ABSTRACT
Universities across the world have developed a system of governance that regulates their affairs. Just like a democratic government, there are representatives of the student body who seek to advance the interests of students in a stimulating academic environment. The 2020 Public University Bill of Ghana sought to regulate the activities of public universities in a structured manner to ensure consistency and commonality in the administration of public universities whilst recognising the peculiarities in the objects of the various institutions. The passage of the Bill into law has however been halted following increasing concerns from stakeholders and the general public, that the framework of the Bill stifles academic freedom. A study of the governance structure of public universities across different jurisdictions such as Nigeria, Japan, the UK, and Canada, reveal that university autonomy is not total independence from the government but a spirit of cooperation between public universities and state institutions.
INTRODUCTION
The purpose of the Public University Bill is to provide for the establishment, governance arrangements and management of a public university as well as for other related matters. The structure of public universities are such that their sustainability is largely dependent on government funding, which leads to some expected accountability in the utilization of resources allocated to them.
In the regulation of the affairs of public universities, there must be some consideration for academic freedom. Whilst this concept is a difficult one to define, academic freedom largely identifies the rights of each individual involved in the process of education. This includes lecturers, students, and the role of the government to an extent.
There are different levels of education with tertiary or post-secondary education being the most crucial. This is because that is the only level of education that transitions an individual from academic to professional life. Notwithstanding the inability of students to opt-out of certain modules that are core to their area of study, the presence of academic freedom ensures that students have the liberty to decide which discipline to specialize in.
This paper discusses the salient sections of the Public University Bill which has come under so much criticism that, its passage into law has been halted. The author also compares the provisions under this bill, to laws on the governance of public universities in other jurisdictions.
The jurisdictions that are examined in addition to Ghana are Nigeria, Japan, the United Kingdom (UK), and Canada. This is in order to provide a holistic view of how academic freedom is being exercised in public universities across different continents.
1.0 SECTION 14 – CHANCELLOR OF A PUBLIC UNIVERSITY
This section of the Bill provides that a public university shall have a chancellor who shall be appointed by the president. The chancellor of a university is the overall head of the university. Although the Council nominates persons for the consideration of the president, there is the concern that this provision sins against Article 68 (1) (b) of the 1992 Constitution of Ghana.
Article 68(1) (b) clearly states that the president shall not, while he continues to hold office as president, hold the office of chancellor or head of any university in Ghana. It must be noted that the mere fact that the president appoints a chancellor does not mean that the president is holding himself out as the head of a university. Infact the appointment in itself is a clear indication that it is not the president who is the head of the university but some other person who is referred to as a chancellor.
Furthermore, there are a number of important personalities who are appointed by the president. Article 144(1) of the Constitution, for instance, mandates the president to appoint the chief justice of Ghana. It will be far-fetched to insinuate that such an appointment by the president indicates that the president is the head of the judiciary. That being said, section 14 of the Bill is likely to be in contravention with Article 195 of the Constitution.
Article 195 (1) of the Constitution gives the president the power to appoint persons to hold or act in an office in the public services. Section 17 of the Public Services Commission Act of 1994 describes public service as one that includes service in any civil office of Government, the emoluments to which are paid directly from the consolidated fund or directly out of moneys provided by parliament and service in a public corporation. Since public universities largely depend on public funding, they can be classified as institutions that provide public services. It therefore appears from the wording of the Constitution and the Public Services Commission Act that the appointment of the chancellor of a public university vests in the president.
This power of the president is however contradicted by Article 195 (3) of the Constitution which specifically states that the power to appoint persons to hold or act in an office in a body of higher education, research or professional training, shall vest in the council or other governing body of that institution or body. This means that the appointment of the chancellor of a public university (which is a body of higher education), must be at the purview of the university council instead of the president.
The next section of this paper explores the appointment procedure of the overall head of public universities in the four jurisdictions mentioned at the outset.
2.0 APPOINTMENT OF KEY OFFICERS IN NIGERIAN FEDERAL UNIVERSITIES
The University (Miscellaneous Provisions) Acts 2003 which has subsequently been amended by the University (Miscellaneous Provisions) Amendment Act 2003 and 2012, provide for the improved autonomy of universities such as the freedom of a university to appoint its key officers. Unlike the position in Ghana, neither the president of Nigeria or the existing governors of each state, have the authority to appoint the head of a federal university.
