Judicial Review in Zambia

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Introduction

The Constitution creates and allocates the key institutions of governance power separately to avoid the concentration of arbitrary power in one entity. As Montesquieu observed, "Constant experience shows us that every man invested with power is liable to abuse it..." Power is therefore divided among the arms of government, each of which must be able to check the others. The Judiciary, through judicial review, ensures that the Executive and other public bodies exercise their powers lawfully, reasonably and fairly.

1. Nature of Judicial Review

Judicial review is a unique supervisory process, distinct from ordinary civil proceedings. There are no traditional parties in the sense of plaintiff and defendant. Proceedings are brought in the name of the State (or the People) for the benefit of the actual applicant. The correct citation practice was explained in Winter Kabimba v Lusaka City Council (1996).

The applicable procedure is Order 53 of the Rules of the Supreme Court 1965 (1999 Edition) . The High Court Rules do not apply. Strict compliance is required (Dean Namulia Mwamba & Others v Dr Peter Machungu & Others).

Judicial review examines the decision-making process, not the merits of the decision. The court does not substitute its own opinion for that of the public body. Its role is to ensure that lawful authority is not abused (Fredrick Chiluba v Attorney-General (2003) ZR 153; Nyampala Safaris (Z) Ltd v Zambia Wildlife Authority (2004)).

2. The Two-Stage Process

Judicial review is a two-stage process.

Stage 1 – Application for Leave

No substantive application may be made unless the leave of the Court has first been obtained. The application for leave is made ex parte to a Judge of the High Court and consists of:

• Notice of Application for Leave to Apply for Judicial Review; and
• Affidavit Verifying Facts (with exhibits).

The Notice must state:

• the name and description of the applicant;
• the decision, action or omission challenged;
• the relief sought (certiorari, mandamus, prohibition, declaration, injunction);
• the grounds relied upon; and
• the applicant's address for service.

The Affidavit Verifying Facts verifies the facts stated in the Notice and exhibits the relevant documents. It does not simply repeat the contents of the Notice.

If leave is refused, the applicant may renew the application before the Court of Appeal within seven days (Copperbelt Energy Corporation v Minister of Energy).

Stage 2 – Substantive Application

Once leave is granted, the substantive application is made by Originating Motion (usually heard in open court) or Originating Summons (usually heard in chambers). The following documents must be served:

1.    Notice of Application for Leave;

2.    Affidavit Verifying Facts;

3.    Order granting leave (which may include a stay); and

4.    Originating Motion or Originating Summons.

An Affidavit of Service must be filed. Clear days must be allowed between service and the hearing date.

3. The Three Threshold Tests for Leave

The Court will grant leave only if the applicant satisfies all three tests:

Test	Description
Sufficient Interest (Locus Standi)	The applicant must have a sufficient interest in the matter. The Court has discretion to recognise a wider public interest in appropriate cases. Purpose: to prevent busybodies from clogging the system.
Promptness	The application must be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court extends time for good reason. If lapsed, must apply for extension of time demonstrating good reasons for delay.
Arguable Case	The applicant must show that the case is fit for further investigation (a sufficiently arguable or meritorious case). It is not necessary to prove that the claim will succeed.

4. Grounds of Judicial Review

The classic grounds, derived from Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) and consistently applied in Zambia, are:

Illegality

The decision-maker must correctly understand and give effect to the law that regulates his power (Derrick Chitala v Attorney-General (1995–1997) ZR 91). This includes:

• Acting without jurisdiction;
• Acting in excess of jurisdiction;
• Error of law on the face of the record.

Irrationality (Wednesbury Unreasonableness)

A decision so unreasonable that no reasonable authority could ever have come to it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

Procedural Impropriety

Failure to observe the rules of natural justice or to act fairly (Ridge v Baldwin [1964] AC 40). This includes:

• Breach of rules of natural justice;
• Duty to act fairly;
• Failure to give hearing where rights affected (e.g., dismissal from public office).

