© THE NATURE OF THE MAU MAU CLAIM
The Kenya Land and Freedom Army (Mau Mau) claim relates to torture and the cruel and degrading treatment of detainees perpetrated by the Kenyan colonial government during the state of emergency (1952–60). It is a tortious claim based on negligence and will be instituted in the British High Court. The claimants are seeking compensation for personal injuries sustained while in detention camps of the Kenya Colonial Government which operated under the authority of Her Majesty’s Government (HMG). The proposed claims are based on the tort of negligence. It is alleged that HMG is liable not only because of actions of the Kenyan colonial government, but also for its failure to take any or adequate steps to prevent the widespread use of torture that it knew was being perpetrated in its name.
The campaign’s objectives are as follows:
- Institute proceedings against the HMG in the British High Court with a view to achieve a ruling compelling HMG to pay reparations to Mau Mau torture survivors
- Build local and global awareness on the Mau Mau claim for reparations
- Energise ongoing efforts for recognition of Kenyan heroes and heroines
- Implant the tools for comprehensive transitional justice in Kenya.
VISION OF THE KENYA HUMAN RIGHTS COMMISSION (KHRC)
The Kenya Human Rights Commission (KHRC) will this year file a representative suit in the British High Court on behalf of the survivors of the Mau Mau struggle, seeking reparations from HMG for atrocities committed against the Mau Mau during the state of emergency period (1952–60).
The Mau Mau, an indigenous anti-colonial movement, struggled valiantly for Kenya’s independence, won from the British in 1963. The armed struggle raised the cost of colonisation, forcing the British to hand over power to Africans. During the armed struggle, atrocities were inflicted on the Mau Mau and the African communities that supported them. These atrocities have been well-documented by historians. Routine preventive detention, systematic denial of due process guarantees, summary killings, torture, beatings, rape, forced labour, destruction of property, forced evictions, villageisation, and other forms of pillage defined British policy against the Mau Mau during the emergency. It is estimated that perhaps 160,000 Kenyans passed through the ’moral rearmament’ corrective program (or ‘The Pipeline’), in order to renounce the Mau Mau oath, which was the stated justification of preventive detention.
The extent to which thousands upon thousands of Africans were killed, maimed or displaced during the emergency has only come to be appreciated in recent years. Despite the scale and severity of these atrocities, the British and successive African governments in Kenya, including the present government, have refused to either acknowledge these barbaric abuses or provide relief to the survivors. In fact, there has been a conspiracy of silence between the British and various Kenyan governments. Today, national amnesia threatens to bury the history of one of Africa’s most brilliant anti-colonial struggles.
The KHRC believes that the legacy of the Mau Mau is inextricably linked to the reform of the Kenyan state. In particular, the KHRC believes that the Mau Mau Reparations and Recognition Campaign will play a key role in addressing the long standing problems of impunity for past abuses, developing a basis for implanting the tools and instruments of transitional justice in Kenya, and buoying the efforts to litigate against the atrocities committed in the name of colonialism. It is not credible, nor is it defensible, to argue that the post-colonial Kenyan state can be reformed without a proper accounting for colonial atrocities, the most poignant of which involved the Mau Mau. Even the task force on a Truth, Justice and Reconciliation Commission (TJRC) for Kenya, led by KHRC Chair Professor Makau Mutua recommended that a special investigation be conducted to establish culpability for abuses committed in the colonial period.
As a part of its transitional justice programme – looking into and seeking justice for past abuses –the KHRC established the Mau Mau Reparations and Recognition Campaign. It is clear to the KHRC that the recovery of the memory and honour of the Mau Mau would have enormous implications for human rights, social justice and democracy in Kenya and Africa as a whole. What is more, the Mau Mau reparations case provides an opportunity to broaden the debate on reparations for slavery and colonialism in general. This is critical at a time in which the West is focused on debt reduction and forgiveness, as though these cleanse the atrocities committed in Africa through slavery, colonialism and the Cold War.
The KHRC’s position is that reparations are due to Africa for these ills, and should not be viewed as charitable donations out of the kindness of the West. Reparations cannot be traded off for debt reduction or cancellation.
