The case discussed in this paper concerns the claim received from Ndiku Mutua, Paulo Nzili, Wambugu Nyingi, Jane Muthoni Mara, and Susan Ngondi against the Foreign and Commonwealth Office of Great Britain (McCombe). The primary issue discussed was the fact that British armed forces tortured the participants of the Mau Mau uprising in Kenya back in the 1950s. Since the discussed events took place a long time ago, the High Court of Justice decided that the case could be sent for a full trial. This precedent is proof that crimes against human rights can be reviewed independent of their period of commitment, and that a modern country may still be held responsible for any actions it used to take in the past against its former colonies in a case if the latter file a claim to a court. The paper discusses the main point of the case, including its background, decision, and reasoning, as well as the analysis of its importance.
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Summary of the Case
The first part of the case consisted of three main claimants, Paulo Nzili, Wambugu Nyingi, and Jane Muthoni Mara. Another two claimants were Ndiku Mutua who died during the processing of the case and Susan Ngondi. The defendant in the case was the Foreign and Commonwealth Office of the United Kingdom. This party insisted that tortures and other actions described by the claimants are hard to prove, and all the events took place a long time ago when the British Empire had other laws and authorities regarding its colonies. Thus, the defendant’s point was to admit British liability only partially. The case is an action for damages for personal injuries, as it is identified in the record of the hearing.
Kenya is a former British colony, one of many in Africa (Balint 262). The period after World War II was marked by the fight of the colonies for their independence as Europe was recovering from the destruction and economic crisis. In the middle of the 1950s, a group of people in Kenya decided to rise against the autocratic rule of the British Empire. Their movement became known as Mau Mau (Parry, “Uncovering the Brutal Truth About the British Empire”, The Guardian.com). The British army responded severely by enforcing the state of emergency in the country and allowing the police and the army to arrest anyone who was suspected of taking part in the protest movement. British servicemen often put Kenyan people in camps and applied torture methods to them along with punishment practices without fair judgment.
There was a prior proceeding in the High Court, which came to a conclusion that claimants had reasonable arguments against the British government for the actions that took place during the times of the Mau Mau protest movement. However, no lower courts took part in the process before this case. There were no prior decisions made on that level.
The main facts that were presented during the hearing consisted of the stories that were told by the claimants. These stories included evidence of tortures and actions that damaged the dignity of those people. The British government was claimed liable since Kenya used to be a Crown colony, and all police actions served as a representation of the Empire’s law.
For instance, Mr. Nyingi described a dilution technique that was applied in camps at the time he was arrested by the police. The evidence provided a description of this technique, stating that its main idea was to detach one or several arrested individuals and apply tortures to them that would make these people cooperate with the government representatives.
Such things as the villagization program also took place in the country. People were forcefully moved to villages that had very high restrictions. The territory could not be left without special permission, and people were forced to work in fields under the surveillance of guards. The issue of rape was also persistent, as several claimants held soldiers and white representatives responsible for such actions in these villages. People were often relocated and treated with abuse further on, being accused of sympathizing with the Mau Mau movement.
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The defendant side claimed that there was no evidence of soldiers really performing torture in a way it was described by the claimants. For instance, Kenyan citizen representatives accused the British government of sanctioning the screening methods that were targeted at identifying criminals or those who supported the movement. However, the British side responded that there is no proof of soldiers using screening procedures in a harmful or torturing way that would compromise the dignity of an individual.
It is important to understand that after receiving independence from the British Empire in 1963, all liabilities of this state were transferred to the Kenyan government. Thus, if before the independence people of Kenya could make a claim against the Queen or other British structures, the new rule presented this as impossible.
Decision and Remedy
The main point that claimants tried to insist on is that criminal actions from soldiers and police controlled by the British government did take place in the history of the Mau Mau movement and that the current state administration has to admit its responsibility for those actions. They looked for the possibility of the High Court to approve their claim to process further for the legal discussion. The Court decided that the claimants had the “arguable case in law” (“Mau Mau Uprising” para. 7) that could be reviewed with all the legal requirements.
The judges decided that the claimants had an arguable case due to the fact that the practice of torture became real under the British rule (“Mau Mau Case”). The British Empire created a system in its Crown colony that allowed all the events to happen that were marked by injustice and cruelty. Taken into consideration the fact that Kenya as the newly formed government could not resist the enforcement of liabilities upon it at the moment of settling legal issues, the modern state of the United Kingdom should respond to the claim of the former Mau Mau supporters.
