Main Principles in Holding: Ouster Clauses, Justiciability of Matters and the Jurisdiction of the Courts
“Secondly, as pointed out by the learned trial Judge, it is a requirement in judicial review that all available remedies must be exhausted before applying for prerogative writs…We, as a court, accept that where the legislature has decided that certain matters should be solely placed in the jurisdiction of the executive, the court has no role to play as such issues contain no legal issues to be resolved. Further, the question of security is entirely for the executive to decide upon. Courts are not in a position to know and adjudicate on such issues.”– Chibesakunda J.S. in delivering judgment
In this case, the Supreme Court (SC) averred that if the Legislature decides that certain issues should solely be for the executive, the Court has no role to play in resolving the matter as they are no legal issues to be resolved.
This concept or statement resonates well with the aspect of ouster clauses and justiciability of a matter. Ouster clauses are clauses that seek to exclude the Court’s power to hear a matter to deal with the Executive. These clauses effectively exclude the Court’s powers. They are often found in Legislation stopping a Court from hearing a matter, however, they have to be drafted in sufficiently clear wording to prevent ambiguity. For instance, in Anisminic v Foreign Compensation Commission  2 AC 147, the defendants had refused to grant compensation to successors of the appellant’s company as they were not of British origin. A Statutory Instrument provided that the decisions of the Commission were not appealable or could not be questioned in a Court of Law. The Court however, found that the wording of the Delegated Legislation was too ambiguous to effectively oust the jurisdiction of the Court. Another case in which this principle was discussed was R v Medical Appeal Board Ex Parte Gilmore  1 QB 574, where the board had decided that a worker who had been blinded in both eyes only suffered 20 per cent disability thus enabling him to a limited amount of compensation. The Board’s decision, according to the Legislation that created it, was final and incapable of being resolved or challenged in a Court of Law. It was held that to effectively oust the Court’s jurisdiction, it had to be sufficiently clear that this was the intent of the Legislature.
Another concept that supports the holding of this case, is that of Justiciability. Though not expressly stated or decided by the Legislature, certain decisions that are made by the Executive are not justiciable thus cutting out the court’s jurisdiction. In George Peter Mwanza and Another v The Attorney General (Selected Judgment No. 33 of 2019) , it was stated that justiciability is the ability to have a matter heard where there has been a breach of rights. Thus, where a matter has been impliedly stated or expressly stated to not be justiciable, then there is nothing for the Court to resolve. Examples of non-justiciable matters include, but are not limited to, issues involving:
- National Security and;
- Prerogative of the President
Furthermore, you can also relate the concept of jurisdiction to this statement (quoted above). In Zambia Revenue Authority v Professional Insurance Corporation Zambia (Appeal No. 34 of 2017), it was stated that jurisdiction is the gateway to a remedy and lack of it entails that a matter cannot be tried. Thus, where a decision of the Executive is not subject to the jurisdiction of the Courts, there is no issue for them to resolve.
This concept of the Legislature exempting the Executive from the Court’s Authority is a dangerous one as many bad decisions can go unchecked. The Judgment states that it is a requirement for Judicial Review that ‘all available remedies are exhausted’. This falls in line with the principle that Judicial Review must be a remedy of last resort. To be granted leave for Judicial Review, it must shown that the party in question exhausted all other alternatives of seeking redress for the matter. Most of the time, a statute may give a comprehensive process of appealing a decision and it is not until this is done can a decision be amenable to Judicial Review. In New Plast Industries v Commissioner of Lands and Another (S.C.Z Judgment No. 8 of 2001), it was stated that where an act gives a procedure to be followed before Judicial Review can be sought, that procedure should be complied with.
Some Acts may provide that a matter should be heard by a Tribunal before it can be challenged in a Court of Law. Failure to follow this means that leave cannot be granted. Thus, it can concluded that the implication of the holding in the case of Dr Ludwig Sondashi v The Attorney General is that when drafted accordingly, ouster clauses may oust the jurisdiction of the court from hearing or trying decisions of the Executive and that for one to effectively apply for Judicial Review, they must show that they took all alternative steps of dealing with the matter, such as appeals or going before a Tribunal, before they could bring a challenge of Judicial Review against the body in question.
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