Home Opinions Ezekiel Osei Writes: The ISRC Instrument Is Legally And Pragmatically Valid

Ezekiel Osei Writes: The ISRC Instrument Is Legally And Pragmatically Valid

1 INTRODUCTION
There has been erudite thoughts and views from students legal brains and media houses on the constitutionality of the Interim Students’ Representative Committee (hereinafter called the ISRC) that was instituted by Mr Adu Baah Charles, the SRC President by an Executive Instrument attached to a notice dated 3rd July 2020. Critics of the ISRC had grounded their arguments mainly on the footings that the SRC President acted unconstitutional because he does not have such under the SRC Constitution 2011(as amended). While I do not contest their literal conclusions drawn from the SRC Constitution, I am unable to agree entirely with their assertions. It is my considered opinion that the action of the president can by deductive drawings and analogical reasonings as well as pragmatic considerations be justified. In advancing my submissions, I first discuss the SRC the Distribution of Powers and Trust Functions under SRC Constitution 2011. The paper will then move on to discuss the Executive Authority and the establishment of the ISCR. The paper will subsequently conclude on the discussions made herein.

2 THE SRC, THE DISTRIBUTION OF POWERS AND TRUST FUNCTIONS UNDER THE SRC CONSTITUTION 2011

The SRC Constitution 2011(as amended) establishes the Students’ Representative Council as the highest students political and administrative body to run students’ affairs and coordinate the relationship between the University Council and the general students body [See generally SRC Constitution, art 1(1)(2)]. By virtue of article 5(1), the SRC is composed of the Executive Council, Parliamentary Council and the Judicial Council. Executive, Legislative and Judicial Powers are constitutionally vested in the Executive (through the Executive Committee), Parliamentary and Judicial Councils respectively [See SRC Constitution, arts 21(1)(2), 35(2) and 50(1)].
These bodies in the exercise of their respective powers perform an inextricable relational and cumulative functions of the SRC which underpins the very subjective and objective intent (i.e. the welfare of the students body, and the safeguard of the principles of probity, accountability, veracity, and impartiality) of the SRC Constitution [See the 4th and 5th preambular paragraphs to the SRC Constitution] It is within this context that article 6(g)(j) of the SRC Constitution provides as follows:
_[t]he function of the SRC shall be to foster the maintenance of the right academic atmosphere for the students of this university to pursue their studies…and work towards the maintenance of good and healthy staff-student relations based on mutual trust and respect._
It is imperative to underscore the fact this mandate or function is one that must be observed and executed by the SRC so long as it remains in office in accordance with the tenets of constitutional democracy and the principles of students governance continuity. It thus follows that, in instances where the SRC is indisposed to execute these functions, it must put in place clear systems to ensure that the least essentials of these functions are realized. It is submitted without doubt that such reasoning is not alien to the very legislative intent of the framers of the SRC Constitution but it is akin to or is an accurate reflection of the wisdom of the legislature gleaning from the constitutional trust system which the SRC Constitution by necessary implication establishes [See generally SRC Constitution, art 1(1)(2)].

