Definition(s)

Judicial review is a public remedy, by which an individual can challenge the legality of
decisions, determinations, orders or even omissions of persons or bodies performing public
functions. It is provided under Article 134 (c) of the constitution (as amended by Act No.2 of
2016)1 which grants the High Court of Zambia the to jurisdiction to review decisions. It is by
judicial review that the Court (high Court) can exercise its supervisory jurisdiction over inferior
bodies, tribunals, public bodies and individuals performing public functions. In other words,
Judicial review refers to a procedure whereby, a court examines the exercise of a delegated
discretionary decision-making power in order to ensure that the power has been properly
exercised for its lawful purpose. Even so, judicial review allows the court can intervene where
the person or body, which has been given the power fails to act, when it is required to or when it
makes a decision which it ought not to have made when acting properly within the terms of the
mandate given to them. Nevertheless, it has been argued that judicial review is an example of the
functioning of the doctrine of separation of powers.

Function

As alluded to above, judicial review 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. Its importance is rooted in the latin maxim; “ubu ius ibi
remedium” meaning where there is a right there is a remedy. In the case of Nyampala Safaries
(Z) Limited and Others v Zambia Wildlife Authority and Others 2 the Supreme Court of Zambia
restated the following basic principles underlying the process of judicial review:

(a) The remedy of judicial review is concerned, not with the merits of decision, but
with the decision-making process itself.
(b) The purpose of judicial review is to ensure that the individual is given fair
treatment by the authority to which he has been subjected to and that it is not
part of that purpose to substitute the opinion of the judiciary or the individual
judges for that of the authority constituted by law to decide the matter in
question.
(c) a decision of an inferior court or public authority may be quashed (by an order
of certiorari) where that court or authority acted:

1
Cap 1 of the Laws of Zambia
2
(SCZ No. 6 of 2004)
 (i) without jurisdiction; or
(ii) exceeded its jurisdiction; or
(iii) failed to comply with the rules that are applicable; or
(iv) where there is an error of law on the face of the record; or
(v) the decision is unreasonable in the Wednesbury Sense, namely that it was a
decision which no person or body of persons properly directing itself on the
relevant law and acting reasonably, could, have reached.
From the above, it is clear that the function of judicial review is to provide a check on
the powers of all public bodies and private bodies exercising public functions in order
to ensure that the exercise of such power is, inter alia, not contrary to the points cited in
(c) (i) to (v).
Foundation

The philosophical foundation of Judicial Review has been pertinently stated by Scott Gordon and
James Madison. Gordon states, inter alia, that:

“In all government there is a perpetual intestine struggle, open or secret, between
authority and liberty and neither of them can ever absolutely prevail in the
contest. A great sacrifice of liberty can never, and perhaps ought never, in any
constitution to become quite entire and uncontrollable … it must be owned that
liberty is the perfection of civil society, but still authority must be acknowledged
as essential to its very existence.”3
James Madison states:

“If men were angles, no government would be necessary. If angels were to govern
men, neither external nor internal controls on government would be necessary. In
framing a government which is to be administered by men, the great difficulty is
this: you must enable the government to control the governed and in the next
place oblige it to control itself.”4
Procedural aspect of Judicial Review

The procedure that is currently obtaining in judicial review matters in Zambia is governed by
Order 53 of the Rules of the Supreme Court, 1999 edition. This is because there is no rule under
the High Court with which Judicial Review proceedings can be instituted and conduced. Thus,
by virtue of Section 10 of the High Court Act, 5 the High Court is guided as to the procedure and

5
Chapter 27 of the Laws of Zambia
practice to be adopted. Even so, this position was espoused by the Supreme Court of Zambia in
the case of Dean Namulya Mung'omba and Others v Machungwa and Others: 6 “Order 53 is
comprehensive. It provides for the basis of Judicial review; the parties; how to seek the remedies
and what remedies are available.”

