Legal vacation trials: ‘Where is the constitutional violation?’ – Prof Azar quizzes Oppong Nkrumah
Legal scholar and social commentator Professor Stephen Kwaku Asare, popularly known as Prof Kwaku Azar, has questioned the constitutional arguments in a suit filed by Ofoase Ayirebi MP Kojo Oppong Nkrumah challenging the decision to hear selected criminal cases during the legal vacation.
Oppong Nkrumah has sued Chief Justice Paul Baffoe-Bonnie and the Attorney-General at the Supreme Court, arguing that the directive for some judges to sit during the vacation is unconstitutional.
In the suit filed on Friday, August 14, the MP is seeking declarations that the Chief Justice's decision violates Articles 17, 23, 24 and 296 of the 1992 Constitution, among other provisions.
However, in a lengthy social media post on Friday, Prof Azar said he was struggling to identify the alleged constitutional breaches after reviewing the provisions relied on in the suit.
Prof Azar questioned how the decision to have selected judges continue pending criminal trials could, without more, amount to an infringement of Articles 23 and 296.
He said Article 23 requires administrative officials to act fairly, reasonably and according to law, while Article 296 requires discretionary powers to be exercised fairly and without arbitrariness, caprice or bias.
According to him, the mere fact that some judges have been selected to sit during the vacation does not establish that the Chief Justice exercised his discretion improperly.
He also rejected the argument that hearing some criminal cases during the vacation automatically amounts to “selective justice” under Article 17 of the Constitution.
Prof Azar said equality before the law does not require every case to be heard at the same time or according to an identical timetable.
“Equality before the law does not prohibit rational differentiation in judicial case management. What it prohibits is constitutionally impermissible discrimination,” he said.
The legal scholar further questioned the reliance on Articles 24 and 36(10), which relate to workers' rights to satisfactory and healthy working conditions, rest and the protection of their health, safety and welfare.
Prof Azar argued that neither provision creates a constitutional requirement for courts to suspend criminal trials for the entire legal vacation.
He said a right to rest or holidays does not necessarily mean that judges and lawyers must take their leave at the same time or that court proceedings must automatically stop.
The legal scholar also raised concerns about the reliance on Order 79 Rules 1(1) and 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).
He noted that the rules empower the Chief Justice to appoint days, including vacation periods, for the hearing of cases as circumstances require.
According to Prof Azar, the constitutional issue should therefore be whether the Chief Justice exercised the discretion improperly rather than whether the rules permit such discretion.
Prof Azar stressed continuing selected criminal trials during the legal vacation could, in some circumstances, advance rather than undermine constitutional rights by helping cases to be determined within a reasonable time.