Mau Mau freedom fighters edged closer to having their compensation case heard after a British High Court judge ruled Thursday that four elderly Kenyans who were brutalised as the UK army crushed the revolt have an arguable case.
Their lawyer, Paul Muite said in Nairobi that they will favour an out of court settlement after a thorough vetting of survivors and their families.
“We want the British government to first provide money for research to document and catalogue who was whom in the struggle. This is not about money. It is about restoring people’s dignity,’ Muite said Thursday.
A court victory could earn thousands of survivors millions of pounds and open a class litigation suit that could spotlight the atrocities committed by the British army in Kenya between 1953 and 1960 if the matter goes for full hearing.
The British government had attempted to stop the case from going to full trial, arguing that they were not responsible for the actions of the colonial regime and that the onus for compensation fell on the Kenyan government. It also failed to file a defence on the torture allegations.
The Mau Mau case – which was filed in 2009 by lawyers Paul Muite and Martyn Day – is fortified by the discovery of 300 boxes of colonial administration files relating to the period that historians believe contain incriminating evidence.
Mr Day, had in a previous interview said the archival documents, thought to have been lost first- show that the paper trail reached the colonial secretary in London.
The British lawyer is credited for winning out-of-court settlement for 233 Kenyans who had been injured by bombs and unexploded devices left by the British army in Laikipia. The British army paid £4.5 million (Sh 630 million) for that – a tiny drop compared to the number of Mau Mau claimants.
Professor David Anderson, the author of award-winning Mau Mau book Histories of the Hanged , said on Thursday that the ruling is a significant victory and the British Foreign Office is sure to be bitterly disappointed by the outcome.
“The judge has poured scorn on the defence mounted by the legal team representing the British government, calling their arguments ‘dishonourable’. We now know that the British government does have a case to answer and is responsible for the events that took place in Kenya in the 1950s, a responsibility they had so shamefully tried to deny,” said Dr Anderson, who is a lecturer at the African Studies Centre at Oxford University.
Dr Anderson was one of the historians behind the discovery of 17,000 pages of Mau Mau documents hidden in a British vault and which provide evidence of atrocities committed.
” With the new evidence from the documents unearthed in London earlier this year there is now much to be said about British torture and abuse of detainees that could only previously be referred to through anecdotes and the memories of the victims. We now have much, much more than that.’, he said Thursday. Part of the documents is a letter from the then Attorney General: “if we are going to sin, we must sin quietly”.
The ruling came three years after the British government ruled out any compensation for the Mau Mau victims or dismissed calls to initiate a public inquiry into the atrocities.
The Mau Mau case has created a diplomatic cold war between the British government and President Kibaki’s government ever since the latter unveiled a monument of Dedan Kimathi- regaled in Kenya as a freedom fighter and dismissed in London as a terrorist.
In August 2003, the Kibaki government went ahead and lifted the 1952 legal notice that banned Mau Mau as a movement giving it a legal status that allows its members to operate and sue. When faced with the suit, the British government tried to pass the responsibility onto the Kenyan government.
“To seek to pin the liability for British torture onto the Kenyan government is an appalling stance, one which we hope and trust that the judge will reject, ” Mr Day had said a few months back. The test case claimants, Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara, who are in their 70s and 80s, told the British court that they were systematically abused and tortured in special camps that had been set up to crush the Mau Mau rebellion against British rule, and want compensation from the government.
At an earlier hearing the judge was told that Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to appalling sexual abuse by British soldiers.
The Foreign and Commonwealth Office (FCO) argued that it could not be liable because it happened outside of the UK and that Kenya had its own legal colonial government, which was responsible for the camps.
But Thursday the judge rejected the strike-out application saying: “I have not found that there was systematic torture nor, if there was, the UK government is liable.