The British government is sorry for its colonial wrongdoings—and officially so, for the first time in history.
On June 6, Foreign Secretary William Hague expressed “sincere regret” for torture and abuse committed by British colonial officers against Kenyans in the 1950s. He also announced a compensation package worth £19.9 million (about $31 million), to be divided between 5,200 Kenyan victims. This marks the settlement of a landmark legal case initiated in 2009, by a group of Kenyans who allege that they suffered colonial-era torture at British hands.
Hague made the conciliatory remarks before an almost-empty House of Commons—just eight months after the British government affirmed that it had nothing to apologize for, and that it was willing to face down its former colonial subjects in court.
British commentators have hailed the apology as “historic”—a fitting footnote to Britain’s messy end-of-empire in Kenya. But at the same time that he was making history, Hague was taking pains to downplay it. “We continue to deny liability on behalf of the Government … for the actions of the colonial administration,” he cautioned. “And we do not believe that this settlement establishes a precedent.” That message was clearly aimed at other former British colonies—like Cyprus, Malaysia, and Yemen—who might view today’s apology as a long-awaited wedge in the door.—Katie Engelhart
Updated article from World Policy Journal's Winter issue "Africa's Moment"
By Katie Engelhart
LONDON—On October 5, lawyer Martyn Day walked out the front door of London’s High Court to greet a throng of ravenous reporters gathered outside. He was there to tell them what they were hungry to hear—that the British Empire was on trial. Earlier that day, the court ruled that three elderly Kenyans who were tortured and abused by British colonial officers in the 1950s could move forward with their claims against the British government. In dismissing the objections of the UK Foreign and Commonwealth Office (FCO) that today’s Britain is not to blame for the wrongs of its colonial forebears and that too much time has elapsed for a fair trial, the High Court removed the claimants’ last barrier. The case could finally go to trial. For the first time, colonial victims could sue the British state.
“This is an historic judgment that will reverberate around the world,” Day said, in what felt like a muted call to arms. “There will undoubtedly be victims of colonial torture from Malaya to Yemen, from Cyprus to Palestine, who will be reading this judgment with great care.” Already in London, the Kenya case had exposed a deliciously dramatic, if damning, tale of missing archives, clandestine purge operations, and high-level state cover-ups.
In Nairobi, the trial’s three plaintiffs had gathered with supporters at the Kenya Human Rights Commission. Sitting quietly together, the three octogenarians, none of whom speak English, were a crude testimony to the violence that marked 1950s Kenya. Wambugu Wa Nyingi, Jane Muthoni Mara, and Paulo Muoka Nzili are exhibits of beating, rape, and castration respectively. Sixty years later, the Kenyan plaintiffs were asking for financial compensation and an official apology. When the call arrived, bearing good news from London, members of the crowd rose to dance in slow, joyous shuffles and sing nostalgic ballads from the days of Kenya’s independence struggles.
History is on trial, said the headlines. But, for its part, modern-day Britain does not dispute the basic chronology of events, nor the fact that “each of the claimants suffered torture and other ill-treatment at the hands of the colonial administration.” What Britain denied—and continues to deny, despite the ruling—is legal liability for that abuse—and, implicitly, for other abuses committed in its old colonial realm.
The FCO moved to reverse the High Court’s decision, but on October 26, its request for leave to appeal was denied. Imperial Britain was set to face the harsh scrutiny of contemporary justice—a fate it has narrowly avoided, with its nick-of-time settlement deal. The FCO must had incentive to proceed prudently. How British officials handle this case will affect their legal liability for other long-ago wrongs in far-away colonial lands and could serve as a precedent for other former imperial powers.
This has been a long time coming. After World War II, a generous handful of German leaders were brought to Nuremberg to legally atone for their wartime crimes. Financial penance followed, and the first major reparations deal between Germany and Israel was signed in 1952. Former colonial states have largely escaped such scrutiny—though that is changing.
