Judging History
The Interaction between Law and History
in Civil Litigation about Colonial Crimes
Rosa Beets
Supervisor: Prof. mr. dr. H.G. van der Wilt
Rosa Beets
Research Master Public International Law Master Thesis
TABLE OF CONTENTS
Introduction 1
History in the courtroom 1
From criminal prosecution to civil litigation 3
Case selection and sources 5
Structure of the essay 7
Part I: The Mau Mau Case 9
The rise of Mau Mau in colonial Kenya 9
The Mau Mau take their case to court 12
The British government as defendant: local excesses or common design? 14 Paradigm of evidence: historians as experts about the past 17
The archive that witnessed everything 20
Historians versus lawyers: historical narrative in legal argument 23
The colonial power may go to trial 25
Documents versus witnesses: a fair trial on history 26
Epilogue 30
Part II: The Indonesia Cases 33
Dutch colonialism in Indonesia and the decolonization war 33 Rawagedeh and beyond: a brief outline of the Indonesia cases 35 ‘War crimes’ versus ‘excesses’: contesting the official narrative 38
A ‘closed chapter in history’? 43
Civil claims, international crimes: a similar rationale 46
Historical inquiry through civil litigation 47
The historian as an independent expert 49
Individual cases within a broader context 51
Epilogue 54
Conclusion 57
INTRODUCTION
History in the courtroomJeremy Sarkin opens his book on Colonial Genocide and Reparation Claims in the
21st Century, published in 2009, with the observation that ‘[u]ntil relatively recently
colonial human rights abuses were regarded as morally problematic, but they did not seem to have any legal relevance.’1 Over the decade to follow this publication, however, colonial violence has been increasingly dealt with in the legal realm. This ‘juridicalisation’ or ‘legalisation’ of the colonial past, as some commentators have labelled the phenomenon, has put courts in the role of interpreters of history, a task hitherto reserved for historians.2
The courtroom provides, however, a complex setting to study history. As Michael Marrus eloquently remarks, both historians and lawyers are storytellers – but storytelling in a legal context is defined through rules and procedures that serve law’s overriding objective to secure just outcomes.3 The relationship between law and history has therefore received ample attention from both legal scholars and historians, particularly in the context of international criminal law. The Nuremberg trials, the trials of former participants in the Nazi apparatus such as Adolf Eichmann and Klaus Barbie (who were prosecuted for international crimes in national courts), and the on-going proceedings at international tribunals and the International Criminal Court have been widely studied as instances where law and history meet, interact, and chafe. Although notable exceptions do exist, such as Marrus’ fascinating study
1 Jeremy Sarkin-Hughes, Colonial Genocide and Reparations Claims in the 21st Century: The
Socio-Legal Context of Claims under International Law by the Herero against Germany for Genocide in Namibia, 1904-1908 (Praeger Security International 2009) 1.
2 See for instance Caroline Elkins, ‘Alchemy of Evidence: Mau Mau, the British Empire, and the High
Court of Justice’ (2011) 39 The Journal of Imperial and Commonwealth History 731; Stiina Löytömäki, Law and the Politics of Memory: Confronting the Past (Routledge 2014); Bart Luttikhuis, ‘Juridisch Afgedwongen Excuses. Rawagedeh, Zuid-Celebes En de Nederlandse Terughoudendheid’ (2014) 129 Low Countries Historical Review 92.
3 Michael Robert Marrus, Some Measure of Justice: The Holocaust Era Restitution Campaign of the
on the Holocaust Era Restitution Campaign in the 1990’s, the topic has gained less academic attention in the context of non-criminal proceedings.4
In contrast to other disciplines dealing with histories of violence, the law, as noted by Lawrence Douglas, has been confronted with a “dual burden”: it has to find a way to both represent and judge the past.5 Within the debate on the ability of the law to deal with this burden, Richard Wilson has identified two main schools of thought that both consider courts inappropriate forums for dealing with traumatic episodes in history. The first, which Wilson characterizes as the ‘doctrine of liberal legalism’, asserts that ‘the justice system should not attempt to write history at all, lest it sacrifice high standards of judicial procedure.’6 Such critique, most famously argued by Hannah Arendt in her work on the Eichmann trial, claims that the sole function of the trial is to determine the guilt (or innocence) of the accused on the basis of the charges, and that the pursuit of other objectives, such as the creation of a historical record, ‘can only detract from the law’s main business’.7 The second school of thought, described by Wilson as a critique of legal knowledge produced by ‘law-and-society’ research, maintains that when the law does engage in historical inquiry, it will inevitably fail due to the procedural rules that govern the trial. From this perspective, as a result of the differences between legal and historiographical methods, principles and aims, the legal process cannot circumvent creating distorted historical records and narratives. 8 In brief, where the first school of thought adopts a normative approach and warns against corruption of the legal process (the law should
4 Marrus (n 3); see also in Leora Bilsky, ‘The Judge and the Historian: Transnational Holocaust
Litigation as a New Model’ (2012) 24 History and Memory: Studies in Representation of the Past 117; Other studies on the relationship between law and history in the context of non-criminal proceedings include the cases of the Japanese ‘comfort women’, see Kohki Abe, ‘International Law as Memorial Sites: The “Comfort Women” Lawsuits Revisited’ (2013) 1 Korean Journal of International and Comparative Law 166; the Irvin libel case, see Richard J Evans, ‘History, Memory, and the Law: The Historian as Expert Witness’ (2002) 41 History and Theory 326; and native title litigation, see Lawrence Mcnamara, ‘History, Memory and Judgment: Holocaust Denial, the History Wars and Law’s Problems with the Past’ (2004) 26 Sydney Law Review 353, 355, fn 12.
5 Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the
Holocaust (Yale University Press 2001) 5.
6 Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge University
Press 2011) 2.
7 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (The Viking Press 1963)
253.
not engage in writing history), the second aims to expose law’s incapability to comprehend historical complexity (the law cannot engage in writing history), and hence approaches the subject from a more descriptive angle.
From criminal prosecution to civil litigation
The analytical framework for this study will be derived from the ‘law-and-society’ approach,which I will apply to civil litigation concerning the colonial past. 9 The study aims to explore the interaction between law and history in two case studies, both civil actions in which several individuals sued their former colonizer for damages resulting from excessive state violence.10 Within the broad subject of the interaction between law and history, my interest is threefold. First, the methodo-logical encounter between both disciplines. Second, the manner in which individual cases relate to a broader historical context. Third, the challenge posed by legal claims to the official, state-approved historical narrative. These three matters in essence all concern the representation of history in legal proceedings. Below, I will briefly elaborate on each aspect and suggest that civil litigation appears to have, at least at first sight, certain advantages over criminal procedure.
