UNIVERSITY OF LUSAKA SCHOOL OF LAW UNIT 8: REMEDIES OF JUDICIAL REVIEW Kasumpa M. Kabalata UNIVERSITY OF LUSAKA SCHOOL OF LAW

INTRODUCTION Administrative excesses must be checked through judicial intervention. Administrative law relates to decisions of officers or organs of central government or public authorities which may affect the rights or liberties of the citizens and which are enforceable in or recognized by the courts of law. Judicial review is an integral component of administrative law.

INTRODUCTION Judicial review is the central feature of administrative law. It represents the judiciary seizing the constitutional responsibility of curbing abuse of executive power. It is a special supervisory jurisdiction, which the courts approach in a special way. It’s importance is rooted in the latin maxim; “ubu ius ibi remedium” meaning where there is a right there is a remedy

INTRODUCTION Judicial review is not an appeal from a decision, but a review of the manner in which the decision was made. This was a dictum of Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155. In the same case, Lord Hailsman said that the purpose of judicial review is to ensure that an individual is given fair treatment by a wide range of authorities, whether judicial, quasi-judicial or administrative, to which the individual has been subject. It is not part of that purpose to substitute the opinion of the judiciary or of individual judges, for that of the authority constituted by law to decide the matters in question.

INTRODUCTION In R v Chief Justice of Kenya and others ex parte Lady Justice Roselyn Naliaka Nambuye (2004), the applicant challenged a decision of a tribunal on merits. In this case the applicant, a judge, filed a judicial review application to challenge the competence of a Tribunal appointed under section 62 of the Kenya Constitution to consider the question of her removal from office. She alleged breach of her constitutional rights.

INTRODUCTION The Court held, inter alia: “This cannot be a cause of action under Judicial Review because the Judicial Review jurisdiction does not avail to attack a decision given on merit by a tribunal. The remedy lies on appeal. The Court while exercising its judicial review jurisdiction does not sit on appeal…”.

INTRODUCTION Unlike judicial review, appeal concerns itself with the merits of a decision. When a matter goes on appeal, the major consideration that will govern the appellate court on whether to confirm or to disturb a decision is whether the decision in question is right or wrong on the basis of the law and the facts. Judicial review on the other hand concerns itself with the legality of the decision, and the guiding principle in quashing a decision, is whether that decision is lawful or unlawful.

INTRODUCTION Another attribute of Appeal is that it is granted by Statute, that is, unless a Statute expressly allows appeal, an aggrieved party cannot lodge an appeal against a decision. Conversely, in matters which are reviewable, the court exercises inherent powers, which gives it authority to review unlawful or illegal decisions.

INTRODUCTION Courts of law may intervene in the decisions of the executive and public bodies through the judicial review in any of the following circumstances: (a) when a body acts ultra vires (b) when there is jurisdictional error (c) when there is an error of law (d) when there is an error of fact (e) when there is abuse of power

INTRODUCTION (f) when irrelevant considerations governed the making of a decision (g) when there is bias (h) when there is unfair hearing (i) when there is a procedural flaw (j) when there is irrationality (k) when there is bad faith

INTRODUCTION It is obvious from a reading of the above that there is plenty of overlapping. For this reason Lord Diplock in the case of Council of Civil Service Unions v. Minister for Civil Service [1985] AC 374, opted to classify all of them in three divisions namely: (i) Illegality (unlawfulness) (ii) Irrationality (unreasonableness), and (iii) Procedural Impropriety (unfairness) The three limbs are neither exhaustive nor mutually exclusive.

INTRODUCTION To quote Lord Diplock in extenso: “Judicial Review has I think developed to a stage today when … one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds … but to dispose of the instant case, the three already well established heads that I have mentioned will suffice. By ‘illegality’ as a ground for judicial review, I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

INTRODUCTION By ‘irrationality’ I mean what can now succinctly be referred to as ‘Wednesbury unreasonableness’ … It applies to a decision, which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well-equipped to answer, or else there would be something badly wrong with our judicial system… I have described the third head as procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid out in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice”.