IMPORTANT CAMPAIGN MILESTONES
Objective 1: Institute proceedings in the British High Court with a view to achieving a ruling compelling HMG to pay reparations to Mau Mau torture survivors
On 4 October 2006, the KHRC and its United Kingdom-based legal team, Leigh Day & Co solicitors, submitted a letter of claim to Margaret Beckett, the British foreign secretary, formally presenting their intention to sue HMG for the torture it inflicted upon the Mau Mau. The letter, which outlined some of the evidence gathered so far, also requested that HMG accept responsibility for those atrocities. Subsequently, on 2 April 2007, HMG’s solicitors responded to the letter and stated that should proceedings be issued in court, and that it would defend itself against the claims on the grounds of (a) British limitation laws and (b) laws of state succession and related case law on who is the appropriate defendant. The nature of the response, and previous statements by the British High Commission in Nairobi, indicate that HMG will ‘defend itself vigorously’ in the matter of the Mau Mau claim.
Objective 2: Build local and global awareness on the Mau Mau claim for reparations
In June 2007, the KHRC sent a team of three human rights experts to the UK where they spent a week cultivating contacts in the British media and making logistical arrangements with the support of Kenyans and human rights organisations for the implementation of a programme of events originally planned for the Suit Filing Week in February 2008. In the UK, the KHRC has the support of Fahamu, the International Federation for Human Rights (FIDH), the Kenya Community Abroad (KCA) and Mobilization for Economic Growth (MEGA)-UK chapter among others.
In May 2006, the KHRC embarked on a campaign to directly influence opinion makers in both Kenya and the UK to bring pressure to bear on HMG to accept responsibility for the obvious atrocities it inflicted upon Kenyans during the state of emergency. Most of local media institutions were supportive and have partnered with the KHRC to bring the desired publicity to the suit. Some of the international media institutions that have reported on the campaign specifically, and the Mau Mau generally, include but are not limited to Associated Press, The Guardian, The Times, the Daily Telegraph, the British Broadcasting Corporation, Al Jazeera, British Sky Broadcasting and Reuters.
Objective 3: Energise ongoing efforts for recognition of Kenyan heroes
No law has been enacted or issued officially proclaiming any Kenyan figure as a national hero. But owing to their significant roles in the process of nation-building and contributions to history, there needs to be laws enacted and proclamations issued honouring these heroes and heroines. Towards this end, the KHRC continues to play an instrumental role in the work of the Task Force on National Heroes/Heroines, which is situated in the Ministry of National Heritage (office of the vice president) as well as the national museums of Kenya’s National Exhibition on Kenya’s Struggle for Independence Project.
Objective 4: Implant the tools for comprehensive transitional justice in Kenya
The KHRC has consistently maintained that the only way to address the atrocities by post-colonial Kenyan governments lies in looking into Kenya’s painful colonial history. The KHRC is aware that many of the problems in the post-colonial Kenyan state – impunity for public officials, despotism by government, atrocities by the police and security officials, the culture of corruption, landlessness, and steep gender inequities – are either a legacy of colonialism, or were exacerbated by it.
These problems were not confined to any one region or community or even one country. Indeed, a successful investigation and accounting of the Mau Mau question in addition to the atrocities of former European colonial powers would start the process of national healing and help consolidate quest for democratisation in Africa. Consequently, the KHRC is organising the Conference on Reparations for Colonial Injustices against African People, which will bring together historians, activists and media practitioners to share ideas on this complex issue.
THE ENVISIONED LEGAL PROCESS
Issue of proceedings: HMG is required to respond to the proceedings instituted as soon as these are issued. There are two possibilities for HMG, which would form part of the preliminary phase of any eventual, full hearing:
a) It may formally apply to the British High Court to file a defence based on existing limitation laws in Britain, or;
b) It may formally apply to the courts to file a defence based on the laws of state succession, namely, that the post-independence Kenyan state inherited the liabilities of the British colonial state and, therefore argue that the post-independence Kenyan State, and not HMG, should be held to account for colonial-era atrocities.
Preliminary hearings: Should the first option apply, the court may set a date for a preliminary hearing a few months from the time of issuing of proceedings. Some questions that may arise are:
- How will this hearing be conducted?
