Mau Mau in the High Court and the ‘Lost’ British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?

Abstract

In April 2011, a landmark hearing before the High Court in London found that the British government had a case to answer concerning abuse and torture allegedly carried out by British officials in Kenya during the Mau Mau counter-insurgency. Prior to the hearing, it was revealed that the British government had removed some 1,500 ‘sensitive’ government files from Kenya at independence, many of these relating to alleged abuses carried our during the Emergency of the 1950s. This discovery then led directly to the revelation of a further tranche of 8,800 historical files relating to the decolonisation of 36 other former British colonies. This article explains the nature of the claims of torture and abuse made in the Kenya case in the High Court, and then describes the new evidence in the recently disclosed documents. The concluding section then discusses the Kenya case and the implications of the larger discovery of the ‘lost’ British Empire archive.

Notes

For the details of the case, see Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

The Times carried daily coverage of the case between Monday 3 April and Friday 14 April 2011.

The case was first discussed in Kenya in the late 1990s, provoked by a number of Mau Mau veterans associations, and then formally taken up by the KHRC in 2003. The current civil proceedings commenced in 2006.

Leigh Day website for details and background to the case: www.leighday.co.uk

The five grounds set out for the claim in the Prosecution statement are usefully summarised by Justice McCombe: (i) that the liabilities of Kenya's colonial government passed to the UK on independence in December 1963; (ii) that the British government was liable for instigating a system of torture and abuse in Kenya; (iii) that this system was designed by colonial officials in Kenya with the British Army and the Colonial office in London; (iv) that in July 1957 the British government specifically authorized a policy for the mistreatment of detainees; and (v) that the British government owed a duty of care to Kenya's peoples at this time. Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

Ibid. See also the press coverage in The Times, 18 July 2011.

Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

This argument was first clearly stated in Anderson, Histories of the Hanged in 2005.

The summaries that follow are compiled from the witness statements of the claimants. Copies of the full statements were presented to the Court and are available on the Leigh Day website: www.leighday.co.uk

For an account of the Lukenya Prison break-out and its consequences, see Anderson,‘The Battle of Dandora Swamp’, 155–77.

For a history, see Spencer, KAU.

See Doble, ‘The Kenya Regiment’. Also, Parker, The Last Colonial Regiment.

For his memoirs, see Gavaghan, Of Lions and Dung Beetles, and his ‘novella’, Corridors of Wire, about the Kenyan Emergency and in which the identities of the most prominent colonial officials are only thinly disguised. Gavaghan died in August 2011. For his obituary, see The Times, 12 August 2011, and the Daily Telegraph, 14 August 2011.

See Elkins, Britain's Gulag, for a detailed account of the violent regime at Mwea under Gavaghan's command.

Government of the UK, Documents Relating to Hola Camp; Government of the UK, Further Documents Relating to Hola Camp

Government of the UK, Record of Proceedings at Hola Camp.

For a full history of the role of Home Guard in the Emergency, see Branch, Defeating Mau Mau.

Most recently, a staff member in the Secretariat has publicly admitted the burning of selected documents at Government House prior to the British departure, and a leading Kenyan lawyer of the 1960s has attested to witnessing the destruction of documents at a district office in Central Province.

See BNA CO 822/1276 for extracts from noe set of minutes from this committee.

Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Edward Inglett, 18 Nov. 2010.

Ibid.

Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David Anderson, 21 Dec. 2010.

The key file is British National Archive (BNA) FCO 31/211/11. These materials were first drawn to my attention by Professor Tim Parsons.

BNA FCO 31/211/11, Scott to Arthur, 7 Nov. 1967. See also BNA FCO 31/2119, Reid to Scott, 2 Nov. 1967, and various minutes describing the documents in BNA FCO 31/211/4.

BNA FCO 31/211/11. Further requests to have these documents returned to Kenya were made in the 1974 and again in the early 1980s: Cary, The Migrated Archives.

The students who assisted in this process were Daniel Ostendorff, Jacob Wiebel, Emma Lochery, Patrycya Stys, Michelle Sikes, Yolana Pringle, and Michelle Osborn.

Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David McBeath Anderson, 24 March 2011.

Hanslope Disclosure[HD] E 16/3/8A, Governor Baring to the Secretary of State for the Colonies, 17 Jan. 1955.

These examples are from HD AA 45/35 1A.

HD REC/7.

HD AA 57A, vol. V.

HD AA 45/55/2/17.

Elkins, Britain's Gulag.

HD AA 57A, vol. V.

Ibid.

HD EMER 45/13/1/5/1A, vol. ii, and HD EMER 45/13/1/5/1A, vol iii.

For a brief discussion, see Anderson, Histories of the Hanged, intro.

It has now been acknowledged that these 13 boxes are ‘lost’. A listing of their titles shows that around 60 per cent relate to the Mau Mau Emergency.

Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Martin Tucker, and Exhibits 1, 2 and 4, 8 March 2011.

Hansard, available at: http://services.parliament.uk/hansard/Lords/byDate/20110405/writtenministerialstatements/part012.html

Hague quoted in The Times, 8 April 2011.

Cary, The Migrated Archives.

Ibid., 4–5.

Ibid.

Ibid.

Hansard, available at: http://services.parliament.uk/hansard/Commons/ByDate/20110630/writtenministerialstatements/part009.html