THE COPPERBELT UNIVERSITY-(CBU)
SCHOOL OF HUMANITIES AND SOCIAL SCIENCES
DEPARTMENT OF LAW
NAME: BRIAN KANGU MAMBWE
SIN: 23900448
PROGRAM: BACHELOR OF LAWS
CODE: LS 100
LECTURER: VIVIEN ZIMBA
ASSIGNMENT # 3
Question
Introduction
This assignment highlights the opportunities and challenges that applicants of
judicial review face as they pursue it to seek justice.
Definition
Zambia being a democratic society and a country anchored on the tenets of the rule
of law and the supremacy of the legislative, has a written constitution which is the
supreme law of the land. The constitution embodies laws that help protect its citizen
from administrative authority abuses through unpopular decision that may affect
people. When this happens, the decisions of the administrative authority can be
challenged in the courts of law via what is called judicial review. It is of utmost
importance that people are given a means to which they redress the grievances
caused by maladministration and abuse of power. It is important to know that without
judicial review in place, it would mean the very tenets of democracy and justice that
our constitution stands on would be in dire disaster .Judicial review provides for a
way in which grievances between parties can be addressed and the scale of justice
balanced.
Judicial review can be defined as the courts power to review the actions of the other
branches of government to ensure that they make decisions properly and in
accordance with the law. The institutional ability of courts of law to judge the
constitutionality of decisions made by either superior or co-ordinate institutions of
government is known as judicial review. It is the result of effort to ensure that laws
and the actions of those empowered to implement them would be consistent with the
fundamental governing structures, as well as to restrict the authority of those
permitted to interpret both religious and secular texts (J.Grossman,2001).
There are three main grounds of judicial review, namely:
1. Illegality
2. Irrationality
3. Procedural unfairness
It is significant to remember that the degree to which the rule of law can be
established depends on how a nation's courts behave toward judicial review. Order
53 of the Supreme Court of England's Rules (often known as the "White Book")
governs the Judicial Review procedure in Zambia. According to Section 10(1) of the
High Court Act, the High Court's practice and procedure must be substantially in
accordance with the Supreme Court Practice, 1999 (White Book) of England if there
is no statute establishing a specific method. The Supreme Court of Zambia is
similarly governed by Section 8 of the Supreme Court Act.
It is important to acknowledge that judicial review is an important component of
justice when properly applied in a nation that values the rule of law as part of
democratic tenets. It is significant to remember that Order 6 Rule 1 of the High Court
Rules stipulates that, with the exception of cases involving petitions under the
Matrimonial Causes Act, the Constitution, and requests for writs of habeas corpus,
all legal proceedings must The courts place too much emphasis on the manner of
initiation and not enough on the issue a litigant is trying to resolve, which makes it
difficult to achieve constitutionalism through judicial review.
Judicial Review Procedural Application Opportunities for Applicants
Zambia being a democratic country where the rule of rule and the supremacy of the
constitution is held to the highest esteem as the supreme law of the land, any citizen
is eligible or qualifies to seek judicial review if he or she feel the administrative
authority abused power or authority when making a certain decision that affected him
or the entire community. This is a right that is to be enjoyed by an eligible citizen of
the nation hence opportunity for the applicant lies in the provision of the law to apply
for judicial review whenever a person or the people feel grieved by the administrative
authority.
The other opportunity is that once that court accept the leave for judicial review, a
person has an opportunity to present his facts of the case to the courts so that the
courts can ascertain the grounds or basis of application presented whether or not
there is an case to allow for further investigation so that process can proceed or not.
Judicial Review Procedural Application Challenges for Applicants
The biggest challenge that judicial review applicants face is the procedural delay
involved to seek judicial review. The length process of the procedure is one of many
challenges applicant face for it entirely relies on the approval of the courts to proceed
or not. It is important to take note that during this process, the courts insist too much
on the mode of commencement at the expense of the problem a litigant faces,
thereby not being helpful to the attainment of rule of law through this process. It is
important to know that judicial review matters are commenced by the process of an
originating summon, which is made ex parte, the party being sued. Upon grant of
leave by the high court, the leave may act as a stay of execution through filing in an
originating notice of motion. In order for leave for judicial review to be granted, the
court should be satisfied on the information presented to court it by the applicant.
The court will also have to assess whether the party involved has enough ‘sufficient
interest’ in the eyes of the law to sustain a challenge to the particular decision made
by the public authority. As observed, this is a length two-stage procedure
encompassing the leave stage as well as the merits stage which may easily
discourage people to seek judicial review despite feeling aggrieved by decision
made by administrative authorities.
According to Sir John Donaldson MR, the applicant should show at the Leave stage
that he has an arguable case while at the merits stage, just as the name suggests,
the application is weighed on its merits by the courts for it to proceed.
The other challenge that applicants face is the cost of legal fees to be paid to
lawyers representing the applicant. Even when you may qualify for legal aid, still
more you may need to pay a certain amount for you to have representation by
lawyers The fact that legal fees are expensive coupled with delays that come with
judicial review procedures, this really makes it hard for people to consider pursuing
matter of public interest that require judicial review.
The other problem is that this process may entirely depend on the judge to make a
decision by changing the decision made by the administrative authority or not.
At times, the judge won’t be able to change the decision in ruling just because he
(judge) would have made a different decision if it had been up to him. Even when the
judge rule in favour of the applicant, it maybe that the judge wont cancel the decision
but will merely send the back issue to the erring authority for them to make a fresh
decision and correction hence the erring decision makers could even repeat the
same decision after correcting the problem with decision making process that the
judge may have identified.
The other challenge is that since judicial review only lies against public bodies, legal
review applicants are limited to seek judicial review to public bodies that exercises
public functions analogue to those performed by government departments whatever
the source of the powers.
The other challenges is that the judicial review procedural is a very complicated and
require a lot of time and patience for it to be fully applied.
In view of the findings above, the major recommendations of the research are as
follows:
1. There is a need to look into legal aid affordability in the nation for the rule of
law to be applied equally fairly and to allow justice for all.
2. For the courts to be more responsive to the needs of citizens there is need to
amend the High Court Act, Cap 27 of the Laws of Zambia, to provide for a
“Zambian Order 53,” which will allow for “Public Interest Litigation.” The Public
Interest Litigation will make it possible for anyone to bring an action to
commence judicial review proceedings
3. There is a need to look at the length of the judicial review process for the rule
of law to be effective and applied in a timely manner.
Given the aforementioned conclusions, the research's main suggestions are as
follows: The High Court Act, Cap. 27 of the Laws of Zambia must be amended to
include a "Zambian Order 53," which will permit "Public Interest Litigation," in order
for the courts to be more responsive to the demands of Zambians. Anyone may file a
lawsuit under the Public Interest Litigation on behalf of persons who are
economically or socially disadvantaged to start judicial review processes, when they
are lawfully wronged.
Reference
Mukelebai Lamaswala (2001) - Judicial review: A mechanism for attaining
Constitutionalism, with special reference to Zambia
Retrieved from http://dspace.unza.zm/handle/123456789/4268
Moses Mwelwa, (2003)-The legal fiction of judicial review-a critique
Retrieved from http://dspace.unza.zm/bitstream/handle/123456789/2921/MWELWAM1.PDF?sequence=1&isAllowed=y
https://www.sciencedirect.com/topics/computer-science/judicial-review