Kenyan survivors of British colonial brutality strike back

The London law firm of Leigh Day, working with six survivors of the extreme brutality used by the british colonial authorities in their attempt to crush the Mau Mau insurgency in Kenya in the 1950s, has now sued the British government for damages in the matter, “based on the tort of negligence”.
(Legal filing: here; press release here; and here is an informative article on the matter from the Guardian in October.)
As I wrote in this recent article about the recent historiography on the anti-Mau Mau campaign, the timing of that campaign, and also of the recent work of compiling and exposing the historical facts about it, are both significant. The British authorities pursued this extremely brutal campaign– in which scores of thousands of suspected Mau Mau sympathizers were killed and hundreds of thousands more dispossessed, mutilated, and/or psychologically scarred for life– some years after the exposure of the atrocities of the Nazi concentration camps in Europe, and also after the adoption by Britain and other members of the “international community” of such foundational documents as the Universal Declaration on Human Rights, the Nuremberg Principles (regarding command responsibility), etc., etc.
These colonial atrocities were carried out, moreover, recently enough that many of the participants in them– from both the perpetrating and the victimized/survivors’ side– are still alive and still medically fit to take part in a legal proceeding.
Personally, I am delighted that some– though still pitiably few– of the atrocious crimes committed during the anti-nationalist “counter-insurgency” campaigns of the “last throes” of the British Empire are finally becoming subject to some form of meaningful accountability. In France, the parallel accountability attempts haven’t gotten very far, and indeed seem to have become entangled in the snares of present-day French anti-Islamism. But still, for some years now the French public has been quite unavoidably aware of the atrocious actions in 1950s Algeria proudly confessed to by former torturer Paul Aussaresses (1 and 2.)
In general, until recently, the agenda of people working in the big, highly funded field of ‘Transitional Justice’ has been very circumscribed, limiting itself to actions undertaken by perpetrators other than the big, European-heritage conglomerates of imperial/colonial rapine who devastated the non-European world for most of the past 350 years.
Where have been the big court cases and other “accountability” projects brought and won regarding British, French, Spanish, German, Portuguese, Dutch, or US imperial depradations in Africa or Asia (or, indeed, the Americas)? Where have been the big “accountability” projects against the European-heritage governments whose still-continuing control of the international financial system has imposed “structural adjustment” on impoverished populations around the world, inflicting the entirely predictable consequences of millions of avoidable deaths and widespread civil strife, while these same rich governments have continued to shovel huge subsidies to “their own” white farmers back home? Nowhere, since ‘Transitional Justice’ has not, by and large, addressed these issues. Instead, it has poured huge resources into pursuing inconclusive criminal prosecutions of a few tinpot African malefactors (acting, generally, in the context of the IMF-induced civil strife mentioned above) along with political losers from the fringes of the “white” world like Saddam Hussein or Slobodan Milosevic.
But now, we have a lawsuit that aims at the heart of one of the imperial beasts in question.
(I am interested to see that the legal claim filed there specifies that one of the elements of evidence it will introduce is the whistleblowing report that British Quaker Eileen Fletcher published in May 1956, after she resigned from work as a so-called “rehabilitation officer” in the British camps in Kenya, and exposed something of the brutality that was being practised there under the (truly Orwellian) guise of “rehabilitation”… And other evidence will draw on information used in questions asked in the British Parliament by my grandmother’s socialist cousin Fenner Brockway– though his name is sadly mis-spelled there on p.3.)
This lawsuit is big. And I hope it will lead to a much broader redirection of the whole field of ‘Transitional Justice.’

6 thoughts on “Kenyan survivors of British colonial brutality strike back”

  1. I’m impressed that you are related to Fenner Brockway. Concerning the spelling of his name, there’s a reference to him somewhere in Ngugi’s novels, I think it is in “Petals of Blood”, making the point of how legendary his name was, and passed from mouth to mount, so that there were many spellings of his name, such as “Fena Brokawi” and so on. I think that should be a source of pride to his family, but not an excuse for people to spell his name wrong in books, of course.

  2. By the way (1) would make that not 350 years (van Riebeeck) but 500-plus (Columbus) or even more (back to Henry the Navigator’s time, at least).
    And by the way (2), this from Gary Younge in today’s Guardian “Comment is free” section:
    “…we risk seeing Bono striding across airport tarmac 10 years hence with political leaders who demand good governance and democratic norms in the Gulf, as though Iraq got here by its own reckless psychosis. Eviscerated of history, context and responsibility, it will stand somewhere between basket case and charity case: like Africa, it will be misunderstood as a sign not of our culpability but of our superiority.”

  3. This lawsuit is big.
    It can be, if it ever proceeds to a judgment on the merits. The trouble with human-rights lawsuits in many common-law countries is that they always get bogged down in procedural questions like locus standi and statute of limitations. I don’t think the former will be a problem for the Mau Mau claimants, but (as the statement of claim implicitly recognizes) the latter will be. I’d expect at least a year of litigation on whether Kenyans really couldn’t talk about Mau Mau grievances until recently, or whether there was some other way to gather evidence before the Elkin book, before the substantive human rights issues are reached (if they ever are).
    This kind of case is best judged by an international court, but that leads to another catch-22: most such courts, including the African Court on Human and Peoples’ Rights, confer standing only on governments rather than individuals. Maybe the claimants could seek relief in the European Court of Human Rights, which allows individual standing and takes a flexible approach to statutes of limitations (see, e.g., preliminary ruling in the Loizidou case). Given that the UK had already ratified the European Convention on Human Rights at the time of the Mau Mau uprising, there should at least be jurisdiction.
    Another possibility might be to file the case in the Kenyan courts. There would be a potential statute of limitations problem there as well, but there’s a general election coming up at the end of 2007, and the claimants could mount political pressure on the courts to hear the case (or on parliament to revive their cause of action). It’s a shame that the plaintiffs would have to engage in such maneuvers simply to be heard, but when the governments in question have a vested interest in keeping the silence, they will do so at all costs.

  4. To what end? If the legal process can hold the political process to ransome in independent Kenya, so that a point can be made against the coloniser, the plaintiffs as a handful of individuals might be tactically advantaged. But then they might as well be paid off by a subscription raised by rich entertainers. In the latter process slightly less damage would be done to the historical movement away from colonialism. The international court, on the other hand, is worse, being a denial of the sovereignty sought and sacrificed for in the struggle for uhuru.

  5. The international court, on the other hand, is worse, being a denial of the sovereignty sought and sacrificed for in the struggle for uhuru.
    Why would this be so, if relief is being sought against the British government? It might arguably be a denial of sovereignty if the claimants sought international judicial relief against their own country, but they are suing the former colonial authority instead.
    I assume, also, that the plaintiffs will seek relief on behalf of all similarly situated torture victims rather than only themselves.

  6. Hi Jonathan,
    I think it is something you either see or you don’t see.
    The idea of a court under judges we didn’t elect, applying laws which we didn’t make, all over our heads, does not square with Uhuru. I know you can’t see it.
    It’s not that we don’t have experience of courts. There is the unforgettable Kapenguria trial of Jomo Kenyatta, Achieng Oneko, Paul Ngei, Bildad Kaggia, Fred Kubai and Kungu Karumba, under the mercenary Judge Thacker. You know about it. You know about Judge Hilary Squires, who put our comrade Schabir Shaik away for 15 years, and the Supreme Court of Appeal which upheld it.
    “Seek ye first the political kingdom” is what Kwame Nkrumah used to say”.
    In terms of our discussion on Namibia, politics is negotiation, but legal process is akin to war.

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