Professor Kwaku Asare has questioned the constitutional basis of a legal challenge brought by former Information Minister and Member of Parliament for Ofoase-Ayirebi, Kojo Oppong Nkrumah against the Chief Justice’s decision to allow selected criminal cases to proceed during the legal vacation. Prof Asare, popularly known as Kwaku Azar, said the allegations of unequal treatment, arbitrary exercise of discretion and infringement of workers’ rights were not, on their face, sufficient to establish a constitutional violation.
Mr Oppong Nkrumah has invoked the original jurisdiction of the Supreme Court in Writ No. J1/29/2026, challenging directives issued by the Chief Justice that permit selected judges to sit during the legal vacation to hear designated criminal cases. He contends, among other things, that the arrangement amounts to selective justice and violates constitutional protections relating to equality before the law, administrative justice, workers’ rights and the exercise of discretionary powers. But Prof Asare has questioned what precisely about the Chief Justice’s decision would make it unfair, unreasonable, arbitrary, capricious or biased within the meaning of Articles 23 and 296 of the 1992 Constitution. “Exactly what about directing judges to continue pending criminal trials is, without more, unfair, unreasonable, arbitrary, capricious or biased?” he asked.
He argued that the mere fact that the exercise of administrative or judicial discretion produces different outcomes for different people does not automatically mean that the discretion has been exercised unlawfully. According to him, judicial administration necessarily involves decisions about which courts should sit, which judges should hear particular matters and which cases should receive 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 said. Prof Asare also disputed the suggestion that allowing some criminal cases to proceed during the vacation necessarily amounts to selective justice. He said the constitutional principle of equality before the law does not require every case to be heard simultaneously or according to an identical timetable.
Courts, he noted, routinely distinguish between cases on legitimate grounds, 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 prohibited ground of discrimination under Article 17 of the Constitution was allegedly engaged by the Chief Justice’s directive. In his view, establishing that one case is being heard during the legal vacation while another is not does not, by itself, amount to unconstitutional discrimination. Prof Asare also challenged reliance on constitutional provisions concerning workers’ rights to rest, leisure and holidays.
He said Articles 24 and 36(10) guarantee important labour protections, including satisfactory and safe working conditions, reasonable limitations on working hours, rest, leisure and periods of holidays with pay. However, he maintained that those provisions do not create a constitutional requirement for the courts to suspend criminal proceedings during August and September. “A right to rest is not a right for everybody to rest simultaneously, a right to holidays is not a constitutional entitlement to August and September.” he stated. He said the argument must also take account of the constitutional rights of accused persons, particularly the guarantee under Article 19(1) that a person charged with a criminal offence should receive a fair hearing within a reasonable time. According to Prof Asare, unnecessary delays in criminal proceedings could prejudice accused persons, especially those being held in custody. “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.
He therefore suggested that keeping criminal courts operational during the vacation could, in appropriate circumstances, support rather than undermine the constitutional requirement for criminal cases to be determined within a reasonable time. “A lawyer’s right to rest cannot automatically become an accused person’s duty to wait,” he added. Prof Asare also examined the legal provision relied upon in the challenge, particularly Order 79 Rule 1(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The provision permits the Chief Justice, subject to the Courts Act, to appoint any day, including a day during the legal vacation, for the hearing of causes or matters where circumstances require it.
Prof Asare said the provision does not eliminate judicial discretion but instead recognizes and regulates it. He argued that Articles 23 and 296 of the Constitution similarly regulate the exercise of discretionary power rather than prohibit public officials from exercising discretion. “The constitutional question should be whether the discretion was improperly exercised, not whether discretion may exist at all,” he said. He also raised a procedural issue concerning the reliance on C.I. 47, pointing out that the rules cited in the challenge are the High Court (Civil Procedure) Rules, while the directives under scrutiny concern criminal proceedings. “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.
Prof Asare also drew attention to the Criminal and Other Offences (Procedure) Act, 1960 (Act 30), particularly provisions dealing with the continuation and adjournment of criminal proceedings. He said the statutory framework appears to treat adjournment as a judicial decision that requires consideration rather than as an automatic consequence of the legal vacation. Where a lawyer’s personal plans conflict with a scheduled criminal trial, he suggested that the appropriate course would be to apply to the trial judge for an adjournment. The judge, he said, could then balance the lawyer’s circumstances against the interests of the accused, witnesses, the history of the case and the wider interests of justice. Prof Asare nevertheless acknowledged that the case raises significant constitutional issues. He described the questions before the Supreme Court as “fascinating constitutional questions” but maintained that the alleged violations were not apparent from the constitutional provisions cited in the challenge.
The Supreme Court will ultimately determine whether the Chief Justice’s directives fall within the constitutional and statutory framework governing the administration of justice and the conduct of criminal proceedings during the legal vacation. Prof Asare concluded his commentary on a lighter note, referring to his family relationship with Mr Oppong Nkrumah. “After all, nephews must be encouraged,” he said.
By: Joyce Owusu
