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.

Oginga Odinga

Martin Shikuku

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.