Constitutions Now Prescribed for Private Higher Educational Institutions

The Private Higher Educational Institutions (Amendment) Act 2017 and the Private Higher Educational Institutions (Constitutions) Regulations 2017 introduce new laws and regulations on, inter alia, the institutional constitution of PHEIs. The new 2017 Regulations introduces a set of template or model constitutions whose terms are to be adopted by the institutions.

Act 555 has always required PHEIs to be managed strictly in accordance with the institutional constitution and the Act. Indeed, it is a requirement of the Act (s. 11) that at the time when an application is made for the establishment of a PHEI, the Minister must be ‘satisfied’ ‘there is established a proper system of governance of the private higher educational institution with a constitution that shall be approved by the Registrar General’. An approved constitution is a prerequisite for the Minister’s approval to establish a PHEI. Once established, the institution must be managed in accordance with the terms of the approved constitution (s.30).

Act 555 as it now stands only requires the constitution to be approved by the Registrar General. There are no provisions in the Act or in any Regulations issued under the Act that stipulate the provisions that are to be included in the constitution other than the implied requirement in s. 11 of the Act that the constitution incorporates ‘a proper system of governance of the PHEI’.

The MOE’s preoccupation with the institutional constitution can be traced back to August 2009. The Ministry (then the Ministry of Higher Education), held a workshop to draft standard constitutions for private universities and colleges. To the Ministry’s circular inviting participants to the workshop (JPT/GS(R) 3000-600 (14) dated 19 August 2009) was attached a copy of a constitution of a public university. Participants in the workshop included representatives from both sectors of higher education as well as officials from the Ministry of Higher Education. The discussions of August 2009 produced the first set of two draft template constitutions for private colleges and universities. These were circulated to all institutions in the private sector at the end of 2009. The templates were based on the model constitution in Schedule I of the Universities and University Colleges Act 1971 with modifications ostensibly to fit the needs of PHEIs. The first versions circulated in 2010 were replaced with later versions in 2012 which are the current official ‘standard’ constitutions for private universities and colleges. Both versions were issued through circulars from the Ministry without any reinforcement through legislation or statutory regulations.

The 2017 amendments to s. 30 and the proposed issuance of new regulations on the constitutions appear to stem from doubts about the enforceability of the earlier circulars that issued the template constitutions. There are no provisions under the Act that empowers the minister to prescribe any provisions to be included in the institutional constitution. The Registrar’s powers, as noted earlier, are limited to approving the constitution, not determining what the constitution should contain. The Act is silent as to the provisions that have to be included in the constitution.

The lack of power is addressed through an amendment to the current s. 30. Section 10 of the Amendment Act replaces the current section with a new section that reads as follows;

“Constitution

30. (1) The constitution of a private higher educational institution shall contain provisions for such matters as may be prescribed. (emphasis added)

Subject to the provisions of this Act, every private higher educational institution shall be managed in strict accordance with its constitution.

The constitution shall not be amended without the prior approval of the Registrar General.

Any private higher educational institution which contravenes the provisions of this section shall be guilty of an offence.”

As mentioned earlier, the current s. 30 only provides that the ‘constitution shall not be amended without the prior approval of the Registrar General’. The amended section 30 requires the constitution of a PHEI ‘to contain provisions for such matters as may be prescribed.’

In May 2019, the MOE circulated two template constitutions to PHEIs for their feedback. The provisions in these constitutions are essentially the same provisions that were found in the documents circulated to PHEIs in 2012. The structure and provisions in the latest documents are still based on the model constitution of the University and University Colleges Act 1971 with modifications to fit PHEIs.

The governance system embedded in the proposed constitutions presents several problems. The most serious is that they are drafted on the erroneous assumption (it is submitted), that the private higher educational institution established under the Act is an entity capable of acting on its own. Based on this assumption, the draft constitutions ignore the role and position of the company that established the institution and instead directs all its provisions at the PHEI as if it can be separated from the company and be treated separately and exclusively. This is misconceived. Unlike the university established under the UUCA, the private higher educational institution is not an incorporated body with the attributes of a legal person. It must rely on the company to animate it, to give it the capacity to act. The institution emanates from the company and only the company can act on its behalf. The new s. 75A added by the 2017 amendments recognizes the PHEI’s dependence on the company. Any attempt to prescribe a constitution for the management of private universities and colleges must direct the requirements at the company establishing those institutions and require the company to apply the prescribed constitution in managing the institution it created. The PHEI is, in reality, a company carrying on the business of a university or college. Critical to that definition is the company’s status as an incorporated entity with all the attributes of a legal person. Further, since the institution exists under the aegis of the company, one must look to the locus of control in the company to carry out the activities of the PHEI, which is the Board of Directors of the company. Section 211(1) of the Companies Act 2016 provides that ‘the business and affairs of the company shall be managed by, or under the direction of the Board'. It is questionable therefore if a document such as the draft constitution which is issued through delegated powers of another enactment can transfer the management powers of a registered company to another body such as the BOG created under the draft constitution. Any attempt by the draft constitutions to place management functions on a Board of Governors will not be effective in law unless the BOG is created by the company and managed through its board of directors or under the direction of the board of directors. The BOG cannot usurp the powers of the board of directors of the company. For this reason alone, the regulations may not be enforceable under existing laws on the validity of such regulations.

Apart from issues concerning the legality of the provisions in the two constitutions, the bicameral governance system that is prescribed in them is unwieldy, bureaucratic and inefficient as a management structure and is not the only model available to PHEIS. The ‘prescribed’ constitutions with a single governance model may also not fit the vastly different ownership models that are found in the population of PHEIs.