The last decade has witnessed a new trickle of judicial claims by former colonial subjects and their descendants—for one-off massacres or counter-insurgencies gone violently awry. In rare cases, financial reparations have followed. In 2011, the Dutch government was ordered to compensate those affected by the 1947 Rawagede massacre in Indonesia. More often, though still rarely, the result is an apology—stiff-lipped or effusive, but with no dollars attached. Germany said sorry to Namibia in 2004 as did Japan to South Korea in 2010. A successful outcome in the Kenya case could inspire new legal scrutiny—not just of the British Empire but of empires writ large. There are undoubtedly shadow plaintiffs poised to emerge from the dark corners of history—surviving victims of assorted colonial atrocities across Africa, South America, Asia, and the Middle East.
A week after his October courtroom appearance, Martyn Day, lawyer for the Kenyan claimants, was relaxing in his sparse central London office. “You know, we [Brits] hold ourselves out as being pretty good, fair, decent, honest sorts of people,” he says. “We look at the Germans and the Japanese and other people who have done really terrible things. We hold ourselves out to be rather different. But actually, one recognizes through cases like this that we have sides to our character that are … not quite as bad, but pretty bad. It’s important that we understand that.”
In October 1952, Governor Sir Evelyn Baring, the ranking British representative in Kenya, declared a state of emergency. Several weeks earlier, Mau Mau rebels had allegedly claimed their first European victim—stabbing Mrs. A.M. Wright to death at her home several miles from the tidy and largely tranquil colonial streets of Nairobi. Kenya’s healthy population of white settlers, a heady brew of poor immigrants from South Africa and well-heeled Brits with dwindling inheritances, grew hysterical.
In the late 1940s, the rebel movement known as Mau Mau had taken hold in the countryside. Several thousand African squatters, pushed out of their fertile farmlands during the colonial land grab, took an oath (willingly or under duress) to fight for independence. As “oathing” spread amongst the Kikuyu, Kenya’s largest ethnic population, the Mau Mau rebellion radicalized. By 1950, the movement was a defined, if still shifting, insurgency. A core of militants—supposedly bound through the rite of drinking animal blood—pledged to take up arms, and some 250,000 moved into the forests to fight. “If I know of any enemy of our organization and fail to kill him,” one oath read, “may this oath kill me.” Mau Mau militants would eventually murder at least 30 Europeans and several thousand Kikuyu loyalists.
By 1954, panicked colonial authorities were rounding up rebels by the thousands. Up to 150,000 Kikuyu would be detained without trial, and up to 1.5 million displaced. Less than a decade after Allied troops liberated the Nazi concentration camps, British colonial officers constructed what became known as “the Pipeline” of 150 barbed-wire detention facilities, all part of “Operation Progress.” Tens of thousands died in those camps.
This plaintiffs were among the survivors. In her witness statement, Jane Muthoni Mara recalled being roused from bed by militants one night and forced to take the Mau Mau oath. Mara would later help feed a group of forest fighters, which included her brother, until her arrest by colonial authorities in 1954, when she was 15. Mara claimed that during her second day of incarceration at the notorious Gatithi screening camp, she was surrounded by four guards and quickly pinned to the ground. One man pried her thighs apart and held them down “with his spiky army boots.” While she screamed, another kicked a glass soda bottle filled with hot water up her vagina. The other plaintiffs have similarly wrenching tales. Wambugu Wa Nyingi was clubbed on the head by guards and left for dead amid a pile of corpses. Paulo Muoka Nzili was castrated—allegedly by guards with “large pliers which are used to castrate cows.”
In 1960, the state of emergency ended. The detention camps were emptied. British Prime Minister Harold MacMillan gave his famous “Winds of Change” speech in South Africa—a firm, if subdued, acknowledgement that Imperial Britain’s days were numbered. In 1963, Britain granted Kenya independence, and the Brits packed their bags.
