By E. Munshya wa Munshya, LLB (Hons), M.Div.
Justice Jane Kabuka has finally made her ruling in the case where the MMD had sued the Attorney General and the Registrar of Societies in connection of the MMD’s de-registration. For many reasons, the ruling should not come as a surprise. Reading through the reasons for her ruling it is clear that the MMD had a good case. This article wishes to provide a critical analysis of this ruling.
The MMD was basically asking the courts to do a judicial review of the decision of the Registrar of Societies, Mr. Clement Andeleki. Judicial review is a process by which courts control the exercise of the powers of the executive. In its traditional sense, it is brought on at least three grounds: illegality; procedural impropriety; and unreasonableness. Illegality is not controversial to understand. If a public official makes a decision that he is not empowered to make. His decision would be declared illegal and can be reversed by the courts in judicial review. With regard to procedural impropriety, if a public official makes a decision without following the relevant procedure, the courts might reverse this decision too. Procedural impropriety might be found if the public official did not follow the procedure contained in the relevant statutes or if the public official ignored relevant rules of natural justice.
The third ground for judicial review is “unreasonableness”. This ground can also be called irrationality or Wednesbury unreasonableness in its technical form. This ground is satisfied if a public official makes a decision that a “sensible person who had applied his mind to the question to be decided could not have arrived at the decision.” In simple layman’s terms, unreasonableness means the public official did not make a sensible or logical decision.
It is these three grounds that Justice Kabuka had to deal with in the MMD case. The MMD had asked her to quash the decision of the Registrar General arguing that the decision was first, illegal, second it was procedurally improper and third that the decision maker, Mr. Clement Andeleki made the decision unreasonably. According to the present state of the law in judicial review, the MMD only needed to succeed on at least one ground. It is what Justice Kabuka says in the case that is mostly interesting.
ILLEGALITY
In terms of the judicial review ground of “illegality”, Justice Kabuka sided with the state and ruled that Andeleki’s decision was legal. On this basis, therefore, the MMD could not succeed in reversing Andeleki’s decision on illegality. It was perfectly legal. Andeleki exercised the functions of his powers under the Societies Act and its accompanying regulations. But legality was not the only issue in dispute. The other two grounds were also relevant.
PROCEDURAL IMPROPRIETY
With regard to procedural impropriety, Justice Kabuka ruled that Andeleki had also followed procedure. There was no procedural impropriety in what he had done. He had given the MMD sufficient notice, which they in fact responded to. He had given them the chance to be heard, so to speak. Justice Kabuka could not therefore reverse Andeleki’s decision based on procedural impropriety.
IRRATIONALITY AND UNREASONABLENESS
It is with regard to “irrationality and unreasonableness” where Justice Kabuka finds Andeleki wanting. At this point then, many of us could in fact erroneously conclude that just because something is legal, then it is lawful. Legality and lawfulness are not necessarily identical at law. In fact, not even law and lawfulness are identical. Something can be perfectly legal and yet be found to be unlawful. And so the problem with Andeleki was not that he did not make a legal decision, the problem is that he did not make a lawful decision.
A legal power to decide takes into account just the raw powers contained in a statute. But being lawful means the decision maker must make the decision within the wider context of the current state of the laws and constitution. And so a bad decision maker cannot hide behind legal power when making a decision. Decision makers must have more than just legal power. As such, our courts in Zambia are called to adjudicate not only on questions of legality, but also on questions such as equity, fairness and justice (lawfulness). It is on this point that Andeleki received the most severe reprimand.
As such, Justice Kabuka ruled that notwithstanding the fact that Andeleki had the power to de-register the MMD, and notwithstanding the fact that he had followed procedure in so doing. His decision was one, which a sensible or reasonable person taking into account all matters shouldn’t have arrived at. Technically, then Andeleki’s decision was “Wednesbury unreasonable.” Justice Kabuka provided reasons for this. First, Andeleki had other alternative decisions to make in order to enforce collection of a debt from the MMD. Second, Andeleki should have thought of the effect that banning the MMD would have on the democratic character of the Zambian constitution. Third, she said that Andeleki’s decision was disparate. She asked, how he could ban Zambia’s biggest opposition party for an offence whose statutory remedy is paying the penalty units amounting to K540, 000. Fourth, Justice Kabuka found Andeleki’s decision wanting in that it ignored public interest. Public interest for Justice Kabuka hinges on the fact that disqualifying the MMD would mean 53 seats in parliament would be declared vacant and the people who voted for these MPs would be disadvantaged.[pullquote]This can just tell us that she was quite concerned at Andeleki’s conduct and she had to tell him in the common terms: “you have no brains.”[/pullquote]
In her own words she said: Andeleki’s decision is “one so outrageous in its defiance of logic or moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” This determination was taken verbatim from an old English law case presided over by British Judge Lord Diplock. Lord Diplock also gave the other two grounds for judicial review in the same English case.
