Justice Marshall’s deeply influential role in the construction of the bill of rights for Kenya’s independence constitution was largely unknown until Mary Dudziak’s Exporting American Dreams: Thurgood Marshall’s Africa Journey. The “fathers” of Kenya’s independence did not seek to highlight Marshall’s involvement because the positions he advocated were not populist, and would have been of little political benefit to the key actors. As a consequence, the Kenyan constitutional narrative is mostly silent on Marshall’s role. Although there has not necessarily been a deliberate attempt to blot out his contribution, no one had stepped forward to give it pride of place. The result was a national amnesia of the critical work of one of the most celebrated African-Americans on the cause of Kenya’s independence.
However, in 2008, a comprehensive account of Marshall’s work on Kenya came from the unlikeliest of quarters. Dudziak was neither a law clerk to Justice Marshall, nor an Africanist, although she had written about race and the law in the United States. She had never visited Africa until the book was well under way and from all accounts, she had studied neither African history nor politics in any sustained manner. In addition, she is not of African descent, like some of Marshall’s devoted clerks such as Randall Kennedy, the Harvard law professor. But she is a dynamic academic with diverse and intriguing intellectual interests. A professor of law and history at the University of Southern California, Dudziak’s curiosity on Kenya appears to have been triggered by her interest in race and law in the United States and Marshall’s central place in the struggle for civil rights.
The result is a work for the ages. Dudziak’s Exporting American Dreams creatively juxtaposes the African-American struggle for equality in law with the Kenyan struggle for political independence from white British colonial rule. With the lessons of both struggles ever present, Dudziak casts Marshall as a bridge between the two epochal quests for human dignity, drawing painful parallels. While Kenyans sought freedom from colonial imperial rule or external self-determination, African-Americans sought equality in a common polity dominated by white Americans or internal self-determination. Dudziak describes Marshall using his experience in the latter to positively affect the former; yet, this is where some of the tensions in Marshall’s Kenya project become evident. The iconic civil rights leader and eminent jurist analogized too closely the struggle for civil rights with the struggle for independence, or majority rule.
II. Civil Rights Versus Sovereign Independence
It is easy to conflate the struggle for civil rights with the quest for national independence. Both are struggles for basic human rights, and there are obvious lessons that each can draw from the other. The key common denominator of both struggles is anti-racialism: the struggle of blacks against white domination. It is clear from Dudziak’s account that it is this kinship [End Page 1146] that drove Marshall to offer his services for the Kenyan anti-colonialist struggle.
The struggle for civil rights under an extant constitution, as was the case in the United States, is a different contest than the pursuit for black majority rule in the context of colonialism and the struggle for independence. One particular encounter demonstrates that Marshall was aware of the difference between the two struggles. On his first visit to Kenya, Marshall sought to address a meeting of Africans who had been elected for the few seats reserved for them in the colonial legislature. However, a colonial officer stopped him because he had no permit to do so. After pleading his case, he was allowed to say one word of greeting. He shouted “Uhuru,” the Kiswahili word for “Freedom Now.”1 Pandemonium broke out as Africans cheered him loudly.
It is not always clear elsewhere in Dudziak’s narrative that Marshall appreciated the importance of the difference between the Kenyan and African-American struggles. Although Dudziak is aware of the tension, it is not one she fully confronts...