The Supreme Court will hear my nephew Kojo’s application for an interlocutory injunction to restrain the Chief Justice and designated High Court judges from continuing certain criminal trials during the legal vacation.

The village is buzzing. Our own Kojo is asking the SC to shut down some courts of the land.

GOGO has had the opportunity to read his application. As his uncle, it now falls to me to explain to the village what tomorrow is, and is not, about.

Tomorrow is not about whether the CJ’s vacation warrants are constitutional. That is the substantive action and will be determined later.

The question tomorrow is much narrower: should the SC stop ongoing criminal trials while it determines whether the CJ’s vacation warrants are constitutional?

ADVERTISEMENT

It is also my unpleasant duty to inform the villagers that my nephew’s application appears to stand on rather weak ground, particularly in light of the SC’s recent jurisprudence.

Kulendi’s Recent Warning

In Vincent Ekow Assafuah v Attorney-General, decided in May 2025, the SC considered an application to restrain the Article 146 process concerning the then CJ.

Kulendi JSC emphasized that the ordinary principles governing interlocutory injunctions become substantially more demanding when a court is asked to restrain the exercise of public constitutional or statutory authority.

According to Kulendi JSC, an applicant must demonstrate with “compelling clarity” the threat or existence of a “gross and flagrant constitutional violation.” The applicant must also establish irreparable harm or hardship sufficiently substantial to outweigh the public interest in allowing the public process to continue.

In Kulendi JSC’s words, “a significantly higher threshold is required.” In plain village language, my nephew has a very high mountain to climb.

That approach builds on Welford Quarcoo v Attorney-General, where Date-Bah JSC cautioned that, in public-law cases, courts must take particular care before halting action presumptively undertaken for the public good. Very cogent reasons are required.

A Serious Question Is Not Enough

Paragraph 22 of my nephew’s affidavit says that his substantive suit raises “serious and substantial constitutional questions.”

Perhaps it does. But that only gets him to the foot of Kulendi’s mountain. When the relief sought is an injunction stopping the exercise of public authority, it is not enough merely to demonstrate an arguable or serious constitutional question. The recent jurisprudence demands substantially more.

Regrettably, I struggle to find on the face of my nephew’s affidavit the gross and flagrant constitutional violation demonstrated with compelling clarity.

The CJ has not prevented judges from hearing cases. He has directed designated judges to continue hearing criminal cases during the legal vacation.

Whether he has the legal authority to do so is precisely the question to be determined in the substantive action. But disputing that authority does not, without more, establish with compelling clarity the gross and flagrant constitutional violation required to justify stopping the administration of criminal justice in the meantime.

Where is the irreparable harm?

The affidavit says that unless the injunction is granted, witnesses may testify, documents may be admitted, cross-examinations may occur, rulings may be delivered, and some criminal trials may even conclude.

But those are not ordinarily injuries. They are what criminal courts are supposed to do.

If the SC ultimately determines that the warrants are unconstitutional, it retains ample authority to determine the legal consequences of proceedings conducted pursuant to them.

That reasoning is also consistent with Welford Quarcoo. Where subsequent judicial relief remains available to address the challenged governmental action, the case for stopping that action in advance becomes considerably weaker.

Delay, However, Is Irreversiable

My nephew’s affidavit treats stopping the trials as though it were essentially costless. Paragraph 23 says that if the injunction is granted but the substantive action ultimately fails, “the ordinary administration of criminal justice can resume.”

Of course it can. But time cannot resume.

An accused person who unnecessarily spends additional weeks in custody cannot be given those weeks back. An accused person on bail remains under the burden of an unresolved criminal charge. Witness memories do not improve with delay. Victims and complainants continue waiting. Public resources already committed to ongoing trials are disrupted.

Ironically, paragraph 26 recognizes that the warrants affect accused persons, complainants, victims, lawyers, judges, Judicial Service personnel and the wider public.

But these people mysteriously disappear when the affidavit gets to the balance of convenience.

Kulendi’s formulation requires precisely that comparison. The alleged irreparable harm must be sufficiently substantial to outweigh the public interest in allowing the public process to continue.

And what is the public process my nephew wants stopped? The adjudication of criminal cases by constitutionally appointed judges. That is a formidable public interest to overcome.

What Status Quo?

The affidavit repeatedly says that an injunction is necessary to preserve the “status quo.” But what exactly is the status quo?

These include part-heard criminal trials. If witnesses were being heard before August 1, the status quo was an ongoing criminal trial. Stopping such a trial for the vacation does not preserve the status quo.

It changes it.

Indeed, paragraph 13 of my nephew’s own affidavit expressly says that the warrants “are presently being implemented.”

So the application asks the Supreme Court to stop proceedings already underway and describes the stoppage as preservation. That is an interesting use of the word “preserve.”

And Show Me The Criminal Vaction

Then there is the problem lurking beneath the entire application. My nephew relies heavily on section 80(2)(g) of the Courts Act and Order 79 of C.I. 47.

But C.I. 47 is the High Court (Civil Procedure) Rules. The proceedings he wants the Supreme Court to stop are criminal trials.

So GOGO returns to the simple question he has been asking from the beginning: Show me the criminal vacation.

What rule of criminal procedure says that a part-heard criminal trial must stop merely because August 1 has arrived?

The GBA may speak of the “hallowed tradition and practice of the legal vacation.”

GOGO respect hallowed traditions. Villages have many of them. But a hallowed tradition does not become a legal prohibition merely because it has been hallowed for a long time.

And even Order 79 complicates the argument because the vacation provision exists within a regime that permits the CJ to appoint days, including during vacation, for hearings where circumstances require.

These questions ultimately belong to the substantive action. But they make it considerably harder, at this interlocutory stage, to demonstrate with compelling clarity a gross and flagrant constitutional violation.

The Better Remedy Is Speed

My nephew is perfectly entitled to test the constitutionality of the warrants. The SC should hear him. And it should hear him quickly.

There is, of course, some irony in asking the SC to sit promptly during the legal vacation to decide whether other judges may sit during the legal vacation.

But we shall leave that small village matter for another day.

What does not follow is that criminal trials must stop while my nephew pursues his constitutional action.

Under Welford Quarcoo, very cogent reasons are required before public action presumptively undertaken for the public good is halted. Under Kulendi JSC’s more recent formulation, an applicant seeking to restrain public constitutional or statutory authority faces a significantly higher threshold: a gross and flagrant constitutional violation demonstrated with compelling clarity, together with irreparable harm sufficient to outweigh the public interest in allowing the process to continue.

On the affidavit before the Court, I struggle to see that showing.

My nephew must have his day in court. We in his holy village demand nothing less.

But he must also explain why everybody else’s day in court must be postponed while he has his.