Few Kenyans have been following this case. Yet, once it is determined, it might mark the closure of a chapter in Kenya’s independence struggle.
At the moment, the compensation lawsuit in which Mau Mau survivors have sued the British Foreign Office has been bogged down by technicalities at a London High Court — making it one of the most difficult cases to manoeuvre, and for a reason.
The UK government has been resisting a larger class action suit because if it loses the case, the compensation could run into millions of pounds.
The Mau Mau survivors numbering 40,000 are seeking compensation for torture, rape, wrongful detention and forced labour and allege that they were mistreated by British officials during the fight for independence starting 1952.
Interestingly, the case has been filed by, among others, Mukami Kimathi, widow of freedom fighter Dedan Kimathi, and the claims are pegged on the success of another Mau Mau compensation case in which UK paid out £19.9m in costs and compensation to more than 5,228 Kenyans who suffered torture and abuse during the Mau Mau uprising.
When the UK government agreed to pay this money, the then foreign secretary, William Hague, told the House of Commons that the payment was the “full and final settlement” of a high court case.
He fell short of apologising for colonial atrocities when he said that “the British government recognises that Kenyans were subjected to torture and other forms of ill-treatment at the hands of the colonial administration... and sincerely regrets that these abuses took place.”
But many freedom fighters were left out of the 2013 compensation and others complained that some “home guards” sneaked their names into the compensation list compiled by Kenya Human Rights Commission, which had been asked to identify the victims. They had told the court that they were detained without trial and that some of them were jailed because of their tribe connection rather than actively participating in the war in the forest.
The ongoing case, which is hardly getting any media attention, is different from the first Mau compensation claim which was filed on June 23, 2009 by Mr Martin Day of British law firm Leigh Day on behalf of five victims who had been detained and tortured by the colonial administration during the Emergency period. Martin Day’s case tested whether Kenyans would ever get redress over the atrocities committed during the colonial period and when UK agreed to an out-of-court settlement; it opened a Pandora’s box.
Martin was a familiar figure in Nairobi. He had in 2002 managed to turn some 228 Samburu herders into overnight millionaires after the British Ministry of Defence agreed to fork out Sh540 million (£4.5m) as compensation and legal costs to pastoralists bereaved or injured by British army explosives left lying around after exercises in Archer’s Post and Dol Dol. (How the pastoralists used this fortune is another story).
Rather than have the case litigated in an open court, the MoD agreed to settle the case through mediation after it lost a legal battle to have the case transferred to Kenya.
Martin had also tried to seek compensation for victims allegedly raped by British soldiers in Dol Dol area in Laikipia, Isiolo and Marsabit counties, Archer’s Post, Wamba and Maralal areas in Samburu. But this case was withdrawn in 2011 after the Kenyan police failed to provide historical evidence on claimant’s reports.
Back to the initial Mau Mau cases, the British tried to thwart its progress, knowing very well that most documents on Mau Mau were hidden somewhere in a secret strong room in Hanslope Park, southern England.
The Jomo Kenyatta government had in 1967 asked for the migrated files, but the British government of Harold Wilson said the papers were the property of HMG. It is now said that the decision not to return the files was based on a “thin end-of-wedge argument: If we return some files, we shall draw attention to the existence of others” and the fear of setting “a dangerous precedent”. The fear was that if they sent the Kenyan files, it would be difficult for UK to stop former colonies from making similar demands on sensitive papers.
The reason why these files were hidden, according to a May 3, 1961 Colonial Office guidance telegram, was that they “might embarrass HMG (Her Majesty’s Government), members of police, military forces, public servants and police informers.” It was also thought that “they might compromise sources of intelligence information” or “might be used unethically by ministers in the successor (Kenyatta) government.”
The telegram also said that “there would be little object in handing over documents which would patently be of no value to the successor government.”
But beneath this pile of documents was hidden a note from Kenya’s colonial attorney general, Eric Griffith-Jones, who admitted that mistreatment of detainees was “distressingly reminiscent of conditions in Nazi Germany or communist Russia.” He had, meanwhile, agreed to draft new legislation sanctioning beatings of detainees during his tenure as long as it was kept secret. “If we are going to sin, we must sin quietly,” he wrote.
But generally, the fear was that the documents could later be used in a civil suit against HMG. When the suits came recently, London started to stage a political fight.
At first, HMG argued that it was the Kenyan government which was liable for Mau Mau atrocities and not the British. This line of argument was dismissed on July 2011. It was not until October 2012 when the claimants scored their second victory when the High Court in London rejected the UK government’s position that the claims were time barred.
Having lost this case, the UK government opted for mediation in which 5,228 survivors were identified for payment and a controversial memorial monument unveiled in Nairobi. Although the then UK High Commissioner Christian Turner said that “the memorial stands as a symbol of reconciliation between the British government, the Mau Mau, and all those who suffered during the emergency period,” a new suit was lodged by UK law firm Tandem AVH in the High Court in London on behalf of additional claimants.
The monument was disowned by Mau Mau War Veterans Association whose officials said it did not accurately portray the history or the sacrifices made in the struggle for independence. Association Secretary General Mwai Muthigi said “It (was) very disappointing to hear that the monument is to commemorate the independence struggle yet the message being portrayed has nothing to do with the heroes and heroines of the Mau Mau movement.”
“Kenyans must write their own history correctly and we protest the fact that British High Commissioner Christian Turner was there during the unveiling. (This is) not about his nation, it was about our country’s heroes,” said association chairman Elijah Kinyua, popularly known as General Bahati, in an interview with a local media.
It is this group that has been to London arguing that they were left out by the Kenya Human Rights Commission which compiled the compensation list.
During the freedom struggle, the British singled out Kikuyu, Embu, and Meru tribes as the drivers of political violence on white settlers and collaborators and incarcerated tens of thousands in detention camps. What happened in these camps is now captured in Caroline Elkin’s book The British Gulag and in David Anderson’s Histories of the Hanged.
For Mau Mau victims, trying to open these cases had turned problematic for lack of official documents that could incriminate the UK government for having organised violence on a section of the populace.
MAU MAU DOCUMENTS
The turning point came after Prof Anderson, who was a witness in the first case, came across some papers in the British archives which referred to a secret archive of Mau Mau documents that had been shipped from Kenya just before independence.
This led to a search which finally discovered the hitherto unseen files in 2011. For the first time, the victims had access to documents which detailed the systemic torture of detainees during the Emergency, and the knowledge of those abuses by British Government officials in London and Nairobi.
It is this wealth of documents that are now before the High Court and which could determine how the Mau Mau compensation case moves from here.
Last week, Justice Stewart, who has been hearing the 27 test claims to assess the range of allegations made by the entire group, said the Mau Mau witnesses had 6,500 documents while the UK government was still preparing the presentation of documents on which it was to rely on to support its own case.
After hearing several of the witnesses and their amendments to the suit, Justice Stewart allowed several of them and knocked out others, giving way for the case to proceed to the next level.
One woman is to tell the court that she was forced to dig a deep trench that was about 8 feet deep to surround a village and that work at the trench started at about 8am and finished at about 5pm. Another claimant, Njau Munyoike, will tell the court how he was arrested and beaten up by two home guards for allegedly taking the Mau Mau oath.
He was not charged or taken through any court process but was forcibly marched to Githunguri Camp. He was beaten severely on the way and at the camp.
Justice Stewart said last week that he hopes he will finally make a ruling on this case by next year, which might lead to closure of one of the most bitter struggles for Kenya’s independence.
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