Judicial Review in Zambia

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The constitution creates and allocates the key institutions of governance power separately to avoid the concentration of arbitrary excess power in one entity. Because, as formulated by Montesquieu “Constant experience shows us that every man invested with power is liable to abuse it...”. [1] Thus, a need to divide it among institutions and ensure each of those institutions has a way to conduct checks and balances on others. The Judiciary in particular can declare acts of the legislature and acts by the executive unconstitutional through judicial review.

 

What are Judicial Reviews

Judicial reviews are powers of the court under Order 53 Rule 5 of the White Book,[2] to review a “decision, action or failure to act, in relation to the exercise of a public function”[3]. Judicial reviews were established after the formulation of the welfare state which increased the likelihood of private citizens' activities conflicting with the governmental exercise of power.[4]

 

 

The Focus Courts in Judicial Reviews

The focus of courts in judicial reviews is on the decision-making process to enforce and recognize the discretionary powers granted to regulatory bodies in carrying out their mandates. A decision is a choice between alternatives.[5] Administrators are responsible for making decisions that are legal, rational or reasonable, and in line with the rules of natural justice as elaborated in  Council of Civil Service Unions v Minister for the Civil Service.[6] Every decision is made after various steps are taken. It is the lack of obedience by administrators to these steps that aggravates an individual to challenge the decision in court.

The courts in judicial reviews do not focus on the merits of the decision. The merit of the decision is concerned with whether a decision is right or wrong. Merits of the decision are challenged under a different head of action which is through an appeal because, by courts focusing on the merit of the decision by an administrative body, as necessitated by Reg v Home Secretary,[7] the courts will usurp the discretionary power granted to administrative bodies. The court’s jurisdiction over the decision made by administrative bodies is supervisory, [8] in nature and totality. The court's role is to stop administrative bodies from doing things that they have no power to do while upholding Article 118 of the Constitution of Zambia,[9] which provides that courts are mandated to promote accountability and impartiality. Courts in judicial reviews thrive on the ultra vires principle (beyond the powers principle) where they intervene with a decision by judicial review only when an individual brings a matter to them that involves the failure of administrative bodies to act in line with the law in making the decision.  According to Whitehead and Kadar,[10] Judicial reviews should not be a case where an individual is not happy with the merit of the decision and wants the court to satisfy their whims. This view is supported in the case of Fredrick Chiluba v Attorney-General,[11] where the Supreme Court did not grant a judicial review when the appellant was not happy with the decision of the National Assembly to remove his presidential immunity which was in their jurisdiction.

Another instance is in Nyampala Safaris (Z) Ltd and Others v Zambia Wildlife Authority and Others,[12] where the appellant was aggrieved by the merits of the decision by Zambia Wildlife Authority (ZAWA). The High Court dismissed the applicant's application. The applicants appealed against the high court’s judgment to the Supreme Court. The supreme court examined the high court’s judgment and further examined the applicant’s application for judicial review by looking at the decision-making process whether the respondent (ZAWA) acted within the confines of the law and whether its decision was rational, reasonable, and in line with the rules of natural justice. From then on, the Supreme Court dismissed the appellants’ appeal which was solely based on the merits of the decision and not the process.

 

The Criteria The Courts Use to Determine Whether the Application to Review a is Suited For Judicial Review.

Firstly, the court will determine whether the administrative body that has made the decision is the right one to make such a decision and assess whether the decision was made within the confines of the enabling legislation (No illegality) as elaborated in  Derrick Chitala v Attorney General.[13]

Secondly, the court will look at whether the administrative body that has made the decision acted in a way a person or body of persons properly directing itself on the relevant law and acting reasonably (No irrationality), could have decided contrary to the Wednesbury Sense, elaborated in  Associated Provincial Picture House Ltd Vs. Wednesbury Corporation.[14]

Lastly, the court will look at whether the decision was made following the rules of natural justice (No procedural impropriety) as elaborated in Ridge v Baldwin,[15] and Board of Education v Rice.[16] With the criteria elaborated above the courts will determine whether the application to view a decision brought forth by an applicant is suited for judicial review.

The Purpose of Judicial Review

The purpose of judicial review is aimed at fair treatment by the authority constituted by law rather than the application of the opinion of the judiciary or individual judges. This is so because authority constituted by law is objective compared to the subjective opinion of a judge who might be influenced by various social agents that might lead to unfair treatment. Article 18(1) of the Constitution of Zambia[17]  provides that every person has a right to a fair hearing in all the courts. As cited in Fredrick Chiluba v Attorney-General,[18]  “The function of the court is to see that lawful authority is not abused by unfair treatment. If the court were to attempt the task entrusted to that authority by the law, the court would, under the guise of preventing the abuse of power, be guilty itself of usurping power”, which is contrary to the rules of natural justice.

