The Trial of Britain’s Gulag in Kenya: the next stage of Mutua and others v. FCO

By Sam Hawke

On Monday 16th July, the next stage of the case Mutua and others v The Foreign and Commonwealth Office began at the Royal Courts of Justice. As very many will know, it is being brought by former victims of torture by the colonial government in Kenya during the period of the ‘Emergency’ of the 1950s. Concentration camps, extrajudicial detention and murder, and systematic torture and rape were employed against the local population in suppressing the liberationist group known as the Mau Mau. The four claimants suffered horrific torture and abuse by the white-ruled, white-supremacist Colonial authorities, ranging from sexual torture to prolonged arbitrary detention and slave labour. Paulo Nzili suffered castration, Wambugu Nyigi was left for dead amongst the bodies in the Hola massacre (where 11 Kenyans were bludgeoned to death after refusing to continue their forced labour), and Jane Muthoni suffered almost unspeakable sexual torture. The case has been brought in part as a result of a wave of historical re-examination of the period, made possible by the end of legal prohibitions on discussion of the Mau Mau in Kenya and the survivors bravely stepping forward to make their case.

Elkins’ book, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya, provides an account of British colonialism at odds with the accepted history of benign, if sometimes heavy-handed, rulers. It was only until the last decade or so that official documents have been released (although thousands have been destroyed) and the victims have felt free to come forward, with very many dying in public ignominy. This forms one of the many reasons why her alternative account of British rule in Kenya has yet to come close to popular consciousness. If true, it fully merits the comparison with Stalin’s Gulags.

Rebellion tentatively began in 1947, precipitated by the continuing theft of land by white settlers, alongside the viciously white-supremacist rule that the authorities and settlers imposed. Mau Mau guerrilla bands roamed Kenya’s forest areas, and with the intensification of uprising came the intensification of repression. The ‘Emergency’ was declared in 1952, with Jomo Kenyatta and the rest of the ‘Kapenguria Six’ jailed after an appallingly unfair trial, whilst free political association was effectively outlawed. As the rebellion grew in strength, so too did state terrorism, and a brutal counterinsurgency campaign was waged against Mau Mau fighters and the local population. With the countryside ravaged by bombing operations and military forces, openly eliminationist white settlers and African loyalists roamed the countryside to shoot on sight. Thousands of civilians were arrested, detained, and screened for Mau Mau allegiances, a process which used violence and torture to extract confessions as a matter of routine. Massacres of civilians were multiple, with near-total impunity for the perpetrators. In April 1954, ‘Operation Anvil’ was launched, with colonial authorities cleansing Nairobi (the supposed base of Mau Mau operations) of its African inhabitants and sent to concentration camps for screening. This was preceded by mass deportations of Africans into reserves, and later a forced resettlement program known as ‘villagisation’ was instituted, with over a million Kikuyu forced to burn their home and build the new ones to which they were forcibly confined. Disease and famine decimated the population, with thousands – many of whom were children – starving to death.

The screening and detention program soon transformed into ‘the Pipeline’, a systematic program of screening, detention, torture, slave labour, and execution. Classifications of ‘white’, ‘grey’, and ‘black’ detainees were used to identify the varying extents of colonial cooperation and Mau Mau commitment among those detained. Violence and torture was again methodically used to extract confessions, and Mau Mau suspects were routinely murdered through show trials and the unbearable weight of forced labour and torture. Irrigation projects and other public works were built by slave labour, including (what is now known as) Jomo Kenyatta International Airport, built on the remains of Embakasi, one of the worst of all the 100 concentration camps built around the country. Elkins concludes that around 1.5 million people passed through the system, one way or another.

Where does responsibility lie for the atrocities? This, of course, is in part the subject of the Mutua case. But the legal issues, which we’ll examine below, are one thing, the moral issues another. Even if it could not be proved that the UK government directly caused or sustained the torture and killing, moral responsibility would remain simply in being the wrongful colonial power. If a government occupies a country in total disregard of the rights of its people, and thousands are tortured and killed by those whom the government caused to come to power and continues to support, moral responsibility for that government is assured. Certainly, the responsibility is shared with those doing the torturing and killing on the ground, but that scarcely diminishes the blame to be placed and the compensation to be demanded. Regardless, the case made by Caroline Elkins and the current claimants detail far more than this: that UK government officials directly helped orchestrate and carry out the repression and murder.