Back in London, colonial officers kept quiet. “If we must sin,” Eric Griffiths-Jones, attorney general of colonial Kenya, had written of Mau Mau detentions in 1957, “we must sin quietly.” In Kenya, too, there was silence. The new government maintained a ban on the Mau Mau and drove the survivors underground. By the time the ban was lifted in 2003, most were dead. But their histories were brought alive again in two revisionist accounts of the Kenya Emergency, one by David Anderson of Oxford and another by Caroline Elkins of Harvard, whose book, Imperial Reckoning, won the Pulitzer Prize. Suddenly, time sped up. In Kenya, Mau Mau veterans’ associations began organizing and registering members. The Kenya Human Rights Commission sent a team of young lawyers into the bucolic farmlands around Nairobi to hand-pick survivors to stand as claimants. Lawyers at Martyn Day’s London law firm, Leigh Day, agreed to take on the case. They brought three historians on board, including Anderson and Elkins, to help them sift through the documentary rubble.
Since 2009, when the first legal documents were served, the plaintiffs fought to get their case heard. In July 2012, they left their rural Kenyan villages and made the long trek to London to testify at the High Court, where they sat through hours of courtroom speeches in a language they did not understand. In London, the Kenyans were photographed—the men in suits and soft caps, the women in colorful headscarves—looking exhausted outside the courthouse or shuffling awkwardly into a restaurant in London’s glitzy theatre district. Following the High Court’s recent decision to allow the case to proceed, the FCO released a statement warning of the judgment’s “potentially significant and far-reaching implications.” When contacted, a spokesperson refused to speculate on what those implications might be.
TO THE ARCHIVES
In April 2011, the FCO issued an “unreserved apology”—not for its colonial history, but for efforts to hide it. What prompted this official mea culpa is debatable. It’s a pick-your-own adventure that hinges on how much one trusts the official version of the last half century’s events. Last April, the FCO found (or acknowledged) a secret trove of documents that had been missing (or hidden) for the last 50 years.
For Anderson, the Oxford historian working as an expert-witness for the plaintiffs, the saga began in Nairobi—where he noticed that something was not quite right at the Kenya National Archives. Documents were missing. Anderson recounts the tale in his boxy beige office in the nondescript brick house that holds Oxford’s African Studies Center. Behind his desk, a shelf of faded binders are labeled “Mau Mau.” About 10 years ago, Anderson says, while plodding through colonial papers in Nairobi, he discovered that “there were missing blocks of files.” Moreover, there was a pattern in the omissions. “The missing files were about certain things—mostly about accusations of abuse during the emergency period.” After a pause, he continues, if “you’re an historian, wouldn’t your alarm bells ring?”
Back in Britain, other historians found reference to documents that had been dashed off to London after independence—illegally, and in violation of Britain’s pledge to transfer all files to newly independent Kenya. But when asked, the FCO denied having any such documents. In 1967 and throughout the 1980s, FCO officers delivered the same response when Kenyan officials came looking for missing pieces of the archival jigsaw. When the Mau Mau trial got underway, the FCO was asked once more. The Office’s response was the same: The files do not exist.
Except they do. Last year, lawyers for the claimants hit the jackpot, uncovering a massive cache of secret documents at a high-security government building at Hanslope Park, Buckinghamshire. The so-called “migrated archives” contain 8,800 FCO files—1.5 tons, or 200 yards deep, of paper. More than 1,500 files come from Kenya, with hundreds directly relevant to the Mau Mau case. “The general response of historians of the British empire upon hearing this,” says Anderson, “was shock and amazement.”
Exactly how the documents landed in Buckinghamshire is outlined in excruciating detail in pages of official inquiry reports, which have been hungrily reprinted in the British press. Tony Badger, a Cambridge University historian, was asked by the FCO to act as the archive’s independent guardian. Badger insists that a potent cocktail of ignorance and incompetence, rather than outright deception, is to blame for the 50-year omission. The incident is “embarrassing and unnecessary,” he says, but not deceitful. Historians, some of whom speculated for years that the Kenya documents had been loaded onto a Lancaster bomber and dropped in the ocean, are not all convinced.
None of this boded well for an empire on the defensive. The migrated archive contained files not only from Kenya, but also from 37 former British colonies. Together, they prove “that in every single British colony,” says Anderson, there were “operations to remove documents. … Things that they didn’t want successor governments to see.” In Uganda, the purge was codenamed “Operation Legacy.” Within the new cache are documents revealing a British plot to test virulent poison gas in Botswana in 1943. (The tests were postponed when the rainy season approached.) Also discovered were details of a plan to deceive the British public about the deportation of Chagos islanders in the 1970s to clear the way for a U.S.-British air and naval facility at Diego Garcia in the Indian Ocean.
