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
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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 with the consequent injuries to this day and seek
recognition of the injustice they have suffered.
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2. Proposals in Summary
The proposals set 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. Any
resolution 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.
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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 engage with the British Government in a productive dialogue in 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 regime in the 1950s and early 1960s during the repression of Kenyan
independence movements.
In particular, the British colonial regime targeted 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
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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
1
For example, the Universal Declaration of Human Rights [1948] and the European Convention on Human Rights and Fundamental
Freedoms [1950] both predate the start of the Kenyan Emergency in 1952.
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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 counterinsurgency 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
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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
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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]
2
Caroline Elkins, Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya [2005] p320.
Founded in 1992, IMLO is a registered non-governmental organization that seeks to promote the rights of torture victims,
public interest litigation and protect Kenyans from all forms of State perpetrated torture by advocating for legal and policy
reforms. IMLU’s activities focus on documenting the effects of torture, rehabilitation of survivors of torture and/or their
families through provision of medical care, both physical and psychological. These services are provided through a
countrywide network of healthcare professionals; doctors, pathologists and counselling psychologists.
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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 Valley through 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.
iii) Building Historical Understanding
Kenya’s history syllabus in schools does not reflect the recent historical research which
has uncovered the brutality of the British colonial regime. The British Government could
assist the Kenyan Government in developing a historically accurate Kenyan history
syllabus.
In addition, in collaboration with the Kenyan Government, the British
David Anderson. Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire [Weidenfeld & Nicolson,
2005] p132.
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Government should make available funds for the creation of a new museum in Nairobi
which would be dedicated to the Kenyan Emergency.
Another option could be the
establishment of an educational endowment programme of scholarships for Kenyan
university students to study in the United Kingdom into order to foster greater
understanding between Britain and Kenya. Such a fund would concentrate on the fields
of law, human rights and history.
iv) Community reparations
The provision of targeted developmental assistance to the communities which were most
seriously affected by acts of brutality by the British colonial regime during the Kenya
Emergency. A reparation programme could include funding for school and infrastructure
development in targeted communities. This could be done via increased support of the
Kenya Education Sector Support Programme (KESSP), which DFID has already
committed £55 million to support.5
However, potentially more targeted support would be appropriate. For example, after
the 2007 election violence Save the Children began work with children in Rift Valley
province, focusing on three of the worst affected areas; Nairobi, Eldoret and Nakuru. It
has helped to maintain the quality of the education the children receive by distributing
teaching and learning materials to teachers and children in 30 schools, benefiting 24,000
pupils. In addition, it has also provided training for 173 head and senior teachers and 81
volunteer teachers on teaching methods, how to manage a school and how to protect
children’s rights.
Similar practical and targeted support could be provided to those communities which
were most affected during the Kenya Emergency, in Central Province and in the Rift
Valley. This type of support could be delivered by international NGOs in cooperation
with the Kenyan Government.
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DFID has committed £55 million to support the 2005-10 Kenya Education Sector Support Programme (KESSP). This
has provided 4,500 grants for new and rehabilitated primary school classrooms and for improvements to water and
sanitation facilities, and has also supplied teaching and learning materials and enhanced teacher skills.
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5. Working Group
We are conscious that the British Government will be concerned as to the numbers of
potential victims and whether such a scheme could open a floodgate of potential claims.
We are clear that this would not happen. The Kenya Human Rights Commission is
working with the various victim associations to determine the precise numbers of
Kenyans who were severely tortured during the Emergency. These associations have
clearly defined and longstanding memberships and it will be possible to identify the
relevant cohort.
In order to progress matters in the short term, the victims recommend the establishment
of an expert working group in order to determine i) the precise numbers of victims; ii)
their health and welfare needs and iii) the means of objectively verifying their victim
status.
The working group would be comprised of British and Kenyan Government
officials, the Kenya Human Rights Commission, victim associations and Leigh, Day & Co
and MPs. Expert advice could be sought from different organisations specialising in
healthcare, development and the care of torture victims. Indeed, a similar working group
was set up on 21 April 2009 by the MOD to investigate the health needs of nuclear test
veterans and their descendants.6
6. Conclusion
We repeat that this is not a colonial reparations case. What drives this case are the
individuals who are still alive and who have lived with the effects of torture for 50 years
and who deserve justice. All the victims are elderly and, in a few years, the vast majority
will have died. We urge you to deal with this case proactively, constructively and with
the urgency it deserves. This is a historic opportunity to right an injustice of enormous
proportions which was exceptional in British colonial history.
Leigh, Day & Co
11 November 2009
6
www.mod.uk/.../NuclearTestVeteransHealthNeedsToBeAssessed.htm
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