ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW

NAME; UPENDO BWALYA

COMPUTER NUMBER; 21910691 - DISTANCE

YEAR OF STUDY 2023 (2nd Year)

SEMESTER NUMBER; TWO (I1)

COURSE; ADMINISTRATIVE LAW II

COURSE CODE; LL232

LECTURER; MR. JOSEPH CHIRWA

ASSIGNMENT NUMBER; TWO (2)

DUE DATE; 30/10/2023

CONTACT; 0973866986/0762458464

EMAIL; upendobwalya98@gmail.com

QUESTION:
Locus standi or simply standing is one of the requirements that one must satisfy for
leave to commence judicial review to be granted. Using case law, show how courts
have applied this requirement in practice in Zambia. Upon doing so, provide a critique
of your findings and recommend solutions to address the shortcomings so unearthed.

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 INTRODUCTION

To present this assignment, the initial part of the paper shall endeavor to explain what Locus
Standi means, secondly this paper shall show how courts have applied Locus Standi as a one
of the requirements to commence judicial review practice in Zambia. Thereafter, this
assignment shall endeavor to provide a critique finding and recommend solutions to address
the shortcomings so unearthed. Finally, a conclusion of the discussion shall be authored.

MEANING OF LOCUS STANDI

The Black’s Law Dictionary1 simply defines Locus Standi as a Latin phrase meaning “place
of standing" or simply ‘the right to bring an action or to be heard in a given forum.’ This
definition mirrors that of the Oxford’s Dictionary of Law2 which defines Locus Standi as the
right to bring an action or challenge some decision. From these definitions it seems Locus
Standi is a Latin phrase that means the ‘right’ to be heard or the right to bring an action.
However, the questions of locus standi most often arise in proceedings for judicial review.
Judicial review, in simple terms, is a public law remedy by which an individual can challenge
the legality of decisions, determination orders or even omissions of persons or bodies
performing public functions.3 In Zambia the High Court can exercise its supervisory
jurisdiction over inferior bodies, tribunals, public bodies and individuals performing public
functions.

In order for someone to be granted proceedings for judicial review the court must grant them
locus standi discretionally. For this to be successful, there are two main elements to be
established;

I. Sufficient Interest

Rules 3 (1) and 3 (7) of Order 53 of the Supreme Court provides that:

(1) No application for judicial review shall be made unless leave of the Court has been
obtained in accordance with this rule...

(7) The Court shall not grant leave unless it considers that the applicant has sufficient
interest in the matter to which the application relates. The language of the rules makes it

1
Black’s Law Dictionary. (9th. Ed.). Bryan A. Garner. (2009). WEST Publishing CO. p.1026.
2
The Oxford Dictionary of Law. 2002. (5th Ed.). (Edited by Elizabeth A. Martin). Oxford University Press;
London. Pg. 296.
3
Jones, B.L & Thompson, K. (2005). Garner’s Administrative Law. (8th Ed.). Oxford University Press: Oxford.
P.391

2
 clear that the requirement that the applicant has a “sufficient interest” is a threshold test of
standing which applies when the applicant is seeking leave. If the applicant does not have
sufficient interest at that stage, the court cannot grant leave.

In the case of Mung’omba & others v. Muchungwa & others4 it was stated that it is for the
party himself to show that he has sufficient interest in the matter to which the application
relates it is not for other people to show or generate interest for the party or on behalf of
him. Therefore, with sufficient interest the party must show that he or she is directly
affected by the matter. It seems that the rationale for such requirement lies in the need to
limit challenges to administrative decision making to genuine cases of grievances and to
avoid unnecessary interference in the administrative process by those whose objectives
are not authentic. The applicant may be an individual whose personal rights and interests
have been affected by a decision, which affects the interest of society as a whole.

Alternatively, as aforementioned, the application can be brought by an interest or pressure

group desiring to challenge a decision, which affects the rights and interests of members
of that group or society at large. For example, in the tribunal hearing involving Former
Communications and Transport Minister Dora Siliya, William Harrington, a former
minister in the same capacity made an application contending that as an individual his
personal rights and interests had been affected by the decision of Siliya in awarding a
contract without following proper tender procedures and which also affected the interests
of society as a whole. Joining him in the matter were Ten (10) civil society organizations
who also urged that the decision had affected their rights and interest as members of
society at large.