The 1,500 Kenya-related files include a 1953 letter from the colony’s attorney general, who observed that detention facilities housing alleged Mau Mau rebels were “distressingly reminiscent of conditions in Nazi Germany or Communist Russia.” Also included is a telegraph accusing a district officer of “beating up and roasting alive” a Kenyan. “Hurry,” goes a pleading letter written by four detainees and smuggled out of a detention camp: “Hurry, Hurry, and HURRY in order to save our souls.”
The new documents also validate what historians have long-suspected—that many more documents were simply destroyed, set ablaze or dumped in the ocean, as the Empire crumbled. The surviving papers are now being released, in stages, to the British National Archives in London, where a voracious public awaits them. On the day of the first release, a team of Guardian journalists was dispatched to the Archives in the leafy southwest district of Kew. With the rigor and gravity of war correspondents, they published updates at 9:29 a.m., 11:20 a.m., 12:04 p.m. of their historical findings—including low-grade photographs of colonial documents and detailed instructions on how Guardian readers might register for a library card and see the files themselves.
Still, the genesis of the migrated archive remains murky. Anderson begins his discussion with a show of diplomacy: “Whether you think this was a conspiracy or whether you think it was a bureaucratic bungle, that’s an open question,” he observes, but he quickly sheds his veneer of giving any benefit of the doubt. “It is impossible to believe,” he adds, “that someone in the Foreign Office didn’t know what these were. There are yards upon yards of documents.” And what about those still-missing files? “I very much doubt they were destroyed,” he whispers. “To be candid, my guess is that they’re with MI somewhere. They’re with the spooks.”
In April, The Guardian revealed that many of the classified imperial papers that were promised to the National Archives are still being withheld. The FCO refuses to explain why.
FROM KENYA, ONWARD
While Kenyans celebrate this recent judgment, the mood in Malaysia is somewhat less sanguine. In September, two other UK High Court judges rejected a judicial review claim brought by descendants of victims of the 1948 Batang Kali massacre, in what was then colonial Malaya. The families of the massacre victims weren’t expecting such blanket rulings, admits Queck Ngee Meng, a soft-spoken lawyer in Kuala Lumpur who coordinates The Action Committee Condemning the Batang Kali Massacre. Unlike the Kenyan claimants, the Malaysians were not looking for financial compensation. “They want a public inquiry,” Queck explains, “in the form of an investigation.” Batang Kali is often called “Britain’s My Lai”—a reference to the infamous American massacre during the Vietnam War.
In December 1948, a platoon of Scots Guards arrived in Batang Kali, about an hour’s drive from Kuala Lumpur. Entering what was claimed to be a bastion of Communist guerrilla resistance, the guards separated the village’s men and women for interrogation. The next day, 24 Malayan men were shot—reportedly while trying to escape. Guards then set the small village on fire. An inquiry was held, but the guards were exonerated. In 1970, several of the guards involved were interviewed by British police and confessed to murder, but no action was taken.
In 1993 and 2004, Malaysian victims unsuccessfully petitioned Queen Elizabeth II to re-open an investigation into the incident. In 2008, they tried again. “Finally,” says Queck, “we received a reply from the British government that they were not going to look into this matter. We had no choice. We engaged lawyers in London and began a litigation.” In 2011, the High Court agreed to review the case. But a year later, the demand for a public inquiry was rejected. John Halford, the Malaysians’ London-based lawyer, has applied for permission to appeal. He says the recent ruling in the Mau Mau case “is a good indicator that there can be a meaningful inquiry into our incident as well. … Both are historical claims. It’s good to see another one succeeding.”
But the two cases are different—first, in chronology. The normal statute of limitations for a civil compensation claim in Britain is three to six years. In rare cases, when there is just cause, a judge may override those time barriers—but only when the alleged crimes were committed after 1954, when a new limitations act came into effect. The Batang Kali massacre took place in the 1940s, so the claimants cannot sue for damages (hence, their narrower demand for an official inquiry). Because the Kenya Emergency lasted through the 1950s, the judge in the Mau Mau case was able to apply his discretion and allow the trial to go forward. Moreover, the would-be Malaysian plaintiffs cannot side-step British law by appealing to international tribunals. The International Criminal Court only has jurisdiction over war crimes, crimes against humanity, and genocide committed after July 1, 2002. Also, the International Court of Justice only renders judgments in disputes between states.
Second is the question of the claimants themselves. The Kenyan plaintiffs are survivors of colonial torture. The Malaysians are descendants of colonial victims, though some were present at the massacre as children. That distinction, says Day, lawyer in the Mau Mau trial, “actually provides quite a decent, sensible line.” The High Court has issued “a very clear message,” Day continues. “If the person is still alive, then there is a fair chance that the court will entertain that case. If the client has died and it’s just descendants, then it’s going to take a hell of a lot more persuading.”
Still, the FCO is surely on edge. In a statement to the court in 2010, FCO officials acknowledged that a ruling in favor of the Malaysian plaintiffs could open a floodgate. Such a verdict “could encourage claims [about] historic interventions/actions and could also undermine our position in ongoing litigation (e.g. the Mau Mau case).” The message is clear: Let one trial succeed and open the door to the rest of Pax Britannica. Already there are whisperings. George Morara, an officer at the Kenyan Human Rights Commission in Nairobi, says he has fielded calls from Malaysia, India, Zimbabwe, “and even Uganda”—about how to initiate suits against the British state. “They haven’t come to visit, but that is something for the future,” Morara explains. He pauses before delivering his sales pitch. “If you want to come talk with us, you are most welcome.”
Next up to bat—veterans of the EOKA, a Greek Cypriot movement that fought British authorities in the 1950s, who announced plans to sue the British state in late October. Over in Belfast, Kevin Winters is also monitoring the Mau Mau case “with particular attention.” Winters represents a group of Northern Irish republicans in an ongoing effort to sue the government for their 1970s internment. Winters says the Mau Mau judgment “gives us another string for our bow.”
But Imperial Britain does not stand alone. It is one member in a club of former colonial powers being urged to atone (legally or financially) for half-century old history. Last year, the Dutch government apologized for slaughtering Indonesians as they fought for independence in 1947. In 2004, Germany apologized for the massacre of 65,000 Herero in what is now Namibia. In 2008, Italy paid reparations to Libya for injustices committed during its 30-year rule of the North African state. The stunning $5 billion award—which then prime minister Silvio Berlusconi signed over to then Libyan leader Muammar Gaddafi beneath a desert tent in Benghazi—was judged by Time magazine to be “an unprecedented act of contrition by a former European colonial power.”
Recently, in October 2012, France’s new Socialist president, Francois Hollande, officially acknowledged that Parisian police massacred around 200 Algerians during a 1961 rally in the French capital. “The Republic recognizes these facts with lucidity,” Hollande said in a statement. “I pay homage to victims.” Then again, French officials made clear that, indeed, no more than homage would be paid. Reparations, a government spokesperson told Le Monde, would be “moral only.”
HISTORY ON TRIAL
The Mau Mau trial put British colonialism in the dock for the first time. But the case is part of a broader push, over the last few decades, for historical trials—of aging former Nazis, Francoists, or out-of-office Chilean dictators. Increasingly, and often reluctantly, the past is being dragged before judges and juries across Europe, Africa, the Middle East, and North and South America—sometimes as stalwart accuser, sometimes as the enfeebled accused. These trials rarely proceed smoothly. Costly and politically divisive, they push lawyers and judges into the fly-by-night role of amateur historian—forced to reconstruct, reevaluate, and sometimes reshape history in an effort to judge the specific crimes in question.
Day explains that, in the Mau Mau case, it was “quite crucial” for him to show that British violence in colonial Kenya was “systemic”—not the work of rogue officers swayed by circumstance, but rather “a system of torture” orchestrated from London. To do so, Day had to link individual whippings, rapes, and castrations “to the halls of government.” Caroline Elkins, the Harvard historian, insists that such a system existed—and revealed itself in 1957, when the Kenyan Colonial Office approved the use of “compelling force” against suspected Mau Mau rebels. The “Cowan Plan,” a derivative of that “dilution technique,” later authorized the use of forced labor and violence against detainees. It won approval from Whitehall after meetings at the Foreign Office, where officials were fully briefed on the Kenya situation. “The evidence is just overwhelming,” Elkins insists. “We’re swimming in it.”
But this strategy can mean that individual acts or their perpetrators are glossed over, in an effort to condemn the more elusive “system” behind them. Asked whether his clients had considered bringing a case against surviving colonial officers, rather than the FCO, Day simply shrugs. “Vaguely.” He openly admits that his clients have become “stand-ins” for colonial victimhood—just as the FCO is standing in for the Imperial Army.
THE APOLOGY TOUR
On the ground in London, the Mau Mau case has inspired a new, more nuanced, and in some quarters more jaundiced, approach to the fiery debate about British colonialism and its impact on British foreign policy. In August, Foreign Secretary William Hague declared an end to the days of Britain’s post-colonial handwringing. In an interview with London’s Evening Standard, Hague, a Victorian history enthusiast, insisted that Brits “have to get out of this post-colonial guilt. Be confident in ourselves. … Be more ambitious, not less.” Britain’s presence in the world is expanding again, Hague reasons. “I think we should just relax. It’s a long time ago, the retreat from Empire.”
Predictably, some aren’t quite as chilled-out as Hague might like. The foreign secretary’s opponents now accuse him of constructing a straw man—a kind of perpetually atoning British state, ever lamenting its historic misdeeds. Of course, things were the other way around in 1997, when then Prime Minister Tony Blair effectively apologized for Britain’s role in the Irish Potato Famine of 1845-1852. But Hague’s comments do resonate with the moment in 2005, when then Chancellor of the Exchequer Gordon Brown, after a tour of east Africa, confidently proclaimed, “the days of Britain having to apologize for its colonial history are over.”
This navel-gazing, post-colonial cycling between self-flagellation and self-congratulation is a long-standing and deep-seated British tradition. Britain is obsessed by the Empire that it won and has now all but completely lost. At the same time, Brits fret constantly about an allegedly endemic “imperial amnesia.” In British newspapers, commentators bicker over whether Harvard historian Niall Fergusson (a purported Empire defender) should be involved in the creation of school history curricula. Then there’s the question of just what George Orwell was trying to say about Imperial Britain in his famous essay “Shooting an Elephant.” “When the white man turns tyrant,” Orwell observed from colonial Burma, “it is his own freedom that he destroys.” The concept of “Empire apologist” is a near-irrefutable invective, like “sexist” or “racist.”
Huw Bennett, a young military historian at Aberystwyth University in Wales hopes that the case he helped to make in the Mau Mau trial will inspire a more permanent shift in popular perceptions of Imperial Britain and its Army. “There is this impression,” Bennett scoffs, “that the British army doesn’t do war crimes.” People believe this is what “Americans do in Vietnam or in Abu Ghraib. It’s the kind of thing the French do in Algeria. But atrocities—that’s not British stuff!”
Still, there are many historians and political commentators who point out that the end of any empire is inherently a messy undertaking. It is true that most newspaper articles on the Mau Mau trial allot few words to tapping the mindset of a young British officer sent to maintain order in an unfamiliar land. Nicholas Lloyd, a history lecturer at Kings College London, who is not a consultant in the ongoing court case, is dismissive of this judicial project. “End of Empire is a nasty period,” he insists. “Trying to judge it from a modern human rights perspective is meaningless. It doesn’t tell us anything. Or, it tells us what we want to hear—that these people were evil.”
WHO'S THE VILLAIN, AGAIN?
In London, the UK Foreign and Commonwealth Office (FCO) continues to be cast as the villain in this tale. The small issue of its “missing” archives has left an impression that the government still has something to hide. In former African colonies, commentators charged Britain with deliberately dragging its heels, in the hope that the Kenyans would die before a trial began.
The FCO has seized control of this narrative by offering the Kenyans a public apology and a generous out-of-court settlement. The Kenyans’ legal team had long pushed for this, but the FCO had resisted. The British government has set the pace—instead of waiting for other Kenyans, in small groups of three, four, or five, submit their own claims of abuse, rape, or castration against the British state.
Nevertheless the FCO’s refusal to accept “liability” for the crimes that it is now, officially, sorry for have cast a shadow over today’s event events. Journalists in Nairobi reported that reaction to the apology was “muted”—perhaps because of this weighty qualification.
As far as compensation is concerned, this may be tough for British taxpayers to stomach, but the same taxpayers have recently coughed up for British victims of historical wrongdoings. In 2000, after years of wrangling, the UK government offered pay-offs to thousands of Brits held as Japanese prisoners of war in Hong Kong during World War II, at a cost of £167 million. This compensation model could be applied to other living victims of systemic colonial abuse. For practical reasons, the compensation line might have to be drawn at living victims, thus excluding descendants. But in all cases, state apologies should be forthcoming. That process might be helped along by the passage of apology legislation (as exists in several Canadian provinces), which allows parties to express regret without it being taken as an admission of legal liability.
Such a judicial project would have its flaws. Critics are right to worry about the difficulties of subjecting history to modern legal standards or to the positivist lens of today’s courts. But to borrow from the historian Caroline Elkins, when the victims in question are alive and have ample evidence of their sufferings, there is “not a whole lot of room for academic bluster.”
Another way to tell the story of the Kenya Emergency is in photos. Plenty of them have been recovered over the years. They show gauzy trails of barbed wire, rows of petrified detainees, and feral-looking British guards. This year, another photograph has been added to the pictorial canon of colonial Kenya. It was taken in 2011 and shows the Kenyan claimants (there were four of them then, but one has since died) standing outside the ornate entrance to the High Court in London. They look cold and tired. They wear heavy coats in neutral tones. Between the four of them are three wool hats, two wooden canes, and four signs. Stone-faced and looking away from the photographer, the four Kenyans bear placards of protest:
WE STAND WITH THE MAU MAU
HUMAN RIGHTS FOR ALL
PAY UP FOR THE BRITISH GULAG IN KENYA
There is something for everyone to love or loath in this image. There is the physical display of resolve, the sense of a historic unveiling, the appeal to that infinite bedrock of “human rights for all.” There is also the forlorn expression on the Kenyans’ faces, the word “Gulag,” the nagging knowledge that the Kenyans cannot read a word of the English-language posters they display. Still, in Nairobi, on the day the High Court decision is handed down, the plaintiffs and their supporters are celebrating as though they had already won. “I am very, very happy,” declares Wambugu Wa Nyingi. “My heart is clean,” echoes Jane Muthoni Mara. Nyingi still bears black marks around his ankles, where metal manacles rubbed his skin raw over half a century ago. At the time she files her witness statement, Mara has not told her husband about her sexual assault at age 15.
A new narrative of the last days of the British Empire is already in the works. So the efforts of colonial officers are slowly being undone—those who, in the final days before Kenya threw off the yoke of imperial rule, stole damning documents from Nairobi and whisked them back to London, where they would remain “missing” for half a century. The attempt to twist posterity and the archival record for future generations has been exposed. By the end of 2013, many of the newly uncovered documents will be released to the British National Archives. Papers from 37 former colonies will enter the public domain. Maybe this in itself will offer victims some measure of closure.
Whether other former colonies will follow Kenya’s lead remains to be seen, though this looks likely. Already, Elkins writes, we approach a turning point, legal as much as historical: “Pax Brittanica is now in the grips of pax juridic”—perhaps where it should have been in the first place.
Katie Engelhart is a London-based writer and editor. She currently works as Maclean’s Europe correspondent, where she writes regularly on historical topics. She studied modern European history at Cornell University and Oxford University.
[Photo: Carl Court /AFP/Getty Images]