Picture: Matheus Sanchez/Flickr
In this, the year of renewed British patriotism, with a recent Royal wedding, the Olympics and the Queen’s Jubilee, a troubling truth has raised its head.
Three elderly Kenyans are pressing claims against the British government for the torture they were subjected to under colonial rule. Apart from upsetting 2012’s patriotic apple cart, the Mau Mau court case raises complex questions about responsibility for colonial injustice, with potentially far-reaching implications. Debates in the media have focused on the question of why the current government and citizens living now, who had nothing to do with the crimes, should pay for it. In this article, I want to make a case for why they should.
The History
The Mau Mau rebellion took place between 1952 and 1960. Colonial rule in Kenya was known for being particularly racist and brutal, and there was a
history of resistance against it. The Mau Mau rebellion was a violent, militant uprising against white settlers and native Kikuyu loyalists who supported the colonial administration. After the assassination of a Kikuyu chief, who was a strong supporter of colonial rule, the colonial authorities issued a “state of emergency”.
After a failed military attempt to crush the rebellion, the colonial administration resorted to the establishment of “screening centres” which have been likened to Soviet Gulags by historian
Caroline Elkins. Kikuyu peoples were relocated to the camps and screened for their involvement in the rebellion. In these camps, detainees were subject to forced labour, starvation and alleged systematic torture in order to extract confessions. The number of deaths in the camps is
highly disputed, historian David Anderson estimates the number at 25,000, but Elkins thinks it could be as much as 300,000.
The
testimonies of the victims taking their case to the British High Court bring to light the brutality of the camps. Wambugu Wa Nyingi was detained for nine years and beaten unconscious in an atrocity at the Hola camp in 1959, in which 11 detainees were bludgeoned to death. Paulo Muoka Nzili, was castrated. Jane Muthoni Mara was fifteen when detained. She was beaten with sticks and a gun butt, and raped with a glass bottle filled with hot water. According to expert witnesses, the historians Caroline Elkins and David Anderson, these experiences were not unique, with rape, sodomy, beatings and executions routine at the camps.
The Legal Case
The victims initially brought their case to the High Court in July 2011, arguing for the right to sue the British government for compensation for the crimes. The British government tried to shirk responsibility. There are two types of responsibility at stake here: culpability (or moral responsibility) and liability.
Initially the British government claimed it was not culpable for the crimes, because they were committed by the independent colonial administration in Kenya. However, previously
unseen foreign office documents were revealed at the trial, in which it emerged that the British government was aware of the atrocities and could have sanctioned them; proving that the British government was at least negligent in allowing the atrocities to continue, thus sealing their culpability.
The question of liability, however, was a separate issue. The British government claimed that it was
a condition of Kenyan independence that the new government accept any outstanding claims against the colonial administration. So this meant that the British government could be said to be morally responsible for the crimes, but not liable to pay compensation. Mr Justice McCombe who was presiding over this case, said that this argument was
“dishonourable” and that the victims did have the right to press claims against the British government because of the government’s failure in its duty of care to the Kenyan citizens at the time. Based on the available evidence he refused to admit the British government had been involved in systematic torture, though he ruled that the claimants could pursue a damages case.
The victims are now back in court claiming damages against the British government. The government’s argument this time is that too much time has elapsed since the crimes for the claimants to sue. In UK law, there are time limits on bringing cases to court, for example the
time limit for damages for personal injuries is three years. According to the
Criminal Prosecution Service (CPS) guidelines, “courts are less concerned with the period of time that has elapsed than the effect that delay can be said to have had on the ability of the defendant to mount an effective case.” So while time elapsed in itself can be a barrier to bringing a case to court, the primary reason for this is the way in which it affects the defence’s ability to defend itself against the prosecution.
The government claims that because the alleged torture took place decades ago, it cannot mount a successful defence as key decision-makers are dead and potential witnesses’ testimonies will be questionable. However, since the government has access to over
17,000 previously “lost” documents detailing the crimes committed against the Mau Mau, it seems they are on shaky ground: they have plenty of evidence of their involvement in the crimes and how they reacted at the time. The government is therefore basing its case on legal technicalities, which in the first court case Justice McCombe claimed was dishonourable.