II. Whether or Not the Person Can Show That His Rights Has Been Violated in One
Way or the Other

In an interesting case of Chiluba and others v the Attorney general5, the court held that to
be “legally aggrieved” a person must not merely be dissatisfied with or even prejudiced
by an action or decision. He must also have been deprived of or refused something to
which he was legally entitled, he must be able to point to some encroachment or vested
right.

4
[2003] Z.R. 179(SC)
5
[1990-1992] Z.R.(H.C.), P94

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 LOCUS STANDI IN APPLICATION FOR JUDICIAL REVIEW IN ZAMBIA

This essay shall explain how Locus Standi is applied for judicial review in Zambia with
providing individual criticism of the findings and will recommend solutions to address the
shortcomings so unearthed. In doing so, this argument shall be based on the following two (2)
cases;

1. The People v. The Attorney General ex. parte Derrick Chitala

In Zambia it seems that even if one has a sufficient interest in the matter, leave will still
not be granted if the court is of the view that the case has presented in the documents,
filed with the court in support of an application for leave reveals that the application will
not succeed on merit. In The People v. The Attorney General ex. pa. Derrick Chitala 6 the
Learned Judge of the High Court refused leave because in his view, which was not
supported by any authorities, the relief of certiorari and mandamus was not available
against the President and his Cabinet. Certiorari was not available against a body or
authority not exercising a judicial or quasi-judicial function.

This view was supported by the Supreme Court when the application for leave was
renewed. The Supreme Court went on to examine, having found that the application was
not frivolous or vexatious and that the applicant had standing or interest in the matter,
whether the decisions which were the subject of the application for judicial review can be
quashed on the ground of “illegality”, “irrationality”, and “procedural impropriety” and
the relief of mandamus granted. The Supreme Court’s finding on the three grounds was in
the negative, and refused leave. The procedure followed was not sound in law. The
applicant’s obligation at the leave stage is to prove that he has interest in the matter, and
that there is an arguable case worth investigating, that the application is not frivolous.

Order 53 of the Rules of the Supreme Court does not require the applicant to prove that
he is going to succeed in his application. The hearing of the application for leave is not
meant for the court to determine the case substantively. It is designed to allow the court to
weed out cases, which are on the basis of the documents present before the court,
frivolous.

6
SCZ Judgment No. 14/1995.

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 The consequence of this decision if it is strictly followed is that apart from showing
interest in the matter, and that there is an arguable case which need to be investigated by
the court, the applicant must also prove that he will succeed in his application.

This standard defeats the whole purpose of judicial review. One can only prove that he
will succeed in his application once has been allowed to submit all the necessary evidence
before the court, this will include adducing before the court viva voce evidence, which
one cannot do during the application for leave.

Order 53 of the Rules of the Supreme Court merely requires the applicant to establish a
prima facie case, based on the documents presented before the case. A prima facie case is
not necessarily a case that the applicant will win after the substantive hearing on merit.

The Supreme Court did not, however, provide guidelines to applicants in addition to
proving standing and that there is an arguable case on merit, what else he should prove to
convince the court that he will succeed in getting the relief he seeks. The precedent is
dangerous and unhelpful to ensuring rule of law, if it is enforced, in that a number of
legitimate will be unchallenged.

There is no doubt that this approach was chosen by the court to run away from
considering or reviewing decisions by the executive branch of government with serious
political ramifications, by imposing a burden on the applicant, which the court the
applicant will not discharge.

The decision in The People v. The Attorney General ex. Parte. Derrick Chitala has been
the distinction between application for leave to apply for judicial and the substantive
application for judicial review.

2. Maxwell Mwamba and Stora Solomon Mbuzi and the Attorney General

In Maxwell Mwamba and Stora Solomon Mbuzi and the Attorney General,7 the issue of
standing was raised. The Applicants who were members of an opposition party
challenged the appointment by the President of two members of his political party, who
had previously been investigated for trafficking in drugs. The challenge was premised on
Article 44 of the Constitution which provided that:

“As the Head of State, the President shall perform with dignity and leadership all
acts necessary or expedient for, or reasonably incidental to, the discharge of the
7
SCZ Judgment No. 10 of 1993.

