Britain's colonial government in Nairobi did not operate a "system" of "abuses or maltreatment" in colonial Kenya — but even if it had, modern-day Britain could not be held liable for those long-ago crimes.
So argued the UK Foreign and Commonwealth Office (FCO), in a recently filed legal defense pertaining to a mass litigation that is quietly making its way through the UK High Court. The case has been filed on behalf of some 40,000 Kenyan nationals who say they were tortured, abused and mistreated during a bloody insurgency against imperial rule in the 1950s.
On December 10, lawyers separately representing the Kenyan claimants and the FCO met for a routine case management hearing at the labyrinthine Royal Courts of Justice in London. Amid small mountains of black binders, attorneys discussed progress on the landmark legal suit, which is set to go to trial in early 2016.
The case follows an earlier suit against the FCO, which settled last year when the British Government agreed to pay £19.9 million ($31 million) to 5,228 Kenyans who had been "subject to torture and other forms of ill treatment at the hands of the colonial administration" in the 1950s.
That payment was widely hailed as historic, marking the first time that colonial victims had been allowed to sue the British state in a British court. In June 2013, London offered its first official admission of gross misconduct during Britain's messy withdrawal from Kenya. After the decision, Kenyan survivors danced in the streets of Nairobi.
Speaking before parliament on the day of the settlement, then foreign secretary William Hague said he "sincerely regrets" the abuses and described the payout as "full and final."
But the fight is far from over. For several years, a number of British law firms — some, with no experience in Kenya — have been combing the bucolic countryside around Nairobi for potential abuse victims, and signing up claimants for a mass group litigation against the British government. Today, around 41,000 Kenyans are seeking damages of between £1,000 and £150,000 ($1,560 and $234,000) each, according to a copy of the claimants' Particulars of Claim obtained by VICE News. It seems that Britain's imperial misdeeds will once again face the scrutiny of the modern justice system.
'Some victims were Mau Mau rebels, but many others were civilians, including women and children, caught in a dragnet of colonial retribution. Many were murdered, and thousands suffered abuse or sexual assault during interrogation.'
Meanwhile, elderly Kenyan claimants are dying. Hundreds have passed away since last November, and proceedings have been held back by ugly spats between the numerous British lawyers representing the claimants. At last week's hearing, Guy Mansfield QC, who represents the FCO, referred to the tangle of claimants' attorneys as "warring parties."
Lawyers for the claimants argue that the UK Department of State, as a successor to the Colonial Office, is "jointly liable" for colonial crimes. They also accuse the British government of orchestrating a "system" of institutionalized abuse in Kenya. By this formulation, Britain would be liable for violence carried out by a range of non-British actors — including the Kenyan police — on the grounds that the "system" was imposed from above.
Lawyers acknowledge that the alleged government crimes are time-barred — and that the time limit on prosecution has long since expired. But they will appeal to Section 33 of the Limitations Act 1980, which allows a judge to use his discretion to exclude time limitations.
In its Generic Defense, dated October 31 and recently obtained by VICE News, the FCO counters that the Colonial Office operated independently from London, and thus Westminster "was not directly involved" in the "events complained of."
Lawyers also argue that, "a fair trial of the facts over 50 years after the index events is impossible," given insufficient evidence. The FCO acknowledges that the Colonial Government "took action to secure public safety" during the 1950s uprising, but denies that those measures "were unlawful."
The FCO made similar claims in the first round of prosecutions, but was, in each case, overruled. All along, the FCO has acknowledged that the Kenyan claimants had suffered outrageous torture while in detention, including castration with "large pliers which are used to castrate cows" and rape with a hot water-filled soda bottle. But the government denied that Britain was responsible, and later claimed that too much time had lapsed for a fair trial to take place. Those objections were overturned in 2011 and 2012 by Justice McCombe, who described the FCO's efforts to eschew responsibility as "dishonorable."
The charges against the British Empire date back to 1952, when colonial governor Sir Evelyn Baring declared a state of emergency in Kenya, in an effort to crush an anti-colonial revolt known as the Mau Mau Uprising — which saw several thousand Kikuyu tribes people swear an oath to fight British rule.
In the early 1950s, panicked colonial authorities began rounding up alleged rebels by the thousands. Over the next eight years, an estimated 25,000 were killed and over 1 million were displaced. Up to 150,000 were forced from their homes into a "pipeline" of barbed-wire detention facilities that then Attorney General Eric Griffith-Jones described as "distressingly reminiscent of conditions in Nazi Germany or Communist Russia."
