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Mau Mau in the High Court and the Lost British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?
David M. Anderson Version of record first published: 08 Nov 2011
To cite this article: David M. Anderson (2011): Mau Mau in the High Court and the Lost British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?, The Journal of Imperial and Commonwealth History, 39:5, 699-716 To link to this article: http://dx.doi.org/10.1080/03086534.2011.629082
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The Journal of Imperial and Commonwealth History Vol. 39, No. 5, December 2011, pp. 699 716
Mau Mau in the High Court and the Lost British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?
David M. Anderson
Downloaded by [86.176.100.99] at 18:38 18 August 2012
In April 2011, a landmark hearing before the High Court in London found that the British government had a case to answer concerning abuse and torture allegedly carried out by British ofcials in Kenya during the Mau Mau counter-insurgency. Prior to the hearing, it was revealed that the British government had removed some 1,500 sensitive government les from Kenya at independence, many of these relating to alleged abuses carried our during the Emergency of the 1950s. This discovery then led directly to the revelation of a further tranche of 8,800 historical les relating to the decolonisation of 36 other former British colonies. This article explains the nature of the claims of torture and abuse made in the Kenya case in the High Court, and then describes the new evidence in the recently disclosed documents. The concluding section then discusses the Kenya case and the implications of the larger discovery of the lost British Empire archive.
The Victorian Gothic splendour of The Royal Courts of Justice dominates the eastern end of Londons Strand, beyond Aldwych. Nestling between the four Inns of Court, this is the beating heart of British justice. Built at the very height of empire, the Royal Courts were opened by Queen Victoria in the frosty December of 1882. It would be another 15 years before the East African Protectorate, later to be known as Kenya, would be brought within the orbit of Britains empire, so her imperial majesty could hardly have imagined the scene that would be witnessed in the vast chambers of the Great Hall of the Royal Courts on the morning of 6 April 2011, as four elderly Kenyans were shepherded towards Court 73 by their team of barristers.1 Here, more than a century after Britain rst declared empire over Kenya, and nearly 50 years since Kenya achieved its independence in 1963, these four imperial subjects were
Correspondence to: David M. Anderson, St Cross College, University of Oxford, 61 St Giles, Oxford, OX1 3LZ, UK. Email: david.anderson@africa.ox.ac.uk ISSN 0308-6534 print/1743-9329 online/11/05069918 http://dx.doi.org/10.1080/03086534.2011.629082 # 2011 Taylor & Francis
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to have their day in court. The testimony they would give, and the charges that would be laid, would place the entire reputation of British Empire itself on trial.2 The demeanour of the four Kenyans shufing through the labyrinth of vaulted halls and walkways was subdued. Elderly, and all now in poor health, the four have waited several years for this day since rst giving statements to the lawyers of the Kenyan Human Rights Commission (KHRC) about their ordeal as prisoners in the British detention system in Kenya.3 Their thoughts on this morning may have turned to a fth claimant, Susan Ngondi. Her statement was led with the original papers in the case, but she died in the year before the case could be heard. With so many others who had experienced the prisons and detention camps of the Kenyan Emergency of the 1950s now also passed on, these four claimants carried the burdens, and no doubt felt the shade, of many, many comrades. Dressed in the ordinary working attire of the Kenyan countryside, all four pensioners looked conspicuously out of place in the Royal Courts, and even on this bright London Spring day they seemed chilled and uncomfortable. Deep in the bowels of the Royal Courts, the inner sanctum of Court 73 has a mundane shabbiness that contrasts markedly with the outer grandeur of this magnicent Victorian building. A dull room, with high windows only to one side, it is airless and poorly furnished. The public gallery at the rear comprises four serried rows of uncomfortable chairs, packed to overowing on this rst morning with journalists and interested members of Londons Kenyan community. People made way for the four claimants to take their seats in this area. In front of the public gallery, the Defence Counsel representing the Foreign and Commonwealth Ofce (FCO), assembles at tables to the left, and the Prosecution team from the London legal rm Leigh Day to the right, representing the Kenya Human Rights Commission for the claimants.4 Both QCs are virtually obscured to the gallery by mountainous piles of documents and reference works. Behind each QC are two rows of busy and attentive juniors, whose job it is to keep track of the arguments and locate the necessary legal references as the case unfolds. In front of the QCs, on a raised dais at the head of the Court, sits the judge and his clerks. No wigs or gowns in this case, Judge McCombe sits in a business-like suit, a friendly if somewhat imposing gure. The Allegations The prosecution alleged that the claimants had been victims of torture and abuse at the hands of British government in Kenya and that this mistreatment was the product of systemic practices of the security forces and administration in the conduct of the British counter-insurgency in Kenya between 1952 and 1960.5 As the FCO sought to have these charges struck out, the purpose of the High Court hearing of April 2011 was intended to determine whether in fact the British government had a case to answer on these charges. Over the full week of the proceedings, Justice McCombe would hear much detailed legal argument about the relevance of international law to British jurisdiction and responsibility at the handover of authority to the government of independent Kenya
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at the end of 1963. The Foreign Ofce argued that they were not responsible for events in Kenya prior to December 1963, on the grounds that all such liabilities had transferred to the government on independent Kenya led by Jomo Kenyatta.6 In his judgement on the case, delivered in July 2011, Justice McCombe described this argument as dishonourable,7 the implication being that this was merely a technical argument that sought to avoid responsibilities that were obviously applicable. He thus rejected the arguments of the Defence, nding that there were sufcient grounds to hear the case at a full trial, and this has been set for early 2012. If the British were not responsible for events in Kenya prior to 1963, asked Justice McCombe, then who was?8 Before we discuss the implications of Justice McCombes ndings in this hearing, it is important to be explicit about the allegations that were laid before the court. 