The author's position is clear: many of the Practice Directions issued by recent Chief Justices — especially those unleashed in April — are unconstitutional, unnecessary, not justifiable, and will not achieve much. The Practice Directions issued by Chief Justices, especially the recent Administrative Guidelines and Practice Directions issued by Her Ladyship Chief Justice Torkornoo, suffer from a fundamental constitutional infirmity.
A. Introduction
The issuance of practice directions by Chief Justices has become an increasingly prominent feature of Ghana's judicial administration. Recent Chief Justices have used this mechanism to address systemic concerns within the court system — from case management and scheduling to conduct in court and filing requirements.
This piece subjects those directions to constitutional and statutory scrutiny. The central question is not whether the problems they seek to address are real — many of them are — but whether the Chief Justice possesses the constitutional and statutory authority to address those problems by means of binding practice directions, and whether the directions as issued are legally valid.
The fact that a thing is desirable does not make it constitutional. The desirability of a remedy is not a substitute for constitutional authority to prescribe it.
B. The Constitutional Framework
The 1992 Constitution vests legislative power exclusively in Parliament. Article 93(2) is unambiguous: "Subject to the provisions of this Constitution, the legislative power of Ghana shall be vested in the Parliament of Ghana." Any instrument that purports to have general legislative effect — binding on courts and practitioners alike — must trace its authority to an enabling statute enacted by Parliament or to a rule-making power expressly conferred by the Constitution.
The Chief Justice's administrative authority over the judiciary is recognised by the Constitution. Article 125(4) provides that "the Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary." This administrative authority, however, is not an unlimited power to legislate for the courts by means of executive direction.
C. The Statutory Framework
The Courts Act, 1993 (Act 459) and the rules made under it provide the statutory framework within which procedural rules for the courts are made. Where the legislature has created a rule-making mechanism — typically involving a Rules of Court Committee and, in some cases, parliamentary approval — the exercise of that mechanism is not a mere formality. It is the means by which the rule of law is maintained in the making of procedural rules.
Practice directions issued outside this framework, purporting to bind courts and practitioners as a matter of obligation rather than guidance, usurp the legislative function. They are, in the language of administrative law, ultra vires — beyond the power of the authority that issued them.
D. Analysis of the April 2024 Directions
The thirteen Administrative Guidelines and Practice Directions issued in April 2024 raise distinct issues of constitutional and statutory validity. Several of them purport to modify existing court rules or to introduce new obligations without going through the prescribed rule-making process. Others purport to direct the conduct of proceedings in ways that are at variance with existing statutory provisions.
The author's analysis — set out in full in the accompanying paper — examines each of the directions in turn and assesses whether it falls within the Chief Justice's administrative authority or constitutes an improper exercise of legislative power. The conclusions are, in many instances, unfavourable to the validity of the directions.
E. The Fruits of a Poisoned Tree
The metaphor of the "fruits of a poisoned tree" is drawn from the law of evidence — the principle that evidence obtained through an illegal means is itself tainted and inadmissible. Applied to practice directions, the principle is this: where the authority to issue a direction is itself constitutionally defective, the direction and everything done pursuant to it is correspondingly defective.
Courts and practitioners who proceed on the basis of unconstitutional practice directions expose themselves to challenge. Decisions made in reliance on such directions may be vulnerable to appeal or review on the ground that they were made contrary to law.
F. Conclusion
The author does not dispute that the Chief Justice has a legitimate role in providing guidance and direction to the judiciary. What is disputed is the manner in which that role is being exercised — through binding directives issued outside the constitutional and statutory framework for rule-making. The solution is not to abandon the effort to improve the administration of justice, but to pursue that effort through constitutionally sound means.
The full analysis of each of the thirteen directions, with specific constitutional and statutory grounds, is available in the accompanying paper linked below.