Legal Vacation Without ‘Vacation.’; The Plight of ‘ORAL ’ Lawyers and the Infringed Rights of the Accused?

The article examines the controversy over substantive criminal trials continuing during Ghana’s legal vacation, particularly where defence lawyers have indicated that they are unavailable. It argues that although the Chief Justice has authority to constitute vacation courts, exercising that power must be balanced against established court practice and an accused person’s constitutional rights to counsel, adequate preparation and a fair trial.

“It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly ad undoubtedly be seen to be done” Per Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy[2]

INTRODUCTION

Lawyers and judges in the Superior Courts[3] in Ghana enjoy three legal vacation periods during every legal year. The legal year commences the first Monday in October and ends on the 31st of July each year. The period between 31st July and 30th September of every year is the main legal vacation which lasts for a period of about two months, one that lawyers, especially those in private courtroom practice, look forward to. It is a period where lawyers have reduced court attendances because during the legal vacation, the superior courts do not sit, save a skeletal court sitting as vacation courts. During this period, lawyers have their vacations, some take their annual leave, some travel outside the jurisdiction for rest and leisure after a whole year’s work, some go to their villages, others take a break to attend to other important commitments. Others do their drafting work, transactional work, written submissions/addresses, client consultations in chambers, attend conferences among others. During this period, judges also get to rest, some plan writing their judgments and rulings during this period. The Ghana Bar Association Annual Conference and other lawyers’ conferences both local and International are usually held during this legal vacation. The Ghana Bar Association Annual Conference 2026 is scheduled for the 13th to 18th September 2026 under the theme, “150 Years of Ghana’s Legal Evolution: Transforming the Profession and Driving Its Future with Industry”, the International Legal Technology Association Conference 2026 was scheduled for the 17th to 21st August 2026 in Orlando United States of America, the Global LegalTech Summit was scheduled for 22nd to 23rd August 2026 in Toronto Canada,[4] the Africa Bar Conference for 2026 is scheduled to take place from 20th to 24th September 2026[5], the conference of the Law Society of Ghana is scheduled for the 30th September 2026[6] all within the legal vacation period. Ahead of the legal vacation, some skeletal courts (Vacation Courts) are appointed by the Chief Justice and given warrants to sit to deal with urgent cases and motions that cannot wait till the resumption of the legal year in October. Parties and their lawyers who wish for their cases to proceed in the legal vacation may agree to conduct business during the legal vacation. In 2026, according to the Judicial Service website about 29 High Courts are sitting virtually as vacation courts.[7]

Legal vacations in whatever form enjoyed by lawyers and judges have not come under public controversy in this proportion until the year 2026. The Author is not oblivious of the fact that some commentators like Professor Stephen Kwaku Asare have in the past questioned the practice of legal vacation in Ghana.[8] Some persons who themselves as lecturers enjoy academic vacations have weighed into the controversy questioning the basis for legal vacation.[9] Ghana is not the only country that enjoys legal vacation, other countries in the commonwealth have legal vacations annually. In July 2026, just when lawyers in private litigation practice were preparing for a long-awaited legal vacation in August and September, the learned Honourable Chief Justice, His Lordship Paul Baffoe-Bonnie issued a warrant signed on 23rd July 2026 to some judges to continue sitting on some cases[10] despite the legal break. These courts included two specialized courts which had been given the warrant to continue some substantive trials. It is usual for such warrants to be issued ahead of vacation, but the difference this time it seems to the Author was for the continuation of trials in certain cases in respect of which the lawyers representing the accused persons had indicated their unavailability. The cases for which the Chief Justice’s warrant signed on 23rd July 2026 affected were some high-profile criminal cases. It is important to emphasize that the warrant was not limited to the cases for which the lawyers involved have challenges appearing in court during the legal vacation. Upon the issuance of the warrant, the lawyers[11] in some of the affected cases have indicated their unavailability to attend court for business during the legal vacation, since in their view per the long-standing practice, substantive trials are not conducted during legal vacation unless parties and lawyers agree so to do. They have petitioned the learned Honourable Chief Justice regarding their unavailability[12].

Ghana Bar Association enters the fray

Upon the issuance of the warrant for some cases to be conducted during the legal vacation with the respective lawyers indicating their unavailability, and the controversy that arose therefrom, the Ghana Bar Association issued a letter to the Honourable Chief Justice. The Ghana Bar Association inter alia in their letter urged the Honourable Chief Justice to respect the time-honoured practice on legal vacations.[13] The view of the Ghana Bar Association which in the Author’s view is the well-known practice at the bar is that,

“Once counsel in a matter indicates their unavailability to attend court during the vacation, even though the Court may have listed their cases, it cannot proceed with the case in anyway, if Counsel on either side or on both sides indicate their inability to proceed with the scheduled matter in Court during the vacation.”

