A Public lecture presentation to; The East Africa’s Emerging Public Interest Advocates Programme, at the MS TCDC in Arusha – Tanzania 1st March, 2023
Hon. Justice Ssekaana Musa
Judge, High Court of Uganda (Head Civil Division).
It is no denying the fact that today due to intensive form of government, there is a tremendous increase in the functions of administration. Therefore these new- found powers are improperly exercised or abused may lead to a totalitarian State. Against this backdrop the function of judicial review is to check the abuse of administrative powers and enforce accountability on the operators of these powers. The Constitution is pervaded by the rule of law, on the ground that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases brought before it and granting appropriate remedies.
Where a person’s right, freedom, interest or legitimate expectation is violated, there should be some remedy of compensation for that violation. A good legal system will produce efficient remedies since such remedies are of utmost importance to the administration of justice. The rule of law means every act of governmental authority by affecting or likely to affect the rights duties and obligations of the citizenry must be backed by law. Government must act within the framework of recognized rules and principles which restrict discretionary power.
The application for judicial review is the primary means of challenging the legality of action taken by public bodies or officers. The aggrieved person will seek any or in the alternative public law remedies to put right what has been wronged. Thus the role of the court is not just to decide disputes but also to inquire into complaints of abuse of power where such complaints are found unsubstantiated, to give protection and remedies to the individual citizen
The prerogative remedies of Certiorari, Prohibition and Mandamus were the original public law remedies used to remedy unlawful actions by public bodies. Each of the remedies has its own sphere of operation; certiorari is issued to quash unlawful decisions or actions; Prohibition is issued to restrain a public authority from acting unlawfully; Mandamus is used to secure the performance of public law duties or obligations. However, increasingly, the courts and judicial review legislations have added a range of private law remedies, including damages, injunction and, declarations.
Recent developments in administrative law have seen the shift of focus from the principal aim of quashing unlawful decisions to that of promoting good administration. Therefore, without an independent, impartial and competent judiciary, the most elaborate system of rights, remedies and procedures would hardly serve any useful purpose.
The ever-widening scope given to judicial review by the courts has caused a shift in the traditional understanding of what prerogative writs were designed for. For example, whereas certiorari was designed to quash a decision founded on excess or abuse of power, the courts may now refuse a remedy if to grant one would be detrimental to good administration, thus recognizing greater and wider discretion than before.
Before we examine the remedies individually, it is perhaps necessary to get a global sense of what the courts can offer by way of redress over the public law functions of the State. Put simply, the court has power to:
- Quash or set aside an unlawful decision;
- Restrain or prohibit a party from pursuing an unlawful or unfair course of conduct;
- Declare the rights of the parties;
- Order compensation or restitution, as appropriate;
- Apply interim measure to hold the scales evenly pending the determination of a matter; or
Remit a matter with or without directions.
The controversial question is whether the court, in judicial review matter (as opposed to an appeal), should in certain circumstances substitute its own decision for that of the impugned decision.
Generally a court cannot substitute its own decision in place of a public body on all questions: law, fact, judgment, policy and discretion. However, the court may appropriately intervene to correct a fundamentally flawed conclusion of fact.
UNDERSTANDING JUDICIAL REVIEW:
According to the Black’s Law Dictionary, Judicial review is defined as a 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. Secondly, a court’s review of a lower court’s or administrative body’s factual or legal findings.
The power of judicial review may be defined as the jurisdiction of superior courts to review laws, decisions and omissions of public authorities in order to ensure that they act within their given powers.
Judicial review means the process by which the High Court exercises its supervisory jurisdiction over proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial functions or who are charged with the performance of public acts and duties;
Broadly speaking, it is the power of courts to keep public authorities within proper bounds and legality.
The Court has power in a judicial review application, to declare as unconstitutional, law or governmental action which in inconsistent with the Constitution. This involves reviewing governmental action in form of laws or acts of executive for consistency with constitution.
