An attempt to twist posterity and the archival record for future generations has been exposed as a consequence of a British court ruling in a case by Kenyan freedom fighters
On 5 October 2012 in London, lawyer Martyn Day walked out the front door of London’s High Court to greet a throng of ravenous reporters gathered outside. He was there to tell them what they were hungry to hear—that the British Empire is now on trial. Earlier that day, the court ruled that three elderly Kenyans who were tortured and abused by British colonial officers in the 1950s can move forward with their claims against the British government. In dismissing the objections of the UK Foreign and Commonwealth Office (FCO) that today’s Britain is not to blame for the wrongs of its colonial forebears and that too much time has elapsed for a fair trial, the High Court removed the claimants’ last barrier. The case can now go to trial. For the first time, colonial victims can sue the British state.
‘This is an historic judgment that will reverberate around the world,’ Day said, in what felt like a muted call to arms. ‘There will undoubtedly be victims of colonial torture from Malaya to Yemen, from Cyprus to Palestine, who will be reading this judgment with great care.’ Already in London, the Kenya case has exposed a deliciously dramatic, if damning, tale of missing archives, clandestine purge operations, and high-level state cover-ups.
In Nairobi, the trial’s three plaintiffs had gathered with supporters at the Kenya Human Rights Commission. Sitting quietly together, the three octogenarians, none of whom speak English, were a crude testimony to the violence that marked 1950s Kenya. Wambugu Wa Nyingi, Jane Muthoni Mara, and Paulo Muoka Nzili are exhibits of beating, rape, and castration respectively. Sixty years later, the Kenyan plaintiffs are asking for financial compensation and an official apology. When the call arrived, bearing good news from London, members of the crowd rose to dance in slow, joyous shuffles and sing nostalgic ballads from the days of Kenya’s independence struggles.
History is on trial, say the headlines. But, for its part, modern-day Britain does not dispute the basic chronology of events, nor the fact that ‘each of the claimants suffered torture and other ill-treatment at the hands of the colonial administration.’ What Britain does deny is legal liability for that abuse—and, implicitly, for other abuses committed in its old colonial realm.
The FCO moved to reverse the High Court’s decision, but on 26 October, its request for leave to appeal was denied. Imperial Britain will indeed face the harsh scrutiny of contemporary justice. Now, the FCO must proceed prudently. How British officials handle this case will affect their legal liability for other long-ago wrongs in far-away colonial lands and could serve as a precedent for other former imperial powers.
This has been a long time coming. After World War II, a generous handful of German leaders were brought to Nuremberg to legally atone for their wartime crimes. Financial penance followed, and the first major reparations deal between Germany and Israel was signed in 1952. Former colonial states have largely escaped such scrutiny—though that is changing.
The last decade has witnessed a new trickle of judicial claims by former colonial subjects and their descendants—for one-off massacres or counter-insurgencies gone violently awry. In rare cases, financial reparations have followed. In 2011, the Dutch government was ordered to compensate those affected by the 1947 Rawagede massacre in Indonesia. More often, though still rarely, the result is an apology—stiff-lipped or effusive, but with no dollars attached. Germany said sorry to Namibia in 2004 as did Japan to South Korea in 2010. A successful outcome in the Kenya case could inspire new legal scrutiny—not just of the British Empire but of empires writ large. There are undoubtedly shadow plaintiffs poised to emerge from the dark corners of history—surviving victims of assorted colonial atrocities across Africa, South America, Asia, and the Middle East.
A week after his courtroom appearance, Martyn Day, lawyer for the Kenyan claimants, is relaxing in his sparse central London office. ‘You know, we [Brits] hold ourselves out as being pretty good, fair, decent, honest sorts of people,’ he says. ‘We look at the Germans and the Japanese and other people who have done really terrible things. We hold ourselves out to be rather different. But actually, one recognizes through cases like this that we have sides to our character that are … not quite as bad, but pretty bad. It’s important that we understand that.’
EDITOR'S NOTE: Read the rest of the article in the World Policy Journal's Winter Issue,.