Additional Grounds

• Legitimate Expectation – Benefit previously enjoyed; expectation of hearing before withdrawal. Not mere promise.
• Bad Faith or Improper Motive

5. Remedies

The principal remedies are the prerogative orders:

Remedy	Function
Certiorari (quashing order)	Quashes the unlawful decision. Only available in public law (judicial review).
Prohibition (prohibiting order)	Restrains a public body from acting outside its jurisdiction. Can be granted even if appeal lies to another court.
Mandamus (mandatory order)	Compels the performance of a public duty. Cannot be made against the State itself, but can be made against officers of the State (e.g., Director, Permanent Secretary). Can be made against inferior court/tribunal that refuses to act.

The Court may also grant a declaration, an injunction and, in appropriate cases, damages.

Stay of Proceedings

Where the applicant seeks certiorari or prohibition, the grant of leave may operate as a stay of the proceedings under challenge if:

• The stay is specifically requested and endorsed in the Notice of Application for Leave; and
• Listed as one of the reliefs sought.

The stay continues until determination of the application or until the court orders otherwise.

6. Interlocutory Applications

The following interlocutory applications are available in judicial review proceedings:

• Discovery (Order 24);
• Interrogatories (Order 26);
• Cross-examination of witnesses;
• Interim order of injunction.

7. Who May Be Heard

Any person who appears to the Court to be a proper person to be heard in opposition may be heard, even if not served with notice. There is no joinder of parties under the High Court Rules in judicial review proceedings (Dean Namulia Mwamba & Others v Dr Peter Machungu – Supreme Court held no joinder in judicial review; interested parties simply seek to be heard).

8. Challenging Grant of Leave

A respondent may apply to the court that granted leave to set it aside. Such applications are discouraged and rarely entertained. They are only granted if the respondent shows the substantive application will clearly fail. Common in Attorney General's Chambers but rarely successful.

9. Against Whom Judicial Review Lies

Judicial Review WILL Lie Against:

• Bodies carrying out public law functions;
• Inferior courts and tribunals;
• Individual officers of the State.

Judicial Review WILL NOT Lie Against:

• Persons/bodies carrying out private law functions;
• Political parties (private clubs) – Ludwig Sondashi v MMD;
• High Court;
• Court of Appeal;
• Constitutional Court;
• Supreme Court.

Important Limitations:

Alternative Remedies: The Court will not normally grant judicial review if another avenue of appeal is available and such remedies have not been exhausted (Neoplast Industries v Attorney General).

Specific Statutory Processes: Cannot use judicial review where statute provides a specific process. Examples:

• Election disputes governed by Electoral Process Act and Constitution;
• Land disputes where Lands and Deeds Registry Act provides appeal.

10. Distinction from Appeal

Aspect	Judicial Review	Appeal
Nature	Supervisory – examines legality of the process	Reviews the correctness of the decision on the merits
Focus	Illegality, irrationality, procedural impropriety	Whether the decision was right or wrong
Parties	Available against public bodies exercising public functions	Available against decisions of courts or tribunals where statute so provides
Remedies	Certiorari, mandamus, prohibition, declaration, injunction	Variation, setting aside, or upholding of the decision
Example	Hon. Justice Dennis Chirwa v Attorney-General	M'membe and Mwape v The People

Judicial review protects public law rights. Private law disputes (even when a public body is involved in a private capacity) are generally pursued by ordinary action (Hon. Justice Dennis Chirwa v Attorney-General).

11. Constitutional Foundation

Article 118 of the Constitution requires the courts to promote accountability and impartiality. Article 134 confers on the High Court unlimited original jurisdiction, including supervisory jurisdiction over decisions of public officers and bodies. Judicial review is one of the principal means by which the courts discharge this constitutional responsibility and uphold the rule of law.

Conclusion

Judicial review remains one of the most important instruments for upholding the rule of law and ensuring accountability of public power in Zambia. It ensures that public power is exercised lawfully, reasonably and fairly. Its effectiveness depends on strict compliance with the two-stage procedure under Order 53, the three threshold tests for leave, and a clear understanding of its limited supervisory character. Practitioners must remember its strict limits: it is not a substitute for an appeal on the merits, it is subject to a short time limit and a leave filter, and it is available only in respect of public law functions. When properly invoked, it is a powerful safeguard against the abuse of public power.