According to the Black’s Law Dictionary at page 852, 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.
In Uganda, judicial review finds its basis in the Constitution, the Judicature Act Cap 13 and the Judicature (Judicial Review) Rules 11/2009.
The 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.
In Ridge v Baldwin (1964) AC 40, it was held that a decision reached in violation of the principles of natural justice especially one relating to the right to be heard is void and unlawful.
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 different orders that are made pursuant to judicial review under section 36 0f the Judicature Act Cap 13.
1. Mandamus is defined in the Blacks Law Dictionary on page 973 as a writ issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.
2. Prohibition on the other hand is defined at page 1228 of the dictionary, as a law or order that forbids a certain action.
3. Certiorari at page 220 of the dictionary, is defined as an extraordinary writ issued by an appellate court at its discretion, directing a lower court to deliver the record in the case for review.
When judicial review can be granted as a remedy.
In Owor Arthur & others v Gulu University, HCMA 18/ 2007, Justice Kasule stated that, “the essence of judicial review jurisdiction is for the court to ensure that the machinery of justice is observed and controlled in its exercise by those inferior bodies in society that happen to be vested with the legal authority to determine questions affecting the rights of subjects. Such bodies or individuals have a duty to act judicially…… The overriding purpose of judicial review is to ensure that the individual concerned receives fair treatment, if that lawful authority is not abused by unfair treatment. It is not for the court to take over the authority and the person entrusted to that authority, by substituting its own decision on the merits of what has to be decided…..”
Further, in Kasibo Joshua v Commissioner of Customs U.R.A. HCMA 44/2007, Justice Kiryabwire held that the prerogative orders made in pursuance of judicial review look to the control of the exercise of an abuse of power by those in public offices, rather than the final determination of private rights which is done in a normal civil suit. He held further that judicial review is not concerned with the decision, but the decision-making process, an assessment of the manner in which the decision is made and it is not an appeal and the jurisdiction is exercised in a supervisory manner; not to vindicate rights as such, but to ensure that public powers are exercised in accordance with the basic principles of leagality, fairness and rationality.
Finally, in the case of His Worship Aggrey Bwire v Attorney General CACA No. 9/ 2009, it was held that judicial review can only be granted on three grounds;-
(i) Illegality
(ii) Irrationality
(iii) Procedural impropriety.
It was further held that the first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it aims at the decision making procedure rather than the content of the decision itself and none of the afore-mentioned grounds were applicable to the proceedings or decision of the committee.
Procedure
Rule 3(1) of the Judicature (Judicature Review) Rules No.11/ 2009, an application for any of the prerogative orders shall be made by way of application, which is by notice of motion which must be served on the other party personally according to rule 6 of the same rules.
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