First, the manner in which a specific historical event is studied in the courtroom differs from the way it is studied by historians. In this vein, scholars have emphasized differences between legal and historiographical approaches to evidence, sources and interpretation.11 Law and historiography, moreover, work with different notions of time, and conceptualize past and present distinctively. Statutory limitations, on first sight mere technical procedural norms, therefore may give insight in the dynamics of legal engagement with the past. When historians participate in legal proceedings, as experts of the past, the tension between disciplinary conventions comes into the limelight; hence I will pay particular
9 This decision is motivated by the notion that the ‘liberal legalist’ critique on first sight seems less
pressing in the context of civil litigation. Criminal procedure serves to protect an individual against the power of the state through rules that guarantee the conduct of a fair trial. Civil procedure, on the other hand, aims to ensure effective and fair proceedings between two - in procedural respect - equal parties, to enable them to effectuate their private rights and duties. When the civil limb of the law is used to (re)write history, this will pose less a threat to requirements of legal justice, and hence to the legal process itself.
10 The selection of these two cases will be explained below. 11 See Wilson (n 6) 6–7.
attention to the role of historians in both case studies. According to Richard Evans, the concepts guilt and innocence – the central issues in a criminal trial – are ‘entirely alien’ to the historians’ enterprise, and thus he ‘should not be asked to engage in them, or to serve their purposes, by a court of law’.12 Since civil procedure is not exclusively directed towards ‘guilt’ or ‘innocence’ but remains open to broader claims such as acknowledgment and recognition, it appears to produce a less black-and-white outcome than a criminal trial.
Second, in the context of (international) criminal law, many writers have taken issue with the idea that the legal focus on individual actions and intentions distorts the broader historical context. The French historian Henry Rousso, for instance, lamented that ‘history as a whole … is tried through individuals whose status is regarded as representative’, but whose selection is, in some respects, arbitrary.13 In his inaugural lecture, Harmen van der Wilt explores the challenges faced by international criminal law in addressing the structures in which individual crimes are embedded. International crimes, he notes, require comprehensive preparation and organisation, and are mostly characterised by the use of the machinery of the state. Yet, as crimes are divided into small fragments of individual responsibility, collective mechanisms, and hence the historical context, are lost out of sight.14 It could be remarked that colonial violence seems to be an example par excellence that cannot be satisfactorily grasped by zooming in on individual actions, as it concerns the forceful imposition of all aspects of state power on a foreign territory and its people. On the outset, at least, civil law seems less confined to the microscopic level of specific actions and intentions of particular individuals.
Third, whereas criminal prosecution is the monopoly of the public prosecutor, private parties initiate civil litigation. It therefore appears a legal instrument that is better fit to confront the darker pages of the past. Accordingly, I am particularly interested in the manner in which the claimants deployed legal concepts and tools to challenge the official narrative of the historical period at issue in the case.
12 Evans (n 4) 330; See also Wilson (n 6) 7. 13 Evans (n 4) 334.
14 Harmen van der Wilt, Het kwaad in functie (Vossiuspers UvA 2005) 6–8; See also Harmen van der
Wilt and André Nollkaemper (eds), System Criminality in International Law (Cambridge University Press 2009).
Case selection and sources (i) Selection of cases
Over the past decade, various legal cases have been dealing with colonial violence. Examples include the case of Keyu v. Foreign Secretary (an application for judicial review that concerned an alleged massacre by British soldiers at Batang Kali, during the Malayan Emergency in 1948)15; the Aussaresses trial in France (the prosecution of a retired French general and his two publishers for public defence of war crimes, concerning torture by French officials during the Algerian war)16, and the legal actions of the Ovaherero and Nama peoples (including a recent class action against the German government in U.S. courts, concerning an alleged genocide perpetrated by the German colonial authorities in South West Africa (now Namibia) between 1885 and 1909)17. The two cases that form the basis for this study are selected for several shared features.18 Most importantly, both cases are civil actions, which enables me to explore the relationship between law and history within this specific legal paradigm. Moreover, the cases are both brought against states as private legal entities. Finally, both claims specifically concern state violence during the decoloni-zation period. Although by no means is it suggested that the historical contexts of both cases are therefore comparable, it does limit the scope of the study to specific periods in time.
An important difference is that the cases were respectively pursued in a common law (the United Kingdom) and a civil law (the Netherlands) system. Although comparative lawyers have taken issue with both ‘the idea that procedural systems can be neatly divided into the traditional legal families’ and the frequently
15 See Thomas Poole and Sangeeta Shah, ‘A Very Succesful Action? Historical Wrongs at Common
Law’ [2016] LSE Law, Society and Economy Working Papers; Anthony Short, ‘The Malayan Emergency and the Batang Kali Incident’ (2010) 41 Asian Affairs 337.
16 See Stiina Löytömäki, ‘The Law and Collective Memory of Colonialism: France and the Case of
“Belated” Transitional Justice’ (2013) 7 International Journal of Transitional Justice 205.
17 See Sarkin-Hughes (n 1); Steffen Eicker, Der Deutsch-Herero-Krieg und das Völkerrecht: die
völkerrechtliche Haftung der Bundesrepublik Deutschland für das Vorgehen des Deutschen Reiches gegen die Herero in Deutsch-Südwestafrika im Jahre 1904 und ihre Durchsetzung vor einem nationalen Gericht (P Lang 2009); Sidney L Harring, ‘German Reparations to the Herero Nation: An
Assertion of Herero Nationhood in the Path of Namibian Development?(Genocide by Germany Army against Herero Tribe in Early 19th Century)’ (2002) 104 West Virginia Law Review 393.
18 See Gerhard Dannemann, ‘Comparative law: Study of Similarities or Differences?’ in: Mathias
Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press 2006).
used distinction between adversarial and inquisitorial procedures, it is beyond the scope of this essay to explore those assertions in detail.19 Rather than engaging in full comparative enquiry, the study will explain features of each case with regards to its particular legal context where this is necessary to comprehend the interaction between law and history. At the outset, I will highlight certain principal differences between civil and common-law procedures that are relevant for this study.
Importantly, civil and common-law legal traditions differ with regards to the delineation of the scope of the dispute. In civil law countries, the complaint defines the parameters of the case, whereas in common law countries the complaint is generally rather ‘a formality which starts a procedure of investigation aimed at establishing the truth.’20 In general, the judge plays a more active role in civil legal systems and the collection of evidence is seen as a public function of the court, whereas in common law countries this process is rather considered a private matter in which the parties play the principal role.21 Furthermore, whilst in civil law countries emphasis generally lays on written evidence, common law systems rather value oral evidence and cross-examination of witnesses by the parties. Finally, expert witnesses in common law usually are deployed by the parties, whereas in civil law countries they are appointed by the courts, and are considered impartial ‘court experts’.22
(ii) Sources
The available legal documents (such as summons, judgments and witness statements) form, as primary sources, the “data” for the study. Where necessary, they are supple-mented by secondary sources such as newspaper reports and interviews. It is here that one finds a significant practical limitation that the study faces: the amount of
19 Joachim Zekoll, ‘Comparative Civil Procedure’ in: Reimann and Zimmermann (n 22).
20 Caslav Pejovic, ‘Civil Law and Common Law: Two Different Paths Leading to the Same Goal’
(2001) 32 Victoria University of Wellington Law Review 817, 830.