It has become a long-held practice that has been accepted by all, that during the legal vacation, the absence of a lawyer from court in the superior court is not considered a default. The Ghana Bar Association stated further that,

“Innocent parties in a trial, civil or criminal ought not be compelled albeit indirectly by a Judge to represent themselves as the absence of a Lawyer is not considered willful during Legal vacation.”

It is communis opinio among lawyers that even during the legal term, lawyers indulge each other in adjourning matters and dates are taken based on the availability of both counsel although subject to the discretion and convenience of the Court’s diary to accommodate the lawyers. It was therefore unusual in the Author’s view when it was reported that a judge in one of the cases had indicated to an accused person that if his lawyer is absent on the next adjourned date, the judge will order the accused person to conduct the trial pro se[14] or he should engage another law[15].

Legal Architecture of Vacations

Under the High Court (Civil Procedure) Rules, the Honourable Chief Justice may appoint any day including vacations for the hearing of causes or matters as the circumstances may require and the sittings shall be for such hours as the Chief Justice shall direct. If in the view of the Honourable Chief Justice, some matters must be dealt with before the resumption of the legal year in October, the law allows him to make such arrangements. For instance, if there is an electoral dispute that must be resolved and same cannot wait for the resumption of the legal year in October. The case of Ransford France v the Electoral Commission and Attorney-General was filed on the 6th July 2012, the injunction application was filed on the same day, a single judge[16] was empaneled to determine the injunction on 19th September 2012 and the substantive case determined on the 12th October 2012. Further, the first Presidential election petition under the 4th Republic, Nana Akufo Addo v John Mahama and Others[17] continued the trial during the legal vacation and the decision of the Supreme Court rendered 29th August 2013 during the legal vacation.

Legal vacation in Ghana is governed by Order 79 rule 4 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) and it provides that, “

Subject to rule 1 (1) the following periods shall be observed in the High Court as vacations (a) the period commencing on the Tuesday immediately following Easter Monday in each year and ending on the Friday immediately following; (b) the period commencing on the 1st August in each year and ending on 30th September in the year; and (c) the period commencing on 23rd December in each year and ending on 6th January in the next year.”[18]

The vacation is not only enjoyed by the High Courts and practitioners before the High Court, but similar provisions are also made in the Court of Appeal Rules[19]. This shows that the Superior Courts have three vacations, two short ones being Easter break and another during Christmas break. The main legal vacation which has generated controversy is the long legal vacation for August and September of every year.

Does Legal Vacation apply to Criminal Cases

There is a view by lawyers and commentators to the effect that legal vacation at the High Court is regulated by the High Court (Civil Procedure) Rules, it is applicable to only civil cases. In the Author’s humble view, while that argument is attractive, the logic is exposed when regard is had to the fact that in Ghana, during legal vacation, the only courts that are exempted are the inferior courts. At the High Court level, all the Divisions of the High Courts take the vacations including the Criminal Divisions of the High Courts. In the High Court Complex, Accra, there are about five Criminal Divisions of the High Courts and in the 2026 legal vacation only one Criminal Court (Criminal Court 4) is sitting as a vacation Court.[20] If indeed legal vacation is limited to civil cases, the question is why the Criminal Divisions of the High Court also take the legal vacation in August and September. In practice, all the Divisions of the High Court enjoy the legal vacation in August and September. The Court of Appeal has both Civil Division and Criminal Division, but during the legal vacation, both divisions enjoy the vacation. In the recent decision in Honourable Kojo Oppong Nkrumah v The Chief Justice of the Republic of Ghana and The Attorney-General[21] Pwamang JSC rightly had this to say,

“The Courts Act, 1993 (Act 459) and the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) have no statutory provisions that prescribe periods of legal vacation. Section 80 of Act 459 left it to the Rules of Court Committee which has made provision for legal vacation in the High Court for only civil cases. As such, although a practice in criminal proceedings in the High Court has evolved along the lines of the civil procedure rules as regards legal vacation hearings, there is no binding positive statute or precedent that can be held to be an injunction against a Chief Justice restraining him from authorizing hearings in a criminal case in the High Court during legal vacation.” (emphasis supplied)

From the above dictum of Pwamang JSC it is seen that by practice the Criminal Divisions of the High Courts also enjoy the legal vacation, albeit legal vacation is provided by the rules that govern civil proceedings. Practice and convention are important in the administration of justice and are part of the yardsticks by which justice is administered in the Republic. In the case of Harlley v Ejura Farms (Ghana) Limited[22] the Court of Appeal, Accra (Full Bench)[23] said inter alia thus,

“In these courts we dispense justice in accordance with three and only three yardsticks: statute law, case law and the well-known practice of our courts”.