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. To make the case bluntly, this is to suggest that abuse of human rights by British security forces during the Emergency was not the consequence of the random actions of a few misguided individuals, but was rather the product of a deliberate and conscious governmental policy.9 The allegations of the four claimants are the foundation of this argument, so let us summarise each in turn.10 Mutuas Story The rst claimant, Ndiku Mutwiwa Mutua, had been a herdsmen employed on a white settler farm in Kenyas eastern province. His employer, Mr Dunman, was known to his African farm labourers by the nickname Luvai. As well as being a farmer, Dunmans day job during the Mau Mau Emergency was as a police ofcer. Despite this, some of Dunmans African employees regularly supplied foodstuffs to the Mau Mau ghters hiding in the nearby forests. It seems that Dunman eventually got wind of this, and assisted by ve African police ofcers he began an interrogation of his African farm labourers to try to nd out information about the local Mau Mau ghters. These interrogations began on the Dunman farm and then moved to a detention centre at the nearby Lukenya prison. At Lukenya, Dunman was assisted in his further questioning of the prisoners by other Kenyan police and by members of the Home Guard, the Loyalist African militia recruited to assist the British in combatting Mau Mau. For Mutua, these interrogations would be an experience that would mark his life forever. His ordeal began at dawn, when he and the three other men with whom he shared his hut were awoken by the arrival of Dunman. The four men were dragged out of their hut and beaten by the ve African police ofcers accompanying Dunman. Some of the police used batons to beat their suspects, while others hit at them with rie butts. Mutua was beaten so severely that he almost lost consciousness. The four suspects were then bundled into Dunmans van and transported the 6 km to Lukenya prison. On the journey the beatings and abuse continued in the back of the van. Upon arrival at Lukenya, the four suspects were pushed and kicked out of the van,
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where upon the prison guards took charge of the prisoners and led them to a prison cell where the beatings continued. During this part of the ordeal, Mutua lost consciousness. Mutua awoke the next morning as the sun was rising. Within an hour or so, a prison ofcer removed him from the cell and took him to another building where he was given porridge for breakfast. For the rest of that day, Mutua was ordered to work with other prisoners in stone quarries adjacent to the prison. Still in pain from his beatings of the previous day, Mutua found it difcult to work, but every time he slowed down or tried to rest the prison warders coerced him into further labour. On his second day at Lukenya, Mutuas interrogation resumed. This time, Mutua was questioned by a European ofcer, accompanied by several African prison warders. During this interrogation Mutua was led to a tent, where he was blindfolded and then stripped from the waist down. Handcuffs were applied to his wrists and he was forced to lie on his back by African ofcers who pinned him to the ground. His legs were pulled apart and tied so as to prevent him moving. In this position, Mutua was castrated by one of the prison ofcers present. Racked with pain and only semi-conscious, Mutua was taken back to his cell and left there. Two nights later, Mutua was freed from Lukenya by a Mau Mau attack on the prison. This event was one of the most successful operations mounted by Mau Mau ghters during the entire Kenyan emergency. Catching the prison guards unaware, the Mau Mau rebels broke through the prison perimeter and overpowered the guards before any proper defence could be mounted. They broke into the prison armoury capturing a variety of weapons and ammunition and then went to the cells where they freed the prisoners. Within less than an hour of the attack on the prison beginning, the assailants and their new-found liberated prison recruits were heading back towards the Iveti forest.11 Nzilis Story The second claimant, Paulo Nzili, also encountered Mr Dunman. Nzili was arrested close to the Kamiti prison on the outskirts of Nairobi. The African police ofcers who took him in for questioning rst brought him to the Embakasi Detention Centre, near Athi River. Over the next few months, Nzili was moved from Embakasi to the Manyani detention camp, and then to Malindi prison, before nally being detained at Naivasha prison. At both Embakasi and Manyani, Nzili was assaulted and beaten by police, prison ofcers, and Home Guard, and while at Naivasha he was coerced to undertake labour. Nzili was never charged with any offence, but was held without trial on a Detention Order on suspicion of his support for the Mau Mau cause. The details of the torture and abuse then committed against Nzili are every bit as gruesome as that experienced by Mutua. On the rst morning of his detention, Nzili was interviewed by Dunman at Embakasi. Nzili was stripped of his clothes and made to lie naked on the ground. A second European ofcer, whom he recognised by the nickname Kwatanze, then assaulted Nzili. The two European ofcers then
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bound Nzilis legs in chains, and pinned down his arms, before Dunman approached him with a pair of pliers and castrated him by cutting the veins and vas deferens leading to the testicles. During this assault, Nzili lost consciousness. When he awoke, Nzili found himself in Nairobis King George Hospital, where he remained for a period of two weeks. Shortly after his stay at the hospital, Nzili was transferred to the Manyani detention camp where he joined other allegedly hardcore Mau Mau supporters. Manyani was among a few prison camps notorious for the strength and conviction of the resistance mounted by its inmates. Nzili was detained in Compound 6, where he witnessed and experienced the beatings and abuse of prisoners on a daily basis. Manyanis prison warders were armed with rattan sticks with which they habitually struck the prisoners. During his rst weeks in Manyani, Nzili was spared such treatment because of his invalid status. After this period he was transferred to Malindi prison, where he was given employment sweeping and collecting refuse. This was followed by a brief transfer to Kamiti prison, where Nzili recalls there was a lice infestation, and then onto Naivasha prison. At Naivasha, Nzili was forced to work collecting rewood. His castration aside, Nzili acknowledges that he escaped the worst of treatment in the prisons in which he was subsequently incarcerated. Nyingis Story The third claimant, Wambugu wa Nyingi, was a known political activist who in the years following the Second World War became involved in the Kenya African Union.12 Nyingi was rst arrested at his family home in Central Province shortly after Kenyas state of emergency had begun. His home was raided by a group of white ofcers from the Kenya Regiment, known as the self-styled Ngombe Squad.13 Nyingi was beaten severely on the day of his arrest, and then experienced a succession of assaults, tortures, and abuses as he moved from one detention centre to another, culminating in his incarceration at the Hola prison camp in northern Kenya. Like Nzili, at no point was Nyingi charged with any offence, but instead he was held without trial on a simple Detention Order. Nyingis story of detention is a litany of assault and abuse. Beaten and stabbed when arrested, Nyingi was rst taken to the local police station in Aguthi location near Muthinga. There he was informed that he had been placed under a Governors Detention Order but he was never shown any such document and nor was the meaning of this explained to him. The police station to which Nyingi was taken served as a screening centrethat is to say, a place where those suspected of Mau Mau afliations were interrogated. Nyingi spent six months in this screening centre, where he was regularly beaten in order to induce him to give up information about the Mau Mau organisation and about his Mau Mau associates. Those held were kept in small and heavily overcrowded cells, with no proper sanitation or washing facilities. A breakfast of porridge was the only meal of the day. While in this screening centre, Nyingi witnessed the beatings and even the deaths of many other detainees. Screening centres of this kind had no legal basis in Kenyan law, a fact that was