21 See R. Verkerk, ‘England and Wales: Powers of the Judge’ in: CH Rhee, van (ed), European
Traditions in Civil Procedure (Intersentia 2005) 307–316.
“data” is limited because most legal files are not public.23 Although the meters of files that reside in the lawyers’ offices would certainly have provided a more comprehensive picture of the encounter between law and history in the case studies, sufficient material is available to complete the study satisfactory. It should, however, be acknowledged that the course of the proceedings is reconstructed on the basis of limitedly available legal files.
Structure of the essay
The essay provides an in-depth analysis of the two case studies. For both cases, I will first provide a general historical background. I will thereafter explore the interaction between law and history during the course of the proceedings in the light of the threefold interest that I have presented above. Since both cases followed a different legal process, the structures of the chapters will differ accordingly.
The first part analyses the case of Mutua and others v. FCO, a civil lawsuit brought against the British government by five Kenyans who claimed to have suffered torture and other severe mistreatment in detention camps during the last decade of British colonial rule. The main issue – why London was responsible for what had happened in the camps – generated not only much legal, but also substantial historical controversy in the course of the proceedings. I will analyse how the claimants’ lawyers laboured to connect the acts of physical perpetrators with the government in London, thereby significantly challenging the official story about the period. I will also recount how the case not only used history – primarily through the services of three historians – but also produced history, as the pressure of legal proceedings compelled the government to produce a vast quantity of files that had thus far remained ‘secret’ according to some, ‘forgotten’ according to others. Finally,
23 Although in the United Kingdom it is possible to request - against a fee - certain documents from
the court record such as the particulars of claim, defences and counterclaims, in the Netherlands this is unfortunately impossible. Since there amount of available material was already larger for the British case (several relevant materials have been published by the claimants’ lawyers on their website,
https://www.leighday.co.uk/), I decided not to make use of the possibility as this would put the inquiries of both case studies out of balance. For the Dutch cases, I did have access to the judgments, and some legal documents that were published on the website of the initiator of the cases, the foundation Yayasan K.U.K.B. (http://www.kukb.nl/). I was also able to attend several legal hearings.
I will address the debate in court on the question whether the claims were time-barred, and how this reflects different legal and historical approaches to evidence.
The second part discusses a series of cases in the Dutch courts, in which the State of the Netherlands was held liable for summary executions and other forms of colonial violence during the Indonesian war of decolonization. In this part, I will first assess how the legal proceedings engaged with Dutch debate on the decolonization period. Thereafter, I will analyse the main legal issue – the applicability of statutory limitations – and explain how this provides insight in conflicting conceptions of past and present. I will also address the fact-finding endeavours in the cases, which illustrate the complexity of reconstructing history in accordance with legal standards, and examine how the individual cases relate to the broader historical context in which they took place.
The final, concluding part recaptures which insights may be drawn from the case studies, and reflects on how such insights may enhance our understanding of the interaction between law and history.
PART I: THE MAU MAU CASE
‘I have brought this case because I want the world to know about the years I have lost and what was taken from a generation of Kenyans. … I would like the wrongs which were done to me and other Kenyans to be recognized by the British Government so that I can die in peace.’
- Witness statement of Wambugu Wa Nyingi24 ‘If, therefore, we are going to sin, we must sin quietly.’
- Note from the Attorney General, File REC/7, Hanslope Park25
The rise of Mau Mau in colonial Kenya
In 2009, five elderly Kenyans filed a claim against the British government alleging that they had been seriously mistreated at the hands of the British colonial administration in Kenya. The alleged mistreatment was said to have taken place in a period known as the “Mau Mau Rebellion”, an anti-colonial uprising between 1952 and 1962. Below, I aim to briefly set out those features of colonial Kenya that seem, at the very least, necessary to comprehend the background against which these claims were brought. This cannot be more than a limited introduction, and does not pretend to do justice to the complex social, economic and cultural implications of the colonization of Kenya.
Kenya came under British rule as a protectorate in 1895, and was transformed into a British Crown colony in 1920. It was one of the places in British Africa (together with Southern Rhodesia and South Africa) in which the British planned and executed an extensive settler policy that aimed for white colonists to establish and run a solid settlers economy.26 The British government promised cheap land and labour (both being African), and thousands of settlers immigrated to Kenya, “Britain’s youngest and most attractive colony”27. The vast majority of the colonists settled in central Kenya, a highly fertile area that was soon to become named the
24 Witness statement of Wambugu Wa Nyingi (4 November 2010) para 90. 25 Quoted in: David Anderson, ‘Witness Statement No. 2’ (1 April 2011) para 13.
26 Caroline Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Henry Holt
and Company 2010) 11.
27 David Koff and Anthony Howarth, Black Man’s Land: Images of Colonialism and Independence in
“White Highlands”. Needless to say, the increasing number of settlers went hand in hand with mounting pressure on the African population, whose lands were expropriated and who were gradually forced into the exploitative colonial wage economy. 28
Most affected by the settlement policies were the Kikuyu, the largest ethnic group in Kenya. The Kikuyu were agriculturalists who had traditionally inhabited the central highlands, and lost the larger part of their territory to the settlers. By end of the First World War, most Kikuyu were either living in ethnic reserves in the Central Province or as “squatters” (tenant farmers) on white farmers’ plantations. These developments formed the background for a growing resistance among the Kikuyu people. 29 Caroline Elkins describes how the Second World War brought major changes to Kenya, changes that ‘exposed the inequities of British colonial rule, galvanized Kikuyu discontent, and channelled it into a mass peasant movement that would be called Mau Mau.’30 The masses of the Kikuyu became mobilized through a radical transformation of the traditional Kikuyu practice of oathing, which, as Elkins describes, gained new meaning within the changing circumstances of British colonialism. The practice of mass oathing, sometimes being administered to hun-dreds of men, women and children at a time, spread rapidly and united the Kikuyu into an enormous popular movement that demanded land and freedom.31
The Mau Mau rebels that had taken up arms against the British started off by attacking cattle and destroying property. This terrified the white settlers, who pressed the colonial authorities to quell the movement. On October 20th, 1952, the Governor of Kenya, Sir Evelyn Baring, proclaimed a state of emergency, which lasted until January 12th, 1960. This period has become known as “the Kenyan Emergency”. The proclamation of the state of emergency led to an escalation of violence, with Mau Mau rebels brutally attacking and murdering many so-called “loyalists”, Kikuyu that were loyal the colonial government, which was followed by a series of violent
28 ibid 9–12.
