CASE NO: E8/47/2015
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
CORAM: ATUGUBA, JSC (PRESIDING)
AKUFFO (MS), JSC
ADINYIRA (MRS), JSC
OWUSU (MS), JSC
ANIN YEBOAH, JSC
AKOTO-BAMFO (MRS), J.S.C.
FEDERATION OF YOUTH ASSOCIATION
OF GHANA (FEDYAG) - - - PLAINTIFF
PUBLIC UNIVERSITIES OF GHANA & ORS - - - DEFENDANTS
J U D G M E N T
ADINYIRA (MRS.) JSC:
The case before this Court demands an interpretation of the extent of the citizen’s right to education as enshrined in article 25 of the 1992 Constitution. The right to education has been a cause for civil rights activists in the history of many nations. It is a common saying that education is the key to development. Education is also the key to breaking the cycle of poverty. Therefore in the quest to attain political and socio-economic development after independence, education was one of the core areas that Ghana and other African countries paid much attention. Education therefore offers an effective platform for national development and also “promotes understanding, tolerance, and friendship among all nations, racial or religious groups.” See Article 26 (2) of the Universal Declaration of Human Rights.
The plaintiff, Federation of Youth Association of Ghana (FEDYAG) commenced an action, by a writ filed on 22 April 2009, invoking the original jurisdiction of this court against the Public Universities of Ghana as the first defendants, and against the Ministry of education, the National Council for Tertiary Education, and the Attorney-General as the second, third and fourth defendants respectively, for the following reliefs:
- A declaration that the fee paying policy being implemented by the public universities of Ghana is inconsistent with, or in contravention of the letter and spirit of the 1992 Constitution and more particularly articles 17 (2) (3) (4) (a), 23, 25 (1) (c), 34 (1), 38 (1) (3) (a) (c) and 41(b) and (d) thereof.
- An order prohibiting any further implementation of the fee paying policy by the first defendants herein and quashing same.
Facts and Plaintiff’s Case
Apart from the bare assertions of facts made by the plaintiff in its Statements of Case, as verified by the accompanying affidavit, it offered no further proof of the facts alleged in them. For clarity I set out in full paragraphs 1 to 7 of the statement of case which are as follows:
- The Public Universities of Ghana, the 1st Defendants herein, for many years into the 4th Republic, have been implementing a policy called “Full Fee Paying Policy”. The beneficiaries under the said policy are christened “The Fee paying Students.”
- How did this come about? As a country, like many states, within the comity of nations, we have an obligation of welcoming citizens of the world into our universities to pursue knowledge. It means that space must be reserved by the institutions concerned for these foreign students as we call them. It has almost always been the case that the space so reserved has never been fully occupied by the targets. The Universities instead of returning the unoccupied space to the next most qualified prospective students then sell the space to Ghanaian citizens at the same price as the foreign students.
- As if that is not enough, the universities realizing that a lot of money could be made out of this have decided to reserve more space than can ever be reasonably occupied by these foreign students.
- Now this act of public universities has become an annual ritual. For e.g. they tell the world that we can only take 70% prospective students whiles in reality they can take up to 95%. They then cut the intake at say aggregate 12 instead of aggregate 15 and turn around and say, “Whoever can pay this much; come, we have a place for you”.
- This means that whilst some citizens of the country pay tuition fees others do not pay tuitions fees to access higher education in the country.
- By acting in this manner, many qualified prospective students who could have had a place in their own capacity but for that much to pay are relegated to the background while those who have the means have their way.
- It is our humble contention that this act in the name of full fee paying of public universities in Ghana betrays the letter and spirit of the supreme law of the land viz the 1992 Constitution.
Though the plaintiff avers generally that the defendants’ fee paying policy “betrays the letter and spirit of the supreme law of the land viz the 1992 Constitution”, it specifically and more particularly relies on articles 17(2)(3)(4)(a), 23, 25(1)(c), 34 (1), 38(1)(3)(a)(c) and 41(b)(d) thereof.
Common Submission by all of the Defendants
It was commonly submitted by all the defendants that the fee-paying policy is in no way discriminatory because the quota available to the students admitted on merit is not in any way diminished by the admission of fee-paying students. They further submitted that by the provision of article 25 (1) (c) of the constitution, the introduction of free education at the tertiary level should be by a gradual process.