Judicial review also establishes a clear nexus with the supremacy of the constitution, in addition to placing a grave duty and responsibility on the judiciary. Therefore, judicial review is both a power and duty given to the courts to ensure supremacy of the Constitution. Judicial review is an incident of supremacy, and the supremacy is affirmed by judicial review.
It may be appreciated that to promote rule of law in the country, it is of utmost importance that there should function an effective control and redressal mechanism over the Administration. This is the only way to instil responsibility and accountability in the administration and make it law abiding.
Judicial review as an arm of Administrative Law ensures that there is a control mechanism over, and the remedies and reliefs which a person can secure against, the administration when a person’s legal right or interest is infringed by any of its actions.
When a person feels aggrieved at the hands of the Administration because of the infringement of any of his rights, or deprivation of any of his interests, he wants a remedy against the Administration for vindication of his rights and redressal of his grievances.
The most significant, fascinating, but complex segment in judicial review is that pertaining to judicial control of administrative action and the remedies and reliefs which a person can get from the courts to redress the injury caused to him or her by an undue or unwarranted administrative action in exercise of its powers.
The effectiveness of a system of Judicial review under Administrative Law depends on the effectiveness with which it provides remedy and redress to the aggrieved individual. This aspect is of crucial significance not only to the person who has suffered at the hands of the administration but generally for the maintenance of regime of Rule of Law in the country.
The weakness of the “remedial and redressal” aspect of administrative law will directly contribute to administrative lawlessness and arbitrariness. According to WADE, “Judicial review thus is a fundamental mechanism of keeping public authorities with due bounds and for upholding the rule of law.
In the East African region, great faith has been placed in the courts as a medium to control the administration and keep it on the right path of rectitude. It is for the courts to keep the administration with the confines of the law. It has been felt that the courts and administrative bodies being instruments of the state, and the primary function of the courts being to protect persons against injustice, there is no reason for the courts not to play a dynamic role in overseeing the administration and granting such appropriate remedies.
The courts have moved in the direction of bringing as many bodies under their control as possible and they have realized that if the bodies participating in the administrative process are kept out of their control and the discipline of the law, then there may be arbitrariness in administration. Judicial control of public power is essential to ensure that that it does not go berserk.
Without some kind of control of administrative authorities by courts, there is a danger that they may be tempted to commit excesses and degenerate into arbitrary bodies. Such a development would be inimical to a democratic constitution and the concept of rule of law.
It is an accepted axiom that the real kernel of democracy lies in the courts enjoying the ultimate authority to restrain the exercise of absolute and arbitrary powers by the administration. In a democratic society governed by rule of law, judicial control of administration plays a very crucial role. It is regarded as the function of the rule of law, and within the bounds of law and due procedure.
It is thus the function of the courts to instil into the public decision makers the fundamental values inherent in the country’s legal order. These bodies may tend to ignore these values. Also between the individual and the State, the courts offer a good guarantee of neutrality in protecting the individual.
The courts develop the norms for administrative behaviour, adjudicate upon individuals grievances against the administration, give relief to the aggrieved person in suitable case and in the process control the administration.
In Uganda, judicial review finds its basis in the Constitution, the Judicature Act Cap 13 and the Judicature (Judicial Review) Rules 11/2009.
- The 1995 Constitution of the Republic of Uganda.
Article 42 of the Constitution provides that any person appearing before any administrative official or body has a right to be treated justly and fairly and shall have the right to apply to a court of law in respect of any administrative decision taken against him or her.
- The Judicature Act Cap 13.
Section 36 (1) provides that the High Court may upon an application for judicial review, make an order, as the case may be, of;
(a) Mandamus, requiring any act to be done;
(b) Prohibition, prohibiting any proceedings or matter; or
(c) Certiorari, quashing any decision of the lower tribunal.
Section 36(2) also provides that no order of mandamus, prohibition or certiorari
shall be made in any case in which the High Court is empowered by the exercise of the powers of review or revision contained in this or any other enactment to make an order of like effect as the order applied for where the order applied for would be rendered unnecessary.
