In Ghana’s democratic society governed by the rule of law, public authorities are required to exercise their powers within the limits imposed by the Constitution and other laws. When courts, adjudicating authorities, or administrative bodies or officials act outside those limits, the law provides the mechanism of Judicial Review to correct such actions.
Judicial Review plays a critical role in ensuring accountability, fairness and legality in the exercise of public power. This article therefore seeks to explain what judicial review is, the legal provisions that regulate it in Ghana, the grounds upon which it may be invoked and the remedies available to persons or entities who are affected by the unlawful decisions of these public authorities.
What Is Judicial Review?
Judicial review refers to the exercise of the supervisory jurisdiction of the courts to regulate and control the conduct and decisions of courts, adjudicating authorities, and administrative bodies or officials. In practical terms, it is the power of the courts to examine the actions and decisions of the court, adjudicating authorities, and administrative bodies or officials and determine whether those actions comply with the Constitution and the laws of Ghana.
Judicial review focuses on whether a decision-maker acted lawfully and reasonably and in accordance with due process as well as empowers an aggrieved person to apply to challenge such decisions where it is alleged to be unlawful.
Legal Provisions Regulating Judicial Review in Ghana
Judicial Review in Ghana is grounded in both the 1992 Constitution of the Republic of Ghana and the High Court (Civil Procedure) Rules 2004, (CI. 47).
Article 132 of the 1992 constitution grants the Supreme Court supervisory jurisdiction over all courts and adjudicating authorities. In exercising this jurisdiction, the Court may issue orders and directions to ensure that its supervisory authority is properly enforced.
Article 141 of the 1992 Constitution also provides that the High Court has supervisory jurisdiction over all lower courts and adjudicating authorities and may issue orders and directions necessary to enforce its supervisory powers.
Article 23 of the 1992 Constitution imposes an obligation on adjudicating authorities and officials to act fairly, reasonably and in accordance with the laws of Ghana. It also grants persons who are aggrieved by the actions or decisions of such bodies the right to seek redress before a court or tribunal.
Grounds for Judicial Review
Under the laws of Ghana, an application for judicial review may be brought where a decision-maker such as a court, adjudicating authority or administrative body or official has acted against the law. Judicial review is founded on three principal grounds. These grounds are:
- Illegality
Illegality arises where a decision-maker does not have the legal authority to make the decision that was made. This usually occurs when the decision maker acts ultra vires, meaning beyond the powers granted to it by law. For example, where a statutory body exercises powers that the law has not granted to it, or uses its powers for a purpose not authorized by the law, any decision resulting from such an act may be challenged on the ground of illegality.
2. Irrationality or Unreasonableness
A decision may also be challenged where it is so unreasonable that no reasonable authority acting properly could have made it.
This principle originates from the famous case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation, which established what is commonly known as the Wednesbury principle of unreasonableness. In that case, a cinema operator was granted a licence subject to the condition that children under fifteen years of age could not be admitted to the cinema on Sundays. The operator challenged the condition as unreasonable. The Court stated that a decision may be considered unreasonable where it meets these three tests. That;
- The decision-maker considered factors that ought not to have been considered or
- The decision-maker failed to consider relevant factors that ought to have been considered; or
- The decision is so unreasonable that no reasonable authority would have made it.
3. Procedural Impropriety
Procedural impropriety occurs where a decision-maker fails to follow the procedures required by law in arriving at a decision. Where a statute prescribes a specific procedure for performing a function or making a decision, that procedure must be strictly followed. Failure to do so gives the aggrieved party the right to apply for judicial review to seek redress.
Remedies Available Under Judicial Review
When it is determined that the decision of a court, adjudicating authority, administrative body or official is unlawful, the court may grant one or more of these remedies:
1. Certiorari
Certiorari is an order issued by the court to quash or set aside a decision made by a court, adjudicating authority, or administrative body or official. This remedy effectively nullifies the unlawful decision.
2. Prohibition
Prohibition is a remedy used to restrain or prevent a body from performing an unlawful act. It is typically used where a body is about to act outside its jurisdiction.
3. Mandamus
Mandamus is an order compelling a public authority to perform a duty that the law requires it to perform. For a court to grant mandamus, it must generally be shown that the applicant made a prior demand for the duty to be performed and the body refused or failed to perform that duty.
4. Quo Warranto
Quo warranto is an order used to challenge the authority under which a person occupies a public office. It is often used where a person is alleged to be unlawfully occupying a public position.
5. Habeas Corpus
Habeas corpus is a remedy used to challenge unlawful detention. It compels the authority detaining a person such as the police, prison authorities, or military, to produce a detained individual before the court and justify the detention. If the detention cannot be legally justified, the court may order the person’s immediate release.
6. Declaration
A declaration is a formal statement by the court defining the legal rights or obligations of parties or clarifying the legal position of a matter.
Conclusion
In conclusion, judicial review is a fundamental mechanism that upholds the rule of law in Ghana by ensuring that courts, adjudicating authorities, and administrative bodies or officials act within the limits of their legal powers. It safeguards fairness, legality, and proper procedure, allowing aggrieved persons or entities to challenge decisions that are unlawful, unreasonable, or procedurally flawed.
With remedies such as certiorari, mandamus, prohibition, quo warranto, habeas corpus, and declarations, judicial review provides an effective means of protecting rights and promoting accountability in the exercise of public power.
By: Rachel Banitsi
