Abbreviations used in this article
Act 555 - Private Higher
Educational Institutions Act 1996
EA – Education Act 1996
PHEI - private higher
educational institution
UUCA - Universities and
University Colleges Act 1971 (Act 30)
The Question
Are private universities and colleges established under Act
555 private, in the sense that they are not government institutions? Or are
they hybrid institutions, established and funded by private companies but
controlled and managed by the government through the office of the Registrar
General of Private Higher Educational Institutions? These are not idle questions
but arise from provisions of the Act that deal with the management of private
higher educational institutions (PHEIs). The answers to the questions may have far-reaching
implications on who bears the responsibility for breaches of duty and other
failures by the institution.
Act 555
The Act enables the establishment of a higher education
institution by almost anyone, so long as the application to establish is made
by a registered company, local or foreign, and in accordance with the
establishment procedures laid down in the Act. The Act defines PHEIs to include
all levels and types of higher education institutions, from colleges to
universities, irrespective of size and regardless of their mode of delivery,
whether by traditional face-to-face methods, online, or by distance education
and includes universities established in this country as branches of foreign
universities. The single definition also embraces within its scope,
professional bodies that offer courses leading to membership in those bodies.
The Private Higher Educational Institutions (Amendment) Act 2017 added two new
definitions to the Act. A foreign branch campus is now defined as a branch of a
foreign university or university college. College, which was a term that was
not defined before the passing of the Amendment Act, is now defined as a PHEI
without the status of a university, university college, or foreign branch
campus.
When passed in 1996, the Act made ground-breaking changes to
the way higher education has since developed in this country. Its most
important contribution to that development is the establishment of a framework
for private higher education institutions that had the immediate effect of
legitimising an already vibrant private sector that had existed for many
decades without any roots in any enabling laws.
The Company and the PHEI it establishes
Institutions established under the Act are private because
they are defined, inter alia, ‘as not established or maintained by the
government’. The definition, does not, however, stipulate where control and
governance of these institutions lie. A reasonable assumption would be that the
PHEI is managed and controlled by the company that established the institution.
But such an assumption is not supported by the provisions of the Act. Instead,
many provisions of the Act treat the PHEI as if it is a legal entity capable of
acting on its own with powers of its own and without the agency of the company.
Every imposition in the Act that in any way concerns the delivery of
educational programmes is directed at the PHEI and not the company. It is
doubtful whether these provisions as currently worded can be enforced against
the company which is the legal entity carrying out the business of higher
education. The statutory impositions on a PHEI must be imposed on the company
that established the PHEI and not on the PHEI which does not have the capacity to
do anything in law. The error in the Act probably arises because of the
assumption that a PHEI is like a university established under the UUCA, which
is an incorporated body.
The attempt to correct the anomaly
The Amendment Act 2017, attempted to correct the anomaly by
introducing a new section 75A, which provides that ‘Where the Act requires a
private higher educational institution to do or prohibits it from doing
something, the obligation to comply is imposed on the company . . .’ This is at
best only a limited solution as it still treats the company and the PHEI as two
separate entities. It is also unlikely that the section will be enforceable
because a PHEI, not being a legal entity, cannot be required or prohibited from
doing anything. Hence, the company establishing the PHEI cannot be made liable
to do something which cannot be done.
The Chief Executive
Section 31 of the Act requires every PHEI to have a chief
executive appointed by the company. Section 33 provides that the chief
executive is to exercise general supervision over arrangements for instruction,
day-to-day administration, and the welfare and discipline in the PHEI. Under s. 46 of the Act, the chief executive is
also the disciplinary authority over student discipline. In all these matters concerning
the powers/duties of the chief executive, the Act makes no reference to the
company or its rights or obligations over those same powers that the chief
executive is empowered to exercise.
An ordinary interpretation of the sections referred to will
make the chief executive the sole governor and administrator of the PHEI.
Section 46 confers on the Chief Executive the right to delegate his
disciplinary authority, but he is not given any delegatory powers in respect of
his other duties/powers. The prescribed constitutions allow for the board of
directors of the company to be included in the management, but notwithstanding
that, the statutory powers of the chief executive are not ousted by those
provisions. There is also nothing in the Act to make the Chief Executive answerable
to the board of directors of the company nor is there any provision that gives
the board powers over the chief executive. When the chief executive is in a
quandary as to who to obey, he will have no choice but to comply with the
statute.
The PHEI as a separate entity
We earlier remarked on the position of the company as the
animating legal entity, but the Act is ambivalent on that point treating the
company and the PHEI as separate entities. The sections in the Act that treats
the PHEI as separate from the company might also support a conclusion that in
law that it is the Minister, Ministry, and the Registrar General who are
responsible for the proper management of the PHEI.
Minister’s and Registrar General’s powers over the chief
executive
Such a conclusion is strengthened by the provisions of
section 5 of the Act. The section states that (the) Minister may, from time to
time, give a board of directors, a chief executive, or an employee of a PHEI
directions, not inconsistent with the provisions of this Act, in relation to
matters in respect of which regulations may be made under this Act, and such
board of directors, chief executive or employee shall give effect to every such
direction.
To add to the confusion and the unenviable position of the
chief executive, s. 37 of Act 555, gives the Registrar General wide powers over
the chief executive which include, giving the chief executive directions in
writing as to the exercise of the latter’s powers and the discharge of his
duty.
Registrar General’s Responsibilities over PHEIs
Part VI of the Act, and the sections dealing with the chief
executive specifically, suggest that the Registrar General is duty-bound to
monitor the conduct of the chief executive and give him the appropriate
directions. Read together, these provisions appear to impose on the Registrar
General not only the power of overseeing the management of PHEIs but also a
duty to ensure its proper management. Any failure in that duty may therefore impose
on the Registrar General liability for any loss suffered by the shareholders.
Act 555 in an attempt to maintain control PHEIs, may have
imposed unintended liability on the Registrar General and the Ministry for the
failures of the chief executive and the company establishing the PHEI.
There is an urgent need to reevaluate Act 555 as it now
stands.