As of this month, the British Empire is on trial. Or so goes the story in London.
On Oct. 5, a British high court ruled that three elderly Kenyans who were tortured and abused by colonial authorities in Kenya in the 1950s can proceed with their case against the British government. They are asking for financial compensation and a state apology. Pushing aside the claims of the Foreign and Commonwealth Office (FCO) that too much time has elapsed for a fair trial, and that modern-day Britain is not to blame for the wrongs of its colonial forebears, the high court has, for the first time, allowed colonial victims to sue the British state.
When the decision came down, the trial’s three claimants gathered at the Kenya Human Rights Commission in Nairobi with their supporters. Members of the crowd, some in their 80s, rose to dance in slow shuffles and sing nostalgic ballads from the days of their independence struggles. “This is an historic judgment that will reverberate around the world,” said Martyn Day, the lawyer for the three claimants, greeting reporters in London in what felt like a muted call to arms. “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.”
“History is on trial,” affirms Harvard University historian Caroline Elkins, who is serving as an expert witness for the plaintiffs. Indeed, the alleged crimes are a half-century old—part of the last gasps of a dying British Empire. But the British government, for its part, does “not dispute that each of the claimants suffered torture and other ill treatment at the hands of the colonial administration.” What it does deny is legal liability. The FCO has already announced its intent to appeal the high court’s decision to subject imperial Britain to the scrutiny of modern-day justice.
What is at stake is Britain’s legal liability for events that occurred during colonial rule. How the FCO handles the Kenyans’ damning charges will affect its reputation on the international stage. The pitched legal battle has already uncovered a dramatic tale of “missing” documents, clandestine intelligence operations and allegations of a state cover-up. The world is watching.
The lawsuit brought by the three Kenyans—Wambugu Wa Nyingi, Jane Muthoni Mara and Paulo Muoka Nzili—concerns the brutal effort by colonial authorities in the 1950s to quash an anti-British rebel movement. In the 1940s, more than a half-century into British rule, a small group of mostly Kikuyu, the country’s majority ethnic group, formed the Mau Mau: a secret group whose followers took an oath to oppose British rule. The practice of “oathing” spread across Kenya’s bucolic farmlands, with thousands of Kenyans swearing (sometimes willingly, sometimes under duress) to give their life for the independence cause. The Mau Mau came to resemble a kind of amorphous insurgency, with up to 25,000 operating as forest fighters, where they’d fled to hide. And though the vast majority opposed the initial move to violence, a core of radicalized members—bound by the ritual of drinking animal blood—took an oath to kill. Those rebels murdered around 30 Europeans, as well as hundreds of colonial officers and loyalists.
In response, colonial authorities began an aggressive and large-scale counter-insurgency aimed at strangling the Mau Mau. In October 1952, Kenyan Governor Evelyn Baring, the Queen’s representative in Kenya, declared a state of emergency. Two years later, the colonial army began rounding up Kikuyu by the thousands, erecting barbed-wire compounds to house the alleged oath-takers. The so-called “Kenya Emergency” lasted until 1960. An estimated 150,000 Kenyans were detained; a “pipeline” of detention camps was set up to house them. Tens of thousands died in the camps, with many more left scarred by torture.
The three plaintiffs are survivors of the camps. Their 2010 witness statements detail the most depraved acts of their army aggressors. In one statement, Jane Muthoni Mara recounts how, as a teenager, she was arrested for helping to feed a group of Mau Mau rebels that included her brother. At the screening camp in Gatithi, Mara claims, British officers pried her legs apart and shoved a bottle filled with scalding water into her vagina. In a second statement, Wambugu Wa Nyingi details years of steady and severe whippings. In his statement, Paulo Muoka Nzili describes being castrated with a pair of pliers.
In 1960, the Kenyan Emergency ended. The detention camps were closed. Three years later, Kenya was granted independence. Back in London, army officials like Gen. George Erskine—who as early as 1953 acknowledged in a letter to the British Secretary of State for War that the revelation of their conduct “would be shattering”—kept mum. The new government did not lift Britain’s ban on the Mau Mau, and surviving members were driven further underground—until 2003, when the organization was more or less obsolete, with many members deceased.
But in 2005, the floodgates opened, when two revisionist accounts of the Kenyan Emergency were published to popular acclaim, one by Caroline Elkins, a Harvard historian, and one by the Oxford University historian David Anderson. Elkins’s Imperial Reckoning won the 2006 Pulitzer Prize for general non-fiction. Soon after, Mau Mau veterans associations began registering members. The Kenya Human Rights Commission in Nairobi sent young lawyers out to hunt for plaintiffs; a few survivors were selected to take the case forward. Three historians, including Anderson and Elkins, were brought on board to act as expert witnesses, to fill the role that a ballistics specialist might play in a military trial, or a psychiatrist in a murder case.
The fight over whether this case should go to trial has carried on for years. Initially, the FCO resisted on technical grounds: yes, torture took place, but the Kenyan Republic assumed responsibility for it upon independence. When that plea was rejected by a judge in 2011, the FCO changed its tack, contending that a fair trial was no longer possible since “the key decision makers are dead and unable to give their account of what happened.” This month’s decision overruled that claim too. “The difficulties advanced by the defendant,” the judge wrote, “are more illusory than real.”
In a statement released after the court’s ruling, the FCO accepted that the judgment had “potentially significant and far-reaching legal implications.” A spokesperson refused to elaborate on what those “far-reaching implications” might be.
