THE NEED TO RELAX STANDING REQUIREMENTS IN JUDICIAL REVIEW MATTERS AND THE NECESSITY FOR OUR VERY OWN JUDICIAL REVIEW ACT

Introduction

By Yaiman Bande.

In a democratic society such as Zambia, it is of uttermost importance that people are given a means to which they could redress grievances caused by maladministration and abuse of power. Without such a channel in place, the very tenets of democracy and justice would be in dire jeopardy. Judicial Review not only ensures that the scales of justice are properly balanced in that regard but also provides a way to which parties could have their grievances addressed.

Governing Legislation in Standing Matters under Judicial Review

Judicial Review is defined as the court’s power to review the actions of other branches or levels of government; especially the court’s power to invalidate legislative and executive actions as being unconstitutional.[1] In Zambia, the process of Judicial Review is governed by Order 53 of the Rules of the Supreme Court of England (hereinafter referred to as the ‘White Book’).[2] Section 10(1) of the High Court Act[3]provides that if there is no statute providing for a particular procedure, the High Court in practice and procedure by default shall be in substantial conformity with the Supreme Court Practice, 1999 (White Book) of England. The same goes for the Supreme Court of Zambia vis-à-vis Section 8 of the Supreme Court Act.[4] It is important to note that Order 6 rule 1 of the High Court Rules[5]mandates that all matters in the courts of law should be commenced by writ of summons only to the exception of matters involving petitions under the matrimonial causes act, the constitution and applications for writs of habeas corpus. Notwithstanding this provision, Judicial Review matters are commenced by the process of an originating summons[6], which is made ex parte the party being sued. Upon grant of leave, the leave may act as a stay of execution through filing in an originating notice of motion, this is in accordance with rule 5 of Order 53 of the White book. In order for leave for judicial review to be granted, the court will 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.[7] It is a two-stage procedure encompassing the Leave stage as well as the Merits stage.[8] According to Sir John Donaldson MR, the applicant should show at the Leave stage that he has an arguable case. [9] While at the Merits stage, just as the name suggests, the application is weighed on its merits with the possibility of locus standi at the earlier stage being reconsidered.[10] Just like their English counterparts, the courts in Zambia are aware that locus standi under Order 53 follows suit to the stages aforementioned. In England this distinction is shown quite clearly in the case of Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses Ltd[11](hereinafter referred to as the Fleet Street Casuals case) where Lord Diplock held that sufficient interest was to be addressed as a threshold matter in the first stage for application for leave and only in the second stage should the merits or actual substantive matters be addressed.

The Problem of Standing in Zambia

The courts are aware that locus standi in Judicial Review cases is severely restricted by the section 41(1) of the Legal Practitioners Act[12]. In the case of The People v Teddy Phiri and 80 others[13], the court ruled that the Legal Resource Foundation could not sue on behalf of the accused because it wasn’t qualified as in terms of section 41(1) of the Legal Practitioners Act[14] i.e. it had no locus standi. This shows that class action suits in Zambia are only valid to the extent that the party representing its members is either aggrieved by the decision or its members are the ones aggrieved. The same reasoning somewhat applies to individuals who represent their children. The position of the law is that they have locus standi in the affairs affecting their children to the extent that their children are not of legal age. The case of Edith Zewelani Nawakwi v The Attorney General[15] is authority to this assertion. Following the argument by the respondents that the applicant had no cause of action which related to her children, the court held that ‘where a child is not able to sue in its own right the adult mother has legal standing as a petitioner on the child's behalf.’

