before the coming into force of this Act, shall, subject to the requirements of the standardised Statute as and Scheme of Service of the Technical University, be deemed to have been duly employed by the respective Technical University established under this Act. (The Emphasis is mine).
Issues
The interpretation the administrative body for higher education has urged upon the transitional provision in Act 922 leads one to raise the following issues.
- What is the effect of section 42(6) of the Technical Universities Act, 2016 (Act 922) in the transition of workers of the then Polytechnics established as Technical Universities under that Act?
- Whether or not the Technical Universities (Amendment) Act, 2018 (Act 974) affected the transition of workers of all eight Technical Universities or only the additional two the Act added?
- Whether or not the purported interpretation of NCTE has any basis in law?
Analysis
Research into the effect of section 42(6) of Act 922 on workers of the eight Technical Universities reveals that the NCTE has done a staff audit and has issued reports to that effect. The report is to the effect that Polytechnic lecturers who satisfy certain conditions should be transitioned to the University order Act 922 created for the six Polytechnics. This is the material fact on the ground as we write.
To answer the first issue, shall be deemed used in section 42(6) of Act 922 should be interpreted in accordance with the interpretation the Supreme Court gave in the case of Tuffour v. Attorney-General. The proposition of the Court is that “shall be deemed” was a legislative device used to say a thing is something else which it, in fact, is not, and this helps us to settle the present matter.
Therefore, the effect of shall be deemed (without any other conditions) as used in section 42(6) of Act 922 is that Polytechnic workers were not University workers; but whether or not they qualify, they must be considered or regarded or treated as University workers with the coming into force of Act 922 in 2016. This is the effect of the law in section 42 (6) of the Technical Universities Act, 2016 (Act 922).
And to further support the effect of the section under review, the administrative body after two years advised the sector ministry to amend the law and inserted certain conditions in the transition of Polytechnic workers. This brings us to the second issue as to the effect of the amended section.
The Technical Universities (Amendment) Act, 2018 (Act 974) provides an amendment to section 42(6) of the Technical Universities Act, 2016 (Act 922) by saying that the workers in the employment of the Polytechnic in existence immediately before Act 974 shall, subject to the requirements of the standardised Statutes and Scheme of Service of the Technical University, be deemed…
It is a fact that before Act 974, the existing Polytechnics were four but not ten or eight. For Act 922 had already converted six of those Polytechnics into Technical Universities in 2016. Consequently, what the amendment Act did was to add only two Polytechnics to the list of those to be converted to University status after two solid and clear years after the first action of conversion or establishment of Technical Universities in the Republic of Ghana.
Unfortunate for the NCTE, the law was potent enough to convert the workers of the six Polytechnics into University workers before the amendment Act. The effect of law is that if it says all Polytechnic workers shall be deemed to be females, so shall it be. Even if there are male workers in the Polytechnics, they ought to be seen and treated as females. This is the effect of law properly so enacted.
It is the same effect the scripture has when the Bible says in 2 Corinthians 5:17 that if any woman be in Christ, she is a new creature: old things are passed away; behold, all things are become new. In the Christian faith, what this means is that a woman captured by this piece of scripture shall be deemed to be a new person: if she were not a virgin, she shall be deemed as one by the power of the scripture. That is it for the Christian faith. The power and effect of law should not be reduced by anybody’s interpretation outside that of our Courts.
So the effect of the amendment, Act 974 is that it is the workers of the two additional Polytechnics who shall be deemed as University workers subject to the conditions given but not those that had become University workers in the six Polytechnics by the power and effect of Act 922 in 2016.
Clearly, the intention of the framers of Act 922 was for those Polytechnics that qualified to be made Universities. That is the reason experts came down from Germany to audit the Polytechnics culminating in the ranking of them and the first six which met the conditions were converted in 2016. Those four Polytechnics that did not qualify were never listed in Act 922. What Act 922 anticipated was that those six Polytechnics listed with their workers shall be deemed to be Technical Universities. It is essential to note that the qualification audit which included, facilities and workers of the Polytechnics was done before Act 922 was enacted. That is the case for which reason only six of them were selected out of ten Polytechnics in existence at the time. The intention of the framers is clear with the insertion of only six Polytechnics as properly converted to Universities.
Therefore, the subjection of the workers of the six Technical Universities created by Act 922 in 2016 to a staff audit and the subsequent purported downgrade before the said workers are deemed as University workers is on all fours with the nomination, vetting and rejection of Justice Apaloo by the Parliament of Ghana in the case of Tuffour v. Attorney-General.
If the Supreme Court in the above case held the nomination, vetting and rejection to be null, void and of no effect, then the NCTE’s conduct of staff audit and the purported downgrade of workers of the six Technical Universities are null, void and of no effect on the basis of the principle enunciated in the case of Tuffour v. Attorney-General.
Furthermore, it is important to note that article 107 (b) of the 1992 Constitution of the Republic of Ghana forbids Parliament from enacting laws to operate retrospectively to impose any limitations on or to adversely affect the personal rights and liberties of any person or to impose a burden, obligation or liability on any person except matters relating to the finances of the Republic.
So Act 974 could not have been enacted in 2018 to now convert the workers of the six Polytechnics who had already been converted into University workers in 2016 by Act 922. Since Act 922 did not subject the transition of the workers of the six Polytechnics to any condition, the amendment Act 974 cannot come to impose conditions on those workers that had been transitioned already. It is not Parliament that has made that error but the interpretation of the NCTE that is in breach of the 1992 Constitution.
It may be argued on the other side that the amendment, Act 974 was introduced to correct an obvious mistake. That argument will take us to the case of Shalabi and Another v. Attorney-General [1972] 1 GLR 259-270, where the Court remarked that when the NLCD 191 was introduced; the clause that a person needs one of his parents to have been born in the Gold Coast was taken off until in 1969 when the NLCD 333 was introduced to “correct an obvious mistake”. The Court was of the view that the NLCD 333 did not contain evidence to that effect. And it could not have been admitted that NLCD 333 sought to correct a mistake after two full years.
What the court in the Shalabi case is saying is that NLCD 191 cannot be put on hold for NLCD 333 to come after two years to correct mistakes in it before it could be given legal effect. In the same effort, NCTE cannot be heard to say that Act 922 which came into force in 2016 ought to be put on hold for the amendment, Act 974 to come after two clear years to correct the mistakes before the former is given any legal effect.
Conclusion
The Transitional Provision: “Shall be deemed” in the transition of Justices from the Court of Appeal to Justices of the Supreme Court was inserted in the 1979 Constitution for a certain effect which the Court was ready to uphold in the case of Tuffour v. Attorney-General. And today if that same transitional provision is contained in a piece of legislation, the principle in the case supra ought to apply in the interpretation of transitioning of workers of the six Technical Universities properly so made in 2016.