The doctrine of judicial review, in my opinion, emanates from a strong ethic for the rule of law. That is, a nation like Zambia must be governed by the wishes of the law, rather than the desires of men. However, even in those circumstances where the law grants public officials some discretion, that discretion must be deployed within the confines of the rule of law and common sense.
Second, judicial review is essential in that it helps ensure adherence to constitutionalism. Constitutionalism means that all government workers must carry out their duties within the purview that promotes constitutional principles. You may wish to know that much of our laws in Zambia are a carryover from colonialism. With that background, those who serve the public in 2019 do so from the purview of the constitutional principles currently prevailing rather than the autocratic and dictatorial regimes characteristic of the colonial era. Judicial review helps keep government in check so that they apply themselves to constitutionalism.
Third, judicial review is vital in that it helps with the participation of the people in their governance. Ivory towers get erected very quickly once people get a little statutory power conferred upon them. However, through judicial review, ordinary citizens can assert their rights and hold influential figures to account.
Fourth, judicial review helps to demystify the growing administrative state. For example, in the last five years alone, Zambian constitutional and administrative agencies have almost doubled. Even health insurance now has a government body that is overseeing its deployment and implementation. Where in the past you had one roads regulatory body, you now have different agencies taking care of road funding; road safety regulation; and road construction. The administrative state has grown like a behemoth, and it is leaving no prey in its tracks. Judicial review is the only way to keep it in check.
Superior courts can set aside decisions of public administrative bodies if those administrative bodies have abused their powers or have done something beyond their powers. Zambian case law has developed a good collection of law in this area. Typically, there are at least three grounds for judicial review. The Supreme Court of Zambia added the fourth one in the case of Roy Clarke v. Attorney General – proportionality. The three are taken from an English case of Council of Civil Service Unions v Minister for the Civil Service  AC 374: procedural impropriety, illegality, and (irrationality) unreasonableness.
In the case of illegality, courts can set aside decisions of a public body if the public body’s action is illegal. By illegal, we mean if the public body does something that it is not empowered to do by its home statute. For example, if an officer at the Higher Education Authority started to do stuff that the home statute does not allow it to do, a court can intervene.
The second element is procedural impropriety. Most public bodies and public officials have procedures that they must follow in their decision making. If the legislation does not outline a particular procedure, then recourse should be had to what is known as “rules of natural justice”. A person who is the attention of an administrative decision must be given the opportunity to be heard. Further, it is the rule of natural justice that the more severe the consequence of an action; the higher the need to accord the subject more procedural fairness. For example, if you want to de-register a political party – it only makes sense that you must give that political party an opportunity to be heard. You cannot just go on a rampage de-registering political parties because you have the power to do so. No. You must follow procedures outlined in statutes, as well common-sense. It would help if you did it in good faith. The Registrar cannot give a letter to Mwenya Musenge when they know or ought to have known that Mwenya Musenge is not in tandem with his friends in the NDC party.
The third ground is irrationality or unreasonableness. Even if legislation empowers you to do stuff and you follow all the procedure, a court can strike down an administrative decision if it is unreasonable. Power tends to make people irrational. The amoeba tends to eat the brains of people who exercise powers. The courts must strike down administrative decisions that are unreasonable. If a public official has some discretion; they must use common sense in the use of that discretion. I always say this: common sense if half the law! A few years ago, an over-excited registrar of societies got drunk with power and decided to deregister Zambia’s most prominent opposition party, the Movement for Multi-Party Democracy. In court, the judge was not very displeased with that gentleman’s actions and held that the gentleman acted irrationally (the amoeba had eaten his brains). The judge held that the Registrar’s decision was so irrational that a person with good faculties could not have come up to that decision.
The last ground of judicial review is what the Supreme Court fashioned in the case of Roy Clarke v. Attorney General. In that court case, the judges held that even if Kalaki’s Mfuwe article offended sensibilities of a traditionally Christian nation, Hon Ronnie Shikapwasha’s decision to deport Kalaki was not proportionate with the offence. In other words, an administrative decision-maker must mete out punishment that is proportionate with the infraction. You do not just jump on the wagon of the nastiest sentence simply because a person or party have infringed the law. The excitement with which the Registrar of Societies hopped when de-registering the NDC party, could make one conclude that it was so illogical as to make it disproportionate. Why would the Registrar de-register a political party only because it has a wrong constitution? Why can’t you punish it, say with community service, or with the penalty to look for the owner of the 48 houses, or with the sentence of clearing Forest Number 27 so that the bourgeoisie can slay our water reserves in peace? The point is: public servants should not get too excited because they have a little power in their tiny brains or giant heads.
As to whether the Registrar of Societies was right in de-registering the NDC party, we should leave it to the courts of law to decide. In the meantime, as the citizenry, we should hold all public servants to account and demand that they do not abuse the law. If these public servants abuse the law, lawyers should sue!
Elias Munshya practices law in Alberta and can be reached at firstname.lastname@example.org./SM