Uingereza Yatoa Tamko Rasmi la Kuomba msamaha Wakenya wahanga wa Vita ya Mau Mau

Statement to Parliament on settlement of Mau Mau claims

Organisation:

Foreign & Commonwealth Office

Published:

6 June 2013

Minister:

The Rt Hon William Hague MP

World location:

Kenya

The Foreign Secretary made a statement to Parliament on the settlement of claims of Kenyan citizens relating to events between 1952 - 1963.

With permission, Mr Speaker, I would like to make a statement on a legal settlement that the Government has reached concerning the claims of Kenyan citizens who lived through the Emergency Period and the Mau Mau insurgency from October 1952 to December 1963.

During the Emergency Period widespread violence was committed by both sides, and most of the victims were Kenyan. Many thousands of Mau Mau members were killed, while the Mau Mau themselves were responsible for the deaths of over 2,000 people including 200 casualties among the British regiments and police.

Emergency regulations were introduced: political organisations were banned; prohibited areas were created and provisions for detention without trial were enacted. The colonial authorities made unprecedented use of capital punishment and sanctioned harsh prison so-called ‘rehabilitation’ regimes. Many of those detained were never tried and the links of many with the Mau Mau were never proven. There was recognition at the time of the brutality of these repressive measures and the shocking level of violence, including an important debate in this House on the infamous events at Hola Camp in 1959.

We recognise that British personnel were called upon to serve in difficult and dangerous circumstances. Many members of the colonial service contributed to establishing the institutions that underpin Kenya today and we acknowledge their contribution.

However I would like to make clear now and for the first time, on behalf of Her Majesty’s Government, that we understand the pain and grievance felt by those who were involved in the events of the Emergency in Kenya. The British Government recognises that Kenyans were subject to torture and other forms of ill treatment at the hands of the colonial administration. The British government sincerely regrets that these abuses took place, and that they marred Kenya’s progress towards independence. Torture and ill treatment are abhorrent violations of human dignity which we unreservedly condemn.

In October 2009 claims were first brought to the High Court by five individuals who were detained during the Emergency period regarding their treatment in detention.

In 2011 the High Court rejected the claimants’ argument that the liabilities of the colonial administration transferred to the British Government on independence, but allowed the claims to proceed on the basis of other arguments.

In 2012 a further hearing took place to determine whether the cases should be allowed to proceed. The High Court ruled that three of the five cases could do so. The Court of Appeal was due to hear our appeal against that decision last month.

However, I can announce today that the Government has now reached an agreement with Leigh Day, the solicitors acting on behalf of the Claimants, in full and final settlement of their clients’ claims.

The agreement includes payment of a settlement sum in respect of 5,228 claimants, as well as a gross costs sum, to the total value of £19.9 million. The Government will also support the construction of a memorial in Nairobi to the victims of torture and ill-treatment during the colonial era. The memorial will stand alongside others that are already being established in Kenya as the country continues to heal the wounds of the past. And the British High Commissioner in Nairobi is also today making a public statement to members of the Mau Mau War Veterans Association in Kenya, explaining the settlement and expressing our regret for the events of the Emergency Period.

Mr Speaker this settlement provides recognition of the suffering and injustice that took place in Kenya. The Government of Kenya, the Kenya Human Rights Commission and the Mau Mau War Veterans Association have long been in favour of a settlement, and it is my hope that the agreement now reached will receive wide support, will help draw a line under these events, and will support reconciliation.

We continue to deny liability on behalf of the Government and British taxpayers today for the actions of the colonial administration in respect of the claims, and indeed the courts have made no finding of liability against the Government in this case. We do not believe that claims relating to events that occurred overseas outside direct British jurisdiction more than fifty years ago can be resolved satisfactorily through the courts without the testimony of key witnesses that is no longer available. It is therefore right that the Government has defended the case to this point since 2009.

It is of course right that those who feel they have a case are free to bring it to the courts. However we will also continue to exercise our own right to defend claims brought against the Government. And we do not believe that this settlement establishes a precedent in relation to any other former British colonial administration.

The settlement I am announcing today is part of a process of reconciliation. In December this year, Kenya will mark its 50th anniversary of independence and the country’s future belongs to a post independence generation. We do not want our current and future relations with Kenya to be overshadowed by the past. Today we are bound together by commercial, security and personal links that benefit both our countries. We are working together closely to build a more stable region. Bilateral trade between the UK and Kenya amounts to £1 billion each year, and around 200,000 Britons visit Kenya annually.

Although we should never forget history and indeed must always seek to learn from it, we should also look to the future, strengthening a relationship that will promote the security and prosperity of both our nations. I trust that this settlement will support that process. The ability to recognise error in the past but also to build the strongest possible foundation for cooperation and friendship in the future are both hallmarks of our democracy.