Archbishop Desmond Tutu has written to David Cameron urging him to recognise the moral poverty of this position and to have compassion for the victims. Given the weakness of the government’s defence then, we may be facing the
first case in which individual victims of colonial injustice have fought a former colonial power and won.
Why Should We Pay?
The Mau Mau case is extremely significant. It would set a precedent for other living victims of colonial crimes to sue current governments for compensation. But in the media,
questions have been raised as to why people now should pay for the crimes of the past. This is a notoriously complex question, but in this particular case I think there are strong reasons for answering that they should.
1. Time Elapsed
The most common argument against historical injustice claims is that too much time has elapsed since the crimes occurred. This is different to the British government’s legal argument that too much time has elapsed so they are unable to create a decent defence. Rather, it is the idea that moral obligations cease to exist after much time has passed; so no one is morally responsible now for the crimes of the Romans, for example. George Sher
famously made this argument in the guise of “automatic effects”. He writes:
“Where the initial wrong was done many hundreds of years ago, almost all of the difference between the victim’s entitlements in the actual world and his entitlements in a rectified world can be expected to stem from the actions of various intervening agents in the two alternate worlds. Little or none of it will be the automatic effect of the initial wrong act itself. Since compensation is warranted only for disparities in entitlements which are the automatic effect of the initial wrong act, this means that there will be little or nothing left to compensate for.”
In other words, so much has happened between the historical wrongdoing and the present day that it is impossible to untangle what constitutes the actual effects of the injustice and what is due to other decisions taken in the meantime, for which the individuals or groups involved should take responsibility. Sher’s argument has been very influential on theorists who want to argue that historical injustices ought not to be compensated.
However, in the case of the Mau Mau, their injuries are the automatic effects of the British government’s actions at the time; for example Nzili’s inability to have children. The fact that a case has been brought to court illustrating the automatic effects of colonial harms on living people is a challenge to the dogma that colonial injustices are too far in the past to be brought to justice now. The crimes committed during the Mau Mau rebellion are not “ancient wrongs,” they are relatively recent wrongs, the direct effects of which are still apparent.
2. Change of Government Personnel
Another argument against compensating the victims is that there has been a change of personnel in the government; the individuals who sanctioned torture are no longer alive and those in power now shouldn’t be held responsible.
This argument implies that only individuals can bear responsibilities and not collective agents, but this is not how contemporary politics or legal practice operates. The British government is a collective agent – individual members of parliament can join and leave and it will still be the British government. As Jana Thompson points out, governments sign treaties that are binding for posterity, regardless of personnel changes. For example, if a UK administration signed up to the Kyoto Protocol, the terms of that treaty are binding on all successive governments. So governments now are bound by decisions made by previous governments in the past. By extension of this reasoning, we can argue that if governments committed crimes in the past, if those crimes have gone uncompensated then the current government still bears responsibility for them. As Thompson
writes, “Since agreements persist from one generation to another, so too do reparative entitlements and obligations”.
There are problems with this state-centric approach. Some previous colonial powers no longer exist; we cannot hold the government of the Austro-Hungarian Empire responsible for past crimes because it no longer exists and has no representative now. Europe was a turbulent place in the nineteenth and twentieth centuries, and it may not always be possible to assign blame for colonial crimes to governments now. So this argument only gets us so far, but the UK has a relatively stable history, in which we can say it has maintained its
identity and decision-making structure since the times when the crimes against the Mau Mau occurred; so in this particular case we can assign responsibility to the UK government as a collective agent.
3. Why Should Citizens Living Now Pay for It?
It might seem relatively simple to admit, then, that the British government could bear responsibility for the crimes against the Mau Mau. But the government’s money comes from citizens’ taxes. Why should citizens now pay for crimes committed in the past when they weren’t even alive?
As David Miller
points out, this is a difficult question to answer because it “immediately severs the link between agency and responsibility.”
Miller argues that in cases where one nation has harmed members of another nation in the past, then recognition of national membership requires accepting those liabilities. He writes,
“The key… is to reflect on the benefits that membership in a national community can provide, primarily tangible benefits in the form of inherited territory and capital, but also intangible benefits in the form of pride in the national past. My claim is that one cannot legitimately enjoy such benefits without at the same time acknowledging responsibility for aspects of the national past that have involved the unjust treatment of people inside or outside the national community itself, and liability to provide redress in whatever form the particular circumstances demand.”
