800 years on, Magna Carta still relevant

NAIROBI: While in London last week, I attended an exhibition on the Magna Carta to commemorate the 800th anniversary of the ancient document. I was able to see at one venue the four surviving manuscripts of the 1215 'Charter of Runnymede' as it was first called, written in Medieval Latin.

The Charter was issued by King John, a notorious tyrant, taking executive and sometimes arbitrary decisions, often justified on the basis that the king was above the law. It was a practical solution to a political crisis.

The original draft called 'The Articles of Barons' was agreed upon and sealed by the king. On June 19, 1215, the final document was named the Magna Carta. It applied to 'free men' who at that time were few.

The charter was initially issued as a peace treaty, an attempt to achieve peace between royalist and rebel factions led by Barons.

It regulated the administration of justice. Also it required the consent of the realm for certain taxation as well as established the principle of due legal process.

Initially, the document lasted only three months before it was annulled by the Pope who declared it to be 'base and shameful, null and void'. A revised version was issued in November, 1216 by King Henry III, who was just nine-years-old.

King Edward I reissued the charters in 1297 and it is this version that is still a statute to date, although most articles are now repealed. Notably, it was first repealed in 1829.

It is important to keep in mind that Britain's empire is the most expansive the world has ever seen, from the 1600s to the 20th century.

The charter is a fundamental pillar of modern day English law. Principles of law envisaged in the Magna Carta are embedded in the laws of most Commonwealth countries.

Magna Carta has been referred to in both political and legal forums throughout history. It was used to challenge the censorship of the press, imprisonment without trial and even in the divorce of the Queen.

Parliamentarians seeking political reforms have used it to challenge the crown and also been commandeered to challenge the authority of Parliament.

During the 20th century world wars, it was in defence of liberties supposedly enshrined in the charter that British and American armies prepared battle.

Clauses 39 and 40 are perhaps the best known and reads thus: 'No free man shall be seized or imprisoned or stripped of his rights or possession or outlawed or exiled or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

To no one will we sell, to no one we deny or delay justice.'

The charter has been significant in the drafting of various key constitutional texts and laws. In North America, several colonies used the Magna Carta in developing the laws that governed those colonies. Most significantly the Magna Carta greatly influenced Thomas Jefferson, drafter of the Declaration of Independence.

This is seen in the fifth Amendment which states that 'no person shall be deprived of life, liberty, or property, without due process of law' wording deprived from the Charter itself. Among other key legislation it has influenced is the United States Bill of Rights (1791).

The United Nation's 1948 Universal Declaration of Human Rights articles 9, 10 and 11 have echoed clauses 39 and 40 of the Magna Carta. The Magna Carta has also played an instrumental role in colonisation and the later fight for independence among its colonies. The Magna Carta was invoked by some to remind their colonial masters of the frequent hypocrisy of British.

It became the justification of the empire, but also a weapon against imperialism and colonial discrimination. Mahatma Gandhi and Nelson Mandela – both lawyers - in their anti-discrimination campaigns in South Africa referred to the Magna Carta.

Gandhi fought for the rights of Indians, most of whom had migrated in large numbers to southern Africa, some as merchants and traders, others as poor labourers. He argued that the rights accorded to all British subjects under the British constitution, including that 'there should be no legal racial inequality between different subjects of the Crown, no matter how much practice may vary according to local circumstance.

Mandela, the most iconic campaigner against South African apartheid regime and one of Africa's most foremost leaders, cited the Magna Carta in one of his famous speeches in 1964. He contrasted the 'independence and impartiality' of Britain's judiciary, and the democratic nature of its Parliament, with South Africa, noting that Magna Carta, the Petition of Right and the Bill of Rights were documents 'held in veneration by democrats throughout the world'.

It is gratifying that drafters of the 2010 Constitution did not forget Magna Carta in their legal thinking.