A discourse is worthy of engagement where there is a clearly articulated legal position to interrogate.

The debate concerning legal vacation in Ghana has, with respect, exposed an unfortunate tendency in legal discourse: the conflation of established practice, professional convention, and administrative tradition with binding law. In my respectful view, both the position attributed to the Ghana Bar Association (GBA) and the defence advanced by Sampson Lardy Anyenini appear to encounter this fundamental difficulty. The mere existence of a longstanding practice, however entrenched, does not, without more, confer upon it the force and effect of law. The more compelling positions, in my respectful view, are those advanced by the Deputy Attorney-General, Dr. Justice Srem-Sai, and Professor Stephen Kwaku Asare (Kwaku Azar). More importantly, the statutory language itself supports the caution they have urged.

The starting point must be Order 79 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Rule 4 undoubtedly recognises periods of vacation, including the period from 1 August to 30 September. But one cannot isolate Rule 4 from Rule 1(1), which expressly provides that the vacation provisions are “subject to” the power of the Chief Justice to appoint any day, including vacation days, for the hearing of causes or matters as circumstances require.

That qualification is significant.

Sampson Lardy’s argument appears to place considerable weight on Rule 4 while giving insufficient attention to the very qualification that precedes it. If the rules themselves expressly preserve the Chief Justice’s power to appoint vacation days for hearings, it is difficult to derive from Rule 4 an absolute legal prohibition against court sittings during vacation.

There is another fundamental difficulty: C.I. 47 is the High Court (Civil Procedure) Rules. It regulates civil procedure. Criminal proceedings are principally governed by the Criminal and Other Offences (Procedure) Act, 1960 (Act 30). Indeed, section 1 of Act 30 provides that offences are to be dealt with according to that Code, while section 2 expressly contemplates trials before the High Court and Circuit Court.

Consequently, one must be extremely cautious before taking a provision contained in civil procedural rules and transforming it into a sweeping statutory prohibition governing criminal trials.

The GBA’s position may well represent a longstanding and desirable convention. That is a legitimate subject for professional advocacy. But convention is not legislation. Practice is not necessarily law. And what courts have traditionally done cannot, without more, become a binding legal entitlement capable of restricting the jurisdiction or case-management powers of a judge.

I am particularly persuaded by Professor Aza’s simple but profound question: Do lawyers and litigants determine when a court should sit? The answer must necessarily be no. The administration of justice belongs to the Judiciary, subject to the Constitution and applicable laws, not to the Bar.

This does not mean that lawyers have no legitimate interests during vacation. Of course they do. Legal vacation exists as part of the administration of the superior courts, and lawyers may arrange their personal leave around it. But that does not confer upon every lawyer an unconditional right to absent himself from proceedings merely because the calendar says “vacation”.

Indeed, there is a more uncomfortable question for the Bar. If lawyers are entitled simply to declare themselves unavailable throughout the vacation, what happens to their cases in the lower courts, where proceedings continue? Are lawyers entitled to announce that they will not attend those proceedings either? If not, why should the position be fundamentally different merely because the superior court is sitting during vacation?

More importantly, professional obligations cannot simply be suspended by unilateral declaration.

Rule 98 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 (L.I. 2423)

A lawyer commits professional misconduct if they, without reasonable excuse, fail to:

 (a) Personally attend Court proceedings for a matter they’re handling, OR

(b) Arrange for another lawyer, a firm representative, or an agent to be present throughout the Court proceedings for that matter.

Additionally, the same is expressly provided for under Rule 53 of the Ghana Bar Association’s Code of Ethics.

Thus, the law itself recognises the importance of attendance and professional diligence.

Therefore, where counsel has a genuine and reasonable excuse, the proper course is to place that circumstance before the judge and seek an adjournment or other appropriate accommodation. That is materially different from asserting that counsel possesses a unilateral legal veto over whether proceedings may take place.

The courtroom is not governed by the convenience of counsel. Equally, the interests of accused persons, victims, litigants and the public cannot be subordinated to professional convenience.

I therefore respectfully disagree with the attempt to present the GBA’s position as settled “black-letter law”. The Bar is entitled to advocate for a convention, reform or administrative policy. It is not entitled to convert that advocacy into law by assertion.

The Deputy Attorney-General and Professor Azar are right to insist upon the distinction between law and convention. Sampson Lardy and the GBA should, with respect, revisit their position not because lawyers do not deserve rest, but because the administration of justice cannot ultimately be placed in the hands of those who appear before the court.

Legal vacation may be a valuable convention. It is not a judicial holiday that strips the court of its authority.

The law must remain the law, as convention must remain convention.