3 THE EXECUTIVE AUTHORITY AND THE ISRC: A QUESTION OF LEGALITY AND PRAGMATISM

The SRC Constitution vest the exercise of executive authority in the SRC President [See SRC Constitution, art 21(2)]. Admittedly, a global review of the SRC Constitution does not confer on the SRC President such explicit powers to pass instruments or any guide to augment the constitutional continuity of student governance in the event SRC annual general elections are not held because of impermissible circumstances. In much the same way the SRC Constitution doe not allocate such exceptional powers to any body, constitutionally guaranteed. Therefore, unarguably the SRC Constitution is very much silent on the matter. Consequently, a literal orientation of the wording and provisions of the Constitution will make bad the action of the SRC president, Mr Adu Baah Charles. However, according to the general canon of constitutional construction and interpretation, every part of the Constitution must be construed or given effect to in finding meanings or constitutionality of the actions of any person [See _Tuffour v Attorney General,_ per Sowah JSC as he then was (emphasis added)]. Flowing from this, it is expedient that ‘ _”subsummation and subjective clauses”_ in the SRC Constitution must be read, construed and interpreted intently in accordance with the subjective and objective purposes of the SRC constitution considering the fact that, the SRC Constitution is subjected to the KNUST Act 1961(Act 80), and University Policy and Guidelines [See SRC Constitution, art 2(2)]. Accordingly, it goes without saying that legal and pragmatic principles inherent in student governance (which may not be explicit in constitutionally conferred powers) must be treated with the highest pedigree. Consequently, it is argued that a holistic review of (a) the trust function as briefly espoused supra and (b) the inherent policy of the University Council, legally and pragmatically justifies the establishment of the ISRC by the SRC President. I reason that by construction, the SRC President possess derivatives powers within the purviews of the SRC Constitution and the KNUST Act on one hand and University Policy on the other hand.

(a) The Constitutional Trust Function
The Constitutional Trust Function imposed on the SRC requires that the SRC (preferably through the SRC president), ensures continuity of student governance so as to ensure at all times the welfare of the student body as well as the the relationship and fellowship between the university and the students. In fact, this continuity is also envisaged in the KNUST Act which stipulates that a Student Representative duly endorsed by the student be on the governing council at all times [See KNUST Act, s 7(1)(e)]. Against this background the consequential question which arises for resolution is whether the time has come when the incumbent SRC president cannot execute such trust function. Apparently, No! It is trite students’ politics policy that and university guide that the tenure of the SRC is coterminous to the end of the academic year in question. Though the semester has ended, the academic year has not ended [See generally the KNUST 2019/2020 academic calendar]. But can the SRC unilaterally to bring its term to an end before the expiration of the academic year? Yes by all means since it is not constitutionally injuncted to do so. The SRC can end its tenure out of any reason but it must (bearing in mind its trust duty) ensure that there is continuity in student administration to maintain fellowship between the university and the students’ body. This clearly explains why the SRC through the SRC Electoral Commission must conduct elections for fresh officers. In any event, the continuous exercise of power cannot be forced on a person or a body but the relinquishing of power held must be done in accordance with constitutional virtues and senses of legal obligations held under the constitution. Therefore, the SRC for whatever reason it is hurriedly leaving office has the power (suitably through the president as the fountain of executive administration) to resolve and agree on an interim governing architecture in order to uphold their trust function. I believe that it is in this respect that Mr Adu Baah Charles has in consultation with the relevant stakeholders (that I perceive to be the SRC component executives) issued a notice establishing the ISRC.

With much respect, I don’t think the long title of the Instrument itself should endear any argumentation that it is an Act of Parliament which the president has no power to pass. I believe much focus sho

uld be placed on the nature and its substance [cf _P Y Attah v Kingsman_ ]. I believe the instrument is purely administrative in nature and substance aimed at giving efficacy to the SRC’s constitutional trust function [cf Interpretations Act 2009 (Act 792), s 1; _Osei_ _Baffour v Attorney General; R v High Court, ex parte Bombelli_ ]. In view of the foregoing, it is my considered opinion that the instrument issued by the SRC president is legally and pragmatically valid.

(b) The Inherent University Policy
University policy just like the constitutional trust function of the SRC executives dictates continuity of student governance among other things [See generally the KNUST Act; KNUST Students’ Guide].

4 CONCLUSIONS AND GENERAL REMARKS ON THE ISRC

The present piece discussed and examined the legality or otherwise of the ISRC as announced by the SRC president. In light of the foregoing discussions, it is my reasoning that the ISRC is legally and pragmatically valid to the extent that (a) it gives efficacy to the constitutional trust duty of the SRC executive body and (b) it can be subsumed within university’s policy. The ISRC is therefore a laudable step by the SRC president.

 

Humbly opined, Ezekiel Osei.

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