Derechos humanos | La defensa de la dignidad humana
03 octubre 2008
Carta de Derechos de Kenia: Participación de Marshall
(Este artículo pertenece a la publicación: El legado de Thurgood Marshall)
By Mary L. Dudziak
In January 1960, the leading U.S. civil rights lawyer, Thurgood Marshall, traveled to Kenya to try his hand at legal change in a new context. Marshall was invited by Tom Mboya, a young Kenyan nationalist leader, to aid his countrymen in negotiations over a new constitution for Kenya, then a British colony. Marshall had achieved landmark legal change in the United States, with victories in cases like Brown v. Board of Education outlawing racial segregation in public schools. Law in Africa, however, was entirely new to him.
Marshall confronted a tense political environment. Kenya’s colonial government had responded to the Mau Mau resistance movement by imposing a State of Emergency, detaining leading nationalist leader Jomo Kenyatta, and restricting political organizing. But change was coming. Seventeen African nations would achieve independence in 1960 alone, and in January of that year the British government hosted a conference in which, for the first time, African Kenyans were parties to constitutional negotiations as a step toward independence.
Marshall and Mboya traveled to Kiambu, outside of Nairobi, to meet with nationalist leaders. Although they had received a permit required for the meeting, a colonial officer barred Marshall’s participation. His permission to attend had been revoked. This incident helped Marshall appreciate the difficulties Africans faced daily under colonial rule. He later told the press that “independence and freedom for Kenya was due now.” “These people have had it,” he wrote to his wife, “and they are not going to take any more.”
Later that month, Marshall and a group of nationalist leaders left Kenya for London and the Lancaster House Conference on the Kenya Constitution. Four delegations were present. They represented African nationalists; an all-white party; Asian Indians, a minority group in Kenya; and a mixed race group. Marshall was the only person present who was not British or Kenyan.
The conferees reached a rough consensus on voting rights and African majority representation in the legislature. This made the issue of protection for minority rights especially important. Nationalist leader Ronald Ngala told the conference that “the best form of safeguard for all races in Kenya was a Bill of Rights enforced by an independent judiciary.” He announced that Marshall, “an expert on minorities and civil rights, had been retained” by his group to draft a proposed Bill of Rights.
Marshall’s proposed Bill of Rights would not be a simple American transplant. Even as it seemed to embody pragmatic solutions for problems facing Kenya, it offered an idealized vision of rights that embraced some protections not included in American constitutional law. The preamble stressed that “all persons are equal before the law,” and forbade discrimination on the basis of race, color, sex, religion, and other factors. It proposed rights guaranteeing freedom of religion, speech, and press; the right not to be enslaved or deprived of liberty; and the right to vote. Social welfare rights, unfamiliar in the American context, were made explicit: rights to health, education, and welfare, and the right to work, including “just and favourable remuneration insuring ... an existence worthy of human dignity.” Marshall was not charting an entirely new path, however. He relied here on the recently enacted Nigerian and Malayan constitutions, which paralleled the Universal Declaration on Human Rights.
The language guaranteeing property rights proved the most controversial. Property was a matter of intense conflict in Kenya. The most valuable land had originally been tribal land, and now was exclusively owned by white settlers. The settlers believed that their property rights must be protected, but nationalists wanted land reform and resettlement. Marshall recommended that provisions of the Nigerian Constitution be adapted to conditions in Kenya. A “taking” of personal property by the government could only be for public purposes, and required just compensation. A modification added a right of appeal directly to the highest court in Kenya. The intent was to protect minority settlers from government abuse.
An argument broke out in committee: What “public purposes” could the government take land for? Some white settlers wanted this spelled out very clearly. But to do that would require the Africans to develop a policy on land reform on the spot—something they were not in a position to do. Differences over this issue were too deep to be resolved at Lancaster House, and the meeting ended with the matter left open. Colonial Secretary Ian Mcleod singled out Marshall’s Bill of Rights as a helpful contribution. Later, a land buy-out scheme with World Bank support relieved the pressure to resolve the property rights issue, allowing subsequent constitutional talks to focus on other matters. The final Bill of Rights in the 1963 Kenya Independence Constitution elaborated on many of the rights that Thurgood Marshall had crafted, including property rights, but did not include all the broad social welfare rights he had envisioned.
Tom Mboya reflected on Marshall’s involvement in a 1960 letter: “I do not know whether it will ever be enough to write letters to thank you for your good work at the London Conference. ... I am sure I speak the mind of all of us, that you were the easiest man to work with, and that any of us who had apprehension before you came were easily disarmed as soon as we met you.” Mboya wrote, “As you yourself said, you were glad to come home, we were glad to receive you home.”
In 1963, Marshall returned as the guest of now Prime Minister Kenyatta at Kenya’s independence ceremonies. Even as his career took Marshall to important federal appointments, including ultimately the U.S. Supreme Court, he never forgot about Kenya. He was proud to have been there at the beginning, helping to craft constitutional principles from the outset. And from Kenya came some of his most cherished stories, shared with his colleagues, his family, and his friends, to the end of his days.
Mary Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law, History, and Political Science at the University of Southern California Law School and the author of Cold War Civil Rights: Race and the Image of American Democracy (Princeton University Press, 2000). Her research focuses on international approaches to legal history.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.
