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Judicial Review of Political Questions in Nigeria and Malaysia: a Comparative Analysis

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Judicial Review of Political Questions in Nigeria and Malaysia: a Comparative Analysis JUDICIAL REVIEW OF POLITICAL QUESTIONS IN NIGERIA AND MALAYSIA: A COMPARATIVE ANALYSIS BY SAMBO OLADAPO ABDULFATAI A thesis submitted in fulfilment of the requirement for the degree of Doctor of Philosophy Ahmad Ibrahim Kulliyya of Laws International Islamic University Malaysia APRIL 2013 ABSTRACT This thesis aims at finding the Nigerian and Malaysian courts‘ approach or attitude in the exercise of judicial review power on political questions. Because of similar circumstances stated in the research, these two jurisdictions are chosen. The researcher develops the pragmatic theory in order to delimit the meaning and scope of political questions. This is borne out of the weaknesses in the classical and prudential theories on the doctrine of political questions to realistically delimit the meaning and scope of political questions. Based on this premise, the thesis analyses the two jurisdictions‘ approach or attitude in the exercise of judicial review power on political questions. To achieve the aims of this research, the thesis analyses the concept of judicial review and political questions as well as the legal frameworks for judicial review as affecting political questions. It uses many case laws to analyse the reactions of the courts to political questions flowing from legislative actions, executive actions and affairs of political parties over the years with July, 2012 being the cut-off date of the research. Interviews with many stakeholders formed the basis of the research findings. The thesis finds that political questions though appear political in nature have come with legal and constitutional stings which the courts need to interprete. However, the legal frameworks on the exercise of judicial review power on political questions are weak and inadequate mainly because of ouster of the courts‘ jurisdictions. It further finds that the courts in Nigeria have abandoned its initial application of political question doctrine. While it now largely reviews political questions, Malaysian courts refrain from this practice to a large extent. To this extent, the thesis finds that judicial review or judicialisation of political questions is the current doctrine in Nigeria. It therefore reveals the merits and the risks in this practice. It also finds the legal and political implications of the practice. The thesis also reveals major legal impediments and constitutional usefulness of judicial review of political questions. As a result of this finding, the thesis recommends constitutional and legislative amendments in order to allow the courts properly decide, on their merits, matters which appear political in nature but with legal and constitutional stings. It recommends far-reaching measures that, if adopted, will improve the quality of courts‘ decisions in areas of political questions, better the relationship between the judiciary and the political class and sustain peace, security and democratic institutions. ii iii APPROVAL PAGE The thesis of Sambo Oladapo Abdulfatai has been approved by the following: _________________________ Shamrahayu Binti Ab. Aziz Supervisor _________________________ Farid Sufian Shuaib Co-supervisor 1 _________________________ Mohd. Akram Shair Mohamed Co-supervisor 2 _________________________ Khairil Azmin Mokhtar Internal Examiner _________________________ Faridah Jalil External Examiner _________________________ Noor Mohammad Osmani Chairman iv DECLARATION I hereby declare that this thesis is the result of my own investigation, except where otherwise stated. I also declare that it has not been previously or concurrently submitted as a whole for any other degree at IIUM or other institutions. Sambo Oladapo Abdulfatai Signature……………………………. Date………………………….. v INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA DECLARATION OF COPYRIGHT AND AFFIRMATION OF FAIR USE OF UNPUBLISHED RESEARCH Copyright © 2013 by International Islamic University Malaysia. All rights reserved. JUDICIAL REVIEW OF POLITICAL QUESTIONS IN NIGERIA AND MALAYSIA: A COMPARATIVE ANALYSIS I hereby affirm the International Islamic University Malaysia (IIUM) holds all rights in the copyright of this work and henceforth any reproduction or use in any form or by means whatsoever is prohibited without the written consent of IIUM. No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without prior written permission of the copyright holder. Affirmed by Sambo Oladapo Abdulfatai ___________________ __________________ Signature Date vi This thesis is dedicated to my late parents, Mallam Abdul Rahaman J. Sambo and Hajia Ajarat Arinola Sambo for instilling in me the virtue of hard-work, commitment, love and fear of God. Even though they did not live long to enjoy the fruits of their labour, I pray Allah (s.w.t.) to reward them with Al-janatul fridous. vii ACKNOWLEDGEMENTS All praises and adorations are due to Almighty Allah, the uncreated creator and incomparable majesty for seeing me through this programme. Even