- The Judicature (Judicial Review) Rules 11/2009.
Cases appropriate for judicial review.
- An Application for-
- An order of mandamus, prohibition or certiorari; or
- An injunction under section 38(2) of the Judicature Act restraining a person from acting in any office in which the person is not entitled to act.
2. An application for a declaration or an injunction may be made by way of judicial review, and on such an application, The High Court may grant the declaration or injunction claimed if it considers that, having regard to-
- The nature of the matter in respect of which relief may be granted by way of an order of Mandamus, prohibition or certiorari.
It would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
(8) Claim for damages.
(1) On an application for judicial review the court may, subject to sub rule (2), award damages to the applicant, if-
(a) he or she has included in the motion in support of his or her application a claim for damages arising from any matter to which the application relates; and
(b) the court is satisfied that if the claim had been made in action begun by the applicant at the time of making his or her application, he or she could have been awarded damages.
Currently, the courts are concerned determining whether the decision made by a public authority in exercise of a public authority in exercise of public function and is justiciable. The importance of remedies should not be underestimated since it gives effect to upholding the rule of law and constitutionalism. The remedies are intended to protect the rights and freedoms of the citizenry.
Certiorari means an order by court to quash the decision which is ultra vires;
The primary purpose of certiorari in modern administrative law is to quash an ultra vires decision. Certiorari is technically an order bringing a decision of a public body to High Court so that court may determine whether the decision is valid.
Therefore Certiorari is the means of controlling unlawful exercises of power by setting aside decisions reached in excess or abuse of power. By quashing the decision, certiorari confirms that the decision is nullity and is to be deprived of all effect. It has been held that the orders will not issue to persons who take it upon themselves to exercise a jurisdiction without any colour of legal authority; the acts of usurpers are to be regarded as nugatory.
The legal effect of certiorari is to make it clear that the statutory or other public law powers have been exercised unlawfully, and consequently, to deprive the public body’s act of any legal basis.
Certiorari can be issued on any of the following grounds;
Lack of jurisdiction, Excess of jurisdiction, Abuse of jurisdiction, Violation of rules of natural justice or right to fair hearing, Error of law apparent on the face of the record and Fraud.
If, on application for judicial review seeking a quashing order, the High Court quashes the decision to which the application relates, the High Court may remit the matter to the court or tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.
The power to remit is useful in two main circumstances. First, where otherwise- following the quashing of a decision-the applicant may be inconvenienced by having to reapply to the public authority for a decision to be made. Secondly, where a quashing order alone might risk administrative inconvenience if a public authority had to start proceedings against the applicant.
The general principle is that a court hearing a judicial review application does not substitute its decision for the original decision-maker. But in some exceptional circumstances, the court may substitute its decision for that of the original decision-maker especially where the decision is quashed for an error of law and without that error, there would only have been one decision which the court would have reached.
Mandamus means a court order issued to compel performance by public officers of statutory duties imposed on them;
This a judicial remedy issued in form of an order from the High Court to any constitutional, statutory or non-statutory agency-to do or to forbear from doing some specific act which that body or agency is obliged to do or refrain from doing under the law and which is in the nature of a public duty or a statutory duty.
A public duty is one which is created either by statute, rules or regulations having a force of law. The public duty enforceable through mandamus must also be an absolute duty and not discretionary duty.
The main conditions for the grant of mandamus are;
- There must be a public duty;
- The applicant must have demanded and the respondent must have refused to perform;
- The respondents as public officers must have a public duty to perform imposed on them by statute or any other law but should not be a duty owed solely to the state but should be a duty owed as to the individual citizen.
- The public duty imposed should be of an imperative nature and not a discretionary one;
- The applicant must have locus standi, that is, he must have sufficient interest in the matter he is applying for;
- There should be no other appropriate remedy available to the applicant.