As regards procedure, Order 53 Rule 3 (1) of the Supreme Court Practice, 1999 (White Book)
provides that no application for judicial review shall be made unless the leave of court has been
obtained. It is therefore common cause that currently, before judicial review process can be
issued, the applicant must first obtain leave of the court as stipulated in Order 53/3 of the RSC.
This is true when reference is made to the cases of Frederick Jacob Titus Chiluba v Attorney
General7 and Attorney General v Nigel Kalonde Mutuna and 2 Others. 8 In the former, the
Supreme Court held that: "The hearing of an application for judicial review does not start from
the day set for the motion. The Application starts with notice of application for leave to apply for
judicial review." Whereas in the latter, the Supreme Court held that: "[T]he first stage of the
judicial review is a stage of applying for leave. At that stage and this is common ground that it is
a filter stage."

It is also common cause that currently, where the High Court has granted leave to apply for
judicial review, the respondent can, as provided by Order 53/14/4 of the RSC, apply to have such
leave discharged. This is also echoed by the case of Attorney General v Nigel Kalonde Mutuna
and 2 Others.9 Even so, as rightly stated in the case of The People v Patents and Companies
Registration Agency and Another10; the purpose of the requirement for leave as set out in the
Rules of the Supreme Court is: "to eliminate at an early stage any applications which are either
frivolous, vexatious or hopeless, and to ensure that an applicant is only allowed to proceed to a
substantive hearing if the court is satisfied that there is a case fit for further consideration."

Further, it is common cause that where the High Court refuses to grant leave, the applicant's case
ends at that stage unless the applicant renews the application before a higher court which grants
leave.

6
(2003) Z.R. 17.
7
(2003) Z.R. 153.
8
SCZ/8/185/2012
9
Ibid
10
(2017/CCZ/R003) [2018] ZMCC 250 (28 June 2018)
Bodies amenable to Judicial Review

As provided above, judicial review is a public remedy, by which an individual can challenge the
legality of decisions, determinations, orders or even omissions of persons or bodies performing
public functions. The test is not whether or not the authority is government body as opposed to a
private body. The court will look at the functions: - whether it is a body exercising powers
parallel or similar or analogous to those exercisable by government bodies. This was stated by
Lloyd LJ, in the case of R v. City Panel on Takeovers and Mergers ex parte Datafin Limited 11
where he recognized that in some cases the matter would be unclear, where the situation existed,
it was necessary to look beyond the source of power and consider the ‘nature of the power’ being
exercised. In other words, according to Lloyd LJ. for the most part, the source of power will be
decisive. In Lloyd’s view, if a body in question is exercising public law functions, or if the
exercise of its functions have public law consequences, then that may be sufficient to bring the
body within the reach of judicial review. Hence, if a body is set up under the statute or by
delegated legislation, then the source of the power brings the body within the scope of the
judicial review.

However, it should be stressed that there has been some misconception as to what a “public
body” is. Judicial review is only available to test decisions made by public bodies. If judicial
review is applied for, and the Court rules or determines that the body whose decision is being
challenged is a private body, then the remedy will lie in private law, not public law proceedings.
This was the case in Ludwig Sondashi vs. Godfrey Miyanda (sued as National Secretary of the
MMD.12

The appellant had been expelled from the respondent political party and he sought a judicial
review and a declaration that he had been wrongly expelled. The Trial Court found that the
wrong procedure had been adopted, as respondent was a society dealing with private matters.
The application was dismissed. On appeal to the Supreme Court, the questions to be considered
was whether the tribunal against, which the order was sought was one dealing with public law,
the Respondent being a political party and its concerns being those of a private association, its
tribunals dealing with private, not public law, judicial review could not lie against a political
party. It was held that the Appellant was entitled to come to court, but had adopted a wrong
11
(1987) QB 815
12
(1995/1997) ZR
procedure as “the proper course would have been to have issued a writ of summons claiming a
declaration and injunction, not by way of application for judicial review.” Similarly, in
Nkumbula vs Attorney-General,13 the United National Independence Party (UNIP) was held to
be a club and therefore a subject of private law.

The reason why public law disputes have been subjected to the Order 53 procedure is that
specific protections have been incorporated into this order for benefit of public authorities. It is a
trite or settled law that government is a privileged litigant.