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repeatedly acknowledged in the judgements of the Appeal Court of East Africa during the Emergency. Nyingi was eventually moved to the Athi River detention camp, where he spent almost a year in conditions of relative decency. He recalls that beatings did not take place at Athi River and that the camp was run in a more civilised way than others. But in Athi River, Nyingi refused to confess his Mau Mau adherence, and so along with 25 other detainees he was eventually transferred to other camps in northern Kenya. First he was placed in leg manacles and put on a ight to Lodwar. Here Nyingi recalls being severely beaten by both European and African guards. In the more than two years spent at Lodwar, Nyingi claims he was caned and beaten on a daily basis. Detainees at Lodwar were also required to perform hard physical labour, and if they resisted these demands they were coerced and beaten. From Lodwar, Nyingi was moved to Kodiaga transit camp and then taken to the detention camp on Mageta Island, in Lake Victoria. Here Nyingi was placed in Compound 2, with 120 other detainees. During his eight months at Mageta, beatings were a daily occurrence. Nyingi also reports that the inmates at Mageta were often denied food as a punishment and as a means to try to gain their compliance. From Mageta, Nyingi was then taken back to the Athi River camp. His return there was less pleasant than his rst detention, interrogations now being a regular feature of the camp regime. These interrogations were aimed at making detainees confess. A white prison ofcer conducted each interview, accompanied by African ofcers. In the course of these interrogations, Nyingi was subjected to tortures and abuse. On one occasion he was suspended by his feet from the hut roof and subjected to a severe beating. While in this position cold water was poured onto his face and into his mouth, so that he could not breathe. Following several interrogations featuring torture of this kind and other forms of ill-treatment, Nyingi was moved with around 50 other detainees to Manyani. He recalls this as the cruellest of all his dreadful experiences. From the moment they disembarked from the camp entrance, the beatings began: with sticks, whips, batons, and boots. Next, Nyingi was transferred to the Mwea camps. Here the emphasis on interrogation and confession was even more intensive than in any other camp in which Nyingi was conned. At Mwea he recalls encountering the European camp commandant, Terence Gavaghan,14 and his African deputy and assistant, Isaiah Mathenge. Mathenge was responsible for the screening of detainees, which involved regular beatings. As part of their punishments, detainees were made to dig trenches eight feet deep and eight feet wide before lling them up again. This pointless labour was unremitting. Nyingi also recalls being made to carry a bucket full of stones on his head while walking around in circles. This torture was conducted for hours on end while prison ofcers pushed and beat the prisoners, causing the buckets to fall to the ground, having to be picked up, relled and replaced on the head of the prisoner. During these abuses European ofcers were always present, often Gavaghan himself.15 Finally, Nyingi was relocated to the infamous Hola camp. This was dedicated as a camp for detainees who were considered to be recalcitrant hardcore supporters of Mau Mau, and therefore not suitable for release back into public life. The prison
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regime at Hola was brutally severe. A system of forced labour had been introduced at the camp, despite the fact that the detainees considered themselves to be political prisoners and therefore continually resisted efforts to make them carry out forced labour. Confrontations, violence, beatings, and systemic abuse were a daily feature of life at Hola.16 The brutality of the prison regime at Hola came to a head in early March 1959. That fateful morning the detainees were brought from their cells as usual, and after breakfast were taken out of the camp to commence a day of hard labour. The detainees were given hoes and shovels and ordered to begin work under the supervision of a British ofcer named Sullivan. Nyingi was among a large group of detainees who refused the order. Sullivan threatened them, and when they still refused to pick up their tools and begin work he ordered the African prison warders to beat them. At this point the prison warders, dressed in riot gear and carrying long batons, charged the prisoners. The detainees picked up the hoes and shovels and sought to defend themselves against this attack. In the pitched battle that ensued, Nyingi was beaten about the lower back, the neck, and the head, eventually losing consciousness and falling to the ground. So moribund was Nyingis body as a result of the assault that he was picked up and thrown into a pile along with the 11 of prison inmate colleagues who had been killed in the melee. Only when a European doctor came to examine the corpses in the morgue was it belatedly realised that Nyingi was still alive. He was then transferred to the prison hospital for treatment. Nyingi later gave evidence at the inquest that was opened following these events at Hola, events that have since become known as the Hola Massacre. We therefore have strong and well-attested documentary evidence to conrm Nyingis presence at Hola and his role in the events described, evidence that fully corroborates Nyingis account.17 Eventually recovering from his wounds, Nyingi was at last released from detention in South Tetu division of Nyeri district as the Emergency came to an end in 1960. During the nal year of his detention, he was held in solitary connement for three months, once again due to his failure to behave compliantly while in detention. When nally released he was given a sleeping mat, two blankets, a cup, and a plate and dropped on the roadside outside Mwea camp and left to make his own way home. He had been incarcerated without trial for a period of more than 7 years. Jane Maras Story The fourth claimant is the only woman among our small group, Jane Muthoni Mara. She was only about 15 years of age, in 1954, when her village, Ngugini, was subjected to a cordon and search operation by African Home Guard.18 Suspected of supporting nearby Mau Mau forest ghters, the villagers were ordered to demolish their own houses and to move to a new village where they could be held under surveillance of the government. This new settlement, to be known by the name Kianjiru, was established as part of the governments villagisation programme. Mara joined the other villagers in being forced to construct a trench around the new village, protected by a barricade of bamboo spikes. One solitary bridge was constructed across the trench
