US-based Ghanaian legal scholar Professor Stephen Kwaku Asare has rejected claims that the Chief Justice is selectively assigning certain cases to be heard during the judicial vacation, describing the impression as "simply false."

His comments come amid public debate over the decision to hear some high-profile criminal cases during the legal vacation, following objections by lawyers representing Abdul-Hanan Wahab and former National Signals Bureau Director-General Kwabena Adu-Boahene.

Read Also: Lawyers for Hanan Wahab, Adu-Boahene protest vacation trials in petition to Chief Justice

In a Facebook post on Thursday, August 6, Prof Asare explained that the designation of judges to sit during the judicial vacation is a long-established practice provided for under the rules governing the courts and does not amount to the Chief Justice handpicking cases for hearing.

"Some people are creating the impression that the Chief Justice has selectively chosen certain cases to be heard during the judicial vacation. That impression is simply false," he wrote.

According to Prof Asare, the Chief Justice merely designates certain judges to serve as vacation judges, but those appointments do not come with instructions to hear particular cases.

"As has long been the practice and is expressly permitted, the CJ designates certain judges to serve as vacation judges. Their appointment does not mean that they have been assigned special cases by the CJ."

Role of vacation judges

Prof Asare explained that judges assigned to sit during the legal vacation perform two primary functions.

First, they hear motions and other interlocutory applications in cases assigned to judges who are on leave, without taking over the substantive hearing of those matters.

Secondly, they continue to hear and manage cases already assigned to them.

"Vacation judges perform two functions. First, they hear motions and other interlocutory matters in cases assigned to judges who are away on judicial vacation… Second, they continue to hear and manage their own cases in the ordinary course."

He stressed that vacation judges exercise their own independent judicial discretion in every matter before them.

"In handling any matter, whether their own or a motion in another judge's case, vacation judges exercise their independent judicial discretion. They decide whether to adjourn, proceed, or make any other lawful order without direction from the CJ or anyone else."

Prof Asare added that judges who sit during the vacation do not forfeit their annual leave but rather take it at a later date.

When that happens, he noted, other designated vacation judges similarly deal only with urgent applications that may arise in those judges' cases.

"It follows that the CJ's designation of a judge as a vacation judge has no bearing whatsoever on how that judge manages or decides any case."

Lawyers have no entitlement to judicial vacation

The legal scholar also addressed concerns raised by some defence lawyers over vacation hearings.

While acknowledging that lawyers are free to arrange their own leave with clients, he maintained that they have no legal right to insist that court proceedings be suspended because of the judicial vacation.

"Lawyers serve their clients, not the Chief Justice or the State. While lawyers are free to arrange leave with their clients, they have no legal entitlement to a judicial vacation. The scheduling of court proceedings is ultimately a matter for the courts."

Calls for year-round sittings

Prof Asare also renewed his long-standing call for Ghana's courts to sit throughout the year instead of observing lengthy judicial vacations.

According to him, judges should take staggered annual leave while designated vacation judges ensure continuity in court operations.

"GOGO has consistently maintained that the long judicial vacation has outlived its usefulness. Trial courts should sit throughout the year, with judges taking staggered leave and vacation judges providing cover where necessary."

He argued that justice, as an essential public service, should not be effectively suspended for two months each year because of the judicial vacation.

"Justice is an essential public service and should not be suspended for two months simply because it is judicial vacation."

Background

Prof Asare's comments come after lawyers representing Abdul-Hanan Wahab and Kwabena Adu-Boahene separately petitioned the Chief Justice, objecting to the decision to hear their criminal cases during the judicial vacation.

The two legal teams, led by former Attorney-General Godfred Yeboah Dame and lawyer Samuel Atta Akyea, argued that commencing the trials during the vacation departs from long-standing judicial practice and informed the Chief Justice that they would not participate in proceedings scheduled during the vacation.

Their objections have fuelled public debate over the administration of justice during the legal vacation, with some critics alleging that certain cases were being selectively prioritised—an assertion Prof Asare has now firmly rejected.