Kenyan Mau Maus
Kenyan Mau Maus

Four elderly Kenyans today won a ruling which takes them one step nearer to winning damages from the Government over alleged colonial atrocities during the Mau Mau uprising.

Mr Justice McCombe, at London's High Court, said that they had "arguable cases in law" and cleared the way for a month-long hearing before Easter when they will tell their stories.

Solcitor Martyn Day said that this hearing, which decided against the Government's argument that the claims cannot proceed because they have been brought outside the legal time limit, was in itself a "major victory".

"A lot of the evidence about what happened will be put into the public domain, and people will be able to judge for themselves.

"So, even if the judge rules that the trial cannot go ahead because of the time that has passed, just having that trial is a major victory." Martyn said before the hearing.

The Foreign and Commonwealth Office (FCO) had asked the judge to block the litigation on the basis that any claim should instead have been brought against the direct perpetrators of the alleged assaults or their employer at the time - the Colonial Government in Kenya - and not the British Government.

But, the judge rejected the strike out application because the FCO had not established that the claims were bound to fail.

He said: "The rival factual contentions are hotly disputed. I have found that it is impossible at this stage of the proceedings to decide that the FCO must be correct in its factual assessments and arguments.

"It has been necessary; therefore, to consider the case on the basis that the claimants' version of the facts may prove at trial to be correct and to ask whether, on that basis, they have an arguable claim in law against the UK Government."

He added: "I emphasise that I have not found that there was systematic torture in the Kenyan camps nor that, if there was, the UK Government is liable to detainees, such as the claimants, for what happened."

The claimants, Ndiku Mutwiwa Mutua, Paulo Muoka Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara - all but one of whom are in their 80s - flew 4,000 miles from their rural homes for the trial which mainly focused on events that took place in detention camps between 1954 and 1959. However, surprisingly, despite the long trip, none of them were not in court today.

At that hearing the judge learnt that Mr Mutua and Mr Nzili had been castrated, Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara had been subjected to appalling sexual abuse.

In his ruling, the judge commented: "In my judgment, it may well be thought strange, or perhaps even 'dishonourable', that a legal system which will not in any circumstances admit into its proceedings evidence obtained by torture should yet refuse to entertain a claim against the Government in its own jurisdiction for that Government's allegedly negligent failure to prevent torture which it had the means to prevent, on the basis of a supposed absence of a duty of care.

"Furthermore, resort to technicality, here the rules of constitutional theory, to rule such a claim out of court appears particularly misplaced at such an early stage of the action."

Talking about the motives behind the claimants move, Mr Day, a senior partner at Leigh Day & Co, outlined that despite earlier allegations his clients did not seek money but rather justice.

"What they seek is justice by way of an apology and a Mau Mau welfare fund to ensure that in their final days they and their fellow freedom fighters can live with an element of dignity.

"That does not seem to me a great deal to ask after all they have been through."

Also commenting on the outcome, Foreign Office minister for Africa Henry Bellingham said: "It is right that those who feel they have a case are free to take it to the courts.

"We understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the emergency period in Kenya.

"Despite today's judgment, the Government will continue to defend fully these proceedings, given the length of time elapsed and the complex legal and constitutional questions the case raises. We have taken note of the judgment and are considering next steps.

"Our relationship with Kenya and its people has moved on since the emergency period. We are now partners and the UK is one of the largest bilateral donors in Kenya."

The ruling is a first in the U.K .and while the Mau Mau have now permission to take their case further, many people from other colonies might be tempted to follow suit, in the U.K. or other former colonial powers such as France, Portugal or the Netherlands.

Colonialism remains a very sensitive subject for former colonies and colonial powers alike. While independence was granted, it did not always happen in full harmony and until now, former colonial powers have always been reluctant to assume any form of responsibility for the atrocities committed against the indigenous peoples during that period and no reparations were ever paid.

The relationship between France and Algeria for example has become increasingly tense in the last decade after France refused to admit the systematic use of torture against its opponents during the Algerian war of Independence. Despite constant denials, the use of torture was confirmed in the French daily Le Monde by 92-year old general Jacques Massu, who in 1957 was in charge of the notorious "Paras" (10th Parachute Division), and his deputy, the 82-year old general Paul Aussaresses, then director of the French secret service in Algiers, after they admitted that over 3,000 prisoners considered to have "disappeared" at that time had in reality been executed. Aussaresses explained that in 1957, torture and murder were an integral part of France's war policy. He boasted that methods were employed that were not covered by the conventions of war , that he had given his subordinates orders to kill and had personally liquidated 24 FLN members, telling Le Monde, "I do not regret it."

The U.K. however has proven that it is less in denial than Paris when it comes to colonialism and the hard realities it often entails. Whether or not the Kenyan claimants win damages from the government their plea has been and will be heard which is extremely important as denying the brutality and inequality that derived from colonialism is still affecting the relationship between the West and several states in Africa and on other continents.