The complexities of locus standi in the realm of Judicial Review are quite pronounced and the Courts of Zambia have not been spared. That is why the American Professor of Law at the University of Michigan, Joseph Vining, once wrote that it was quite difficult to read standing decisions “without coming away with a sense of intellectual crisis. Judicial behaviour is erratic, even bizarre. The opinions and justifications do not illuminate.”[16] The difficulty that has always been present is in finding a balance between granting leave to persons who truly have a genuine interest in the matter and denying leave to those who may be ill-intentioned to abuse the process for the sake of it. Since the law is a creature made by the will of the people, another challenge that has been observed is creating laws that cast the locus standi net wide enough to accommodate the needs of a growing Zambian society. The dicta of Malila JS at J56 in the case of Mwanza & Beene v The Attorney General[17] is particularly illustrative in that the learned Judge said that the courts are not the best way to effect the realization of socio-economic rights. For the courts have to wait to be moved even in matters that fall particularly in the domain of the judiciary such as locus standi under Judicial Review.

Although the courts are abreast with all these issues, it still remains a matter of speculation as to whether they have ‘proved themselves to meet the challenge’ (to use the words of Lord Denning[18]). It is clear from analysing case law that the law in this regard is very restrictive. Lord Diplock in the Fleets Casuals case said that, “It would be, in my view, a grave lacuna… if a pressure group like the federation or even a spirited public tax payer, were prevented by out dated technical rules of locus standi from bringing the matter to the attention of the court.”[19] It seems that the courts in Zambia have fallen prey mutatis mutandis to these words; only persons who are specifically or tangentially affected by a matter have locus standi in it. Even though citizens retain standing in matters affecting the constitution, there is still a need to extend locus standi in matters pertaining to judicial review. The case of The People v Teddy Phiri and 80 others quite amply shows that. Due to this restrictive nature, lobby groups, pressure groups and many other Non- Governmental Organisations would be hard-pressed to admit that they are gaining progress in legal matters that affect their subjects.

The legal system in a neighbouring country like South Africa seems to promote a more liberal approach to standing. Section 38 of the Constitution of the Republic of South Africa[20]extends locus standi wide enough not only to include the party that has been aggrieved but also ‘anyone acting…in the interest of a group or class of persons.’ The Zambian Bill of Rights does not entertain such a privilege. Secondly, the case law reveals a strong reliance on Order 53 of the White Book in matters relating to locus standi under Judicial Review in Zambia. This is because we do not have a domestic law that governs that. It is highly doubtful that the drafters of the White Book had the legal needs of a third world country like Zambia in mind. As intimated earlier by use of Professor Vining’s words, judicial behaviour concerning standing matters is very unpredictable. Whereas one judge opines that locus standi should not be dealt with as a preliminary issue[21], another would have no qualms in applying it as such because they are mandated to screen unnecessary applications for leave at the outset. Therefore, applicants are somewhat left in limbo on whether or not their application might be successful. Furthermore, as of 2010, there were only 731 lawyers in private practice, which was approximately one lawyer for every 17,695 people in Zambia.[22]It is quite obvious that only a few have access to legal services, which is so cardinal in Judicial Review matters. Our reliance on the definition of locus standi based on English connotations meets challenges in some peri urban or rural areas where a party that seeks judicial review knows nothing of the highly technical process: Access to lawyers who may be able to file in originating summons may prove to be difficult.

Moreover, as witnessed from cases like Harry Mwanga Nkumbula v The Attorney General[23], it is clear that there is no mechanism in Zambia that extends locus standi to include effects of a future infringement of rights. To put it in the paradigm of Environmental Law, it would be difficult to convince a court that a party has locus standi to sue on the future environmental effects of a government decision.