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The Royal African Society: "Litigating Colonial Atrocity - Mau Mau and Herero"

This panel explored the joint case on litigating reparations initiatives for the Herero Genocide in German South-West Africa (1904-08) and the Mau Mau Emergency in British Kenya (1952-1960). Both historical events can be described as two of the most atrocious chapters in the book of European colonialism in Africa and the groundbreaking scholarship of the panel's speakers has been instrumental in pursuing the respective legal actions against the Federal Republic of Germany and the United Kingdom.

David Anderson on the Mau Mau case

For many years in Kenya Mau Mau was deemed best forgotten. Reparations movements were suppressed under the Kenyatta government. However, in the 1990s a number of reparation organisations were formed. Originally these were local in focus – largely being claims for property stolen whilst suspected Mau Mau members were imprisoned. The Kenyatta government was not keen on opening up this potentially divisive subject, and so several thousand claim cases were recorded but never brought to court. In effect, the government helped suppress the national memory of Mau Mau.

In the 1990s the Kenya Human Rights Commission (KHRC) was formed, following a global shift towards such rights and entitlements. The KHRC was however initially reluctant to take on seemingly ‘unwinnable’ Mau Mau case. Difficult questions existed as to which courts would hear cases of claims against the British government and under which national jurisdiction would they occur?

The KHRC did however take up the cases, and it is important to note that the momentum towards litigation by Mau Mau claimants pre-dated the publishing of books on the subject – notably David Anderson’s Histories of the hanged and Caroline Elkins’ Britain’s Gulag – which both came out in 2005. These publications however provided the claimants (and their lawyers) with greater ammunition for their cases. The Kenyan government has been a little wary about the implications of successful claims, as it is not keen to arbitrate on who should benefit from reparations. The Mau Mau claim is also seen as being nationally divisive, as Mau Mau is not considered a national movement but rather an ethnic one. Under the present coalition government, no one in Kenya wants to tackle such potentially divisive subjects.

David Anderson’s role in the current Mau Mau case (to go to court in London on 4th April) is that of an expert witness. As such, he provided historical background from his own research.

Anderson stated that at the atrocities that took place by – or on behalf of – the British government, between 1952 and 60, were not a secret. They were widely reported on by the British press, but no one felt the need to do anything.

They Kenya National Archive has very good records from the Mau Mau period. However, Anderson made the point that things are missing. Areas in which documents are missing are easily identified by any historian, as it is obvious when certain categories of documents have been removed. For example, documents about detentions centres, screening teams (set up to conduct interrogations) and collective punishments (administered to entire villages) are missing, when it is known that records of all such actions were taken.

The case currently under preparation is focussed on 5 claimants who claim torture in a variety of different prison camps. Lawyers are charged with proving British government culpability and liability for the torture.

Whilst culpability may be proven, liability is more problematic. One argument which seeks to counter liability claim is that, upon independence, Kenya’s assumption of its national sovereignty was an implicit acceptance of liability for any outstanding claims against its national administration. This logic may mean that the British government accepts culpability for torture (from the time of its sovereignty over Kenya) but is not liable for it.

Anderson stated that he has tried to persuade the British government that an out of court settlement would be the best solution. This would ideally also include a public acknowledgement of wrongdoing, and even an apology. This is what happened with the German government and the case of the Herero. An apology and a ‘gift’ – to be used for developmental purposes – was provided. It was stated that some progress was made on this under the last government.

In his statement to the courts for the upcoming case Anderson cited the existence of missing documents. He stated that these documents may have been removed by the exiting British administration in 1963. Evidence was provided from documents Anderson has seen which detail certain files that were ‘retrieved’ to London upon independence. These removals were of a significant scale – there are references to ‘3 crates of documents’ having been ‘retrieved.’ These documents have now however been found, and were released to both defence and prosecution. An open question was asked as to whether this was a ‘cock up or conspiracy.’

Whilst the missing documents in the Kenya case have been found, Anderson questioned whether in other instances – Malaya, Cyprus, Nigeria (to name just 3 possible examples) – there might also be missing documents, ‘retrieved’ to London, with much to tell us about the actions of colonial administrations.

The Mau Mau claim is not the only claim the British government may have to worry about. Claims mau arise from, for example Malaya or Palestine, and as such there is a fear that a successful claim could set a precedent for reparations claims. However, the point was made that the ongoing Mau Mau case does affect relations between Britain and the Kenyan government. Anderson strongly advocates that it would be better for all involved to settle out of court.

Robert Murtfeld on the Herero case

Robert Murtfield is a PhD student focussed on international law – with a focus on the case of the Herero genocide in what is now Namibia. He has been working on the Herero case for 5 years.

In 2004 the Herero recognised the centenary of the genocide carried out against them by the German army in South West Africa. This centenary was also made notable by the delivering of an apology by the German Minister for Economic Development and Cooperation. Murtfield however stated that this apology never received German parliamentary approval, and was framed in a development context. In essence, it was not enough, and Murtfield now seeks to revitalise the Herero debate 10 years after the 2004 apology.

