JUDICIAL REVIEW CLASS NOTES

BY DIANAH ATEENYI AHUMUZA

FOR THE ADMINISTRATIVE LAW II CLASS OF 2022/23

Week 1:
1.0 INTRODUCTION AND CONTEXT
Administrative Law I introduced various principles governing administrative law, the
various administrative authorities, their powers, limits to powers, processes to be followed
while exercising the said powers or making administrative decisions. This background is
essential to the understanding of this course and this module specifically. The following
will be covered in the module: An appreciation of the term/concept of judicial review,
persons/authorities or offices that are amenable to/can be a subject of judicial review,
locus standi in judicial review cases, the preconditions that applicants of judicial review
must fulfil, the forum, the grounds of judicial review such as substantive ultra vires
(illegality), irrationality (unreasonableness), procedural ultra vires, and ‘unfairness and
unjust treatment’ (Article 42), the procedure of judicial review and the prerogative
remedies such as certiorari, prohibition and mandamus. The module will also cover other
common law and equitable remedies in administrative law such as damages, injunctions,
interim remedies, declarations and structural interdicts among others. In Uganda, judicial
review is a constitutional remedy that developed largely through common law with some
standards now codified in the different laws that are reviewed here under. The module
will make sense of the tensions and contradictions that arise as a result of the multiple
legal understanding of applicable standards. This is with the view of ascertaining the
proper legal direction in the Ugandan context.

1.1 WHAT IS JUDICIAL REVIEW?

Administrative authorities/public bodies/officials made decisions in the execution of their
respective mandates; other times they do not act when the law requires them to do so.
These acts/omissions could leave many people aggrieved. The law allows aggrieved
parties to seek redress which could include appeals through the administrative ranks if
the enabling law allows for such appeals (since appeals are creatures of statute), or

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recourse to courts. The latter is what this module will be preoccupied with. Judicial review
is seen to principally be preoccupied with
the control exercised historically at common law by the courts over administrative action by means
of the orders of certiorari, prohibition, and mandamus… know as prerogative orders, and by means
of the declaration and injunctions.1

The law requires fairness, impartiality, legality and justice in the determination of civil
rights and obligations, inter alia.2 Article 42 specifically provides that;
Right to just and fair treatment in administrative
decisions

Any person appearing before any administrative official or body has a right to be
treated justly and fairly and shall have a right to apply to a court of law in respect of
any administrative decision taken against him or her.3

This is the constitutional basis of judicial review. Judicial review is therefore a right to
recourse to court (in Ugandan case, the High court) in case one is aggrieved by an
administrative decision. The interpretation of articles 28, 42 and 44 of the constitution
make judicial review a none derogable human right.4 The review of standards applicable
in judicial review as have been applied by courts should as such bear in mind the
provisions of Article 2 of the Constitution on the supremacy of the Constitution.

Section 36 of the Judicature Act, cap 13 as amended provides that;

The High Court may upon application for judicial review, grant any one or more of the following
reliefs in a civil or criminal matter—(a)an order of mandamus requiring any act to be done;(b)an
order of prohibition, prohibiting any proceedings or matter;(c)an order of certiorari; removing any
proceedings or matter into the High Court;(d)an injunction to restrain a person from acting in any
office in which he or she is not entitled to act;(e)a declaration or injunction not being an injunction
referred to paragraph (d) of this subsection.

Judicial Review is as such a process where the High Court intervenes in decisions of
administrative authorities/officials/bodies or those vested with public powers and
functions to ascertain the legality, rationality, fairness and justice and procedural propriety
of the same.

1
Foulkes ‘Administrative Law’ 7th edition, 314.
2
See art. 28(1) of the Constitution of the republic of Uganda, 1995.
3
Emphasis mine.
4
John Musiime ‘Judicial Review: A used or abused tool’ Paper presented at the ULS Litigation Practice Training
Workshop held in Kampala on 18 February 2021. (This paper is a must read for all students)

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Judicial review is defined in the Judicature (Judicial Review) (Amendment) Rules of 2019
as
the process by which the high court exercises its supervisory jurisdiction over proceedings and
decisions of tribunals, courts or other bodies that carry out quasi-judicial functions or who are
charged with the carrying out of public functions, acts or duties.5

(See Pius Niwagaba Vs. LDC for this definition CoA).

