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"id": 539747,
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"speaker_name": "Hon. Kaluma",
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"legal_name": "George Peter Opondo Kaluma",
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"content": "review, which is essentially court intervention on administrative actions to ensure fairness, is inherent. It is natural to the High Court. It is not arising from the Constitution or the supervisory jurisdiction of the court, under Article 165(7). This was even a confusion under the previous Constitution, which made some people to think – because it also had supervisory jurisdiction – that Judiciary was arising from the then Section 65. This is not it. The power of the court to intervene on administrative action is inherent. I want to take a stride; that we have an opportunity, within the context of the Justice and Legal Affairs Committee, as individual Members of Parliament, to deal with this matter. The definition of grounds upon which you can seek a court intervention for judicial review, beginning at Clause 8(3) going down, is also a bit narrow. These grounds have grown, and they continue to grow. This is a court-grown area of legal discipline. We will be saying that those grounds which even our court has joined the other Commonwealth jurisdictions in developing, like the ones I was talking about; the doctrine of proportionality and legitimate expectations and others, will be in the final Bill that this Parliament will pass. When you look at Clause 9, there are good provisions in terms of extension of time. Of course, Clause 9 does not specifically prescribe for extension of time but if you go to Clause 9(2), there is latitude created to extend time where, for some reason, a person is not able to institute a judicial review action within six months. This is something already happening in England, following the development of their law in 1981, and in their procedural law in 1982. This is something we are lacking in Standing Order No. 53 and Sections 8 and 9 of the Law Reform Act, which is currently the parent law on administrative law. This is something to retain. However, there is a dangerous thing at Clause 9(3). It says that no court shall review an administrative action under this Act unless the internal mechanisms for appeal or review and all internal remedies available under any written law are first exhausted. I want to inform the House that this was actually a replication of the then Section 8(2) of the Law Reform Ordinance, which is currently the Law Reform Act. Way back in 1960, we removed these restrictions and left it open for any person who believed that there was need for court intervention to institute action, notwithstanding that you had remedies through review or appeal in court. So, really, this is taking us back the period before 1960, in terms of the history of this subject. Hon. Temporary Deputy Speaker, a bigger contradiction is to be found in Clause 10 as read together with Clause 12. In Clause 10, they are saying that the procedure specified in Section 8 is in addition to, and not in derogation from, the rules of procedure under Order 53, as a subsidiary legislation. We cannot enact a parent law and say that, in terms of its provisions, it cannot derogate from delegated legislation. It is putting the cart before the horse. That is not how it works. I can see that my time is running out. If you look at Clause 2, they are defining “administrative action” to be actions of public authorities and quasi-judicial tribunals. This is again taking us back. As it relates to fair administrative action, the availability of judicial review, which is the manner in which the high court intervenes in this area of law, today extend to anybody who decides or does anything affecting the rights of a person. It is no longer just quasi-judicial bodies or judicial bodies or public authorities. Everybody doing anything, even in a private enterprise; which affects the livelihood of a The electronic version of the Official Hansard Report is for information purposesonly. A certified version of this Report can be obtained from the Hansard Editor."
}