- Will the court require evidence from both sides at this stage?
- What kind of evidence will this be? Would expert witnesses appear at this stage?
Based on the court’s assessment of what is brought before it during the preliminary hearings, there could be two results:
1) The court may find that the matter came before the courts after a very long period of time and it would be prejudicial to HMG to defend itself, or;
2) The evidence may be so compelling as to cause the court to lift the limitation law and allow the case to come to trial some months after the preliminary phase.
Trial phase: It is instructive that if the court takes the second decision, it would effectively be declaring that the suit does indeed have merit. However, either side would have the right to appeal the High Court’s decision in the British Court of Appeal, should they be dissatisfied with the court’s decision about whether or not the case goes to trial.
ELOISE MUKAMI DEDAN KIMATHI AS THE LEADER OF MAU MAU DELEGATION TO BRITAIN
‘It is better to die on our feet that to live on our knees’
On 18 February 1957, having been charged and convicted as a terrorist, Mau Mau Field Marshall Dedan Kimathi was hanged, his remains buried in an unmarked grave, possibly at the Kamiti maximum prison near Nairobi. To this day, his remains are unaccounted for, though it is highly probable that HMG, which executed him and certainly disposed of his remains, is in possession of information that may enable their discovery. It is believed that HMG was attempting to avoid a situation in which Kimathi’s burial site would be turned into a shrine for the Mau Mau and Kenyans, hence the secrecy with which his execution and burial were carried out.
For almost 50 years now, the family of the late Kimathi and Kenyans have been denied the right to honour him by giving him a decent state burial, which he and they deserve. Though living in a condition of destitution, Mukami Kimathi, his widow, has worked tirelessly to support the cause of the Mau Mau for recognition while being involved in activism aimed at compelling the Kenyan and British authorities to disclose information about the whereabouts of Dedan Kimathi’s remains. Consequently, the KHRC has invited Kimathi and a member of her family to lead the Mau Mau delegation in London.
Between 2001 and 2003, the family of the late Kimathi and the Kimathi Movement held a series of meetings with political leaders and bureaucrats at the home, health and justice and constitutional affairs ministries seeking their intervention in the matter of the hero’s remains. However, these officials did not act, compelling the Kimathi Movement to approach the Nairobi-based British High Commission, which was equally unhelpful. Undeterred, the family of the late Kimathi and the Kimathi Movement continued to popularise its goals by celebrating Kimathi’s life and struggles each year on the anniversary of his execution, 18 February. While the Kimathi Movement no longer exists, the KHRC remains committed to carrying out the noble initiative and will support Kimathi’s goal to follow up the matter directly with the head of state of the United Kingdom, Queen Elizabeth II.
PRINCIPAL PARTNERS IN THE CAMPAIGN
- The Mau Mau War Veterans’ Association (MMWVA) – the only officially registered Mau Mau advocacy group with the political clout, drive and capacity to pursue such a complex legal-political and historical affair such as the reparations suit and heroes’ recognition agenda
- Kenya Oral History Centre – offers expert advice on the history of the colonial government in Kenya and for making contacts with Mau Mau
- Awaaz – Kenya south Asians history magazine
- Paul Muite & Co advocates – lead counsel for Mau Mau reparations suit and link institution to Human Rights Matrix Chambers
- Mbugua Mureithi & Co advocates – offers expert advice on evidentiary matters such as development of claimants’ statements
- KCA-UK – a North America-based Kenyan diaspora umbrella group
- Fahamu – UK-based human rights organisation assisting with publicity and networking with progressive individuals and institutions
- Caroline Elkins, Faculty of African Studies, Harvard University – Mau Mau historian and advisor on colonial history, Kenyan heroes and reparations
- David Anderson, Oxford University – Mau Mau historian and advisor on colonial history, Kenyan heroes and reparations
- Leigh Day & Co advocates – lead counsel for Mau Mau reparations suit and link institutions to Human Rights Matrix Chambers.
* Kenya Human Rights Commission (KHRC) is based in Nairobi. For more information about the Mau Mau reparations campaign, please contact .
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/.