Last week, The Kenya Human Right Commission welcomed the court decision and described it as a significant victory for the Mau Mau torture survivors in their long struggle for justice. In the ruling, the High Court held that there was an arguable case against the British government and that the claims are fit for trial.
The four Kenyans who filed the case, all in their sunset years, among them former MP Gitu Kahengeri, travelled over 4,000 miles to fight for their rights in the case. They want action taken while they are still alive, and are also demanding that the British government apologises for the torture they were subjected to. The claimants filed a claim for damages for personal injuries caused by repeated assaults perpetrated by employees and agents of the British Colonial Administration when they were detained in screening centres, prisons, and detention camps under a programme known as "villagisation". The assaults took place, between 1952 and 1960, in the course of the State of Emergency declared by the colonial administration in the face of the uprising against colonial rule in Kenya.
Amounted to torture
They argue that the assaults they were subjected to amounted to torture, inhuman and degrading treatment applied by police, home guards and other members of the security services with the knowledge of the colonial administration.
On December 17, 2009, the Foreign and Commonwealth Office (FCO) filed a list of preliminary issues to be determined before the case could proceed to trial. The FCO sought orders to strike out the case on the ground that it was not liable for the acts and omissions of the colonial administration.
The FCO said it did not owe any duty or care in relation to the acts and omissions of that Administration. The FCO contended that insofar as the claimants’ claim was based upon the alleged direct liability of the government of the United Kingdom for assaults committed by servants or agents of the colonial administration, that claim was unfounded in law.
But the defence led by Kenyan law scholar Githu Muigai argued that the liabilities and obligations of the colonial government were not transferred to the newly independent Republic of Kenya. Prof Muigai, who has been touted for the job of Kenya’s Attorney General, contended that when the Crown handed over power to the new republic, Kenya did not inherit illegal acts, transgressions and liabilities that belonged to Britain. Muigai successfully argued that an assertion that all rights, liabilities and obligations were taken over by Government of the Republic of Kenya after 12December 12, 1964, was erroneous.
The presiding judge, Justice M Combe, agreed with Githu that a legal mechanism for the succession of the new Republican State to the rights and obligations of the dominion state, which existed in the period between December 12, 1963, and December 13, 1964, should have been provided. In his ruling, the judge said it was noteworthy that the claimants now have the opportunity to ventilate their issues at the full trial when witnesses can give evidence and be led in examination to confirm the veracity of their claims.
A small victory has been achieved and the progress of the matter remains to be seen when it goes to trial.
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