Judicial Independence in Nigeria: Between Global Trends, Domestic Realities and Islamic Law

  • Ibrahim Sule Department of Civil Litigation, Nigerian Law School, Kano Campus
Keywords: judiciary, independence, rule of law, judicial independence

Abstract

Judicial independence or independence of the judiciary has its origin in the theory of separation of powers. By this theory the Executive, the Legislature, and the Judiciary are three separate, distinct and independent branches of government; each arm is independent of the other arm in all it gets and does. As for the judiciary, the theory means both the judiciary as an institution and all individual judges presiding over cases and other personnel must be able to carry out their professional responsibilities free from any influence or interference by the Executive or Legislature or any other person or institution outside or within the judiciary. Undoubtedly, it is only an independent judiciary that can competently provide the necessary checks on the excesses of other arms of government particularly on breaches of rights and freedoms of the citizenry. This article establishes that the independence of the judiciary is an indispensable ingredient of good governance. All the international human rights conventions, the Universal Declaration on Human Rights, and other regional human rights instruments recognize the notion of independence of the judiciary in their provisions by guaranteeing the right to a fair hearing in civil and criminal proceedings before an independent and impartial court or tribunal. It also analyses judicial independence in Nigeria in line with some global trends and discovered ironically that even though the Nigerian Constitution guarantees one’s rights to have one’s cause heard by an independent and impartial judge, it does not guarantee institutional independence of the Nigerian judiciary at all. And this could have been the reason why the fortunes of the Nigerian judiciary are day by day dwindling as it is compelled by a lack of constitutional guarantees to always beg either the executive or the legislature for one financial favor or another. The article also analyses some of the causes of the persistent crisis in the Nigerian judiciary and also highlighted some lessons to be learnt from judicial independence under Islamic law

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Author Biography

Ibrahim Sule, Department of Civil Litigation, Nigerian Law School, Kano Campus

A Lecturer at Nigerian Law School, Kano Campus, Fellow of International Bar Association and holds LL.M (University of Birmingham): Five International Practice Diplomas from The University of Law, London, UK.

References

Montesquieu, The Spirit of the Laws, Book XI, available at http://www.constitution.org/cm/sol.txtaccessed on 16th February, 2013
Judicial Independence in Singapore, available at http://en.wikipedia.org/wiki/Judicial_independence_in_Singaporeaccessed on 21th January, 2014
See (1985) 2.S.C.R Valiente v. The Queen 673, available at http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/108/index.do accessed on 23rd Dcember, 2013
Pilar Domingo, Judicial Independence: the Politics of the Supreme Court in Mexico, 32 J. LATIN AMERICAN STUDIES 705 (2000)
McNollgast , Conditions for Judicial Independence Legal Research Paper Series, Research Paper No. 07-43, April 2006, University of San Diego School of Law) available at http://ssrn.com/abstract=895723 accessed on 27th October, 2008

Linda Camp Keith, Judicial Independence and Human Rights Protection Aroundthe World available on https://www.utd.edu/~lck016000/JudicatureJudicialIndependence.pdf, accessed on 20th January, 2014
See Resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985
Albert P. Blaustein‬, Gisbert H. Flanz‬ Constituions of the Countries of the World‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬‬
(Oceana Publications‬, 2002) Vol. 52‬‬‬‬‬‬‬‬‬‬
Linda Camp Keith, supra
Available on http://www.ibanet.org/Document/Default.aspx?DocumentUid=10917543-8f09-4a68-8324-9228bb6237a1. Accessed on 26th January, 2014
International Association of Judicial Independence and World Peace, available at http://en.wikipedia.org/wiki/International_Association_of_Judicial_Independence_and_World_Peace accessed on 24th January, 2014
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyer available at http://www.ohchr.org/Documents/Publications/training9chapter4en.pdf. Accessed on 5th February, 2007
In Judicial Activism: Current Legal problems (1975), culled from Aluko A. O. “The Doctrine of Stare Descisis and the Nigerian Legal System: A Theoretical Perspective,” LASU Journal Vol iii (1998) page 23
Section 1, Part 1 of the Third Schedule to the 1999 Constitution
Sections 231(1);(2); 238(1); 250(1); 261(1) and 266(1) all of the 1999 Constitution of the Federal Republic of Nigeria
Sections 238(2); 250(2); 256(2); 261(2) and 266(2) all of the 1999 Constitution of Federal Republic of Nigeria
See New Zealand Judicial Appointment Protocol 2013 available at http://www.crownlaw.govt.nz/artman/docs/cat_index_6.asp accessed on 23rd January, 2014
See How the Federal Courts are Organised: Federal Judges and How they Get Appointed, available at http://www.fjc.gov/federal/courts.nsf/autoframe?OpenForm&nav=menu3c&page=/federal/courts.nsf/page/A783011AF949B6BF85256B35004AD214?opendocument accessed on 13th September, 2013
See Judges Act R.S.C., 1985, c. J-1; last
Article 122B (1) of the Federal Constitution
Judicial Appointments and Judicial Independence (a United States Institute of Peace document) available on www.usip.org accessed on 14th January, 2014
See ABA Fact Sheet on Judical Selection Methods in The States, available at http://www.americanbar.org/content/dam/aba/migrated/leadership/fact_sheet.authcheckdam.pdf, accessed on 12th January, 2013
See Article 79 of the Constitution of Japan
Facts and Stats, available on http://www.justiceatstake.org/resources/facts_stats_and_quotes/facts__stats.cfm accessed on 11th January, 2014
ibid;
J. O. Akande, Introduction to The 1999 Nigerian Constitution (Lagos: NIJ Professional Publishers, 2001) at 496 – 49
D. A. Ijalaye, The Imperatives of Federal/ State Relations in a Fledging Democracy/Implications for Nigeria (Lagos: NIALS, 2001) 9
See Guidance for Promoting Judicial Independence and Impartiality (Office of Democracy and Governance, USAID, 2002) pp. 16 - 18 available on http://www.usaid.gov/democracy/ accessed on 14th December, 2006
ibid, pg. 19
See Principle 10 of the Basic Principles
Section 276(2) of 1989 Constitution
Section 276 (3) of 1989 Constitution
Section 276 (4) of the 1989 Constitution
Section 276 (5) 1989 Constitution
Section 276 (6) 1989 Constitution
Section 276 (7)(8) and (9) 1989 Constitution
Section 277 (1) 1989 Constitution
See section 277 91) – (7) of the 1989 Constitution
Judgepedia at http://judgepedia.org/Impeachment_of_federal_judges accessed on 29th January, 2014
A case for Elongation f Tenure of Nigerian Judges, available on http://www.channelkoos.com/index.php/features/301-a-case-for-elongation-of-tenure-of-nigerian-judges, accessed on 19th January, 2014
Daily Times Nigeria, of 18th fenruary,2012http://www.dailytimes.com.ng/article/supreme-court-reinstates-elelu-habeeb-kwaras-chief-judge
Premium Times of 18th July, 2013, available on http://premiumtimesng.com/metro/141267-njc-indicts-ex-abuja-chief-judge-gummi-for-undue-judicial-interference.html accessed on 12th January, 2014
(2002) 6 NWLR (Prt 764) 542 at 688
ibid; Sourced from Prof. Azinge’s paper. Generally analyse the Appropriation Acts from 2004-2013; see Prof. E Azinge SAN, Courts Budget: Implications for Access to Justice a paper delivered 17th April, 2013 at Commonwealth Law Conference, Cape Town, South Africa available on http://www.nials-nigeria.org/Editedbookcovers/COURTS%20AND%20BUDGET%20BY%20PROF%20AZINGE%20SAN%20(1).pdf accessed on 12th May, 2013
Andres Jackson, Brainy Quotes, available at http://www.brainyquote.com/quotes/quotes/a/andrewjack401401.html accessed on 23rd January, 2014
Charles Evans Hughes, quoted in Itse Sagay: Recent Trends in the Status and Practice of the Rule of Law (Ibadan: ASUU Press, 1988), pg. 36
Oscar Wilde(1854-1900) Irish poet and dramatist; in “The Soul of Man”
http://en.proverbia.net/citastema.asp?tematica=925&page=6

