The London High Court has ruled that three Kenyans who were detained and tortured during the Mau Mau rebellion against British colonial rule have the right to sue for damages. With the ruling, the suit brought by the Kenyans may proceed to full trial.
The British government is now faced with the threat of thousands of claims from people who suffered during the era of the British Empire.
The Guardian reports that on Friday, Mr Justice McCombe, rejected the argument from government lawyers that because many years have passed since the end of the rebellion, a fair trial could no longer hold.
The High Court judge Richard McCombe, was of the opinion that "a fair trial on this part of the case does remain possible. I am justified in concluding that the available documentary base is very substantial indeed and capable of giving a very full picture of what was going on in government and military circles in both London and Kenya during the 'emergency.'"
The Daily Mail reports the Justice McCombe said there was
"...an amply sufficient documentary base to test what was known in London about excessive use of force in the camps throughout the period of the emergency, and what London's reaction to that knowledge was.
"On the basis of that material, if necessary supplemented by the witness evidence that is likely still to be available - either in statements or orally in court - I am satisfied that a fair trial of any question of breach of duty in respect of each of the surviving claimants is possible.
"Looking at those claimants' evidence, I think that it will be quite possible to determine sufficiently clearly where and when they suffered their injuries and the official status of those responsible for inflicting them.
"It will also be possible, on the documents arranged and collated chronologically, together with the other evidence, to determine whether or not the injuries occurred because of a breach of duty on the part of the United Kingdom government."The Guardian reports that last year, Justice McCombe rejected the argument from government lawyers that the Kenyan Republic inherited the legal responsibilities of the British colonial government and that the three claimants should, therefore, sue the Kenyan government and not the British government. According to the BBC, the historical grounds for the argument from the legal representatives of the British government was that, "Many of those who found themselves in power following independence in 1963 had previously been associated with the Home Guard: those who fought with the British colonial authorities against the Mau Mau rebels."
The Daily Mail reports an FCO (Foreign and Commonwealth Office) spokesman, said:
"The British Government is disappointed with today's judgment... At the same time, we do not dispute that each of the claimants in this case suffered torture and other ill treatment at the hands of the colonial administration.
"We have always said that we understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the emergency period in Kenya, and it is right that those who feel they have a case are free to take it to the courts.
"Our relationship with Kenya and its people has moved on since the emergency period. We are now partners and the UK is not only one of the largest bilateral donors in Kenya, but also Kenya's biggest cumulative investor, and a key partner on security and other issues of benefit to both countries. Our people-to-people ties are and will remain strong and deep."
An important discovery that influenced the decision was the discovery of thousands of documents after the Foreign Office admitted the existence of a secret archive containing colonial-era files.
The archive, according to The Guardian, at Hanslope Park, is a secret center located 55 miles north of London. The British government did not acknowledge the existence of the archive until the Mau Mau veterans brought action. Historians assisting the lawyers of the Mau Mau veterans discovered the archives. They found that the staff at the Hanslope Park archive had been made to believe that the files did not belong to the FCO. They were told that the FCO was holding the files on behalf of another organization whose facility was gutted by fire.
Martyn Day of the Leigh Day and Co law firm that represented the veterans condemned the efforts of the British government to have the veterans' claims struck out. He described the efforts as "morally repugnant." He called the High Court decision a "massive, massive decision," and urged the government to act quickly in favor of the veterans, pointing out that his clients were not likely to "last for much longer." He told AFP: "It's been a long battle. Many times I thought we'd never reach this point."
The Daily Mail reports he said: "This is a historic judgment which will reverberate around the world and will have repercussions for years to come. Following this judgment, we can but hope that our Government will at last do the honorable thing and sit down and resolve these claims." He added: "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."
According to The Guardian, human rights activists in Kenya say about 5,000 of more than 70,000 Kenyans the British held during the bloody Mau Mau uprising are still alive. The British authorities are worried that following McCombe's ruling, more of them may press claims.
It is also being anticipated that the ruling may have implications for other parts of the world where the British colonial authorities committed atrocities. Claims may also force to light the details of the brutalities of British colonial history and bring the British to acknowledge some of the uncomfortable facts of their recent history.
The Guardian cites the example of the veterans of the Eoka insurgency in Cyprus in the 1950s, who have been following the Mau Mau case closely and have already spoken with the lawyers of the claimants. According to The Guardian, the Cypriot claimants have additional documentary sources in the archives of the International Committee of the Red Cross in Geneva kept secret for 40 years. The documents pertain to torture cases in Cyprus and refer to British interrogators that were called "Her Majesty's Torturers."
The Foreign Office says it is planning to appeal the ruling, arguing that the "normal time limit for bringing a civil action is three to six years... In this case, that period has been extended to over 50 years despite the fact that the key decision makers are dead and unable to give their account of what happened."
Reacting to the claim that the "normal time limit for bringing a civil action" had expired, Justice McCombe said the circumstances of the defendants' "poor English, lack of legal experience and financial situation" explains why it took them so long to seek redress. Until The Kenya Human Rights Commission contacted them in 2006, they did not realize they could take action.
The victory was the culmination of a three-year legal battle involving the elderly veterans: Paulo Muoka Mzili, 85, Wambugu Wa Nyingi, 84, and Jane Muthoni Mara, 73. Their lawyers say the veterans suffered "unspeakable acts of brutality," including "castration, beatings and severe sexual assaults."
According to the BBC:
"Mr Nyingi, 84, a father of 16, said he was arrested in 1952 and detained for about nine years. In one incident in 1959, he said he was beaten unconscious and still bears marks from leg manacles, whipping and caning. 'I have brought this case because I want the world to know about the years I have lost and what was taken from a generation of Kenyans, he said
"Mr Nzili, 85, said he was stripped, chained and castrated shortly after being arrested in 1957. 'I felt completely destroyed and without hope,' he said.
"Ms Mara, 73, said she was 15 when she was raped at a detention camp. 'I want the British citizens of today to know what their forefathers did to me and to so many others. These crimes cannot go unpunished and forgotten,' she said."
One of the claimants Susan Ciong'ombe Ngondi, died a year ago at the age of 71, while another dropped out, The Guardian reports. Nyingi and Mara reportedly received the good news by mobile phone.
AFP reports than in Nairobi, about 150 Mau Mau veterans gathered at the Human Rights Commission premises, danced, sang and shouted in excitement. Most were old, ailing and frail and could only shuffle weakly in joy. The Telegraph reports Nyingi said in Nairobi: "I hope that this means that the British government will finally come here to give us something to support our families and to help us."
According to the AFP, Gitu Wa Kahengeri, spokesman and head for the Mau Mau War Veterans Association, said "This a great moment that we feel in our hearts, our souls, our bodies, because justice has been done in England."
The Telegraph reports he expressed disappointment that the Foreign Office would appeal. He said: "It seems that their strategy is to continue to fight this thing on legal technicalities until we die."
According to the AFP, the claimants are demanding an apology from the British government. They also want the authorities to set up a welfare fund to take care of bout 1,000 surviving former detainees of the British.
The AFP reports that about 10,000 died during the 1952-1960 Mau Mau uprising. Some authorities give much higher estimates.
Among the tens of thousands of Kenyans detained was the grandfather of President Barack Obama.
The Mau Mau rebellion broke in Kenya during British colonial rule between 1952 and 1960. The radical and militant African nationalists fought to end colonial rule with a force consisting mostly of people of the Kikuyu ethnic group. The bloody uprising was savagely repressed by the British with the torture and execution of over 90,000 Kenyans. The campaign ended with the capture of the Mau Mau leader Dedan Kimathi, in 1956.