Deputy AG Challenges GBA President's Claims on Court Trials During Legal Vacation

A prominent legal practitioner has publicly disputed the Ghana Bar Association (GBA) President's position on the conduct of trials during the annual legal vacation, arguing that the claims lack legal foundation and could undermine Ghana's justice system.

Dr. Justice Srem-Sai challenged a letter sent by the GBA President to the Chief Justice on August 10, 2024, in which two central assertions were made: that "Vacation Courts" only handle emergencies and "never" conduct trials, and that lawyers have discretion over whether to appear before such courts based on their availability.

According to Dr. Srem-Sai, both positions contradict established law, court rules, and judicial practice in Ghana.

Understanding Court Operations During Vacation

Dr. Srem-Sai clarified that during August and September when the legal vacation occurs, superior courts do not shut down entirely. Instead, they "scale down significantly," with a limited number of judges designated by the Chief Justice to handle ongoing matters.

He explained that court proceedings fall into two categories: substantive proceedings, which finally determine cases including trials, and interlocutory proceedings such as motions and summons. During vacation, judges assigned to work can conduct substantive proceedings for cases in their own courts, while only handling interlocutory matters for cases from other judges' courts.

This arrangement, he noted, prevents cases from suffering "disproportionate delays" when judges take their leave during regular term time.

"It is the Chief Justice who determines when and where a Court should work," Dr. Srem-Sai stated. "A lawyer or a body of them do not determine that."

The Legal and Professional Implications

A critical point of contention is the GBA President's suggestion that lawyers can collectively decide not to appear before vacation courts. Dr. Srem-Sai warned that granting such discretion to the legal profession would fundamentally compromise justice administration.

He argued that if lawyers were allowed to determine how justice is administered, they would prioritise their own clients' interests over the interests of opposing parties. "A lawyer's primary duty is to his client not to the client of another lawyer," he explained, emphasising why judicial discretion—not lawyer discretion—must prevail.

Dr. Srem-Sai cited the English Civil Procedure Rules, from which Ghana's vacation practice originated, noting that discretion is explicitly vested in the bench through language such as "as the Court may direct" and "subject to the discretion of the Judge."

While acknowledging that the legal profession is demanding and that vacation provides necessary rest, he noted that judges have traditionally accommodated lawyers' requests to reduce workload—but only on a case-by-case basis and at the Judge's discretion.

Why This Matters for Ghana's Justice System

The dispute reflects a deeper tension between the legal profession and the judiciary over court administration. Dr. Srem-Sai warned that the GBA President's position seeks to shift control of court proceedings from judges to lawyers, a change with "severe and far-reaching policy implication for justice administration in Ghana."

Such a shift could set a problematic precedent where professional bodies determine judicial operations rather than judicial officers. For Ghanaian litigants, this could mean delays in critical cases and undermined confidence in the rule of law.

The exchange also highlights the importance of maintaining clear boundaries between the judiciary's administrative and decision-making authority and the legal profession's advisory role. As Ghana's courts continue to navigate post-pandemic backlogs and efficiency challenges, clarity on these boundaries becomes increasingly vital.

Dr. Srem-Sai concluded that professional lawyers cannot unilaterally declare beforehand that they will not attend proceedings at all—a principle essential to maintaining functional courts and accessible justice for all Ghanaians.