5
 executive functions of government, subject to the overriding terms of this Constitution
and the Laws of Zambia which he is constitutionally obliged to protect, administer
and execute.”8

The substance of the case was that by appointing the two members of Parliament to
ministerial positions the President had acted contrary to the provisions of Article 44 of the
Constitution. They were not themselves directly affected by the appointments. The four
Judges of the Supreme Court (the majority) observed:

“However, on the question of locus standi, we have to balance two aspects of the
public interest, namely desirability of encouraging individual citizens to participate
actively in the enforcement of the law, and the undesirability of encouraging
meddlesome private “Attorney Generals” to move the Courts in matters that do not
concern them.”9

Regrettably, having stated the issue so well, the Court went on to say that:

For the present purposes, we are prepared to proceed, without coming to any firm
conclusion on the point, on the footing that the appellants have a legitimate interest
in the national leaders and the governance of the country. We would like to make it
clear that four of us do not wish to come to any firm conclusion on the issue of locus
standi but our brother Musumali, JS, would like to do so and adds his own view....

Although Musumali, JS. set out to make a serious pronouncement on the subject his
pronouncement is of very limited significance. He said:

“My firm belief is that a citizen has a right to sue on constitutional issues unless the
constitution itself explicitly or by necessary implication has taken away that
liberty.”10

In this instance it seems that Musumali JS. limited the liberal position of locus standi to
constitutional issues. This is not helpful if it is accepted that the essence of judicial
review is to ensure rule of law. The majority of the cases in administrative law, do not
touch on the constitution. They relate largely to exercise of administrative powers. The
position of Musumali, JS, is that any citizen can bring a case before the court, even if he

8
Ibid
9
Ibid, J4
10
Ibid, J9-J10

6
 is not directly affected, provided the issues in contention are constitutional and the
Constitution itself does not bar him.

SOLUTIONS TO THE PROBLEM

In order to resolve the problems arising from the foregoing, it is evident that there is a need
for reforms through parliament. It seems that where matters arising the Locus Standi the
Judiciary, in a way, is forced to make laws instead of interpreting. It is evidently hard for the
Judiciary to interpret laws when in the first place there isn’t a Zambian law that expressly
provides for Locus Standi and how one can bring an issue before the courts. To solve this
problem there is a need for Parliament to enact a law (Judicial Review Act) that will provide
for all the necessary steps and qualifications for one to raise an issue concerning judicial
review.

Another solution would be an amendment to Section 41(1) of the Legal Practitioners Act 11
that provides that

41. (1) Subject as hereinafter provided, no person shall be qualified to act as an advocate
within Zambia unless his name is on the Roll and he has in force a practising
certificate…”

An amendment to this section will be ideal because it will provide for an extension of
standing to bodies such as lobby groups as well as pressure groups that may not have direct
point of entry in the matter.

CONCLUSION

In conclusion it is sufficed to say that the principle of locus standi is very helpful in that it
promotes the right to bring an action or to be heard in a given forum. However as far as
Zambia is concerned, there is an emergency need for parliament to enact a law that will
govern the Locus Standi and expressly establish what will constitute one to bring a motion of
standing. As an independent country it is important that we don’t rely on foreign laws
especially when they have to do with administration of our country.

11
Chapter 30 of the Laws of Zambia.

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 BIBLIOGRAPHY

Books

Jones, B.L & Thompson, K. (2005). Garner’s Administrative Law. (8th Ed.). Oxford
University Press: Oxford.

Legislation;

Legal Practitioners Act, Chapter 30 of the Laws of Zambia.

Order 53 of the Rules of the Supreme Court

Cases

Chiluba and others v the Attorney general [1990-1992] Z.R.(H.C.), P94

Maxwell Mwamba and Stora Solomon Mbuzi and the Attorney General, SCZ Judgment No.
10 of 1993.

Mung’omba & others v. Muchungwa & others [2003] Z.R. 179(SC)

The People v. The Attorney General ex. pa. Derrick Chitala, SCZ Judgment No. 14/1995.

Dictionaries;

Black’s Law Dictionary. (9th. Ed.). Bryan A. Garner. (2009). WEST Publishing CO.

The Oxford’s Dictionary of Law. (2002). (5th Ed.). (Edited by Elizabeth A. Martin). Oxford
University Press; London.