Statutory appeals as a limit to a litigant's eligibility to seek judicial review

Abstract

The quest to develop and meet the ever increasing needs of both the state and individuals has caused many governments world over to vest wide constitutional and statutory discretionary powers in public officers. The exercise of the power vested in public officers does not only relate to the political aspect of democratic governance but to the economic and social aspects as well. Despite the positive effect of vesting power in public officers, many problems have arisen as a result of maladministration. This problem has occurred mostly in parts of the world (especially developing countries) where democracy is still in its infancy level or is not solidly entrenched. Due to the need to curb maladministration, Judicial Review and Non Judicial mechanisms are employed. Judicial Review has proved to be effective in controlling administrations when compared to the Non Judicial mechanisms. Judicial Review is therefore one of the most notable remedies or tools used in fighting against the abuse of power or maladministration. Although Judicial Review is of utmost importance in controlling administrative actions in Zambia, the mode of commencement of an action under a statute such as an appeal has acted as a bar to a litigant's eligibility to seek Judicial Review. This has resulted in a situation where litigants can only move the court by way of an appeal and not Judicial Review. To curb this problem, the litigant must be either allowed to wait for the appeal procedure to elapse or when an application for Judicial Review is promptly made without resorting to the appeal avenue, the court must determine if the problem can be remedied can be appropriately through Judicial Review than through an appeal. If the determination is in the affirmative, a party must accordingly be allowed to proceed to the substantive hearing for Judicial Review.