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to allow access in and out of the village, and each household was given a regimented compound within the village. Kianjiru was placed under the protection of Home Guard, who policed the village perimeter and enforced a curfew on the inhabitants. A few weeks after moving in to the new village, Mara was accused of being a Mau Mau sympathiser. Along with a number of other villagers she was taken to a screening camp at a place known as Gatithi. Here and at prisons at Embu and Kamiti, Mara would be subject to repeated assaults and beatings by prison ofcers, police, and Home Guard. Maras experience at Gatithi was horric. On arrival at the camp she was made to bath fully clothed in a near by river. She and other detainees were then made to sit on the riverbank in groups of ve or six, with their legs outstretched in front of them. Mara recalls that a white ofcer, whom they nicknamed Waikanja, then walked back and forth over their outstretched legs in his heavy boots. Other African camp ofcers then joined him in this assault. On the following day, Maras ordeal began with further beatings by Home Guard, using a truncheon. Following this she was taken with three other women to a tent where a brutal interrogation began. Mara was repeatedly asked when she had taken the Mau Mau oath and she was pressed to tell them the whereabouts of her brother and other local members of the Mau Mau forest gangs. Despite being repeatedly beaten and kicked, Mara denied that she had taken any Mau Mau oath. Four of the African guards then pinned her to the oor and prised her thighs apart, holding them open. The senior African ofcer, named Edward, then produced a glass bottle, which under Waikanjas orders was forced into Maras vagina, using the sole of the African ofcers boot to direct the bottle deeply into her. The pain was excruciating and Mara realised the bottle had been heated. When this ordeal came to an end, Mara was compelled to sit and watch as the three other women were subjected to the same misery. Over the following weeks Mara was subjected to further beatings, to food deprivation, and to general abuse. Despite having made no confession she was eventually brought before an African chief at Kerugoya camp, who sentenced her, along with around 300 other detainees, to three years imprisonment for membership of the Mau Mau organisation. The following day she was taken to Embu prison, where she stayed for three months. Here beatings and assault were a daily regime, as was forced labour for all prisoners. From Embu Mara was moved to Kamiti prison, where she served a further two years. Mara then spent seven months at Athi River detention camp before returning to Kamiti, and then to Embu, for the remaining months of her detention. The Search for Evidence In building the prosecutions case, the lawyers at Leigh Day sought to identify documentary evidence that would corroborate and elaborate the statements made by the four claimants. This quest for documentary evidence has proved to be the most critical aspect of the case.
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Historians of empire have long suspected that documents from the former colonies were returned to the UK at the end of empire. Gaps in the local archival records in the former colonies give us clues to this, but even common sense should indicate that the British might have had things they would not wish to pass on to the incoming governments. In the Kenya National Archive, there are many such glaring gaps in the le liststhe records of the detention camps are almost entirely missing from the archival deposit, for example, as are the detailed district level papers that one might expect to see on the issuing of detention orders. We have long believed that records of this kind were deliberately destroyed by British ofcials in 1963 prior to Kenyas decolonization, and indeed there were reports of this destruction at the time.19 But as one follows the sequence of les that have made it to the Kenya National Archive, it is also apparent that papers relating to specic events, committees, or policies are also absentamong the Kenyan Emergency period records we have been unable to nd the minutes or decisions of the War Council, for example, or the full papers relating to the Complaints Committee set up by Governor Baring explicitly to adjudicate upon allegations of abuse during the Emergency.20 Were such papers destroyed in Kenya prior to independence, or were they brought back to the UK for safe-keeping? In preparing the case for the four claimants, the lawyers at Leigh Day were anxious to ensure that all the documentary evidence held by the British government should be made available. Attention initially focused on those les transferred to the National Archives at Kew, but then withheld from public scrutiny for periods longer than the statutory 30 years. At a preliminary hearing before Justice Seymour in 2009, the prosecution drew attention to the need for disclosure of all documents relating to the Kenyan Emergency that were held by the British government and received a ruling that the FCO should make a full disclosure of all documents in their possession relating to the case.21 Over the months leading up to the April 2011 hearing, Leigh Day pressed the FCO to properly full this requirement for disclosure. In response to this, the Kenya desk ofcer with the FCO, Edward Inglett, diligently undertook a wide-ranging search through the many depositories and ofces of the department. Inglett worked hard at his task and was able to gain the release of several documents held at Kew, but his assiduous inquiries to the FCOs records management staff drew a complete blank with regard to other holdings relating to the Mau Mau Emergency. In November 2010, Inglett led a witness statement for the court detailing the extent of his searches and explaining that no further materials had been found.22 In response to Inglett, a witness statement was then submitted to the Court for the Prosecution, dated 21 December 2010, and written by the author of this article, setting out evidence that the British administration in Kenya took steps before December 1963 to remove the UK records relating to the administration of the Mau Mau Emergency, so that these would not be among the records handed over to the incoming independent Kenyan government.23 The reference for this claim was correspondence held in the National Archives at Kew between the Kenyan government and the FCO, dating to 1967.24 At this time, Kenyan ofcials had written to London alleging that documents had been illegally removed from Nairobis Secretariat on the eve of
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independence. They asked for acknowledgement of this fact and the return of any documents now in the possession of Her Majestys Government. The origins of this request stemmed from papers that had been found among the archives of the Secretariat in Nairobipapers mistakenly left behind by the Britishdetailing the arrangements made for air-lifting retrieved documents to London. In my opinion, Londons response to this inquiry was as cynical as it was deceitful. A minute on the le now held in Kew, dated August 1967, notes that a large cache of documents had indeed been retained from Kenya. It is stated that this collection comprised over 1,500 les, in more than 300 boxes, taking up some 100 linear feet of storage. The minute acknowledged that among the retained les were intelligence summaries, les on unrest, collective punishments, and allegations of abuse during the emergency, along with les relating to detainees and detention camps. These papers came from several different ministries within Nairobis colonial administration, including internal security and defence, the Governors Ofce, the ofce of the Attorney General, and the ofce of the Chief Secretary. A further note on this le, dated 7 November 1967, admits to the removal of these sensitive documents from Kenya in 1963. It reports that this exercise had been carried out