The Mau Mau case is very important regarding the future of legal proceedings reviewing the events of historical injustice between the countries. It is a fact that Europe had colonies in the past that were extensively used to make a profit out of their human and natural resources. Although nowadays most European countries identify themselves as democratic and as such defending the fundamental human rights, this was not always the case. As the colonial model started to ruin after World War II, it became evident that other nations would not tolerate injustice towards them.
The case of the Mau Mau supporter has proved that other people from various countries that have suffered from the colonial regime have a right to file a claim against the former ruling states to hold them liable for their past actions. The case has particularly underlined the fact that crimes against human dignity do not have any time restrictions. One of its main values is that the law is now able to pass through such limitations. The major point here is that there are exclusions from the rule, which are based on the severity of the case. The basic principle here is that any discussed events should be subjects to the constitutional law or any other regulations that are drafted for representatives of the title nation.
The decision of the High Court could affect other countries that have suffered from colonial rule. The positive decision has given an understanding that other similar cases would be treated in the same way. It may provoke the increase of such proceedings in the nearest future. After all, there are many countries that were under European rule, and many of their citizens belonged to a race other than white. Taken into consideration the fact that racial issues are still persistent in the world, it is not surprising that there are potentially millions of people that have suffered from an attitude of their colonial governors.
When reviewing this issue, it is important to understand that not all colonies were on the same level. The so-called Crown colonies, to which Kenya belonged in the past, had the lowest number of rights and preferences. However, even the dominions and protectorates had a severe influence on their economy from British rule. For instance, many people in Europe believe that India has to be thankful for the ages of British governance since it received many benefits like infrastructure, second language, economic growth, etc. However, the main issue of such relationships, which is, by the way, common for all colonial countries, is that representatives of a title nation are viewed as superior compared to locals. Besides, the benefits of the economic growth in India are questionable, as it is not known how the country would have developed without the suppression from the top.
Countries like India or Australia are not likely to have their citizens file claims against the British government. After all, they have stable diplomatic relations under the Commonwealth agreements, which allow people from these countries traveling to the United Kingdom and even settling there if they wish so. However, even the Commonwealth representatives could hold the British government liable for past actions, and reparations are not always the only way to settle an argument.
The case of Canada’s Truth and Reconciliation Commission discussed an unfair system of treatment that the Indian population received from Canadian authorities (Stanton 1). The case is a vivid example of a practice that is not associated with the direct torture methods, yet is it still harmful to a sense of human dignity and justice. The major issue reviewed in the case is the system designed by the Canadian government in the past that was targeted at raising Indian children in accordance with the Western culture. The Indian worldview and habits were not viewed by the government as appropriate and suitable for Canadian society. A lot of children were taken away from their families and put into schools that were usually associated with the Catholic church.
Apart from this, students were forbidden to speak their native languages or in other ways express their belonging to the Indian culture. This practice of assimilation has led to such adverse results as detachments from families and the inability to lead a familiar way of life, specifically by farming. Although Canada’s Truth and Reconciliation Commission looks similar to the Mau Mau hearings regarding the main purpose of seeking truth from the government after the discussed regime has ceased to exist, the essence of the first case lies in the attempt of assimilation, while the second one focuses on the torture practices. Nevertheless, both cases are precedents for the future that could be used by other people. It appears that anyone can hold liable to the modern government for the mistakes of the past if he or she has enough proof of criminal actions taking place and heavily affecting the future of an individual.
The Mau Mau case has become a very important step in defining the strength of time limitations regarding the crimes that heavily affected people’s lives in the past. The application of the case’s results can be exercised in similar claims from people who have suffered from the colonial rule. Although nowadays European countries are the first ones to proclaim human rights, history shows that they are liable for the cruelty and violence against other nations, specifically in Asia and Africa. Their former desire to restore control over territories by any means has caused an understandable reaction of people seeking the truth for the past events. This fact should be remembered by modern governments of the developed countries since the neo-colonial trends are now becoming an issue.
Balint, Jennifer. “The ‘Mau Mau’ Legal Hearings and Recognizing the Crimes of the British Colonial State: A Limited Constructive Moment.” Critical Analysis of Law, vol. 3, no. 2, 2016, pp. 261-285.
“Mau Mau Case: UK government Accepts Abuse Took Place.” BBC News, 2012, Web.
“Mau Mau Uprising: Kenyans Win UK Torture Ruling.” BBC News, 2012, Web.
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McCombe, Justice. Approved Judgement. Royal Courts of Justice, London, UK, 21 Jul. 2011.
Parry, Marc. “Uncovering the Brutal Truth About the British Empire.” The Guardian, 2016, Web.
Stanton, Kim. “Canada’s Truth and Reconciliation Commission: Settling the Past?” The International Indigenous Policy Journal, vol. 2, no. 3, 2011, pp. 1-18.