Professor Kwaku Asare has publicly challenged the constitutional basis of a lawsuit filed by former Education Minister Kojo Oppong Nkrumah. Mr. Oppong Nkrumah's suit questions the Chief Justice’s directive to allow selected criminal trials to continue during the legal vacation. Prof. Asare argues that the lawsuit struggles to identify clear constitutional violations.
Mr. Oppong Nkrumah invoked the Supreme Court’s original jurisdiction in Writ No. J1/29/2026. He seeks declarations that the Chief Justice’s warrants are unconstitutional. He claims allowing selected criminal cases during vacation amounts to unequal treatment. This, he argues, violates constitutional protections on equality, administrative justice, workers' rights, and discretionary power.
This legal debate highlights ongoing discussions about judicial efficiency and the rights of various parties within Ghana’s legal system. The Chief Justice's directive aims to ensure timely justice, especially for accused persons in custody. However, it also raises questions about the working conditions of judges and lawyers. The Supreme Court's eventual ruling will set an important precedent for judicial administration. It will also clarify the balance between judicial discretion and constitutional rights in Ghana.
In a detailed commentary, Prof. Asare stated he struggled to identify the alleged constitutional violations. He questioned what about directing judges to continue hearing criminal cases could be unfair, unreasonable, arbitrary, capricious, or biased. This is under Articles 23 and 296 of the Constitution. Prof. Asare noted that judicial administration routinely involves decisions on which courts sit and which matters receive priority. He emphasized that the fact discretion affects different people differently does not automatically mean it was exercised arbitrarily.
Prof. Asare also challenged the argument that continuing selected criminal cases during vacation amounts to “selective justice.” He explained that equality before the law does not require every case to be heard at the same time. Courts routinely differentiate cases based on factors like age, custody status, and witness availability. He added that rational differentiation in judicial case management is not prohibited by the Constitution. He further questioned which constitutionally prohibited ground of discrimination under Article 17 was implicated by the Chief Justice’s decision.
Regarding the argument that the directive violates the right to rest, leisure, and holidays, Prof. Asare offered a different view. He said Articles 24 and 36(10) do not create a constitutional entitlement for judges and lawyers to have August and September free. While Article 24 guarantees satisfactory working conditions and rest, it does 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 stated. “A right to holidays is not a constitutional entitlement to August and September.”
Prof. Asare also questioned whether the interests of lawyers and judges could be considered without taking into account the constitutional rights of accused persons. He pointed to Article 19(1) of the Constitution. This article 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. An accused person, especially 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 noted. Therefore, keeping criminal courts functioning during the legal vacation could advance the constitutional requirement for timely case determination. “A lawyer's right to rest cannot automatically become an accused person's duty to wait,” he added.
The legal community and the public will closely watch the Supreme Court's proceedings. The outcome will clarify the scope of the Chief Justice's administrative powers. It will also define the interpretation of constitutional rights related to judicial proceedings and workers' entitlements. This case will influence future judicial calendars and case management strategies. It will also impact the balance between judicial efficiency and the welfare of legal professionals in Ghana.