This week, 81-year-old James Mugo Kibande left Kenya for the first time in his life, on the first airplane he’d ever boarded, to testify in London about the torture and mistreatment that he allegedly suffered at the hands of British colonial officers in the 1950s.
On Monday, Kibande took the stand at the Royal Courts of Justice, and minutes later a lawyer representing the UK Foreign & Commonwealth Office (FCO) stood to question him. Kibande wore a baggy grey suit and a faded baseball cap, which he removed before swearing on a Bible that his testimony would be true to fact.
The FCO lawyer began his examination: If you didn’t personally see your father shot, how do you know he was shot? Are you sure that the shooter was a white soldier? Couldn’t it have been a black man? Did you volunteer to join the rebels in 1954 because you wanted freedom from the British?
Kibande’s testimony was the first to be offered by a live witness as part of the Kenyan Emergency Group Litigation, which has united some 40,000 Kenyan claimants in a mass lawsuit against the British government. Over the next two weeks, 10 other claimants will present before the court, adding to evidence submitted by 16 others via video link from Nairobi. These 27 test claimants will be used to evaluate the merit of the broader case — and, if successful, to determine appropriate compensation for the other 40,000.
The desired payouts range from roughly £10,000 to £150,000 (about $13,000 to $200,000), depending on the severity of the alleged abuse. Some claimants allege they suffered property destruction or the theft of livestock — others that they were gang raped or castrated. All but one say they performed forced labor.
The charges date back to the 1950s, when an anti-colonial insurgency known as Mau Mau took hold in Kenya’s central highlights in reaction to British land-grabs. The colonial administration in Nairobi subsequently launched a military operation to stamp it out.
Between 1952, when the colonial government declared a state of emergency, and 1960, when the emergency ended, the counter-insurgency campaign killed an estimated 12,000 Kenyans. More than 100,000 were “screened” — interrogated, sometimes savagely, and sent through a “pipeline” of increasingly brutal and more remote internment camps, which Kenya’s then attorney general Eric Griffith-Jones described as “distressingly reminiscent of conditions in Nazi Germany or Communist Russia.”
Another million were forced from their homes into makeshift villages surrounded by barbed wire and booby-trapped ditches. Some of them were Mau Mau guerrilla fighters, but many more were non-combatants, caught in a crude collective punishment.
On Monday, Kibande testified that when he was a teenager, British soldiers shot his father in the village of Kanyuambora. After the shooting, he said, they set the local school ablaze, and British Military and Home Guard officials stole livestock from his family homestead.
Kibande said that he then fled with his mother and siblings into the nearby forest, but that, several weeks later, he was arrested and detained at a local camp, where a supervising British soldier beat inmates at will.
Other witnesses have leveled graver allegations. One test claimant, born in 1922, has said he was detained at the Gatugura labor camp, where inmates were beaten so savagely and worked so hard that some would purposefully lose a limb to avoid work duty.
“The way this was done would be by placing a limb on the railway line while the other detainees drove the cart along [it],” Munyi Njoki said in his witness statement. Njoki said he often has flashbacks to that time; sometimes, he recalls being forced to carry buckets of human waste on his head.
An anonymous woman who testified from Kenya told the court that sometime around 1953, two dozen officials — a mix of Kenyan police, Kenyan Home Guard, and British soldiers — marched into her village and burned it down. The woman, her husband, and her small son were forced to relocate to a camp a few hours away.
While performing forced labor there, the woman alleged that two Home Guardsmen made her strip naked and lie on her stomach atop stinging safari ants. One guardsman held her hands and the other forced her legs apart. “The ants crawled up my entire body including my private parts, head and armpits,” she said in her witness statement. The woman says she was held there for 30 minutes, screaming, until she was allowed to put on her clothes and return to the village to wash. As she bathed, dead ants fell out of her vagina.
“Even now,” her witness statement reads, “some 60 years on, when I think of this incident, I cry.”
The trial is scheduled to last through December 2017, according to lawyers for the claimants. Already, several thousand claimants have died since submitting their testimony.
This new case comes on the heels of a similar suit that ended in 2013 after the UK government paid a £19.9 million settlement to 5,228 Kenyans who had suffered during the Kenya Emergency. That payout in response to imperial crimes was unprecedented.
The day of the settlement, then–UK foreign secretary William Hague made a statement to Parliament, saying “I would like to make clear now and for the first time, on behalf of Her Majesty’s Government, that we understand the pain and grievance felt by those who were involved in the events of the Emergency in Kenya.”
