This is a paper by David M. Anderson on the case of the 'Lost' British Empire Archives. The public suspected that there two big reasons why these are archives were lost. It is very interesting the argument made by the writer regarding the case.
Mau Mau in the High Court and the ‘Lost’ British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?
Abstract
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 officials 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 files 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 files 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 London's 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 Britain's 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 first
declared empire over Kenya, and nearly 50 years since Kenya achieved its
independence in 1963, these four imperial subjects were 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 shuffling 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 first 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 fifth claimant, Susan Ngondi. Her statement was filed 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 magnificent 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 overflowing
on this first morning with journalists and interested members of London's 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 Office (FCO), assembles at tables to the left, and the
Prosecution team from the London legal firm 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 figure.
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 at the end of 1963. The Foreign Office 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, finding that there
were sufficient 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 McCombe's findings
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
Mutua's Story
The first claimant, Ndiku Mutwiwa Mutua, had been a herdsmen
employed on a white settler farm in Kenya's eastern province. His employer, Mr
Dunman, was known to his African farm labourers by the nickname Luvai. As well
as being a farmer, Dunman's day job during the Mau Mau Emergency was as a
police officer. Despite this, some of Dunman's African employees regularly
supplied foodstuffs to the Mau Mau fighters hiding in the nearby forests. It
seems that Dunman eventually got wind of this, and assisted by five African
police officers he began an interrogation of his African farm labourers to try
to find out information about the local Mau Mau fighters. 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 five African police
officers accompanying Dunman. Some of the police used batons to beat their
suspects, while others hit at them with rifle butts. Mutua was beaten so
severely that he almost lost consciousness. The four suspects were then bundled
into Dunman's 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, 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 officer 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 difficult
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, Mutua's interrogation resumed.
This time, Mutua was questioned by a European officer, accompanied by several
African prison warders. During this interrogation Mutua was led to a tent,
where he was blind-folded and then stripped from the waist down. Handcuffs were
applied to his wrists and he was forced to lie on his back by African officers
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
officers 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 fighters 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
Nzili's 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 officers who took him in for questioning first 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 finally being detained at Naivasha prison. At both Embakasi and
Manyani, Nzili was assaulted and beaten by police, prison officers, 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 first
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 officer, whom he recognised by the nickname Kwatanze, then assaulted
Nzili. The two European officers then 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 Nairobi's 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. Manyani's
prison warders were armed with rattan sticks with which they habitually struck
the prisoners. During his first 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 firewood. His castration aside,
Nzili acknowledges that he escaped the worst of treatment in the prisons in
which he was subsequently incarcerated.
Nyingi's 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 first
arrested at his family home in Central Province shortly after Kenya's state of
emergency had begun. His home was raided by a group of white officers from the
Kenya Regiment, known as the self-styled Ngombe Squad.13Nyingi 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.
Nyingi's story of detention is a litany of assault and abuse.
Beaten and stabbed when arrested, Nyingi was first taken to the local police
station in Aguthi location near Muthinga. There he was informed that he had
been placed under a Governor's 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 centre—that is to say, a place
where those suspected of Mau Mau affiliations 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 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 flight 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 first detention, interrogations now
being a regular feature of the camp regime. These interrogations were aimed at
making detainees confess. A white prison officer conducted each interview,
accompanied by African officers. 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 confined. 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
filling 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
officers pushed and beat the prisoners, causing the buckets to fall to the
ground, having to be picked up, refilled and replaced on the head of the
prisoner. During these abuses European officers 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 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 officer 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 Nyingi's 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 confirm
Nyingi's presence at Hola and his role in the events described, evidence that
fully corroborates Nyingi's 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
final year of his detention, he was held in solitary confinement for three
months, once again due to his failure to behave compliantly while in detention.
When finally 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 Mara's 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
fighters, 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 government's 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 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 officers, police, and Home Guard.
Mara's experience at Gatithi was horrific. 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 five or six, with
their legs outstretched in front of them. Mara recalls that a white officer,
whom they nicknamed Waikanja, then walked back and forth over their
outstretched legs in his heavy boots. Other African camp officers then joined
him in this assault.
On the following day, Mara's 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 floor and
prised her thighs apart, holding them open. The senior African officer, named
Edward, then produced a glass bottle, which under Waikanja's orders was forced
into Mara's vagina, using the sole of the African officer's 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 prosecution's 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.