In recent times, judges both in England and much of the common law systems have hesitated to use “unreasonableness of irrationality” as a ground for judicial review. They are more comfortable with illegality or procedural impropriety because these do not have to call into question the moral character or sensibleness of a decision maker. As such, it is quite unusual that Justice Kabuka went for unreasonableness. This can just tell us that she was quite concerned at Andeleki’s conduct and she had to tell him in the common terms: “you have no brains.”
Indeed in a democracy, Zambian government officials are expected to so construe legislation as to give effect to our democratic ideals. This is where Andeleki failed. Additionally, statutes such as the Societies Act, which are inherited from the colonial and the Kaunda dictatorship, need democratic lens to interpret them. This, Andeleki failed to do. Andeleki was also betrayed by his rush to “declare the seats vacant and call for bye-elections”, clearly, in contravention of Zambia’s democratic ideals. This Justice Kabuka did not take very kindly.
But I should also submit here that Zambian law should develop beyond the three grounds of judicial review. Obviously, had Justice Kabuka been given more grounds she could have settled for a less controversial ground than to call the sensibleness of Andeleki into question. Lord Diplock did mention several decades ago that “proportionality” might become the fourth ground for judicial review. Indeed, English courts are using proportionality quite frequently. Proportionality is gaining ground due to the influence of European law. Indeed, Justice Kabuka could have settled for proportionality had it been part of our laws. In the case of Andeleki and the MMD, I think reversing Andeleki on the grounds that his decisions had been disproportionate could have at least saved his face.
In the meantime, Andeleki is saying that he will appeal. I just do not see how the Supreme Court could rule any differently from Justice Kabuka. The most, I think the Supreme Court might do, is to save Andeleki’s face by finding other grounds for reversing his MMD ban without having to say that his decision was “defiant of logic, unreasonable, irrational, and not sensible.” Could that be the time that the ground of “proportionality” gets introduced into our laws? Well, let us wait and see how the Supreme Court will handle Andeleki’s appeal.
Nevertheless, we need proportionality in our judicial review law so that next time judges go to rule on a case such as Andeleki’s they would not be tempted to tell Andeleki: Sir, “you have no brains.”
ukazi nkala na nzelu!
I wonder how his wife and children feel now that it is on record that Andeleki is unreasonable,rush and lacks logic!
If he was my employee its easy to fire him because the courts have the record of his lack of brains.
Let him retire just as he promised because even he said that if he is found to have made an unreasonable decision then he would resign!
Let us see if he actually has any morals and if we the tax payers can trust him a little bit
this is such a good analysis. thank you. I agree proportionality should be introduced… was the decision taken proportional to the offence committed? the supreme court must take this route indeed. it is less controversial than unreasonableness. but i hope if they do, we won’t turn around and start crying about ‘legislating from the bench.’
Thank you so much for the article! Judges in Zambia, except maybe judge W…….., will defend the constitution and Zambia.
Andeleki and Attorney General please know that Zambia is larger than PF. In less than 5 years the story of PF might be different but Zambia will be there. Do you want peace or anarchy?.Do you want development or retardation?
PF realllllly realllllllly comedy of errors…..
I bet Andeleki’s wife or girlfriend told him…’I’ve always told you’
Yabaaaah, i cant finish the article nafunti ntampe ukujobha??? no no no no!@ conclution, we dont need pipo lyk Andeleshi to run thez important offices PERIOD
I entirely agree with the analysis above and the most appropriate had our law allowed would be disproportionate and not unreasonable. If the decision is procedural & legal the only other way the decision could fail at law is by being disproportionate! Unreasonbleness carrys with it the conotation of not being of sound decison and a patently unreasonable decision may be one that does not accord at all with the facts or law before it, or one that completely misstates a fact. Andeleki, may use this argument before the supreme court and hence the author concludes that ‘disproportionate’ may get introduced in our laws.
“Proportionality” was not included as one of the grounds of appeal by MMD lawyers. The Judge would not therefore start “filling in the blanks”
Shikapwasha is being persued for costs borne by ZNBC due to his unreasonable actions.What about Mr No Brains Andeleki will us the taxpayers be the ones to bear costs arising from his foolish misadventure?
Great article fully explaining how unconscionable (unreasonably flawed) the decision to de-register the MMD was against public interest. Andeleke is not going to succeed at Supreme Court either like I said when this judgment was passed.
As for proportionality, the Supreme Court may not even entertain it at this stage unless of course, Andeleke includes it in his appeal which would lend more credence to Judge Kabuka’s notion of “you have no brains” to use Munshya’s vibe.
