JUDICIAL REVIEW

IVAN TWONGYEIRWE (ADVOCATE)

LLB (HONS)-UCU, DIP. LP (LDC), LLM (CAND)-MUK
TUTORIAL ASSISTANT, UCU SCHOOL OF LAW
 CONTENT

• Background
• Application for Judicial Review
• Definition/ Understanding Judicial Review
• Laws Applicable to Judicial Review
• Judicial Review distinguished from Appeals, Slip rule, revision and review
• Conditions for Judicial Review
• Grounds for Judicial Review
• Remedies/Orders under Judicial Review (to be discussed in depth in the next class)
BACKGROUND

• It is no denying the fact that today due to intensive form of government, there is a tremendous
increase in the functions of administration. The functions of government are exercised through
the executive organ of government. Under this is a series of agencies, public bodies, statutory
corporations, commissions and tribunals which keep exercising public powers to take decisions.
• If these 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, 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.
BACKGROUND

• 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. (Public Law in East Africa by
Ssekaana Musa, at 226)
• The rule of law means every act of government authority 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

• The application for judicial review is the primary means of challenging the legality
of action taken by public bodies or officers.
• What is a public body? – Rule 2 of the Judicature (Judicial Review) Rules.
• Yasin Sentumbwe Munagomba and anor v. UCU Miscellaneous Application No.
22 of 2016, Lady Justice Margaret Mutonyi stated that much as UCU is a private
University, its administrative functions under section 10 of the Uganda Christian
University Charter 2003, Code of Conduct, Regulations and Government and Statute
on student and staff discipline with quasi-judicial functions in disciplinary proceedings
against students fall within the ambit of Public Law.
APPLICATION

• 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.
DEFINITION/UNDERSTANDING JUDICIAL REVIEW

• Judicial review is 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(See Rule 2 of the Judicature (Judicial Review) (Amendment) Rules, 2019.
• According to the Black’s Law Dictionary 11th ed. Thomson Reuters at 1013, 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.
• Broadly speaking, it is the power of courts to keep public authorities within proper bounds
and legality.
UNDERSTANDING JUDICIAL REVIEW

• In the case of Ssejjusa v A.G HCMC No. 176 of 2015, Judicial Review was defined as “the
jurisdiction of the superior court to review the acts, decisions and omissions of public authorities
in order to establish whether they have exceeded or abused their powers”
• Yasin Case (supra) at page 4: Judicial review is an audit of the legality of decision making
process by public bodies. The role of the court is not to make the decision being challenged or
inquire into the merits of the decision, but to conduct a review of the process by which the
decision was reached in order to assess whether that decision was flawed and should be
revoked or quashed.
• Judicial review is not concerned with what led to the administrative decision but the process of
arriving at the decision. Yasin Case (supra) at page 7.
UNDERSTANDING JUDICIAL REVIEW

• The court has power in a judicial review application, to declare as

unconstitutional, law or governmental action which is inconsistent with the
constitution.
• Thisinvolves reviewing governmental action in form of laws or acts of
executive for consistency with constitution.
JUDICIAL REVIEW DISTINGUISHED FROM;

Appeal:
• Re-hearing of the matter before a higher court or superior court.
Slip rule;
• Section 99 of the CPA. The slip rule gives jurisdiction to the court that tried the matter to recall its judgement
with the view of making some corrections or need which could have escaped the judgement or orders for the
purpose of giving that judgement the intended position.
Revision:
• Section 83 of the CPA. Jurisdiction to do revision is only given to the High Court. No any other court has such
powers. –errors committed by judicial officers/court. These powers are exercisable over decisions, judgment,
decrees or proceedings of Magistrate’s Courts.
JUDICIAL REVIEW DISTINGUISHED FROM;

• The section also provides circumstance or grounds upon which a revision can be
made;
• Where it is said that the Magistrate exercised jurisdiction not vested in him or his
court.
• Where the Magistrate had jurisdiction but has failed to exercise it (failure to exercise
jurisdiction given by the law)
• Where while he/she has jurisdiction he exercises it with material irregularity as to
occasion a miscarriage of justice.
JUDICIAL REVIEW DISTINGUISHED FROM;

Review:
• Section 82 of the CPA and Order 46 of the CPR. It is a remedy available to a
person considering himself or herself aggrieved by a decision, decree or
order of a court to which a right of appeal is given but for where no appeal
has been preferred. Alternatively it can also be available where no right of
Appeal is provided.
JUDICIAL REVIEW DISTINGUISHED FROM;

• Thus;
• A person must be considering himself or herself aggrieved.
• There is a right of appeal provided by the law but this aggrieved person has
not exercised his right of appeal.
• Thereis no Right of Appeal at all and thus he or she can only get review
redress.
LAWS APPLICABLE/LEGAL BASIS

• In Uganda, judicial review finds its basis in the Constitution, the Judicature Act and
the Judicature (Judicial Review) Rules.
• Article 42 of the Constitution.
• Sections 40 to 42 of the Judicature Act.
• Section 42 (2)-Injunction-restraining a person from acting in any office in which the
person is not entitled to act.
• Object of Judicial Review- Rule 1A
• Judicature (Judicial Review) Rules
LEGAL BASIS/ LAWS APPLICABLE

