'Historic ruling' as judge rules Mau Mau can
sue Britain for colonial-era 'torture'
Government branded ‘morally repugnant’ after attempting to block Kenyans’ claims
Cahal Milmo is the chief reporter of The Independent and has been with the paper since 2000. He was born in London and previously worked at the Press Association news agency. He has reported on assignment at home and abroad, including Rwanda, Sudan and Burkina Faso, the phone hacking scandal and the London Olympics. In his spare time he is a keen runner and cyclist, and keeps an allotment.
Friday 05 October 2012
Three Kenyans tortured at the hands of the British authorities during Kenya's Mau Mau rebellion have won the right to a High Court trial in a landmark ruling that paves the way for thousands of legal claims arising from brutality during the colonial era.
A judge today threw out the Government's claim that the beatings and assaults suffered by the now elderly Kenyans during the 1950s uprising took place too long ago for a fair trial, saying there was a substantial body of evidence - including thousands of secret documents - which made a full hearing possible.
In a judgment which lawyers described as "historic", Mr Justice McCombe criticised the Foreign Office for its failure to interview in depth surviving British witnesses about how far knowledge of the torture of thousands of prisoners had extended in the upper echelons of Whitehall and the Army.
The judge wrote: "A fair trial for the Kenyans does remain possible and the evidence on both sides does remain significantly cogent for the court to complete its task satisfactorily."
The three victims - Paolo Muoka Nzili, 85, Wambugu Wa Nyingi, 84, and 73-year-old Jane Muthoni Mara - suffered what their lawyers described as "unspeakable acts of brutality", including forcible castration with pliers used on cattle, repeated beatings and sexual assault including rape with a bottle containing scalding water.
Kenyan campaigners called for the British government, which has already acknowledged and apologised for the torture suffered by the trio, to no longer contest the case and set up a compensation fund for the claimants and the estimated 2,000 other surviving former Mau Mau suspects imprisoned during the seven-year insurgency.
Speaking outside the Royal Courts of Justice in central London, Ditobu Imanyara, a Kenyan MP and member of the Kenyan Human Rights Commission, said: "It does not serve any useful purpose for the British Government to further resist this claim - their case has no chance in heaven or hell. We would like them to take immediate steps to apologise and ensure the victims who are increasingly frail can live out what remains of their lives in comfort."
But the Foreign Office, which had previously lost a claim that responsibility for the case lay with the Kenyan authorities following independence in 1963, showed no sign of caving in, saying it was "disappointed" with the judgment and will appeal - a move which is likely to further delay a trial.
A Foreign Office spokesman said: "We have always said that we understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the emergency period in Kenya."
At the heart of the Whitehall deliberations is the potential for today's ruling, which came after a three-year legal battle, to open a path for claimants from around the globe who allege post-war atrocities committed by British colonial authorities.
The Mau Mau case is being watched in particular by former members of the Cypriot paramilitary group EOKA who allege torture during their 1950s insurgency, including the deaths in custody of two 17-year-olds.
Martyn Day, the solicitor who brought the Mau Mau claim, accused the Government of "morally repugnant" behaviour by hiding behind "technical defences" which had now been thrown out by the court.
He said: "Following this judgment, we can but hope that our government will at last do the honourable thing and sit down and resolve these claims. 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."
Arising from longstanding tribal and social grievances, the Mau Mau rebellion was of the most violent of the colonial period with atrocities committed on both sides. About 70,000 suspected Mau Mau rebels were rounded up and imprisoned.
The response of Kenya's British administration, long a taboo subject in the country, has come under scrutiny in recent years and a previously secret cache of documents discovered in Britain has suggested that the illegal torture of detainees was effectively sanctioned by senior officials in London.
Mr Nyingi, who gave evidence in London earlier this year, described how he was arrested on Christmas Eve in 1952 and detained for nine years, during which time he was beaten unconscious in an incident at one camp - Hola - where 11 men were clubbed to death.
He said: "I feel I was robbed of my youth and that I did not get to do the things I should have done as a young man. There is a saying in Gikuyu that old age lives off the years of youth but I have nothing to live off because my youth was taken from me."
The ruling, which could see a trial begin in 12 months, was greeted with jubilation in Kenya where about 150 veterans gathered outside the country's Human Rights Commission. A group broke into song and performed a celebration dance.
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