See the recent case of Citizens Alert Foundation (CAF) Ltd v AG & 2 Others decided in
January 2022; one of the issues was whether the matter before court was a proper case
for judicial review or one of constitutional interpretation. One of the contentious
submissions were that the actions of the President of Uganda taken in the exercise of his
executive powers are not amenable to judicial review. (What are your views?)

1.2 The purpose of Judicial Review

Knowing the purpose of judicial review enables the aggrieved party or potential litigant
determine whether the same is the best course of action in the circumstances. The
purpose is well elaborated in the case below:6

The principles governing Judicial Review are well settled. Judicial Review is concerned with
Prerogative Orders which are basically remedies for the control of the exercise of power by those
in public offices. They are not aimed at providing final determination of private rights which is done
in normal civil suits. The said orders are discretionary in nature and court is at liberty to refuse to
grant any of them if it thinks fit to do so even depending on the circumstances of the case where
there had been clear violation of the principle of natural justice: John Jet Mwebaze Versus
Makerere University Council & 2 others Misc Application No. 353 of 2005.

The discretion alluded to here has to be exercised judicially and according to settled principles. It
has to be based on common sense as well as justice: Moses Semanda Kazibwe Versus James
Ssenyondo, Misc. Application No. 108 of 2004

Judicial review is as such more concerned with the decision making process at the
administrative/public body level rather than the merits of the case. This is critical for an

5
Rule 3.
6
Amuron Vs. LDC, 4 available at https://ulii.org/ug/judgment/hc-civil-division-uganda/2016/110.

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aggrieved party. If the process adopted to arrive at a decision is proper, but one is say
aggrieved with the merits of the case, judicial review is not an option to be pursued.

Factors that ought to be considered include; whether the application has merit or whether there is
reasonableness, vigilance without any waiver of the rights of the applicant. Court has to give
consideration to all the relevant matter of the cause before arriving at a decision in exercise of its
discretion. It was held in the case of Koluo Joseph Andres & 2 others vs Attorney General
Misc Cause No. 106 of 2010 and I agree that:

“It is trite law that judicial review is not concerned with the decision in issue per se but with the
decision making process. Essentially judicial review involves the assessment of the manner in
which the decision is made. 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 standards of legality, fairness and rationality”.

The purpose of judicial review was summed up by Lord Hailsham St Marylebone in Chief
Constable of North Wales Police Vs Heavens [1982] Vol.3 All ER as follows:-

“The purpose of judicial review is to ensure that the individual receives fair treatment not to
ensure that the authority after according a fair treatment reaches on a matter it is authorized
or enjoined by law to decide from itself a conclusion which is correct in the eyes of the
court.”

This is in line with the provisions of article 42 of the Constitution. Judicial review should
as such be seen as relevant when an aggrieved party is not accorded fairness and justice
in an administrative process or decision.

In the case of Proline Soccer Academy Vs. Lawrence Mulindwa and Ors, it was held that;7

Now before I resolve the points of law raised by the parties one by one, I consider it necessary to
comment, very briefly, on two broad aspects: the remedy of Judicial Review and technicalities in
dispensation of justice.

As regards the remedy of Judicial Review, it is a principle, fairly notorious in my view, that the
prerogative order of certiorari is designed to prevent abuse of, or the outright abuse of, power or
jurisdiction by public authorities. The legal authorities show that the primary object of the
prerogative orders of certiorari and prohibition is to make the machinery of government operate
properly and in the public interest. Judicial Review is concerned not with the decision per se but
the decision making process. Essentially, it involves an assessment of the manner in which a
decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not
to vindicate rights as such, for instance in the instant matter that the applicant is or is not entitled
to participate in the National Super League being organized by the respondents, but to ensure that
public powers are exercised in accordance with basic standards of legality, fairness and rationality.

