Laziness Or Delay Tactics: When Legal Principle Meets Political Memory

Politics has a notoriously short memory. The law, however, has a habit of keeping records.

The current debate over court proceedings during Ghana’s legal vacation has produced a particularly striking moment of political memory, following remarks attributed to Hon. Samuel Atta Akyea, now a former Attorney-General and Minister for Justice, concerning the propriety of lawyers and courts operating during the legal vacation.

Hon. Rockson-Nelson Dafeamekpor has responded by pointing to an episode from January 2009 that raises an obvious question: can a lawyer who once participated in an urgent court proceeding convened on a public holiday now credibly portray court attendance outside ordinary periods as inherently improper?

The historical record is difficult to ignore.

On Thursday, 1 January 2009 — New Year’s Day and a statutory public holiday — Samuel Atta Akyea appeared before the Accra Fast Track High Court as counsel for the New Patriotic Party and its National Chairman, Peter Mac Manu.

The circumstances were extraordinary.
The 2008 presidential election had gone into a runoff between Nana Addo Dankwa Akufo-Addo and John Evans Atta Mills. The results were extremely close, while voting in the Tain Constituency had been postponed to 2 January 2009. The outcome of that constituency had the potential to affect the presidential contest.

Against that backdrop, Atta Akyea and Mrs Irene Addo filed an ex-parte application on 31 December 2008 seeking an interim injunction relating to the Electoral Commission’s declaration of the presidential results.

The urgency was obvious. The Tain election was imminent.

The then Chief Justice, Georgina Theodora Wood, authorized a special sitting, and Justice Edward Amoako Asante heard the application on New Year’s Day.

The judge ultimately declined to allow the matter to proceed ex parte, directing that the relevant parties be served and given an opportunity to respond before the substantive hearing.

But the episode established something that remains relevant to today’s debate: Ghana’s courts have never been entirely incapable of sitting outside conventional working periods when circumstances require urgent judicial intervention.

Indeed, the argument attributed to Atta Akyea at the time was emphatic:

“Order 79 of CI 47 has always empowered the Chief Justice to empanel Court any day, any day.”

That statement deserves to be remembered whenever the legal-vacation debate is presented as though the judiciary simply closes its doors for an extended holiday.

It does not.
Legal vacation is not synonymous with judicial paralysis. It is a period governed by specific rules and administrative arrangements, while the judicial system retains the capacity to deal with matters that require urgent attention. The distinction between routine scheduling and exceptional proceedings is therefore critical.

And this is where the present political controversy becomes interesting.

If the principle is that courts should not sit during vacation under any circumstances, then the 2009 episode presents an uncomfortable historical counterexample.

But if the principle is that courts may sit during vacation when authorized under the applicable rules and where circumstances justify it, then the argument must be about the proper scope and administration of such sittings — not about pretending that vacation means judicial hibernation.

That distinction matters.
There is nothing inherently wrong with lawyers questioning the conditions under which legal vacation proceedings are conducted. Lawyers are entitled to raise concerns about workload, professional obligations, scheduling, remuneration and the administration of justice.

What becomes problematic is turning a legitimate administrative debate into an absolute proposition that ignores the established capacity of the courts to convene when circumstances demand.

The 2009 case is particularly revealing because the urgency was not abstract. A presidential election was hanging in the balance. The Tain poll was imminent. The possibility of a declaration of results created an immediate constitutional and electoral concern.

In such circumstances, insisting that the court simply wait until ordinary proceedings resumed would potentially have defeated the very purpose of judicial intervention.

That is precisely why procedural rules exist: to provide mechanisms through which the administration of justice can respond to exceptional circumstances.

Hon. Dafeamekpor’s intervention therefore touches a larger question.

Should Ghana’s legal profession debate vacation practice on the basis of principle, or should the debate become another arena for partisan selective memory?

The answer should be obvious.
The same legal standards should apply regardless of which political party is in government, which lawyer is appearing in court, and whose interests are before the judge.

If a special sitting was legally permissible in January 2009 because circumstances demanded urgency, the relevant question today should not be whether courts can ever sit during vacation. The question should be whether the applicable rules have been properly invoked, whether the Chief Justice has the requisite authority, and whether the particular matter genuinely requires exceptional treatment.

That is a legal debate worth having.
Political revisionism is not.
The irony is difficult to miss: a lawyer who once argued that Order 79 empowered the Chief Justice to “empanel Court any day, any day” now finds his historical position being brought back into the public conversation.

Perhaps the lesson is simple.
In law, yesterday’s principle does not become today’s nuisance merely because the political circumstances have changed.

And when politicians and lawyers debate the rules of the court, the record matters.

The courts should remain open when justice requires them to be open. They should remain disciplined by law when extraordinary sittings are invoked. And lawyers — whether in government or opposition — should be judged by the same standard they demand from everyone else.

That is not partisan politics.
That is the rule of law.
What is rule of law?
Michael Agbesi Kelly