APPOINTMENT OF UNIVERSITY PRESIDENTS IN JAPANESE NATIONAL UNIVERSITY CORPORATIONS
In 2004, Japanese national universities were transformed into national university corporations separated from the central government. Such corporations have presidents who are synonymous to university chancellors in Ghana. In appointing the president of a national university corporation in Japan, a presidential selection committee consisting of the administrative council and an internally constituted senate is set up for nomination purposes. Ultimately, it is the Minister of Education who formerly appoints the president (Yamamoto, 2004).
Although there is some governmental intervention, it is not as pronounced as the situation that would have arisen in Ghana if the Public University Bill was passed as law. It is safe to conclude that it is not out of context for the Minister of Education to be heavily involved in the appointment of the head of a public university as opposed to the president of a country.
THE APPOINTMENT OF A VICE CHANCELLOR OF A PUBLIC UNIVERSTY IN THE UNITED KINGDOM
Each public university in the UK has the liberty to develop its own regulations in the appointment procedures of vice chancellors. However, such appointments typically follow a certain pattern.
First of all, there are University Councils which serve as the highest administrative bodies of the universities. These councils appoint a search committee often chaired by the Council’s chairperson. It is normally the practice that following a public announcement, a shortlist of candidates is drawn up and are then interviewed by academics, administrative staff and students. A candidate is advised by the search committee to the Council, who in turn, appoint a Vice Chancellor (Westerheijden, 2018).
This is a very thorough procedure that includes both staff and students as compared to Japan and the suspended Bill of public universities in Ghana.
APPOINTMENTS AND GOVERNANCE STRUCTURE IN CANADIAN PUBLIC UNIVERSITIES
Most public universities in Canada have a two-tired system of governance that includes a board of governors and academic senate. The former are concerned with the overall financial and policy issues of a university including the administrative procedures and regulations that govern the university.
Academic senates on the other hand are responsible for overseeing programmes and courses, admission requirements, qualifications for degrees as well as academic planning in a public university. All decisions of the senates are subject to board approval. It must be noted that students are often represented on both the board and senate, as well as alumni and individuals from the community at large (Council of Ministers of Education, Canada, 2021).
The situation in Canada is also a democratic system of governance that includes all stakeholders and beyond. It is not left to the prime minister of the country to make such key appointments of higher education institutions.
The next provision of the Public University Bill that is examined is section 5(1)(c), which states that the Council consists of five persons nominated by the president, at least two of whom are women.
3.0 SECTION 5 (1) (C) - UNIVERISTY COUNCIL
This provision of the Bill has come under attack by proponents against the passage of the Bill. It has been argued that the power of the president to appoint a percentage of members onto the University Council, gives room for concentrated governmental presence in the key officers of the university.
A review of governance reforms on university autonomy reveal that when there is heavy government interference in the running of universities, there is likely to be a concomitant intellectual and social stagnation (Weber, 2006). Such situations were witnessed in Nigerian universities prior to the passage of the University (Miscellaneous Provisions) Act 2003.
In pre-autonomy era, management of the university system in Nigeria witnessed a lot of overbearing government control in administration. In 1980 for instance, an internal dispute ensued between the Vice Chancellor and about six professors at the University of Lagos, which led to all of them including the registrar, being fired by the government without due process. Similarly, in 1990 a history professor at the University of Ibadan was arrested and arbitrarily detained for statements he made on a church pulpit which were considered offensive by the government of the day (Olayinka, Adedeji, & Ojo, 2017).
It is very clear that the development of universities are negatively affected in an environment of political interference in their administration and to the extent that their internal affairs are regulated by the government. However, it is farfetched to assume that the appointment of six (6) members by the president, out of a total number of 15 appointees, invariably leads to government interference in the administration of public universities. It must be recognised that even if all 6 presidential appointees vote along the thinking of government in an unpopular issue, there exist 9 other members who ought to be independent of political influence.
