Image Description: Memorial in Nairobi to victims of colonialism.
“Bottles (often broken), gun barrels, knives, snakes, and vermin were thrust up men’s rectums and women’s vaginas.”
“The screening teams whipped, shot, burned, and mutilated suspects, ostensibly to gather intelligence for military operations.”
This June will mark the 10th anniversary of the first claim brought by Kenyan nationals against the British Government for alleged human rights abuses during the Mau Mau Uprising (a rebellion against British Colonial rule in Kenya). The cases are still being heard, but none of the claimants have been able to find the government liable, and there has been no admission of guilt.
The group collectively claimed damages amounting to £8 billion, on the basis that the 40,000 men and women bringing claims had been tortured by British soldiers in the 1950s.
The decision given by Sir Stephen Stewart reflects the wider issues the UK has with coming to terms with its colonial past.
The stories that have escaped the mounds of destroyed and hidden documents are harrowing. In the files, which miraculously began to appear as the first cases came to an end, there is an incident described merely as “the defilement of a young girl”. The callousness of the description is striking: this is the only record of a child’s destruction by one of our soldiers.
These war crimes were committed less than a decade after the liberation of Nazi prisoners from Auschwitz-Birkenau, and less than three years after the Nuremburg trials had come to an end. This was not lost on the colonial attorney general, who is quoted as having said:
“If we are going to sin, we must sin quietly”.
This is the history behind the law, and it is an important frame for the court proceedings that seem likely to outlast the victims, most of whom are now in their 80s. The most recent judgment to come out of the High Court, in the case of Kimathi & others v Foreign and Commonwealth Office  is our focus today, and the decision given by Sir Stephen Stewart reflects the wider issues the UK has with coming to terms with its colonial past.
Judge Stewart found that a claim was barred under Section 33 of the Limitation Act 1980 as a result of the time elapsed since the events. It is open for a judge to pursue the claim anyway, but to do so it must be “equitable”, a legal word that essentially means “fair” (determined by balancing the factors that have contributed towards the late claim along with the interests of each party).
Stewart chose not to exercise this power, and in coming to that conclusion he stated that:
“It is difficult, given the loss of witnesses and documents over time, to determine up to when there could have been a fair trial of some or all of [Mr Kimathi’s] claims. Had the claim been brought in, say, the 1970s or even later, the evidential position then obtaining would have had to be examined in the sort of detail in which it has now been done. What is clear is that there cannot now be a fair trial of any of the core allegations. That is because of the delay.”
The judgement is depressing for a variety of reasons, but chief among them is the fact that our opportunities to confront our nation’s history are quickly disappearing.
The phrase “loss of witnesses and documents over time” is a very interesting one. During the 1950s and 60s, in which financial pressures and cursory mentions of self-determination led to the wholesale end of empire in sub-Saharan Africa (a period that I like to call the “scramble from Africa”), the British government had a policy known as “Operation Legacy”. This was the Foreign Office strategy of burning, burying, or otherwise destroying documents that would incriminate the British government down the line.
This is important context, because the Foreign Office’s defence in the case was based partially on a lack of documentary evidence. To my mind, this is a little bit like claiming that a child you have kidnapped is yours because you’ve murdered the parents, destroyed the evidence and burned the birth certificate.
The judgement is depressing for a variety of reasons, but chief among them is the fact that our opportunities to confront our nation’s history are quickly disappearing. Edexcel and AQA seem keen to propagate the view that racism, genocide, and war crimes are the remit of Germans and Americans, but whilst the former nation is incredibly careful to make sure that the atrocities of the holocaust are never forgotten, and the children in the latter are too busy trying to avoid mumps, we as Britons seem to have a collective amnesia about the things that have been done in our name, and for our sake.
Duncan Kennedy’s “Legal Education and the Reproduction of Hierarchy”, a book that I cannot recommend enough and will doubtless refer to again over the coming weeks, makes the point that legal education sucks the life out of cases like this one. Law students view cases in a vacuum, rarely given the opportunity (or time) to discuss the moral questions that underpin the rules that govern our lives.
What is it that we’re being trained to do?
Image Credit: Jothee