No arm of government is above the law

OPINION |

By Kethi Kilonzo

President Adams of the United States nominated William Marbury, Dennis Ramsay, Robert Hooe and William Harper as judges. These nominations were approved by the Senate.  The President signed their appointment letters. The letters were then sealed by the Secretary of State. 

The appointment of the judges was for a term of five years. They could not be removed from office by the President in this period as they had security of tenure like Kenyan judges do.

President Adams left the office of President before these judges received their appointment letters. The Secretary of State then refused to deliver those letters of appointment to them. One of the judges, William Madbury, sued the Secretary of State at the U.S. Supreme Court. The decision of the Court influenced and continues to influence public law in the United States and other countries including Kenya. 

It was the responsibility of the President under the law to nominate judges and upon approval of the Senate appoint them by signing their letters of appointment. The duty of the Secretary of State under the law was to affix the seal of the United States to the letters of their appointment after they had been signed by the President.

The Secretary of State refused to deliver the appointment letters to the new judges because there had been a change in the office of the President. When he was sued before the Supreme Court, the Secretary of State and his junior officers refused to give the Supreme Court any reasons for failing to deliver the letters of appointment to the judges.

The questions posed before the Supreme Court to decide were two. Did the Secretary of State break the law and breach the rights of the appointed judges? Did the Court have the power to compel the Secretary of State to perform his duty against the will of the President?

In reaching its decision the Court differentiated between the responsibilities of the President, and those of the Secretary of State. The power of the President over the appointment of the judges ceased when he signed their appointment letters. The Seal was affixed to the letters to verify his signing.

The Court held that the Secretary of State had a duty to follow the law. He was an officer, not of an individual, but of the United States, bound in such office to obey the law. His duty was to perform a legal obligation and not to act by the instructions of the President. Failing to deliver the letters of appointment to the judges was not only unlawful, but also a breach of the rights of the appointed judges. The Government is established by law. One of its principal duties is to ensure that every person enjoys the protection of the laws of its country.

No one should suffer a wrong without a remedy. Should the Government fail in this basic duty, every person, including individual and institutional members of that Government, have a right to claim protection of the law.

Such a claim can only be made to a Court of law.  A legitimate government must bow to the very law that lends it such legitimacy.

The custodian of the legal rights established by the laws of any country is the Courts. These Courts, save in exceptional circumstances, have the power to hear parties aggrieved by their decisions through appeal or review.

Only the Courts have the power and duty to interpret and say what the law is. If individuals and institutions cannot approach the Courts for help, and once they do, if the Courts can do nothing if they are truly wronged, then such a country is one governed by the whims and caprices of men.


 

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