On Thursday the British High Court will hear claims of torture and brutality perpetrated by British staff on Kenyan Mau Mau rebels in the 1950s. 

By Richard Walker

The case was first brought to court by victims two years ago, when the British government argued that it had no jurisdiction to hear the case. The court disagreed. Now the UK Foreign Office contends there is no case to answer because it has no liability.

Unethical, immoral and… ridiculous
The UK government argues, “in passing sovereignty to the Kenyan government in December 1963, it passed on all responsibility for any outstanding legal cases,” according to Oxford University’s David Anderson, who’s been helping prepare the case for the Mau Mau claimants.

This means that the British view is that the Kenyan government is liable and it is up to the Kenyan courts to deal with such cases.  The British government argues that in signing the Kenyan declaration of independence in 1963 it extricated itself from any actions that took place under its rule.

“Believe me that is the position they have taken. It seems to me just a completely unethical, immoral and frankly ridiculous stance”, says David Anderson.

“The new evidence that’s come to light includes material that was specifically set to one side by the British government in 1963 because it was believed to be particularly sensitive. So I can only imagine that this new evidence we are about to hear in court is likely to be more condemning than anything we’ve seen so far”. 

Atrocities
Some evidence of atrocities has long been in the public domain.  According to one respected history of the conflict the following is an account by one British officer describing his actions after capturing three Mau Mau:

“I stuck my revolver right in his grinning mouth and I said something, I don’t remember what, and I pulled the trigger. His brains went all over the side of the police station. The other two Mickeys [Mau Mau] were standing there looking blank. I said to them that if they didn’t tell me where to find the rest of the gang I’d kill them too. They didn’t say a word so I shot them both. One wasn’t dead so I shot him in the ear. When the sub-inspector drove up, I told him that the Mickeys tried to escape. He didn’t believe me but all he said was 'bury them and see the wall is cleared up.”

From cover-up to cock-up
David Anderson sees no room for doubting that evidence was deliberately hidden by the British, and then forgotten about: “I’m certain that when Britain left Kenya in 1963 there was a purposeful cover up of these materials… since then the Foreign Office lost track of it… I think we have a 1963 cover-up and then a later cock-up.”

Fear of litigation floodgates
The fear that the British government could be overwhelmed by prosecutions if it admitted liability for atrocities in Kenya is unfounded according to the lawyers representing the four Mau Mau claimants in London this week.

They say they are not asking the court for full damages. They say they are asking for an acknowledgment and a financial “gesture”.

They point to the precedent set by Germany in 2004 when it apologized to the people of Namibia for the Herero genocide under its colonial rule. Berlin gave a gift in the form of a trust fund for the Namibian people.

David Anderson argues that “acknowledgement in this case is… more important than any sums of money you might calculate”.