The Mau Mau claims
Leigh Day acted on behalf of 5,000 Kenyan nationals who were subjected to torture and other forms of ill-treatment at the hands of the British colonial administration during the Kenya Emergency in the 1950s.
Thousands of Kenyan nationals were subjected to torture and other forms of ill-treatment at the hands of the British colonial administration during the Kenya Emergency in the 1950s. Detainees were subjected to arbitrary killings, severe physical assaults and extreme acts of inhuman and degrading treatment.
We acted for over 5,000 survivors, obtaining an apology from the British Government, £19.9 m of compensation, and an agreement that the government would finance the construction of a memorial in Kenya to the victims of colonial era torture.
The Kenyan claimants
On the 23rd of June 2009, Leigh Day issued a claim for compensation for alleged torture against the British Government on behalf of five elderly Kenyans who had been detained and tortured by the British colonial administration in Kenya during the Kenya Emergency.
These claims were launched as test cases and it was anticipated that, if successful, they would result in redress for the wider community of Kenyan victims of colonial era torture.
In October 2012, the claimants won a historic legal victory when the High Court rejected the British Government’s attempt to strike out the claims of British colonial torture by the test claimants, on the grounds that the claims were time barred.
The previous year, in July 2011, the test claimants had won another legal victory when the High Court rejected the British Government’s attempt to strike out the claims of Kenyan victims of British Colonial torture on the grounds that it was the Kenyan Government who were liable for the abuses of the British colony.
After issuing these test cases, Leigh Day continued its investigations with the Kenya Human Rights Commission and identified over 5,000 further victims of colonial era torture in Kenya who subsequently became clients of the firm.
Importantly, the victims of colonial era torture often had little or nothing to do with the Mau Mau but were detained without trial if they thought to have any connection with the insurgency.
They are men and women from different Kenyan communities who have each suffered unspeakable abuses, including castrations and severe sexual assaults which in many cases has left them with lifelong physical and mental scars.
Our clients' testimony
Paulo was born in 1927 at Mulumine in Makueni District, and is now 86 years old. He was forced to join the Mau Mau in March 1957 but decided to abandon the movement about six months later.
As he was travelling home in August 1957, he came across three armed African Policemen who demanded that he surrender to them. They arrested him and took him to the Embakasi Detention Camp.
A few days after arriving at the camp, Paulo was forced to strip naked and squat with his hands between his legs. He was then violently forced to the ground and his legs were held astride.
Paulo was then castrated with pliers. After being castrated Paulo’s genitals became heavily swollen and he was taken to the King George Hospital.
Paulo stayed in hospital for two weeks before being taken to Manyani Detention Camp. At Manyani Detention Camp Paulo witnessed detainees being beaten with sticks on a daily basis, the beatings were so brutal that some detainees died as a result.
After almost a year in detention he was released without charge. At no point was he brought before a court of law. Paulo has never been able to have children following his castration.
Paulo describes his ordeal in his own words in his witness statement, an extract of which is below:
“I was taken to an open area in the camp where Luvai (a British Colonial officer) stripped me of my clothes in front of all the other detainees.
"Kwatanehi was told to pin me to the ground. He was a very strong man. He pulled my right arm violently from behind me, through my legs which caused me to somersault over onto my back.
"They tied both of my legs with chains and Kwatanehi pinned down both of my hands. Luvai then approached me with a large pair of pliers which were more than a foot long and castrated me.
"Both the veins of my testicles were completely cut but the testicles themselves are still in place. As a result, my testicles have completely shrivelled up. I forgive him for what he has done to me. There is nothing I can do, the only thing I can do is to forgive.
"You cannot repay a sin with a sin. That will not give me back what was taken away from me…. However, I do want to ask the British Government to recognize the wrong that was done to me.
"I was injured permanently when I was tortured by the Colonial Administration and my life has been very bitter as a result. I would like to receive an apology for what happened.”
Wambugu was born in 1928 in Nyeri District, Central Province, and is now 85 years old. Prior to his arrest he worked as a tractor driver and was a member of the Kenya African Union (KAU), a political party which advocated freedom, independence and land rights for Kenyans.
At no point did he take the Mau Mau oath.
On 24 December 1952, Wambugu was arrested at his home by a group of seven white officers from the Kenya Regiment at about 1:00am.