Miller’s argument rests on a concept of shared identity as nationality. I personally don’t accept this kind of communitarian argument. However, we can argue along similar lines that citizenship in a state (whether you identify with the dominant national identity or not) confers certain benefits and also imposes obligations. In my view, if citizens are entitled to the benefits of the state’s past decisions, then they must also be willing to bear the burdens of those decisions.[7] If you are willing to live off the benefits of the colonial past, which are numerous in terms of acquisition of resources and on-going distorted power relations, then you must also accept the victims’ rights to compensation from you.
This, however, is a controversial argument. Libertarians claim that some people are winners from history and others are losers. Losses should lie where they fall: it is unfair to expect individual citizens now to pay for what happened in the past. Libertarians do not think that individual community members can inherit responsibility for past community crimes (although they do allow for
inheritance of property and wealth).
While libertarians may wish to live in a society where the government does not make demands of citizens, we do not currently live in such a world. Citizens are obliged to pay taxes, the question is whether those taxes should be spent compensating the Mau Mau and other victims of colonial injustice or not.
In the case of the Mau Mau, the fact that the victims are still alive is crucial. Often in historical injustice claims, compensation is claimed by descendants for the wrongs done to their ancestors (e.g. reparations for slavery), or for the restitution of property unjustly acquired from their ancestors (e.g. Aboriginal peoples in Australia). In this case, individuals are making claims on behalf of themselves and others like them who were actually harmed by the colonial government and continue to suffer the effects today. Their claims to compensation from the government are wholly legitimate, as has been proved in court. Justice demands that they are entitled to at least press claims for compensation.
Furthermore, I believe there is a moral case for claiming that tax money should be spent on compensating the victims of colonial crimes. As I have argued, governments routinely make decisions on behalf of citizens, such as signing up to international treaties. Tax money is spent on meeting those obligations. Thus, tax money can also legitimately be spent on meeting the government’s obligations to pay for its wrongdoings. That is the price of citizenship. It could be argued that in an alternate world that shouldn’t be the price of citizenship; but I am interested in the current concrete claims of the Mau Mau torture victims and how they ought to be treated in the present day under the system we currently have. And in those circumstances, it is justifiable to expect tax money to be spent on their compensation.
It is my view, then, that there is a strong moral case for compensating the victims, but undoubtedly many people will not accept the benefit argument. One can reject this foundational argument, however, and still find persuasive rhetorical reasons for compensating the victims. When we think about what the UK government has recently spent taxpayers’ money on – the banks, MPs’ expenses, PC Harwood’s legal defence costs, the Olympics – not granting compensation to three elderly people who have suffered their whole lives from the torture inflicted on them with the tacit compliance of, or active sanctioning of, the British government, seems unconscionable.
4. Floodgates
It could be argued that it’s not just about these three people, but it will open the floodgates for potentially thousands of similar claims creating a strain on the government’s resources. The victims are not just claiming on behalf of themselves, after all, they want a compensation fund for other living victims of torture during the Mau Mau uprising.
Whether or not a victory in this case would open the floodgates to other compensation claims remains to be seen. This is a highly speculative argument. Moreover, each case will have to be decided in court on its own merits. This argument, therefore, presents no reason for not compensating these particular individuals.
5. Apologies are Pointless
Finally, the victims want an apology from the British government for the harms they, and others like them, suffered. Invariably whenever the issue of apology is raised, people ask what the point is.
Apologies for historical injustice far in the past are largely symbolic, e.g. Tony Blair apologising for the Irish potato famine. But in this case, many of the victims of British crimes are still alive. For decades Britain has tried to cover up these crimes, only revealing the thousands of documents detailing the atrocities at the eleventh hour in the 2011 court case. For years then, the victims’ suffering went unrecognised; it was as if it had never happened. An apology from the British government confirms that torture did take place, that the victims’ claims that they were unjustly treated are valid, and that the British government was in the wrong. An apology represents recognition and restoration of the individuals’
dignity; it signifies that they are human and they deserve respect. In this case then, an apology is significant and an important part of the healing process for all the victims of these crimes.
The verdict in this case is due on Friday 27 July.
This article by Maeve McKeown was originally published by New Left Project under a Creative Commons Attribution-Noncommercial 3.0 License.
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