Some victims were Mau Mau rebels, but many others were civilians, including women and children, caught in a dragnet of colonial retribution. Many were murdered, and thousands suffered abuse or sexual assault during interrogation. Official documentation from the period also refers to prisoners being roasted alive.
Around the time that the first trial began picking up speed, a consortium of British firms — some tiny personal injury firms based outside of London — entered the fray and dispatched lawyers to Kenya to search for would-be claimants. In October 2013, those firms were brought together in a Group Litigation Order led by Manchester-based Tandem Law. Shortly after, lawyers began advertising for clients in Kenyan newspapers.
Martyn Day of the firm Leigh Day, which represented Kenyans in the first Mau Mau suit, said that in 2012 he was approached to form a partnership with Tandem lawyers. But Day objected to Tandem's strategy of advertising for cases, fearing it would attract "people who had only come forward when they sniffed money."
Gordon Tucker, a solicitor at GT Law, which represents some 1200 Kenyan claimants, said that he got involved in the suit "purely by chance," when a lawyer he knew with contacts in Kenya said that there were abuse victims there waiting to be signed up. Tucker then traveled to Kenya where he met with village chiefs who encouraged villagers to join up.
This is where the two Mau Mau cases part ways. While the first trial was limited to Kenyans who suffered gross and life-threatening physical violence while in detention, the new case takes a much broader definition of "harm," and seeks damages for an enormous array of offences, including "forced labour," "an interference with their right to education," and "an interference with their freedom of thought."
Historian David Anderson, who provided testimony in the first case, says that this "generalist" strategy will make the new case a tougher sell. In the first case, Anderson said lawyers "avoided the generic claim that there was a kind of genocidal or ethnically-based assault against a whole people… because it was impossible to prove."
The bar for accepting clients has also been significantly lowered. In the first case, lawyers picked 5,228 evidence-backed claimants from a larger applicant pool of 50,000. All 5,228 had been members of the Mau Mau War Veterans Association prior to the launch of legal action — which lawyers felt was a testament to the validity of their stories. In this current case, 41,005 claimants were registered with somewhat less scrutiny.
If the case goes to trial, the High Court will try 25 test cases. The judge, presumably, will use those test cases to devise a formula for attaching price tags to various forms of half century-old pain.
Should the case proceed to trial, proceedings will be fantastically complex. File disclosure has barely begun, and already lawyers are working through 50,000 shared documents, some which deals with historical minutiae. At last week's hearing, Lisa Giovannetti QC, representing the FCO, cited a need to sort out the particular uniforms worn by particular guards at particular detention camps.
Surprising no one, the hearings have been languorous. At the December 10 hearing, a court clerk fell asleep before the assembled legal team, her eyelids fluttering as she struggled to stave off slumber. The judge rested his head in both hands. "This is such an important case for everybody," he sighed.
The pace picked up only around the issue of disclosure. Addressing the judge, lawyers for the claimants alleged that the FCO is still concealing and withholding a number of relevant historical files. "There are documents that the Foreign Office does not hold," on site, charged Myerson, "but about which it is aware."
When asked about the allegation, a spokesperson for the FCO told VICE News: "In light of the ongoing legal proceedings it would not be appropriate to comment."
Back in Kenya, the rush to sign up claimants has not proceeded smoothly. Kenyan officials report that "impostors" — some claiming to work for British firms — are swindling elderly Kenyans, who are made to believe that they, too, are entitled to British government payouts. Eric Mutua of the Law Society of Kenya (LSK) said "people are going around collecting money from the public, saying they are going to assist in listing them as claimants."
In recent months, several Mau Mau groups — all positioning themselves as the legitimate voice of the survivor community — have also turned inwards, and begun fighting among themselves about how to proceed with legal claims. "Promise of cash turns Mau Mau war veterans against each other," read one headline in Kenya's Standard Media. "The Scramble for Mau Mau proceeds," read another in The Nation.
Advocates of the first Mau Mau case hoped that a legal trial would inspire a more sophisticated public debate about Britain's long-lost empire, and, in particular, about crimes committed in its final hours. But those in government circles have cautiously avoided displays of post-colonial handwringing.
In an interview with London's Evening Standard in 2012, former UK Foreign Secretary William Hague, himself a historian, mused that Brits "have to get out of this post-colonial guilt… I think we should just relax. It's a long time ago, the retreat from Empire."
Follow Katie Engelhart on Twitter: @katieengelhart