in a meticulous fashion, the retained les being candidly described as those which might embarrass Her Majestys Government, embarrass members of the police or army, or compromise intelligence sources. The vast majority of the retained les were said to relate to members of the police or army and their anti-Mau Mau activities.25 The reply sent to Kenya before the end of 1967 did not provide this level of detail. Instead, the British government admitted that they did hold a cache of les from Kenya but arrogantly and dismissively told the Kenyan government that the les were withdrawn because they were relevant to UK policy and that this was none of Kenyas business.26 On receiving this information, Inglett embarked upon a further search for the Kenyan migrated documents, contacting the records management staff asking them to search yet again for the missing les. Inglett expressly pointed out that the reputation of the government was at stake in this matter and that failure to disclose documents might be viewed as obstructionist and therefore construed to imply culpability. After being told yet again that there was no trace of the Kenyan les, nally, apparently in exasperation, Inglett informed the records management staff at the FCOs document depository at Hanslope Park that he would be making a personal visit to their stores to search for himself. He gave a date and time for his visit in the following week. A few days prior to Ingletts proposed visit, the staff at Hanslope Park at last announced they had located the missing Kenya documents. The Hanslope Disclosure The extent of the Kenya documents revealed at Hanslope Park was set out in further statements made for the court by Mr Inglett, including listings of the les. Numbering more than 1,500 les in all, the titles alone suggest that around one-third of these materials relate specically to the Mau Mau Emergency and might be relevant to
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the claimants case. In preparation for the April 2011 hearing, the FCO and the Defence barristers rst reviewed the relevant les. Any le they selected for review was then disclosed to the Prosecution. A team of Oxford graduate historians, under my direction, then reviewed these les for the Prosecution, providing summaries and, where necessary, detailed analysis of the contents. This procedure was carried out over the period between early February and the end of March 2011.27 The task presented several challenges. First, the sheer quantity of material was daunting and ultimately overwhelming. Perhaps 500600 les have a potential bearing on this case, the average being more than 100 folios but the most important les often amounting to a hefty load above 250 folios. As our efforts focused on the most relevant, and often the most substantial les, it proved possible to review only round 300 of these les in time for the April hearing. Indeed, it would take many more months of diligent work to properly analyse materials of this extent, density, and complexity. Secondly, the process by which documents were released to the Prosecution team was highly unsatisfactory. We were only permitted access to documents once they have been reviewed rst by the FCO and then by the legal team working for the Defence. This caused considerable delay. Furthermore, the order in which documents were disclosed to the Prosecution appeared to be random, with no clear effort to follow a logical sequence in the les. This made the coherent analysis of the les exceedingly difcult. As I commented in my second witness statement to the Court, this was too often like reading a novel with the pages all in the wrong sequence.28 Furthermore, because we were unable to request specic les, we were entirely in the hands of the FCO in determining which documents they considered to be relevant to the case. Many les which I would consider should be prioritised in reference to the case were completely ignored by the FCO, for example, a large group of les relating to Collective Punishments are highly likely to contain information on the role of the military in repressive and illegal actions, yet none of these les (there are around 40 les listed under this heading) was released. Thirdly, the value of these documents is to be found in the information they can provide that is additional to that which is already known. These documents do indeed contain a highly signicant amount of new information, especially facts relating to decision-making and responsibility for actions carried out by British forces in Kenya. This is unsurprising, given that the documents were removed from the Kenya government archive primarily on the grounds of their sensitivity. The detailed review and analysis of this material is therefore an essential element to any reconstruction of the additional knowledge that this material holds. To illustrate this important point, let us refer specically to the question of the state sanctioning of torture and abuse. Many of these documents contain discussion of torture and abuse and the legal implications for the British administration in Kenya of the use of coercive force in prisons and detention camps, by so-called screening teams, and in other interrogations carried out by all members of the security forces. These documents show how, in a way that has not been apparent from other documents already in the public domain, ofcials debated the legal limits of coercive
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force. They reveal that changes to legislation, and additions to the Emergency Powers regulations, were commonly made retrospectively in order to cover practices that were already normal within camps and detention centres. Following the paper trail around these debates, we are also able to see the extent to which ofcials at differing levels of authority, right up to the Governor and beyond to the Colonial Ofce and Secretary of State in London, were aware of these policies and shared in the decision-making that led to the imposition of regulations and the authorisation of specic practices. What, then, do the Kenyan les in the Hanslope Disclosure add to our knowledge of British conduct during the Emergency? Our preliminary review of the materials highlights a number of key issues. Many of the documents provide copious detail on the administration of torture and substantive allegations of abuse. Indeed, these are so commonplace that our listing of individual notied cases now stands at close to 500 examples. One voluminous le on abuse, for example, contains a telegram from Governor Baring to the Secretary of State for the Colonies, dated 17 January 1955, detailing brutal allegations against 8 British district ofcers regarding the murder of detainees under screening (i.e. interrogation). This included the burning alive of detainees.29 There is much other material relating to the need to use coercive force, and the need to protect British ofcers and their African subalterns from prosecution for doing so. A strong impression is given that the avoidance of legal consequence is a foremost issue in administrative discussions. Striking examples of this are noted in relation to the aftermath of an atrocity known locally as the Chuka Massacre, and to the enquiries set up by Col Young into abuses committed by the Home Guard, administration, and police. Another document on this same le shows Provincial Commissioner C.M. Monkey Johnson writing to the Attorney General, urging him to use the amnesty of January 1956 as a basis to refuse to institute any enquiry into allegations of malpractices. In a further letter, dated 2 February 1956, Monkey Johnson acknowledges that if