Last week, British Prime Minister David Cameron claimed that the British Empire was responsible for many of the world's historic problems. At the same time the darker days of this empire were being brought to light as the case of four elderly Kenyans claiming compensation for torture during the Mau Mau rebellion in Kenya began at the High Court in London. The case of Mutua and others v the Foreign and Commonwealth Office (FCO) has generated debate as to Britain’s responsibility for its imperial past. Nobody is denying the atrocities that took place during Kenya’s State of Emergency, but the British Government is seeking to avoid legal responsibility for providing compensation to the victims.
Mau Mau: Britain's Gulag
The Mau Mau rebellion was one of the bloodiest conflicts of the colonial era, and a dark episode even for those who generally supported colonisation. Caroline Elkins, Professor of History at Harvard University, describes the crackdown as "Britain's Gulag", referring to Soviet forced labour camps, in her book of the same name. Mau Mau was a militant uprising against colonial rule and white settlers in Kenya between 1952 and 1960. While the Mau Mau uprising has been connected with Kenyan nationalism, it was also concentrated primarily among one of Kenya’s ethnic groups, the Kikuyu, and is still a divisive issue within Kenya today. Many Kenyans also fought on the side of the colonial government as members of the Home Guard.
For Britain, the Mau Mau rebellion became a byword for savagery: it was portrayed as a battle between civilization and barbarism. In this battle, 1,090 Kenyans were hanged for Mau Mau crimes. The rebellion and its repression resulted in a dirty war with appalling atrocities committed on both sides. It sparked the declaration of a state of emergency in Kenya. Just 32 white settlers were killed during the rebellion and crackdown, with many Mau Mau victims instead being other Kenyans suspected of supporting the colonial administration. The retribution of the colonial administration went far beyond the culprits. The Kenyan Human Rights Commission (KHRC) estimates that 90,000 Kenyan’s were executed, tortured or maimed during the colonial government’s crackdown, while 160,000 were detained in appalling conditions.
"Part of a System of Torture"
The four claimants, Paulo Nzili, Ndiku Mutua, June Muthoni Mara and Wambugu Nyingare are seeking compensation and an apology from the British Government for alleged torture they experienced while detained during this period. Two of the male claimants claim to have been castrated, while the only female claimant said that she was subjected to sexual abuse and torture, including being violated using bottles filled with hot water.
This case is not about damages in the usual sense; the claimants primarily want an apology, and a gesture of compensation from the British establishment. Efforts were made by the Kenyan Human Rights Commission to settle this out of court, with a proposal for a trust fund for victims who suffered from torture similar to the four claimants. Crucially, the claimants are seeking an acknowledgement of British responsibility for what they suffered.
The plaintiffs argue that these horrific acts of torture were not randomly perpetrated, the actions of a few “bad apples” within the colonial administration, but as “part of a system of torture, inhuman and degrading treatment applied by police, Home Guards, and other members of the security services with the knowledge of the colonial Administration.” Leigh Day, the law-firm representing the Kenyans, argues that either the British government is directly liable for these acts of assault, or that the government negligently failed to prevent the use of systematic and institutionalized violence against the claimants.
The Foreign Office does not deny that the war had been brutal, or that torture and abuses took place. However, responsibility for these abuses is being vehemently denied. FCO lawyers are refuting the claim on two main grounds: that, with Kenyan independence, any liabilities and responsibilities of the colonial administration were either extinguished or transferred to the Kenyan government. The second ground is simply that the abuses have taken place too long ago thus the FCO can no longer be held liable.
