A fierce legal debate has erupted over the status of Ghana’s judicial vacation, with US-based law professor Stephen Kwaku Asare challenging the Ghana Bar Association’s assertion that the two-month court recess is rooted in “black-letter law” — arguing instead that the GBA has repeatedly confused practice and convention with binding legal rules.
The controversy follows a series of petitions from law firms, including Zoe, Akyea & Co, Dame & Partners and Sam Okudzeto & Associates, after their lawyers were served with notices requiring them to appear before judges to continue part-heard criminal cases during the legal vacation — which runs from August 1 to September 30.
GBA’s position: ‘Time-honoured tradition’
In a letter to Chief Justice Paul Baffoe-Bonnie dated August 10, GBA President Efua Ghartey argued that the second and longest legal vacation is established under Order 79, Rule 4 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The GBA maintained that by long-standing convention, vacation courts are established only to handle emergencies — typically urgent interlocutory applications such as bail, injunctions or fundamental rights enforcement — and “never conduct full substantive trials”.
Crucially, the GBA insisted that lawyers cannot be compelled to appear before a vacation court when unavailable. “Counsel are not under any compulsion whatsoever to appear before a Vacation Court,” the association stated, warning that any attempt to proceed otherwise “will smack of bias or selective justice”. The GBA described the legal vacation as “sacred” and urged the Chief Justice to uphold what it called “time-honoured tradition”.
Professor Asare: ‘Familiarity is not a source of law’
But Professor Kwaku Asare, a Ghanaian legal scholar based in the United States and popularly known as Kwaku Azar, has dismantled the GBA’s argument point by point.
First, he argued that Order 79, Rule 4 of C.I. 47 — the rule the GBA cites — is part of the High Court (Civil Procedure) Rules, which by their very title govern civil procedure, not criminal trials. “Civil procedure rules do not govern criminal trials,” he said.
Second, Asare pointed out that the GBA’s reading of Rule 4 ignores Rule 1(1) of the same Order, which expressly qualifies the vacation provisions. Under Order 79, Rule 1(1), the Chief Justice may appoint any day, including days during vacation, for the hearing of matters.
Third, Asare challenged the GBA’s claim of a “mandatory” recess. “There is no black-letter law that says any of what you have written,” he said. “The central problem with the GBA’s argument is that it repeatedly converts practice and convention into law.”
Fourth, he rejected the notion that vacation courts may only hear emergencies or that substantive trials are forbidden. “Nor does it say that vacation courts may hear only emergencies, that substantive trials are forbidden, or that a criminal trial may proceed during vacation only with counsel’s consent,” he stated.
Fifth, on the question of counsel’s consent, Asare noted that while convention may explain how courts have ordinarily operated, “it does not answer what the law permits.” Describing the vacation as “sacred” cannot elevate convention into a legal entitlement capable of overriding an accused person’s constitutional right to the timely determination of a criminal charge. “The status quo may be familiar. Familiarity is not a source of law,” he said.
Finally, Asare addressed the work-life balance argument. “Nobody disputes that. That is why we all have personal leave time. But shutting down the trial system for two months in addition to personal leave?” He asked rhetorically: “Why don’t we shut down Newsfile for two months every year?”
A long-standing critic of judicial vacation
This is not the first time Asare has questioned Ghana’s legal vacation. He has long argued that the two-month recess has outlived its purpose and is unconstitutional on at least five grounds. He has consistently called for Ghana’s courts to sit throughout the year, with judges taking staggered leave while designated vacation judges maintain continuity. “Justice is an essential public service and should not be suspended for two months simply because it is judicial vacation,” he has said.
The cases that sparked the debate
The dispute was triggered by the continuation of criminal trials involving former National Food Buffer Stock Company CEO Hanan Abdul-Wahab and former National Signals Bureau Director-General Kwabena Adu-Boahen. Justice Francis Achibonga received authorisation from the Chief Justice to sit during the vacation, with proceedings scheduled for August 11 and 12. Lawyers for the accused petitioned the Chief Justice to reverse the warrants.
Other voices join the debate
Legal scholar and private legal practitioner Dr Srem-Sai has also challenged the GBA’s position, arguing that “lawyers cannot decide when courts sit” and that such decisions rest with the bench. Anti-corruption campaigner Vitus Azeem has called for an end to the annual long judicial vacation, arguing it delays justice delivery.
The Chief Justice’s office had not issued a public response at the time of publication.
