Professor Kwaku Asare has challenged the constitutional basis of a lawsuit filed by former Education Minister Kojo Oppong Nkrumah over the Chief Justice’s decision to allow selected criminal trials to continue during the legal vacation.

Prof Asare, popularly known as Kwaku Azar, questioned whether the Chief Justice’s directive to selected judges to sit during the vacation amounts to a violation of constitutional rights, as alleged by Mr Oppong Nkrumah.

Mr Oppong Nkrumah has invoked the original jurisdiction of the Supreme Court in Writ No. J1/29/2026, seeking declarations that the Chief Justice’s warrants are unconstitutional.

Among other things, he argues that allowing selected criminal cases to proceed during the legal vacation amounts to unequal treatment and violates constitutional protections on equality, administrative justice, workers’ rights and the exercise of discretionary power.

But in a detailed commentary, Prof Asare said he struggled to identify the alleged constitutional violations.

He questioned what about the Chief Justice’s decision to direct some judges to continue hearing criminal cases could, without more, be considered unfair, unreasonable, arbitrary, capricious or biased under Articles 23 and 296 of the Constitution.

“Exactly what about directing judges to continue pending criminal trials is, without more, unfair, unreasonable, arbitrary, capricious or biased?” he asked.

Prof Asare said the fact that the exercise of discretion affects different people differently does not, by itself, establish that the discretion was exercised arbitrarily.

He noted that judicial administration routinely involves decisions on which courts sit, which judges hear particular cases and which matters 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 argued.

Prof Asare also challenged Mr Oppong Nkrumah’s argument that continuing selected criminal cases during the vacation amounts to “selective justice”.

He said the constitutional guarantee that all persons are equal before the law does not require every case to be heard at the same time, at the same speed or according to an identical timetable.

According to him, courts routinely differentiate between cases based on factors such as the age of a case, whether an accused person is in custody, the availability of witnesses and the potential consequences of delay.

“Equality before the law does not prohibit rational differentiation in judicial case management,” he said.

Prof Asare further questioned which constitutionally prohibited ground of discrimination under Article 17 was implicated by the Chief Justice’s decision.

He argued that simply showing that one case is being heard during the legal vacation while another is not does not establish unconstitutional discrimination.

On the argument that the Chief Justice’s directive violates the right to rest, leisure and holidays, Prof Asare said Articles 24 and 36(10) do not create a constitutional entitlement for judges and lawyers to have August and September free from court proceedings.

He acknowledged that Article 24 guarantees workers satisfactory, safe and healthy working conditions, as well as rest, leisure, reasonable limitations on working hours and periods of holidays with pay.

However, he said those provisions do not stipulate that courts must suspend criminal trials for two months.

“A right to rest is not a right for everybody to rest simultaneously,” Prof Asare said.

“A right to holidays is not a constitutional entitlement to August and September.”

He also questioned whether the interests of lawyers and judges could be considered without taking into account the constitutional rights of accused persons.

Prof Asare pointed to Article 19(1) of the Constitution, which guarantees a person charged with a criminal offence a fair hearing within a reasonable time.

He argued that this provision must be considered alongside the rights to rest and holidays being relied upon in the suit.

According to him, an accused person—particularly one in custody—could be prejudiced by unnecessary delays in criminal proceedings.

“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.

Prof Asare therefore argued that keeping criminal courts functioning during the legal vacation could, in fact, advance 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 questioned the challenge to Order 79 Rule 1(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47).

The rule allows the Chief Justice, subject to the Courts Act, to appoint any day, including during vacations, for the hearing of causes or matters as circumstances require.

Prof Asare said the provision merely gives the Chief Justice discretion to keep the courts functioning where necessary.

He argued that Articles 23 and 296 of the Constitution recognise the existence of discretionary powers and regulate how those powers should be exercised rather than prohibit discretion altogether.

“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 question over the reliance on C.I. 47, noting that the rules cited in the suit are the High Court (Civil Procedure) Rules, while the warrants under challenge concern criminal trials.

“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 further 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 requiring justification rather than an automatic consequence of the legal vacation.

He suggested that where a lawyer’s planned vacation conflicts with a scheduled criminal trial, the existing judicial process provides an avenue to seek an adjournment.

The trial judge, he said, could then weigh the lawyer’s circumstances against the interests of the accused, witnesses, the history of the case and the broader demands of justice.

Prof Asare concluded that Mr Oppong Nkrumah had raised “fascinating constitutional questions” but maintained that the alleged violations were not obvious from the constitutional provisions cited.

He wished the former minister well in the case, adding a light-hearted reference to their family relationship.

“After all, nephews must be encouraged,” he said.