Prof. Asare questions constitutional basis of Oppong Nkrumah’s suit on legal vacation
Prof. Asare questions constitutional basis of Oppong Nkrumah’s suit on legal vacation
Professor Kwaku Asare has questioned the constitutional basis of a lawsuit filed by former Information Minister Kojo Oppong Nkrumah challenging the Chief Justice’s decision to allow selected criminal trials to continue during the legal vacation. Prof. Asare, popularly known as Kwaku Azar, said he was struggling to identify how the Chief Justice’s directive to selected judges to sit during the vacation amounted, without more, to a violation of constitutional rights.
Mr Oppong Nkrumah has invoked the original jurisdiction of the Supreme Court in Writ No. J1/29/2026, seeking declarations that warrants issued by the Chief Justice allowing selected criminal cases to proceed during the legal vacation are unconstitutional. He argues, among other things, that the arrangement amounts to unequal treatment and violates constitutional protections relating to equality, administrative justice, workers’ rights and the exercise of discretionary power.
Questioning the Alleged Constitutional Violations
In a detailed commentary on the case, Prof. Asare questioned what aspect of the Chief Justice’s decision could, by itself, be described as unfair, unreasonable, arbitrary, capricious or biased under Articles 23 and 296 of the Constitution. “Exactly what about directing judges to continue pending criminal trials is, without more, unfair, unreasonable, arbitrary, capricious or biased?” he asked.
According to Prof. Asare, the fact that an exercise of discretion affects different people differently does not automatically mean that the discretion was exercised arbitrarily.
He noted that judicial administration routinely requires decisions about which courts should sit, which judges should hear particular cases and which matters should be given priority.
“There must surely be something more than ‘some judges were selected to hear some cases’ to establish a violation of Articles 23 and 296,” he argued.
No “Selective Justice” in Case Management
Prof. Asare also challenged the argument that continuing some criminal cases during the legal vacation amounts to “selective justice.”
He explained that the constitutional guarantee of equality before the law does not require every case to be heard at the same time, at the same speed or according to an identical timetable.
Courts, he said, routinely differentiate between cases based on legitimate considerations, including the age of a case, whether an accused person is in custody, the availability of witnesses and the consequences of further delay.
“Equality before the law does not prohibit rational differentiation in judicial case management,” he said.
He further questioned which constitutionally prohibited ground of discrimination under Article 17 was implicated by the Chief Justice’s directive.
Simply showing that one case is being heard during the legal vacation while another is not, he argued, does not by itself establish unconstitutional discrimination.
Right to Rest Versus Right to a Fair Trial
The legal scholar also questioned the argument that the Chief Justice’s directive violates the constitutional right to rest, leisure and holidays.
He acknowledged that Article 24 and Article 36(10) provide protections relating to satisfactory, safe and healthy working conditions, rest, leisure, reasonable limitations on working hours and periods of holidays with pay.
However, he said those provisions do not create a constitutional requirement for courts to suspend criminal proceedings throughout August and September.
“A right to rest is not a right for everybody to rest simultaneously,” Prof. Asare said.
“A right to holidays is not a constitutional entitlement to August and September.”
He said the interests of judges and lawyers must also be considered alongside the constitutional rights of accused persons.
Accused Persons Also Have Constitutional Rights
Prof. Asare pointed to Article 19(1) of the Constitution, which guarantees a person charged with a criminal offence a fair hearing within a reasonable time.
He argued that this right must be weighed against claims concerning rest and holidays.
An accused person, particularly one who is in custody, could suffer prejudice from unnecessary delays in criminal proceedings, he noted.
“The Constitution does not say that an accused person must receive a fair hearing within a reasonable time except during August and September,” he said.
Prof. Asare therefore suggested that keeping criminal courts operational during the legal vacation could actually advance the constitutional requirement that criminal cases be determined within a reasonable time.
“A lawyer’s right to rest cannot automatically become an accused person’s duty to wait,” he added.
Chief Justice’s Discretion Under C.I. 47
Prof. Asare also questioned the challenge to Order 79 Rule 1(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
The provision allows the Chief Justice, subject to the Courts Act, to appoint any day, including days during the legal vacation, for the hearing of causes or matters where circumstances require.
Prof. Asare said the rule simply gives the Chief Justice discretion to keep the courts functioning when necessary.
He argued that Articles 23 and 296 of the Constitution recognise the existence of discretionary powers and regulate how those powers are exercised rather than abolishing discretion altogether.
“The constitutional question should be whether the discretion was improperly exercised, not whether discretion may exist at all,” he said.
Why Rely on Civil Procedure Rules for Criminal Trials?
Prof. Asare also raised a procedural question concerning Mr Oppong Nkrumah’s reliance on C.I. 47.
He noted that the rules cited in the lawsuit are the High Court (Civil Procedure) Rules, while the warrants being challenged relate to criminal trials.
“If the proposition is that criminal trials cannot proceed during the legal vacation, GOGO would expect to be shown the rule of criminal procedure that says so,” he said.
He further drew attention to the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), particularly provisions dealing with the continuation and adjournment of criminal proceedings.
According to him, the statutory framework appears to treat adjournment as a judicial decision requiring justification rather than an automatic consequence of the legal vacation.
Lawyers Can Seek Adjournments
Prof. Asare suggested that where a lawyer’s planned vacation conflicts with a scheduled criminal trial, the existing judicial process provides an avenue for the lawyer to seek an adjournment.
The trial judge, he said, could then weigh the lawyer’s circumstances against the interests of the accused person, witnesses, the history of the case and the broader demands of justice.
Such an approach, he argued, would allow individual circumstances to be considered without automatically bringing all criminal proceedings to a halt during the legal vacation.
“Fascinating Constitutional Questions”
Prof. Asare concluded that Mr Oppong Nkrumah had raised “fascinating constitutional questions” for the Supreme Court to consider.
However, he maintained that the alleged constitutional violations were not obvious from the provisions relied upon in the lawsuit.
He said the central issue should be whether the Chief Justice improperly exercised an existing discretionary power, rather than whether the Chief Justice had the power to direct courts to sit during the legal vacation in the first place.
Prof. Asare nevertheless wished the former Information Minister well in the case, ending his commentary with a light-hearted reference to their family relationship.
“After all, nephews must be encouraged,” he said.
