AG Rejects GBA Claim That Legal Vacation Shuts Courts

The Attorney General’s Department has rejected the Ghana Bar Association’s challenge to the issuance of warrants for judges to sit during the legal vacation, insisting that Ghana’s court rules expressly permit judicial proceedings to continue during the recess. In a Facebook post on Tuesday, August 11, the Deputy Attorney General and Minister of Justice, Dr. Justice Edem Srem Sai relied on Order 79 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) to argue that the legal vacation is not synonymous with the closure of the courts. The response follows concerns raised by the Ghana Bar Association on Monday, August 10, over the practice of issuing warrants for judges to conduct court business during the legal vacation.

According to the Deputy Attorney General, Order 79, Rule 1(1) expressly gives the Chief Justice the authority to appoint any day, including days falling within the legal vacation, for the hearing of cases or matters where circumstances require. The provision states that, subject to the Courts Act, 1993 (Act 459), as amended, the Chief Justice “may appoint any day including vacations for the hearing of causes or matters as circumstances require.” He therefore contends that the existence of designated vacation periods under the rules does not mean that court proceedings must automatically come to a halt.

Justice Sai further pointed to Rule 4 of Order 79, which sets out the periods to be observed as vacations in the High Court. The rule identifies three principal vacation periods: the period immediately following Easter Monday; August 1 to September 30; and December 23 to January 6 of the following year. However, Rule 4 is expressly made subject to Rule 1(1), which gives the Chief Justice discretion to make arrangements for hearings during such periods. He noted that this qualification is significant because it means the vacation timetable cannot be interpreted independently of the Chief Justice’s power to direct that judicial work should continue when circumstances warrant it. The rules, it argued, consequently provide a legal mechanism for judges to undertake judicial work during periods designated as vacations.

Addressing arguments that an established convention prevents courts from sitting during legal vacation, the Department said any such convention would have to meet established requirements before it could be treated as legally binding. It argued that the existence of a convention is fundamentally a question of fact that must be demonstrated by evidence of both consistent practice and opinio juris—the belief that the practice is followed because it is legally obligatory, rather than merely because it is convenient or customary. The Department said the practice surrounding legal vacations does not support the existence of such a binding convention. It pointed to what it described as a longstanding practice by successive Chief Justices of issuing vacation warrants to judges, enabling them to conduct trials and other court proceedings during the designated recess. According to the Department, that history of judicial work being authorised during vacations undermines the claim that there is a binding convention requiring courts to remain inactive throughout the recess.

The Deputy Attorney General also advanced a broader legal argument, maintaining that even an established convention could not be used to override an express statutory or procedural provision. He identified that the governing legal provision in this case is Order 79 of C.I. 47, which expressly contemplates the hearing of cases during vacations where the Chief Justice considers it necessary. The Department therefore maintained that no alleged practice or convention could take precedence over the express wording of the rules. It also rejected any suggestion that lawyers or their professional associations possess the legal authority to determine whether judicial proceedings should continue during the vacation. “No law or practice gives a lawyer or our associations the power to determine whether court proceedings should go on,” Justice Sai Department argued.

The position advanced by the Attorney General’s Department is that the legal vacation should instead be understood as a period during which the normal court schedule is modified, rather than an absolute shutdown of the judiciary. While Order 79 provides for specific vacation periods, the same rules preserve the Chief Justice’s authority to ensure that cases requiring judicial attention can still be heard. The dispute consequently turns on the interpretation and application of the rules governing legal vacation, particularly the relationship between Rule 1(1) and Rule 4 of Order 79. At the centre of the Deputy Attorney General’s response is the contention that the Chief Justice’s power to authorize judicial work during vacation is not a departure from the law, but a power expressly recognized by the rules themselves.

The Department’s intervention adds a new dimension to the disagreement with the Ghana Bar Association, placing the focus on whether legal vacation should be regarded as a period of complete judicial inactivity or one in which court business may continue under arrangements authorized by the Chief Justice.

By: Joyce Owusu