Victims of British Torture in Kenya

Victims of British Torture in Kenya

– Options for justice

“Muingatwo na kihoto dacokaga; muingatwo na njuguma niacokaga”

He who is defeated with unjust force will always come back, he who is dealt with justly will never come back. - Gikugu Proverb

1. Introduction

Leigh, Day & Co represents five Kenyans who were victims of grave acts of torture at the hands of British officials during the Kenya Emergency in the 1950s and 1960s. They are men and women from different Kenyan communities who are representative of the wider community of Kenyans who were detained and tortured during the Kenya Emergency prior to independence (1952-1960). They have each suffered unspeakable acts of brutality, including castrations and severe sexual assaults. The claims are being supported by the Kenya Human Rights Commission (“KHRC”) and the Mau Mau War Veterans’ Association. The Claimants travelled to London in June 2009 to issue the claims and to deliver a letter to the Prime Minister in person.

This note sets out the nature of the claims, the victims’ objectives in launching this legal action and outlines a series of proposals which could lead to the successful resolution of the claims and avoid protracted and expensive litigation. The proposals represent a list of options which could form the basis of a negotiation and possible mediation. However, it is of course the case that any final settlement would have to be approved by the victims themselves.The victims invite the British Government to adopt a creative approach in order to resolve this issue promptly which, it is submitted, would be in the interests of both the British Government and the Kenyan victims.

We emphasise two points at the outset. First, there is no factual debate that systematic torture of Kenyans by British colonial officials during the Kenyan Emergency did take place on a vast scale. This shocking (and hitherto little know) fact has been exposed by recent archival and testimonial research by leading historians from Oxford and Harvard. Second, this is not a historical reparations claim in general terms. The victims are not seeking to make a political point about colonialism. This case is about torture and it is driven by the surviving victims who live withthe consequent injuries to this day and seek recognition of the injustice they have suffered.

2. Proposals in Summary

The proposalsset out in this note would seek to build on the work of the FCO and DFID in Kenya and could be delivered through their existing partners on the ground. The options are not mutually exclusive but are listed in order to stimulate discussion. Anyresolution should seek to meet the ongoing welfare needs of the individual victims and promote greater historical understanding of the pre-independence period in Kenya. In summary the proposals are as follow:

i) A welfare fund - The establishment of a carefully conceived fund designed to meet the health, welfare and housing needs of the now elderly victims. The focus, in particular, would be on victims who have significant physical and psychiatric injuries as a result of the torture they were subjected to.

ii) Transitional justice programmes – The funding of transitional justice programmes to engender reconciliation between communities who fought for the British Colonial Regime and those communities that fought for Kenyan independence. Such programmes could be seen as an extension of existing efforts to promote reconciliation between different Kenyan communities. In addition or alternatively, a justice and democracy fund could be created, dedicated to the promotion of human rights in Kenya

iii) Building historical understanding - For example, the funding of an appropriate revision of history syllabuses taught in Kenya’s schools. Alternatively or in addition, the funding of a museum in Kenya dedicated to the Kenya Emergency.

iv)Community reparations – Development assistance targeted at the communities which were most seriously affected by acts of brutality by the British colonial regime during the Kenya Emergency.

v) Working Group - The establishment of an expert working group in order to determine the precise number of victims, their health and welfare needs and the means of verifying their claims.

These options are proposed as a means of promoting discussion as to the various potential schemes which could be considered to provide some level of justice and redress for the victims we represent. The victims are open to other propositions and ideas and hope to engagewith the British Government in a productive dialoguein order to resolve the issues raised in these historic claims.

3. Background

The claims arise out of allegations of widespread and systematic torture by the British colonial regimein the 1950s and early 1960s during the repression of Kenyan independence movements. In particular, the British colonial regimetargeted an insurgency group which became known as the Mau Mau. The historical background to the claims is set out in brief in Annex 1 to this note. In essence, many of those who were detained during the Kenya Emergency were subjected to unspeakable acts of brutality at the hands of British Colonial Officials including arbitrary killings, castrations, sexual abuses and the systematic use of extreme violence.

The brutality and the scale of the abuses which occurred were dramatic by any standard. Professor Caroline Elkins, Chair of African Studies at Harvard, has written extensively on the Kenya Emergency and on the day the claims were issued, on 23 June 2009, she wrote in The Times:

“It was the second-prong of Britain’s offensive aimed at African civilians that was by far the largest, most violent and longest in duration. Targeted against some 1.5 million Kikuyu who were allegedly Mau Mau sympathisers, Britain’s civilian campaign grew in its intensity, systematising and brutality over time. By the end of 1955, colonial authorities had detained nearly the entire Kikuyu population in either one of some 150 detention camps – known as the Pipeline – or in one of more than 800 barbed-wired villages.