Power of the Honourable Chief Justice

The Honourable Chief Justice as by law established is the head of the judiciary. The Constitution 1992, the Courts Act, the Rules of Court and other enactments confer rights and powers on the Honourable Chief Justice. According to the Constitution 1992,

“The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary”.[24]

The Chief Justice chairs the Rules of Court Committee.[25] The Chief Justice may, acting in accordance with the advice of the Judicial Council and with the approval of the President, by constitutional instrument, make regulations for the efficient performance of the functions of the Judicial Service and the Judicial Council.[26]

“The Chief Justice may create the divisions of the Court of Appeal which the Chief Justice considers necessary to sit in the places determined by the Chief Justice”[27].

The Chief Justice also has power to create divisions of the High Court as he or she may determine.[28] ”The Honourable Chief Justice presides at the sittings of the Supreme Court when he or she is empaneled and in his or her absence, the most senior of the Justices of the Supreme Court, as constituted, shall preside.[29] The Honourable Chief Justice therefore performs both Judicial and Administrative functions.

Recent conversations have centered around the power of the Honourable Chief Justice to appoint certain courts to sit during the legal vacation. Lawyers are familiar with a practice where during the main legal vacations, only few courts are selected as vacation courts. Usually, when the legal year is about to end, the Courts in adjourning cases would ask lawyers whether one would want to appear before the vacation court. It is up to the lawyer to indicate by his or her election whether he or she would want to appear before a vacation court. If the lawyer chooses to do business before the vacation court, his or her case is adjourned to a date in either August or September, otherwise it is adjourned to a date in term, from the new legal year. This has been the practice at the bar. Senior practitioners have not been shy from confirming this practice. The scenario where a Chief Justice would issue a warrant for a court to sit to conduct certain trials in some cases during legal vacation without the consent or agreement of parties or lawyers yet may compel the attendance of the lawyer is uncommon at the bar. The respected Honourable Nii Ayikoi Otto[30] has said that in his over forty-five (45) years of practice at the bar, it has never been the practice[31]. The Honourable Samuel Atta Akyea, lawyer for Adu Boahen, one of the lawyers affected by the current warrant has also said that for his thirty (30) years, such a warrant with the effect of compelling a lawyer for a party whose case is to be heard for trial in the vacation to work during the vacation against the lawyers’ schedule or plan for the year is not usual.[32]

The power of the learned Honourable Chief Justice in this regard is not in doubt. The Author submits that it will be legally wrong for anyone to challenge the power of the Chief Justice to issue a warrant for particular courts to sit to determine certain cases during the legal vacation. The High Court (Civil Procedure) Rules, 2004 (C.I. 47), provides inter alia that,

“Subject to the Courts Act, 1993 (Act 459) as amended, the Chief Justice may appoint any day including vacations for the hearing of causes or matters as circumstances require.”[33]

The Chief Justice even had the powers to direct the hours for the sittings of such courts.[34] Under the rules of Court, The offices of the Court shall, subject to subrule (2), be open to the public on every day of the year for such hours as the Chief Justice shall direct. Except as otherwise directed by the Chief Justice, the offices of the Court shall be closed on Saturdays, Sundays and public holidays.[35] From the above, the Author takes the view that in the exercise of the powers of the learned Honourable Chief Justice, he can direct the courts to sit on days and during periods which the courts would ordinarily not be sitting. Indeed, the legal vacation that is provided by the rules of Court is subject to that power of the learned Honourable Chief Justice when it provides thus,

“Subject to rule 1(1) the following periods shall be observed in the High Courts as vacations ……”

In that regard therefore, the Honourable Chief Justice is spot on. The challenge however, which has drawn much public commentary is how this power is being or has been exercised. In the instant case, the warrant of the learned Chief Justice was issued in respect of some two special courts where some ‘public interest’ cases are conducted. The warrant was issued towards the last days of the month of July for the courts to sit in the vacation periods (August and September), when most lawyers including the lawyers handling some of these sensitive cases had made their vacation plans and did not intend to conduct business, being aware of the practice and convention at the bar. The lawyers involved have indicated they are unavailable to conduct trials during legal vacation.

Can a lawyer be forced to “work” (attend court) during statutory legal vacation

The Author takes the view that a lawyer who has planned for his or her vacation cannot be compelled to attend court during the legal vacation. As will be indicated, the bench and the bar are partners in the administration of justice. A lawyer is not an employee of the judicial service, and the bar is not a servant of the bench. Both the bench and the bar are essential stakeholders in the administration of justice. A lawyer takes a brief of a client who in this case becomes the employer of the lawyer as long as the brief is concerned. The brief is taken with the understanding that the months of August and September are for legal vacations.