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 file lists—the 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 officials in 1963 prior to Kenya's
decolonization, and indeed there were reports of this destruction at the time.19 But as one follows the sequence of files that
have made it to the Kenya National Archive, it is also apparent that papers
relating to specific events, committees, or policies are also absent—among the
Kenyan Emergency period records we have been unable to find 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 files 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 fulfil this requirement for disclosure. In response
to this, the Kenya desk officer with the FCO, Edward Inglett, diligently
undertook a wide-ranging search through the many depositories and offices 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
FCO's records management staff drew a complete blank with regard to other
holdings relating to the Mau Mau Emergency. In November 2010, Inglett filed 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
officials had written to London alleging that documents had been illegally
removed from Nairobi's Secretariat on the eve of independence. They asked for
acknowledgement of this fact and the return of any documents now in the
possession of Her Majesty's Government. The origins of this request stemmed
from papers that had been found among the archives of the Secretariat in
Nairobi—papers mistakenly left behind by the British—detailing the arrangements
made for air-lifting ‘retrieved’ documents to London.
In my opinion, London's response to this inquiry was as cynical
as it was deceitful. A minute on the file 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 files, in more than 300
boxes, taking up some 100 linear feet of storage. The minute acknowledged that
among the retained files were intelligence summaries, files on unrest,
collective punishments, and allegations of abuse during the emergency, along
with files relating to detainees and detention camps. These papers came from
several different ministries within Nairobi's colonial administration,
including internal security and defence, the Governor's Office, the office of
the Attorney General, and the office of the Chief Secretary. A further note on
this file, 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 files being candidly described as
those which might embarrass Her Majesty's Government, embarrass members of the
police or army, or compromise intelligence sources. The vast majority of the
retained files 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 files from Kenya but arrogantly and dismissively told the
Kenyan government that the files were withdrawn because they were relevant to
UK policy and that this was none of Kenya's 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 files. 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 files, finally, apparently in exasperation, Inglett
informed the records management staff at the FCO's 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 Inglett's 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 files. Numbering more than 1,500 files in all, the titles alone
suggest that around one-third of these materials relate specifically to the Mau
Mau Emergency and might be relevant to the claimants' case. In preparation for
the April 2011 hearing, the FCO and the Defence barristers first reviewed the
relevant files. Any file they selected for review was then disclosed to the
Prosecution. A team of Oxford graduate historians, under my direction, then
reviewed these files 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 500–600 files
have a potential bearing on this case, the average being more than 100 folios
but the most important files often amounting to a hefty load above 250 folios.
As our efforts focused on the most relevant, and often the most substantial
files, it proved possible to review only round 300 of these files 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 first 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 files. This
made the coherent analysis of the files exceedingly difficult. 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
specific files, we were entirely in the hands of the FCO in determining which
documents they considered to be relevant to the case. Many files which I would
consider should be prioritised in reference to the case were completely ignored
by the FCO, for example, a large group of files 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 files (there are
around 40 files 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 significant 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 specifically 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, officials debated the legal limits of coercive
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 officials at differing levels of authority, right up to the
Governor and beyond to the Colonial Office 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 specific practices.
What, then, do the Kenyan files 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 notified cases now stands at close to 500 examples. One
voluminous file 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 officers 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 officers 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 file 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
files. One file includes details of the implementation of forced labour upon
detainees in Kenya's 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 file also
contains documents from meetings of senior officers at Government House,
Nairobi, to discuss the forced labour policies, and here, again, the illegality
of Kenyan practice is plainly admitted.31
The legal definitions of coercion and the levels of force to be
used in screening or in compelling detainees to work became obsessions among
British administrators: in effect, having decided to use torture and abuse as
normal, systemic practices, they then sought to define how they would conduct
these matters. These discussions are significant because they include
correspondence from Governor Baring and the Secretary of State for the
Colonies, showing that officials at the highest level were directly engaged in
defining 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 difficulties’ that such
actions will cause.32 Another related file
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 file, 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, specific 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 officers and implemented
thoroughly and consistently as each party of prisoners arrived at the camp.35 The latter papers in this file deal with
attempts to legalise these systematic tortures through disguising the beatings
