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MEETING THE CHALLENGES OF FUNDING UNIVERSITIES: THE ROLE OF THE ADMINISTRATOR

MEETING THE CHALLENGES OF FUNDING UNIVERSITIES: THE ROLE OF THE ADMINISTRATOR. The Legal PERSPECTIVE by Akyaa afreh arhin Legal counsel June 2011. Applicable Laws. The 1992 Constitution of the Republic of Ghana University of Ghana Act, 2010 (Act 806)

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MEETING THE CHALLENGES OF FUNDING UNIVERSITIES: THE ROLE OF THE ADMINISTRATOR

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  1. MEETING THE CHALLENGES OF FUNDING UNIVERSITIES: THE ROLE OF THE ADMINISTRATOR The Legal PERSPECTIVE by Akyaaafreharhin Legal counsel June 2011

  2. Applicable Laws • The 1992 Constitution of the Republic of Ghana • University of Ghana Act, 2010 (Act 806) • Statutes of the University of Ghana, 2011 • The Financial Administration Act, 2003 (Act 654) • Fair Wages and Salaries Commission Act, (Act 337) • Public Procurement Act, 2003 (Act 663)

  3. University of Ghana Act, 2010(Act 806) • Sources of funds –Section 24 • Subventions from Government • Moneys received for the performance of functions of the University • Students fees • Payments for services rendered by the University

  4. Act 806 (contd) • Moneys received for the performance of functions of the University (contd) • Proceeds from sale of publications • Grants, subscriptions, rents and royalties • Interest from investments • Endowments, donations and gifts • Moneys from any other source approved by Council

  5. Act 806 (contd) • Control over UG’s funds-Section 24 • Council is required to: • Open a bank account for monies received by the University • Invest funds not required for UG’s immediate use

  6. Act 806 • Sections 12 and 16 –Functions and Powers of Council • Wide powers of Council to do anything necessary to ensure that the aims and objectives of the University are realized

  7. Act 806 –Control of Funds • Section 23-Council has power to acquire, sell, mortgage, lease property of the university and to enter into any other transaction • Section 33-Council’s power to regulate the appointment and conditions of service and retirement benefits of its employees

  8. Act 806 • Limitations on Council’s control of funds of the University – Section 25 • Submission of audited accounts to the Auditor -General each year • Submission of annual report of activities of the University to the Minister of Education for onward submission to Parliament • Minister’s right to demand other written reports

  9. Statutes of UG as at 2011 • Statute 4(9)-Council has power to control the property, funds and investment of the University • Statute 4(12)-Council shall control the finances of the University • Statute 4(14)-Council shall determine the allocation of the funds at the disposal of the University • Statute 4( 15)-Determination of annual expenditure for investments

  10. Constitution of Ghana • Art. 176-Payments of money received for purposes of government is payable into consolidated fund • Exceptions include- • Monies that under an Act of Parliament, are retained by the department of Government that received them for the purpose of defraying the expenses of that department

  11. The Constitution • Exception applies to universities assuming that Universities are departments of government • UG funds are payable into a bank account and not into the consolidated fund

  12. The Constitution (contd.) • Employees of the University as public officers • Article 195 –appointment of public officers by President • 195(3)-Appointment of officers of universities is vested in Council of the Universities

  13. Financial Administration Act, 2003 (Act 654) • Act to regulate the financial management of the public sector • Are funds of the University public funds? • Art 175 of const/Section 5(2) (Act 654) defines public funds-consists of the Consolidated Fund, Contingency Fund and other funds that may be established by an Act of Parliament • Art 178-Rules for withdrawal of public funds

  14. ACT 654 • Section 5(2) states that any fund other than the Consolidated fund is governed by the enactment establishing the fund. • Funds of the University are governed by Act 806 and not Act 654

  15. Fair Wages And Salaries Commission Act, 2007 (Act 737) • Is Act 737 applicable to universities? • Objects of Act 737 • Determine and implement public service pay policy • Act 737 defines public service to include service in any civil office of Government, the emoluments attached to which are paid directly from public funds and service with a public corporation

  16. ACT 737 • Emoluments of employees of universities are paid with public funds • University falls under Act 737 • For other officers in the civil service paid with public funds, the appointing authority is the President. In the case of the University it is Council • Appointing authorities usually determine correspondent emoluments

  17. Public Procurement Act, 2003 (Act 663) • Section 14 (1) –Act 663 applies to goods, works and services financed in whole or in part from public funds • Under Act 654, funds of the University are public funds. • Section 14(2)- Act applies to public universities • Act 806 governs the funds of the university. What would happen if Act 806 had its own procurement rules?

  18. Observations • Council controls funds of the University and determines the use to which the funds are to be put • Authority to disburse university funds is vested in Council and not in Government • Council is accountable to Government for the use of the University’s funds • University funds are not paid into the Consolidated fund but retained by the University for the purpose of defraying the expenses

  19. Observations (contd) • Employees of the University are appointed by Council unlike other public officers -Constitution • Conditions of service of employees are to be regulated by Council-Act 806 • Salaries and emoluments of employees of the University are to be determined by Act 737

  20. Observations (contd.) • Funds of the University are governed by Act 806 • Act 663 applies to public universities • The various laws especially the constitution grants the universities some independence-appointment of officers by Council-authority to retain its funds

  21. Inconsistencies in the various laws • The appointing authority of officers of the University is Council and is given power to determine conditions of service. • Salaries and emoluments are to be determined by the Fair Wages Commission. Act 737 and 806 seem to be contradictory • Act 654 is not applicable to Universities and yet it is being applied to universities

  22. Government’s interpretation- Emerging Issues-Reality • Moves to make University pay funds into consolidated fund in contravention with Act 806. • Determination of salaries and emoluments of employees under Act 737–in contravention with Const. (Council to appoint)and Act 806 • Government’s desire to control IGF e.g. issue of the EOCO demanding that the University submits some accounts and documents to it for investigation into the use of the IGF

  23. Emerging Issues-Reality (contd.) • Government’s determination of fees-must not exceed 10% of previous fees. • Government’s desire to control university funds-in contravention of Act 806 • Case against public universities –whether the university has the right to fix fees- case pending in court

  24. Implications for Semi-autonomous Units • Definition of Semi autonomous –Statutes • Establishments with limited financial and operational autonomy • Business School, Institute of African Studies, Institute of Continuing Distant Education etc. • Section 24(3) of Act 806-Moneys received by or standing to the credit of an establishment of the university shall form part of the funds of the University

  25. Implications For Semi-autonomous Units • Semi Autonomous units • Have limited financial autonomy • Do not have control over funds of the University • Are required to submit funds to central administration –Act 806 and Statutes

  26. Implications For Semi-autonomous Units • Semi Autonomous units (contd.) • Cannot decide on the use of the funds without prior approval of Council-Act 806 • Cannot use the funds under rules different from the use of other funds of the university • Cannot buy and sell property or enter into transactions without seeking Council’s approval-Act 806 and Statutes

  27. Discussion • Should the University point these laws out to the Government?

  28. THE END

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