If a lawyer who runs his practice has made plans for his vacation, nothing without his consent can compel him to work against his plans and schedule. The Constitution provides that,

“Every person has a right to work under satisfactory, safe and healthy conditions, and shall receive equal pay for equal work without distinction of any kind.”[36](emphasis supplied).

A lawyer who has conducted business in the court for a full legal year may from the beginning of the legal year decide to schedule his or her vacation to coincide with the statutorily provided legal vacation period in August and September. The law further provides that,

“Every person shall be assured of rest, leisure and reasonable limitation of working hours and periods of holidays with pay, as well and remuneration for public holidays”[37] (emphasis supplied).

The Labour Act 2003 (Act 651), provides that,

“In any undertaking every worker is entitled to not less than fifteen working days leave with full pay in any calender year of continuous service”[38].

For most lawyers in private litigation practice, the legal vacation period provided by the legislation is the best period for the rest and leisure to be attained. Lawyers fix their vacations during that period; clients are aware that those periods are vacation periods and has never been an issue raised by clients. Therefore, a lawyer’s right to enjoy the vacation having accrued cannot be taken away from him by a warrant that fixes his substantive cases during the legal vacation when the lawyer has indicated his or her unavailability and the accused is compelled to attend and possibly conduct his or her own case. In the Author’s humble view, although the warrant of a Chief Justice may not and cannot compel a lawyer in private practice to attend court, it has the tendency of doing so if the interest of the client is taken into consideration. A warrant that compels a lawyer in the interest of his or her client to forego his or her vacation, rest or leisure sins against the rights of the lawyer to a period of rest and leisure and if the lawyer is unavailable for the case of the accused may affect the rights of the accused person including right to counsel of choice, to which the Author shall return. Under the directive principles of state policy, the State has a duty to safeguard the health, safety and welfare of all persons in employment, and shall establish the basis for full deployment of creative potential of all Ghanaians.[39] A warrant that may indirectly compel a lawyer who has planned his annual vacation to attend court may have a negative effect on the lawyer and by extension the client he or she represents.

Another angle that has been suggested is for senior lawyers to hand over their briefs to juniors and other colleagues to handle while they take their vacation. While it is true that lawyers are encouraged to work in teams in chambers and avoid sole practice, it is a fact that, the nature of certain briefs demands that it is the person with personal conduct of the matter that is best suited to handle the brief. The Author takes the view that it is the senior who has the brief who decides whether a brief at trial can be conducted by a junior in chambers or any other person. It is therefore not a panacea to the challenge. The Author is not oblivious of the case of Mensah v Mensah[40] in which case lawyers were admonished to arrange their affairs in practice to avoid the situation of missing the attendance of court due to other exigencies. In the case of Boye-Doe and Another v Teye and Another[41], when the lawyers took the view like this instant case, the court indicated that the party could have engaged the services of another to conduct the case. The court said that, “Since the appellant had taken part in the proceedings up to the close of the case for the respondence but thereafter he had declined the opportunity to present his case, even after the trial court had refused his application for stay of proceedings, by defiantly refusing to attend court and instead sending his representative to be present in court; and also not engaging the services of another counsel prepared to come to court during the legal vacation; it could not be said that the appellant had been denied the opportunity to be heard and the audi alteram partem rule breached”. The Author suggests that this case can be distinguished from the instant subject because the instant matter involves a criminal matter with the possibility of the accused persons’ losing their freedom and liberties and hence the Author suggests that such persons must be given all the reasonable opportunities to defend themselves.

Does legal vacation ipso facto mean no legal work?

A lot of people have the impression that legal vacation means no legal work is done by lawyers. The practice of the law is vast and goes beyond the traditional court room practice. Court room practice is a minute aspect of legal practice. The practice of law includes without limitations transactional work, legal review, contracts drafting, regulatory compliance, academia and the like.

The Author takes the view that during legal vacations, lawyers continue to work albeit in chambers (offices) and other transactional work. All these works are done for and on behalf of Clients. In legal vacations, lawyers and judges take the opportunity of less stressful courtroom work to draft contract documents, review documents, draft written submissions, meet clients in chambers for instructions and legal advice. So even though legal vacation allows judges and lawyers to rest, the rest is limited to court attendance but most lawyers even the travelled still do work for their clients as the circumstances may demand. It is therefore not the case that lawyers do not work at all. Legal work is with respect not limited to court attendances. It goes beyond that and that is the law and practice known to practitioner. The claim for legal vacation is therefore not a period where lawyers go to ‘sleep’, and clients’ work are jeopardized, that is far from the reality in the Author’s view. Lawyers still work and clients are still served during legal vacation.