REMEDIES In English law or Zambia legal system there are a number of judicial remedies available to a person who is aggrieved by an administrative act or determination. He may proceed by way of: (a) application for judicial review under Order 53 of the Rules of the Supreme Court by which means he may seek any one or more of the following remedies, namely:

REMEDIES (i) Certiorari (ii) Prohibition (iii) Mandamus (iv) Declarations (v) Injunctions (vi) Damages (b) ordinary action for declaration or injunction otherwise than by way of application for judicial review, but only in very exceptional circumstances, such Parliamentary election petitions.

REMEDIES (c) Ordinary action in tort or in contract (d) appeal to the courts, where this is provided for; and (e) application for the Writ of Habeas Corpus Certiorari, prohibition, mandamus and habeas corpus are known as Public law remedies or prerogative orders. Injunction, Declarations and Damages are known as Private law remedies.

PUBLIC REMEDIES Public law remedies namely certiorari, prohibition, mandamus are discretionary except for habeas corpus.

certiorari Certiorari and Prohibition are similar in effect and may be dealt with together. The essential difference between them is that of timing. Certiorari lies to quash a decision already made; Prohibition to prevent the Commission of a future action which would be ultra vires or in breach of natural justice. These remedies are often complementary, with Certiorari quashing a decision already reached and prohibition controlling the legality of future decisions. Both are discretionary.

Mandamus Mandamus compels the performance of a public duty. Whereas Certiorari and prohibition serve to control illegal acts, mandamus serves to compel a public authority to act where it has failed in it’s duty to do so. A Statutory duty must be performed within a reasonable time and mandamus lies to compel such performance. See the case of R Vs Secretary of State for the Home Department ex parte Phasokpar and Begum.

mandamus In this case the COA held that the issue of certificates or partiality which would have allowed the applicant wives from India and Bangaladesh respectively to exercise their right to join their husbands in England “Without Let or Hindrance” could not be delayed without good cause. The Home office could not refuse to consider their applications and mandamus lay accordingly.

Habeas corpus A writ of Habeas Corpus translated to “Bring the body of …” requires an imprisoner to justify the imprisonment. It is not subject to the application for Judicial review but is available as the right by Writ. It is not discretionary.

injunction An injunction is a standard remedy of private law for forbidding the commission of an unlawful act. It’s sanction is imprisonment or a fine. This may be refused where another remedy is available or the Plaintiff has been guilty of some delay.

DEAN N. MUNG’OMBA, BWALYA K DEAN N.MUNG’OMBA, BWALYA K. NG’ANDU AND ANTI-CORRUPTION COMMISSION v PETER MACHUNGWA GOLDEN MANDANDI & A/G Supreme Court held that an interlocutory injunction can be obtained in Judicial Review proceedings pending the determination of the substantive Judicial Review application. The matter or circumstance to be considered are more than the balance of convenience as between the parties concerned a very important consideration will be the public interest concerned.

declaration A declaration simply declares the legal position of the parties as they stand. It is not enforeceble per se. Once the legal position is stated other remedies may be available. In Zambia declarations are sparingly granted. It is valuble where a right has not been breached so that the rights of the parties are merely stated.

damages These are relevant in Contractual and Tort liabilities for public authorities. This remedy has gained greater prominence as a means of ensuring that powers are exercised responsibly, in good faith and with due care.

Discretionary nature of remedies Both public and private law remedies are discretionary in nature.(Except Writ of Hebeas Corpus). The Court may require that a person exhausts all available remedies before accessing Judicial review.

Procedure for judicial review Leave stage The Application is made Ex Parte and operates as a filter to prevent hopeless applications proceeding. Merit Stage This stage requires full considerations of the merits of the application. Locus Standi This stage seeks to ensure that not just anyone can bring an Application or Judicial review but to ensure that one has a sufficient interest.