GOGO has sighted Writ No. J1/29/2026, issued by his nephew, Kojo Oppong Nkrumah, invoking the original jurisdiction of the Supreme Court over the Chief Justice’s (CJ) decision to have selected criminal trials continue during the legal vacation.

My nephew seeks, in substance, the following five reliefs:

1. THE WARRANTS ARE UNCONSTITUTIONAL

A declaration that the CJ’s warrants directing some judges to sit and conduct selected criminal trials during the legal vacation are inconsistent with Articles 17(1), 17(2), 23 and 296(a) and (b) of the Constitution and are therefore unconstitutional, null and void.

2. “SELECTIVE JUSTICE”

A declaration that promoting and facilitating the hearing of “special criminal cases” during the legal vacation, while allegedly neglecting other criminal cases, amounts to selective justice contrary to Article 17(1) and is therefore unconstitutional, null and void.

3. RIGHT TO HEALTH

A declaration that directing some judges to conduct selected criminal trials during the legal vacation violates the right to health of affected members of the Bar and Judicial Service, contrary to Articles 24(1), 24(2) and 36(10), and is therefore unconstitutional, null and void.

4. ORDER 79 RULE 1(1) OF C.I. 47 IS UNCONSTITUTIONAL BY CONFERRING DISCRETION ON THE CHIEF JUSTICE

A declaration that Order 79 Rules 1(1) and 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), to the extent that they permit the Chief Justice to select some cases for hearing during the legal vacation in the same manner as ordinary court sittings, are inconsistent with Articles 17(1), 17(2), 23, 24(1), 24(2), 36(10), 296(a) and (b), and are therefore unconstitutional, null and void.

5. CONSEQUENTIAL ORDERS

Any other orders or directions the Supreme Court considers appropriate to give effect to the declarations sought.

GOGO is not a Supreme Court Judge, but makes the following observations, starting with the constitutional provisions invoked by his nephew.

ARTICLE 17 — EQUALITY AND FREEDOM FROM DISCRIMINATION

17(1): All persons shall be equal before the law.

17(2): A person shall not be discriminated against on grounds of gender, race, colour, ethnic origin, religion, creed or social or economic status.

ARTICLE 23 — ADMINISTRATIVE JUSTICE

Administrative bodies and officials must act fairly and reasonably, comply with the requirements imposed on them by law, and persons aggrieved by their decisions have a right to seek redress.

ARTICLE 296 — EXERCISE OF DISCRETIONARY POWER

Where discretionary power is vested in a person or authority, it carries a duty to be fair and candid and must not be exercised arbitrarily, capriciously or with bias, resentment, prejudice or personal dislike. It must be exercised in accordance with due process of law.

ARTICLE 24 — ECONOMIC RIGHTS

Article 24(1) guarantees every person the right to work under satisfactory, safe and healthy conditions.

Article 24(2) assures every worker of rest, leisure, reasonable limitation of working hours and periods of holidays with pay.

ARTICLE 36(10) — ECONOMIC OBJECTIVES

The State must safeguard the health, safety and welfare of persons in employment and establish the basis for the full deployment of the creative potential of Ghanaians.

Having read these provisions, GOGO struggles to see the constitutional violations alleged.

FIRST, WHERE IS THE VIOLATION OF ARTICLES 23 AND 296?

The CJ has directed selected judges to sit during the legal vacation. They are to hear motions and other applications that ordinarily would have gone to other courts and to continue hearing their own cases.

Article 23 requires administrative officials to act fairly, reasonably and according to law. Article 296 requires discretionary power to be exercised fairly and candidly, and not arbitrarily, capriciously or with bias.

⍰ Exactly what about directing judges to continue pending criminal trials is, without more, unfair, unreasonable, arbitrary, capricious or biased?

⍰ Which judge was selected because of resentment, prejudice or personal dislike?

⍰ Which accused person was selected on an improper basis?

⍰ What requirement of law did the Chief Justice disregard?

The fact that the exercise of discretionary power affects different people differently does not establish that the discretion was exercised arbitrarily. Otherwise, almost every exercise of administrative discretion would be unconstitutional.

Indeed, the very nature of judicial administration requires choices about which courts sit, which judges hear which cases, which matters receive priority and which cases require urgent attention.

There must surely be something more than “some judges were selected to hear some cases” to establish a violation of Articles 23 and 296.

More fundamentally, before continuing a criminal trial during August and September can become unconstitutional, someone must first show us the law that says the trial should have stopped.

SECOND, EQUALITY BEFORE THE LAW DOES NOT MEAN EVERY CASE MUST BE TREATED IDENTICALLY

Relief 2 describes the hearing of selected criminal cases as “selective justice” contrary to Article 17(1). But Article 17(1) says:

“All persons shall be equal before the law.”

It does not say that every case must be heard on the same day, at the same speed, by the same judge or according to an identical timetable.

Courts differentiate among cases every day. A remand prisoner may require greater urgency than an accused person on bail. A part-heard trial may be continued because a witness is available.

A case may be expedited because of its age. Another may require urgent attention because delay threatens the administration of justice.