Prohibition means an order issued by court to forbid some act or decision which would be ultra vires:
The order of Prohibition is an order issued by the High Court which prohibits a body (administrative bodies) from continuing proceedings; it will also prohibit a body from continuing to carry out decisions wrongly or wrongfully made.
Before the order of Prohibition is issued there must be something done. It is issued at the stage when the proceedings are in progress to forbid the authority from continuing the proceedings. It is directly related to Certiorari since lies to quash the decision while prohibition lies to forbid from further continuing the proceedings.
The usual practice is to pray for Prohibition and alternatively certiorari because it may happen that pending proceedings for prohibition the agency may hand over its final decision.
Prohibition can be issued on the same grounds on which certiorari can be issued except in case of error of law apparent on the face of the record. The grounds for the issue of prohibition are:
- Lack or Excess of jurisdiction.
- Violation of rules of natural justice or right to fair hearing.
- Infringement of Fundamental rights.
- Contravention of the law of the land.
It is an efficacious and speedy remedy where a person does not desire any other relief except to stop the administrative agency.
It can be issued to stop a public body from continuing proceedings that are ultra vires. It can also be issued to stop an administrative body from continuing to do something in excess of jurisdiction. It can also be used to stop an administrative body from abusing their powers.
There are additional remedies that have been borrowed from private law that are now granted by court; Declarations, Injunctions and Damages.
Declaration is a judicial remedy which conclusively determines the rights and obligations of public and private persons and authorities without the addition of any coercive or directory orders.
The rationale behind such a judgment is that coercion is not always necessary for obeying the verdict of a court and often parties would obey the law without any sanction. This is particularly true of public authorities. If existing doubt regarding the legal rights is removed, then it can be supposed that public authorities would not disobey the law but would act according to law.
The declaration is primarily used to declare that a particular decision or action of a public body or official is a nullity or ultra-vires or to determine the existence and scope of public law powers and public law duties or the rights or questions of law.
A declaratory action is particularly useful where a legal dispute exists but no positive wrong has been committed, or has taken place entitling a party to claim coercive relief.
The conditions for the grant of declaratory relief are;
- The person must be entitled to a legal character or to a right to any property
- There must be some danger or detriment to such right or character i.e a person or authority either interested in denying such character or right or must have actually denied.
- The applicant must seek further relief if he/she is entitled to it.
It is important to remember that courts do not give advisory opinions or opinions on hypothetical questions. It is essential that some genuine dispute should exist, though no violation of the rights of either party has taken place, before a court will give a declaratory relief.
An injunction is primarily a private law remedy, but used in the area of public law as well as to prevent the Administration from breaking the law.
An injunction is an order by a court to a party directing him/her to do or to refrain from doing a specified act. An injunction is an equitable discretionary remedy that lies to restrain a party from pursuing a course of action especially when that course of action involves a breach of the law or ultra vires, or to compel the performance of a duty.
An Injunction is a discretionary remedy, and the applicant cannot claim it as a matter of right, but the court has to exercise its discretion judicially. An injunction is more in the nature of an equitable relief according to legal principles and ex debitiojustitiae. The court must keep in mind the principles of justice and fair play and should exercise its discretion only if the ends of justice require it.
An injunction may be refused, inter alia, when the conduct of the plaintiff is such as disentitle him of the assistance of the court; or when equally efficacious relief can be obtained by any other usual mode of proceedings.
Basically, the court may issue a mandatory injunction which is by its very nature similar to the writ of mandamus. Both are orders passed by court asking an administrative authority to perform a legal duty, or to desist from doing an illegal act.
A mandatory injunction not only involves prohibition but also imposes a positive duty on the defendant to do something.
An Injunction can issue restraining a person from acting in any office in which he is not entitled to act.
Public law duties would normally be enforced by way of mandamus, but it is possible for an injunction to be granted ordering the public body to take necessary action to comply with its statutory duty. The main advantage of injunction is that it can be granted on interim basis pending the final determination of the application.
