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MINORITY RIGHTS IN KENYA
J. M. N A Z A R E T H , M . L . C .
Asian Elected Member, Kenya Legislative Council
W I T H I N the last nine m o n t h s t h e r e has been a r e m a r k a b l e transformation—or, perhaps I should say, clarification—in t h e attitude of the Asian c o m m u n i t i e s towards m i n o r i t y rights and safeguards. Clear evidence of their p r e s e n t a t t i t u d e is the m e m o r a n d u m s u b m i t t e d by t h e Central Council of t h e Indian Associations in Uganda on behalf of t h e Indian c o m m u n i t y to the C o m m i t t e e of Constitutional Enquiry set up by the Uganda G o v e r n m e n t . It declares plainly: " W e consider ourselves an integral part of t h e Uganda c o m m u n i t y . W e therefore cannot justifiably ask for minority r i g h t s " . A step in the same d i r e c t i o n was taken immediately after the General Election in Tanganyika last year, when the Elected M e m b e r s declared their opposition to a racial allocation of t h r e e ministerial seats to Elected African M e m b e r s and one each to Asian and European M e m b e r s . They demanded instead that t h e five Ministries for Elected M e m b e r s should be filled on the r e c o m m e n d a t i o n of t h e Elected M e m b e r s w i t h o u t reference to race.
In Kenya similar rapid strides have been m a d e in t h e thinking of the Asian c o m m u n i t y . T h e Constituency Elected M e m b e r s Organisation, w h i c h had made such a promising s t a r t — c o n - taining as it did all the Elected African, Asian and Arab M e m b e r s , w i t h t h e addition of M r . S. V. C o o k e , t h e most senior of the European Elected M e m b e r s — h a s b r a n c h e d off into t h e Kenya National Party and the Kenya Independence M o v e m e n t , t h e latter recently having ceased to exist as a body by t h e refusal of the G o v e r n m e n t to grant it registration u n d e r the Societies' O r d i n a n c e . T h e KNP contains eight o u t of the fourteen African Elected M e m b e r s and all t h e Asian Elected M e m b e r s , w h i l e t h e KIM was supported clearly by four African Elected M e m b e r s . T h e remaining t w o African Elected M e m b e r s signed t h e policy statements of both the K N P and the KIM and successfully j o i n e d b o t h bodies.
In its constitutional proposals, the KNP does not go as far as t h e Uganda Indian Associations in wholly abandoning c o m m u n a l r e p r e s e n t a t i o n . Instead it r e c o m m e n d s t h e r e t e n t i o n up to 1968 of a l i m i t e d n u m b e r of Reserved Seats for each of t h e c o m - m u n i t i e s , African, European, Indian, Muslim, and Arab, to b e elected on a c o m m o n roll w i t h a r e s t r i c t e d franchise b u t low
qualifications. Thus even on the n e w restricted roll, it is e x p e c t e d that African voters will greatly o u t n u m b e r voters of o t h e r races. In addition, it is p r o p o s e d that t h e r e should be a large n u m b e r of O p e n Elected Seats, to b e filled by voters o n a c o m m o n roll w i t h universal adult franchise, so that if t h e voting w e n t heavily o n racial lines all o r almost all these seats w o u l d go to African candidates. U n d e r the proposals of t h e K N P (to w h i c h all t h e Asian Elected M e m b e r s are p a r t y ) , t h e few seats reserved for the minorities will quite plainly n o t o p e r a t e as a safeguard; indeed, as m i n o r i t y rights, t h e i r actual voting value will be slight. T h e function of t h e Reserved Seats is thus essentially to give expression to t h e d e m o c r a t i c p r i n c i p l e t h a t m i n o r i t y sections m u s t have a voice in t h e Legislature. But t h e r e is n o t h i n g in these proposals of t h e K N P seeking to give t h e minorities a privileged position o r to give t h e m anything in t h e nature of c o n t r o l o r unfairly large influence in t h e Legislature.
W i t h the same principle of r e p r e s e n t a t i o n in view, and to p r e v e n t candidates elected for m i n o r i t y c o m m u n i t i e s from being persons wholly unrepresentative of opinion and wholly lacking s u p p o r t in t h e i r o w n c o m m u n i t y , from being, as it w e r e , m e r e stooges of t h e majority c o m m u n i t y , t h e K N P r e c o m m e n d s that candidates for Reserved Seats w h o do n o t secure a p r e s c r i b e d p r o p o r t i o n of t h e votes cast by voters of t h e i r o w n c o m m u n i t y should b e disqualified, even if they secured an overall majority of the total votes cast. T h e p r e s c r i b e d p r o p o r t i o n is to be k e p t l o w ; so that while m i n o r i t y sections retain a measure of influence in the elections for these seats, separate electorates are n o t b r o u g h t in by t h e back d o o r . T h e m i n o r i t y c o m m u n i t i e s are thus given r e p r e s e n t a t i o n , w i t h o u t m u c h p o w e r o r influence in t h e Legislature o r t h e Executive.