But Hague also vowed that Britain would continue to “deny liability on behalf of the Government and British taxpayers.” The settlement, he said, was “full and final…. We do not believe that this settlement establishes a precedent.”
The implication was clear: No further cases from Kenya would be entertained, and the victims of other colonial-era sins, in other parts of the former British Empire, should not pursue them.
From the time the first Kenya case was launched in 2009, the British government had been maneuvering to avoid a legal contest. First, the FCO argued that modern-day Britain was not responsible for the crimes of its colonial predecessors. Later, the FCO claimed simply that too much time had elapsed for a fair trial.
The judge overseeing the case struck down the FCO’s objections in 2011 and 2012, and the case went ahead. In part, this was because the Kenya Emergency occurred at the very end of Britain’s imperial rule, meaning there were still living survivors.
The Kenya case was also given a game-changing boost in 2011 when, under pressure from historians, the FCO was forced to admit that it was unlawfully withholding historic files on Kenya, in addition to thousands of documents from its 37 former colonies. The secret documents reinforced what historians already knew: that the British-led counter-insurgency had been merciless. One interrogation tactic, detailed in the papers, involved stepping on a detainee’s throat while stuffing mud into his mouth.
They also revealed high-level efforts to hush-up what was happening in Kenya. “If we are going to sin,” Kenyan attorney general Eric Griffiths-Jones wrote in a 1957 memorandum, “we must sin quietly.”
Simon Myerson QC, the barrister representing the 40,000 new claimants, says that evidence from the secret documents allowed his case to move forward. But this second trial is very different from the first. In the first case, the four test claimants had all suffered serious physical abuse: torture, sexual assault, and castration. In the current case, some of the claimants are suing for property destruction and “an interference with their right to education,” lesser crimes that are difficult to measure and prove so long after the fact.
The process of signing up claimants has also changed. The 5,000 Kenyans who received compensation in the first settlement had all been members of Mau Mau veterans associations before the possibility of a lawsuit emerged, and all were vetted by the Kenya Human Rights Commission.
Now, things are more chaotic. In the wake of the multi-million dollar settlement, a handful of British personal injury firms — some of them small outfits with no experience in Africa — began advertising for clients in Kenya. They dispatched lawyers to comb the countryside, signing up thousands of purported Mau Mau claimants. Some lawyers designed evidence-collection techniques on the fly, and didn’t always keep records of how and when they had gathered evidence.
In the months ahead, lawyers for the claimants must prove not only that their 40,000 clients were victimized, but also that Britain was responsible. This is not a straightforward task. On the ground, it was often Kenyan police and army units who carried out counter-insurgency operations. Also, the colonial administration in Nairobi had some autonomy from the government in London.
Claimant lawyers argue that Emergency-era violence was not the work of rogue Kenyan policemen or hysterical bureaucrats, but was part of a “system” of torture, “reported to, and approved by, the UK Cabinet.”
Defense lawyers counter that a fair trial 65 years later is impossible.
“All of the alleged perpetrators of the mistreatment… are untraceable or, it must be presumed, dead,” barrister Guy Mansfield argued in June. “All of the senior politicians and civil servants who worked the colonial office in the United Kingdom or the colonial government in Kenya are now dead.”
The president judge has not yet ruled on this question, but in an unusual move, he has agreed to hear all the evidence before deciding whether a legal time-bar applies.
Defense lawyers also stress that each specific allegation — every alleged beating, every whispered threat of violence — must be examined “at a microscopic level.” The trial “is not a historical enquiry into the events that occurred in Kenya at the end of the colonial era,” Mansfield said. “The court is being asked to determine a personal injury group action.”
Some historians dismiss this modern-day legal project as futile. “End of Empire is a nasty period,” Nicholas Lloyd, a history lecturer at Kings College London, has argued. “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.”
In court on Monday, Kibande couldn’t quite remember his age. Was he 35 when the Emergency started? Was he born in 1935? “I’m not a learned man,” he told defense lawyers.
Other aspects of his testimony appeared to fall apart on questioning. Why did he first say that he was present when his father was killed, but later tell the court that he had only heard the gunshots? Was it the District Office or the District Commissioner who supervised forced labor at the local camp? And how can he argue that the murder of his father deprived him a formal education when his father was killed when he was 18 and he had never been a school-goer before then?
Sitting outside the courtroom on Monday, Simon Myerson, the barrister, mused that if his clients get compensation, it will likely be just in time to pay for their end-of-life care. Many, he says, would spend their historic payouts on their funerals.