Some have criticized the lawyers involved in these cases who have insisted on their unavailability to attend court and tried to create an impression that once they have taken on the clients’ brief and earned their fees, they should avail themselves during the legal vacation. Some have even said that by taking on the briefs, the lawyers have undertaken to work and defend their clients 24 hours a day, 7 days a week and 365 days a year[42]. This in the Author’s view is an unfortunate position to take and highly fallacious. It is not in doubt that ‘every lawyer worth his salt’ will know from the beginning of the legal year that August and September are for legal break, so in taking briefs, this fact is not lost on any practitioner. The lawyer’s relationship is contractual with terms and conditions usually governed by Engagement Contract, which terms and conditions are matters of fact. It is also obvious and not lost on any reasonable practitioner that a lawyer’s particular brief is not only that one case, but there are also several matters that compete for the time and attention of the lawyer. If the lawyer takes a brief and plans with the knowledge of the settled practice and convention at the bar and there is a sudden departure and his client is being compelled to attend court and procure the attendance of his lawyer or conduct his or her own case or even re-engage another, this argument cannot be the panacea to the situation.

Partners in Administration of Justice.

In the administration of Justice, there are several stakeholders including the Bench (Judges and Magistrates), the Bar (Lawyers), the Judicial staff (Court clerks, recorders, bailiffs) and the clients or other Court users. All these stakeholders are essential to the administration of justice, and their roles cannot be overemphasized. Judges and Magistrates are the adjudicators before whom lawyers appear to advocate for their clients. The court users, the court clerks, make the hearings of the court possible, the bailiffs are in charge of serving court processes etc. For efficient justice administration, all these stakeholders must be present and play their roles accordingly. The Bench cannot do without the Bar and so can the Bar not do largely without the Bench. Effective collaboration and mutual respect are essential in the efficient administration of justice. In recent times there has been collaboration of the Bench and the Bar, during the celebration of the Supreme Court at 150 and other similar occasions, where the Bar played a key role, it is also the Bar that feeds the Bench with human resources in terms of judges among others. All stakeholders must see themselves as partners.

Lawyers are engaged by parties to represent and advocate for them. In criminal cases, the right to counsel is elevated to a Constitutional pedestal. An accused person standing trial has every right to legal representation and any step taken to or which has the effect of denying the accused person the opportunity to legal representation or to diminish that right must be of concern. The Constitution 1992 provides that,

“A person charged with a criminal offence shall be presumed innocent until he is proved or has pleaded guilty”.[43]

This means that, nothing should be done to imply that there is some haste or deliberate attempt to give a special treatment to certain cases. It may give the impression that the person who is otherwise presumed innocent is, as being suggested by some[44], rushed through the justice delivery system which may have the effect of impairing the time and facilities to prepare his or her own defence.

More importantly, the law in several ways gives an indication of the importance of lawyers in the administration of justice and justice delivery. The bench, the bar and faculty have had very good relationships as partners in the administration of justice. A warrant may be issued for a court to sit and hear some cases. The cases involve accused persons who have right to counsel. It is their lawyers who have been instructed with the personal conduct of the brief who would appear before their lordships to advocate for the accused persons or parties. It is therefore an unfair position to take, that the warrant has been issued and the court will proceed regardless of whether the lawyer of the party is present or not, and if the lawyer is absent the accused will conduct his or her own case,[45] that sins against every ethos of the criminal law jurisprudence that is based on the presumption of innocence, that respect the fundamental rights of an accused person to adequate facilities to defend him or herself including counsel of his or her choice. An impression should not be created that in the administration of justice, it is only the Bench and maybe the Prosecution that matter, so once the warrant has been issued for the judge to sit everything must follow, and the judge will proceed with the case unless the warrant is revoked[46].

Impact on the constitutional right of an accused?

The Constitution 1992 provides for the presumption of innocence of an accused person. Aside from the presumption of innocence, the accused person is required to be given adequate time for the preparation of his or her defence, either in person or with the assistance of counsel. The counsel in this instance is the counsel of the choice of the accused person; it is not counsel that the accused may be compelled to engage before the counsel of his or her choice is unavailable at a particular time of the year. If an accused person’s counsel of choice who has the personal conduct of a brief is not available during the two month legal vacation and the trial proceeds notwithstanding, the effect is to deny the accused person that hallowed constitutional right, which ought not be toyed with in any serious democracy. A judge who has been given warrant may insist on proceeding with the trial, the accused is left with options, including compel the attendance of his substantive lawyer, engage a new counsel to take over the brief, or conduct the brief pro se. A party may thus be put to his or her election. In criminal matters that have the tendency of causing the accused person to lose his or her liberty, the state in the Author’s view must tread cautiously. In criminal proceedings, the case is essentially between the entire Republic with all its resources at the state’s disposal against the citizen with very limited resources. In the Author’s view, if the accused person is compelled in an unusual manner to conduct his or her case when he or she has a right and benefit of counsel, that is a sin against the constitutional rights of the accused person. If the accused is compelled to engage another counsel to either take over the brief or just for the vacation period, that means he or she would have to engage another counsel at an extra cost or fees to his or her pocket, meanwhile he or she would have paid the substantive counsel. Perhaps the better of the options will be for the accused person to pray for an opportunity to engage a new lawyer, the new lawyer comes in the case and needs time to study the brief. By the time the new lawyer studies the brief the vacation may be over.