Of course, Elkins relies heavily on the oral testimony of witnesses and victims to substantiate her account, and it is on this basis, amongst others, that her work has been criticised. As with all crimes of this kind, there also remains the question of numbers: Elkins believes there to be between 130,000 and 300,000 deaths left unaccounted for by orthodox figure of tens of thousands. It’s not hard to see how her claim could be true, given the disease- and famine-ridden conditions of the camps, the ease at which population could be eliminated, and the sheer numbers of those detained. The means of assessing Elkins’ claims in this area are slim, of course, there being little means of making more precise the quantification independently of the number she extrapolates from censuses taken between 1948 and 1962. At the very least, as Elkins writes, it seems obvious that the very conservative official estimation (11,000) is false. This is all in many ways irrelevant, however: it is first the manner in which the torture and killing was conducted that is most shocking, that it so appallingly mirrors that of the Nazi and Stalinist slave labour and extermination camps to merit the term gulag.

Some claim that there’s a serious moral problem as to the Mau Mau themselves. In its crudest form, it appears simply an incantation of the eliminationist ideology of the 1950s settler population, denigrating the movement as ‘scum’ to be exterminated. With widely known accounts of attacks on the white settler population and non-compliant sectors of the Kikuyu, the Mau Mau doubtless committed horrifying acts of brutality. As with any liberation movement facing total war from its colonial oppressors, horrific brutalities may be accepted as necessary, even normal. We may remember the disgusting, criminal practice of ‘necklacing’ employed in South Africa to execute alleged apartheid collaborators. But, as with popular acceptance of Allied atrocities in the Second World War as regrettable necessities or understandable mistakes in the face of an enemy waging a grossly unjust war, we should be slow to reach conclusions as to the morality of liberation struggle that chronically favour the status quo.

The case has yet to reach a full trial. Instead, the key legal issue to be determined over the next week or so is whether the court can invoke its discretion under s.33 of the Limitation Act 1980 to extend the usual time bar from 3 years. The issue is complex, and requires a number of factors to be considered. This includes whether a fair trial can take place, the effect that the delay (around 60 years) will have on the availability and cogency of the evidence, and the reasons for the delay. Overall, the court has a wide discretion to grant the s.33 extension of the otherwise applicable limitation period, with many issues to be taken into account.

As the charity Redress have stated – they’ll be making submissions as interveners in the case on Thursday –, there is no limitation period in international law for the prosecution of crimes against humanity or war crimes. Of course, this is a civil claim, rather than a criminal prosecution, with none of those who could have faced trial for crimes against humanity alive today. But it is nonetheless highly instructive. As we accept with other massive crimes against humanity – just think of the reparations the German government still pays the victims of the former regime, or the reparations many British or American former prisoners of war demand of the Japanese government –, justice demands reparations. It’s not difficult to reach the conclusion that only in the most extraordinary of circumstances could crimes of this kind go uncompensated.

But the issue of colonial reparations is a complex one, no doubt. I hope to write a related piece on the morality of reparations for colonialism and other crimes which can act as a supplement to this discussion. It may certainly be very difficult to establish contemporaneous and contemporary responsibility for colonial atrocities, alongside determining the amount of money owed. But this case presents an extraordinarily clear case of colonial abuses and their perpetrators.

