THE NATURE OF THE MAU MAU CLAIMPambazuka News
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.
CAMPAIGN OBJECTIVES
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’
Dedan Kimathi
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.
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