• Rule5 provides that an application for Judicial Review shall be made

promptly and in any event within three months from the date when the
grounds of the application first arose, unless the Court considers that there is
good reason for extending the period within which the application shall be
made.
CONDITIONS FOR JUDICIAL REVIEW

• Rule 7A of the Judicature (Judicial Review) Rules provides for the factors to be considered in
handling applications for Judicial Review, court must satisfy itself;
• That the application is amendable to Judicial review,
• That the aggrieved person has exhausted the existing remedies available within the public
body or under the law, and
• That the matter involves an administrative public body or official.
• The court shall grant an order for judicial review where it is satisfied that the decision making
body or officer did not follow due process in reaching a decision and that, as a result, there
was unfair and unjust treatment. See Rule 7A (2)
CONDITIONS

• Owor Arthur and ors v. Gulu University HCMA No. 18 of 2007, Justice Kasule (as
then was) stated that the essence of judicial review jurisdiction is for 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 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.
GROUNDS FOR JUDICIAL REVIEW

• In the case of Council of Civil Service Union v. Minister for Civil Service
(1984) 3 ALL ER 935, Lord Diplock categorized the grounds of judicial review
under three broad heads. These are illegality, procedural impropriety, and
irrationality.
• In the case of His Worship Aggrey Bwire v. A.G CACA No.9 of 2009, it was
held that judicial review can be granted on three grounds, that is illegality,
irrationality, and procedural impropriety.
ILLEGALITY/ULTRA-VIRES

• Ultra-vires refers to a situation where a public officer acts beyond his powers or does what he or she
is not authorized to do under the law. This is the central principle of administrative law. A person is
deemed to have acted beyond authorization of the law under any of the following circumstances;
• Where a public officer does anything which he/she is not authorized to do under the law e.g.
where an action is taken by a wrong person.
• Where an authority or body is not properly constituted.
• When the exercise of public power conflicts with a provision of the general law.
• Misuse or abuse of discretionary powers.
• etc
ILLEGALITY

• In the case of Cecil David Edward Hughes v. A.G MC No. 266 of 2013,
court stated that “ illegality is when the decision – making authority commits
an error of law in the process of taking the decision or making the act, the
subject of the complaint. Acting without jurisdiction or ultra vires or contrary to
the provisions of the law or its principles are instances of illegality.
ILLEGALITY

• In the locus classicus case of Council of Civil Service Unions v. Minister for the Civil
Service (1985) AC 375 (cited with approval in Mugabi Edward v. Kampala District
Land Board and Wilson Kashaya, Misc. Cause No. 18 of 2012), Lord Diplock had
this to say on illegality;
• “Illegality as a ground for judicial review I mean that the decision maker must
understand correctly the law that regulated his decision – making power and must
give effect to it. Whether he has or not is par excellence a justifiable question to be
decided in the event of dispute by those persons the judge, by whom the judicial
power of the state is exercised.
PROCEDURAL IMPROPRIETY

• Procedural impropriety was defined in Pastori v. Kabale District Local Government

Council and ors [2008] 2 EA 300 while citing council of civil unions v. Minister for the
Civil Service [1985] AC 2 and an Application by Bukoba Gymkana Club [1963] EA
478 as “ is when there is a failure to act fairly on the part of the decision – making
authority in the process of taking a decision. The unfairness may be in non-
observance of the rules of natural justice or to act with procedural unfairness towards
one to be affected by the decision. It may also involve failure to adhere (to) and
observe procedural rules expressly laid down in a statute or legislative instrument by
which such authority exercises jurisdiction to make a decision.
PROCEDURAL IMPROPRIETY

• In the case of Obore George v. the Inspector of Government and anor

HCMA No.5 of 2013, court stated that procedural impropriety covers failure
by an administrative tribunal to observe procedural rules that are expressly
laid down out in the legislative instrument by which its jurisdiction is concerned
even where such failure does not involve any denial of natural justice.
IRRATIONALITY

• Irrationality is when there is such gross unreasonableness in the decision taken

or act done that no reasonable authority, addressing itself to the facts and the
law before it, would have made such a decision.
• Such a decision is usually in defiance of logic and acceptable moral
standards.
IRRATIONALITY

• In the case of Cecil Edward David Hughes v A.G (supra) court in defining
irrationality stated “Micheal Allen, Brown Thompson and Bernadette Wash in
their book, Cases and Materials on Constitutional and Administrative Law, also
explain that irrationality is when there is such gross unreasonableness in the
decision taken or act done, that no reasonable authority, addressing itself to
the facts and law before it, would have made such a decision, such a decision
is usually in defiance of logic and acceptable moral standards”.
PROCEDURE, FORUM AND DOCUMENTS

• Procedure; is by way of a formal application to court within the prescribed time.

• Forum; Is the High Court of Uganda.
• Documents: Notice of Motion and an affidavit in support. Once served, the
respondent will file an affidavit in reply if he intends to participate in the hearing.
• The matter must be disposed of expeditiously and at any rate within 90 days (See
Rule 7B)