Mau Mau War Veterans Association representative Lawrence Mathenge celebrates the ruling
Time after time they stood defiant; slight, frail figures before the imposing grandeur of Britain’s Royal Courts of Justice, in the heart of London. The three elderly Kenyans—Paulo Muoka Nzili, 85, Wambugu Wa Nyingi, 84, and Jane Muthoni Mara, 73—stood in the same spot many times over the past four years, waiting patiently as they held aloft placards with the words, “Human Rights For All.” They came to the U.K. to ask for justice for horrors allegedly perpetrated against them over five decades ago in Kenya, when the British colonial powers that then ran the country cracked down brutally on the armed pro-independence movement, Mau Mau. On Oct. 5, their wait for their day in court finally came to an end when the British High Court ruled that their legal case, which accuses the British government of carrying out torture half a centuryago, could proceed.
The three elderly claimants—one says he was briefly a member of Mau Mau, the other two say they were mistakenly suspected of being members—had set out to ask for an apology from the British government and a welfare fund to cover their medical needs as a result of the torture they suffered in the British-run detention camps. Yet throughout, the Foreign Office, the government department responsible for Britain’s foreign affairs, has maintained that the current government should not be held accountable for the actions of an earlier administration.
The case could set a precedent that might allow past victims of British colonial rule to seek compensation for mistreatment. A lawyer for the three Kenyans believes there are an estimated 5,000 further Kenyan survivors of physical and psychological abuse by former British colonial authorities who could possibly bring similar cases for compensation as a result of this ruling.
(MORE: The Bloody Mau Mau Revolt)
In coming to its decision, the High Court rejected a series of arguments from the British government, which initially pushed for the case to be dismissed because responsibility for cases involving colonial-era torture had technically passed to the Kenyan government following independence in 1963.
The second argument, which the court most recently considered, was that under the British statute of limitations, it would be impossible to have a meaningful or fair trial given that so much time had elapsed and many witnesses were no longer alive.
Justice Richard McCombe rejected these arguments. “I have reached the conclusion,” he said in his judgement, “that a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the Court to complete its task satisfactorily. The documentation is voluminous….and the governments and military commanders seem to have been meticulous record keepers.”
The Mau Mau uprising of 1952-1960, in which the grandfather of U.S. President Barack Obama was among the hundreds of Kenyans detained when they fought against the British colonial administration, is one of the mostdisputed and controversial flashpoints in Britain’s imperial history. The Mau Maus were banned by the British authorities in 1950 and the country was plunged into a state ofemergency as the colonial administration attempted to quell the uprising.
The accounts of the three claimants offer harrowing details of the sexual violence that took place in detention camps during the emergency period of 1952-1960, which has been extensively chronicled by historians and archivists. In court, Nzili described how detention camp guards castrated him with pliers that were normally used to castrate cattle.
The case has taken decades to reach this point. “The true historical understanding of what happened only emerged in 2005 after the historians David Anderson and Caroline Elkins published two separate books having gone through the archive material, some of which was quite new,” says Daniel Leader, a lawyer for the plaintiffs. “The second [reason for the delay] is that up until the new government came in in 2003, the Mau Maus were still an outlawed group in Kenya. It was after 2003 that the victims were able to come together and talk about this issue.”
The Kenyan Human Rights Commission, a national NGO, which approached Leader’s law firm to begin legal proceedings in 2006, hailed it as a “test case” that will open up other colonial administrations to greater public scrutiny.
The discovery in 2011 of 8,800 files from 37 colonies in Hanslope Park, the government communications centre located north-west of London, helped shift the case for a full hearing in the claimants’ favor. Historian Tony Badger, who was put in charge by the Foreign Office of overseeing the review of the documents, told the Guardian at the time that the discovery put the Foreign Office in an “embarrassing, scandalous” position.
“This case has enormous implications, no question in my mind,” says Elkins, author of the Pulitzer-Prize-winning book, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya. “The Kenyan case is but one in a series of instances of colonial violence executed by the British after World War II.” Similar crackdowns on insurgencies took place in several of Britain’s colonies following the World War II, including in Palestine, Cyprus and Malaya.
But critics argue that the case will open a door to future compensation claims that will cost the cash-strapped British government potentially huge sums of money.
These fears are unfounded, says Leader, the lawyer, because “Kenya was in a league of its own. I’m quite skeptical any case will have the traction Kenya has in its gravity and scale. There are also not many living survivors of abuses from this era [in countries other than Kenya].”
The importance, Elkins says, lies more in the quest for justice and chance to “have a truly productive conversation about the dark side of empire.”
The British government will appeal the decision. After McCombe’s ruling the Foreign Office issued a statement saying: “Our relationship with Kenya and its people has moved on since the Emergency period.” Elkins says that the government, which “is having a serious case of denial,” will end up “costing the taxpayer a huge amount of money.”
If the British government does decide to pay out the compensation, it would not be the first country to recognize responsibility for the culpability of a previous administration. The United States, Germany and Iraq have all paid reparations to victims for historical injustices. Given the British government’s lack of success in the Mau Mau torture case so far, it may now be just a question of when, and not if, it joins that list of countries.