Supreme Court to decide whether High Court can hold criminal trials during legal vacation

Ghana's Supreme Court will on Friday, August 21, decide whether to restrain the High Court from conducting criminal trials during the ongoing legal vacation pending a ruling on a substantive case challenging the constitutionality of administrative warrants issued by the Chief Justice.

The case, brought by Ofoase-Ayirebi MP Kojo Oppong Nkrumah, raises questions about the extent of the Chief Justice's administrative powers over the scheduling of High Court cases during the legal vacation.

Justice Gabriel Pwamang, sitting as a single judge, set Friday's date after hearing arguments for and against an interlocutory injunction seeking to suspend the trials.

The substantive suit has been filed against the Chief Justice and the Attorney-General.

Counsel for Mr Oppong Nkrumah, Frank Davies, argues that administrative warrants issued by the Chief Justice allow selected High Court judges to conduct criminal trials during the vacation as though they were sitting during the ordinary court term.

He says this amounts to an improper exercise of discretion contrary to Article 296 of Ghana's Constitution, which governs the exercise of discretionary powers by public authorities.

The application has also raised concerns about the rights of accused persons whose trials continue during the vacation.

Mr Davies argued that, in some cases, judges had indicated that accused persons could be required to conduct their own defence when their lawyers were unavailable.

He said such circumstances could infringe the right to legal representation and that any resulting harm could not adequately be addressed through financial compensation.

He therefore argued that the balance of convenience favoured suspending the trials until the constitutional challenge had been determined.

Attorney-General challenges the case

The Deputy Attorney-General, Dr Justice Srem-Sai, opposed the injunction.

He argued that the case misunderstood the distinction between the Chief Justice's administrative authority to issue warrants and the judicial discretion exercised by individual High Court judges when managing cases.

He said complaints about how a particular judge conducts proceedings should be pursued against that judge through the appropriate legal process, rather than through an original action against the Chief Justice.

“Any grievance about how a trial judge conducted proceedings under a warrant ought to be pursued by way of certiorari against that judge, not an original action against the Chief Justice,” he argued.

Dr Srem-Sai also disputed the claim that there was an established rule preventing criminal trials from being conducted during legal vacation.

He argued that lawyers could not dictate to judges which matters should be heard and said the applicant, who was not a party to the underlying criminal cases, had not demonstrated exceptional circumstances warranting an

injunction.

Dispute over legal representation

Before the injunction arguments, Mr Davies challenged the Deputy Attorney-General's representation of both the Chief Justice and the Attorney-General.

He argued that because the Chief Justice was being sued over an administrative decision, the Chief Justice should have separate legal representation from the Attorney-General.

Dr Srem-Sai disagreed, saying separate representation would only be necessary where an actual conflict existed between the interests of the Chief Justice and those of the Attorney-General.

Justice Pwamang rejected the objection.

He held that the Chief Justice had been properly served with the court processes and had indicated his representation, adding that the legal representation permitted by the Attorney-General did not affect the Attorney-General's own position as a defendant.

The full reasons for that ruling are expected to be delivered on Friday.

What happens next?

The immediate question before the Supreme Court is whether to grant the interlocutory injunction and temporarily restrain the High Court from conducting the affected criminal trials while the substantive constitutional case continues.

The court's decision could have implications for the administration of criminal justice during Ghana's legal vacation and the way administrative powers exercised by the Chief Justice are challenged.

The substantive case will ultimately require the Supreme Court to determine whether the administrative warrants issued by the Chief Justice are constitutional.

The source material does not establish which specific criminal trials would be affected if the injunction were granted, or how many cases are currently being conducted under the disputed warrants.