Judicial review: A mechanism for attaining Constitutionalism, with special reference to Zambia
Date
2015-09
Authors
Lamaswala, Mukelabai
Journal Title
Journal ISSN
Volume Title
Publisher
University of Zambia
Abstract
Like many other commonwealth countries, Zambia has a written Constitution to offer guidance on how the country should be governed. Despite the availability of the Constitution, government and public officers in Zambia do not act or make decisions in line with constitutional dictates. For instance, His Excellency Michael Chilufya Sata, the 5th President of the Republican Zambia, was challenged in court for not following the laid down procedure in suspending judges accused of professional misconduct. Hence, the concern of many Zambians has been to find a mechanism which can lead to a better practice of constitutionalism. In this regard, I am of the view that judicial review is such a mechanism.
The objective of the study is to find out whether there is a link between judicial review and constitutionalism; and if so, whether judicial review is a vehicle or mechanism through which constitutionalism can be attained. Particularly, this study focused on the employment of judicial review as a vehicle for attaining constitutionalism. This notion was necessitated by the fact that the two- constitutionalism and judicial review- have been studied in isolation, as if they do not have an influence on each other. Furthermore, the study provides empirical proof of the linkage and influence judicial review has in attaining constitutionalism.
The research employed the socio-legal method and relied on qualitative data. Both primary and secondary data were used. Desk-based research was the main method of data collection. Data was also collected through key informant interviews. The relevant legislation in Zambia and other jurisdictions were also reviewed.
Generally, the examination has five dimensions to it, before drawing conclusions and recommendations. They comprise: General introduction, the interplay between judicial review and constitutionalism, the number of people who resort to judicial review, judicial attitude towards judicial review, and lessons which Zambia can draw from other jurisdictions on how to utilise judicial review to attain constitutionalism.
The major findings of the research are as follows: firstly, judicial review is a mechanism through which constitutionalism can be attained because it ensures that actions or decisions undertaken by government conform to the Constitution, and other laws of the land. Secondly, the attitude the courts have towards judicial review affects the extent to which constitutionalism can be attained in Zambia. Thirdly, although the common law jurisprudence on locus standi has been modified and relaxed with respect to protection of fundamental human rights, it is a hindrance with respect to the utilisation of judicial review to attain constitutionalism. Also, the courts insist too much on the mode of commencement at the expense of the problem a litigant faces, thereby not being helpful to the attainment of constitutionalism through judicial review.
In view of the findings above, the major recommendations of the research are as follows: For the courts to be more responsive to the needs of Zambians, there is need to amend the High Court Act, Cap 27 of the Laws of Zambia, to provide for a “Zambian Order 53,” which will allow for “Public Interest Litigation.” The Public Interest Litigation will make it possible for any one to bring an action on behalf of those who are socially and or economically incapacitated to commence judicial review proceedings, even though they are legally aggrieved.
Description
Keywords
Judicial Review--Zambia