I stated that much in Kyamanywa Andrew K. Tumusiime vs The IGG HCT-00-CV-MA-0243-2008

(unreported) and the point requires no further elaboration. Suffice it to say, however, that the power extends
to the acts and orders of a competent statutory public authority, which has power to impose a liability or
give a decision, which determines the rights or property of the affected parties. Bodies which are bound to

7
https://ulii.org/ug/judgment/high-court-uganda/2009/187 (accessed on 12 February 2022).

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explain and defend in any forum the decisions they take in the performance of their duties are amenable to
judicial review.

Activity: i) Describe an incident where you have suffered an administrative injustice.

ii) What remedies did you seek; from which forum and why?
iii) Would Judicial review have been an option? Explain your answer.

1.3 Subjects of Judicial Review/who is amenable to Judicial Review (Who can be

sued in Judicial Review)?

The easier ones to identify are administrative authorities. (Refer to the discussion on
administrative authorities last semester) Administrative authorities are subjects of
administrative law. The development in case law has however brought less obvious
bodies, persons and principles in the understanding of who is a subject of judicial review.
Issues have also arisen as to whether the legal personality of the respondent is essential
in a judicial review application.

A public body is defined in the Judicature (Judicial Review) (Amendment) Rules of 2019
which gives a whole list of entities, bodies, institutions, officials, whether incorporated or
not for purposes of judicial review applications.8

Exercise: Read the following cases (citations are on the reading list, they are also
available on ulii). What conclusions do you draw from them on the issue of who is
amenable to judicial review?

Yasin Sentumbwe & Anor Vs. UCU

Peter Ochiengs & Ors Vs. The SG of the DP & Ors
Proline Soccer Academy Ltd Vs. FUFA & Ors
John Jet Tumwebaze Vs. Mak. University and Ors
Fuelex Limited Vs. Attorney General, Minister of Energy and Mineral Development and
Commissioner Petroleum Supply Department (Miscellaneous Cause 48/2014).

8
See rule 3 of the JA (JR) (Amendment) Rules, 2019.

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Shaft Sinkers of Uganda Vs. The Commissioner Geological Surveys and Mines
Department (Court of Appeal Civil Appeal 76/2014).

Some of the conclusions that can be drawn from these cases include:
1. Bodies which are bound to explain and defend in any forum the decisions they take in the
performance of their duties are amenable to judicial review. (See the case of Proline Soccer
Academy Ltd Vs. L. Mulindwa.

2. The body sued need not be a body corporate, or a legal entity. See the Proline
case and John Jet Tumwebaze case)

The jurisdiction of this court to issue prerogative orders is derived from the Statute, namely, the
Judicature Act, Cap. 13, Sections 33, 36, 37 and 38.
There is no requirement in those provisions that such orders shall only issue to public bodies and
offices that have corporate personality. My brother Kasule Ag. J. (as he then was) faced with the
same issue in John Jet Tumwebaze vs Makerere University Council & Others H.C Civil
Application No. 353 of 2005 (un reported) observed:

“If the legislature desired that these orders issue only against bodies clothed with
corporate personality, the legislature would have expressly stated so. It did not.
The wide jurisdiction given to court as to the public bodies and officers at which
prerogative orders can be directed must not be narrowed down by restricting their
issuance to only those bodies clothed with corporate personality.”

I agree with the view expressed by the learned Judge and I need not add anything to it. I therefore
adopt it as the correct legal position in as far as remedies of Judicial Review are concerned.

From the cases reviewed above, which position reflects the spirit of Article 42 with regard
to who is amenable to judicial review?

1.4 Locus Standi in Judicial Review Cases

The general principle of law regarding locus standi in judicial review matters is that one
must demonstrate sufficient interest in the application.9 The person moving court in a
judicial review application must demonstrate that they are aggrieved by a decision and
are not a ‘stranger’ to the action complained of.10 (see case of R V. Surrey Justices (1870)
LR 5 QB 466.)

9
See Foulkes above, 357.
10
As above.

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See Section 3A of the Judicature (Judicial Review) (Amendment) Rules of 2019, that
requires an applicant to demonstrate ‘direct or sufficient interest’.

