Until this year, legal vacation has not been an issue in Ghana.
It has been observed without any issues at all.
However, the trial of certain individuals perceived to be politically aligned has generated a hue and cry with diverse opinions being proffered.
And at the time of writing, some individuals are said to have initiated action at the Supreme Court seeking interpretation about the constitutionality or otherwise of the Chief Justice’s directive that prosecution of certain criminal cases should continue during the legal vacation.
Caveat: This piece is without prejudice to the cases at the Supreme Court.
Every year, as Ghana enters August, the courts of the land enter what is commonly described as the “legal vacation”.
For lawyers, judges and court officials, it is an established feature of the judicial calendar.
For litigants, accused persons and members of the public waiting for justice, however, it raises a more fundamental question: can justice itself afford to take a vacation?
The answer requires a distinction between the legality of legal vacation and the extent to which vacation may legitimately restrict the work of the courts.
There is little doubt that legal vacation, as an institution, has a statutory foundation.
Its constitutional foundation stems from Article 157 of the 1992 Constitution, which establishes the Rules of Court Committee and requires it to make rules and regulations regulating the practice and procedure of all courts in Ghana.
Similarly, Section 80(2)(g) of the Courts Act, 1993 (Act 459), expressly empowers the Rules of Court Committee to make rules “for regulating the sittings of the courts and prescribing the periods of the vacations of the courts.”
From the above, therefore, it would be difficult to sustain the argument that legal vacation is, in itself, unlawful.
The first misconception is that when the courts go on vacation, the judicial system simply shuts down.
That cannot be the correct constitutional understanding. The courts remain institutions created by the Constitution and by law.
Judges do not cease to be judges, and the jurisdiction of the courts does not disappear because the calendar enters August.
Legal vacation is better understood as a mechanism for regulating the ordinary business and sittings of the courts. It should not be confused with a suspension of judicial power.
That distinction becomes particularly important where an urgent matter requires judicial intervention.
A person’s liberty, property, constitutional rights or other legal interests cannot logically depend exclusively on whether the calendar says that the courts are “on vacation”.
The more difficult issue concerns criminal proceedings. Article 19(1) of the Constitution provides that a person charged with a criminal offence must be given a fair hearing within a reasonable time by a court.
This is not merely an administrative aspiration. It is a constitutional guarantee.
The question therefore arises: can the administrative convenience of a judicial vacation justify postponing the determination of a criminal case for weeks or months?
Answer
The answer cannot simply be yes. The High Court (Civil Procedure) Rules, 2004 (C.I. 47), from which much of the traditional legal vacation framework is derived, principally regulate civil proceedings. Order 79 of C.I. 47 contains the relevant provisions on legal vacation.
The Judiciary currently identifies three vacation periods as: Christmas: 23 December – 6 January; Easter: Tuesday after Easter Monday – following Saturday; and the Long Vacation: 1 August – 30 September.
The Christmas period was subsequently amended by C.I. 101 of 2016, demonstrating that the vacation arrangements operate through formal Rules of Court rather than merely through an informal administrative announcement.
C.I. 101 of 2016 is the High Court (Civil Procedure) (Amendment) Rules, 2016. What C.I. 101 changed.
The key amendment is to Order 79, rule 4 of C.I. 47, concerning the legal vacation/annual vacation of the courts. It substituted paragraph (c) with: “the period commencing on 24th December each year and ending on 6th January in the next year.”
Thus, under C.I. 101, the specified vacation period is 24 December to 6 January.
Since C.I 47 relates to purely civil matters, it would therefore require careful legal justification to use civil procedural rules as a blanket basis for suspending criminal proceedings.
Criminal proceedings have their own statutory framework, principally under the Criminal and Other Offences (Procedure) Act, 1960 (Act 30).
Consequently, legal vacation should not be treated as an automatic legal prohibition against the continuation of criminal proceedings.
An accused person should not become a victim of the calendar.
Consider the position of an accused person who has been charged with a serious offence.
He may have been granted bail but required to report periodically to the police. He may be unable to travel freely.
If he is in custody, the consequences are even more dire.
Every additional adjournment potentially extends the period during which he remains deprived of his liberty.
To my mind, the Constitution does not say that the right to a hearing within a reasonable time applies only when the courts are sitting outside vacation.
The constitutional guarantee is continuous.
This does not also mean that every criminal case must necessarily be heard during vacation.
Interest
The State also has an interest in speedy justice and hence the decision to continue the prosecution of some cases as indicated already.
A victim of fraud, assault, corruption or any other serious offence may wait years for the conclusion of proceedings.
Witnesses may relocate or die. Memories may fade. Documents may disappear. Public confidence in the justice system may diminish.
There are, nevertheless, legitimate reasons for retaining a period of judicial vacation.
As indicated supra, Judges need rest.
Lawyers need rest.
Court staff need rest.
Judges also need time to write judgments, review cases, undertake research and participate in judicial education. Court administrators need time to reorganise files and address institutional issues.
These could be done during legal vacation.
Legal vacation can therefore serve an important purpose for the above stated causes to be addressed.
The problem is not the existence of vacation. The problem arises if vacation becomes synonymous with inactivity.
Capable
A modern judicial system should be capable of allowing judges and lawyers to take leave while ensuring that essential judicial work continues.
Ghana should consider moving from a rigid concept of “court vacation” to a system of staggered judicial leave and continuous justice.
Under such a system, judges would still take appropriate periods of leave, but sufficient judicial capacity would remain available throughout the year.
Certain categories of cases should receive priority during vacation.
These include criminal trials involving persons in custody; constitutional and fundamental-rights applications; urgent injunctions; habeas corpus applications; matters involving the preservation of property; cases subject to statutory time limits; and other proceedings where delay would cause substantial prejudice.
The objective should not be to keep every judge sitting throughout the year.
Rather, it should be to ensure that the judicial system never effectively closes its doors to justice.
It must be noted also that rules of procedure cannot override the Constitution.
This is perhaps the most important constitutional principle.
The Courts Act itself makes the rule-making power subject to the Constitution.
Therefore, if a rule or administrative practice concerning legal vacation were applied in a manner that undermined a constitutional right, the constitutional requirement would prevail.
In the criminal context, Article 19’s guarantee of a hearing within a reasonable time must remain central to the administration of justice.
Better question
The debate should therefore not be framed as: “Is legal vacation illegal?” That is too simplistic.
The better question should be: “To what extent can legal vacation restrict the exercise of judicial jurisdiction without undermining constitutional rights and the statutory duties of the courts?”
That is a much more serious question and the answer should recognise two competing realities: judges and lawyers need reasonable periods of rest, but litigants and accused persons cannot be expected to suspend their constitutional rights while the legal profession takes a break.
Ghana’s legal vacation has a legitimate statutory foundation. It is not, merely because it exists, an unlawful institution.
The real test of legal vacation is whether it promotes or frustrates the administration of justice.
A judicial system must protect the welfare and effectiveness of judges and court personnel.
But it must equally protect the constitutional rights of litigants, accused persons and victims.
Ghana therefore needs a modern conversation about legal vacation not necessarily to abolish it or declare it illegal, but to sustain it and devoid of politics.
Judges may need a vacation.
Lawyers may need a vacation.
Court staff may need a vacation.
But justice should never be on vacation.