He was taken to Kia Riua Screening Camp in Aguthi where he was detained for about six to eight months. He was never charged with an offence, nor was he brought before a court during the subsequent 9 years he was detained. At that camp he witnessed a particular incident where 16 detainees had their names called out.
They were all then beaten and 14 were killed by the assistant chiefs with the help of the Home Guards. Wambugu was transferred from camp to camp around Kenya where he was subjected to forced labour and beaten daily with canes and sticks.
On one occasion, he was beaten senseless by the prison wardens.
At Mageta Island Detention Camp in Lake Victoria he was denied food for twelve days.
From Mageta Island Wambugu was transferred back to Athi River Camp, where he was detained for about three months. Whilst at Athi River Camp, Wambugu was tied upside down by his feet and beaten whilst cold water was poured on him.
Wambugu still has black marks around his ankles as a result. At the same time Wambugu was interrogated and told to confess to having taken the Mau Mau oath.
He was transferred to Mwea Camp which was presided over by an English officer named Terrance Gavaghan. Wambugu was personally interrogated by Gavaghan, whilst being beaten by his officers.
On one occasion Wambugu was beaten with 72 strokes of a cane whilst Gavaghan watched. Wambugu was then transferred to Hola Camp.
He was involved in the infamous Hola massacre where eleven detainees were beaten to death after they refused to dig their own graves.
In this incident Wambugu was severely injured and beaten unconscious and left for days with the dead corpses.
He was finally released from detention in January 1961. In total he spent 9 years in detention without charge.
Wambugu describes his ordeal in his own words in his witness statement, an extract of which is below:
“I was battered on the back of my head and around my neck repeatedly with a club. I believe that the beating went on for up to 20 minutes.
"I saw one detainee very badly injured and his insides were exposed. All of a sudden another crushing blow hit the back of my head. I saw red and I passed out.
"All the 11 were killed with clubs and no firearms were used. I lost my friends, Migwe Ndegwa and a Turkana detainee.
"I lay unconscious with the 11 corpses for two days in a room where the corpses had been placed awaiting burial. The people who put me there thought I was also dead but I was in fact unconscious.
"A European doctor came to check on the bodies. As he was checking the bodies he noticed that I was alive and I was taken to a hospital outside the camp.
"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.
"If I could speak to the Queen I would say that Britain did many good things in Kenya but that they also did many bad things. The settlers took our land, they killed our people and they burnt down our houses.
"In the years before independence people were beaten, their land was stolen, women were raped, men were castrated and their children were killed. I do not hold her personally responsible but I would like the wrongs which were done to me and other Kenyans to be recognised by the British Government so that I can die in peace.”
Jane was born around 1939 at Nguguini in the Embu District, and is now 74 years old.
In 1954, when she was about 15 years old, Jane was taken from her home, accused of being a Mau Mau sympathiser and arrested.
She was transported to Gatithi Screening Camp. Jane was then taken to a tent and interrogated and interrogators forcefully inserted a glass bottle full of hot water into her vagina.
This abuse was supervised by a white officer and was administered to many women. She knew of several women who were seriously injured as a result of the abuse.
Jane was then transferred from camp to camp where she was systematically beaten with whips and sticks and deprived of food and water.
Jane knew of many people who died in the camps because of the abuse they received. Jane was finally released in 1957.
Jane describes her ordeal in her own words in her witness statement, an extract of which is below:
“Suddenly there were four guards hovering around me. I was then pinned down to the floor by one man when held my shoulders.
"Two other men held each arm and one man prised open and held my thighs apart. Edward was sitting on a chair directly in front of my spread legs and was pressing on my bare feet with his spiky army boots.
"I was screaming and resisting and trying to wriggle and free myself from the men who were holding me down. Suddenly Edward produced a glass soda bottle. Waikanja told him to push the bottle into my vagina which he did. I felt excruciating pain and then realised that the glass bottle contained very hot water.
"Edward literally forced the bottle into me with the sole of his foot while Waikanja was looking on and directing him.
"I was in so much pain and I could not stop crying and screaming. I felt completely and utterly violated by this sexual torture, but I continued to insist that I had not taken an oath.
"This lasted for about 30 minutes and was very painful. When I was in the tent, I saw this being done to the other three women. I had never seen anything so brutal and terrifying in all my life.
"The abuse has affected my whole life and I relive the events I lived through on a regular basis. I do not understand why I was treated with such brutality for simply having provided food to the Mau Mau.
I killed no one, I harmed no one, all I wanted to do was to help those who were fighting for the dignity and freedom of our people. 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.”
