Report of the Panel of Jurists Appointed by the Northern Region Government to Examine the Legal and Judicial Systems of the Region (the Report) lays out a series of recommendations by Muslim jurists to the Governor of the Northern Region of Nigeria for reforms to Northern Nigerian courts in anticipation of Nigerian independence. Written in 1958, the Report focuses on application of criminal law and expresses concern that criminal law must be applied in a uniform and accessible manner in order to effect justice that the Northern Nigerian people will see as legitimate. This post examines how concerns about popular and political legitimacy inform the jurists’ recommendations for both the substance and procedure of the new courts.
Justice Sayed Muhammed Abu Rannat et al., Report of the Panel of Jurists Appointed by the Northern Region Government to Examine the Legal and Judicial Systems of the Region, in Sharia Implementation in Northern Nigeria 1999-2006: A Sourcebook: Vol. I 27-48 (Philip Ostien ed., 1958).
One of the practical, rather than moral, policy justifications for judicial procedures protecting defendants against any form of doubt—such as, in the United States, the rule of lenity and “beyond a reasonable doubt” jury instructions—boils down to concern that justice meted out by the state will lose its legitimacy if the populace perceives that justice as capricious. These concerns are exacerbated in cases of judicial discretion, which, while often necessary for fact-specific and non-rigid justice, can create a perception that sentencing is arbitrary and uneven. A justice system that allows for excess of judicial discretion therefore risks losing its popular legitimacy as an impartial adjudicator. This post examines how jurists charged with shaping Islamic justice systems have addressed the changing role of judicial discretion as a booster or detractor of legitimacy, comparing newly independent Northern Nigeria with classical medieval governance.
The jurists writing the 1958 Report have legitimacy at top of mind as they design recommendations for a new Northern Nigerian justice system that can still be compliant with Islamic law. The Report’s historical placement at the cusp of Nigerian independence contextualizes the jurists’ concern with legitimacy. At the time, Northern Nigerian justice consisted of “an elaborate system of Native Courts” and “‘Mixed’ courts to meet the needs of the exceedingly cosmopolitan population of some of the major towns,” applying patchwork Islamic or secular law depending on individual judges’ determinations of jurisdiction. Adding to the mélange, certain courts applied the Nigerian Criminal Code, which was based off of English law, or native customary law, which hewed closely but not exactly to the Mālikī madhhab (school) of classical Islamic law.
This “conflict and confusion” in applied law distresses the Report’s jurists, especially in the area of criminal law, where the potential punishments are severe. Even capital punishment was unevenly applied, with, for example, Mālikī law and the Criminal Code differing on when it is appropriate. “Independence brings new responsibilities, additional contacts with the outside world, and an increasing need to attract foreign capital,” but these benefits only come when the newly formed justice system is perceived as effective and consistent. In this light, Nigeria’s status quo of legal heterogeneity sets it apart in an undesirable way. “In no other country can two contradictory systems of criminal law . . .be found side by side.” The new nation is seeking “to be taken seriously,” i.e., legitimacy.
Legitimacy as a political concept only exists because the state, as a legal fiction, needs strong and broadly appealing justification for acceptance. This high bar is in contrast to “[t]he sanctioning and controlling power of a . . . mighty divine omnipresence,” which necessarily “require[s] less coercion” than a mere human or group of humans insisting that they have the right to govern their fellow man. For states that at least in part rest their authority on religion, political legitimacy is not separate from divine legitimacy. How a state and its courts interpret divine imperatives must change with popular mores if legitimacy is to be retained. For example, medieval Muslim jurists fought to maintain the integrity of the sharī‘a courts in an “attempt to lessen . . . dubious caliph-ordered executions” that ran the risk of souring the populace’s perceptions of an Islamic state and the justice it performed. One of the tools these jurists used to wrest control from the executive was judicial discretion, where, if the facts or law of a case were at all in dispute, a judge could issue a lighter sentence than the executive might prefer.