29 ibid 12–14. 30 ibid 22. 31 ibid 23–27.
murders on white settler families.32 Pictures of these murders were widely distributed by the British and Kenyan press, where Mau Mau was depicted as evil, dark and barbarian, in contrast to the white and heroic forces of the colonial administration. The colonial propaganda machine presented the Emergency ‘as a war between savagery and civilization’33, which fitted rather well within the general narrative that colonisation of Kenya was not about land and resources, but a “civilizing mission”. 34 In short, Mau Mau rapidly became synonymous with pure evil.35
The colonial authorities responded to Mau Mau with a brutal and extensive counter-insurgency that was ‘fought not just by the military, or by the police, but [also] by the civil administration’.36 From March 1953 onwards, detention camps were build in order to accommodate the large numbers of detained Mau Mau suspects, along with the construction of enclosed villages for the civilian part of the Kikuyu population. 37 In the official story of the British government at the time, these camps and villages served to “rehabilitate” the Kikuyu people ‘through hard work and education’; helping them to civilize by making them recant their oaths.38
A year after the Emergency was formally ended, Kenya gained independence. The Mau Mau movement however remained an illegal organization until long after 1963. It was only in 2002 that the remaining members of Mau Mau were able to organize themselves in the Mau Mau War Veterans Associaton (MMWVA). From 2003 onwards, the Kenya Human Rights Commission (KHRC) started working with the MMWVA, starting a process of contacting and interviewing thousands of alleged victims of torture and abuse during the Emergency period.
32 Radiolab, ‘Mau Mau’
<http://www.radiolab.org/story/mau-mau/?utm_source=sharedUrl&utm_medium=metatag&utm_campaign=sharedUrl> accessed 3 October 2017.
33 David Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire
(Hachette UK 2011) 1.
34 Jennifer Balint, ‘The “Mau Mau” Legal Hearings and Recognizing the Crimes of the British
Colonial State: A Limited Constitutive Moment’ (2016) 3 Critical Analysis of Law 265; Katie Engelhart, ‘Britain Goes to Trial for Colonial Crimes’ Macleans.ca (19 October 2012) <http://www.macleans.ca/news/world/empire-on-trial/> accessed 27 September 2017.
35 Radiolab (n 32).
36 Anderson, Histories of the Hanged (n 33) 5 of the Prologue.
37 Mutua v Foreign and Commonwealth Office, [2011] EWHC 1913 (QB) [8–9].
38 BBC, Kenya: White Terror (2002) <https://www.youtube.com/watch?v=XV0udfKrzTQ> accessed
The Mau Mau take their case to court
The ‘Mau Mau case’, as the case is often referred to, told a story of the counter-insurgency operation that differed considerably from the official position of the British government. Five claimants, selected by the KHRC together with the London-based law firm Leigh Day, claimed they had suffered torture at the hands of the British colonial administration during the Kenyan Emergency, their allegations ranging from forced castration to torture, severe beatings, forced labour and sexual torture and assault. Ndiku Mutua, Paulo Nzili, Wambugu Wa Nyingi, Jane Muthoni Mara, and Susan Ngondi at the time had either been accused by the colonial authorities of Mau Mau membership or of supporting the organization, and all claimed to have been detained in various detention centres and villages throughout the country. As a test case, it was hoped that if these five claims would be successful, they would result in community reparations for a wider group of victims.39
On June 23, 2009, the five claimants flew to London to issue their claims in person. The case that they presented involved an action for damages for personal injuries in respect of the torts assault and battery, and negligence, and was brought against the British government through the Foreign and Commonwealth Office (FCO). The five asked both financial compensation and a formal state apology for their alleged injuries, which were said to have been deliberately inflicted on the claimants by officers and soldiers of the Kenya police force, the Home Guard and/or the Kenya Regiment.40 Since local colonial officers had mistreated these claimants, the main challenge of the case was to argue that the present-day British government in London could be held liable for their actions. Martin Day, the leading lawyer for the claimants, explained that because the defendant was the FCO and not an individual officer or civil servant, he was compelled to ‘link individual acts of
39 Leigh Day, ‘The Long March for Justice’ 3
<http://www.khrc.or.ke/mobile-publications/other-practical-information/100-long-march-for-justice-leigh-day-co-media-briefing/file.html> accessed 5 October 2017.
40 Mutua v FCO, 2011 (n 37) [1]; The Kenya police force was the local police force, the Home Guard
was a local armed force that consisted primarily of ‘loyalist’ Kikuyu; the ranks of the (also local) Kenya Regiment were principally filled with white, European settlers. See Huw Bennett, ‘Soldiers in the Court Room: The British Army’s Part in the Kenya Emergency under the Legal Spotlight’ (2011) 39 The Journal of Imperial and Commonwealth History 717.
unlawful detention and castration “to the halls of British government”’.41 The efforts to establish this link shifted the focus of the case from the actual individual perpetrators towards a much larger picture, namely the context and circumstances in which the mistreatment had taken place. As one of the expert witnesses in the case observed ‘these allegations question the very purpose and organisation of the British counter-insurgency in Kenya and raise the issue of state violence in the suggestion that the use of brutal methods of abuse, including torture, was part of a systemic and
calculated response to the Emergency in Kenya between 1952 and 1960.’42
The claims, I would suggest, were in essence about denial and acknow-ledgement, not only of justice, but also of history. This is not to downplay the importance of financial compensation to the claimants, most of whom were living in severe poverty. Rather, it is to argue that compensation too was a symbolic form of recognition of their version of the past. The legal action enabled the Mau Mau veterans to publicly challenge the official British account of the Kenyan Emergency. In the state-approved version of events, unlawful use of force had been depicted as “excesses” committed by local security forces that were not under the control of the
British Army and with which the British government had nothing to do.43The
claimants aimed to demonstrate that their experiences had not been excesses or incidents, but reflections of systematic torture that was condoned at the highest levels of British government. As Ian Cobain, who reported on the case for the Guardian wrote ‘[t]he claim by Mau Mau veterans for abuses suffered 50 years ago challenges not only the foreign office, but the British people’s narrative of their imperial past.’44
In response to the claims, the FCO denied legal liability and attempted to prevent the claim from proceeding to a full trial. In fact, the FCO did not deny that ‘if the claimants’ allegations are well founded, they would have had proper claims at the time against the perpetrators of the assaults (…). The issue is whether a claim can
41 Engelhart, ‘Britain Goes to Trial’ (n 34).
42 David M Anderson, ‘Mau Mau in the High Court and the “Lost” British Empire Archives: Colonial
Conspiracy or Bureaucratic Bungle?’ (2011) 39 The Journal of Imperial and Commonwealth History 699, 701.