The right to counsel is not only enshrined, from the time of arrest, detention and restraining of freedom. It is present and must be respected throughout the trial unless the accused person elects to act pro se. The law is that,

“A person who is arrested, restricted or detained shall be informed immediately; in a language that he understands, of the reasons for his arrest, restriction or detention and of his right to a lawyer of his choice.” (emphasis supplied.)

As indicated earlier supra, it is the Author’s view that when the Constitution provides the rights of the accused person in Article 19(2)(e) (f) and (g), those include counsel of choice. Article 19(2)(e) provides that,

“A person charged with a criminal offence shall be given adequate time and facilities for the preparation of his defence”.

Under sub clause (f) of clause 2, the person shall be permitted to defend himself before the court either in person or by a lawyer of his choice, meaning that the person may be put to an election either to act pro se or act per counsel. If the person chooses to be represented, it means he has chosen to be defended by Counsel. In such a case such an arrangement must not be sacrificed on the basis of speedy trial. In the Author’s view, if the lawyer chosen is not available to represent the accused during legal vacation, that ought not lead to the accused person being compelled by that circumstance to conduct his or her own case. Article 19(2)(f) follows with a provision that the accused person is afforded facilities to either examine in person or by his lawyer the witness called by the prosecution. Conduct of legal proceedings (like cross examination) is a technical area for which people are trained and skilled. That is the role of the lawyer engaged by the accused person. It is the Author’s view that once the accused person has elected to act by Counsel, he or she cannot be compelled to conduct his own trial just because his lawyer is not available during the legal vacation or for any other justifiable cause. To do otherwise will be to deny the accused person his or her rights.

Is there a need for Balance?

There is obviously the need for balance. In the Author’s view, there is the need for a balancing act. The fact that an accused person is entitled to counsel of his choice does not mean that should delay the trial or hearing. It has been said the counsel of choice does not mean counsel of convenience. The Pennsylvanian Supreme Court has held that,

“The constitutional right to counsel of one’s choice is not absolute. Rather, “the right of the accused to choose his own counsel, as well as the lawyer’s right to choose his clients, must be weighed against and may be reasonably restricted by the state’s interest in the swift and efficient administration of criminal justice.” Thus, this Court has explained that while defendants are entitled to choose their own counsel, they should not be permitted to unreasonably” clog the machinery of justice’ or hamper and delay the state’s efforts to effectively administer justice.”[47]

In the Author’s view, there must be some form of balancing such that an accused person is not made to feel that his or her right to counsel is being impaired during legal vacation, or that his or her case for some unexplained reason is being given special attention with the aim of securing an early conviction. It is also fair to suggest that lawyers must also not deliberately delay the hearing. Both the Republic and the accused must reach a consensus where fairness is achieved, with certainty and reasonability. In that way, not only is justice being done, but same is manifestly seen to be done.

Delays at trial and Legal Vacation

The argument has been made that the accused person’s standing trial are entitled to speedy trial and administration of justice, a fact the Author acknowledges. Indeed, the law is that

“A person charged with a criminal offence shall be given fair hearing within a reasonable time by a court.”[48]

This calls for fairness in the trial and same to be done within reasonable time. It is said that justice delayed is justice denied, and justice hurried is justice buried. A call is made for the avoidance of unnecessary delays at trial both in criminal and civil cases. The factors that cause delays in trial are numerous. It is not only legal vacation that causes delays in cases. Frequent adjournments, judges taking their leaves, ill health on the part of both lawyers and judges, judges attending training programmes, judges attending meetings during court hours, lawyers failing to show up for proceedings, power challenges, inefficiencies in service of processes etc. are among several reasons practitioners are familiar with that cause delays. To suggest that delays are caused by the legal vacation is not wholly accurate.

The accused person’s life and liberty are in the hands of his or her lawyer during a criminal trial. If the accused feels his or her lawyer is being ‘compelled’ by some circumstances to work and that would affect the ability and faculty of the lawyer to do the work, it suggests that the accused may agree or side with his or her lawyer to take the vacation and rest.