A comparison of this Bill to the appointment procedure onto university councils in the UK, show that election of members onto university councils in the latter is dependent on the internal governance structure of the university without any governmental or political considerations. The University of Oxford in the United Kingdom for example, has a clear governance structure that comprises both Congregation and Council. The Congregation acts as the parliament of the university and consists of more than 4,900 members who elect representatives onto the Council. The Congregation include both academic and administrative staff (University of Oxford, 2021). In similar fashion, Canadian public universities adopt a governance structure that is based upon the notion that authority should be divided between a corporate board and an academic senate.
The next component of this paper assesses the independence of university councils under the Bill.
4.0 SECTION 5(5) – UNIVERSITY COUNCIL
From the discussions above, it has been established that the president appoints the chancellor of a public university and five members of the university council. These councils also appoint the vice chancellors of universities as provided in Section 16 (2) of the Public Universities Bill. This means that all these key officers are accountable to the president and have the potential of being classified as presidential appointees.
The authority of the president over university councils is further cemented by section 5 (5) of the Bill which gives the former power to dissolve the latter in case of emergency. This defeats the whole purpose of university autonomy which has been defined as a system of internal regulation to ensure survival rather than wait for an external body to do so (Olayinka, Adedeji, & Ojo, 2017). Moreover, this particular provision means that public universities cannot decide on their own, what constitutes an emergency, hence are merely a subset of the government.
Although section 5 (6) provides that procedures for the dissolution shall be specified in the statutes of a public university, it will be more efficient if a university rather than the president, handles such matters that border on internal terminations. Ghana can adopt the system in Nigeria where there is a clear provision for the dissolution of university councils. Section 2A of the Universities (Miscellaneous Provisions) (Amendment) Act 2003 provides that where a Council is found to be incompetent and corrupt, it shall be dissolved by the Visitor. A visitor of a university is provided for in section 7AA of the Act and is mandated to cause a visitation to each university when necessary.
This will undoubtedly serve as a more feasible way in dissolving university councils in Ghana as opposed to the provision made in the Bill. It is important to recognise the general goal of higher education which is to invest and produce a significant proportion of educated workers who can carry out tasks that require literacy and critical thinking (Olayinka, Adedeji, & Ojo, 2017). If the president is allowed to trump on this autonomy, Ghana is exposed to potentially experiencing similar events that took place in Nigeria in 1980 and 1990.
The final part of this article focuses on the financial autonomy of public universities under the Bill as well as the other jurisdictions mentioned so far.
5.0 SECTION 7 (e) – FUNCTIONS OF THE COUNCIL
This section states that the Council shall control the finances of the public university and determine the allocation and proper use of funds. Irrespective of the clear wording under this section, there is likely to be a situation where the Council will be financially autonomous on paper but in practice, its allocation and use of funds would be subject to government approval. It can be logically concluded that if even the term of university councils are dependent on government or the president, they are unlikely to be given the mandate to fully manage the finances of a university.
This is similar to the situation in Nigeria where the federal government still maintains the policy of free tuition in federal universities. This impedes financial sustainability of academic programmes and staff. It also makes it more difficult for federal universities to compete with privately owned institutions that charge fees (Olayinka, Adedeji, & Ojo, 2017). Public universities in the UK on the other hand, have more financial autonomy as compared to Ghana and Nigeria.
In a radical reduction of teaching grants from the UK government, universities were allowed to increase their tuition fees in 2012, although to a maximum of £9,000 per annum for British citizens. This means that they can set higher fees for international students which they do; that has led to the sustainable foundation of financial resources for academic research (Westerheijden, 2018). In the same vein, public universities in Canada are largely autonomous. Government intervention is limited to funding, fee structures and the introduction of new programmes (Council of Ministers of Education, Canada, 2021).
The position in Japan however, is not so promising because most financial decisions require approval by the Ministry of Education; a change in student tuition fees have to be run by the ministry. The rationale is that the government has to retain its authority over certain aspects of national universities because they are run with public funds and play important roles (Yamamoto, 2004). The danger is when the government completely takes over the affairs of the university because that will impede academic freedom.
6.0 CONCLUSION
Academic freedom and university autonomy are very important concepts that must be achieved to ensure that there is sustainable transformation in higher education. Whilst advocating for the autonomy of public universities, it must be noted that such freedom does not connote a complete independence from the government or state institutions. There must be a balance and input from all stakeholders with the view of promoting a financially stable institution that can effectively manage its affairs with minimal governmental interference.
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