Judicial Review in Uganda
Judicial Review in Uganda
QUESTION:
With the aid of authorities, explain under what circumstances the courts
may refuse to grant Judicial Review.
action if it does not fall in the above categories. In Lord Diplock's words
illegality means that the decision maker "must understand correctly the
law that regulates his decision-making power and must give effect to it." A
decision is irrational if it is "so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
mind to the question could have arrived at it." 6[6] This is also known as
Wednesbury unreasonableness. Procedural impropriety is the
process where the procedures prescribed by statute have not been
followed or if the rules of natural justice have not been adhered to.
Remedies to judicial review are orders of certiorari, mandamus, prohibition
or an injunction.7[7] Certiorari is a royal demand for information.
Mandamus is a judicial remedy issued in the form of an order from the
Supreme Court or High Court to any constitutional or statutory or a nonstatutory agency. Prohibition is a writ issued by an appellate court to
prevent a lower court from exceeding its jurisdiction or to prevent a
judicial officer from exercising a power. Injunction is an ordinary judicial
process that operates in personal by which any person or authority is
ordered to do or to refrain from doing a particular act which such a person
or authority is obliged is obliged to do or to refrain from doing under any
law.8[8] In the case of Justice R.O Okumu Wengi v A.G 9[9]brings up all
remedies although the appellant lost because of the lapse of time to
submit the documents.
The case of Ridge v Baldwin10[10] is a locus classicus case for judicial
review in accordance to natural justice. A police constable was dismissed
without being heard. Court held that the decision was void for failure of
exercising natural justice. Although judicial review is a fundamental right
as provided in Article 42,11[11]the right of seeking it depends on each
case. Therefore, there are circumstances where judicial review may not be
granted by courts. These can be seen in the discussion below.
Judicial review may not be granted when there are other alternative
remedies which can be given to the person applying for it. In Ram Roop v
Bishwa Nath,12[12]it was said that power may be exercised even in
cases where no appeal or revision lies to the High Court. Therefore, where
any alternative remedy is available to the person, the court may not
exercise this power. Section 37(1) and 38(1)13[13] provide for an order
of mandamus or an injunction and the High Court having power to grant
an injunction to restrain any person from doing any act as specified by the
High Court. Therefore, if there are other alternative remedies to be
granted to any person, then judicial review may not be granted by courts.
Judicial review as a fundament right to any person may not be granted in
case of deployment of troops, foreign affairs and national security. In such
cases, the courts regard themselves as ill equipped to investigate beyond
an initial decision. The courts can investigate on the claim of the
government as being bona fide.14[14] This means that the courts will not
look in cases that are in the interest of national security hence not being
able to exercise the fundamental right of judicial review. This also means
that the courts will be compelled to exercise the power but in a particular
manner. Courts will not therefore impose the option which it thinks it is the
best. Thus courts will not be able to grant judicial review although it is a
fundament right. In the case of Opolot v A.G15[15] it was held that the
discretion should not be exercised where it is in the interest of the security
of the state. In that case, Opolot would not be granted his fundamental
right. Therefore, courts cannot judicial review in cases of national security.
In a case of locus Standi, courts may not grant judicial review. Locus
standi is the right to bring an action or challenge. 16[16] The issue is that
no one will spend his money and time in challenging an action unless he
has some interest in it. However, a mere interest would not entitle a
person to a writ unless he or she can show that his or her interest is more
12[12] AIR (1958) ALL 456
13[13] JUDICATURE ACT CHAPTER_13
14[14] I.I Massey: ADMINISTRATIVE LAW 6TH EDITION. Page 249
15[15] (1969) E.A 631
16[16] OXFORD DICTIONARY OF LAW 5TH EDITION. Page 296
BIBLIOGRAPHY
STATUTES
1. CONSTITUTION OF THE REPUBLIC OF UGANDA 1995
2. JUDICATURE ACT CHAPTER_13
TEXT BOOKS
1. I.I Massey: ADMINISTRATIVE LAW 6TH EDITION.
2. B.L. Jones and K.Thomas :GARNERS ADMINISTRATIVE LAW 8TH EDITION
3. Bryan A. Garner: BLACKS LAW DICTIONARY 7TH EDITION.
4. OXFORD DICTIONARY OF LAW 5TH EDITION
5. Wade: ADMINISRTATIVE LAW
CASES
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