A historic legal ruling in London today could leave Britain’s government facing dozens of new court cases alleging systematic torture by the officers of its former empire dating back decades.
Three elderly Kenyans who say Britain’s imperial administration beat, raped, or castrated them in the 1950s have won the right to take their allegations to a full trial after a three-year legal battle. The claimants are asking for compensation and a government apology.
The High Court in London today dismissed arguments from Britain’s Foreign Office that a fair trial was impossible because many potential witnesses have already died and because the events in question happened so long ago.
“It’s a seismic ruling, with implications in multiple other former British colonial territories,” says Caroline Elkins, a Harvard University professor and author of “Imperial Reckoning,” a study of Britain’s conduct during its imperial administration in Kenya.
“This case didn’t come out of thin air. There are other colonial theaters – Palestine, Northern Ireland, Malaya, Aden, Cyprus – where a very similar kind of systematic brutality and violence played out,” Ms. Elkins says.
“The High Court has stated that, even 50 years later, governments can be held accountable for their actions. While it does not say that they will be, or what the outcome will be, it opens the door for these other cases to start too,” Elkins says.
In his ruling today, Justice Richard McCombe said there was enough potential evidence in Britain’s imperial archives available to both prosecution and defense to permit legal action to move forward.
“The documentation is voluminous … the governments and military commanders seem to have been meticulous record keepers,” Justice McCombe said when reading the ruling aloud in court.
“I have reached the conclusion … that a fair trial on this part of the case does remain possible and that the evidence on both sides remains significantly cogent for the court to complete its task satisfactorily,” McCombe said.
Assaulted and detained
The three claimants involved in yesterday’s historic ruling, Paulo Muoka Nzili, Wambuga Wa Nyingi, and Jane Muthoni Mara, all in their 70s and 80s, say they were violently assaulted during their detention by British forces ruling Kenya in the 1950s and 1960s.
They were interned during the Mau Mau rebellion, a revolt by mostly rural Kenyans against their imperial masters that led to thousands of arrests, detentions, and violent assaults on Kenyans. Thousands died.
Britain does not deny that its colonial officers "tortured" or "ill treated" Mr. Nzili, Mr. Wa Nyingi, and Ms. Mara. But all three are asking for an official apology from the British government and compensation for injuries they suffered, which includes lifelong complications that followed their abuse.
Martyn Day, the British lawyer representing the three Kenyans, called the court’s decision today “historic” and said it would “reverberate around the world.”
"There will undoubtedly be victims of colonial torture from Malaya to the Yemen from Cyprus to Palestine who will be reading this judgment with great care,” Mr. Day said.
“The British Government … has been hiding behind technical legal defenses for three years in order to avoid any legal responsibility,” Day said. “Following this judgment we can but hope that our government will at last do the honorable thing and sit down and resolve these claims.”
Room for appeal
Dozens of elderly Kenyans gathered at a Nairobi human rights organization’s office to hear the judgment today, and ululated, clapped, and danced when it was announced.
“I hope … this means that the British government will finally come here to give us something to support our families and to help us,” Wa Nyingi told The Christian Science Monitor after the Justice’s decision. All three victims were present at the human rights organization’s office when the announcement was read. Wa Nyingi finds it hard to understand the delay in issuing an apology and compensation, he says.
“It is wrong that this thing is taking so long.”
But he may have to wait even longer. After the ruling was issued, the British government announced it would appeal the decision.
“It seems that their strategy is to continue to fight this thing on legal technicalities until we die, and then the matter will be closed,” says Gitu wa Kahengeri, the head of the Mau Mau Veterans’ Association.
“We are all old people, if they can delay two or three years, it will be too late.”
A fourth claimant, Ndiku Mutwiwa Mutua, died earlier this year.
South Africa’s Archbishop Desmond Tutu called on Britain to “show some compassion” following the ruling.
“The British Government must now resolve this issue once and for all,” Mr. Tutu said.
“They have admitted these elderly Kenyans were tortured by British officials but have refused to apologize or to show any concern for their welfare. The Courts have now rejected their legal defense twice in two years. It is high time the government stops avoiding responsibility and shows some compassion.”
A spokesman for the British Foreign Office explained the reason for appeal centers around the ruling’s “potentially significant and far reaching legal implications.”
“The normal time limit for bringing a civil action is 3 to 6 years,” the spokesman said.
“In this case, that period has been extended to over 50 years despite the fact that the key decision makers are dead and unable to give their account of what happened. Since this is an important legal issue, we have taken the decision to appeal.”