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US lawyer who wrote Kenya’s first Constitution

President Jomo Kenyatta and Secretary of State for Colonies Sandys Duncan during the start of constitutional talks in London in September 25, 1963. [PHOTO: file/STANDARD]

By KENNETH KWAMA

The lawyer who wrote Kenya’s first laws was a stickler for justice and was so incensed by the founding President Jomo Kenyatta for ‘discriminating’ against Asians after he was made Prime Minister in 1963.

US civil rights lawyer Thurgood Marshall had warmed his way into the hearts of locals who were spearheading Kenya’s fight against the colonialists, by offering invaluable constitutional insights. He also served as Kenyatta’s legal advisor at the Lancaster Kenyan constitutional making process.

Marshall was invited to Kenya by Kanu’s first Secretary General Thomas Mboya. With time, the lawyer liked Kenyatta for his steadfastness against the British colonial masters.

What endeared him to Kenyatta was an altercation that took place between Kenyatta and the British judge who presided over the Kapenguria six case.

In his ruling, the judge, Ransley Thacker, told Kenyatta: “You have successfully plunged many Africans back to a state which shows little humanity. You have persuaded them in secret to murder, burn and commit atrocities which will take many years to forget.”

He added: “Make no mistake about it, Mau Mau will be defeated.”

During the trial, the judge gave Kenyatta several opportunities to denounce the ‘illegal movement,’ which he refused to do.

However, Marshall’s complements for the President would not last for long. Afterwards, he became angry with Kenyatta for not according Asians similar treatment he gave Africans, especially in the appointment of individuals to positions of leadership after he was named Prime Minister in 1963 as Kenya awaited self-rule.

In her book, Exporting American Dreams, author Mary L. Dudziak says that what Thurgood did to come up with Kenya’s Constitution was a mystery. “He apparently told Juan Williams that when he went to Kenya, he looked over just about every constitution in the world to see what was good. Pounding his fist on the desk, he exclaimed, “and there’s nothing that comes close to comparing with this one in the US. This one is the best I have ever seen.”

According to the author, Marshall drew upon available texts when he wrote the first Bill of Rights for Kenya, but curiously the US Constitution that he revered so much was not one of them.

‘Mboya man’

He was regarded more as a ‘Mboya man’, having been invited for the first time into the country by then Kanu Secretary General, Joseph Mboya to help with the constitution-making process.

One of the untold stories was that during the Second Lancaster Conference, there was fear that Mboya, who had brought in the US civil rights lawyer as an adviser, would emerge as the Kanu leader and upstage James Gichuru, who had held brief for Kenyatta during his detention.

But Marshall never indulged in sideshows. He was a focused man. He showed his maturity in Lancaster, London when a political dispute pitting Kenyatta and company against the British colonialists disrupted the meeting that was discussing Kenya’s independence.  “Marshall found himself sitting in a hotel room ‘too cold by American standards’ sipping warm beer and fretting for action.”

The lawyer allegedly told reporters that if the conference failed, resulting in ‘what the Kenyans considered to be an imposed constitution, a revolt might occur. “There could be a new uprising in Kenya that nobody can control-anymore than they could control Kenya’s anti-colonial movement, the Mau Mau,” wrote the author.