Thurgood Marshall: Did he auction Kenyans’ land rights?

By John Oywa

Flashback, February 2, 1962: A delegation of Kenyan leaders sat pensively at the Lancaster Conference Hall in central London, waiting with baited breath as a historic debate on Kenya’s first constitution got under way.

Back home, an anxious country followed the deliberations through the media.

Independence from Britain was only months away and an upbeat Kenyan team had to secure a new constitution.

Among the Kenyan delegation was an uninvited guest whose motive and presence raised eyebrows from the Britons and almost jeopardised the talks.

The stranger, Mr Thurgood Marshall, an American civil rights activist and constitutional lawyer, had been hired by the Kenyan delegation as a legal advisor.

Today, only a few may know his input in the first constitution and how he cunningly sneaked the Bill of Rights into the document, ostensibly to protect the minority white settlers who had acquired huge swathes of land.

Tucked somewhere in the Bill of Rights was a land tenure clause that allowed the white settlers to enjoy massive land ownership rights, including land leases of up to 999 years.

99-year leasehold

It is this clause that has returned to haunt Kenya as the country prepares for a referendum on the Proposed Constitution.

The draft has reduced the leasehold period to a maximum of 99 years, a move that has irked land barons and foreign investors owning expansive ranches and agricultural land on the scenic highlands.

His input in the Lancaster constitution is believed to have been the genesis of friction between white settlers and indigenous communities such as the Maasai over land ownership.

Marshall’s role at Lancaster, as a British tabloid Cleveland Call and Post reported in 1960, was to "write a tricky constitution that would give Kenya political power and a democratically elected government while protecting the rights of the white minorities, which was outnumbered by about 100 to one."

The Kenyan team included Tom Mboya, Oginga Odinga, Ngala Mwenda, Mbiyu Koinange, Martin Shikuku and Julius Gikonyo Kiano, among others.

The East African Standard, one of the few media outlets at that time also wrote: "Mr Marshall spoke of his hopes for a common-roll democracy, with a constitution providing for minority safeguards and an effective Bill of Rights."

Land tenure

The paper quoted the lawyer as saying the most important thing was "we protect property so that no future Government of Kenya can seize the land in the Highlands."

But with the land ownership question taking a new sensitive twist, Marshall’s role in Kenya’s land tenure puzzle has come under scrutiny.

In a new book Working Towards Democracy: Thurgood Marshall and the Constitution of Kenya, an international law scholar Mary L Dudziak lays bare how the late Marshall single-handedly pushed for the land clause without consulting the Kenyan team.

In the run-up to independence, Marshall who had been invited by then Kanu Secretary General, Mboya led a rare campaign to assure white minorities their land would not be seized.

"Marshall and Mboya travelled to Kiambu, outside of Nairobi, to meet 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," says Dudziak.

According to the book published by the University of Southern California, Marshall at one stage defied the colonial officer and shouted ‘Uhuru’ to a crowd that had attended a rally.

It would appear later that his tour of Kiambu and other areas was to find out the status of local land ownership ahead of the Lancaster talks.

Four delegations from Kenya attended the Lancaster House talks. They represented African nationalists, an all-white party, Asian Indians, a minority group and a mixed race group.

Marshall was the only person present who was neither British nor Kenyan.

The book says that on February 2, 1960, Marshall submitted a memorandum on a draft Bill of Rights to the Committee on Safeguards at the Lancaster House Conference.

White minority

The memo, Dudziak says, was puzzling. Although he was serving as an advisor to the African Elected Members, he submitted the memorandum on his own behalf. The Bill had neither been discussed nor rejected by the African Elected Members.

Dudziak says after attending the Lancaster conference, Marshall was given a gift of a cloak made of monkey skin by the Kenyan delegation.

"The cloak was from Kenya, and was among the Justice’s most treasured possessions. For years, Marshall told his friends and his law clerks stories about Kenya. The cloak was a gift, he told them, from the time he was made an honorary tribal chief in Kenya."

She says Marshall’s involvement on the Kenyan constitution, in which he campaigned for the white minority rights, was in contrast with his record as a civil and human rights campaigner in the US where he stood out for the oppressed blacks.

Veteran politician Martin Shikuku, who also attended the Lancaster talks, remembers meeting Marshall at the conference hall but disputes he was the official Kenyan legal advisor.

Shikuku said Kanu had hired Marshall because Kadu, of which he was a member, had its own lawyer – Dr SG Hassan.

He said in an interview that although the Bill of Rights was in the proposed constitution presented at the conference, Kenyans did not regard it as an urgent matter.

"We had five burning issues before us and the Bill of Rights was not among them. We wanted independence," said Shikuku.

The former Butere MP confirmed that Marshall’s presence at Lancaster raised eyebrows with British officials questioning what an American had come to do at the talks.

It is, however, not clear whether the Kanu team knew about Marshall’s interest in land ownership.

The book says property was a matter of intense conflict just before independence. The most valuable land had originally been tribal land, and was exclusively owned by white settlers. The settlers believed their property rights must be protected, but nationalists who included Mau Mau veterans wanted land reform and resettlement.

Nigerian constitution

"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. The intent was to protect minority settlers from government abuse," says the book.

At that time, according to Dudziak, there were 6,000,000 Africans as compared with 64,000 Europeans, 165,00 Asians and 35,000 Arabs. In 1962, Kanu included Marshall’s Bill of Rights in their constitutional demands. The final 1963 independence constitution would contain detailed clauses regarding confiscation of land for public purposes, along the lines that Marshall had supported in 1960.