1st Defendants’ Response
The 1st defendants further submit that the plaintiff does not show in which way the defendants have violated the articles mentioned in the writ. They submit that university education in Ghana has been funded by the government through annual bursaries. The number of non-paying students is tied to the size of the government bursaries made available each year. That by the ever diminishing size of government bursary the public universities cannot admit all qualified candidates. They claim that the quota given to fee-paying students does not affect the quota for non-fee paying students. They submit that the fee-paying policy enables qualified students who would otherwise not gain admission on account of not obtaining government bursaries, to pay and obtain education from the public universities. The 1st defendants submit further that the revenues from fees paid by the fee-paying students are added to the government subvention to increase the number of non-fee-paying students admitted each year. In the case of the Kwame Nkrumah University of Science and Technology, such funds make it possible for the University to give scholarship to brilliant students from less endowed schools.
The 2nd, 3rd and 4th Defendants’ Response
The 2nd, 3rd and 4th defendants on their part submit that, the government is unable to fully meet the financial requirements of the 1st defendants. As a result these subvented institutions have to supplement government efforts by resorting to the fee-paying policy. They also stated that the quota reserved for the intake of foreign students is a time honored practice by universities around the world. This practice enriches the academic community and provides for global socio-cultural interaction, which by itself is education.
Central issues to be determined in the case
There is no doubt that in essence the plaintiff’s contentions are based on provisions of the constitution falling under or relating to the Fundamental Human Rights as set out in chapter 5 of the Constitution. The only articles which do not physically fall within the said chapter 5 are articles 34, 38 and 41. These fall (under chapter 6), the Directive Principles of State Policy, of which article 34 requires that in applying or interpreting the constitution, their guidance cannot be discounted and therefore article 38 relating to education cannot be discounted in considering educational rights under chapter 5. We however do not see the relevance of article 23, and 41 of the Constitution to the case.
The parties did not agree on the issues to be tried and each filed separate memorandum of issues which added up to 13. From the myriad of issues filed by the parties we see the following issues emerging from the pleadings:
- Whether or not the full fee paying policy of the 1st defendant universities are in contravention of the letter and spirit of articles 25, (1) (c), 38 (1) (3) (a) (c) of the 1992 Constitution of Ghana.
- Whether or not the 1st Defendant’s offer of admission spaces not taken up by foreign students to students who qualify but not admitted for lack of government subvention, amounts to discrimination, in contravention of article 17(2) (3) (4) (a) of the 1992 Constitution.
Before we determine the above issues we must interpret article 25 to discover the extent of educational rights guaranteed by the 1992 Constitution. The correct approach to the construction of constitutional provision has been amply expounded on in the case of Ahumah Ocansey v. Electoral Commission; Centre for Human Rights & Civil Liberties (CHURCIL) v Attorney-General & Electoral Commission (Consolidated); 2010 [SCGLR] 575 by our eminent lady Chief Justice Georgina Wood. She said at page 597 of the report as follows:
“The correct approach to interpreting Constitutions generally and fundamental human rights provisions in particular, is clearly so well settled: it does not admit of any controversy. The jurisprudence of this court does show that these must be broadly, liberally, generously or expansively construed, in line with the spirit of the constitution, history, our aspirations, core values, principles, and with a view to promoting and enhancing human rights rather than derogating from it.
This court has clearly moved away from the doctrinaire approach adopted years ago in the case of In re Akoto 2GLR 523 SC. The famed words of Sowah JSC as he then was in the celebrated case of Tuffuor v Attorney General  GLR 637 at 647-648, are very much still relevant for our purposes; not to mention the tall list of case law that was cited in one of the most recent decisions of this court given on 3 February 2010- to be reported as Brown v Attorney –General (Audit Service case)  SCGLR 183. Two of the older decisions of this court are Mensima v Attorney- General [1996-7] SCGLR 676 at p. 714, and New Patriotic Party v Inspector –General of Police [1993-94] 459 at 482. In the latter case, Bamford –Addo JSC as she then was observed that:
“…fundamental human rights are inalienable and can neither be derogated from or taken away by anyone or authority whatsoever. …This court is therefore not permitted to give an interpretation which seeks to tamper in any way with the fundamental human rights but rather to see that they are respected and enforced.”
The learned Chief Justice Georgina Wood observ