43 Bennett, ‘Soldiers in the Court Room’ (n 40) 721, 722.
44 Ian Cobain, ‘The Mau Mau May Rewrite the History of the British Empire’ The Guardian (28
October 2012) <http://www.theguardian.com/commentisfree/2012/oct/28/mau-mau-rewrite-history-british-empire> accessed 14 September 2017.
properly be brought now against Her Majesty’s Government in the United
Kingdom.’45 In short, the lawyers of the FCO argued that the claim was (i) brought against the wrong government and (ii) brought too late. The first argument was dealt with and dismissed in 2011. Then, the FCO filed a second application to have the issue of statutory limitation tried as a preliminary issue. This question was dealt with in 2012. It is important to keep in mind that the principal issue at stake in this phase of the proceedings was not the legal liability of the British government, but whether the claimants had brought an arguable claim and whether this claim was time-barred, in order to decide whether the claims could proceed to full trial. Although at first sight these issues may seem mere legal technicalities, a closer examination shows that the debate over the preliminary questions was not only a legal battle but also a battle over history. Below, I will examine the interactions between law and history with regards to both issues in turn. Since the issue of statutory limitation has also played a major role in the second case study, the emphasis in this chapter will be on the first judgment of 2011.
The British government as defendant: local excesses or common design?
The first hearing at the High Court of Justice in London (hereafter: ‘High Court’ or ‘the Court’) took place in April 2011. In this hearing the presiding judge, Judge McCombe, had to decide ‘whether the claimants have a viable claim in law, and on the facts as presently known, against this defendant representing the UK Govern-ment.’46 Underlying this technical legal vocabulary loomed the fundamental question whether the present-day British government could be held responsible for the fate of Kenyans at that time, or rather whether the claimants had made an arguable case that it did. Arguing that London had been profoundly involved in the events during the Emergency, the claimants deployed various doctrines of tort law to link the actions of local colonial officers with the government in London. Due to the limited space
45 Mutua v FCO, 2011 (n 37) [2] [emphasis added]. 46 ibid.
available in this essay, I will only address the second and third heads of the claim, as these have incited most historical debate.47
The individual cases of mistreatment were to be considered under both the constitutional structure and the administrative, military and security structures in place between 1952 and 1962.48 The FCO essentially argued that it could not be held liable for officers in service of the colonial administration (as a separate and distinct entity) and that, if at all, the claims should have been brought against the present-day Kenyan government. As Judge McCombe summarized the FCO’s position, ‘all that was done in Kenya and in London, by British politicians, diplomats, civil servants and soldiers, in the context of the present case, whether by way of instruction, formal or informal, or by giving advice, was done as part of the machinery and operation of the Colonial Government of Kenya, not as acts of the UK Government.’49 The claimants, on the other hand, although they acknowledged the separate nature of the colonial administration, submitted that this did not resolve the British government of its own, separate and distinct liability.50 They argued that even though the colonial government had administered the camps, it was not possible to “airbrush” the British government from the picture.51
Leigh Day’s lawyers endeavoured to paint a picture in court that portrayed the violence experienced by the five claimants as ‘not merely some accident or the product of a single ‘rotten apple’, but rather symptomatic of a wider policy’52, for which the then British government had also been responsible. For demonstrating such a policy, they relied upon the principles of joint liability for torts (in casu assault and battery).53 They submitted that the British government was jointly liable for having been complicit in the creation and maintenance of “a tortious system”,
47 The other heads of the claim alleged transferal of liability upon independence in 1963 (1), liability
as a result of a instruction, approval or authorization of a particular treatment after 1953 (4), and negligence (5). ibid 13.
48 ibid 10. 49 ibid 58. 50 ibid 11–12. 51 ibid 27.
52 Bennett, ‘Soldiers in the Court Room’ (n 40) 720. 53 Mutua v FCO, 2011 (n 37) [115].
either through the British Army or through the Colonial Office. 54 The legal concept of joint liability in the English common law requires ‘concerted action’; the res-pective shares in the commission of the tort have to be done in furtherance of a common design.55 Accordingly Mr. Hermer, one of the claimants’ lawyers, stated in his oral submission: ‘We say in fact there was a common design to commit torture’.56
The concept of joint liability enabled the claimants to acknowledge the formal constitutional structures in place and to emphasize the structural nature of the torture at the same time. It should be noted that the British Empire, which at its height occupied a quarter of the world’s continental surface, was indeed character-ized by ‘the looseness of its decentralcharacter-ized control’. 57 Local officers had always been given much freedom in managing the administration and decision-making in the colonies, which given the size of the Empire and the vast differences between colonial territories made sense.58 The concept of joint liability, however, pulled the focus away from the actual perpetrators of torture, and towards the system that led to the specific torts. This shift also turned the testimony of the claimants from stories of individual suffering into components of a greater narrative of systematic abuse.
The FCO accepted in its written submissions that if such a system existed, then in certain circumstances liability on the part of the British government could follow. These circumstances however, the FCO argued, ‘required proof of far more than violence that was widespread and frequent’, a point which it illustrated by drawing ‘a useful historical parallel’ that referred to the policy directives of the Wannsee Conference of January 20th, 1942. Such historical insensitivity was not lost to the judge, who commented that he ‘must admit to personal surprise and regret, wherever legal liability may lie, that one reads about what happened in this British Colony so soon after the lessons of that historical parallel ought to have been well learnt.’59
54 The Colonial Office was the center of imperial governance in London, and responsible for the vast
majority of British colonies.
55 Mutua v FCO, 2011 (n 37) [115]. 56 ibid 117 fn 17.
57 Elkins, Imperial Reckoning (n 26) 7. 58 ibid.
For the Court, now, it came down to the assessment of a large bulk of historical documents submitted as evidence, an amount that, as we will see, increased substantially during the proceedings. Each party inferred from these documents different arguments that they said should govern the Court’s factual conclusions, and accordingly provided the Court with very different accounts of the involvement of the British Army and the Colonial Office in the detention system in Kenya.60 The presentation of these two rival historical accounts in court illustrates a complex encounter between law and history. To this I will now turn.
