Prof Raymond Atugubah writes on ‘nefarious’ Public Universities Bill
Dear Colleagues,
We really need to thank all those putting in hours to ensure that the PUB is not passed in the state in which it is. I am reliably informed that the Public Universities Bill (PUB) could be passed into Law in the next 24 to 72 hours, or even sooner! So forgive me if I go directly to the point.
Unless UTAG (local and national) are able to work through the night TODAY, to provide a ROADMAP by tomorrow morning, establishing a clear PATHWAY for stopping the passage of the PUB,
I will be in the lead to ensure their impeachment and more. We know how hard they fight for our conditions of service and for BRA, and the many strikes we have embarked on in furtherance of these. We are therefore confident that we have capable leaders who can ensure that this nefarious law, that threatens our very existence as a university, has not proceeded within Parliament; and if speedily passed by Parliament, does not receive presidential assent.
I have had the privilege of drafting or assisting to draft over 300 policies and laws on the African continent in the last two decades, and I can confirm that the PUB is one of the worst laws I have ever encountered. It is just bad, bad, news.
It is glaringly and patently unconstitutional (so no Parliament or MP has any business passing it into law);
It seeks to politicize the Public Universities (can’t we have at least one institution in the country that is not politicized);
It seeks to establish Executive and Ministerial micro-management of public universities, (effectively crippling them); and
It is very badly drafted in several areas (not the fault of the drafters; they had a horrible policy to work with).
From the first Clause of the Bill to the last Clause, there is almost nothing good about it. Literally, all the clauses contain fundamental policy and legal challenges and faux pas that no democracy, no Parliament, worth its salt, and no Ghanaian should countenance.
Let me prove this assertion of mine with reference to the very first Clause and the very last Clause of the Bill. I will also subsequently establish that what comes in between the first and the last clauses are even worse.
Clause 1 of the Bill moves the power to establish a Public University from 275 Members of Parliament, representing 35 million Ghanaians, and vests that power in one man-the Minister for Education.
What madness is that? It is true that the power is exercised by Legislative Instrument (L.I.), but we all know that L.I.s are not subjected to as much scrutiny by Parliament; hardly receive public input; cannot be amended by Parliament; require a two-thirds majority of Parliament to be an annulled-a majority that Parliament is hardly able to garner, and can so easily be silently stolen through Parliament and become law.
This is what Clause 1 does. In the same vein, the Minister, by L.I., can kill a University, by simply deleting it from the First Schedule. See Clause 53. Why would anyone person want so much power?
Why should we vest so much responsibility in one single, fallible human being?
What is wrong with the previous mechanism of having all the MPs deliberate on and improve the provisions of a Draft Bill for the establishment of a university, with public input over several months, in order to arrive at a law that befits Kwame Nkrumah’s Ghana?
Let us move to the last Clause. Clause 56, provides that immediately after the PUB is passed, all Councils of Public Universities are immediately converted into Interim Councils; and they may remain Interim Councils for up to one year, and the President, whilst they are Interim Councils, may change their composition on the recommendation of the Minister; and finally, everything done by those Interim Councils, with a composition changed to suit the President and the Minister, shall remain as valid as if it were done by the substantive council!
Please believe me when I say that there is nothing good about the PUB. Even the parts of the PUB that appear to be positive are poisoned chalices. Take, for example, the provisions in Clause 48 on Academic Freedom, which is ordinarily a good thing. The PUB introduces claw-back clauses on Academic Freedom, whilst pretending to guarantee it.
Thus, it limits this fundamental right to “traditional principles of academic freedom” and focus more on “responsibilities” and “accountability” than on Academic Freedom.
And make no mistake about it; the original PUB is better than the Revised PUB.
I spend many hours reading and analyzing the revised Bill yesterday and today, right down to commas and full stops. That is why I know that Clause 44(2) uses the word “pubic” instead of “public” (to Paraphrase Vice President Bawumia, when you purpose to do something bad, something will expose you); Clause 32(2) is missing a full stop; Clause 49(3) should read “attributable…to” and not “attributable…on”;
Clause 51(7) should read “chairperson” and not “acting chairperson”; and Clause 50 is not legally comprehensible.
Above all, for a Bill that is said to have been withdrawn from Parliament and re-laid (as publicly announced by the Minister on the radio today), the date of gazette notification should not still be 20th February 2020, which antedates the purported withdrawal.
This also means that the entire parliamentary process of proceeding with a Bill that has not been re-gazetted, is contrary to Article 106 of the Constitution, and Parliament may be acting unconstitutionally in proceeding with the Bill.
To return to the heart of the matter, the current and purportedly revised PUB, still purports to vest in the President the power to appoint Chancellors of the public universities (Clause 16(1) (I am now sounding like Hon. Martin A. B. K. Amidu in my language).
This is contrary to Article 195(3) of the Constitution, which provides that officers of the University shall be appointed by the Council of the University, and not the President. To be clear, the Chancellor is one of the Principal Officers of the University.