There also remains the more specific problems the victims have faced during the case. As was heard in court on Tuesday, the victims were not only unable to seek out advice or assistance owing to their severe poverty, but were prohibited on pain of criminal prosecution by the Kenyan authorities from even speaking of their experiences as former Mau Mau suspects until 2003. Jomo Kenyatta, the detainees’ political inspiration throughout the uprising, rejected the Mau Mau as a ‘disease’ on independence. His successor, Danial Arap Moi, shared his views, and the anti-Mau Mau law remained until he left power in 2002. The UK government, moreover, has only recently released of files critical to the prospects of the case. The Hanslope Files – so named after the location of Colonial Office records in Hanslope Park, Buckinghamshire – detail the incriminating, embarrassing files ordered to be destroyed by the government at the dismantling of the Empire, and contain similarly scandalous details kept secret for over 50 years of British atrocities. They nonetheless evidence clear instances of direct complicity (complete with admissions of individual atrocities) for what the then government described as its ‘purge’ in Kenya. As was discussed in court on Tuesday, the lengths to which the government went in erasing all memory of its worst atrocities is astounding, almost laughable: one document stated that “it is permissible, as an alternative to destruction by fire, for documents to be packed in weighted crates and dumped in very deep and current-free water at maximum practicable distance from the coast.”

When or if it finally reaches a full trial, further hurdles remain. In 2011, Mr Justice McCombe was faced with deciding whether the claimants had a reasonable prospect of success, rather than having hopelessly doomed cases whose arguments would be bound to fail were the case to reach a full hearing. This he answered in the affirmative for all but one of the claimants’ arguments, but this says little as to the likelihood of ultimate success.

With the former colonial government in Kenya long dead, one argument the claimants had presented last year was that – on the basis of public international law incorporated supposedly by implication into the common law – its former liabilities devolved or transferred to the UK government on independence in 1963. This, however, was the one argument the judge struck out as having no reasonable prospect of success. Instead, the claimants hope to show that the UK government bears a separate, although related, liability for the actions of the former power. They claim that the UK is a joint wrongdoer with the former colonial government in the commission of tortious assaults against them by virtue of its part in the institution and maintenance of the detention system in which the assaults took place, both on the basis of the involvement of UK military forces and through the UK government’s Colonial Office acting through the former Colonial Administration. Additionally, the claimants argue that the UK government remains liable by virtue of the specific instruction it gave to the colonial administration in its particular treatment of the claimants. It is also argued that the UK government breached a duty of care – in other words, was negligent – in culpably failing to stop the abuses perpetrated by the colonial administration.

As Archbishop Desmond Tutu has recently said, the UK’s reliance on a ‘technicality’ to evade its responsibilities as a former colonial power greatly undermines its much-vaunted status as an international champion of human rights. Similarly anomalous appears the UK’s support to the International Criminal Court regime – currently investigating the human rights abuses that occurred during the Kenyan elections of 2008 – whilst the UK continues to refuse compensation to the four claimants in this case. Whilst on Tuesday the UK government for the first time accepted that the four claimants had been tortured at the hands of the former colonial administration, it says nothing as to how the government views its legal liability for that torture nor offers any statement of regret for that torture. The battle continues.

The government’s legal arguments for avoiding its responsibilities have been, as Archbishop Tutu lamented, technical and predictable. The most interesting such argument was that the actions taken in respect of the emergency period both in London and in Kenya were all under the banner, constitutionally speaking, not of the UK government but the then Colonial Administration. This rested on the recent Quark case in which the denial of fishing licences to individuals on the South Georgia and the South Sandwich Islands – British Overseas Territories – by the then Secretary of State was to be understood as ordered under the authority of the Queen exercising her powers as the sovereign of those Islands rather than as sovereign of the United Kingdom. If the principles could be shown to apply on the facts, this would let the UK government say that the liability for the torture and killing in Kenya in the 1950s – even if the claimants could show that UK ministers had a direct role in its commission – rested solely with the Colonial government. Ultimately, Mr Justice McCombe found that it was at least arguable that, whatever role London had in the atrocities, it would fall under the auspices of the Queen as exercising her sovereignty over the United Kingdom, rather than colonial Kenya. Following Lord Bingham’s approach in Quark, he took the view that the two governmental structures – that of the UK and that of colonial Kenya – were sufficiently divided and independent, with the colonial administration sufficiently free to act as an independent government separable from the sovereignty of the UK. Whatever role the UK government played in the atrocities, the judge ruled that it arguably fell under the authority of the Queen as sovereign of the UK, and not colonial Kenya.

