Mau Mau judgment: Opening the floodgates for reparations in the Commonwealth Caribbean?

The Mau Mau were an anti-colonial group that where fighting for independence from the colonial authorities in Kenya between 1952 and 1960, in what became known as the ‘Mau Mau Uprising’. The colonial authorities declared war against these rebels, and a state of emergency was declared. At the height of the uprising the daily average number of prisons was 86,634; up from 9,000 in 1952 before the troubles began. There is substantial evidence to support allegations by persons who were detained during this period that they were tortured by their captors.

The current case in the High Court Ndiki Mutua v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB), is that brought by three such persons, arrested and tortured by the authorities in Kenya. It is not denied that they were tortured; the UK government accepts this did indeed occur. However what the UK government does say, is that the claimants are prevented seeking redress because of the passage of time. The Limitation Act 1980 (The Act) s11 provides that a claim for personal injury must be brought to the court within three years of: ‘the date on which the cause of action accrued, or; the date of knowledge (if later) of the person injured’. s33 of The Acthowever provides a court with some discretion where it would be equitable for the time limit in s11to be dis-applied. This section also sets out specific considerations for the judge when contemplating removing the time limit, in addition to the requirement to consider ‘all the circumstances of the case’:

a)   The length of, and the reasons for, the delay on the part of the plaintiff

b)   the extent to which, having regards to the delay, the evidence adduced or likely to be adduced by the plaintiff of the defendant is or is likely to be less cogent than if the action had been brought within the time allowed by section 11…

c)    the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made by the plaintiff for information or inspection for the purpose of ascertaining facts which were or might be relevant to the plaintiff’s cause of action against the defendant;

d)   the duration of any disability of the plaintiff arising after the dateof the accrual of the cause of action;

e)   the extent to which the plaintiff acted promptly and reasonably once he know whether or not the act of omission of the defendant, to which the injury was attributable, might be capable at that time of giving rise to an action for damages;

f)     the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of any such advice he may have received.

The main thrust of the UK government’s defence to the attempts to have the time-limits under the Act dis-applied, was that given the passage of time, in particular the fact that the main witnesses, those who were senior UK and Kenyan government officials at the time of the uprising have died or are otherwise unable to give evidence. This, they say, means that a fair trial is not possible.

McCombe J found little favour in the argument that there was insufficient evidence for a fair trial. Not least in his considerations were two recent substantial academic works The Imperial Reckoning: the Untold Story of Britain’s Gulag in Kenya (Professor Caroline Elkins, Harvard) andHistories of the Hanged: Britain’s Dirty War in Kenya and the End of the Empire (Professor David Anderson, Oxford). Furthermore the documentation of the period by the colonial government appears to have been extensive, and while some documents were destroyed at independence, a substantial quantity was transported back to the UK for storage. Thus the learned judge concluded:

I have reached the conclusion… that a fair trial… does remain possible and that the evidence on both sides remains significantly cogent for the Court to complete its task satisfactorily. The documentation is voluminous… the governments and military commanders seem to have been meticulous record keepers.

One fear, of course, for the UK government in this regard is that creating a precedent of reaching beyond the time limits in such a case has the potential to remove the barrier to further actions being initiated in the courts against the government by inter alia Governments and nationals of the Caribbean.

Reparations, of course is still very much a live issue in the region; as recently as last year the leaders of three countries in the Caribbean (Antigua, Barbados and St. Vincent) made calls for reparations to be paid by the former slave owning states for the over 400 years of slavery, at the UN General Assembly. There are also various international, including Reprieve (who are interveners in the current case) who campaign for reparations to be paid by the former slave owning nations.

The current judgment is already being heralded as a major victory by many such groups – the key they had been waiting for to unlock the route to reparations throughout the former colonial world. The judgment is however, widely misunderstood. It is erroneously described in one article as ‘a decision of the UK High Court ordering the British Government to pay damages to a group of Kenyans…’, when in reality this is far from the case.

Firstly, this is one of a number of preliminary hearings in this case. The question here was whether the normal time limits apply and therefore if there is a case for the UK Government to answer, a point that McCombe J encapsulated neatly: ‘To say that “there is a case [to answer]” imports the corollary that there is a case on the available materials to the contrary.’ Furthermore, the judgment does not represent a trial, or anything more than a cursory glance, of the substantive issues. As the case is one based in negligence. The vicarious responsibility of the UK government for the persons who carried out the torture will need to be proved, and the claimants will have all the normal hurdles of Duty, Breach and Causation. And the UK government has much it can advance in its defence. The government’s case in part, is that in any event it is not responsible for the actions of the colonial administration:

Any outsider rash enough to suggest to a member of the Colonial Office that, in certain circumstances, more positive direction from Whitehall might be desirable, will almost certainly be reminded that it was such action which led to the loss of thirteen Colonies at once… One is reminded, firmly and correctly, that Governors exist to govern, that the Colonial Office does not run Colonial territories and that their job is to advise; if necessary exhort; but rarely, if ever command.

Secondly, it should be appreciated that this case is one in which the claimants are still alive and able to attend the trial. The UK government accepted that the three successful claimants had been tortured as they alleged, and there was medical evidence to support it. They were also required to give live evidence, notwithstanding the thousands of items of written evidence and the previously mentioned academic texts, together with the meticulous research that went into their preparation.A fourth claimant, who has died since the court case began, in respect of whom there is no medical evidence nor any admission on the part of the UK government, was unsuccessful in respect of the s33 application made on her behalf.
Thirdly, while McCombe J’s decision was most erudite and judicious, it remains to be seen what view his new colleagues in the Court of Appeal will take to this undeniably radical decision. And even if the decision stands up to that further,  as has already been mentioned, the difficulties of establishing negligence will have to be faced. It is clear that this can be an uphill battle in even the most mundane contexts.

It therefore remains the case, as it was before this Mau Mau judgment, highly unlikely that the UK government will find itself liable to pay millions to those seeking reparations in the Caribbean.

Original post: 12/10/12, http://www.sjs.brookes.ac.uk/blog/2012/10/12/mau-mau-judgment-opening-the-floodgates-for-reparations-in-the-commonwealth-caribbean/