Legal Vacation Does Not Mean Courts Must Shut Down — Deputy AG Srem Sai
Deputy Attorney-General and Deputy Minister for Justice, Dr Justice Srem Sai, has clarified that the law on legal vacations does not mandate the shutdown of courts.
According to him, the Chief Justice retains the power to assign judges to work during vacation periods.
In a Facebook post, Dr Srem Sai referenced Order 79 of the High Court (Civil Procedure) Rules, 2004, C.I. 47, to explain the legal position on court sittings during vacations.
He pointed to Rule 4 of Order 79, which lists the periods observed as vacations in the High Court, but noted that the provision is “subject to rule 1(1).”
Rule 1(1) states: “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.”
“It does not say that courts are to shut down,” Dr Srem Sai wrote. “As you may see from Rule 4 below, the legal vacation schedule is, by Rule 1(1), subject to the CJ’s decision to give warrants to a judge to work during the vacation.”
Addressing arguments based on an alleged convention that courts do not sit during vacations, the Deputy AG said the existence of a convention must be established by two things, that is, consistent practice and opinio juris — the uniform opinion that the practice is binding as law rather than a preference or convenience.
“The practice, as we know it, doesn’t support the existence of such an alleged convention,” he stated. “CJs have consistently, throughout the ages, given vacation warrants to judges who have conducted trials.”
Dr Srem Sai further argued that an alleged convention cannot override an express provision of law. “The express provision of law on the matter is Order 79 of CI 47. No law or practice gives a lawyer or our associations the power to determine whether court proceedings should go on.”
Order 79 of C.I. 47 sets out the days and hours of sittings, office hours, and the three vacation periods: after Easter, from 1st August to 30th September, and from 23rd December to 6th January.
The Deputy AG’s comments come amid public discussion on the operation of courts during the legal vacation, with the Ghana Bar Association pushing back that the recess is both a statutory and conventional period of rest.
The GBA maintains that under Order 79 Rule 4 of C.I. 47 the two-month break is mandatory, vacation courts are by convention limited to urgent interlocutory matters, and counsel’s participation has always been voluntary.
It adds that while lower courts continue to function on a leave roster, the status quo for superior courts remains that the vacation is “sacred” until the Judicial Service undertakes formal reforms.
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