The US judge who avoided a political collision

 

Justice George Odunga. "He used Marbury to rule that the Inspector General of Police had no power to transfer members of the National Police Service." PHOTO | FILE  NATION MEDIA GROUP

In Summary

• Supreme Court judge Njoki Ndung’u used Marbury to prop her dissenting opinion last November on the division of revenue to counties.
• John Marshall, who was the Chief Justice of the US, wrote the decision in Marbury. He is considered one of the most brilliant and influential jurists of all time.

By Peter Mwaura
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On February 24, 1803, the US Supreme Court handed down a landmark decision. Marbury v Madison clarifies the concepts of judicial review and the separation of powers of the three branches of government — the Judiciary, Legislature and the Executive.

Marbury is one of the most important decisions in constitutional history. It has gone round the world influencing courts in other jurisdictions.

The current controversy over who has the right to interpret the Constitution is an echo of Marbury. Kenyan judges routinely cite Marbury to strengthen their own cases, either for or against judicial review.

Supreme Court judge Njoki Ndung’u used Marbury to prop her dissenting opinion last November on the division of revenue to counties. If the existence of a dispute is established, is it a political or judicial question?

“It is my considered view that judicial resolution is not appropriate where it is clear in a matter such as this that the political question doctrine will apply,” she said. “This doctrine was well established by, and has been in practice since, the decision of Marbury v Madison 5 US 137 (1803), in which the US Supreme Court deemed a question of law inappropriate for judicial review because it should be resolved by the political and not judicial process.

Under this doctrine, the interpretation of the Constitution is left to the politically accountable branches of government.”

ENFORCING THE PEOPLE'S WILL

High Court judge George Odunga used Marbury to rule that the Inspector General of Police had no power to transfer members of the National Police Service. “As Chief Justice Marshall powerfully argued in the case of Marbury v Madison, judicial review provides the best means of enforcing the people's will as declared in the written Constitution, without resort to the drastic remedy of revolution,” he said in a ruling on December 19, 2013.

“He warned that, without judicial review, the legislative branch would enjoy a practical and real omnipotence and would reduce to nothing what is deemed the greatest improvement on political institutions - a written constitution. The concerns raised in the Marbury case are still relevant and applicable in our jurisdiction. It should be observed that constitutional judicial review is the cornerstone of the doctrine of separation of powers and the principle of the rule of law.”

John Marshall, who was the Chief Justice of the US, wrote the decision in Marbury. He is considered one of the most brilliant and influential jurists of all time. He earned the reputation of a good lawyer who could think on his feet.

From a Kenyan perspective, his greatest achievement is that while he was faced with a no-win situation, he deftly avoided a dangerous political confrontation between the Judiciary, Congress and President Thomas Jefferson.

He avoided serving partisan political agendas and asserted that the task of the courts is to discover rather than make law.