February 3, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Ghana Supreme Court ruling addresses preliminary objections to a constitutional challenge brought by a registered youth federation (known by the acronym FEDYAG) against the Public Universities of Ghana, the Ministry of Education, the National Council for Tertiary Education, and the Attorney-General. FEDYAG alleged that the universities’ “full fee paying” policy—initially reserved for foreign students but now extended to Ghanaian students who can pay despite not meeting entry aggregates—violates constitutional guarantees of equality, non-discrimination, and educational accessibility. The Attorney-General objected that the matter was essentially a human rights enforcement claim for the High Court, and the universities questioned FEDYAG’s capacity. In a majority opinion authored by Adinyira, JSC, and joined by Anin Yeboah and Gbadegbe, the Court held the claim centrally requires constitutional interpretation under articles 2(1) and 130(1), overruled the preliminary objections, and recognized the plaintiff’s capacity. Atuguba, JSC (presiding) and Akoto-Bamfo, JSC dissented, viewing the claim as an enforcement action within the High Court’s remit.
ATUGUBA, J.S.C:
The plaintiff per its writ dated 22/4/2009 invoked the original jurisdiction of this court claiming the following reliefs:
“1. 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 Constitution, 1992 and more particularly articles 17(2)(3)(4)(a), 23, 25(1)(c), 34 (1), 38(1)(3)(a)(c) and 41(b)(d) thereof.
2. An order prohibiting any further implementation of the fee paying policy by the First Defendants herein and quashing same.”
In elucidation of its claim the plaintiff averred between paragraphs 2 and 6 of its statement of case as follows:
“2. 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.
3. 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.
4. 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”.
5. 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.
6. 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.”
Two preliminary objections have been taken to this action. Counsel for the 1st set of defendants (the Public Universities of Ghana) has contended that the plaintiff is not a corporate body and is therefore not a legal person within the purview of article 2 of the 1992 Constitution capable of invoking our original jurisdic