The second reason “proportionality” may not be introduced here is because, the initial judicial review from George Kunda (MHSRIP) and company did not make reference to it. Their included, legality, impropriety and unreasonableness (unconscionability). Otherwise, great exposé by Munshya, thanks.
In short, the judgement said he is an *****, what a ruling, we need judicial reforms, Sondashi should be a judge.
Great article fully explaining how unconscionable (unreasonably flawed) the decision to de-register the MMD was against public interest. Andeleke is not going to succeed at Supreme Court either like I said when this judgment was passed.
As for proportionality, the Supreme Court may not even entertain it at this stage unless of course, Andeleke includes it in his appeal which would lend more credence to Judge Kabuka’s notion of “sir, you have no brains” to use Munshya’s vibe.
The second reason “proportionality” may not be introduced here is because, the initial judicial review from George Kunda (MHSRIP) and company did not make reference to it. Theirs included, legality, impropriety and unreasonableness (unconscionability). Otherwise, great exposé by Munshya, thanks.
Even if he appeals he will lose! This is a great lesson to people in public institutions to understand that not only should their decisions be lawful, but they also must be rational and reasonable! No hot headed behaviour just because you have a bone to chew with a certain group of people. I like Munshyas discourse!
At least there are no insults on this one. Everyone seems to have appreciated the Judge’s reasons for the unreasonable PF cadre’s manouvers. No wonder they have rushed to appeal….
Great – thanks for the clear analysis!
Ba Mwanalume Phiri: You are right, intellectual discourse is better off without insults. The Physics of Zambian politics, causing reactions enforced by unconscionable actions led to Judge Kabuka’s brief.
Again, an appeal would be nothing but an academic exercise leading to wasting of taxpayers’ money. Public officers should think about decisions impartially and dispassionately and come to the right conclusions; this is what brings resounding victory for the rule of law in any country.
His time is be best utilized by focusing on what payment arrangements he comes up with the MMD, because collecting is actionable and/or enforceable while unconscionability is not nothing to do with legality and impropriety here.
Many objective people saw the “unreasonableness” of Andeleki’s action. MMD could have just been reprimanded and fined. He took that decision because it was part of a bigger picture of getting rid of opposition and paving the way to a one party state.
lawyers you have destroyed the country you enter in country issue lawyers are politicians, heading NGOs what we are getting from you cases and zambian what are not asking is who benefiting from this case the truth are buzy ripping and raping the country. every day the president or person heading an office movie make are buzy auguing
Andeleki’s face tell’s it all, he’s a functional *****
Ba Elias,
As always intellectually unparalleled pieced up straight talk. Excellent deep opinion! additional comments would be a deviation unless i consolidate it with my own article too.
More from you keep coming!
Google this,”Zambian President Sata under scrutiny” carried by Fox News with courtesy of AP.
Lets wait for the supreme court & then see who is unreasonable!!!
This is trash naiwe ka elias, where ve u seen legal observation thats one sided. Only fools like chinya citizen can eat such cowdung
Great job on the analysis Munshya wa Munshya. Please comment more on Lusaka Times. We need such talent.
Featuring on Zambezi FM’s Boiling Point radio programme yesterday, Mumba, the MMD’s president, said PF’s numbers in Parliament should be limited “so that they don’t wake up and fire judges”.
The country is holding parliamentary by-elections in Muchinga, Chama North and Livingstone constituencies on July 5, 2012.
He said Zambians will cry if the PF got absolute powers in parliament, further accusing the ruling party of being extreme.
excellent article
Dear Mr. Munshya wa Munshya, thank you very much this well analysed article-it me imagine the dram which was going on the court. Mr. Clement will lose even if he appeals because i see enough evidence that happening. Otherwise, i wish him all the best.
Mr.mushya wa munshya,Ok MMD has won the case,naw we are asking if they produce the payment receipt to show the nation that Mr.Clement was wrong.
Has it occurred to Comrade Munshya that if an appeal is going to be made the article he has written is ‘sub judice’ and would potentially render the said case and judgment invalid?
I would love to read your analysis of the judgments/verdicts made on the Chiluba cases in the Zambian Courts!
Munshya wa munshya, have you passed your ZIALE? May be you should do that then maybe we will take you as someone conversant with Zambian Law
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A Government Officer is employed to interpret and enforce the law, failure to implement what he is supposed to do is an offence. Therefore I think the learned Judge was wrong in her judgement against the Office of Registrar.
What the Hon. Justice Jane Kabuka is showing these fools how work is supposed to be done period Mister
Really appreciate you sharing this blog article.Thanks Again. Fantastic.
F U C K the la.
Has this brainless Andeleki even appealed, who is going to hear this stupid appeal. Problem with this PF government, they lack people with brains to school them, they will always find themselves in embarrassing situations.
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Simple but very accurate information… Appreciate your sharing this one.
A must read article!