prosecutions are to go ahead, then: It would now appear that each and every one of us, from the Governor downwards, may be in danger of removal from public service by a commission of enquiry as a result of enquiries made by the C.I.D. in respect of incidents which occurred prior to 18 January 1955 [the date of the amnesty announcement].30 The administration of forced labour is a feature of many of the les. One le includes details of the implementation of forced labour upon detainees in Kenyas detention camps. A lengthy note here from the Attorney General makes it clear that the Emergency Regulations in operation in this regard are in breach of the Forced Labour Convention and cannot be sanctioned or defended in law if challenged. It is noted that the breaches of the Convention are being carried out every day, but the Attorney General concludes: If, therefore, we are going to sin, we must sin quietly. The le also contains documents from meetings of senior ofcers at Government House, Nairobi, to discuss the forced labour policies, and here, again, the illegality of Kenyan practice is plainly admitted.31 The legal denitions of coercion and the levels of force to be used in screening or in compelling detainees to work became obsessions among British administrators: in
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effect, having decided to use torture and abuse as normal, systemic practices, they then sought to dene how they would conduct these matters. These discussions are signicant because they include correspondence from Governor Baring and the Secretary of State for the Colonies, showing that ofcials at the highest level were directly engaged in dening these actions, many of which lacked any legal basis. Among the Hanslope papers is a note of a lengthy discussion with Governor Baring, from July 1957, regarding the degree and type of physical violence to be deployed. Baring acknowledges that he has contacted the Secretary of State on these matters, especially in connection with the political difculties that such actions will cause.32 Another related le includes candid admission of beatings and abuse to extract confessions from detainees, and provides detailed descriptions of the methods used, including gross physical torture. In a letter on this le, dated 23 November 1959, the Attorney General admits that confessions obtained by screening teams run by the Special Branch were not voluntary. 33 At certain camps, specic methods of interrogation were devised, involving the systematic beating and torture of detainees. Mwea Camp provides a clear example, as indicated in the statement of the third claimant, Wambugu wa Nyingi, summarised above. Several documents discuss the conduct of interrogations at Mwea, including detailed descriptions of what was done to detainees. Much of this corroborates oral evidence presented by Caroline Elkins in her study of the detention camps.34 Numerous documents detail practices at Mwea, categorically showing that the daily beating of prisoners, followed by repeated torture of those who proved recalcitrant, was part of a system of treatment devised by the camp ofcers and implemented thoroughly and consistently as each party of prisoners arrived at the camp.35 The latter papers in this le deal with attempts to legalise these systematic tortures through disguising the beatings and abuse within the terms of the Prison Act. The le shows that Governor Baring was fully consulted on the decisions taken at Mwea and was fully aware of the practices taking placeat one point he even asked for statistics on the men beaten. Others who visited Mwea were horried by what they saw, and the le contains a number of papers regarding concerns raised by other administrative staff and ofcials. Among these accounts is one from Askwith, the Secretary for Community Development, who describe the use of deprivationfood denial with starvation for up to three days, sleep deprivation through water been thrown over detainees to wake themand regular brutal beatings on a variety of pretexts. Askwith noted:
One detainee at Mwea resolutely refused to respond in spite of a most drastic beatup. He was thereupon dragged to the cells where Mr Gavaghan informed me he would be subjected to third degree methods until he did, in fact, obey all orders given. . . Blows struck were solid, hard ones, mostly with closed sts and about the head, stomach, sides and back.36
Lastly, in many senses, the culmination of abuse came with the Hola Camp massacre of 1959, in which 11 detainees died as a result of beatings when they refused to work an incident in which Wambugu wa Nyingi was grievously injured. Many aspects of events at Hola have remained obscure, because despite the availability of ofcial reports on the killings many of the key documents have until now been missing.
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Some of these have turned up among the disclosed les from Hanslope, including two les detailing the character of the prison regime at Hola. These papers give a much clearer picture of the systematic use of violence as a policy in Hola long before the murders of the detainees, showing also the complicity of senior ofcers in the determination of policy. It is openly acknowledged that the methods adopted might result in someone getting hurt or killed. These papers also add credence to the reported efforts of the Kenya administration, at the highest level, to initially cover up what had happened at Hola.37 The signicance of this event is to be seen in the Parliamentary Debate that the deaths generated in London in 1959, in which both Barbara Castle MP and Enoch Powell MP made important speeches.38 Beyond Kenya: A British Empire Archive
It may be easy for a records management system to misplace a single document, or even to loose a whole le. It is more difcult to believe that over 100 linear feet of les can be lost in a depository without anyone knowing where or what they are, yet this is what we are asked to believe happened at Hanslope Park with the Kenyan materials. This seems incredible enough, but the discovery of the Kenya les was to lead directly to an even more stunning revelation regarding historical records from other parts of the British Empire. When, in March 2011, the staff at Hanslope Park were asked to account for the delays in unearthing the Kenyan documents, the statement submitted to the Court by the Head of Corporate Records in the FCO, Mr Martin Tucker, contained information suggesting that the stacks of Hanslope Park contained much more than just the Kenya les. As well as referring to a further deposit of 13 boxes of Top Secret les from Kenya that could no longer be traced,39 the documents submitted by Tucker included listings of papers apparently held at Hanslope from many other former colonies, including Cyprus, Rhodesia, Aden, Palestine, Uganda, Nigeria, Malaya and Ghana. Though none of these holdings was as extensive as that for Kenya, some were nonetheless of a very signicant scale.40 No doubt realising that the release of this document to the Court would eventually put these listings in the public domain, the British government took the decision to act on the matter. On the evening of 5 April 2011, the day before the Mau Mau hearing was to commence in the High Court, Lord Guildford made a statement to the House of Lords acknowledging that the FCO irregularly held historical papers relating to no fewer than 37 former British colonies, amounting to more than 8,800 les in total.41 Secretly removed from each colony in turn at the time of independence, these les had been held in the FCOs records stores ever since, not acknowledged to the PRO or listed for the purposes of the Freedom of Information (FoI) Act after 2000. Though Lord Guildford warned that it might take many years to review this vast tranche of material before placing it in the National Archive, by the end of the week the Foreign Secretary, William Hague, had declared in an interview in The Times newspaper the governments intention to process the les and make them accessible to the public as speedily as possible.42
