The recent decision of the Chief Justice to permit certain criminal cases to continue during the legal vacation has generated considerable controversy within Ghana's legal community.
While some have questioned the departure from the traditional practice of allowing the courts and members of the Bar a break during August and September, others have welcomed the initiative as a necessary and overdue response to the chronic delays that have bedevilled Ghana's criminal justice system.
If criminal cases are taking years to conclude, if accused persons are languishing on remand for years then every reasonable opportunity to bring those cases to conclusion ought to be explored.
But the controversy surrounding the legal vacation presents Ghana with an opportunity to confront a fundamental question: How seriously do we take the constitutional right of an accused person to be tried within a reasonable time?
The answer, unfortunately, is that the right is honoured more often in word than in observance.
Right
The right to a speedy trial is not merely a matter of administrative convenience.
It is an integral component of the internationally recognised right to a fair trial.
The Universal Declaration of Human Rights provides, in Article 10, for everyone's entitlement to a fair and public hearing by an independent and impartial tribunal.
The principle was developed in the International Covenant on Civil and Political Rights, whose Article 14(3)(c) guarantees every person charged with a criminal offence the right to be tried “without undue delay.”
Ghana has not merely subscribed to these international principles, it has incorporated the protection directly into its Constitution. Article 19(1) of the 1992 Constitution states:
“A person charged with a criminal offence shall be given a fair hearing within a reasonable time by a court.”
Those words should not be treated as decorative constitutional language.
They impose a real obligation.
The Constitution therefore recognises that time matters in the administration of criminal justice.
Decision
Against this background, the Chief Justice's decision to use the legal vacation to advance certain criminal trials deserves support in principle.
There is an obvious irony in complaining that criminal cases take too long while objecting to the use of otherwise available court time to bring those cases to conclusion.
The legal vacation is not itself the cause of Ghana's criminal justice problems.
If anything, the present initiative exposes the deeper problem: we have allowed delay to become normal.
The courts should sit when justice requires them to sit.
If an accused person has been waiting for years for his or her trial, it is difficult to explain why the system should allow another two months to pass simply because the calendar says it is vacation.
Nevertheless, there is a legitimate concern regarding the manner in which the present directive was introduced.
The Bar deserved advance notice.
For many years, lawyers have known that August and September constitute the traditional legal vacation period.
Members of the Bar make professional and personal arrangements around that established calendar.
The annual Bar Conference also takes place during this period.
It would, therefore, have been preferable for the Judiciary to give the Bar sufficient advance notice.
There is a crucial distinction between opposing speedy trials and asking for reasonable notice of an alteration to an established professional calendar.
The two should not be confused.
If the Judiciary had announced several months earlier that specified categories of criminal cases would be heard during the vacation, lawyers could have rearranged their calendars and ensured that cases were adequately prepared.
The issue, therefore, is not whether the courts should sit during the vacation.
They should, when circumstances demand it.
The present controversy should therefore not descend into a battle between Bench and Bar. Both have responsibilities.
Judges must manage cases firmly and resist unnecessary adjournments.
Most importantly, the system needs reliable case-management data.
Imagine a criminal case that has been adjourned 25 times.
The question should not simply be: When is the next date?
The question should be: Why has this case been adjourned 25 times?
Until we begin asking that question, the problem will persist.
Ghana must, therefore, move from a culture of adjournment to a culture of completion.
The Chief Justice's decision to use the legal vacation is a useful step in that direction.
But it cannot be the permanent solution.
The ultimate objective should be to build a criminal justice system in which cases are investigated properly before prosecution, prosecuted when the State is ready, actively managed by the courts and brought to conclusion.
The writer is a lawyer.
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