Behind the wire, British agents perpetrated unspeakable acts of violence against men, women, and children. Castrations, forced sodomies with broken bottles and vermin, tortures using fecal matter and gang rapes were but some of the tactics used to force detainees to comply.”

Clearly, the Mau Mau themselves used brutal tactics. However, it is important to note that many of those tortured were not in fact members of the Mau Mau movement or only played a minor supporting role. Of the five Claimants who have issued the test case; one spent nine years in detention but had never joined the Mau Mau, three of the Claimants had only supplied food to the Mau Mau and one had surrendered in response to an amnesty when he was detained. A summary of the five individual cases is set out in Annex 2 to this note. In any event, it is trite to state that during the Kenya Emergency the torture of any prisoner was contrary to international humanitarian law and the international human rights treaties which Britain had been instrumental in drafting.[1]

Authorisation of Torture by the British Government

The fact that Britain had to contend with a difficult and complex security situation in Kenya in the run up to independence is not in dispute. The complaint is that the use of violence against Kenyan detainees was widespread and systematic and was authorised at the highest levels of the British Government both in Kenya and in the United Kingdom.

Recent historical research on the Kenya Emergency has been of critical importance in exposing the degree to which the use of torture was authorised. In particular, you are referred to the research of Prof. Caroline Elkins, Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya [Henry Holt/Jonathan Cape, 2005]. You are also referred to the research of Prof. David Anderson, Director of the African Studies Centre at Oxford University and author of Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire [Weidenfeld & Nicolson, 2005]. Although there is some academic debate as to the precise numbers of Kenyans who were detained and tortured, there is no doubt that British officials used systematic violence in the camps. Evidence exists in the form of the witness evidence of those who lived through the events (both Kenyans and British settlers) and also in the form of public records and court records which have been obtained from London and Nairobi. In particular, the correspondence and memos between the then Colonial Secretary, Alan Lennox-Boyd, and the Governor of Kenya, Sir Evelyn Baring,demonstrate that the use of systematic violence was authorised. Prof. Elkins wrote in The Times on 23 June 2009:

“The years I spent trolling through documents in British and Kenyan archives revealed a story of Britain’s routine violation of international law in Kenya, and consistent efforts at cover-up, all with the knowledge of top officials in Nairobi and London.”

This is echoed by Prof. Anderson who wrote in The Times on the same day:

“There can be no doubt that torture was used by British forces in the counter-insurgency mounted against the Mau Mau rebels between 1952 and 1960. British tactics were excessive, heavy-handed and frequently brutal. There is plenty of documentary evidence to support this, including accounts of interrogation centres and other illegal forms of detention. Even the records of Britain’s own High Court of East Africa contain judgments that torture was used…… An apology should be issued to Kenya, and if it was to be given with a pledge of development assistance, then this might help to lay the ghosts of the past. This should happen, but is it likely? It would imply an admission that torture had taken place under British rule in Kenya. We are making fools of ourselves by denying this. It is time to face up.”

Historians agree that the gravity and scale of the state sponsored brutality of this period stands out as being exceptional in British colonial history. It is also noteworthy that Parliament was instrumental in ending the use of systematic violence in Kenya. In particular, the political interventions of Barbara Castle and Enoch Powell were critical in raising the issue in the public arena. Two full parliamentary debates were held in June and July 1959, which led to the Fairn Report which was published on 1 September 1959 and which highlighted the use of systematic violence in the emergency detention camps and recommended that it should cease forthwith.

4. Objectives of the Claim

The Emergency period tore a generation of Kenyans apart. In Kenya today there are increasing attempts to bring truth and reconciliation between families of Mau Mau and “loyalist” Kenyans. The Kenyan Government lifted the ban on the Mau Mau movement in 2003 and Kenya is now facing its past. In our clients’ view it is high time for Britain to do the same.

The sense of injustice is deeply felt in all parts of Kenya. First and foremost, the victims would like this historic wrong to be acknowledged by the British Government. They are of the view that unless this happens, the sense of injustice arising out of Britain’s brutal response to the independence movement will continue to be deeply felt among all Kenyans for generations to come.To repeat, they do not seek to make a point about colonialism or politics, the sole issue is the use of systematic torture and the devastating impact that policy had on their lives.

