Government 'not liable for torture'

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The Independent Online

The Government cannot be held legally liable for British colonial atrocities committed during the Mau Mau Uprising, the High Court heard today.

The Foreign and Commonwealth Office wants a claim by four elderly Kenyans struck out by Mr Justice McCombe and summary judgment granted in its favour.



Its counsel, Robert Jay QC, told a packed courtroom in London that it did not seek to diminish the appalling acts committed in detention camps between 1952 and 1961 but said the case was "built on inference" and ended in a "cul-de-sac".



The test case claimants, Ndiku Mutua, Paulo Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara, who are in their 70s and 80s, have flown 4,000 miles from their rural homes for the trial, which will also consider whether the claim was brought outside the legal time limit.



The judge heard that Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to appalling sexual abuse.



Acknowledging their attendance, the judge asked counsel to convey the court's appreciation of their presence "whatever the results of this case".



The FCO argues that legal responsibility was transferred to the Kenyan Republic upon independence in 1963.



Earlier, the claimants' solicitor Martyn Day said the case was "not about re-opening old wounds".



"It is about individuals who are alive and who have endured terrible suffering because of the policies of a previous British government.



"They are now seeking recognition and redress in the form of a carefully conceived welfare fund. It is incumbent on the Government to treat such people with the respect and dignity they deserve."











Mr Jay said the litigation was mainly concerned with what happened in detention camps, the responsibility for which lay with commissioners and superintendents who were in the employment of the Colonial Administration in Kenya - the entity constitutionally responsible for the government of the colony until independence.



The role of the regular forces of the British Army was to fight the battle against the Mau Mau in the forests but they played no part in the "screening" activities - a system of interrogation to identify suspects - within the camps.



He rebutted the claim that the liabilities of the Colonial Administration were transferred to the UK upon independence.



The claimants had identified no legislation which achieved such a transfer, it could not have happened automatically and was without historical precedent.



He said the claim that the British Army was jointly liable with the Colonial Administration for creating a system through which detainees were assaulted had no real prospect of success.



Responsibility for the system, including all decisions made within it, rested solely with the Colonial Administration.



If the court came to consider whether the claims were "time-barred", the FCO's case was that they should not proceed.



It would not be possible to conduct a fair trial by reviewing the documentary materials alone, and evidence was not available from anyone responsible for policy at a high level in the British Army, the Colonial Administration or the Colonial Office.



The formulated claims were "extremely weak", all potential witnesses were old and their memories were necessarily patchy.



Even if they could refresh their memories by reviewing and commenting on the disclosed documentation, the nature of the issues would render the whole process "oppressive, unworkable and unfair".



"It cannot reasonably take place so long after the material events, and the FCO is irredeemably prejudiced by the delay, whatever the reasons for it."

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