Justice Gabriel Scott Pwammang Speaks

While the Author was writing this paper, two suits were filed in the Supreme Court.[49] The second being the suit by Honourable Kojo Oppong Nkrumah in the case of Honourable Kojo Oppong Nkrumah v the Chief Justice of the Republic of Ghana and the Attorney-General[50] which suit was filed on 14th August 2026. The suit sought some declarations that the warrants of the Honourable Chief Justice directing some judges to sit and conduct criminal trials in selected courts during the legal vacation is inconsistent with the constitution, that the action of the learned Chief Justice to promote and facilitate the hearing of “special criminal cases” during the legal vacation to the neglect of others amount to selective justice, that the warrant of the learned Chief Justice directing some judges to sit and conduct criminal trials in selected cases in the vacation violate the rights to health of members of the Bar and Judicial Service among other reliefs. The suit was followed by an application for Interlocutory Injunction which was heard on the 20th August 2026 and adjourned to the 21st August 2026 for ruling.

The apex Court presided by His Lordship Pwamang on the 21st August 2026 in a ruling[51] dismissed the application for interlocutory injunction. His Lordship in dismissing the application for injunction reasoned that the Plaintiff could not satisfy the test for the grant of such relief.

His Lordship among others on the issue of legal vacation reasoned thus,
“The Plaintiff has also alleged violations of Article 24(1) & (2) of the Constitution which deal with the right to work under satisfactory conditions and Article 36 (10) on the duty of the state to safeguard the health, safety and welfare of workers. The applicant states that conducting hearings during the legal vacation is likely o adversely affect the health and well being of the Judges, the Judicial Service staff and lawyer involved in those proceedings. These statements plainly fail to take account of the existing standard practice where judges who sit during the legal vacation take their leave when the rest of the courts resume work. As for the Court staff, their leave from work is not in any way affected by legal vacation sitting. For the lawyers they are independent service providers in Court proceedings who are free to plan their leave at any time of the year. Being independent service providers, the responsibility for ensuring compliance with article 24 (1&(2) is in the hands of individual lawyers. Some choose to work during the legal vacation. Consequently, this ground of action fails to meet the threshold of a serious constitutional question as to be the basis for a public law interlocutory injunction. (emphasis supplied).

The Author as has been said earlier took the view that lawyers are not employees of the judicial service although officers of the court and so once they plan their vacation cannot be compelled to attend court sessions during the vacation period especially so when they did not have doing substantive trials during legal vacation in contemplation, to that extent the Author agrees with the dictum of His Lordship Pwamang. Where the Author departs respectfully is that lawyers can take their leave at any time of the year. Planning and taking one’s leave at any time of the year as decided by Pwamang JSC (and here the focus is on courtroom practitioners) would rather affect administration of justice adversely. It would mean that when one lawyer is on leave and the lawyer for the other party is not on leave, no work can progress on a particular case. Tere is the need to distinguish the between the idealist situation and the reality on the ground. If a lawyer in private practice takes his or her leave in say February and the judges in the Superior Courts are on vacation, does that imply the same lawyer who had taken time off in February would still not have any business done in August and September when the judges take their legal vacation? Secondly, as rightly said, a lawyer is an independent service provider who takes on client’s cases with some expectation of a vacation based on which the lawyer plans his or her year, the absence of the lawyer during legal vacation ipso facto ought to lead to the accused person conducting his or her own case or even having to engage a new lawyer due to the absence of the substantive lawyer. Further, a lawyer who has worked the entire legal year and planned to take his vacation to do other non-court room work will be unfairly prejudiced if substantive cases he or she is conducting is fixed during the legal vacation with no option to adjourn the case to term or make other convenient arrangement. The legal vacation, in the Author’s view, offers all practitioners, judges and other stake holders to plan their vacation for the year.

His Lordship in his decision referred to Article 19(1) of the Constitution 1992 on the right to a speedy trial. The said article provides that,

“A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court” (emphasis supplied).

After referring to the above provision, His Lordship took the view that,

“Thus, the Constitution has conferred a right to a person charged with a criminal offence to have his guilt or innocence established as early as the resources of the Court would allow. In fact, the framers of the Constitution considered the right to hearing in criminal cases within a reasonable time so fundamental that under Article 14(4) of the Constitution, they provided that if there is an unreasonable delay in the trial of a person in detention, he may be released either conditionally or unconditionally”.