In 1958, however, the Report’s jurists view judicial discretion as itself a threat to the courts’ legitimacy. To address this threat, they take inspiration from the justice systems of Sudan and Pakistan, two other religiously heterogeneous Muslim-majority nations. Specifically, the Sudanese and Pakistani justice systems allow for discretion between Islamic and secular law for civil matters, while “all that concerns criminal law is governed by a Penal Code which ensures certainty and uniformity.” The jurists recommend that Nigeria adopt a similar system in order to strike a balance between the need for flexibility in personal matters and the push for uniformity in the graver area of criminal law. Establishing a Nigerian Penal Code would have the effect of increasing the courts’ legitimacy in handing down judgments in criminal matters because individual judges would have less discretion over cases that end up in their courtrooms. For example, the jurists recommend that rather than leaving witness admissibility to the judge’s discretion, “[a]ll witnesses, without discrimination, must be heard” so that the court will use “every suitable means in order to effect impartial justice.”
Other recommendations the Report makes are, although not directly relevant to law or procedure, aimed squarely at judicial elements that loom large in the perceptions of the Northern Nigerian people. For example, since “there is in the mind of the unsophisticated peasant a profound distrust of the professional advocate . . . it is our firm opinion that no advocate should be permitted to appear before any Native Court.” Additionally, “it is important that there should be African representation . . . at once to ensure that [the court] will gain the respect and confidence of the public.” The Report recommends the cosmetic change of renaming the current “Moslem Court of Appeal” as the “Sharia Court of Appeal,” since “the role of this Court will be more likely to be understood by the minorities if this change of name is accepted.” Finally, judges’ unfamiliarity with Hausa, a major language in Northern Nigeria, “may well have contributed to the belief in the minds of the people that the High Court and Magistrates’ Courts are the ‘English’ or foreign courts.” Therefore, the Report recommends creating a cadre of legal training officers, “[a]ll [of whom] should be Hausa speakers.” Through these reforms, “the people should now realise that these courts are the courts of a self-governing Northern Region.” Popular trust that the courts themselves are not “foreign” but rather part of the indigenous social and legal fabric is the first step toward popular trust in and compliance with the law handed down by those courts.
While inextricably wrapped up in the specifics of mid-century Nigerian history and politics, the jurists’ concerns in the Report trace their heritage back to those of medieval Muslim jurists. These changing prescriptions from the medieval era to mid-century Nigeria reflect the jurists’ perceptions of changing popular demands for a justice system; while medieval Muslims may have favored judicial discretion as a safeguard against an over-powered executive, at least according to the Report’s jurists, mid-century Nigerians preferred stability and uniformity in their government. Shoring up political legitimacy via the courts is the natural progression of the concerns of medieval jurists that moral rot from the executive could destroy the moral legitimacy of sharī‘a. The jurists writing the Report took the further step of acknowledging that courts themselves could be a source of political illegitimacy and that judges should have a continuing obligation to reaffirm the people’s trust.
 Justice Sayed Muhammed Abu Rannat et al., Report of the Panel of Jurists Appointed by the Northern Region Government to Examine the Legal and Judicial Systems of the Region, in Sharia Implementation in Northern Nigeria 1999-2006: A Sourcebook: Vol. I 27-48, 30:2 (Philip Ostien ed., 1958).
 Id. at 30-31:4.
 Id. at 30:3.
 See id. at 31:5-6.
 Id. at 33:8.
 Id. at 31:6.
 Wael B. Hallaq, Sharī‘a: Theory, Practice, Transformations 309 (2009).
 Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law 4 (2014).
 Justice Sayed Muhammed Abu Rannat et al., supra note 1, at 33:9.
 Id. at 35:12.
 Id. at 38:21.
 Id. at 41:35.
 Id. at 40:30.
 Id. at 42:39.
 Id. at 43:44.
 Id. at 42:39.