 

The Difference Between Judicial Reviews and Appeals

Firstly, Judicial reviews fundamentally are actions proceed by any individual who is aggrieved by the actions or decision of administrative authority while an appeal is an action brought about by an individual who is aggrieved or not satisfied by the decision of a lower court thus, they raise grounds as to why their case has to be heard by a higher court because the lower court errored. An example of Judicial review is the case of Hon. Justice Dennis Chirwa v Attorney General,[19] where a retired judge of the Supreme Court Mr. Justice D.K. Chirwa was aggrieved by a decision by the president to withhold his benefits and entitlements thus he applied for a judicial review which was granted by the high court after finding that his case was a proper case for a judicial review based on the fault in the decision-making process undertaken by the president. An example of an appeal is in the case of M'membe and Mwape v. The People,[20] the appellants were not satisfied with the decision by the magistrate's court which held that they contravened Section 69 of The Penal Code Act.[21] They appealed to the high court and it ruled that Section 69 was against the right to freedom of expression in Article 20 and was discriminatory and thus in breach of Article 23 of the Constitution of Zambia.[22]

Secondly, judicial reviews can be distinguished from appeals based on the subject matter of the court's jurisdiction. In judicial reviews, the court's jurisdiction lies in the legality of the decision made by the administrative body in line with the power it is conformed with while an appeals court's jurisdiction lies in the rightfulness or wrongfulness of the decision about the provision of the law.[23]

Thirdly, judicial reviews can be distinguished from appeals on the base of rights protected under public and private law. “Judicial review is only concerned with rights which are recognized in and protected by public law”.[24] As it is only available to review decisions made by a public body. A decision made by a private body that is challenged, remedies for it lie in private law proceedings as particularised in Hon. Justice Dennis Chirwa v Attorney General.[25] While appeals are available in both public and private law.

Lastly, judicial reviews can be distinguished from appeals on the base of some of the remedies awarded after a successful claim. The remedies sought in judicial review proceedings include quashing orders, mandatory orders or prohibiting orders,[26] while the remedy sought in the appeal includes overturning, vacating, upholding or remanding the judgment.

 

Reference 

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[1] Montesquieu, The Spirit of the Laws, (London: Printed for J. Collingwood, 1823)

[2] The Supreme Court Practice, 1999 (White Book)

[3] Law Teacher, 'Judicial Review Lecture', 2022. <https://www.lawteacher.net/lectures/public-law/judicial-review/what-is-judicial-review/?vref=1> accessed 28 September 2022

[4] ibid

[5] Aldous, M. and Alder J., Applications For Judicial Review: Law And Practice Of The Crown Office (1993)

[6]  Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374

[7] Reg v Home Secretary [1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145

[8] Law Teacher, 'Judicial Review Lecture', 2022. <https://www.lawteacher.net/lectures/public-law/judicial-review/what-is-judicial-review/?vref=1> accessed 28 September 2022

[9] The Constitution of Zambia (Amendment), 2016-Act No. 2.

[10] Whitehead and Kadar, A Foundation in English Law (1992) P. 442

[11] Fredrick Chiluba v Attorney-General (2003) ZR 153

[12] Nyampala Safaris (Z) Ltd and Others v Zambia Wildlife Authority and Others (SCZ 6 of 2004, Appeal 135 of 2003) [2004] ZMSC 95 (26 April 2004).

[13] Derrick Chitala v Attorney General (1995 - 1997) ZR 91

[14] Associated Provincial Picture House Ltd Vs. Wednesbury Corporation [1948] 1KB, 223

[15] Ridge v Baldwin [1964] AC 40

[16] Board of Education v Rice HL 6 Apr 1911

[17] The Constitution of Zambia (Amendment), 2016-Act No. 2.

[18] Fredrick Chiluba v Attorney-General (2003) ZR 153

[19] Hon. Justice Dennis Chirwa v Attorney General (HP 534 of 2013)

[20] M'membe and Mwape v. The People (1995 - 1997) ZR 118 (SC)

[21] The Penal Code Act CAP 87

[22]The Constitution of Zambia (Amendment), 2016-Act No. 2.

[23] Law Teacher, 'Judicial Review Lecture', 2022. <https://www.lawteacher.net/lectures/public-law/judicial-review/what-is-judicial-review/?vref=1> accessed 28 September 2022

[24]Kaluma, P. Judicial Review: Law Procedure and Practice (Nairobi Law Africa Pub, 2012)

[25] Hon. Justice Dennis Chirwa v Attorney General (HP 534 of 2013)

[26] Law Teacher, ‘Application, Grounds and Remedies for Judicial Review ', 2018. https://www.lawteacher.net/lectures/public-law/judicial-review/applications-grounds-remedies/?vref=1> accessed 28 September 2022