“Unless We Are All Missing Something…” — Joyce Bawa Mogtari Challenges GBA President Over Lawyers’ Vacation Work

Presidential Adviser Joyce Bawah Mogtari, Esquire has questioned the concerns raised by the Ghana Bar Association (GBA) over the conduct of court proceedings during Ghana’s legal vacation, asking whether lawyers are actually being forced or compelled to work during the period.

“Unless we are all missing something…. Who says that Lawyers are being forced or compelled to work during the vacation period…?” Mogtari asked.

Her comments come against the backdrop of a formal communication from the National President of the Ghana Bar Association, Mrs. Efua Ghartey, to the Judiciary concerning the observance of legal vacations.

The GBA’s intervention followed petitions brought to its attention by Zoe, Akyea & Co, Dame & Partners and Sam Okudzeto & Associates. According to the Association, the law firms had expressed displeasure over notices served on them pursuant to warrants issued to specific judges to continue with part-heard criminal cases during the legal vacation.

The GBA President pointed specifically to Order 79, Rule 4 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), which provides for three vacations in the legal year. She noted that the second vacation, which is the longest, runs from August 1 to September 30.

Mrs. Ghartey argued that the legal vacation exists to give lawyers, judges and judicial staff a deserved period of rest following the demanding court schedule, particularly after the second term of the legal year.

She acknowledged that certain courts are traditionally designated as Vacation Courts to deal with emergencies during the recess, but maintained that their scope has historically been limited.

According to the GBA, Vacation Courts generally deal with emergency and interlocutory matters and do not ordinarily conduct trials. The Association also noted that virtual courts now operate during the vacation but, similarly, should operate within the established scope of Vacation Court proceedings.

The critical point in the GBA’s argument, however, is the position that lawyers should not be compelled to appear before a Vacation Court.

“The overriding consideration in any matter brought before a Vacation Judge has always been the willingness/availability of Counsel to appear before the Court,” Mrs. Ghartey stated.

She was even more emphatic in stating that:
“Counsel are not under any compulsion whatsoever to appear before a Vacation Court.”

The GBA President further argued that once counsel indicates an inability to attend court during the vacation, the matter should not proceed, even if it has already been listed.

She maintained that where counsel for either side or both sides indicate their inability to proceed, the judge should not take further steps in the matter apart from adjourning it to dates proposed by counsel.

The Association also raised concerns about litigants being compelled to represent themselves because their lawyers are unavailable during the legal vacation.

“Innocent parties in a trial, civil or criminal ought not be coerced by a Judge to represent themselves as the absence of a Lawyer is not considered willful during a Legal Vacation,” Mrs. Ghartey stated.

The GBA warned that any attempt to proceed otherwise, “with or without a warrant,” could create the impression of bias or selective justice.

Mrs. Ghartey also highlighted the workload lawyers have faced, including extended office hours and the introduction of afternoon court sittings during the current legal term.

“Vacations, per the Rules of Court ought to be observed as such,” she stressed.

The Association said it had also received information that several lawyers had already scheduled written submissions, engagements in other jurisdictions, conferences and other professional commitments during the vacation. Some law firms, it added, had closed for the entire vacation period.

Mrs. Ghartey therefore linked the issue to professional well-being and work-life balance.

“Lawyers are personally responsible for their well being and they have to maintain a healthy work-life balance. Duly earned vacations must therefore, not be tampered with,” she stated.

The GBA nevertheless reaffirmed its cooperation with the Judiciary in ensuring the smooth and speedy administration of justice and expressed confidence that the petitions brought before the Association would receive favourable consideration.

Against this background, Joyce Bawa Mogtari’s intervention raises an important distinction.

The GBA does not merely appear to be arguing that lawyers should not work at all during the legal vacation. Rather, its written position specifically challenges the compulsion of counsel to appear before Vacation Courts, particularly in circumstances where counsel has indicated unavailability.

Mogtari’s question therefore goes to the heart of the controversy: Is there an actual directive compelling lawyers to work during the legal vacation, or is the GBA objecting to particular court processes that, in its view, effectively require counsel (of accused person/s) to forcefully participate despite their stated unavailability?

The answer could determine whether the disagreement is fundamentally about the existence of legal vacation, the permissible scope of Vacation Courts, or the circumstances under which counsel may be required to participate in proceedings during the recess.

With the GBA President’s formal letter now placing its position on record, the debate is likely to attract further attention from the Judiciary, the legal profession and the wider public.

For the GBA, the matter is ultimately about preserving what Mrs. Ghartey described as the “entrenched, sacred and treasured traditions relating to legal vacations.”

For Mogtari, however, the immediate question appears simpler: who, exactly, is compelling lawyers to work?

The developing exchange could therefore become an important test of how Ghana’s legal vacation is interpreted and administered in practice.

A simple search of the question, “Did the court system in Ghana hear cases during the legal vacation between 2017 and 2024?” would establish an important point: yes, the courts in Ghana continued to hear cases and conduct judicial proceedings during periods of legal vacation.

Legal vacation does not mean a total shutdown of the judicial system. Rather, it is a period during which the regular sittings of certain superior courts are regulated, while arrangements are made for the hearing of urgent applications and other matters that require judicial attention.

In Ghana, the legal vacation, which generally runs from 1 August to 30 September, applies principally to the superior courts—the Supreme Court, Court of Appeal and High Court. It does not mean that these courts become completely inactive during the period.

The lower courts, including the District and Circuit Courts, do not observe the superior courts’ legal vacation in the same manner and generally continue to sit throughout the year.

More importantly, the judiciary makes arrangements for vacation judges to sit during the legal vacation. These judges may hear urgent applications, motions and other matters permitted under the applicable rules and judicial arrangements. Consequently, the administration of justice continues even during the vacation period.

The Judicial Service has also, over the years, utilised vacation sittings and, increasingly, virtual proceedings as mechanisms for ensuring that the legal vacation does not result in an absolute cessation of judicial work or an unnecessary accumulation of cases.

Therefore, it is important to distinguish between legal vacation and a judicial shutdown. The former regulates the ordinary sittings of the superior courts; it does not suspend the constitutional and statutory responsibility of the judiciary to administer justice.

This distinction is equally relevant when discussing lawyers’ professional obligations during the legal vacation. The fact that the courts are on legal vacation does not, without more, establish that lawyers are prohibited from working, attending to clients, preparing cases, filing documents, negotiating settlements, or appearing in matters that are properly listed for hearing during the vacation period.

Indeed, if vacation judges are available to hear cases and the courts continue to exercise judicial functions, there must necessarily be lawyers, litigants and other legal practitioners participating in those proceedings.

Accordingly, any claim that “legal vacation” means that the entire justice system—and by extension all legal work—must come to a complete standstill would be an overstatement. The more accurate legal position is that legal vacation regulates the ordinary judicial calendar while preserving the capacity of the courts to deal with matters that require determination during that period.

The real question, therefore, should not simply be whether Ghana has a legal vacation. It should be what the applicable rules, judicial directives and professional arrangements actually permit or require during that period. That is the proper basis upon which any debate about lawyers working during legal vacation should be determined.

I will soon be a lawyer. Watch out!

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