Mutua and others v. The Foreign and Commonwealth Office ["Mau Mau" case]
In October 2009, five elderly Kenyan individuals brought a claim for damages for personal injuries and torture caused by employees and agents of the British and Colonial Administration in Kenya during the Mau Mau uprising between 1952 to 1961. During the case, one claimant passed away and another claimant discontinued his claim. The case was subject to a settlement, announced 6 June 2013.
Violations were committed during the State of Emergency declared by the Colonial Administration during the uprising of African resistance to colonial rule in Kenya. Torture, amongst other violations, was committed when individuals were detained in screening centres, prisons, detention camps (where they suffered castration, severe sexual abuse and systematic beating) and under a programme known as “villigisation” (which involved forced labour and the enforced resettlement of village populations who were forced to burn down their previous homes to prevent their use by the Mau Mau). It is estimated that between 1952 and 1961 90,000 Kenyans were killed or injured and another 160,000 detained.
The UK Foreign and Commonwealth Office (FCO) defended the case and claimed that liability for any atrocities was inherited by the Kenyan Republic as the successor to the Kenyan Colony. In April 2011 there was a two week hearing in the High Court on the issue of whether the British Government was the appropriate Defendant. In his judgment of 21 July 2011, Mr Justice McCombe found that the Claimants had arguable claims against the British Government and that the cases could proceed to trial.
Then the government made applications to strike out the claims in advance of a full trial on the basis the claims are time-barred by the provisions of the Limitations Act 1980. REDRESS, as interveners in the case, made written submissions to the High Court on the issue of limitation periods under English and international law. REDRESS instructed leading silk Elizabeth-Anne Gumbel QC to draft its submission. There was a hearing on limitation periods from 16 - 27 July 2012. REDRESS' submissions were considered on 19 July.
On 5 October 2012, Mr Justice McCombe found in favour of the claimants on the issue of limitation, and ordered that the matter proceed to trial. The FCO sought to appeal this decision but were refused leave by the High Court. However, the FCO was granted permission on 10 December 2012 by the Court of Appeal, although the judge granting permission considered that the British Government would have an “uphill struggle” in overturning Mr Justice McCombe’s decision. REDRESS applied to intervene in the appeal in early February 2013.
The appeal was due to be listed in the Court of Appeal on 13 May. However, proceedings were stayed as the parties explored the possibility of settling the claims.
On 10 April 2013, the British NGO Liberty, with the Kenyan Human Rights Commission, Amnesty International UK, and individuals including UN Special Rapporteurs on Torture past and present, wrote to the UK Prime Minister, Deputy Prime Minister and Foreign Secretary to remind them of the UK’s duty to deal honourably with past victims of torture - specifically the “Mau Mau” litigants.
On Thursday 6 June 2013, William Hague (UK Foreign Secretary) made an announcement to the UK Parliament on settlement of the Mau Mau claims. In his announcement, Mr Hague recognised that Kenyans were subject to torture and other forms of ill treatment at the hands of the Colonial Administration. He said that "The British government sincerely regrets that these abuses took place, and that they marred Kenya's progress towards independence." The settlement agreement reached includes a payment of a settlement sum in respect of 5,228 claimants (including the Mau Mau litigants), as well as a gross case costs sum, to the total value of £19.9million. The UK government will also support the construction of a memorial in Nairobi to the victims of torture and ill treatment during the colonial era.
REDRESS welcomed the fact that elderly survivors will at last receive some compensation and the public recognition that they had sought. It brings justice to victims and breaks the silence and denial that has surrounded their suffering for decades. Although Mr Hague sought to limit the issue to what happened in Kenya, it is important for the UK government to fully address the legacy of colonial abuses wherever they were committed. This includes taking immediate steps to make publicly available all records bout abuses committed in all former British territories and to cooperate with any interested parties, including survivors’ organisations. Where sufficient evidence is available, the UK should provide adequate reparation to the victims, which should also comprise a full apology.
- REDRESS Press release, 6 June 2013
- UK Foreign and Commonwealth Office Announcement of Settlement, 6 June 2013
- Letter to Prime Minister from Liberty and others, 10 April 2013
- REDRESS witness statement in support of our application to intervene in the Court of Appeal,
filed on 12 February 2013
- Judgement, 5 October 2012
- REDRESS Press release, 5 October 2012
- REDRESS Press release, 16 July 2012
- REDRESS Written Submissions, 24 June 2012
- REDRESS Written Submissions, 14 March 2011
- Judgment of Mr Justice McCombe, 21 July 2011
- Appendix A to the judgment of 21 July 2011
- Appendix B to the judgment of 21 July 2011
- Appendix C to the judgment of 21 July 2011
- Appendix D to the judgment of 21 July 2011
- Summary of judgment of 21 July 2011