Alchemy of Evidence: Mau Mau, the British Empire, and the High Court of Justice

Abstract

Restorative justice in various forms is a phenomenon that has swept across the globe over the last three decades. Most recently, it is unfolding in the High Court of Justice in London where five Kenyans have filed a claim against the British government, alleging that they suffered acts of mistreatment and torture at the hands of British colonial and military personnel. Three revisionist Mau Mau historians have served as advisors and expert witnesses for the claimants. Judicial procedure and the positivist stance of the court have framed their production of evidence and its reading. This article will examine the production of the historians’ witness statements, and the impact that the recent Hanslope Disclosure has had upon their work. The discussion is framed within the broader context of Mau Mau revisionism and the critiques that ensued after the publication of Imperial Reckoning and Histories of the Hanged.

Notes

Comaroff, ‘Reflections on the Rise of Legal Theology’. I have also benefitted enormously from various conversations with John and Jean Comaroff regarding issues of lawfare, history, and the ongoing Mau Mau court case in the High Court of Justice in London. I am indebted here to their discussions of restorative justice in their forthcoming book, Theory from the South, particularly chapter 6, ‘History on Trial: Memory, Evidence, and the Forensic Production of the Past’.

Paxton, Vichy France; Marrus and Paxton, Vichy France and the Jews.

Comaroff and Comaroff, Theory from the South, Chapter 6. See also Harries’ thoughtful piece, ‘From Public History to Private Enterprise’.

McCombe, Summary of Judgment.

Again, I am indebted to Comaroff and Comaroff for their reflections of ‘history on trial’, particularly as contained in their forthcoming work, Theory from the South.

Justice McCombe recently underscored this point when he wrote, ‘It will readily be appreciated that this is novel type of clam on which there is not direct precedent to determine the matter in a court of first instance.’ McCombe, Summary of Judgment.

Elkins, Imperial Reckoning; Anderson, Histories of the Hanged; Bennett, British Army.

See, for example, the remarks of Dan Leader of Leigh Day and George Morara of the Kenya Human Rights Commission in ‘Strong Evidence’, Harvard Gazette, 3 Aug. 2011.

Wilson, Politics of Truth, 59, as cited in Comaroff and Comaroff, Chapter 6.

Anderson, Histories of the Hanged, 2.

See, for example, Anderson's description of his use of capital case records, Histories of the Hanged, 6–8.

Anderson, Histories of the Hanged, 8.

Elkins, Imperial Reckoning, xv. For references to systemised violence, see, for example, Imperial Reckoning, 324, 328, 329, 339, 349, 352.

Mamdani, ‘Colonial Legacies’.

Porter, ‘How Did They Get Away with It?’, 4; Newsinger, ‘English Atrocities’, 156–57; Ogot, ‘Britain's Gulag’, 494, 499.

Ogot, ‘Britain's Gulag’, 499.

Imperato, ‘Differing Perspectives’, 147.

See, for example, Lewis, ‘Nasty, Brutish’; Carruthers, ‘Being Beastly’; Ogot, ‘Britain's Gulag’.

Elstein, ‘The End of Mau Mau’. See also, Elstein, ‘Tell Me Where I'm Wrong’. Elstein has also published a variety of other critiques, including those in The Guardian and on Open Democracy.

Elkins, Imperial Reckoning, 318–31; BBC Documentary, ‘Kenya: White Terror’, aired in Britain 17 Nov. 2002; and Hanslope Disclosure (HD), File AA 57A, Vol. V.

For example, Murphy in his ‘Book Review of Histories of the Hanged and Britain's Gulag’, 427; Lewis, ‘Nasty, Brutish’, 220, fn 27.

Elkins, Imperial Reckoning, xiii, 430.

Lonsdale, ‘Britannia's Mau Mau’, 270.

See Anderson, Histories of the Hanged, 314, 384, fn. 51. Note that these findings were included in my dissertation, as cited by Anderson. They were also published variously prior to Imperial Reckoning including in my contribution to Mau Mau and Nationhood. See Elkins, ‘Detention, Rehabilitation’. For the mention of the 150,000 figure, see Anderson, Histories of the Hanged, 5.

For my contribution to this volume, Elkins, ‘Detention, Rehabilitation’. For a co-authored work, see Elkins and Lonsdale, ‘Memories of Mau Mau’.

Blacker, ‘Demography of Mau Mau’.

Blacker, ‘Demography of Mau Mau’, 205.

Blacker, ‘Demography of Mau Mau’, 224.

Blacker, ‘Demography of Mau Mau’, 209–10.

Elkins, Imperial Reckoning, 366.

Anderson, Histories of the Hanged, 2.

McCombe, Summary of Judgment.

Witness Statement of Caroline Macy Elkins (20 Feb. 2011). McCombe, Approved Judgment, 4–5.

McCombe, Approved Judgment.

TNA, CO 822/471/5, ‘Canon T.F.C. Bewes, African Secretary of the CMS on his special mission to the “Mau Mau” area of Kenya’, 9 Feb. 1953; TNA, CO 822/471/7, cable from Granville Roberts to Potter, 10 Feb. 1953; and TNA, CO 822/1230, Macleod to Renison, 10 Nov. 1959.

Elkins, Imperial Reckoning, xiii.

See http://services.parliament.uk/hansard/Lords/bydate/20110811/writtenanswers/part102.html.

McCombe, Approved Judgment.

There was significant media coverage around the April 2011 proceedings in the High Court of Justice and the Hanslope Disclosure. The media, while to be applauded in its coverage of these events, often failed to recognise the significance of the previously identified archival evidence before the court (indeed, without it there likely would not have been a case, and with it the Hanslope Disclosure). This is the case in instances of media coverage around the Mwea Camps and the dilution technique, the uses of forced labour in the camps, and official efforts at cover-up. Nor were many journalists able to distinguish newly released files from files previously in the public domain. See, for example, Ben MacIntyre's extensive coverage in The Times.