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Mau Mau case set for full trial

COUNTIES
By Joseph Ngugi | October 5th 2012

 

By Joseph Ngugi in London

 

The Mau Mau victims of colonial torture have finally won a right to full trial in a test case against the British government on evils committed by its agents during the colonialism in Kenya

 

In an historic judgment, the High Court today rejected the British Government’s attempt to strike out the claims of three Kenyan victims of British Colonial torture on the grounds that the claims were time barred.

 

The judgment means the British Government will now have to face potentially thousands of claims from Kenyans who suffered similar torture and possible billions of shillings in award damages, or out of court settlement if the victims win the case, or the matter was settled out of court.

 

The Judge, Mr Justice McCombe ruled that “a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the Court to complete its task satisfactorily”

The Judge also made reference to the ‘Hanslope archive’ of secret documents, stating that the ‘lost’ archive of some 8,800 files ‘filled in the gaps’ in the knowledge of both parties making a fair trial possible.

 

This is the second time in two years that the British Government has lost in its efforts to use legal technicalities to have the case against it by the Mau Mau freedom fighters thrown out.

But the British Government protested at the  ruling and  expressed disappointment with the Court.

 

 

Last year it argued on the grounds that the Kenyan Government was legally responsible for any abuses committed by the British colony.  The Court rejected those arguments in April 2011.

During the latest two-week hearing in the High Court, in July 2012, leading Counsel for the British Government conceded the claimants had been tortured by British officials.  This is the first time the British Government has accepted that the colonial regime in Kenya was responsible for torture of Kenyans prior to independence.

Despite this admission, the Government continued to deny legal responsibility by claiming that the case was out of time.   They argued that it was impossible to have a fair trial after more than fifty years primarily because so many witnesses had died. This argument was rejected today by Mr Justice McCombe who, after a detailed review of the evidence, held that the documentary and witness evidence is so extensive that a fair trial is possible.

In the first Judgment in 2011 he held: “The materials evidencing the continuing abuses in the detention camps in subsequent years are substantial, as is the evidence of the knowledge of both governments that they were happening and of the failure to take effective action to stop them.”

In the second Judgment, given today, Mr Justice McCombe ruled: “I have reached the conclusion that a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the Court to complete its task satisfactorily.  The documentation is voluminous and the governments and military commanders seem to have been meticulous record keepers. 

“The Hanslope material has filed the gaps in the parties’ knowledge and understanding and that process is still continuing.  I am not satisfied that the defendant has adequately taken into account the number of potential witnesses, presently identified or otherwise, at levels of government and the army lower than politicians, senior civil servants and generals, who might be able to supplement its case on the documents.” Mr Justice McCombe said.

Martyn Day, Senior Partner at Leigh Day & Co said today: “This is an historic judgment which will reverberate around the world and will have repercussions for years to come.

He said that it was morally repugnant that the British Government had admitted that the three Kenyans were brutally tortured by the British colonial administration and yet it has been hiding behind technical legal defences for three years in order to avoid any legal responsibility.

“Following this judgment we can only hope that our Government will at last do the honourable thing and sit down and resolve these claims,” Mr Day said.

“There will undoubtedly be victims of colonial torture from Malaya to the Yemen from Cyprus to Palestine who will be reading this judgment with great care.” He said.

His law firm represents three Kenyans who were victims of grave acts of torture at the hands of British officials during the Kenya Emergency in the 1950s and 1960s.  The claimants have each suffered unspeakable acts of brutality, including castrations and severe sexual assaults.

The claimants represent the wider community of hundreds of elderly Kenyans who are still alive and were the victim of abuses during the Emergency.

The calculated torture is thought to have begun on 24 April 1954, when the colonial administration launched an assault on the Mau Mau which was known as “Operation Anvil”, whereby 17,000 Mau Mau suspects were rounded up and incarcerated in detention camps without trial. 

Detainees were moved from one camp to another, where the treatment was of increasing or decreasing severity depending on the detainee’s willingness to cooperate and denounce the Mau Mau.  In particular, detainees were expected to confess that they had taken “the Mau Mau oath” and to repent of having done so.

It is estimated by historians that, over the years which followed, as many as 150,000 suspected Mau Mau members and sympathisers were detained without trial in a labyrinth of about 150 detention camps littered around Kenya known as “the Pipeline”.

From the inception of the detention camps the Colonial Administration engaged in widespread acts of brutality.  Detainees were subjected to arbitrary killings, severe physical assaults and extreme acts of inhuman and degrading treatment.  The acts of torture included castration and sexual assaults which, in many cases, entailed the insertion of broken bottles into the vaginas of female detainees.  Camp guards engaged in regular severe beatings and assaults, often resulting in death

The Kenya Human Rights Commission and the Kenyan Government are supporting the claims. Three leading academic experts on the Kenya Emergency have all put in lengthy statements in support of the claimants.

 


 

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