In the first fortnight of this month, The Times carried almost daily news reports and background articles and, most extraordinarily, a series of editorials condemning Britain`s historical wrongs and record in Kenya in relation to the Mau Mau emergency. All this was to highlight the case brought by four ex-Mau Mau detainees against the Foreign & Commonwealth Office (FCO), on behalf of British government, for damages for the torture and other maltreatment suffered by them more than 50 years ago in colonial Kenya. It was to have opened on Monday 4th April, but was delayed and eventually opened on Thursday 7th April, and ended a week later on Thursday the 14th. I should explain that the hearing was not of the case as such in the sense of a full-scale trial but rather of a preemptive application by the FCO to strike it out as a matter of law.
I had intended to attend the hearing from the beginning but in the end managed to do so only from the third day on to the last. But it was a thoroughly satisfying and stimulating experience. Since my retirement from active practice, I hadn`t gone anywhere near a court, and certainly not around the hallowed precincts of the Royal Courts of Justice in London, and so it gave me quite a buzz to wander around the corridors and hallways of the complex and to be within the four walls of a modern court setting in the East Block.
And my impressions? I can only express them in superlative terms. This was the British, more specifically English, justice system at work at its best. There could be no denying the quality of excellence and expertise underlying the whole proceedings. The huge array of documents - laid out in neat folders and spread across and around the benches of counsel, solicitors, their support staff and the judge high up on his dais - were an obvious and compelling sight of the range and depth of the preparation that must have gone into the litigation. And then there was the unpretentious but undoubted professionalism of the leading players at the centre of the drama - the two QCs, Robert Jay for the FCO and Richard Hermer for the Claimants, and the judge, Mr Justice McCombe. They interacted with each other with a rapport born of a shared background and training at the Bar and, even more than that, with a mastery of their respective briefs and an understanding not only of the legal issues involved but also of the historical importance of the case. They got on with the arguments and submissions effortlessly, with no hiccups or interruptions in the flow of the narrative. There was not a single moment when counsels` presentation was marred or delayed by missing or misplaced documents or due to some mistake in the compiling or identification of the material or other unexpected shortcomings on the part of either side, as does sometimes happen in complex cases.
Basically, the FCO wish to have the case dismissed on broad grounds to do with jurisdiction, accountability and constitutionality. They argue that, even assuming the claimants` allegations of torture and other serious mistreatment meted out to them in the detention camps to be true, since these were carried out by the police, army and security forces under the command and control of a colonial administration that was separate from the UK home government, the latter should not now be held liable for those acts. I may be putting this simplistically, but in essence the FCO were / are seeking to distance themselves from what happened in Kenya more than half a century ago on the ground that the UK government is not responsible for the acts and conduct of the forces of law and order there because they were functioning under a separate juridical entity. There were also other points of distinction and finer detail that were put forward too, but this was the essence.
The way I would put it is, no matter how the imperial government chose to dress up the colonial administration of Kenya, in terms of legal personality or internal structures, the fact remained that Kenya was a colony and a colony is by definition not a sovereign state. In international law, Kenya was a British territory and it was the United Kingdom that was ultimately in charge as the governing power. Whether this line of reasoning finds favour remains to be seen.
Legalities apart, it was thrilling to be part of the attendant `circus`, so to speak. Present there were of course the four elderly claimants with their minders, though on all the days that I attended the female member did not make an appearance. Then there were those who had also come from Kenya, as well as other supporters and well-wishers. I had interesting chats with some of them and the lawyers involved in the case. There was no tension or emotion shown at any time; if anything there was a feeling of goodwill and camaraderie. It was all a very restrained and civilised affair. At lunch breaks, most of us congregated around in the main hall or the cafe, and returned to the court refreshed. Some of the visitors from Kenya took the opportunity to work around the court sittings to fit in a busy schedule of sight-seeing, interviews and meetings. At the end of the daily sessions, Richard Hermer made a point of explaining the gist of what had taken place to his client circle, his words being translated into Swahili or Gikuyu.
As the judge on the opening day had observed, it was not necessary for the claimants to have come to London in person to attend the hearing. They came nevertheless, and one can only assume that they did so on advice because of the obvious public relations angle, which had the desired effect. Their pictures appeared almost daily in The Times, and there was other media coverage too. The most sensational aspect of the whole case, from the domestic UK perspective, turned out to be the unearthing of the lost archive of the colonial administration`s papers and communications with the home government. This too was covered extensively in The Times. The Foreign Secretary was compelled to make a statement to the effect the government will now take steps to put the documents out into the public domain as soon as possible, however much they may prove to be embarrassing.
At this stage, while we await the court`s ruling, I have no doubt that whatever the outcome, the Kenyan veterans who came to London, who have put their faith in British justice, will agree that they have had a full and fair hearing. And if their case is allowed to proceed to a full-scale trial, then it is more than likely that it will be settled along the lines of what the Kenya Human Rights Commission have reportedly proposed, ie. a statement of apology and setting up of a trust fund to collectively and/or individually meet the claims of those who were wrongly detained, tortured or otherwise suffered at the hands of the British authorities during the Mau Mau emergency. We shall see.
RAMNIK SHAH
Copyright
Surrey England
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