though the programme is tasking, He bestowed His mercies, protection and guidance on me throughout the programme. My profound gratitude goes to my supervisor, Assoc. Prof. Dr. Shamrahayu A. Aziz, for a display of versatility and erudition which she used in guiding me through. Her persevering character, thoroughness, meticulousness and compassion facilitated the successful completion of this work. I put on record that I am forever indebted to her. She brilliantly grasped the aim of this research and gave me very useful and insightful comments, queries and suggestions. She took time, despite her busy schedule, to attend and listen to me whenever I so requested. ‗Thank you‘ is all I have. It is only Allah (s.w.t.) that can reward you. May He reward you abundantly. I also appreciate my co-supervisor, Assoc. Prof. Dr Farid Sufian Shuaib who painstakingly scrutinised the research and encouraged me. This assisted me a lot in building the final drafting of this work. I am also grateful to my second co-supervisor Prof. Dr. Mohd Akram Shair Mohamed for his professional advice which assists me in this research. My heartfelt appreciation also goes to the entire management and staff of AIKOLS, starting with the Dean, Prof. Dr. Hunud Abia Kadouf. I thank the Deputy Dean (Post graduate), Prof. Dr. Abdul Ghafur Hamid. I also thank the former Dean, Prof. Dr. Mohd Akram Shair Mohamed. Also, I am grateful to the former Deputy Dean (post graduate), Assoc. Prof. Dr. Khairil Azmin Mohktar who advised me and chaired my proposal defence. I thank all the staff of Post graduate unit for their useful information when requested and their cooperation. I am also grateful to the following academic staff of the AIKOLS whom I so much used and benefitted from their wealth of knowledge. They include but not limited to: Prof. Dr. Abdul Aziz Bari, whose comparative constitutional law class assisted me in this research and broadened my knowledge of constitutional law; Prof. Dr. Abdul Haseeb Ansari, Prof. Dr. Syed Khalid Rashid, Assoc. Prof. Dr. Mohsin Hingun. My profound thanks go to my uncle, Senator M.S. Ajadi for supporting me financially and morally. I also thank my uncles, Akanni A. Saliman, Abdulrahaman Akanni, Solihu Akanni, Yunus Akanni, Ayuba Salahudeen and Dauda Mohammed for their moral support and prayers. Barr. Abubakar Abdulkadir (Bro. Taiye) deserves my special appreciation for his moral and financial supports. My brothers, Sambo Bolaji Yakub and Sambo Olaitan Muritala, deserve my deep appreciation. Apart from their moral supports given to me, their youngest brother in the family, they were in active charge of almost all my domestic affairs while away. To them I say thank you so much. I am also grateful to my amiable wife, Aminat Abiola Sambo. She is indeed an embodiment of good character which she used in supporting me morally for this programme. I appreciate the management of the Supreme Court of Nigeria, Court of Appeal of Ilorin and Abuja divisions, and Kwara State High Court. I particularly appreciate the contributions of Hon. Justice Mohammad Tanko, and Hon. Justice, Rodhe Vivour, (Justices of the Supreme Court of Nigeria), Justice, Hon. Justice C. C. viii Nweze PhD and Hon. Justice (Prof.) A. O. Owoade, (Justices of the Court of Appeal of Nigeria). They gave me adequate time to interview them which led to useful and insightful comments for the betterment of this research. I also appreciate the contribution of Prof. Dr. M.A.O. Alabi, H.O.D., Department of Political Science. I thank my principal, Demola Bakre Esq for his moral and financial support. I also appreciate Ibrahim Idrees Esq. I would like to appreciate the management of university of Ilorin. In particular, I thank Prof. Dr. Olanrewaju Oleyede (the Vice Chancellor). I must specially thank my head of department, Dr. Yusuf Ibrahim Arowosaiye and Dr. M.M. Akanbi ( H.O.D business law department) for giving me full moral support to do my programme at IIUM. I also thank Dr. Wahab Egbewole (former Dean of Law). I thank my brothers and colleagues in the department: Ibrahim Imam, and Adebimpe Justice Razak. I thank Dr. A.T. Shehu. I appreciate the staff and management of Faculty of Law, University of Ilorin, Nigeria. My friend, and colleague, Abdulkadir B. Abdulkadir deserves special appreciation. He is a friend indeed. I specially appreciate Dr. Kayode Adam, Dr. A.A. Oba for their useful advice. Dr R.K. Salman also deserves my special gratitude. I thank Bro. Maruf Abdul Azeez for his assistance in Arabic translation. To my cordial family, I appreciate you so much. I particularly thank my sisters: Mrs Funmilayo Abdulrazak, Mrs Afusat Nike Musa, Fatimoh Sambo and Biliqees Sambo. I am grateful to Hajia Halimah ( Iya Ruki), Hajia Zainab Sambo, Mrs Afusat Akanni (Iya Remi), Iya Mariam, and Mrs Aminat Salahudeen (Mama Abuja). To my in laws, I specially thank Dr. Yusuf Lanre Badmas, Hajia SifauYusuf, Hajia Adama Yusuf, Hajia Wasilat Yusuf, Abdul Hameed Badmas Yusuf and other family members. I so much appreciate their supports, encouragement and prayers. Lastly, I appreciate my beloved children, Ajarat Arinola Sambo for her prayers and endurance, while busy with research and Muhammad-Sambo O.
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