Meanwhile, historians have been looking back in time. Or trying to. About a decade ago, historian David Anderson realized that something was awry at the Kenya National Archives in Nairobi. “There were missing blocks of files,” Anderson explained from his office in an old house inhabited by Oxford’s African Studies Centre. Behind his desk, a shelf is lined with faded binders labelled Mau Mau. “In critical deposits, there were batches of five, 10 files missing. For no apparent reason,” he says. “Wouldn’t your alarm bells ring?” From file catalogues, Anderson could see that most of the missing material concerned accusations of abuse from the Kenyan Emergency period.
Meanwhile, historians in Britain found references to documents that had been whisked to London after independence—in violation of Britain’s pledge to hand over all files to Kenya. Inquiries were made, but the FCO denied having any such documentation. When the Mau Mau trial got under way, the FCO was pressed again. Again, the office professed ignorance.
The back-and-forth that ensued has been recounted in excruciating detail in pages of official inquiry reports that have been hungrily reprinted in the British press. Last year, the prosecution uncovered the treasure trove at a high-security government building at Hanslope Park in Buckinghamshire. The so-called “migrated archives” contained 8,800 FCO files—1½ tonnes of missing documents.
The files represent a bombshell for the British government, because they contain material from 37 former colonies, including more than 15,000 pages deemed directly relevant to the Mau Mau trial. The papers prove that there were operations “to remove documents in every single British colony,” says Anderson—“things they didn’t want successor governments to see.” In Uganda, the purge was code-named Operation Legacy. The new documents show that some of the most top-secret files are still missing. And they confirm what historians have long suspected: that many more document caches were illegally set ablaze as the empire crumbled.
Tony Badger, an independent University of Cambridge historian hired by the FCO to oversee the file transfer, calls the episode “embarrassing.” But he accepts the government’s explanation that incompetence, not malfeasance, is to blame for the FCO’s “missed opportunity to come clean.” This intrigue does not bode well for an empire on the defence. “Whether [the remaining documents] are really lost or whether they were conveniently misplaced is an open question,” says Anderson. His verdict? “I very much doubt that they were destroyed,” he whispers. “To be candid, my guess is that they’re with MI somewhere. They’re with the spooks.”
For the past few weeks, rumours have been circulating in London that victims of other colonial atrocities might follow Kenya’s lead. Survivors of the 1950s Cyprus Emergency are seen as viable candidates. They include former members of the EOKA, a Greek Cypriot independence organization that fought British rule and was countered with brute force.
One recent morning at his central London office, Day, the Mau Mau lawyer, looked uncomfortable when asked whether he had been contacted by Cypriot lawyers. “Odd bits,” he mumbled. “It’s kind of vague at this stage.” When pressed about the nature of those contacts, he refused to elaborate. “Ah, I’m not saying too much.”
George Morara, of the Kenya Human Rights Commission, who oversees the case, was more forthcoming. He says the commission has been contacted by people in Malaysia, India, Zimbabwe and Uganda. Morara says he will advise them on how to initiate claims against Britain—how to seek recompense for colonial violence that was, until now, simply seen as a constituent of imperial rule. “If you want to come talk with us,” he enthuses in his warm baritone, “you are most welcome.”
The Mau Mau case is unique because it marks the first time that British colonialism has been put to trial. But it fits with a broader push for historical trials over the past few decades: of aging former Nazis or Francoists or out-of-office Chilean dictators. These trials rarely proceed smoothly. Costly and divisive, they shove lawyers and the judiciary into the role of amateur historian, forced to reconstruct and interpret long-ago history in order to judge the specific crimes at issue.
Day explains that in this trial, it is “quite crucial” for him to prove that British violence in colonial Kenya was “systemic.” The defendant, after all, is the Foreign and Commonwealth Office—not an army officer or a civil servant. To do so, Day must link individual acts of unlawful detention or castration “to the halls of British government,” as he says.
Elkins says that such a system revealed itself in 1957, soon after the colonial office in Kenya approved the “dilution technique,” which allowed officers to use “compelling force” against suspected oath-takers. The Cowan Plan, named for prisons commissioner J.B.T. Cowan, authorized the use of violence and forced labour, was a derivative of that technique. It was rubber-stamped by the government in London after meetings at the Foreign Office in which British officials were briefed on the situation in Kenya. “The evidence is just overwhelming,” insists Elkins. “We’re swimming in it.”
But this legal approach can mean that individual acts or agents are glossed over—in an effort to expose the “system” behind them. When asked whether his clients had considered bringing a case against surviving colonial officers, Day just shrugged. “Vaguely.”
In London, a popular history of British colonialism is being written through press coverage of this trial. But in many newspaper articles, that history is askew. Often missing, for instance, is any acknowledgement that Mau Mau rebels also committed horrific murders. On the crude balance sheet of history, their crimes are considered less weighty. To Day, his clients have become “stand-ins” for colonial victimhood; in this way, the FCO may be standing in for the Imperial Army.
Huw Bennett, another historian involved in the trial, is rooting for a shift in popular perceptions of that army. “There [is] this impression,” Bennett explains, “that the British army doesn’t do war crimes.” It is popular in British academic circles to contrast British restraint with America’s bloody excesses. People believe this is what “Americans do in Vietnam or in Abu Ghraib,” Bennett scoffs. “It’s the kind of thing the French do in Algeria. But atrocities—that’s not British stuff!”
On Oct. 26, a hearing will determine how the trial will move forward; Day expects more cases to be filed. And yet the mood was jubilant in Nairobi on the day the decision was handed down. “I am very, very happy,” said Wambugu Wa Nyingi, who still bears black marks on his ankles where manacles rubbed his skin raw over 50 years ago. “My heart is clean,” echoed Jane Muthoni Mara, who is still haunted by visions of her sexual assault. “I will tell [my children] I won.”