The Pursuit of Justice against Colonial Repression by the Mau Mau in Kenya

From the Series: Sustaining the Momentum: Reparative Justice for European Colonialism and Slavery

Photo by Elisa Rodriguez.

The Mau Mau was a significant resistance movement of men and women from different communities in Kenya who embarked on an armed struggle against the colonial government in a quest to reclaim land and to secure overall independence from the British. This armed struggle, the Mau Mau Uprising, eventually led to the declaration of a state of emergency from October 1952 to December 1959, when many Kenyans accused of participating in the rebellion were either killed or incarcerated in detention camps, and subjected to torture and other forms of cruel, inhumane, and degrading treatment while in detention. It is estimated that over 90,000 Kenyans were executed, tortured, or maimed, and about 160,000 were detained in appalling conditions. Detainees were subjected to severe beatings and other forms of torture by the colonial administration, including castrations and severe sexual assaults, which in many cases left these men and women with lifelong physical and mental scars. Many of those who died while in custody were buried in mass graves, and their loved ones could not give them a decent send-off or pay their last respects.

After a protracted struggle and eventual negotiations with the colonial administration, Kenya finally attained its independence in December 1963. While this was a significant moment in Kenya’s history, the Mau Mau remained an outlawed movement as a result of repressive colonial legislation that had not only branded them as terrorists but also left behind a legacy of human rights violations. Forty-one years after independence, in August 2003, the Kenyan government lifted a ban on the Mau Mau, who were now recognized as freedom fighters. This paved the way for the Mau Mau to begin their pursuit for justice against colonial repression by the British government for the numerous violations during the emergency period.

The major challenge in this journey was when the National Archives in Kenya informed the Kenya Human Rights Commission and the Mau Mau that there were no records on the Mau Mau. Efforts by the government of Kenya and the British government to gain such information were fruitless, which posed a huge threat to the surviving fighters’ quest for redress. However, in 2005, two groundbreaking academic studies, by Caroline Elkins and David Anderson—historians at Harvard and Warwick University, respectively—on the British colonial administration during the emergency period changed the accepted understanding of this historical moment. Both studies, which were based on extensive archival research and witness evidence from Kenya and the UK, concluded that there was regular and widespread abuse of detainees during the emergency period.

On June 23, 2009, the Mau Mau, with the assistance of the Kenya Human Rights Commission (KHRC) and Leigh Day law firm, issued a claim for compensation for alleged torture against the British Government on behalf of five elderly Kenyans who had been detained and tortured by the British colonial administration during the Kenya Emergency in the case of Ndiku Mutua & Others v. The Foreign and Commonwealth Office Case No: HQ09X02666 OF 2012. The British government challenged the case on two grounds: state succession and limitation. The British Government argued that it was not liable for atrocities committed by the British colonial regime. If such liability did survive, it was transferred to the Kenyan Republic via section 26 of the Constitution of Kenya (Amendment) Act, (Act No 28 of 1964). The British government also argued that the claims were time-barred by virtue of the Limitation Act (1980). They lost on both grounds. In October 2012, the claimants won a historic legal victory.

The KHRC and Leigh Day continued their investigations and identified over 5,000 further victims of colonial-era torture in Kenya (who subsequently became their clients). These victims of colonial-era torture had had little or nothing to do with the Mau Mau but were detained without trial for suspected connections with the insurgency. While waiting for a decision on its appeal, the British government elected to engage in negotiations with the claimants so as to reach an out-of-court settlement. The negotiations yielded a settlement on June 6, 2013, in which the British government abandoned their pending appeal and further agreed to issue a statement of apology that was delivered in the British Parliament, acknowledging that Kenyans had been subjected to torture and other forms of ill treatment at the hands of colonial authorities and that the British government expressed “sincere regret” for the same. The out-of-court settlement also included the British government paying out a compensation package of £2,600 per claimant for the 5,228 victims identified by KHRC and Leigh Day, financing the construction of a memorial in Kenya in remembrance of the victims of torture during the colonial era, and paying all the legal costs of the case. The statement of regret was issued by British Foreign Secretary William Hague at the House of Commons on June 6, 2013, and payments of the compensatory package have since been paid directly to each claimant. On September 12, 2015, thousands of Mau Mau war veterans traveled to Nairobi to witness the unveiling of a memorial monument for victims of torture, and cruel and ill treatment during the emergency period.

Despite this historic victory, this out-of-court settlement did not comprehensively address numerous underlying issues of colonial repression. The critical question of accountability was never addressed; there have been no prosecutions of any soldiers, police officers, or prison guards who were responsible for some of these crimes against humanity. Further, it is painful to have to state that the governments of independent Kenya, for whose existence the Mau Mau died in the Land and Freedom Army, have turned a deaf ear to the grievances of the liberators. For over fifty-five years since they liberated Kenyans from colonialism, these freedom fighters continue to languish in poverty. Many Kenyans continue to grapple with the critical issue of land, which has remained one of the most explosive issues facing Kenya more than fifty years after independence from Britain. This has been further exacerbated by the Kenyan government’s inability to address the critical issue of land ownership in Kenya by British aristocrats, business executives, and other foreign investors. Finally, many victims of colonial repression in other African countries have never been compensated for the numerous violations that they suffered as a result of colonial repression by the British. Justice for colonial crimes, in Kenya and elsewhere in Africa, is an ongoing pursuit.