The case of the Herero exemplifies a very violent instance of colonialism. German South West Africa (modern day Namibia) was the primary German settler colony. The Herero – who were the original occupiers of this land – felt threatened by the settler presence, and started a war against the settlers, killing 120 – 130 of them. The imminent loss of control of its colony engendered a military response from the German government. The Herero were militarily encircled and given one route through which they could escape – by crossing the Kalahari desert. This was in essence an order of extermination.

As with Kenya and the Mau Mau, the actions of the colonial military/administration were not a secret. The extermination order by the commander of the German forces was communicated back to Germany where it was initially accepted. The order was later withdrawn, but concentration camps (based on the British model from the Boer War) were set up, where many Herero were worked to death.

A case brought against the Federal Republic of Germany through a US court failed due to the inability of such a court to rule upon what was a German case. The Herero could also not appeal to the International Court of Justice (ICJ), as the ICJ only deals with appeals made by states (the claim was made on behalf of the Herero and not Namibia as a national entity.) The Herero case had a complex national politics to it in Namibia, as Germany is the biggest aid donor to Namibia. The Namibian government did not want to endanger this aid due to the actions of one section of its population.

Both presentations demonstrated the difficulties inherent in international law, and emanating from national governments, in gaining reparations for such claims. The Mau Mau litigation - begining of April 4th - could make history as the first successful example of such a claim.

Many thanks to The Royal African Society for tweeting  to me the link to the article

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Fidia Dhidi ya Ukoloni: Kesi ya "Mau Mau" vs Waingereza yaanza London

Wakenya wanne wanaodai waliteswa na utawala wa kikoloni wa Uingereza katika jitihada zake za kukandamiza harakati za kundi la Mau Mau,wamefungua kesi jijini London.

Kundi hilo linalodai fidia katika mahakama kuu ya hapa linadai kuwa walishambuliwa na maafisa wa serikali ya kikoloni ya Uingereza nchini Kenya kati ya mwaka 1952 na 1961.

Maelfu ya wanaharakati wa Mau Mau waliwekwa kwenye kambi za wakoloni hao na kuteswa huku wengine wakiuawa,wanasema wanaharakati hao.

Serikali ya Uingereza inadai kuwa muda mrefu umepita tangu yalipotokea matukio hayo,na hivyo inadai haiwajibiki nayo.

Hatua hiyo ya kisheria inachukuliwa na wanaume watatu na mwanamke mmoja ambao umri wao ni kati ya miaka 70 na 80.

Mawakili wao wanadai kuwa Wakenya hao wanne wanawakilisha sehemu kubwa ya jamii ya Wakenya walionyanyaswa kutokana na ushiriki wao,au kuhusiswa na harakati za mapambano dhid ya wakoloni katika miaka ya 1950s.

"Wizara" ya Mambo ya Nje ya Uingereza (Foreign Office) inakiri kwamba suala la Mau Mau linazua hisia kali na kwamba zama hizo zilisababisha maumivu makubwa kwa pande zote.

Hata hivyo,"Wizara" inaeleza kuwa Uingereza itajitetea kikamilifu dhidi ya madai yaliyomo kwenye kesi hiyo,ikidai kuwa haiwajibiki.

Uchambuzi wa nyaraka zinazohusiana na kesi hiyo umepelekea kugundulika kwa maelfu ya mafaili ya tawala za kikoloni za Waingereza,ikiwa ni pamoja na nchini Kenya,na "Wizara" ya Mambo ya Nje inatarajia kuweka rekodi hizo hadharani.

Harakati za Mau Mau zilianza miaka ya 1950s kwa lengo la kudai ardhi iliyoporwa na utawala wa kikoloni.

Wanahistoria wanadai kuwa harakati za Mau Mau zilichangia katika kupatikana uhuru wa Kenya.

Hata hivyo,harakati hizo pia zilishutumiwa kwa ukatili dhidi ya wakulima wa kizungu na mapambano ya umwagaji damu dhidi ya askari wa utawala wa kikoloni.

Kamisheni ya Haki za Binadamu nchini Kenya imesema kuwa zaidi ya Wakenya 90,000 waliteswa au kuuawa katika kipindi hicho,na watu 160,000 waliwekwa kizuizini katika mazingira ya kuogofya.

Ripoti rasmi iliyochapishwa mwaka 1961 ilidai kuwa zaidi ya Waafrika 11,000,wengi wao wakiwa raia wa kawaida,na wazungu 32 waliuwa katika kipindi hicho.

Habari hii imeandaliwa kutokana na habari kwenye kipindi cha "Breakfast" cha BBC1 Scotland na tafsiri isiyo rasmi kutoka kwenye tovuti ya BBC

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