Paradigm of evidence: historians as experts about the past
Apart from the claimants’ own accounts, their case was primarily structured on the expert testimony of three academic historians.61 In 2005, Professor Caroline Elkins (Harvard University) and Professor David Anderson (University of Oxford) had simultaneously published two ground-breaking studies on the Kenyan Emergency:
Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire
(Anderson), and Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Elkins). These two books were complemented in 2007 by a publication by Huw Bennett. Professor Anderson, Professor Elkins and Dr. Bennett each served as an advisor and expert witness for the claimants. They were three revisionist historians who had challenged the official narrative of British involvement during the Emergency in their academic works and who would continue to do so in court.
The participation and role of historians in legal cases has been a topic of continuous debate. Amongst historians, a well-known critic is Henry Rousso, who refused a request to serve as an expert witness for the defence in the trial of Maurice Papon. In a letter to the court in which he asked to be exempted from testifying, he wrote: ‘In my soul and conscience, I believe that an historian cannot serve as a ‘witness’, and that his expertise is poorly suited to the rules and objectives of a judicial proceeding.’62 Amongst other things, Rousso is hesitant towards the
60 ibid 36; Mutua v Foreign and Commonwealth Office [2011], Summary of Judgment [7]. 61 Mutua v FCO, 2011 (n 37) [35].
62 Letter by Henry Rousso to the President of the Bordeaux Assizes Court, as quoted in Wilson (n 6)
participation of historians in trials because there their evidence is restricted by the rules of legal procedure, which limits their professional autonomy.63 In (inter-national) criminal proceedings, historians have frequently been invited to provide expert testimonies on the broader historical contexts, in order for the court to connect such contexts with the actions of individual perpetrators.64 Legal proceedings, however, require definite statements, and thus, as Stiina Löytömäki observes, this implicates ‘that what is expected from historians in court is really that they deliver the ‘truth’ about the past’.65 Rousso on the other hand ‘maintained that the historian could not describe “what had happened”, but only attempt, on the basis of available traces and navigating “between islands of established truths in an ocean of uncertainty”, to reconstitute a plausible account of events.’66
How did such concerns play out in the Mau Mau case? On October 18th, 2010,
Judge Tugendhat severely restricted the scope of the role that the claimants had proposed for Professor Elkins, and decided that she would not be allowed to provide ‘evidence which is opinion as to the merits of the case or any particular issue.’67 A few months later, Judge Langstaff elaborated on this:
Plainly she makes efficient the process of identifying documents and material. It is important that I should remind myself that that is essentially her role. Her evidence has no particular value in this case, other than to identify relevant documents or to identify relevant witnesses who may be able to give effective and important testimony. Her position is very different from that of a witness who has herself directly seen something happen. It is also very different from the traditional role of an expert witness.68
63 Henry Rousso, The Haunting Past: History, Memory, and Justice in Contemporary France
(University of Pennsylvania Press 2002); as discussed in Löytömäki (n 2) 54 and ; Evans (n 4) 330.
64 Bilsky (n 4) 127. 65 Löytömäki (n 2) 55.
66 Nancy Wood, ‘Memory on Trial in Contemporary France: The Case of Maurice Papon’ (1999) 11
History & Memory 41, 54.
67 Mutua v FCO, 2011 (n 37) [35]. 68 ibid.
Although the definite status of the historians’ statements and evidence remained to be determined at full trial, the preliminary proceedings indicate that the proper role of historians in this legal action was no foregone conclusion. Regular expert witnesses in civil litigation in the UK are expected to provide the court with opinion evidence on matters within their expertise, but the historians in the Mau Mau case were expressly not permitted to provide opinions.69 The case, however, apparently meets some of the concerns addressed by Rousso, at least to a certain extent.
First, the instructions for the historians in effect circumscribed their role in a manner that was in line with their own methodology regarding the identification of sources, and only deviated from it insofar as they were to provide no analysis or
interpretation.70 Limited to matters of fact (without adding opinions), the historians
principally referred the Court to relevant files and thus were prevented from presenting a specific interpretation of the past as ‘true’.71 Nonetheless, their resulting efforts do demonstrate a divergence between legal and academic historiographical reasoning. For example, Professor Elkins was instructed by the Court for her first statement to explain the documentary material, and in response delivered a witness statement that was ‘in effect, a trimmed-down version of Imperial Reckoning, devoid of indeterminacy, technical in its reference to archival documentation throughout, and such as it is possible, devoid of interpretation.’72 This transformation of a historiographical work into legal evidence is illustrative of the methodological dif-ficulties of the encounter between the two disciplines in the courtroom.
Second, the standard of proof in civil law is more akin to the manner in which historians frame their conclusions. Evans notes that ‘criminal law tackles historical problems on a narrow front, focusing on the attempt to prove a case beyond reason-able doubt rather than dealing in the broader frame of probabilities, as historians habitually do.’73 Quite differently in the Mau Mau case, at full trial the Court would have to assess whether the claimants met the burden of proof, which in civil
69 Civil Procedure Rules 1998 PD 35 (Experts and Assessors) 2.2. 70 Elkins, ‘Alchemy of Evidence’ (n 2) 741.
71 See for instance Huw Bennett, ‘Witness Statement No. 1’ (18 February 2010) para 3. 72 Elkins, ‘Alchemy of Evidence’ (n 2) 740–741.
litigation is the balance of probabilities. Establishing a case on the balance of probabilities means that the claimants’ position is most probably true, i.e. more probable than the position advanced by the other party. This involves a lesser degree of certainty, with which historians are more comfortable.
Certainly, however, the loss of professional independence lamented by Rousso was also a struggle for the historians in the Mau Mau case. In an article in which Professor Elkins reflects on her participation in the case, she notes that ‘[h]istorical experts […] must parse down facts and narrative complexity, and with it render the past understandable vis-à-vis the positivist legal scrutiny of intentions and actions.’74 By taking pains to carefully distinguish their own role from that of the historians, the judges did enable the legal process to conduct historical inquiry whilst safeguarding the position of the judge. They made clear that the final interpreter of the past would in this case be the court, and not the historian:
At any trial, perhaps assisted by historical expertise in identifying relevant materials and understanding their full context or perhaps not, it would be for the court (and not for the witnesses (expert or otherwise)) to read the documents presented, draw all necessary inferences from them and make the findings of primary fact, for example, as to the respective roles of the Colonial Government, the British Army and the UK Government.75
The archive that witnessed everything
The Mau Mau case took an unexpected turn in January 2011, just a few months before the beginning of the first hearing. For building their case, Leigh Day’s lawyers had been looking for documentary evidence of systematic British involve-ment in torture during the Kenyan Emergency, evidence ‘that would corroborate and elaborate the statements made by the four claimants’.76 They had filed a Freedom Of