Historical background
The Role of expert historians
The full extent of the abuses committed by the British colonial administration during the Kenya Emergency (1952-1960) has only recently been understood.
In 2005 two ground-breaking academic studies about the Emergency dramatically changed the accepted understanding of this period of history.
These were: Imperial Reckoning: the Untold Story of Britain’s Gulag in Kenya by Professor Caroline Elkins of Harvard University and Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire by Professor David Anderson of Warwick University.
Both these studies, which were based on extensive archival research and witness evidence from both Kenya and the UK, concluded that there was regular and widespread abuse of detainees during the Kenya Emergency.
Subsequent work by Dr Huw Bennett of Aberystwyth University has built upon this revised history and brought to light the crucial role of the British Army in Kenya during the Emergency, and its role in the abuses.
Professor David Anderson, Professor Caroline Elkins, and Dr Huw Bennett have each provided extensive statements in support of the claimants’ claims. These statements have been complemented with statements of first witnesses to events in Kenya during the Emergency.
The “Kenya Emergency” (1952 – 1960)
The 'Kenya Emergency' or 'Mau Mau rebellion' lasted from 1952 to 1960. The core of the resistance to colonial rule was formed by members of the Kikuyu ethnic group, although a wide range of other Kenyan tribes also participated.
In 1952 the Governor of Kenya, Sir Evelyn Baring, declared a state of emergency and obtained authorisation from the Colonial Office in London to detain suspected Mau Mau members without trial.
In June 1953, British Army General Sir George Erskine arrived in Kenya to direct the security forces’ operations against the Mau Mau, with a mandate to restore law and order to the colony. Erskine had full operational control of both the colonial security forces and the British Army which had been deployed to Kenya to counter the insurgency.
On 24 April 1954, the Colonial Administration launched an assault on the Mau Mau which was known as “Operation Anvil”, whereby 17,000 Mau Mau suspects were rounded up and incarcerated in detention camps without trial. Detainees were moved from one camp to another, where the treatment was of increasing or decreasing severity depending on the detainee’s willingness to cooperate and denounce the Mau Mau.
In particular, detainees were expected to confess that they had taken “the Mau Mau oath” and to repent of having done so.
In 1954, in a process known as “villagisation” was initiated and in the region of 1 million Kenyans were forced to burn their homes and rounded up for six years in 854 villages fenced with barbed wire where acts of brutality by colonial guards were widespread.
It is estimated by historians that, over the years which followed, as many as 150,000 suspected Mau Mau members and sympathisers were detained without trial in a labyrinth of about 150 detention camps and 'screening centres' littered around Kenya known as 'the Pipeline'.
From the inception of the detention camps the Colonial Administration engaged in widespread acts of brutality. Detainees were subjected to arbitrary killings, severe physical assaults and extreme acts of inhuman and degrading treatment.
The acts of torture included castration and sexual assaults which, in many cases, entailed the insertion of broken bottles into the vaginas of female detainees.
Camp guards engaged in regular severe beatings and assaults, often resulting in death. In the course of interrogations in some cases guards would hang detainees upside down and insert sand and water into their anuses.
In 1957, the Colonial Administration decided to subject the detainees who still refused to cooperate and comply with orders to a torture technique known as 'the dilution technique'. The technique involved the systematic use of brute force to overpower the Mau Mau adherents, using fists, clubs, truncheons and whips.
This brutality would continue until the detainees cooperated with orders and ultimately confessed and repented of their alleged Mau Mau allegiance.
The violence in the camps culminated in March 1959, when eleven detainees were killed by camp guards in a single incident at a detention facility known as the Hola Camp.
The resulting inquest found that each death was caused by shock and haemorrhage due to multiple bruising caused by violence at the hands of camp officials.
The public outcry which resulted from the Hola killings lead to the Fairn Report, which was published on 1st September 1959 and reported the use of excessive force in the emergency detention camps.
The Emergency was ended on 13th January 1960 and the camps were subsequently closed.
Harold Macmillan gave his 'Winds of Change' speech on 3rd February 1960 and Kenyan independence was eventually granted in 1963.
Professor Elkins states: “There is no record of how many people died as a result of torture, hard labour, sexual abuse, malnutrition, and starvation. We can make an informed evaluation of the official statistic of eleven thousand Mau Mau killed by reviewing the historical evidence we know…The impact of the detention camps and villages goes well beyond statistics. Hundreds of thousands of men and women have quietly lived with the damage – physical, psychological, and economic – that was inflicted upon them during the Mau Mau war.”