In judicial review court does not award special, general, punitive, aggravated damages but rather in deserving circumstances where there is justification may award damages as compensation for the loss or injury.
The habit of seeking damages as if it is an automatic right in every application for judicial review should be discouraged. Judicial review is more concerned with correcting public wrongs and not a way to demand or seek to recover damages.
An individual may seek compensation against public bodies for harm caused by the wrongful acts of such bodies. Such claims may arise out of the exercise of statutory or other public powers by statutory bodies.
The fact that an act is ultra vires does not of itself entitle the individuals for any loss suffered. An individual must establish that the unlawful action also constitutes a recognizable tort or involves a breach of contract.
The nature of damage envisaged is not necessarily categorized as special or general or punitive/exemplary damage. But such damage is awarded for misfeasance or nonfeasance for failure to perform a duty imposed by law.
The tort of misfeasance in public office includes malicious abuse of power, deliberate maladministration and perhaps also other unlawful acts causing injury.
Adding of damages to the catalogue of public law remedies would add significantly to the range of functions performed by public law remedies. If damages are excluded from public law remedies in that event it outs victims of public wrongs at a significant disadvantage which requires justification.
Erring public officers or the authority has to pay damages, it rests on the preposition that awards of damages are likely to make officials overly cautious in performing their functions and even to cause them to neglect the public interest for fair incurring liability to individuals.
Failure to comply with mandatory or prohibiting order or injunction, or any undertaking given to the court, is punishable as contempt of court. All the normal sanctions are available including a fine or imprisonment but where a public authority fails to comply with a court order in Judicial review, a mere finding of contempt rather than a penalty may suffice to mark the gravity of the situation.
The ever-widening scope given to judicial review by the courts has caused a shift in the traditional understanding of what the prerogative writs were designed for. For example, whereas certiorari was designed to quash a decision founded on excess of power, the courts may now refuse a remedy if to grant one would be detrimental to good administration, thus recognising greater or wider discretion than before or would affect innocent third parties.
The grant of judicial review remedies remains discretionary and it does not automatically follow that if there are grounds of review to question any decision or action or omission, then the court should issue any remedies available. The court may not grant any such remedies even where the applicant may have a strong case on the merits, so the courts would weigh various factors to determine whether they should lie in any particular case. See R vs Aston University Senate ex p Roffey  2 QB 558, R vs Secretary of State for Health ex p Furneaux  2 All ER 652
Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. If proper care is taken at the level of making administrative decisions, there will be little scope for grievance and invoking court’s jurisdiction. This will not only reduce the burden on courts but will create a sense of security and satisfaction in people which is the essence of good governance.
 Page Public Law in East Africa 226 by Ssekaana Musa Lawafrica Publishers.
 Page 228 ibid.
 Page 1013 Black’s Law Dictionary 11th Edition Thomson Reuters, 2019
 The Judicature ( Judicial Review) (Amendment) Rules, 2019
 WADE & FORSYTH Administraive Law, 34, 8th Edition 2000.
 Rule 3The Judicature ( Judicial Review ) (Amendment) Rules 2019
 Page 229, Public Law in East Africa by Ssekaana Musa.. Lawafrica Publishers.
 Rule 3 Of The Judicature ( Judicial Review )(Amendment) Rules 2019
 John Mwombeki Byombalirwa v The Regional Commissioner and regional Police Commander Bukoba  TLR 73. See also Public Law in East Africa page 235 Supra.
 Rule 3 The judicature ( Judicial Review) (Amendment) Rules, 2019
 Pages 239-241 Public Law in East Africa supra
 Section 38(2) Judicature ( Amendment ) Act 2002
 Grace Namulondo & Others v Jone Johns Serwanga & The Commissioner Land Registration High Court Miscellaneous Cause No. 001 of 2019
Public Law in East Africa by Ssekaana Musa pg 245-249
 M v Home Office  1 AC 377