by Paddy McGuffin [this article first appeared in the Morning Star 22 July 2011]
Four Kenyan nationals who allege torture and abuse by British colonial forces during the Mau Mau uprising won the right today to sue the British government in a landmark High Court ruling.
The Foreign and Commonwealth Office (FCO) had asked the court to throw out the case, claiming that it could not be held liable as legal responsibility was transferred to the Kenyan Republic upon independence in 1963.
But the High Court ruled today that there was an arguable case and the claims were fit for trial.
Referring to the state of emergency declared by the British government in Kenya during the time of the Mau Mau uprising, the judge Mr Justice McCombe said: "There is ample evidence, even in the few papers that I have seen, suggesting that there may have been systematic torture of detainees during the emergency.
“I have not found that there was systematic torture nor, if there was, the UK government is liable,” he said.
“I have simply decided that these claimants have arguable cases in law.”
Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara, who are in their seventies and eighties, allege horrific abuse in British-run detention camps between 1952 and 1961.
A previous hearing had heard that Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Ms Mara had been subjected to appalling sexual abuse.
Senior partner at Leigh Day & Co solicitors Martyn Day said: "Our clients are delighted that the High Court has rejected the British government's arguments so emphatically. It is an outrage that the British government is dealing with victims of torture so callously.
“We call on the British government to deal with these victims of torture with the dignity and respect they deserve and to meet them and their representatives in order to resolve the case amicably.”
The case will now proceed to a further hearing – before Easter next year – at which the court will consider the government's argument that the claims should not proceed to trial as they have been brought outside the legal time limit.
Foreign Office Minister for Africa Henry Bellingham MP said: "It is right that those who feel they have a case are free to take it to the courts. 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.
“Despite today's judgement, the government will continue to defend fully these proceedings given the length of time elapsed and the complex legal and constitutional questions the case raises.”