In R V Liverpool Corpn, exp Liverpool Taxi Fleet Operators’ Association,11 Lord Denning
said ‘the writ of prohibition and certiorari lie on behalf of any person who is a “person
aggrieved” and includes any person whose interests may be prejudicially affected by what
is taking place. It does not include a mere busybody who is interfering in things which do
not concern him: but it does include any person who has a genuine grievance because
something has been done or may be done which affects him.

See Article 42 that is emphatic on the person appearing before a public officer…… and
shall be entitled to apply to court in respect of the decisions made against him or her. This
makes the judicial review remedies available to aggrieved persons.

In the case of Proline supra, it was held that;

The issue that I have been asked to decide herein is that of locus standi; or a place of standing,
which is the question of whether a person has a cause of action. The rule is that there must exist
‘a sufficient interest in the matter to which the application relates.’ This essentially means
that the matter must directly affect the applicant in some way, however small.

In the case of Citizen Alert Foundation, Supra, the question before court was whether the
applicant had
sufficient interest in instituting this application for judicial review or is a
mere busy body.
The task of the court in assessing whether a particular
claimant has standing is a balancing act between the various factors.
Sufficient interest is a standard which could sufficiently embrace all classes
of those who might apply and yet permit sufficient flexibility in any
particular case to determine whether or not ‘sufficient interest’ was in fact
shown.

Rule 3A of the Judicature (Judicial Review) (Amendment) Rules, 2019 provides

that;
Any person who has direct or sufficient interest in a matter may apply for judicial
review. The court is duty bound to determine the issue of locus standi since our
rules of procedure removed the application for leave to apply for judicial
review which was a sieving stage of frivolous applications which would
never proceed to be filed in court. The permission/leave stage was a good

11
(1972) 2 QB 299, (1972) 2 All ER 589.

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 check for hopeless cases and would avoid claimants who are simply
meddlers or busy bodies. The preliminary evaluation of standing at
permission stage enabled the court to prevent abuse by busybodies, cranks
and other mischief-makers.

The standard of sufficiency has been relaxed in recent years, the need to
have an interest has remained and that the fact that.....a sufficient interest
[is required] undoubtedly shows that not every applicant is entitled to
judicial review as of right. It is important that the courts do not by use or misuse of the weapon of
judicial review cross that clear boundary between
what is administration, whether it be good or bad administration, and what
is an unlawful performance of the statutory duty by a body charged with
performance of that duty. See R v Inland revenue Commissioners, ex parte
National Federation of Self-Employed and Small Businesses Ltd [1982]AC
617.

The law is equally concerned with ‘representative standing’ which involves

associational standing which claims on behalf of (interests of) identifiable
individuals who are its members or whom it claims to represent; and
public interest standing, which involves an individual, corporation or
group purporting to represent “the public interest” rather than the interests
of any identified or identifiable individuals. The court would probe in any
detail the relationship between the claimant and the class they claim to
represent.

The 1st applicant is a company limited by guarantee incorporated in

Uganda whose objectives include inter alia to provide a platform for
dialogue and peaceful dispute resolution and other activities incidental
thereto, including public interest litigation on any matter of Human rights,
rule of law or public interest having capacity to bring this application.
It is equally not clear whether the 1st applicant is merely operating as a
company limited by guarantee or a Nongovernmental Organisation with
licence to operate as such.

The fact that some people join together and assert that they have an interest
does not create an interest if the individuals did not have an interest. The
fact that those without interest incorporate themselves and give the
company in its memorandum power to pursue a particular object does not
give the company an interest.

….. The interest required by law is not a subjective one; the court is not
concerned with the intensity of the applicant’s feelings of indignation at the
alleged illegal action, but with objectively defined interest. Strong feelings
will not suffice on their own although any interest may be accompanied by
sentimental considerations. Every litigant who approaches the court, must
come forward not only with clean hands but with clean mind, clean heart
and with clean objective.

The case was held to be incompetent before court for lack of locus standi by the applicant
NGO. (Must read)

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How do you reconcile this position with Article 50 and the fact that Judicial Review is
provided for under Art. 42 as part of the Bill of Rights? What other contentious/problematic
legal issues do you identify in the case?