The Royal African Society: "Litigating Colonial Atrocity - Mau Mau and Herero"

This panel explored the joint case on litigating reparations initiatives for the Herero Genocide in German South-West Africa (1904-08) and the Mau Mau Emergency in British Kenya (1952-1960). Both historical events can be described as two of the most atrocious chapters in the book of European colonialism in Africa and the groundbreaking scholarship of the panel's speakers has been instrumental in pursuing the respective legal actions against the Federal Republic of Germany and the United Kingdom.

David Anderson on the Mau Mau case

For many years in Kenya Mau Mau was deemed best forgotten. Reparations movements were suppressed under the Kenyatta government. However, in the 1990s a number of reparation organisations were formed. Originally these were local in focus – largely being claims for property stolen whilst suspected Mau Mau members were imprisoned. The Kenyatta government was not keen on opening up this potentially divisive subject, and so several thousand claim cases were recorded but never brought to court. In effect, the government helped suppress the national memory of Mau Mau.

In the 1990s the Kenya Human Rights Commission (KHRC) was formed, following a global shift towards such rights and entitlements. The KHRC was however initially reluctant to take on seemingly ‘unwinnable’ Mau Mau case. Difficult questions existed as to which courts would hear cases of claims against the British government and under which national jurisdiction would they occur?

The KHRC did however take up the cases, and it is important to note that the momentum towards litigation by Mau Mau claimants pre-dated the publishing of books on the subject – notably David Anderson’s Histories of the hanged and Caroline Elkins’ Britain’s Gulag – which both came out in 2005. These publications however provided the claimants (and their lawyers) with greater ammunition for their cases. The Kenyan government has been a little wary about the implications of successful claims, as it is not keen to arbitrate on who should benefit from reparations. The Mau Mau claim is also seen as being nationally divisive, as Mau Mau is not considered a national movement but rather an ethnic one. Under the present coalition government, no one in Kenya wants to tackle such potentially divisive subjects.

David Anderson’s role in the current Mau Mau case (to go to court in London on 4th April) is that of an expert witness. As such, he provided historical background from his own research.

Anderson stated that at the atrocities that took place by – or on behalf of – the British government, between 1952 and 60, were not a secret. They were widely reported on by the British press, but no one felt the need to do anything.

They Kenya National Archive has very good records from the Mau Mau period. However, Anderson made the point that things are missing. Areas in which documents are missing are easily identified by any historian, as it is obvious when certain categories of documents have been removed. For example, documents about detentions centres, screening teams (set up to conduct interrogations) and collective punishments (administered to entire villages) are missing, when it is known that records of all such actions were taken.

The case currently under preparation is focussed on 5 claimants who claim torture in a variety of different prison camps. Lawyers are charged with proving British government culpability and liability for the torture.

Whilst culpability may be proven, liability is more problematic. One argument which seeks to counter liability claim is that, upon independence, Kenya’s assumption of its national sovereignty was an implicit acceptance of liability for any outstanding claims against its national administration. This logic may mean that the British government accepts culpability for torture (from the time of its sovereignty over Kenya) but is not liable for it.

Anderson stated that he has tried to persuade the British government that an out of court settlement would be the best solution. This would ideally also include a public acknowledgement of wrongdoing, and even an apology. This is what happened with the German government and the case of the Herero. An apology and a ‘gift’ – to be used for developmental purposes – was provided. It was stated that some progress was made on this under the last government.

In his statement to the courts for the upcoming case Anderson cited the existence of missing documents. He stated that these documents may have been removed by the exiting British administration in 1963. Evidence was provided from documents Anderson has seen which detail certain files that were ‘retrieved’ to London upon independence. These removals were of a significant scale – there are references to ‘3 crates of documents’ having been ‘retrieved.’ These documents have now however been found, and were released to both defence and prosecution. An open question was asked as to whether this was a ‘cock up or conspiracy.’

Whilst the missing documents in the Kenya case have been found, Anderson questioned whether in other instances – Malaya, Cyprus, Nigeria (to name just 3 possible examples) – there might also be missing documents, ‘retrieved’ to London, with much to tell us about the actions of colonial administrations.

The Mau Mau claim is not the only claim the British government may have to worry about. Claims mau arise from, for example Malaya or Palestine, and as such there is a fear that a successful claim could set a precedent for reparations claims. However, the point was made that the ongoing Mau Mau case does affect relations between Britain and the Kenyan government. Anderson strongly advocates that it would be better for all involved to settle out of court.

Robert Murtfeld on the Herero case

Robert Murtfield is a PhD student focussed on international law – with a focus on the case of the Herero genocide in what is now Namibia. He has been working on the Herero case for 5 years.

In 2004 the Herero recognised the centenary of the genocide carried out against them by the German army in South West Africa. This centenary was also made notable by the delivering of an apology by the German Minister for Economic Development and Cooperation. Murtfield however stated that this apology never received German parliamentary approval, and was framed in a development context. In essence, it was not enough, and Murtfield now seeks to revitalise the Herero debate 10 years after the 2004 apology.

The case of the Herero exemplifies a very violent instance of colonialism. German South West Africa (modern day Namibia) was the primary German settler colony. The Herero – who were the original occupiers of this land – felt threatened by the settler presence, and started a war against the settlers, killing 120 – 130 of them. The imminent loss of control of its colony engendered a military response from the German government. The Herero were militarily encircled and given one route through which they could escape – by crossing the Kalahari desert. This was in essence an order of extermination.

As with Kenya and the Mau Mau, the actions of the colonial military/administration were not a secret. The extermination order by the commander of the German forces was communicated back to Germany where it was initially accepted. The order was later withdrawn, but concentration camps (based on the British model from the Boer War) were set up, where many Herero were worked to death.

A case brought against the Federal Republic of Germany through a US court failed due to the inability of such a court to rule upon what was a German case. The Herero could also not appeal to the International Court of Justice (ICJ), as the ICJ only deals with appeals made by states (the claim was made on behalf of the Herero and not Namibia as a national entity.) The Herero case had a complex national politics to it in Namibia, as Germany is the biggest aid donor to Namibia. The Namibian government did not want to endanger this aid due to the actions of one section of its population.

Both presentations demonstrated the difficulties inherent in international law, and emanating from national governments, in gaining reparations for such claims. The Mau Mau litigation - begining of April 4th - could make history as the first successful example of such a claim.

Many thanks to The Royal African Society for tweeting  to me the link to the article