July 27, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, in an original-jurisdiction constitutional case, addressed whether public universities’ “Full Fee Paying Policy” violates educational and equality guarantees. The Federation of Youth Association of Ghana (FEDYAG) sued the Public Universities of Ghana, and the Ministry of Education, National Council for Tertiary Education, and Attorney-General, seeking declarations and prohibitory relief. FEDYAG argued that universities reserve and expand foreign and non-resident quotas, then sell unfilled places to Ghanaian applicants able to pay, thereby disadvantaging qualified but less affluent students and undermining the Constitution. The defendants countered that non-fee-paying quotas funded by government bursaries are unchanged and that fee-paying intakes occupy only surplus capacity, generate revenue to subsidize non-fee-paying students, and align with progressive free education under Article 25 and resource constraints under Article 38. Interpreting educational rights liberally but recognizing resource-based limits, the Court held that the fee-paying policy is constitutionally valid, non-discriminatory, and contributes to progressive equal access. FEDYAG’s action was dismissed.
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:
1. 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.”
2. 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