74 Elkins, ‘Alchemy of Evidence’ (n 2) 732. 75 Mutua v FCO, 2011 (n 37) [36].
76 Anderson, ‘Mau Mau in the High Court’ (n 42) 706. One claimant died during the course of the
Information-request as early as 2006, upon which the FCO replied that all existing files had already been transferred to the National Archives ‘and so is in the public domain’.77 At a preliminary hearing in 2009, Leigh Day’s lawyers pushed for a full disclosure of documents relating to the Emergency period, upon which the Court ruled ‘that the FCO should make a full disclosure of all documents in their possession relating to the case’.78 Such an order should be understood in the context of the common law system, where the gathering of evidence in the pre-trial phase of civil litigation is established through the process of “disclosure”. The procedure of ‘standard disclosure’ compels a party to disclose all documents in its possession and to allow the other party to inspect those documents, regardless whether those documents adversely affect its own case. The procedure furthermore requires the party to make a reasonable search for documents within its control.79 This is quite distinct from civil law legal systems, in which pre-trial disclosure obligations are generally absent.80
The FCO’s Desk Officer for Kenya, Edward Inglett, sought to comply with the disclosure obligations by inquiring with the FCO’s records management staff in various offices, but got no positive response. Thus, the FCO communicated to the Court that it no longer held any files that were relevant to the case.81 In response, the claimants submitted a witness statement of Professor Anderson, in which he drew the Court’s attention to certain gaps in the official records. Such gaps had been long known to historians, yet it had generally been assumed that the missing documents had been destroyed upon British withdrawal from Kenya.82 According to Anderson, however, there were indications of remaining documentary material on the ad-ministration of detention camps, a ‘category of record’, he added, that ‘has been
77 Anthony Cary, ‘The Migrated Archives: What Went Wrong and What Lessons Should We Draw?’
(FCO 2011) para 32
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/625667/cary-report-release-colonial-administration-files.pdf> accessed 27 September 2017.
78 Anderson, ‘Mau Mau in the High Court’ (n 42) 707.
79 Civil Procedure Rules 1998 (n 69) Part 31; Rhee, van (n 21) 312. 80 Pejovic (n 20) 832.
81 Anthony Badger, ‘Historians, a Legacy of Suspicion and the “Migrated Archives”’ (2012) 23 Small
Wars & Insurgencies 799, 800–801; Bennett, ‘Soldiers in the Court Room’ (n 40) 725.
systematically withheld from the archive.’83 Anderson referred to a minute that allegedly gave information about a ‘cache of documents ‘retained’ from Kenya. It is said to comprise over 1500 files, in three hundred boxes taking up some 100 linear feet of shelving.’84 These 1500 files will hereafter be referred to as the ‘Kenya papers’. Under the pressure of the pending legal proceedings, Desk Officer Inglett again pressed the FCO records management staff to search for the files. This time he
‘expressly pointed out … that failure to disclose documents might be viewed as
obstructionist and therefore construed to imply culpability.’85Somewhat later, the
staff finally announced that they had found the Kenya papers, in a high-security complex at an old estate in Buckinghamshire, named Hanslope Park.
Before long, the Kenya papers proved to be part of a batch of more than 8,800 files that were shipped to Britain over 30 years of withdrawal from the Empire, and that contained information and reports covering 37 former colonies, including Cyprus, Palestine, Rhodesia, Malaya, Uganda and Hong Kong. These files became known as the “migrated archives”. Anthony Cary, who was appointed by the FCO to look into the circumstances surrounding the migrated archives, explains in his report that when British territories became independent, as a general rule the successor governments were not to be given papers which, among other things, might embarrass Her Majesty’s government or members of police, military forces or public servants. Such documents were either destroyed or shipped back to the UK.86 Altogether, Hanslope Park revealed to contain an estimated 1.2 million non-public files, not only including the migrated archives but also subjects ranging from the 1850s Crimean war to slave trade correspondence, Soviet KGB spy reports and Cold War propaganda.87
It is hard to overestimate the importance of the discovery of the files at Hanslope Park (hereafter: ‘Hanslope Disclosure’) for both the pending court case and
83 David Anderson, ‘Witness Statement No.1’ (21 December 2010) para 18. 84 ibid 13.
85 Anderson, ‘Mau Mau in the High Court’ (n 42) 708. 86 Cary (n 77) paras 3–4.
87 Katie Engelhart, ‘Will the UK Government Ever Release These Secret Files to the Public?’ Vice
(14 May 2014) <https://www.vice.com/en_uk/article/mv5393/the-uk-government-are-opening-thousands-of-secret-files-to-the-public> accessed 27 September 2017.
the historiography of the Empire. Hanslope Park contained much material that ‘ran counter to the official narrative in the United Kingdom that the Empire was about the spread of “British values,” that is, of the rule of law, “civilization,” and demo-cracy.’88 According to Professor Anderson, the Hanslope Disclosure – a direct consequence of the legal proceedings - generated files that could significantly revise the history of British decolonisation.89 Above all, the Hanslope Disclosure once more confirms that history is always written by the winners, and also demonstrates that archives, just like witnesses, are capable of selective memory. Of course, the FCO was strongly criticized for withholding these documents from the public domain for more than half a century, and, as one writer noted, it is ‘difficult to overestimate the legacy of suspicion among historians, lawyers and journalists about the … archive.’90 Yet, in the context of the pending case, the weight of the unfolding events was to be determined by legal procedure, and Judge McCombe emphasized that such condemnation did not have any legal significance:
Criticism of late disclosure of papers by the UK Government is and would be misplaced in so far as it is based on a misunderstanding of the court rules and procedures. If criticism is based on the failure to make documents available in the public archive earlier than was achieved, this is not a matter for the court.91
Historians versus lawyers: historical narrative in legal argument
As stated above, the two parties in the case had submitted two very different accounts of British involvement during the Emergency, both building on the historical record. Therefore, for their second witness statement the historians had been asked by Leigh Day to review and rebut the factual part of the FCO’s argument with archival evidence.92 Besides pointing out historical inaccuracies in the FCO’s
88 Balint (n 34) 263.
89 Anderson, ‘Mau Mau in the High Court’ (n 42) 714. 90 Badger (n 81) 799.
91 Mutua v FCO, Summary of Judgment (n 60) [6]. 92 Elkins, ‘Alchemy of Evidence’ (n 56) 743.
story, the historians attacked the FCO’s limited understanding of historical methodology in order to refute the narrative presented by the FCO.
