29th October 2018
The Minister of Education
Ministry of Education
The Executive Secretary
National Council for Tertiary Education
RE: RECENT DEVELOPMENTS CONCERNING KNUST
OccupyGhana® has been closely observing the recent developments at the Kwame Nkrumah University of Science and Technology, Kumasi (“KNUST”), and the issues arising from them. We have also just seen what purports to be a letter from the National Council for Tertiary Education (“NCTE”) that seeks to recognise a so-called “Interim Council” and further “direct” the Vice-Chancellor (“VC”) to step aside.
We register our strong opposition to any attempts to (i) replace the duly-constituted Council of KNUST with any other body in a manner that does not conform with the laws of the country, and then (ii) force the Vice-Chancellor to resign or step aside. It is our view that these acts by your two bodies, constitute an infringement of and affront to the law and the right to academic freedom recognized and protected under article 21 of the Constitution, and which is generally recognised to protect both university teachers and university administrators.
Our objections have three grounds.
First, it was the case that under the original formulation of the KNUST Act, 1961 (Act 80) and the amendments in PNDCL 240, the Government was the appointing authority of the KNUST Council, with the President as the Chancellor. However, as a result of the coming into force of article 68(1)(b) of the Constitution, and Parliament accepting and passing into law, the comprehensive review and consolidation of Ghana law by the Statute Law Revision Commissioner (the “Crabbe Reforms”) changes occurred in the KNUST Act, among several others.
Key among these changes, based on the Constitution and also meant to enhance the right to academic freedom, was that the President was no longer the Chancellor of that university or any other university in Ghana. As a result of this, now, the government appoints Chancellors but only where the relevant statute specifically vests this power in the President. It might also appoint Councils of universities where the relevant statute so provides. This does not include KNUST, the University of Cape Coast, the University of Development Studies and the University of Mines and Technology. And in the specific case of KNUST, the President appoints the Chancellor with the advice of the Council, and it is the Chancellor, not the Government, who appoints the chair of the Council. The Council is also made up of persons is directly “appointed or elected” by specifically named institutions and bodies as their “representatives.” And, it is the Council that appoints the VC, and may remove that person in the exercise of its implied power under article 297 of the Constitution. Neither the government nor any of its agencies including the NCTE may usurp any of those powers vested by law in those other persons.
The Crabbe Reforms have been upheld several times by our courts and most authoritatively by the Supreme Court in Kpebu v. Attorney-General (No. 3). In that case, although the Court expressed regret that Parliament’s deliberations leading to the adoption of those Crabbe Reforms were “hasty, superficial and lacked any commitment,” the Court stated that even if there had been mistakes it was Parliament’s duty to make the required changes, and not the Court’s. The Court was emphatic that “the Seven Volumes of the Laws of Ghana (Revised Edition) constitute the current state of the law contained therein.”
It does not appear that Parliament has accepted that the Crabbe Reforms contain any “mistakes.” Further, Parliament has not taken any steps to revise the Crabbe Reforms to correct any perceived “mistakes.” Until that happens, the law is what is contained in the Laws of Ghana (Revised Edition.) The Government is bound by them, and certainly the Executive is not allowed to turn itself into a legislative authority to make up the law as it pleases, or to hunt and peck and pick and choose which provisions it would respect and which provisions it would disrespect.
Second, even if the Government is still the appointing authority of the KNUST Council and therefore may dissolve it (which position would fly in the face of the express amendment to the KNUST Act), the Government cannot purport to reconstitute the Council without affording the named institutions or bodies in the Act, the opportunity to “appoint or elect” their respective representatives to serve on any reconstituted Council. It appears to us to be an affront to democracy and the rule of law, that when the law gives to other institutions or bodies the right to “appoint or elect” persons to serve on the Council, the Government can arrogate to itself the right to do that on their behalf and select persons that the Government chooses, as representatives of the institutions or bodies. Thus the current “Interim Council” is an illegality that must not be countenanced or allowed to exist or operate. The purported ‘elevation’ of the Pro-VC to the Council, in a thinly-disguised attempt to remove the VC from his ex-officio seat on the Council, is also illegal.
Third, the “directive” by the NTCE for the VC to “temporarily handover the day to day running of the University to the pro-Vice Chancellor,” allegedly to allow the illegal Interim Council to operate is yet another illegal act in a stream of illegal acts by both the government and its agencies. The NCTE has no such power. This ultra vires and legally flawed directive has no basis in the NCTE Act, 1993 (Act 454), under which the NCTE is merely an advisory body to the Minister and tertiary institutions, and may also make recommendations and publish information on tertiary education. Surely this wrongly assumed power to issue such a directive cannot even fall under the omnibus clause that the NCTE may perform other functions “that are incidental” to its stated statutory functions.
Accordingly, the said directive by the NCTE should be withdrawn or be ignored and treated with the contempt it deserves.
We respectfully urge both the Ministry and the NCTE to respect the law and the right of academic freedom, and stop interfering in the administration of KNUST. The Government’s role, if any, would and should be to maintain law and order on the campus and to facilitate discussions leading to an amicable resolution of the problems on the campus, and not to jump into the arena of conflict, become a party to it and thereby compound the problems. The Government should allow the law to work and for the duly constituted bodies to decide on what happens on the campus. That is the law and we fully expect of the Government and its agencies that if they are unhappy with the law, they may appeal to Parliament to revise it. Until then the government must obey the rule of law, however unpalatable that may be to it.
We urge the two of you to forthwith retract all steps taken in furtherance of these clearly illegal pursuits. You do not have to compound the already volatile situation by inviting court actions and their attendant injunctions that will only adversely affect the students.
We also urge the persons named to serve on the purported “Interim Council” to do right by themselves, their conscience and the law. Just as History names and eulogises “the wise and brave and strong, who graced their generation, who helped the right, and fought the wrong, and made our folk a nation,” it also does not forget to mention, at least in inglorious footnotes, those who lent their names to support clear acts of illegality.
Yours in the service of God and Country
The Chief of Staff
Office of the President
The Attorney-General & Minister of Justice