June 16, 2019

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Wilberforce Mensah writes: Public Universities Bill; a panacea to turmoil in Universities?

Wilberforce Mensah writes: Public Universities Bill; a panacea to turmoil in Universities? The author, Isaac Wilberforce Mensah, is a legal practitioner and co-host of Citi TV’s Breakfast Daily program which airs from 7:30-10am on week days.

There appears to be so much happening on the education front. Very significant reforms are being mooted, some of which will have life-changing consequences for Ghana’s next generation.

From Free SHS, teachers’ licensure exams, scrapping of examination or printing fees to review of the basic school curriculum, and so on.

While some of these reforms are necessary and in fact, long overdue, the others could be described as pre-mature and even needless.

My focus in this article is not on the reforms per se and how they are being implemented. I choose to look at the Universities and the proposed bill to ‘harmonize’ the public universities system. That front has been quite turbulent in the last year.

During the Kwame Nkrumah University of Science and Technology (KNUST) impasse, I personally spoke on the need for an amendment of the KNUST Act (Act 80) since it appeared to give Council too much power. I called for an amendment because when a Vice Chancellor (VC) or Council goes ‘rogue,’ it becomes difficult to stop them.

In respect of KNUST, the Minister for Information came to announce the dissolution of Council. The honourable minister is my senior at the Bar, so I was amazed because he knew or ought to have known that per Act 80, Government DOES NOT have the power to dissolve the KNUST council. So the purported dissolution was void at birth.

The main role the President is legally mandated to play is to appoint the Chancellor; and even with that, it is not his choice of person, but it has to be done in accordance with the advice of the University Council. This is found in Section 4 of Act 80. It provides:

“The Chancellor as the head of the University shall be appointed by the President acting in accordance with the advice of the University Council.”

Now fast forward to the brouhaha at the University of Education Winneba (UEW). Unlike KNUST, this is an institution over which Government has so much power. But because it was hasty in the KNUST saga and they may have been subsequently advised that they had no such power over the KNUST Council, they (government) may have assumed that they equally had no power over UEW.

Does the Education Ministry have a legal department at all? The two, KNUST and UEW are different as far as the Acts which set them up and consequently the extent of government control, are concerned. There is a substantial difference between the KNUST Act and the UEW Act. Per the Act establishing UEW, its Council has 17 members, of which more than half are appointed by the Executive.

Dr Matthew Opoku Prempeh, Minister for Education

Though Article 68 of the 1992 Constitution says the president cannot hold the office of Vice Chancellor or head of any university, the UEW Act has indeed given the President so much power under section 6(3).

The composition of the UEW Council also gives the Minister (of Education) the Power to select who becomes chairman – section 6(2). Though a few members of Council may be there by default, the greater majority shall indeed be appointed by the President. Thus, it is provided in Section 6(3) as follows:

“The members of the Council shall be appointed by the President acting in consultation with the Council of State.” (The Supreme Court has already explained the difference between ‘acting in accordance with the advice of’ and ‘acting in consultation with’ to mean the former is binding but not the latter.

So unlike the KNUST Act, as long as there is section 6 (3) in the UEW Act, reference may easily be made to Article 297 of the 1992 constitution which reads:

“In this Constitution and in any other law

(a) the power to APPOINT a person to hold or to act in an office in the public service shall include the power to confirm appointments, to exercise disciplinary control over persons holding or acting in any such office and to REMOVE the persons from office;” (Emphasis mine.)

This simply means that once the President has been given power to appoint the generality of the members of the UEW council, he has the power to remove or discipline them. It was sad to watch the ‘State’ being bullied by the UEW Council who were claiming the State had no power over them.

Even more embarrassing to the Education Ministry is the attempt to push a PUBLIC UNIVERSITIES BILL, which seeks to among other things erode the powers of the various University Councils. This can be gleaned from Clause 5 to 12 of the bill.

Clause 47 of the Public Universities Bill seeks to repeal the already existing Acts that have been legislated to give the Universities Academic autonomy and freedom from Presidential interference. Clause 3(5) of the Public Universities Bill also gives the President power to dissolve Council and put an interim one in place. The entire Clause 3 seems to have given the President unfettered powers of appointments. Further, the President under Clause 12 appoints the Chancellor. So in general, almost every ‘governor’ of school is appointed by the President and per Clause 3(3), are further secured by Article 70.

The 1992 Constitution has a letter and a spirit, and these provisions fly in the face of the letter and spirit of Article 68(1)(b) of our basic law, which essentially seeks to prevent the executive from ‘interfering’ in tertiary education in Ghana.

In discussing this, I have been asked whether removing Clause 47 from the Bill will make the Bill better. My answer is this: There are specific laws and there are general laws. A general law CANNOT operate to OVERRIDE a specific law. This is the what lovers of Latin term generalia specialibus non derogant.

The Public Universities Bill is a general law for public universities. The KNUST Act is specific to KNUST and therefore will override the general law. The UEW Act is specific to UEW and will also trump the intended Public Universities Law. Same for the University of Ghana Act and that of the University of Cape Coast.

So what then is the use of the Public Universities Bill? If the purpose is to take a second look at the powers or otherwise of the various University Councils let’s think of amending the already existing laws instead of legislating a new one which may be significantly toothless from the start.

By: Isaac Wilberforce Mensah

The author is a legal practitioner and co-host of Citi TV’s Breakfast Daily program which airs from 7:30-10am on weekdays.

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