THE NEED FOR REFORMS THROUGH PARLIAMENT

To mitigate the challenges aforementioned, it is of vital importance to state that the courts are not the best way to solve these issues[24]. For their task is only to interpret the law. We have to focus our minds towards pushing for our own Judicial Review Act in Parliament; one that would cater for our legal system’s idiosyncrasies. More specifically, an amendment of Section 41(1) of the Legal Practitioners Act could also go a long way. This would ensure that standing is also extended to bodies such as lobby groups and pressure groups that may not have a direct point of entry in a matter. It is interesting to note that even though it was not adopted, the Mwanakatwe commission recommended a Zambian Bill of Rights that is very similar to its South African counterpart aforementioned. A push for a referendum in that direction would greatly strengthen our legal system. Moreover, our own Judicial Review Act could apply locus standi widely by emphasizing on the court’s power to invalidate some administrative actions that may be detrimental in the future. The Phillippines is an example of a country that has adopted such a stance. In that country, the court held in the case of Juan Antonio Oposa v Secretary of State & Anr[25] that a group of minors had locus standi in an Environmental Judicial Review matter that concerned future generations to come. We could also make the process of Judicial Review and requirement of locus standi less tasking on the Judiciary by following in the footsteps of Fiji. In the Fiji case of The State v the Secretary, Public Commission & Others, Ex parte: Anare Vuniwani[26], the Court of Appeal ruled that ‘there was no justification in the requirement of obtaining leave before the judicial review process because applying for such leave brought about duplication for the inquiry into the merits, and a two stage procedure resulting in too many costs.’ Hopeless applications by busybodies and their ilk are filtered out by special procedures striking them out before the merits stage. This view finds support in the holding of a case like Zambia Wild Life Authority & Others v Muteeta Community Resources & Board Development Co-operative Society. Looking at the scarcity of legal resources, both human and monetary, such an adoption would save the courts a lot of time.

Although the push towards our own Judicial Review Act is slow, the Parliament of Zambia is gravely aware of the heavy reliance on foreign statutes that our legal system renders. In a parliamentary committee appointed on the 24th February 2011, the report read that, “Your Committee note that this amendment is timely in view of the need for Zambia country to increasingly utilise home grown law. They, however, wish to express their serious concern with regard to the fact that despite being independent and sovereign for well over forty-five years, it is necessary for Zambian legal system to continue to be dependent on foreign law.”[27]Looking to the future, we could safely say that locus standi under Judicial Review matters will considerably continue to be complex. The onus is on the Zambian people themselves through the parliamentary process to provide a statute that establishes a wider standing. The time is ripe for the people of Zambia to determine their own destiny in issues concerning locus standi under Judicial Review; only then could we say that justice has been well spread out to the four corners of our beloved country.

[1] B A Garner, Black’s Law Dictionary(8thedn, West Publishing Co 2004)864

[2] RSC (1999 edn)

[3] Chapter 27 of the Laws of Zambia

[4] Chapter 25 of the Laws of Zambia

[5] As amended by Statutory Instrument No. 71 of 1997

[6] See Order 7 rule 1 of RSC(White book) 1999

[7] D Stott & A Felix, Principles of Administrative Law,(1stedn, Cavendish Publishing Limited 1997)179

[8] Ibid 163

[9] R v Secretary of State for the Home Department ex parte Swati(1986) 1 All ER 717

[10] D Stott & A Felix (n 6) 164

[11] [1981] 2 ALL ER 93

[12] Chapter 30 of the Laws of Zambia

[13] HP/55/1998

[14] ibid

[15] (1990-1992) ZR 112 (H.C)

[16] Joseph Vining, Legal Identity (1978), quoted in Erwin Chemerinsky, Constitutional Law: Principles and Policies (3rdedn, Aspen Publishers 2006) 60

[17] SCZ Judgment No.33 of 2019

[18] A Denning, Freedom of Under the Law(Hamlyn Lecture Series), (1stedn, Sweet & Maxwell Ltd 1968)

[19] Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 ALL ER 93

[20] Act 108 of 1996

[21] see Zambia Wild Life Authority & Others v Muteeta Community Resources & Board Development Co-operative Society per Chibesakunda J.S.

[22] N.A Kahn-Fogel, ‘The Troubling Shortage of African Lawyers Examination of a Continental Crisis using Zambia as a Case Study’ (2012) Vol. 33.3 University of Pennsylvania Journal of International Law 723

[23] (1972) ZR 11    

[24] n(11)

[25] [1993] 33 ILM 173 (1994)

[26] Suva High Court Judicial Review No. 29 of 1998

[27] Committee on Legal Affairs, Governance, Human Rights and Gender Matters, The High Court (Amendment) Bill Report (N.A.B No 8 of 2011)