Hanslope Park disclosure
The Mau Mau case led to the discovery and release of thousands of formerly secret files held by the Foreign and Commonwealth Office (FCO) at its archives at Hanslope Park, Milton Keynes.
These secret files had been evacuated out of Kenya before independence as they were deemed too sensitive to be allowed to fall into the hands of an independent Kenyan Government.
Professor David Anderson had found papers in the archives which referred to the secret archive of secret documents from Kenya and referred to them in his first witness statement in the case. As a result the Government was obliged to search for the missing archive which was discovered in 2011.
The documents proved to be an important addition to the documentary record which was already publicly available at the British National Archives in Kew, and the Kenyan National Archives in Nairobi.
They provided many hitherto unseen documents which described in detail the systemic torture of detainees during the Emergency, and the knowledge of those abuses by British Government officials in London and Nairobi.
This included correspondence between the British Government and the colonial administration, and internal colonial administration correspondence and minutes of meetings at every level of government.
The documents were reviewed by the claimants’ expert historians and teams of researchers and lawyers. Further expert statements were then served in the case summarising the new evidence which had emerged through the Hanslope disclosure.
The documents proved critical to the claimants’ case on the issue of limitation in October 2012.
Mr Justice McCombe, now Lord Justice McCombe, held that the wealth of documentary evidence now available meant that a fair trial could be held over 50 years after the events in question in large part because of the vast documentary trail of evidence which was available to the Court.
The Hanslope Park files also included secret papers from 37 other ex-colonial territories which are slowly being released into the public domain for the first time and which has stimulated new research into British colonial rule around the world.
International response
Since the claimants began their case against the British Government in June 2009 they have received generous support in their pursuit of justice from the Kenyan Government and many leading figures from Africa and elsewhere.
In 2010, the Kenyan Government, in a statement made by its Minister for Foreign Affairs, gave its “full support” to the claimants’ case. It strongly refuted the suggestions that the Kenyan Republic was legally liable for the atrocities: “ The Kenyan Government does not accept liability for the torture of Kenyans by the British colonial regime. In no way can the Kenyan Republic inherit the criminal acts and excesses of the British colony and then the British Government.”
A further letter was sent to David Cameron by the then Kenyan Prime Minister, Raila Odinga, in October 2012, urging him to resolve this issue which had become “a stain in our long and strong relationship”. Britain has been a "vocal advocate of respect of human rights in Kenya", he added: "The people of Kenya would like to see a similar approach by your government towards accusations of torture against its own officials."
In February 2012, the African members of the “Elders”, namely Archbishop Desmond Tutu, Lakhdar Brahimi, and Graça Machel submitted a letter to Prime Minister David Cameron urging a fair resolution of the claims. They expressed their concern that “the British Government’s repeated reliance on legal technicality in response to allegations of torture of the worst kind will undermine Britain’s reputation and authority as a champion for human rights. Our concern is that this, in turn, will have a damaging effect on the fight against impunity across Africa.”
In March 2013, United Nations’ Special Rapporteur on Torture, Juan Mendez, spoke out in favour of the claimants. He called on the British Government to fully investigate the allegations made and provide “full redress to the victims, including fair and adequate compensation, and as full rehabilitation as possible in accordance with international law.”
Most recently, in April 2013, Liberty submitted a letter to the Prime Minister which was signed by the current and three former UN Special Rapporteurs for Torture, and other notable human rights figures. They wrote:
“The stance the British Government has taken to these issues is entirely inconsistent with the spirit of the United Nations Convention Against Torture, our international legal obligations and the ethical values to which Government Ministers frequently lay claim. Britain’s complete unwillingness to deal honourably with victims of its own breaches of human rights in Kenya undermines Britain’s moral authority in the world.”
Finally, the REDRESS Trust, as interveners in the case, made written and oral submissions to the High Court on the issue of limitation periods under English and international law.
REDRESS instructed leading silk Elizabeth-Anne Gumbel QC who argued that statutes of limitation to certain categories of international crimes are inapplicable. Further, international criminal forums such as the International Criminal Court allow for reparations to be made to victims without the applicability of any statutes of limitation and there are numerous declaratory statements of UN human rights mechanisms that civil claims for violations such as torture should not be subject to time limitations.