and abuse within the terms of the Prison Act. The file shows that Governor
Baring was fully consulted on the decisions taken at Mwea and was fully aware
of the practices taking place—at one point he even asked for statistics on the
men ‘beaten’. Others who visited Mwea were horrified by what they saw, and the
file contains a number of papers regarding concerns raised by other
administrative staff and officials. Among these accounts is one from Askwith,
the Secretary for Community Development, who describe the use of
deprivation—food denial with starvation for up to three days, sleep deprivation
through water been thrown over detainees to wake them—and regular brutal
beatings ‘on a variety of pretexts’. Askwith noted:
One detainee at Mwea resolutely refused to respond in spite of a
most drastic beat-up. 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 fists 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 official reports on the killings many of the key documents
have until now been ‘missing’. Some of these have turned up among the disclosed
files from Hanslope, including two files 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 officers 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 significance 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 file. It is more difficult to believe
that over 100 linear feet of files 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 files 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 files. As well as referring to a
further deposit of 13 boxes of ‘Top Secret’ files 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 significant 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 files in total.41 Secretly removed from each colony in turn at
the time of independence, these files had been held in the FCO's 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 files and make them accessible to the
public as speedily as possible.42
In the first step towards that goal, Anthony Cary, a former
diplomat, was appointed to conduct an internal review into how the Kenya files
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 Britain's
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 opportunity—declaring 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 difficulties that historians still face in
trying to access ‘retained’ materials even when they may know that such files
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 Act's introduction.45 Did other departments
then behave in the same way with ‘difficult’ 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 find 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
finally 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’
files 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 Britain's 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
It is somewhat ironic that what began as a quest to find
documentary evidence of systematic British torture in Kenya should end up
revealing a potential treasure trove of documents on the decolonisation of
Britain's 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 files can indeed be
released, preferably without too much redaction, into the public domain. In the
meantime, the first indications that these important historical materials might
lead to a significant 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
Notes
For the details of the case, see Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.
The Times carried daily coverage
of the case between Monday 3 April and Friday 14 April 2011.
The case was first 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.
The five grounds set out for the claim in the Prosecution
statement are usefully summarised by Justice McCombe: (i) that the liabilities
of Kenya's 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
officials in Kenya with the British Army and the Colonial office in London;
(iv) that in July 1957 the British government specifically authorized a policy
for the mistreatment of detainees; and (v) that the British government owed a
duty of care to Kenya's peoples at this time. Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.
Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.
Ibid. See also the press coverage in The Times, 18 July 2011.
Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.
This argument was first clearly stated in Anderson, Histories of the Hanged in 2005.
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
For an account of the Lukenya Prison break-out and its
consequences, see Anderson,‘The Battle of Dandora Swamp’, 155–77.
For a history, see Spencer, KAU.
See Doble, ‘The Kenya Regiment’. Also, Parker, The Last Colonial Regiment.
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 officials
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.
See Elkins, Britain's Gulag, for a detailed account of the violent regime
at Mwea under Gavaghan's command.
Government of the UK, Documents Relating to Hola Camp; Government of the UK,Further Documents
Relating to Hola Camp
Government of the UK, Record of Proceedings at Hola Camp.
For a full history of the role of Home Guard in the Emergency,
see Branch, Defeating Mau Mau.
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 office in Central
Province.
See BNA CO 822/1276 for extracts from noe set of minutes from
this committee.
Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Edward Inglett, 18 Nov. 2010.
Ibid.
Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David Anderson, 21 Dec. 2010.
The key file is British National Archive (BNA) FCO 31/211/11.
These materials were first drawn to my attention by Professor Tim Parsons.
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.
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.
The students who assisted in this process were Daniel
Ostendorff, Jacob Wiebel, Emma Lochery, Patrycya Stys, Michelle Sikes, Yolana
Pringle, and Michelle Osborn.
Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David McBeath
Anderson, 24 March 2011.
Hanslope Disclosure[HD] E 16/3/8A, Governor Baring to the
Secretary of State for the Colonies, 17 Jan. 1955.
These examples are from HD AA 45/35 1A.
HD REC/7.
HD AA 57A, vol. V.
HD AA 45/55/2/17.
Elkins, Britain's Gulag.
HD AA 57A, vol. V.
Ibid.
HD EMER 45/13/1/5/1A, vol. ii, and HD EMER 45/13/1/5/1A, vol
iii.
For a brief discussion, see Anderson, Histories of the Hanged, intro.
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.
Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Martin Tucker, and Exhibits 1, 2 and 4, 8 March 2011.
Hansard, available at:http://services.parliament.uk/hansard/Lords/byDate/20110405/writtenministerialstatements/part012.html
Hague quoted in The Times, 8 April 2011.
Cary, The Migrated Archives.
Ibid., 4–5.
Ibid.
Ibid.
Hansard, available at:
