The British Government had moved to court to have the case struck out by invoking the defense of State Succession, transferring responsibility to the Kenya Government. This second phase will focus on the issues of the state of Limitation, and as expected, the British Government is already arguing that the case is time barred, with over 50 years having elapsed since the alleged atrocities took place.
We, at the Kenya Human Rights commission (KHRC), have however made all the requisite arrangements by preparing the witnesses both at legal and medical levels. Our lawyers, Leigh Day & Co Solicitors are optimistic that should we win this phase, then there is high likelihood that the British Government will be persuaded to settle out of court, due to expected snowballing of many more clams.
There are a number of implications to this case. It is creating a global awareness for the moral and legal claims of the Mau Mau. In this regard, it is a test case that may open Britain and by extension, other former colonial powers, up to hundreds of similar legal challenges and a compensation bill running in the millions, which would prompt the British Government to settle out of court. It also casts aspersions into the British Government’s proclaimed commitment to international justice as it has has been reluctant to confront its own shameful heritage. It has been opposed by Britain at every step.
The KHRC and the MMWVA also hope that this time the Kenyan Government will make good the promise it made to pay for the case and take off the financial burden that the case has hitherto imposed on the KHRC. The KHRC had taken exception with the manner in which the Government of Kenya has handled the request for assistance in this case. In July 2011, the KHRC, MMWVA and the law firm of the Leigh Day and Co met with the Prime Minister Rt. Hon. Raila Odinga, the then Minister for Foreign Affairs, Hon. Moses Wetangula and the Attorney General Prof. Githu Muigai, all who categorically stated that they will support the Mau Mau case both at the financial and the political levels. Prime Minister Mr. Raila Odinga has once again publicly pledged government support for the case summoning the Attorney General to look the matter. This follows our complaint, which was the reported by both local and international media, on government reneging on its promise to support the case financially.
The “State of Emergency” 1952-1960
1.The full extent of the brutality of the British Colonial Government in the decade preceding Kenyan independence in 1963 has only recently been understood. The work of historians, who have taken testimonies from numerous elderly Kenyans and carefully analysed the public records in Nairobi and London, has changed our understanding of this period of history.
2.“The Mau Mau rebellion” lasted from 1952 to 1960. The core of the resistance was formed by members of the Kikuyu ethnic group, although a wide range of other Kenyan tribes also participated. In 1952 the Governor of Kenya, Sir Evelyn Baring, declared a state of emergency and obtained authorisation from the Colonial Office in London to detain suspected Mau Mau members without trial.
3.On 24 April 1954, the Colonial Administration launched an assault on the Mau Mau which was known as “Operation Anvil”, whereby 17,000 Mau Mau suspects were rounded up and incarcerated in detention camps without trial. Detainees were moved from one camp to another, where the treatment was of increasing or decreasing severity depending on the detainee’s willingness to cooperate and denounce the Mau Mau. In particular, detainees were expected to confess that they had taken “the Mau Mau oath” and to repent of having done so.
4.It is estimated by historians that, over the years which followed, as many as 150,000 suspected Mau Mau members and sympathisers were detained without trial in a labyrinth of about 150 detention camps littered around Kenya known at “the Pipeline”.
5.From the inception of the detention camps the Colonial Administration engaged in widespread acts of brutality. Detainees were subjected to arbitrary killings, severe physical assaults and extreme acts of inhuman and degrading treatment. The acts of torture included castration and sexual assaults which, in many cases, entailed the insertion of broken bottles into the vaginas of female detainees. Camp guards engaged in regular severe beatings and assaults, often resulting in death. In the course of interrogations guards would hang certain detainees upside down and insert sand and water into their anuses.
6.In 1957, the Colonial Administration decided to subject the detainees who still refused to cooperate and comply with orders to a torture technique known as “the dilution technique”. The technique involved the systematic use of brute force to overpower the Mau Mau adherents, using fists, clubs, truncheons and whips. This brutality would continue until the detainees cooperated with orders and ultimately confessed and repented of their alleged Mau Mau allegiance.
7.The dilution technique was officially endorsed by the Colonial Office in Britain and was implemented in five camps on the Mwea plain (“the Mwea camps”) in March 1957. The technique was administered under the command of a British Colonial Officer, Terence Gavaghan, and was named “Operation Progress”. The Colonial Administration thereafter authorised the extension of the dilution technique to other camps, including those at Athi River, Aguthi and Mweru, all of which became known as “filter camps”.
8.In short, the dilution technique was used as part of an orchestrated regime of systemized violence which had been approved at the highest levels of the British Government and which resulted in grave injuries and, in many cases, death.
In particular, in March 1959, eleven detainees were killed by camp guards at a detention facility known as the Hola Camp in the Tana River District of Coast Province. The Inquest found that each
9.death was caused by shock and haemorrhage due to multiple bruising caused by violence at the hands of camp officials.
10.The public outcry which resulted from the Hola killings lead to the Fairn Report, which was published on 1 September 1959 and admitted the use of excessive force in the emergency detention camps. The emergency was ended on 13 January 1960 and the camps were closed. Harold Macmillan gave his “Winds of Change” speech on 3 February 1960 and Kenyan independence was eventually granted in 1963.
11.Prof Elkins states:
“There is no record of how many people died as a result of torture, hard labour, sexual abuse, malnutrition, and starvation. We can make an informed evaluation of the official statistic of eleven thousand Mau Mau killed by reviewing the historical evidence we know…The impact of the detention camps and villages goes well beyond statistics. Hundreds of thousands of men and women have quietly lived with the damage – physical, psychological, and economic – that was inflicted upon them during the Mau Mau war.”
The first batch of the Mau Ma War Veterans Association (MMWVA) Wambugu Nyingi, Paulo Nzili, Jane Muthoni Mara and Naomi Nziula Kimweli left for London on July 8, 2012, accompanied by George Morara, a programme officer at the Kenya Human Rights Commission to attend the second phase of the hearing. The second team consisiting of the veteran’s spokesperson Gitu Wa Kahengeri together with John Notingham and Muthoni Wanyeki who are witnesses to the case and legal advisor Paul Muite joined them on July 15, 2012.
 In particular see David Anderson, Histories of the Hanged, Britain’s Dirty War in Kenya and the end of Empire, Weidenfeld & Nicolson, 2005 and Caroline Elkins, Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya, Henry Holt/Jonathan Cape, 2005.
 Caroline Elkins, Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya  p320.