The PUB also purports to vest in the President the power to dissolve a university council and to appoint an interim council. Contrary to the provisions of Clause 8(5) of the Bill, Article 297 of the 1992 Constitution of Ghana does not grant any power to any person to dissolve the Council of a University and to appoint an interim council.
It is remarkable that the Bill does not say which of the 10 clauses of Article 297 gives the President that power. The closest is Article 297 (a), and that provision, arguably, refers to regular public officers, who retire at 60 and maybe on contract till 65, and not to members of statutory boards and councils.
Granted that the President may remove members of a Board or Council, that is completely different from saying that the President may dissolve an entire Council and appoint an Interim Council.
This is because, the Council is made up of members who are not nominated by the President, such as the representative of the Alumni, and who should continue to be members of the Council, even if the President sacks the members of the Council who are directly appointed by him.
Again, the President cannot sack the members of the Board who are indirectly appointed by him, such as the Director-General of the Ghana Tertiary Education Commission, unless and until he sacks them from their primary employ, from which they became ex officio members of a University Council.
What is particularly disheartening about the PUB is that its entire spine and its central nervous system are designed to achieve micro political control of public universities.
Micropolitics is that within which the PUB “lives, moves, and has its being”, as the Catholics say. Out of the 16 members of the University Councils, 9 are appointed by the President, directly or indirectly.
This is a novelty and an affront to the spirit of the 1992 Constitution, which aims to create political independence of public universities and their employees. And the quorum for a meeting of the Council is 8 (Clause 12), meaning that only government appointees may meet as a Council and determine the governance of the University. It also means that the Government can procure any decision of the Council by whipping its direct and indirect appointees in line.
As if this is not enough, where the Chair of the Council is absent at a meeting, only a presidential nominee to the Council may Chair the meeting; no other member of Council may chair the meeting (Clause 12(3)). Remember that the Chair has a casting vote in the event of a tie, and so for micropolitics to reign, it is critical for the Chair or Interim Chair to always be a presidential nominee.
This assures absolute presidential or Executive control over decision-making at the highest level of the University (Clause 12(4)).
Thus, if this Bill passes, when my application for promotion comes before the new Council, 8 of the 9 government appointees can constitute a quorum, convene a meeting of the council, remember how I blasted them in this email, and deal with me accordingly. Worst still, If I apply for promotion whilst the Interim Council is in place, the President and Minister can change the composition of the council to 100% party foot soldiers, convene a council meeting, consider it, and deal with me accordingly.
I know some of you do not believe this-READ CLAUSE 56 OF THE BILL ON TRANSITIONAL ARRANGEMENTS.
This email is getting too long, so let me conclude. And forgive my garrulousness; I strongly feel that a university that has a Faculty of law should not condone anything that is unconstitutional, especially when such unconstitutionality undermines Academic Freedom. To some specific ways in which the PUB undermines Academic Freedom and the fecundity of public universities, it is now necessary to turn.
Once the PUB passes (and this could be as early as tomorrow afternoon), all public universities would now be under the thumb of a creature called the Ghana Tertiary Education Commission, established by the Education Regulatory Bodies Act, 2020 (Act 1023), including all the nefarious provisions of that Act-PASSED INTO LAW EARLIER THIS YEAR WHILST THE UNIVERSITIES WERE ASLEEP OR FOCUSING ON THE PUB (Clause 4).
The combined effects of this law and the PUB are that: a public university may only establish a campus with the approval of the Ghana Tertiary Education Commission (Clause 3); the Minister may, any day, declare that a public university, such as the University of Ghana, becomes a part of or a College of another university, such as the University of Neverdowell (Clause 3); the Ghana Tertiary Education Commission must approve any secondment of staff from the university to other parts of the public services (Clause 29(4)); the Ghana Tertiary Education Commission must approve international partnerships that a public university wishes to enter into (Clause 30(2)(a)); the Ghana Tertiary Education Commission must approve domestic partnerships of any kind that a public university wishes to enter into (Clause 30(2)(a); and the Ghana Tertiary Education Commission must be consulted before the establishment of Schools, Faculties, Departments, Divisions, Centres and Institutes (Clause 30 (1) (a)).
Clause 19 provides that no public university may have more than 2 Pro VC’s. Why is Parliament trying to draw our organogram for us? Clause 20 excludes Directors from the membership of Academic Boards of Public Universities unless the Statutes of the University provides otherwise. The definition of “public tertiary institution” in Clause 54 means that no one without an SSS Certificate or higher may be admitted to a public tertiary institution. What happens to our mature students who have no SSS certificates?
Finally, there are some things hidden in the First Schedule to the Bill. This Schedule provides for the mandate of each public university, in a very restrictive manner. Under that Schedule, if you are able to forgive the incorrect turn of phrase in the language they use, GIMPA, for example, would have to close down their Law Faculty.
Raymond Akongburo ATUGUBA
Apodita’s Room
Asaa-Tuguba’s House
Atuntunbiisi Section
Nabango
Mirigu
Kassena-Nankani West District
Upper East Region
Ghana