It is trite that in criminal trials, the starting point is the presumption of innocence of the accused, he or she has no burden to establish innocence, it is the prosecution that establishes the guilt of the accused. The Author agrees that an accused person has a right to a fair trial and same must be within reasonable time. It is however not the understanding of the Author or the framers of the constitution that fair trial includes a threat to an accused person to be made to conduct his own case during legal vacation when his or her lawyer after a whole year of rest wants to take his earned vacation. It is also not an incident of fair trial that an accused person who is unable to procure the attendance of his or her lawyer of choice during vacation and is unable to conduct his own case is compelled by the circumstances to engage another lawyer who may not be a lawyer of his or her choice. Again, the Constitution 1992 refers to reasonable time, and the Author suggests that does not necessarily mean speedy or as lawyer Atta Akyea would suggest, ‘ambulance mood’.[52] Reasonable time includes affording the accused person the time and opportunity to procure the attendance and service of his or her counsel. In the Author’s view, the two months’ vacation that the accused person’s lawyers are unavailable does not defeat the reasonableness. This, in the Author’s view does not also give the accused person and his or her lawyers the opportunity to unnecessarily delay or prolong the trial.

His Lordship further said that

“In my understanding, the warrants issued by the Chief Justice that the plaintiff has complained about are an effort to afford opportunity for more criminal cases to be tried expeditiously. The charge that the vacation hearings are not open to all criminal cases in the High Court does not mean that the administration of justice would not be advanced to some extent by these hearing. The fact that lawyers and accused persons involved in criminal proceedings in the High Court usually do not undertake hearings during legal vacation ought not to be the reason why an interlocutory injunction ought to be granted against the Chief Justice and stopping the expeditious hearings of cases such as narcotics, Auditor-General surcharges, cyber security, galamsey, corruption and corruption related. In my view, the administration of justice, which is in the public interest, would be better served if the hearings continue”.

The Author and the lawyers representing these accused persons are not in the least opposed to expeditious trials, indeed that is what all practitioners, clients and stakeholders in justice administration aim at achieving.

The way forward

The issues at stake in these matters are the liberties and freedoms of citizens against whom allegations have been made. They may be found guilty or their innocence will be affirmed. In the Author’s view, if a person would be found guilty no matter how long the trial takes, it is the evidence and the law that will speak. However, the process must be fair, reasonable and there should be some predictability in both the law and the procedure, so that people do not suggest that there are some plans to jail them expeditiously. It should not be lost on anyone that in all these, it is not the lawyers who are on trial, but their clients who are citizens of the Republic with rights conferred on them by the Constitution 1992.

With the decision in the Honourable Kojo Oppong Nkrumah v The Chief Justice of the Republic of Ghana and the Attorney-General decided, the way has been cleared for the cases to proceed. Some of the lawyers maintain their stance of taking their legal vacation. It remains to be seen how the future conduct of the cases will be. Whether the accused persons would be asked to conduct their own cases, or they would engage alternative solicitors. In all these, may all stakeholders be guided that it is the pursuit of justice for citizens, lest we risk visiting the conduct of lawyers on their clients, and that in the Author’s view will not be proper.

Conclusion.

The legal vacation the High Courts enjoy applies to all High Courts; it is not enjoyed by courts taking civil causes or matters alone. It is a practice known to every lawyer who practices in the court. Lawyers plan their lives and year with the expectation that in August and September, without their consent, they cannot be compelled to attend court or do any court business. The practice is that if a party or lawyer does not desire to work in the vacation period, such an arrangement is accommodated, and the case is adjourned to term. The rights of an accused must not be prejudiced because of the absence of his or her lawyer during legal vacation.

[1] ‘ORAL’ stands for Operation Recover All Loot. An NDC government campaign promise to proceed against former state officials in the previous regime who are alleged to have looted state property under their stewardship.

[2] [1923] All ER Rep 233

[3] The Superior courts comprise of the Supreme Court, Court of Appeal and the High Court per Article 126(1)(a) of the Constitution 1992.

[4] https://legaltechevents.com/events/2026/ghana-bar-association-annual-conference-accra

[5] https://afribar.org/

[6] https://www.myjoyonline.com/ghana-law-society-announces-maiden-annual-bar-conference-for-september-30/

[7] https://judicial.gov.gh/index.php/court-sessions/virtual-courts

[8]https://www.3news.com/opinion/prof-asare-explains-the-consequences-of-judicial-vacation-calls-for-an-urgent-evaluation-and-reforms.

[9] https://3news.com/news/legla-vacation-we-still-have-relics-of-colonialism-in-our-judicial-service

[10]https://www.thelawplatform.online/post/cj-gives-warrant-to-achibonga-and-kocuvie-tay-to-sit-during-legal-vacation-for-oral-cases

[11] Samuel Atta Akyea, Mrs. Victoria Barthe, Godfred Yeboah Dame and Augustine Obour

[12]https://ghanaiantimes.com.gh/atta-akyea-asks-chief-justice-to-withdraw-vacation-hearing-directive-in-adu-boahene-trial/

[13]https://www.citinewsroom.com/2026/08/ghana-bar-association-urges-chief-justice-to-respect-legal-vacation-rules/