The settlement of the claims brought by a group of elderly Kenyans, imprisoned and tortured during the Mau Mau insurgency that preceded the country’s independence, marks an important victory of justice for colonial crimes. The survivors of the torture meted out by the colonial administration were determined to break the silence surrounding their suffering, including rape, castration and severe beatings. They succeeded in overcoming major hurdles with the support of Kenyan organisations, human rights groups, lawyers, academics and others.
The UK government finally bowed to the inevitable, following a four-year legal battle and faced with irrefutable evidence. During this time, the government suffered two significant defeats in the courts, the most recent being one in October 2012, when the High Court rejected the government’s argument that “too much time had elapsed for there to be a fair trial”.
With the revelation of a vast secret colonial archive in early 2011, the judge found that a fair trial was indeed possible, noting that “the documentation is voluminous… the governments and military commanders seem to have been meticulous record keepers”. REDRESS, an international human rights organisation that helps torture survivors obtain justice and reparation, made written and oral submissions to the court that supported the victims’ rights.
The British government has now agreed to provide compensation to 5,228 survivors totalling 19.9m pounds ($31m), including 6m pounds ($9.3m) in legal costs, and to fund the construction of a memorial in Nairobi to the victims of colonial torture.
In his statement to Parliament on June 6, Foreign Secretary William Hague expressed his “sincere regret” and unreservedly condemned the torture on behalf of the government. This is welcome. However, the statement fell short on several counts. The UK “regretted”, but did not fully apologise for what happened. Its analysis failed to recognise the anti-colonial nature of the uprising. It stressed that the settlement was confined to Kenya and did not constitute a precedent.
“We will… continue to exercise our own right to defend claims brought against the government,” Hague stated in parliament. “We do not believe that this settlement establishes a precedent in relation to any other former British colonial administration.”
The foreign secretary’s statement defended the UK’s legal position of denying liability. This fails to recognise victims’ right to reparation for torture that is well established under international law and results in delaying payouts to people who are coming to the end of their lives.
|Britain to ‘compensate’ tortured Kenyans|
The “Mau Mau” settlement is groundbreaking because – contrary to the government’s portrayal – it does indeed set a major precedent in which decades of denial and silencing of the victims is replaced with the truth as to what happened, the responsibility of the UK, and the right of victims to obtain reparation.
Even though the UK government stopped short of apologising, it is clear that the settlement goes a long way in restoring the dignity of the victims. The terms agreed upon are important to treat survivors as individuals who suffered grievous and lasting injustices and to set the record straight. The case should also pave the way for much more fundamental changes.
While Hague’s statement downplayed the prospect of the UK being prepared to seriously address the issues raised by the case, these questions cannot be ignored: Who should own and have access to the historical records, such as those on the Mau Mau uprisings kept by the UK? How, and through whose eyes, should the UK’s colonial history be portrayed, taught and remembered? And, what lessons should be learned from what was done to “colonial subjects” and civilians branded as “terrorists” and the manner in which they have subsequently been denied truth and justice?
These questions are not purely theoretical. Atrocities carried out by British forces outside of the UK mainland are not isolated or abstract. A glimpse at current debates and litigation concerning events in Iraq and Afghanistan illustrate this point only too well.
The settlement has potentially wide ramifications for victims of violations from Aden to Cyprus and Malaysia that have been swept under the colonial carpet. More claims can be expected. The foreign office has already been informed that it will be receiving a claim from lawyers representing a number of Cypriots who allege that they were also mistreated during the island’s decolonisation conflict in the 1950s.
Given the historical context, this reparation is a small price to pay for a country that greatly benefited from colonialism. Rather than oppose or undermine such claims, the UK – both the government and the public at large – should welcome these developments. They provide an overdue opportunity to confront Britain’s past, to live up to the rule of law and notions of justice, and to show that it respects victims and their suffering. This includes addressing lingering colonial power imbalances.
Acknowledging colonial wrongdoings vis-à-vis the individuals and countries concerned, and sharing documentation held about what is an essential part of these countries’ histories are crucial to this process.
The UK government should therefore take immediate steps to make publicly available all records about abuses committed in all former British territories and to cooperate with any interested parties, including survivors’ organisations. Where sufficient evidence is available, the UK should provide adequate reparation to the victims, which should also comprise a full apology.
Ultimately, reflecting and acting on this legacy will stand the UK in good stead when talking about how countries should deal with their skeletons of human rights abuses, both during colonial times and more recently. It should also act as a reminder, especially considering experiences in places such as in Northern Ireland, Iraq and Afghanistan, that any use of force and exercise of military power needs to be carefully considered and closely monitored – so as to ensure that history does not repeat itself.
Dr Lutz Oette is Counsel at REDRESS and a lecturer in law at the School of Law, SOAS, University of London. He has published widely on victims’ rights and the prohibition against torture.