Hon. Justice Dahiru Musdapher, The Nigerian Judiciary: Towards reform of the Bastion of Constitutional Democracy (Institute of Advanced Legal Studies, 2011) available at http://nials-nigeria.org/pub/THE%20NIGERIANConstitutional%20Democracy.pdf accessed on 11th January, 2014
John O. Haley
, The Japanese Judiciary:
Maintaining Integrity, Autonomy and the Public Trust Wiley B. Rutledge Professor of Law Washington University in St. Louis, available at http://law.wustl.edu/harris/documents/2003-3HaleyJapaneseJudiciary.pdf, accessed on 24th January 2014
Takayuki Li, Japanese Way of Judicial Appointment and Its Impact on Judicial Review available on http://www.law.ntu.edu.tw/ntulawreview/articles/5-2/03-Article-Takayuki%20Ii.pdf accessed on 12th February, 2013
ibid; John O. Haley
See Article 41 of the Court Organization Law 1947
Yuichiro Tsuji, Independence of the Judiary and Judges in Japan, vailable at http://www.surugadai.ac.jp/sogo/media/bulletin/Hougaku24-03/Hougaku.24-3.(63).pdf accessed on 23rd December, 2013
See Article 79 of the Japanese Constitution
http://web-japan.org/links/government/diet/diet.html
Al-Kindi: Al-Wulah wa Al-Qudah, p 433
(Sahih Muslim, hadith book)
Narrated by Al-Tirmizi, book "judgments" p.1322, Abu Dawud (3573), and Ibn Majah (2315). Al-Albani said the hadith is correct; review: Sahih Al-Jami (4447
Narrated by Al-Bukhari : Book of judgments (6919), and Muslim: Book of judicial decisions (15)
Narrated by Abu Dawud on the authority of Buraydah ibn Al-Hasib: Book "Tribute", Spoils, and Leadership (2943)
Ibn Kathir: Al-Bidayah wa Al-Nihayah 13/380
Shams-al-Din ibn Tulun: Qudat Dimashq (the judges of Damascus), p104.
Alsuyuti, ibid, 229
Rivers State, Television Channel 22, available on http://www.rstv22.tv/component/content/article/1-latest-news/278-fg-uncovers-corruption-in-judiciary.html culled from Nigerian Tribune Newspaper pf 26th November, 2011 accessed on 21 May, 2012
ibid;
The Nigerian Voice, of 15th May, 2013, available at http://www.thenigerianvoice.com/nvnews/113670/1/njc-probing-21-judges-for-corruption-cjn.html accessed on 17th June, 2013
available on http://www.vanguardngr.com/2014/01/efcc-moves-prosecute-seven-corrupt-judges/ accessed on 10th January, 2014
ibid;
P. Nnaemeka-Agu, “Enhancing the Efficacy and Independence of the Judiciary in the Third Republic” (1993) 
4(3) JUS 9 at 16.
See section 6 of the 1999 Constitution
Published
2022-05-30
How to Cite
Sule, I. (2022). Judicial Independence in Nigeria: Between Global Trends, Domestic Realities and Islamic Law. GPH-International Journal of Social Science and Humanities Research, 5(05), 18-33. https://doi.org/10.5281/zenodo.6777825