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In the rst step towards that goal, Anthony Cary, a former diplomat, was appointed to conduct an internal review into how the Kenya les and other migrated archives at Hanslope came to be misplaced. His report was released on 5 May.43 The account he gives of the history of the migrated archives will do little to reassure historians that Britains treatment of such records as it might hold is yet robust enough or even transparent. Lack of resources, administrative muddle, carelessness, and a prevailing culture of secrecy all enter this story. Worst of all, however, is the account given of the reaction of the PRO (now the National Archive) when invited to review the migrated archives in 1995. This presented an opportunity to have the migrated archive brought into the public domain, but the PRO passed up the opportunitydeclaring that as these records emanated from the colonies they were not public records to Britain and so could not be accepted.44 This should make historians who regard the National Archives as guardians as well as custodians of our records think more deeply about the effectiveness of the systems we have in place for procuring and retaining records. We are fortunate indeed that a decision was not taken in 1995 to destroy the migrated archive. For historians of empire, the revelation of long-lost documents brings excitement and anticipation, but the story of their retention and eventual revelation is a deeply depressing tale that raises many troubling questions. It indicates the ease with which departments of government can still withhold historical records, and the difculties that historians still face in trying to access retained materials even when they may know that such les exist. The FoI Act was supposed to ease our burdens in this regard, but it is clear that if a department has not listed records under the terms of the Act, as they should properly do, then those records are not searchable to FoI requests. The Cary report makes it abundantly clear that staff within the records management group at the FCO were well aware that the migrated archives held at Hanslope Park had not been listed under the provisions of FoI at the time of the Acts introduction.45 Did other departments then behave in the same way with difcult or expensive sets of records that may have been irregularly held? Does the Ministry of Defence, for example, hold records from the former colonies in a similar category to those at Hanslope Park? And if they do, how can we ever nd out? The Cary report does its best to exonerate past FCO staff from blame for the neglect of the migrated archives, and there is certainly good reason to praise the current staff for their diligence in pursuing the matter and nally bringing to light the full extent of the problem. But this should not blind us to the fact that this saga was both a colonial conspiracy and a bureaucratic bungle. It began as a conspiracy to covertly remove sensitive les from our former colonies at the time of independence. This was successfully accomplished in a systematic way over a period of some 20 years, between the British withdrawals from Palestine and Aden. We now know that the retrieval of these documents was a formal part of Britains process of decolonisation. The conspiracy turned into a bungle as these documents diminished in importance to the FCO in the 1970s and staff then lost track of them in the various relocations of department and reorganisations of records management practices in the 1980s and 1990s. By the time of the introduction of the FoI Act in 2000, as Cary concedes, the migrated archives were best forgotten by a department that lacked the resources to properly deal with the implications of the Act.46
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It is somewhat ironic that what began as a quest to nd documentary evidence of systematic British torture in Kenya should end up revealing a potential treasure trove of documents on the decolonisation of Britains vast empire in the years following the Second World War. Professor Tony Badger has been given the very considerable responsibility of reviewing the migrated archives and overseeing the selection and release process.47 Historians of empire will hope that this proceeds speedily and that the vast majority of these les can indeed be released, preferably without too much redaction, into the public domain. In the meantime, the rst indications that these important historical materials might lead to a signicant revision of the history of British decolonisation will be seen in the full trial of the Mau Mau case in the High Court early in 2012.
Notes
[1] For the details of the case, see Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment. [2] The Times carried daily coverage of the case between Monday 3 April and Friday 14 April 2011. [3] The case was rst discussed in Kenya in the late 1990s, provoked by a number of Mau Mau veterans associations, and then formally taken up by the KHRC in 2003. The current civil proceedings commenced in 2006. [4] Leigh Day website for details and background to the case: www.leighday.co.uk [5] The ve grounds set out for the claim in the Prosecution statement are usefully summarised by Justice McCombe: (i) that the liabilities of Kenyas colonial government passed to the UK on independence in December 1963; (ii) that the British government was liable for instigating a system of torture and abuse in Kenya; (iii) that this system was designed by colonial ofcials in Kenya with the British Army and the Colonial ofce in London; (iv) that in July 1957 the British government specically authorized a policy for the mistreatment of detainees; and (v) that the British government owed a duty of care to Kenyas peoples at this time. Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment. [6] Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment. [7] Ibid. See also the press coverage in The Times, 18 July 2011. [8] Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment. [9] This argument was rst clearly stated in Anderson, Histories of the Hanged in 2005. [10] The summaries that follow are compiled from the witness statements of the claimants. Copies of the full statements were presented to the Court and are available on the Leigh Day website: www.leighday.co.uk [11] For an account of the Lukenya Prison break-out and its consequences, see Anderson,The Battle of Dandora Swamp, 155 77. [12] For a history, see Spencer, KAU. [13] See Doble, The Kenya Regiment. Also, Parker, The Last Colonial Regiment. [14] For his memoirs, see Gavaghan, Of Lions and Dung Beetles, and his novella, Corridors of Wire, about the Kenyan Emergency and in which the identities of the most prominent colonial ofcials are only thinly disguised. Gavaghan died in August 2011. For his obituary, see The Times, 12 August 2011, and the Daily Telegraph, 14 August 2011. [15] See Elkins, Britains Gulag, for a detailed account of the violent regime at Mwea under Gavaghans command. [16] Government of the UK, Documents Relating to Hola Camp; Government of the UK, Further Documents Relating to Hola Camp [17] Government of the UK, Record of Proceedings at Hola Camp.
