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.”
© 2012. Munshya wa Munshya holds an LLB (Hons) from Northumbria, a B.A. (Theology) degree from Swaziland, an M.A. (Leadership) degree from Global University and a Master of Divinity degree from Ambrose University College. This article is not meant to give legal advice and Zambian readers are advised to consult members of the Zambian bar for specific legal advice.
