Academic freedom under threat at public universities
Antecedents to the bill
The antecedents for the passage of this bill are linked to an incident in 2018 on the campus of the Kwame Nkrumah University of Science and Technology (KNUST), when a demonstration by the students to challenge the conversion of an all-male hall into a mixed hall turned violent and resulted in damage to school property.
The government’s reaction was to dismiss the university’s vice-chancellor and replace its governing council with an interim management council in October 2018. These and other measures were not based on law and the government’s interim measures were resisted by various unions of the universities, in particular, the University Teachers' Association of Ghana (UTAG).
Another incident was the impasse between the government and the newly-created Technical Universities (TUs). The TUs were established in 2016, following the enactment of the Technical Universities Act, 2016 (Act 922) by the previous government which led to the conversion of six of the 10 polytechnics in the country into TUs.
Yet the new government which came to power following the 2016 elections did not seem prepared to make the TUs work. Consequently, it sought to work through the National Council for Tertiary Education (NCTE) to dictate and frustrate the work of the TUs, even though it was not clothed with such powers.
Examples of this included the issuance of directives from the NCTE requiring that TUs accept harmonised statutes, contrary to the provisions of the TU Act which assigns such authority to the TUs' governing councils. The directive to ratify the proposed “harmonised” conditions of service also contravenes sections of the Labour Act, 2003 (Act 651) which relate to the right of workers to negotiate terms and conditions of employment in Ghana.
The return of the PUB
While there was a lull in the push for the PUB, on 20 February 2020 the government came back with a second draft of the bill, which saw only minuscule and insignificant changes to the first draft.
Therefore, as was previously the case, this bill is being resisted in no uncertain terms by the university community, non-governmental organisations, public-spirited individuals and the Ghana Academy of Arts and Sciences (GAAS). Their contentions are framed around three broad themes: first, that the bill is likely to violate the sacred tenets of academic freedom protected in the Fourth Republic Constitution of Ghana; second, that the bill is irrelevant; and third, that application of the bill will complicate the governance structures of universities and create more problems than they seek to resolve.
Legality of the bill
Apart from the Constitution recognising academic freedom, it also contains the following provisions which seek to buttress academic freedom for the universities:
1. Article 68(1)(b) which bars the president from taking the position of chancellor of any public university;
2. Article 195(3), on its part, which grants the universities “the power to appoint persons to hold or act in an office in a body of higher education, research or professional training”;
3. Article 70(1)(iv) which vests in the president the power to appoint “a National Council for Higher Education however described” (now called the National Council for Tertiary Education) as a platform to coordinate the functioning of public universities.
However, governments under the Fourth Republic have sought to rely on article 70(1)(iv) to control the composition of some university councils and the present regime wants to extend this act of illegality further by seeking to overhaul the running of the universities with the PUB.
Consequently, the bill grants the president the power to appoint the chancellor of all public universities as well as the chairman of all university councils. The composition of the councils is also whittled down significantly from about 21, depending on the university, to 13, with the majority of them appointed by the president and capable of forming a quorum on their own to organise a meeting. The vice-chancellor is appointed by council but with the current composition, de facto, he or she will also turn out to be a government appointee.
Setting up such a council will take Ghana back to the 1960s when the country’s first president, Dr Kwame Nkrumah, arrogated to himself the power to appoint the principal officers of the university. Further, the bill gives the president the power to dissolve a university council in case of an emergency, and to replace it with an interim appointed by him for “a stated period”.
The bill also grants power to the minister of education to issue directives to run Ghana’s public universities. The universities’ freedom to control their own admission process is also under threat as it will be replaced by a centralised application board.
These and many other provisions in the bill constitute major intrusions by the government into the life of universities, touching on institutional autonomy, individual rights and freedoms of academics and students, self-governance and tenure.
UTAG noted in its memorandum to the Parliamentary Select Committee on Education opposing the bill that “while it is not necessarily against some form of common governance structure [for example with respect to establishing a common basis to regulate promotions and set up criteria to regulate research grants]”, it is categorically opposed “to the enactment of a harmonised act and statutes to regulate all public universities under one platform”.
In its opinion, “the bill sins against fundamental provisions of the Fourth Republic Constitution [referring to articles 21(1)(b), 68(1)(b), and 195(3) of the Constitution] and if passed in its present form, it will not hesitate to institute legal proceedings to challenge them before the Supreme Court.”
Irrelevance of the bill
In its response, by way of memorandum to the committee, the GAAS (set up in 1959 “to encourage the creation, acquisition, dissemination and utilisation of knowledge for national development through the promotion of learning”) noted, inter alia, the following: “As currently conceived and drafted, key among the effects of the draft bill are (i) the introduction of direct executive control over public universities, both as corporate bodies and as academic institutions, and (ii) the constriction of space for differentiation among public universities, for innovation, and for the drive for excellence.”
The rationale for coming up with the bill, according to the minister of education, is to do away with “grave improprieties in the utilisation of resources” revealed on a yearly basis by the Auditor-General in the running of universities. Therefore, the bill is deemed necessary to promote “transparency, accountability and efficiency” in the universities. However, UTAG further opposes the bill on the grounds that it will not be the panacea to the alleged problem in the public universities.
In their contention, the universities have over the years developed one of the most stable and well-functioning structures of governance and administration in the country. It is also one of the least corrupt institutions, compared to many others. The use of the bill to promote these causes by passing on governance of the university to less capable institutions or individuals is therefore disingenuous. It is in this respect that the GAAS subsequently concluded in its memorandum that “the proposed draft Ghana Public Universities Bill is unnecessary” and should not be allowed to pass.
The bill – To solve or to create problems?
UTAG further contends that the bill, if implemented as is currently drafted, will create more problems for the running of the universities than it seeks to resolve. In the words of the union, this document will rather "create chaos as its supposed solution is not addressing any problem”. It is, therefore, at a loss regarding the rationale for the enactment of the legislation.
If applied as it stands, the minister will need to be consulted even if the university has to acquire chairs and computers for use by students or in the offices. Again, the university will be crippled in its ability to obtain funding for research.
A good example is the COVID-19 grant that the Noguchi Memorial Institute for Medical Research, the country’s leading laboratory for testing for COVID-19, could have lost had this bill been enacted in law, due to the complicated mechanism it introduces into the application for research grants and partnership in serious global research collaborations.
UTAG concludes in its condemnation of the PUB that it does not conform to the dictates of the Fourth Republic Constitution of Ghana, based on how it seeks to interpret and apply articles 21(1)(b), 68(1)(b), 195(3), among others.
While public universities do not claim to be perfect institutions, there are more workable solutions to the comparatively less prominent problems identified in the public university space when compared to many other public sector organisations.
Subsequently, the issues canvassed as a basis to draft a bill of this nature to resolve those problems is a waste of time and resources. It only smacks of attempts to grant more powers to the president to control the universities, instead of regulating them.
Kwadwo Appiagyei-Atua is associate professor at the School of Law, University of Ghana, Legon, Accra where he teaches public international law and international human rights law. He recently completed his Marie Curie International Incoming Fellowship at Lincoln University in the United Kingdom where he conducted research on building academic freedom and democracy in Africa. He has also served as monitor for the Magna Charta Observatory, University of Bologna, Italy. He can be reached via email at firstname.lastname@example.org.