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[18] For a full history of the role of Home Guard in the Emergency, see Branch, Defeating Mau Mau. [19] Most recently, a staff member in the Secretariat has publicly admitted the burning of selected documents at Government House prior to the British departure, and a leading Kenyan lawyer of the 1960s has attested to witnessing the destruction of documents at a district ofce in Central Province. [20] See BNA CO 822/1276 for extracts from noe set of minutes from this committee. [21] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Edward Inglett, 18 Nov. 2010. [22] Ibid. [23] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David Anderson, 21 Dec. 2010. [24] The key le is British National Archive (BNA) FCO 31/211/11. These materials were rst drawn to my attention by Professor Tim Parsons. [25] BNA FCO 31/211/11, Scott to Arthur, 7 Nov. 1967. See also BNA FCO 31/2119, Reid to Scott, 2 Nov. 1967, and various minutes describing the documents in BNA FCO 31/211/4. [26] BNA FCO 31/211/11. Further requests to have these documents returned to Kenya were made in the 1974 and again in the early 1980s: Cary, The Migrated Archives. [27] The students who assisted in this process were Daniel Ostendorff, Jacob Wiebel, Emma Lochery, Patrycya Stys, Michelle Sikes, Yolana Pringle, and Michelle Osborn. [28] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David McBeath Anderson, 24 March 2011. [29] Hanslope Disclosure[HD] E 16/3/8A, Governor Baring to the Secretary of State for the Colonies, 17 Jan. 1955. [30] These examples are from HD AA 45/35 1A. [31] HD REC/7. [32] HD AA 57A, vol. V. [33] HD AA 45/55/2/17. [34] Elkins, Britains Gulag. [35] HD AA 57A, vol. V. [36] Ibid. [37] HD EMER 45/13/1/5/1A, vol. ii, and HD EMER 45/13/1/5/1A, vol iii. [38] For a brief discussion, see Anderson, Histories of the Hanged, intro. [39] It has now been acknowledged that these 13 boxes are lost. A listing of their titles shows that around 60 per cent relate to the Mau Mau Emergency. [40] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Martin Tucker, and Exhibits 1, 2 and 4, 8 March 2011. [41] Hansard, available at: http://services.parliament.uk/hansard/Lords/byDate/20110405/written ministerialstatements/part012.html [42] Hague quoted in The Times, 8 April 2011. [43] Cary, The Migrated Archives. [44] Ibid., 4 5. [45] Ibid. [46] Ibid. [47] Hansard, available at: http://services.parliament.uk/hansard/Commons/ByDate/20110630/writte nministerialstatements/part009.html
References
Anderson, David M. Histories of the Hanged: Britains Dirty War in Kenya and the End of Empire. London & New York: Weidenfeld & Nicolson and WW Norton, 2005. . The Battle of Dandora Swamp: Reconstructing Mau Maus Land & Freedom Army. In Mau Mau and Nationhood: Arms, Authority and Memory, edited by E.S. Atieno Odhiambo and John Lonsdale, Oxford: James Currey, 2002: 155 77.
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Branch, Daniel. Defeating Mau Mau, Creating Kenya; Counterinsurgency, Civil War and Decolonization. Cambridge: Cambridge University Press, 2009. Cary, Anthony. The Migrated Archives: What went Wrong and What Lessons Should We Draw? FCO Report, London, 2011: 22 pp. Available from http://www.fco.gov.uk/resources/en/pdf/ migrated-archives; INTERNET. Doble, Josh. The Kenya Regiment and the Mau Mau Emergency: Operational Abuse and the Expediency of Local Force in Kenya. MSt diss., Global & Imperial History, University of Oxford, 2011. Elkins, Caroline. Britains Gulag: The Brutal End of Empire in Kenya. London: Pimlico, 2005. Gavaghan, Terence. Of Lions and Dung Beetles. Ilfracombe: Arthur H. Stockwell, 1999. . Corridors of Wire: A Saga of Colonial Power and Preventive Detention in Kenya. London: Privately Printed, 2000. Government of the UK. Documents Relating to the Death of Eleven Mau Mau Detainees at Hola Camp in Kenya. Parliamentary Papers, Cmd 778. London: HMSO, 1959. . Further Documents Relating to the Death of Eleven Mau Mau Detainees at Hola Camp in Kenya. Parliamentary Papers, Cmd 816. London: HMSO, 1959. . Record of Proceedings and Evidence in the Enquiry into the Deaths of Eleven Mau Mau Detainees at Hola Camp in Kenya. Parliamentary Papers, Cmd 795. London: HMSO, 1959. Parker, Ian. The Last Colonial Regiment: The History of the Kenya Regiment. Kinloss: Librario Publishing, 2009. Royal Courts of Justice. Ndiku Mutua and Others and the Foreign and Commonwealth Ofce: The Hon Mr Justice McCombe, Summary of Judgment. Case No. HQ09X02666: London: Royal Courts of Justice, 2011. . Ndiku Mutua and 4 Others and the Foreign and Commonwealth Ofce, Witness Statement of Martin Tucker, 8 March 2011. Case No. HQ09X02666: London: Royal Courts of Justice, 2011. . Ndiku Mutua and Others and the Foreign and Commonwealth Ofce, Witness Statement of Edward Inglett, 18 Nov. 2010. Case No. HQ09X02666. London: Royal Courts of Justice, 2011. . Ndiku Mutua and Others and the Foreign and Commonwealth Ofce, Witness Statement of David Anderson, 21 Dec. 2010. Case No. HQ09X02666. London: Royal Courts of Justice, 2011. . Ndiku Mutua and Others and the Foreign and Commonwealth Ofce, Witness Statement of David McBeath Anderson, 24 March 2011. Case No. HQ09X02666. London: Royal Courts of Justice, 2011. Spencer, John. KAU: The Kenya African Union. London: Kegan Paul, 1985.

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