It is plain from an examination of t h e a t t i t u d e and policies of t h e Asian c o m m u n i t i e s in t h e t h r e e mainland East African t e r r i - tories that they have abandoned t h e idea of racial o r communal rights o r safeguards and that they are fully p r e p a r e d to accept a r e p r e s e n t a t i o n based on d e m o c r a t i c principles. But as political parties, w h i c h are essential for t h e realisation of parliamentary d e m o c r a c y , have yet to b e c o m e established, t h e Asians have realistically, at least in Kenya, p r o p o s e d measures to ensure, during t h e transitional p e r i o d that miist intervene before t h e racial parties w h i c h n o w o p e r a t e are replaced by effective political parties, that t h e c o n s t i t u t i o n should p r o v i d e for r e p r e - sentation of m i n o r i t y c o m m u n i t i e s , though n o t h i n g like c o n t r o l
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or p o w e r over the Legislature.
T h e history of t h e European and Indian c o m m u n i t i e s in Kenya accounts for the differences in their p r e s e n t attitudes to issues such as t h e question of m i n o r i t y rights and safeguards. T h e Indian c o m m u n i t y has in t h e past b e e n t h e victim of serious discrimination in m a t t e r s of land rights, t h e Civil Service, immigration practice, political and local g o v e r n m e n t representa- tion, and so forth. T h e struggle of t h e Indian c o m m u n i t y for equality of rights has b e e n based on an appeal to d e m o c r a t i c principles. W h e n , therefore, Africans appeal to t h e same principles, t h e Indian is already a t t u n e d to r e s p o n d ; and, if t h e African appeal is genuinely based on and genuinely follows d e m o c r a t i c principles, it m e e t s w i t h no substantial resistance o r opposition from Indians. W i t h t h e Europeans t h e position has been different. They have always been a privileged m i n o r i t y in Kenya, politically, economically and socially, and they are far from p r e p a r e d to accept d e m o c r a t i c claims o r d e m o c r a t i c practices w h i c h wrould mean t h e loss o r d i m i n u t i o n of racial privileges.
T h e a t t i t u d e of Asian c o m m u n i t i e s is based n o t merely on their inability to justify ethically safeguards and rights for t h e m - selves as racial o r c o m m u n a l groups. F r o m a practical p o i n t of view, they are satisfied that safeguards and rights for numerically very small minorities based o n o r related to m e m b e r s h i p of a racial o r c o m m u n a l g r o u p are illusory, and that such differences or seeming privileges will in effect relegate their c o m m u n i t i e s to p e r m a n e n t m e m b e r s h i p of p e r m a n e n t m i n o r i t i e s . They k n o w that they have never in t h e past enjoyed c o n t r o l o r substantial p o w e r o r influence and that they are n o t losing privileges o r p o w e r possessed in t h e past. O n t h e o t h e r hand, if genuine and effective political parties, in place of exclusively racial parties, can b e built u p , t h e b u l k of w h o s e m e m b e r s w o u l d , of c o u r s e , be Africans, b u t of w h i c h Asians and Europeans w o u l d b e m e m - bers, Asians could well find themselves m e m b e r s of groups o r parties w h i c h could c o m m a n d a majority in t h e Legislature and so form t h e g o v e r n m e n t of t h e day. F r o m w i t h i n the party or g r o u p they could thus influence—though n o t , of c o u r s e , control—-policy; and they w o u l d thus n o t m e r e l y be b e t t e r off than if they had t h e right to elect o r b e r e p r e s e n t e d by a small m i n o r i t y of m e m b e r s of t h e Legislature o r Executive, b u t w o u l d be p r o m o t i n g a m u c h h e a l t h i e r and m o r e lasting political system, based on the principles of parliamentary democracy.
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Asians have in the past taken the view, and they are becoming increasingly satisfied, that safeguards and rights based on race have no lasting value unless they are founded on the goodwill of and full acceptance by the majority community. They are fully aware how in the Union of South Africa minority rights, small and almost negligible though they were, have been washed away;
and of the strenuous efforts and unscrupulousness that character- ised the destruction of relatively unimportant safeguards.