For instance, Professor Elkins discredited the defendant’s factual account as ‘a reflection of a piece of historical writing that results from a cursory and partial reading’ of the available documentation.93 She criticized the FCO for presenting ‘hand-selected documents’94, and described its argument as ‘highly selective in its use of publically available information, and … reflective of a narrative that was potentially plausible some five years ago, but which … is no longer tenable in the scholarly arena.’95 ‘In effect’, she wrote in her witness statement, ‘the argument, as deployed here by the Defendant is one that follows a narrative deployed by the British colonial government at the time of the Emergency.’96 A similar view was expressed by Dr. Bennett, who rejected the FCO’s historical analysis as ‘one sided and incomplete’, with events being reconstructed on the basis of a ‘selective and incompetent reading of the available documentation and little knowledge of the historical context and without full appreciation of the range of sources and evidence which are available’.97 Professor Anderson furthermore considered it necessary to comment on ‘the flagrant misrepresentation’ of his own published work in the FCO’s statement.98
Thus, the legal proceedings provided a space in which revisionist historians could directly challenge the official narrative of the decolonization. By criticizing the FCO’s argument as lacking any serious historiographical foundation, they managed to cast sufficient doubt upon the governments’ narrative of the Kenyan Emergency for the purposes of the preliminary proceedings. Judge McCombe noted that, al-though at this stage of the proceedings he was not able to conclude whether these criticisms were correct or not, they could not be dismissed out of hand and ‘the possibility must be recognized that the evidence in the end may justify the court in
93 Caroline Elkins, ‘Witness Statment No. 2’ (1 April 2011) para 16. 94 ibid 17.
95 ibid 9. 96 ibid.
97 Huw Bennett, ‘Witness Statement No. 2’ (1 April 2011) para 4. 98 Anderson, ‘Statement No. 2’ (n 25) para 36.
drawing inferences similar to those drawn by the historians.’99 Although it can only be speculation how this would have turned out at full trial, the deployment of historiographical expertise to discredit the FCO’s story did result in a victory for the claimants’ in the pre-trial phase, convincing the judge to take ‘the claimant’s factual case at its highest.’100
The historians furthermore directly questioned the ability of the FCO’s lawyers to conduct historical inquiry with regard to the release process of the Hanslope files. They expressed concerns about the fact that the process of identifying and reviewing relevant files among the disclosed Kenya papers was controlled by the FCO and its legal team, or, as Dr. Bennett expressed it, ‘by those who have little understanding of the historical context’.101 According to Professor Anderson, the release process was not only conducted slowly, but also in a manner that was ‘not how a professional historian would approach such materials’.102 Rather than organising the documents systematically around specific issues or themes - as an historian would do in order to construct a narrative of events and to explain causal relationships - the FCO reviewed the files in an a apparently random manner that was far astray from historical methodology.103 Accordingly, Professor Anderson des-cribed his study of the incoming documents ‘like reading a novel with the pages all in the wrong sequence.’104
The colonial power may go to trial
Based on his preliminary assessment of the available evidence, Judge McCombe concluded that, although a stark evidential dispute existed about role of the British government in the alleged abusive system, there was ample evidence suggesting possible systematic torture of detainees and that it was impossible to rule out that such torture had been committed ‘pursuant to a “common design”’.105 He accepted
99 Mutua v FCO, 2011 (n 37) [38]. 100 ibid.
101 Bennett, ‘Statement No. 2’ (n 97) para 3. 102 Mutua v FCO, 2011 (n 37) [7].
103 Anderson, ‘Statement No. 2’ (n 25) para 7. 104 ibid.
that the British government was, as a separate entity, ‘capable of pursuing its own ends in the Emergency in Kenya and capable of participating in its own right in the instigation of a system such as that alleged.’106 According to the judge, the evidence suggested that the UK, as the colonial power, played a ‘hands on’ role in managing the Emergency, rather than ‘standing aloof’.107 He accordingly allowed the claim to proceed to trial.
Documents versus witnesses: a fair trial on history
After its legal defeat in the first round of hearings, the FCO argued that the claims were time-barred - a well-expected argument, since the time limit in the UK for bringing a civil action for personal injuries is three to six years.108 Besides protecting
people from being continuously at risk of having to defend themselves against old claims, limitation periods also apply because the passage of time reduces chances for the court to penetrate into the factual core of a dispute.109 Evidence may no longer be available; memories of witnesses will fade or become confused. 110 Indeed, Martin Day, one of the lawyers for the claimants in the Mau Mau case, recalls in an interview that when he started working on this case, he was not at all optimistic about their chances:
We just didn’t have the documents. It was a nightmare. Old Kenyans in their late seventies and eighties. … We were really worried that the judge would say that there can’t be a fair trial, because actually these witnesses are so old, so up and down just in terms of their memories, that really the evidence isn’t worth a great deal.111
106 ibid 131.
107 ibid 132.
108 Limitation Act 1980 c.58 1981 s 11(4).
109 Neil Andrews, English Civil Procedure: Fundamentals of the New Civil Justice System (Oxford
University Press 2003) 302.
110 Sime (n 92) 52. 111 Radiolab (n 32).
In the second round of legal action, the FCO argued that due to the passage of time it faced ‘irredeemable difficulty’ to defend the claim, and that a fair trial was thus no longer possible.112 It emphasized that the issues identified by the claimants went ‘to the heart of policy making at the highest level’113, and argued that the system that the claimants alleged would have to be established from the bottom to the very top of the United Kingdom.114 According to the FCO, a fair trial would require the directing minds of the British and colonial administration to respond with oral testimony to the inferences that the claimants had drawn from the documents. The majority, however, of those on its side who might have given material oral evidence were now dead.115 The claimants, on the other hand, admitted that many, but by no means all of the principal actors were now dead or unlikely to provide evidence at trial.116 They contended that many key witnesses were still alive and moreover that the central issues likely to be in dispute were of such a nature that they could be determined by primary reliance upon documentary rather than oral evidence. Irrespective the passage of time, they argued, a fair trial remained possible and the judge should therefore exercise his discretionary power under the Limitation act to allow the case to proceed to trial.117
Crucially, at a certain moment during the second hearing, the FCO acknowledged the fact of the mistreatment of each of the surviving individual claimants. At the outset of their cross-examination by the defence, Mr Mansfield for the FCO ‘stated expressly that the defendant did not dispute that he or she had suffered torture and other mistreatment at the hands of the Colonial Administration … There remains, therefore, no outstanding issue as to the fact of those claimants’ injuries and the manner of their infliction, although legal responsibility on the part of Her Majesty’s Government in the United Kingdom remains hotly contested.’118 It is
112 Ian Cobain, ‘Mau Mau Veterans Launch Second Round of Legal Action’ The Guardian (16 July
2012) <http://www.theguardian.com/world/2012/jul/16/mau-mau-veterans-secret-documents> accessed 8 November 2017.
113 Mutua v Foreign and Commonwealth Office, [2012] EWHC 2678 (QB) [7]. 114 ibid 29.
115 ibid 7, 29. 116 ibid 8.
117 ibid 2; Limitation Act 1980 c.58 (n 108).
