A number of Mau Mau Veterans are in London, England for proceedings relating to their case for compensation for damages arising from the torture and serious human rights violations they suffered from the British Colonial rulers.The Kenya Human Rights Commission (KHRC) has worked hard to ensure that justice is done in this case or in the least the Mau Mau Veterans gets their day in Court. It has taken many years of meticulous and determined advocacy by the Mau Mau Veterans, KHRC and their lawyers to get this far. It is also notable and commendable that finally the Kenyan Government has come on board, on the side of the Mau Mau Veterans and at such a critical time to insist that the British government owes reparations to the heroes of the independence movement.
The treatment that the Mau Mau Veterans faced from the British colonial rulers was of despicable proportions. It involved the worst forms of torture imaginable, including castration and rapes with very crude instruments.The greatest irony was that the British government was sanctioning these inhumane acts against Kenyans opposed to its colonial domination at a time it was spearheading a global campaign for the enactment and adoption of the 1948 Universal Declaration on Human Rights. While globally the British government wanted to be perceived as a pioneer of a Universalist approach to human rights, in the darkness of its administrative and legislative agenda it was authorizing and devising the most devious mechanism of torture to “subjects” of its occupied territories.
However, with the subsequent passage of time, and the coming of age of the general acceptance of the equality of every individual, one would have expected that Britain had learnt something along the way and would willingly want to atone for its egregious colonial sins, especially when they were clearly pointed out, as happened with initiation of the Mau Mau Veterans’ case. No. That is giving too much credit to the magnanimity of Britain which has chosen to fight the Mau Mau case using questionable tactics and bald defences. Regardless, it is unfortunate and extremely opportunistic that the British government has pushed this case thus far. But even more irritating is the nature of the primary defence that the British Foreign and Commonwealth Office (FCO), the principal respondent on the case, plans to marshal with the hope that it can deny the Mau Mau veterans any compensation.Simply, the FCO defence is one of state succession. In essence, its primary argument is that the current Kenya State that was born out of independence in 1963 inherited the liabilities of the British Colonial rulers, including those occasioned by torture and serious human rights abuse of Mau Mau and other Kenyans by British soldiers and its agents during the colonial times. The FCO argues that the Mau Mau veterans ought to claim damages or compensation for the torture and other abuse they received from the British colonialist and their agents from the current Kenya government.
The law of state succession has largely been used negatively against newly independent states. Under state succession law newly independent states are forced to assume liabilities and contractual deals entered to by colonial powers and were expected to fully service those liabilities regardless of the circumstances under which they were entered.This succession of liabilities is the core reason that has tethered the abilities of some countries to make any meaningful progress following their independence from colonial powers since the countries end up spending most of their income servicing debts, most of which had terms that were extremely skewed against the new independent States. This is the situation prevailing Haiti, which has spent most of its independence life trying to service a bottomless debt it inherited from France.Britain should not, with any seriousness or iota of integrity expect to legitimately invoke the defence of state succession to defend the Mau Mau case. Reason: there cannot be any contract to torture or to cause serious human rights violations such as those visited on Mau Mau veterans by the British colonial rulers and their agents.
How can Britain argue that the current Kenya state is the proper party to compensate the Mau Mau veterans for the damages arising from the acts of the colonialists? How could this be when the harm of torture perpetrated on the veterans was done primarily to subjugate those perceived to engage in uprising against British colonial rule in Kenya? How in law could the current Kenya government be responsible for excessive acts of torture of Mau Mau by the British colonialists and their agents when those heinous acts were orchestrated in order to enforce the British colonial agenda in Kenya? The simple, correct and moral answer is that law cannot recognize such a befuddled argument.I hope that justice will be done for these elderly claimants who have carried, for a lifetime, the physical and emotional yokes of the harm they suffered because of standing up against the injustices and excesses of the British colonial government.While they do so trying to stand tall, it is hard to miss in them the fault lines caused by years of the pangs of traumatic experiences occasioned by the beastly treatment they received from Britain. It is time Britain owned up to its colonial sins and stopped the endless spiral of traumatizing these veterans through a vexatious litigation which is predicated on a frivolous defence of state succession.
*Waikwa Wanyoike is a lawyer based in Nairobi.