Grounds for Judicial Review

In Council of Civil Service Unions v Minister of State for Civil Service, 14 the House of Lords,
took the opportunity to offer a rationalization of the grounds for judicial review and ruled that
the basis for judicial review could be subsumed under three principal heads, namely: Illegality,
Irrationality, and Procedural Impropriety. Lord Diplock elucidated the concepts as follows:

i. By ‘illegal’ as a ground for judicial review, I mean that the decision maker must
understand correctly that the law regulates his decision making power and give
effect to it.
ii. By ‘irrationality’ I mean what can now be succinctly referred to as Wedbesbury
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 has applied
his mind to question to be decided could have arrived at it. Whether the decision
falls within this category is a question that judges by their training and
experience should be well equipped to answer.
iii. Procedural Impropriety is a failure to observe basic rules of natural justice or
failure to act with 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 rules that are expressly laid in the legislative instrument by
which its jurisdiction is conferred, even though such failure does not involve any denial of
natural justice. Further grounds may include proportionality and abuse of power.

13
(1978) Z.R. 388.
14
(1981) AC 363
In Zambia, the length and breadth of judicial review has been pronounced in several Supreme
Court, and High Court matters one of which is Nyampala Safaris Zambia Limited & Others v
Zambia Wildlife Authority,15 in which the Court said as follows:

"…. [A] decision of an inferior Court or a public authority may be quashed (by an
order of certiorari) where the Court or authority acted: -
i. Without jurisdiction;
ii. Exceeded its jurisdiction;
iii. Or failed to comply with rides of natural justice where those rules are
applicable;
iv. Where there is an error of law on the face of the record; or
v. The decision is unreasonable in the Wednesbury sense."
Remedies available in Judicial Review

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:
(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.
(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 law remedies namely certiorari, prohibition, mandamus are discretionary except for
habeas corpus. Certiorari and Prohibition are similar in effect and may be dealt with together.
15
(2004) Z.R. 66
The essential difference between them is that of timing. Certiorari lies to quash a decision
already made while 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 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 its duty to do so.

A writ of Hebeas 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. An injunction is a standard remedy of private law for
forbidding the commission of an unlawful act. This may be refused where another remedy is
available or the Plaintiff has been guilty of some delay. This is because it is an equitable remedy,
and as the court in Hina Furnishing Lusaka Limited v Mwaiseni Properties Limited 16
“[I]njunction is an equitable remedy and the Court may not exercise its discretion to grant it
where the plaintiff is in breach of the contract.” A declaration simply declares the legal position
of the parties as they stand. It is not enforceable per se. Once the legal positon is stated other
remedies may be available. In Zambia declarations are sparingly granted. It is valuable where a
right has not been breached so that the rights of the parties are merely stated.

REFERENCES
Statutes

16
(1983) Z.R. 41.
The Constitution (as amended by Act No.2 of 2016) Cap 1 of the Laws of Zambia

The High Court Act, Chapter 27 of the Laws of Zambia

Cases

Attorney General v Nigel Kalonde Mutuna and 2 Others SCZ/8/185/2012

Council of Civil Service Unions v Minister of State for Civil Service (1981) AC 363

Dean Namulya Mung'omba and Others v Machungwa and Others (2003) Z.R. 17.

Fredrick Jacob Titus Chiluba v Attorney General (2003) Z.R. 153.

Hina Furnishing Lusaka Limited v Mwaiseni Properties Limited (1983) Z.R. 41.

Nyampala Safaris (Z) Limited and Others v Zambia Wildlife Authority and Otehrs (2004) Z.R.
49.

Nkumbula (Harry Mwanga) and Simon Mwansa Kapwepwe v The Attorney-General (1979) ZR
267 (SC)

People v Patents and Companies Registration Agency and Another (2017/CCZ/R003) [2018]
ZMCC 250 (28 June 2018);

R v. City Panel on Takeovers and Mergers ex parte Datafin Limited (1987) QB 815

Sondashi v Miyanda (sued as National Secretary of the Movement for Multi-Party Democracy)
(1995 – 1997) Z.R. 1