Mau Mau insurgents who survived labour camps bring case using files
withheld for decades by Foreign Office
Owen Bowcott
Wednesday April 6 2011
The Guardian
http://www.guardian.co.uk/world/2011/apr/05/kenyans-sue-uk-colonial-human-rights-abuses
Highly embarrassing colonial-era files detailing the British army's
repressive tactics against Mau Mau insurgents in Kenya during the
1950s will be revealed in a landmark compensation case.
The discovery of thousands of documents withheld for decades from the
Kenyan government will raise awkward questions about the Foreign
Office's attempt to deny liability for the allegedly systematic
mistreatment of thousands of Kikuyu victims prior to independence.
The case, brought by four survivors of the notorious detention camps
operated by the colonial authorities could also set a precedent by
forcing the release of files relating to other colonies once
controlled by the UK.
During the so-called "Emergency", detainees were subjected to
arbitrary killings, castrations, sexual abuse, forced labour,
starvation and violence from camp guards, lawyers for the detainees
will argue in the high court on Thursday.
Among those detained and abused was Barack Obama's grandfather.
The UK government denies that mistreatment was as widespread as
alleged. In the past it has relied on an obscure legal precedent
relating to Patagonian toothfish which states that responsibility for
acts committed by a colonial government pass to the new, successor
government at independence.
An open letter from the Kenyan Human Rights Commission to the foreign
secretary has been signed by a host of civil rights organisations and
politicians including Archbishop Desmond Tutu, Vince Cable, and
Professor Sir Nigel Rodley, a former UN special rapporteur on torture.
It declares: "It is a little known fact that during the Mau Mau war,
in the run up to Kenyan independence, the then British government
systematically violated human rights and committed war crimes on a
vast scale.
"The full extent of Britain's knowledge and authorisation of torture
only emerged recently after historians from Harvard and Oxford
gathered detailed testimonial evidence and conducted extensive
research of public and court records.
"In response, the government claims that the current Kenyan government
is legally liable for abuses which took place under the British
colonial administration. In our view, this represents an intolerable
abdication of responsibility."
Key documents uncovered during research into the claims show that the
Foreign and Commonwealth Office made a calculated decision not to hand
over any of its colonial era files to the Kenyan government.
A letter dated 7 November 1967 stated that it was general practice at
independence not to hand over any files that "might embarrass HMG or
other governments" or "members of the police, military forces, [or]
public servants".
The FCO letter continued: " ? The moment we return any records
whatsoever there is the danger that we should find ourselves under
constant pressure to make good other gaps ? in the record of the Kenya
government.
"? The fact that it has always been British policy to withdraw or
destroy certain sensitive records prior to independence has never been
advertised ?"
The Kenyan government at the time was requesting the return of files
relating to the Mau-Mau Emergency and other topics.
The Foreign Office will have to argue that the Kenyan government is
responsible for pre-independence human rights abuses despite the fact
that it did not then exist and was subsequently denied access to files
revealing what actually occurred during that period.
Dan Leader, of Leigh Day & Co, the law firm representing the
Kenyan claimants, said: "Every leading historical expert on the Kenya
Emergency has filed statements in support of the victims. To seek to
pin the liability for British torture onto the Kenyan government is an
appalling stance for the government to take and one which we hope the
judge will reject."
An FCO spokesman said: "We understand the strong feelings that the Mau
Mau issue still creates in Kenya and elsewhere. The Emergency period
caused a great deal of pain for many on all sides, and marred progress
towards independence.
"The UK intends to fully defend these cases. The defence will be based
on well-established aspects of constitutional and international law.
We are stating that under the law HMG cannot be held liable in this
case."
Explaining the belated discovery of the FCO-witheld files, Foreign
Office minister Lord Howell told parliament his department had
"decided to regularise the position of some 2,000 boxes of files it
currently holds, mainly from the 1950s and 1960s, which were created
by former British administrations overseas. The intention is to make
as much of this material as possible available to the wider public.
"The domestic records of colonial administrations did not form part of
British public [ie, official] records and they were kept by the
individual states created at independence. It was however the general
practice for the colonial administration to transfer to the United
Kingdom, in accordance with colonial office instructions, shortly
before independence, selected documents held by the governor which
were not appropriate to hand on to the successor government."
guardian.co.uk Copyright (c) Guardian News and Media Limited. 2011
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