The victims’ associations have carefully considered the most effective way of bringing their grievances to the attention of the British Government. They have chosen to issue compensation claims as the only way of effectively raising the issue politically and with a view to entering into a dialogue with the British Government. Importantly, we wish to make it clear that the victims are amenable to a creative approach to resolving their grievances. Indeed, it is hoped that a creative solution would enable justice and reconciliation to emerge in a wider sense than would be achievable through the courts.

We are yet to receive detailed instructions from our clients as to the precise proposals they wish to put forward, however, they support the principle of seeking community reparations as opposed to individual damages. The proposals listed below do not represent an exhaustive list of potential solutions, rather, they are designed to engender a constructive dialogue with the British Government.

5. Proposals

i) A Welfare Fund

The victims are all now elderly and are mostly in their 70s and 80s. Many of these elderly Kenyans are from poor rural communities and they struggle to live with the handicaps and injuries they sustained as a result of torture. In many cases the effects of their injuries have become aggravated in old age and this has often affected their capacity to work and to make provision for their families. In fact, those who were castrated do not have families of their own to care for them. Most victims live in poverty and simply do not have the means to pay for necessary medical treatment.

Prof Caroline Elkins wrote in her study of the British detention camps:

“There is no record of how many people died as a result of torture, hard labour, sexual abuse, malnutrition, and starvation. We can make an informed evaluation of the official statistic of eleven thousand Mau Mau killed by reviewing the historical evidence we know…The impact of the detention camps and villages goes well beyond statistics. Hundreds of thousands of men and women have quietly lived with the damage – physical, psychological, and economic – that was inflicted upon them during the Mau Mau war.”[2]

The vast majority of the victims are now dead and the survivors now number a few thousand. However, we propose that a carefully conceived welfare fund be created with the purpose of providing for the essential medical and welfare needs of the surviving victims. This fund could be administered through DFID’s existing partners and local agencies who are already operational in the areas of Kenya concerned.

In addition, many of the victims have on-going psychiatric injuries as a result of the torture they endured. Thought could also be given to funding specialist therapeutic and psychiatric treatment for the victims which would build on the work of existing national and international organisations who work in the field of torture. FCO funded organisations already provide services to torture victims. For example, the Independent Medico-Legal Unit (IMLU)[3] has developed the capacity to rehabilitate torture victims in Kenya through the provision of medical and psychological treatment. In our submission, it would be appropriate to extend the provision of these services to those who were themselves tortured at the hands of British colonial officials.

It will be important to develop a robust mechanism for objectively verifying the authenticity of any claim. As a starting point, the Kenya Human Rights Commission is collating a detailed register of surviving victims and is working closely with various victim associations of Kenya. In the first instance, all claimants would have to demonstrate long standing membership of victim organisations and would have to be assessed by independent case workers, doctors and psychiatrists. The precise details of the scheme would have to be worked out by the proposed working group of experts. [See below]

ii) Transitional Justice

The Kenya Emergency sharply divided those tribes and communities which were loyal to the British Colonial Regime and those who opposed it. Atrocities were committed on both sides of the conflict. For example, the Lari Massacres in 1953,in which hundreds of Kenyans died, started with the killing of members of the loyalist community which resulted in reprisals on those suspected of Mau Mau sympathies. For every person killed in the first massacre at least two or more were killed in retaliation in the second.[4] To this day the Lari community and hundreds of others around Kenya remain bitterly divided between former loyalists and former Mau Mau sympathisers.

Britain has taken global leadership on issues of transitional justice, in particular in the African context, and it would be to the Government’s considerable credit if it sought to apply the same principles to the injustices perpetrated by Britain during the Kenya Emergency. Indeed, we understand that the Foreign Office is already funding transitional justice projects in Kenya’s Rift Valleythrough the African Conflict Prevention Pool. Logically, any transitional justice programme should be seen as part of the attempts to address Kenya’s current challenges in the run up to the next general election. Potentially, the International Centre for Transitional Justice could assist in designing a scheme which is acceptable to all sides.

In addition or alternatively, a justice and democracy fund could be created, dedicated to the promotion of human rights in Kenya. A similar fund has been created by Belgium in February 2002 to promote Congolese democracy in recognition of the role Belgium played in the assassination of Congo’s first prime minister, Patrice Lumumba.