The real danger to minorities is the danger of demagogues or power-seeking politicians in the majority group attempting to buttress themselves by diverting attention from their own weak- nesses to members of minority communities. That could easily lead to persecution or victimization of minorities. How is that danger to be effectively dealt with?
The only protection of any value against that danger is to entrench as strongly as possible fundamental rights in the Con- stitution. The protection must, however, be accorded to persons as individuals, not as members of a race or communal group. A Second Chamber can be useful in that direction, since the delaying and revising powers given to such a Chamber may bring about a cooling of passions and give to temporary majorities time for second thoughts. If the bulk of the majority section entertain permanent or enduring feelings of ill-will towards the minorities, even a Second Chamber could not afford lasting protection to members of minority sections. Special provisions ought also to be incorporated in the Constitution to ensure that alteration of fundamental civil rights can be made only by a special legislative process requiring a special majority and by compliance with special conditions designed to prevent easy or hasty alteration of vital minority safeguards.
It will, of course, be of the utmost importance not merely to entrench fundamental individual rights in the Constitution, but to ensure that they cannot be washed away by the lack of an adequate judiciary. Special provisions will, therefore, need to be incorporated in the Constitution to secure the appointment and maintenance of a competent, impartial and independent judiciary.
Safeguards and protection for fundamental rights are as
important to individual members of majority communities as to
members of minority communities. For the majority com-
munity is bound sooner or later to split into political parties
(indeed the first steps in that direction have already taken place);
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and t h e r e is no assurance that some day many m e m b e r s of t h e majority c o m m u n i t y in the majority party may n o t find t h e m - selves in a m i n o r i t y party, potential victims of political persecu- t i o n . T h e majority c o m m u n i t y will itself contain m i n o r i t y sections, tribal differences will n o t die overnight, t h e r e will b e larger and smaller tribes w i t h politicians ready to exploit tribal differences, and m i n o r i t i e s , like t h e p o o r , will always be w i t h us.
Every individual thus has a strong interest in t h e safeguarding of t h e rights of m i n o r i t i e s against t h e abuse of p o w e r by a majority.
W h i l e p r e p a r a t i o n of t h e g r o u n d cannot be t o o early begun, t h e latest t i m e for t h e e n t r e n c h i n g of these safeguards against t h e oppression of m i n o r i t i e s o r individuals by a governing majority will b e before i n d e p e n d e n c e is a c c o r d e d to the c o u n t r y . After i n d e p e n d e n c e is attained, it will b e too late to e x p e c t an i m m a t u r e majority to act in t h e highest traditions of a m a t u r e parliamentary d e m o c r a c y . But before i n d e p e n d e n c e , the c o u n t r y will b e sufficiently disposed to accept such safeguards, for even in t h e majority c o m m u n i t y t h e r e will b e substantial n u m b e r s w h o w o u l d t h e n b e m e m b e r s of a m i n o r i t y party and w h o w o u l d w e l c o m e and m i g h t soon n e e d such p r o t e c t i o n . Even t h e majority party may t h e n b e n o t strongly opposed to such safe- guards and rights, since it m u s t face t h e possibility that it may find itself some day in a m i n o r i t y , unless, like t h e Nationalists in South Africa, it is placed in t h e position of being able to take steps, having o n c e secured r u l e , to e n t r e n c h itself p e r m a n e n t l y in p o w e r . T h e British G o v e r n m e n t w h i c h will have to make t h e final s u r r e n d e r of p o w e r will be in a position at that t i m e to impose such conditions, for w h i c h it will have c o m p l e t e moral and political justification. T o fail in this regard, and to sur- r e n d e r p o w e r w i t h o u t precautions against t h e d e s t r u c t i o n of parliamentary d e m o c r a c y and its early conversion into a p e t t y autocracy, w h e t h e r by an individual o r a g r o u p , w o u l d be t h e greatest breach of duty that t h e British p e o p l e could c o m m i t against every inhabitant of this c o u n t r y .
In t h e u l t i m a t e analysis, t h e p r o b l e m of m i n o r i t y rights and safeguards resolves itself into the p r o b l e m of safeguarding t h e rights of t h e individual. That is t h e final p r o b l e m of a con- stitution, and that essentially is t h e p r o b l e m of m i n o r i t i e s , w h e t h e r racial, religious o r political.