Embarrassment for Her Majesty’s Government
The FCO has not denied that atrocities took place. Historians David Anderson and Catherine Elkins have recognised the violence unleashed by the British colonial authorities, often relying on documentation of the colonial authorities. However, the case has led to the FCO discovering “lost” files documenting efforts to put down the Mau Mau insurgency. These files were removed from Kenya on a British Airways flight three days before independence as part of a policy of removing documents from former colonies that “might embarrass Her Majesty’s Government.” For many years, it has been assumed that these files were lost or destroyed – maybe even dropped in the ocean using a Lancaster bomber. Lord Howell, an FCO Minister of State, told the House of Lords that “as a result of searches in connection with a legal case brought by Mau Mau veterans against the Foreign and Commonwealth Office, the FCO has decided to regularize the position of some 2,000 boxes of files it currently holds, mainly from the 1950s and 1960s.”
Lord Howell confirmed that the FCO holds files from 37 former British colonies, including Kenya, Nigeria, Northern Rhodesia, Tanganyika, Zanzibar and the Gold Coast, which were taken on the grounds of “sensitivity”. These documents are expected to be released to the public, but in a process which may take some years, as the documents are being ”reviewed”, presumably to minimize embarrassment to the government. Linked to this case, some papers have been revealed, though many more still remain secret for now. These attest a British officer being involved in the burning alive of a detainee. Complaints about the treatment of detainees was reaching high levels at Whitehall, suggesting a paper trail incriminating the British Government. Colonel Arthur Young, a British police officer sent to head Kenya’s police, described the conditions of detention in camps as “deplorable” He complained to the Governor of Kenya, Governor Baring, about the “inhumanity” shown by various parts of the security forces. Young later quit over what he witnessed. The papers also include a telegram from Baring to the Colonial Secretary in London, asking for approval to use “overpowering force”. Approval was granted within weeks. These documents, as well as the ones yet to be released, will provide crucial evidence for the case.
The release of colonial files has led to speculation that countless other similar lawsuits might be brought against the Government, and other incriminating material may be revealed. Whatever the outcome of Mutua et al versus the FCO, it is likely to spark other individual lawsuits. Speaking to Think Africa Press, David Anderson, who is advising the claimants argues that the discovery and release of these documents marks a watershed in the way the British establishment can respond to these claims, although the outcome of this case would not necessarily provide a legal precedent for others.
“Intolerable Abdication of Responsibility”
The Kenyan government has refuted the idea that independent Kenya could inherit the liabilities of the colonial administration. A public denial of responsibility for the actions of the colonial administration was contained in a statement saying “The Kenyan Government does not accept liability for the torture of Kenyans by the British colonial regime. In no way can the Kenyan Republic inherit the criminal acts and excesses of the British colony and then the British Government.” It has also expressed support for the claimants. Archbishop Desmond Tutu has spoken out against the British Government’s action over the case, saying “The British Government’s attempt to pin liability on Kenya for British colonial torture represents an intolerable abdication of responsibility”.
This is not the only court case of interest to Kenyans this week: six prominent Kenyan politicians are standing trial before International Criminal Court in the Hague, accused of crimes relating to the 2007/8 election violence. The British government played an active role in ensuring this trial took place, and blocking the attempt of Kenya to defer the trial. In denying its own responsibility through what have been described as “legal contortions”, Britain is seriously weakening its image as a promoter of human rights and opening itself up to accusations of neo-colonialism and double standards. Whatever the legal precedents which might be used to block the case, there is a clear need for Britain to take responsibility for some the crimes it committed during the Empire’s rule. However one views the British Empire and the overall legacy of colonialism, it is clear that the supression of the Mau Mau rebellion marked a dark episode in that period. The FCO were given an option to settle this claim out of court: the claimants want a welfare fund and an apology. An apology would have helped to restore Britain’s integrity; now, the case at least promises to reveal more of the truth of British complicity in the “overpowering force” use to try and crush the Mau Mau rebellion. David Anderson argues that whatever the legal decision, the moral argument is being won; it is no longer possible simply for the British government to deny and deflect criticism of torture carried out during the colonial period in light of the evidence being revealed: “Britain did commit these tortures, senior government officials were fully aware of what was happening, the abuse was part of a systematised response to Mau Mau, and the government in general, and not simply a few individuals should be held responsible for what happened.”