By Evarist Baimu Nyaga Mawalla - Home

‘ These courts have the authority and I would add the duty, in a proper case,when called upon to enquire into the exercising of a discretionary power by aMinister or his department. If it is found that this power has been exercisedimproperly mistakenly so as to infringe unjustly on the legitimate rights andinterests of the subject, then these courts must so declare. They stand, as ever,between the executive and the subject, as Lord Atkin said in famous passage,alert to see that any exercise action is just fied in law. To which I would add: alertto see that a discretionary power is not exceede or misused’.So the learned State Attorney, is potently wrong to think that since thediscretionary powers of the President are subjectively worded, then the Presidentis beyond challenge. As amply demonstrated herein above, the president can bechallenged, so as to see that his power has been properly been exercised.We now go to the ouster clauses and which sometime they are referred to asprivative clauses, which attempt to oust the jurisdiction of the courts. As statedearlier, the ouster clause in here is contained in S. 23 (2) (a) of the Civil ServiceAct. No. 16/1989. At the outset I would like to put down plainly that outor clausesare paper tigers meant to scare the unway and the uninitiated in this realm of thelaw. They are simply put there as scarecrows. As Hon. Mr. Justice John Lawsstates in his article. ‘Is the High Court the Guardian of FundamentalConstitutional Rights? In the Public law, Journal of Spring 1993 at .78:‘Since the case of aninigninic Vrs. Foreign Compensation Commission: 1969 2L.C. 147.Clauses purporting to oast the jurisdiction of the courts have fallen into disuse.To oust the courts power of review is necessarily to put some party clove the lawor at loast to make it and not the court the judy of what the law is, which is thesame thin. The courts will pressure against the conformant of such a power’.The same view the expressed by Lord Diplock with characteristic in the case ofRe local Con.‘ It proceeds on the presumption that when parliament confers on anadministration traibunal or authority, as from a court of law, power to decide aparticular question defined by the Act, conferring the power, parliament intends toconfine that power to ansering the question as it has been so defined and if therehas been any doubt as to what that question is, this is a matter for courts of lawto resolve in fulfillment of their constitutional role as interpreters of the writer lawland exponders of the common law and rules of equity’.To be sure, ouster clauses are ineffective to exclude the power of the High Courtto exercise its role as conferred on it by Art. 108 (2) of our Constitution overinferior tribunals and public authorities. It is axiomatic that all statutory powerconferred on public officers including the president are subject to supervision bythe High Court exercing its classic and traditional function of judicial review not458