Currently, the government claims that not only is the documentary evidence scattered and incoherent, but that any claims as to the scheme or system behind the orders and letters examined could only rightly be tested in cross-examining those who made them. With those individuals long dead and so a fair trial would be impossible, the government claims the s.33 discretion can’t be invoked. By contrast, the claimants hold that the evidence is both coherent and cogent, to provide a powerful, comprehensive view of the facts at the time, with their case relying on a holistic web of interlinking exchanges and orders rather than any one document or set of documents whose meaning would need a more personal examination. If it gets to a full hearing, the UK government will have to mount more predictable defences to negligence and tortious assault claims, alongside revisiting the constitutional arguments dealt with last year. There remain complex legal issues here which we’d need more time to examine, but what is ultimately at stake is the following: the existence of a systematic practice of detention, confession, and torture for which the UK can be held responsible in having wrongfully procured, sustained, or permitted.

This all leads to speculation as to what will occur if the case gets past the limitation period hurdle. If so, it is not unlikely that the UK government will settle out of court. The Kenyan Human Rights Commission – chiefly responsible for initiating the case –approached it to do so in 2008, but their efforts were comprehensively rejected. It remains difficult to know how successful their case would be at a full hearing, it being so unique and the arguments so novel. But beating it may well be too risky a prospect for the government to even attempt. It may seek to limit the precedent-setting effect of claims of this kind through an out-of-court settlement, with its two years of forceful obstruction standing as a deterrent to future related claimants. This may be unlikely to matter much: actions against the UK government for its atrocities in former colonies such as Malaysia may flood in for their enormous publicity value alone.

And, it would seem, rightly so. As a major producer of key resources such as rubber and minerals such as bauxite and tin, Malaysia was a key colonial prize for the UK, and it extracted its gains through appallingly exploitative labour practices and repression. Communist uprising led to the colonial government declaring emergency rule in 1948, and from then until independence the UK brutally liquidated the rebellion through a program of carpet-bombing, a vicious counterinsurgency campaign (which included chemical warfare), and a resettlement program in which around 500,000 Chinese Malaysians were forced into camps (known as the ‘Brigg’s plan’, after its creator) whose appalling mistreatment by the British fuelled the largely Chinese-led insurgency. Just last year a release of documents revealed previous UK government efforts to block investigation into the Batang Kali massacre of 24 villagers carried out by British forces in 1948, and High Court judgment is awaited as to the legality of successive government refusal to launch an inquiry into the killings. Notably, Caroline Elkins claims at numerous points in her book that the Kenyan atrocities were modelled in part on the counterinsurgency campaign that proved so successful at liquidating uprising in Malaysia.

As the case goes on, prospects for true reparations become weaker and weaker. Some have not implausibly claimed the government’s obstructive behaviour is a response to the claimants’ age: Susan Ngondi tragically passed away without apology last year. With every passing month or year the chance for each to receive the apology and compensation that they have justly demanded appears ever more precarious. The Kenyan government has openly supported the case as a political matter – as you’d expect, achieving justice for the many hundreds of thousands tortured and murdered by colonial powers plays pretty well in the countries of the victims – but financial support has yet to materialise.

Regardless, the case has been extraordinarily important in better publicising our country’s horrific record, however piecemeal and protracted it has been. But our collective amnesia as to the atrocities of Empire remains. In the light of popular condemnation of genocide deniers and the increasing scrutiny placed on the grim histories of other nations, we should be appalled and ashamed that alleged historians such as Max Hastings still find a willing, public market for foul apologetics for fascism and white supremacism. The same justifications for torture and murder are not only accepted but positively demanded: ‘the bloody Mau Mau’, with its ‘savagery’ and ‘terrorism’, come up again and again in Elkins’ book as the justification for our horrific crimes, as they do today. Just as the citizens of former totalitarian regimes have historically taken it upon themselves to decisively break from their history and reform their national self-conception, it is incumbent on us, in the year of the Queen’s diamond jubilee, to do the same.

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