Judicial review reaches the exercise of public power. Identifying whether a decision is of that character is the first question in any review.
Order 16 Rule 1(2)
An application for a declaration or an injunction may be made by way of judicial review, and the Court may grant it if it considers that, having regard to —
(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition or certiorari;
(b) the nature of the persons and bodies against whom relief may be granted by way of such an order; and
(c) all the circumstances of the case,
it would be just and convenient for the declaration or injunction to be granted on an application for judicial review.
Rule 1(2) of the National Court Rules 1983 identifies the two axes: the nature of the matter and the nature of the body. Both point to the public character of the power.
Note the direction of the rule: it governs when a declaration or injunction may be sought by way of judicial review. Where the relief sought is one of the four prerogative orders, Rule 1(1) makes judicial review compulsory.
Who may be reviewed
| Body | Source of power |
|---|---|
| Ministers and departments | Statute; the Constitution |
| Statutory authorities, boards and commissions | Their constituting Acts |
| Leadership Tribunals | Organic Law on the Duties and Responsibilities of Leadership |
| The Ombudsman Commission | Organic Law on the Ombudsman Commission |
| Commissions of Inquiry | Commissions of Inquiry Act (Chapter 31) |
| Lower courts — and see the special service rule | Their constituting Acts; Constitution s 155(3)(a) |
| Public service and disciplinary bodies | Statute |
| Licensing and approval authorities | Statute |
| The Electoral Commission — but note election petitions have their own regime | Organic Law on National and Local-level Government Elections |
The National Court has an inherent power to review any exercise of judicial authority.
That is the constitutional footing for reviewing decisions of lower courts and of bodies exercising judicial or quasi-judicial functions. Section 155(4) supplies the power to make orders in the nature of prerogative writs.
Under Order 16 Rule 5(2), where the application relates to proceedings in or before a court and the object is to compel the court or an officer to do any act, or to quash the proceedings or any order made in them, the Notice of Motion must also be served on the clerk or Registrar of that court and, where any objection to the conduct of the Judge is to be made, on the Judge.
And Rule 9(2) requires, where certiorari is sought to quash proceedings, that a copy of the order, warrant, commitment, conviction, inquisition or record be lodged with the Secretary for Justice, verified by affidavit, before the hearing — or that the failure be accounted for to the Court’s satisfaction.
What is not reviewable
Purely private decisions. A contractual decision by a private company is not an exercise of public power, whatever its consequences.
Constitutional interpretation. Under Constitution section 18(1), the Supreme Court has original jurisdiction to the exclusion of other courts on any question of the interpretation or application of a Constitutional Law, and under section 18(2) other courts shall refer such a question unless it is trivial, vexatious or irrelevant.
Election disputes. These proceed by petition under the Organic Law and the Election Petition Rules 2017, with a strict 40-day period. See election petitions.
Customary land disputes. Interests in customary land go to mediation and the Local Land Court under the Land Disputes Settlement Act (Chapter 45).
A dismissal by a public body may be an exercise of statutory power — reviewable — or the exercise of a contractual right — not reviewable, but actionable as breach of contract.
The answer usually turns on whether the power to dismiss came from statute or from the contract. Where the position is genuinely doubtful, note the safety net in Rule 9(5): where the relief sought is a declaration, an injunction or damages and it should not be granted on review but might have been granted in an action begun by writ, the Court may order the proceedings to continue as if begun by writ rather than refuse the application.
Decision, or failure to decide
A decision made — challenged by certiorari to quash it, with remitter under Rule 9(4) directing reconsideration in accordance with the findings of the Court.
A decision about to be made without power — challenged by prohibition.
A failure to perform a public duty — challenged by mandamus, which compels performance.
The holding of an office — challenged by quo warranto, which asks by what authority it is held.
Under Rule 2, any of these may be claimed as an alternative or in addition to any other where the relief arises out of or relates to or is connected with the same matter.
Every judicial review begins with a decision or failure identified by who made it, under what power, and when. That identification does three jobs at once:
- It establishes that the power is public, so Order 16 applies.
- It fixes the date from which the four months for certiorari runs.
- It frames the grounds, since every ground is measured against the empowering provision.
All of it goes in the statement required by Rule 3(2)(a), which fixes the case that may be run at the hearing.
Sources
- National Court Rules 1983 — O 16 rr 1–5, 9
- Constitution — ss 18, 155(3), 155(4)
- Organic Law on the Duties and Responsibilities of Leadership; Organic Law on the Ombudsman Commission; Commissions of Inquiry Act (Chapter 31)
- Organic Law on National and Local-level Government Elections; Land Disputes Settlement Act (Chapter 45)
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.