Equality before the law does not prohibit rational differentiation in judicial case management. What it prohibits is constitutionally impermissible discrimination.

And Article 17(2) identifies prohibited grounds such as gender, race, colour, ethnic origin, religion, creed and social or economic status.

Which of these grounds is implicated by the warrants?

If the complaint is simply that Case A is being heard during vacation while Case B is not, that fact alone does not establish unconstitutional discrimination. If anything, insisting that materially different cases must all receive identical scheduling treatment could itself impair sensible judicial administration.

THIRD, ARTICLES 24 AND 36(10) DO NOT CREATE A TWO-MONTH CONSTITUTIONAL VACATION

Relief 3 may be the most interesting. Article 24(1) guarantees satisfactory, safe and healthy working conditions. Article 24(2) guarantees rest, leisure, reasonable limitations on working hours and periods of holidays with pay. Article 36(10) requires the State to safeguard the health, safety and welfare of persons in employment.

All very important protections.

But none says: No judge shall sit in August or September; No lawyer shall be required to appear in a criminal trial during the legal vacation; or A criminal trial must be suspended for two months so that members of the Bar can enjoy their holidays.

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.

Judges and lawyers can take leave at different times while the courts remain open, as happens in countless institutions that operate throughout the year.

There is something remarkable about the assumption that lawyers in private practice are entitled to take their vacations in a manner that halts High Court criminal trials.

Where does that entitlement come from?

And there is another party whose constitutional interests cannot disappear from the equation:

The accused person. Some accused persons are sitting in custody. Their liberty is at stake. It would be an extraordinary reading of the Constitution if the right of a lawyer or judge to rest meant that an accused person's trial must automatically stop for two months.

FOURTH, WHAT EXACTLY IS UNCONSTITUTIONAL ABOUT ORDER 79 RULE 1(1)?

Order 79 Rule 1(1) of C.I. 47 provides that, subject to the Courts Act, the Chief Justice may appoint “any day including vacations for the hearing of causes or matters as circumstances require.”

Rule 2 provides that the sittings of the Court shall be for such hours as the Chief Justice shall direct.

What exactly is unconstitutional about that?

The rule merely confers discretion on the CJ to keep the courts functioning when circumstances require. Indeed, Articles 23 and 296 themselves recognize that public officials will exercise discretionary power.

Their command is not "Thou shalt have no discretion.” Their command is that discretion must be exercised fairly, reasonably and candidly, without arbitrariness, caprice or bias, and according to law. So the constitutional question should be whether the discretion was improperly exercised, not whether discretion may exist at all.

And there is an additional difficulty.

C.I. 47 is the High Court (Civil Procedure) Rules, 2004. The warrants under attack 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.

FIFTH, THE RELIEFS ARE CURIOUSLY SILENT ON ACT 30

The Criminal and Other Offences (Procedure) Act, 1960 (Act 30) regulates the conduct and adjournment of criminal proceedings.

Sections 168, 169 and 241 immediately come to mind. Section 168 contemplates the court proceeding to hear the case when the prosecutor and accused appear. Section 169 regulates adjournments and places limits on them. Section 241 similarly contemplates postponement or adjournment of trials on indictment for reasonable cause and for a reasonable period.

So the statutory scheme appears to treat an adjournment as a judicial decision requiring justification, not as an automatic consequence of the calendar reaching August.

If Parliament has regulated when criminal proceedings may be adjourned, the obvious question is where does an automatic two-month suspension of pending criminal trials come from?

And if counsel has planned a vacation that conflicts with a scheduled criminal trial, there is already a perfectly ordinary judicial mechanism for dealing with that situation. Apply to the trial judge for an adjournment and show reasonable cause.

The judge can consider counsel's circumstances together with the rights of the accused, whether the accused is in custody, the interests of witnesses, the history of the case and the demands of justice. That is judicial discretion.

It is very different from declaring that the entire criminal justice system must recognize an enforceable two-month holiday.

SIXTH, WHAT ABOUT THE ACCUSED PERSON'S ARTICLE 19(1) RIGHT?

There is another constitutional provision conspicuously absent from the reliefs. Article 19(1) provides "A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.”

That person also has constitutional rights. So even assuming that Articles 24 and 36 protect the legitimate interests of judges and workers in rest, leisure, health and holidays, those provisions cannot be read in isolation from Article 19(1).

The Constitution does not say that an accused person must receive a fair hearing within a reasonable time except during August and September.

This becomes particularly important for accused persons in custody. Every unnecessary adjournment means additional time during which a person who has not been convicted remains deprived of liberty.

The Constitution therefore presents no obvious conflict between the CJ keeping criminal courts functioning during the vacation and constitutional rights.

Quite the contrary. Continuing criminal trials may itself advance the constitutional command that criminal cases be heard within a reasonable time. A lawyer's right to rest cannot automatically become an accused person's duty to wait.

My nephew has therefore presented Their Lordships with some fascinating constitutional questions.

GOGO wishes him the very best of luck. After all, nephews must be encouraged.

But "dura lex, sed lex" (the law is hard, but it is the law).

PS: Yɛde post no bɛto hɔ. Yɛnyɛ comprehension consultants.