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Legacies of British Colonial Violence: Viewing Kenyan Detention Camps through the Hanslope Disclosure

Extract

A number of works have recently been published that seek to re-narrate colonial histories, with a particular emphasis on the role of law in at once creating and marginalizing colonial subjects.1 Focusing on mid-twentieth century detention camps in the British colony of Kenya, this article illuminates a colonial history that was deeply buried in a Foreign and Commonwealth Office (FCO) building for many years. As such, the analysis supports the revelatory work of David Anderson and Caroline Elkins, who highlighted the violence that underpinned British detention and interrogation practises in Kenya.2 In particular, the article explores recently declassified colonial files, and pieces together a picture of administrative subterfuge, suppression of facts, and whitewashing atrocities, threaded through with official denial, which long outlived its colonial genesis. Against the hypothesis that detention laws created an architecture of destruction and concomitant custodial violence in Kenya, the article establishes that an accountability deficit is the legacy of detention without trial as it was practiced in colonial Kenya. By untangling a complex web of colonial records and government papers relating to Kenya, this article reveals the often insurmountable pressure that was exerted to conceal evidence of detainee violence, and the role of a highly sophisticated propaganda machine that controlled the public narrative of a violent incident when outright denial was impossible.

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References
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1. Samera Esmeir, Juridical Humanity (Stanford: Stanford University Press, 2012); Fabian Klose, Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria (Pennsylvania: University of Pennsylvania Press, 2009); Roland Burke, Decolonization and the Evolution of Human Rights (Philadelphia: University of Pennsylvania Press, 2010); Daniel Maul, Human Rights, Development and Decolonization: The International Labour Organization, 1940–70 (New York: Palgrave Macmillan, 2012); and Steven Pierce and Anupama Rao, eds. Discipline and the Other Body (Durham and London: Duke University Press, 2006).

2. David Anderson: Histories of the Hanged: The Dirty War in Kenya and the End of Empire (New York: W.W. Norton, 2005); and Caroline Elkins, Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya (New York: H. Holt, 2005).

3. Wertheimer John, “Introduction,” Law and History Review 29 (2011): 469.

4. Which, of course, were not unique to British colonies, Rita Maran, Torture: The Role of Ideology in the French-Algerian War (New York: Praeger Publishers, 1989); and Marnia Lazreg, Torture and the Twilight of Empire: From Algiers to Baghdad (Princeton: Princeton University Press, 2008); see also A. W. Brian Simpson for other British end of empire insurgencies, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001); and John Newsinger, British Counterinsurgency: From Palestine to Northern Ireland (New York: Palgrave Macmillan, 2002).

5. Kenya, with a complex of more than 100 camps, had a greater number of detainees per target population (Kikuyu) than any other British colony where detention without trial was used, see David French, The British Way in Counter-Insurgency, 1945–1967 (Oxford; New York: Oxford University Press, 2012), 111.

6. For more on British responses to the Mau Mau insurgency, see Daniel Branch, Defeating Mau Mau, Creating Kenya: Counterinsurgency, Civil War, and Decolonization (Cambridge: Cambridge University Press, 2009); Bennett Huw, “The Mau Mau Emergency as Part of the British Army's Post-War Counter-Insurgency Experience,” Defense & Security Analysis 23 (2007): 143–63; Lonsdale John, “Mau Maus of the Mind: Making Mau Mau and Remaking Kenya,” The Journal of African History 31 (1990): 393421; Newsinger John, “Minimum Force, British Counter-Insurgency and the Mau Mau Rebellion,” Small Wars & Insurgencies 3 (1992): 4757; and Mockaitis Thomas, “Minimum Force, British Counter-Insurgency and the Mau Mau Rebellion: A Reply,” Small Wars & Insurgencies 3 (1992): 8789.

7. See, generally, Overton John, “The Origins of the Kikuyu Land Problem: Land Alienation and Land Use in Kiambu, Kenya, 1895–1920,” African Studies Review 31 (1988): 109–26; and Furedi Frank, “The Social Composition of the Mau Mau Movement in the White Highlands,” The Journal of Peasant Studies 1 (1974): 486505.

8. For more on the powerful influence of the white settler in British politics, see Frank Kitson, Bunch of Five (London: Faber, 1977), 6–7.

9. One of the most authoritative texts on this process is David Throup's, Economic and Social Origins of Mau Mau 1945–53 (London: Currey, 1987). See also Klose, Human Rights in the Shadow of Colonial Violence, 65–66.

10. Berman Bruce, “Bureaucracy and Incumbent Violence: Colonial Administration and the Origins of the ‘Mau Mau’ emergency in Kenya,” British Journal of Political Science 6 (1976): 143–75.

11. Tom Mboya, The Kenya Question: An African Answer (London: Fabian Colonial Bureau, 1956).

12. Mboya referenced in Klose, Human Rights in the Shadow of Colonial Violence, 197.

13. Fiona Mackenzie, Land, Ecology and Resistance in Kenya, 1880–1952 (Edinburgh: Edinburgh University Press, 1998).

14. Elkins, Imperial Reckoning, 22–28. Frank Kitson also describes the significance of oathing among the Kikuyu tribe, and remarks that “[d]espite the fact that some Christian influence had been disseminated in the half-century preceding the outbreak of the Emergency, nearly all the Kikuyu believed in the power of oaths in the same way as mediaeval Englishmen believe in witchcraft,” in Bunch of Five, 8.

15. Klose, Human Rights in the Shadow of Colonial Violence, 68.

16. Frederick Cooper, Decolonization and African Society: The Labour Question in French and British Africa, (Cambridge: Cambridge University Press, 1996), 348, 351.

17. Berman Bruce, “Bureaucracy and Incumbent Violence: Colonial Administration and the Origins of the ‘Mau Mau’ Emergency in Kenya,” British Journal of Political Science 6 (1976): 143. Carl Rosberg and John Nottingham also point to the colonial administration's failure to introduce significant reforms as a key contributing factor to the emergence of the Mau Mau movement in The Myth of “Mau Mau”: Nationalism in Kenya (New York: Praeger, 1966).

18. Daniel Branch describes the pre-emergency detention network of camps as a “carceral archipelago,” see Imprisonment and Colonialism in Kenya, C. 1930–1952: Escaping the Carceral Archipelago,” International Journal of African Historical Studies 38 (2005): 256.

19. Florence Bernault, ed., A History of Prison and Confinement in Africa (Portsmouth: Heinemann, 2003), 13.

20. The figure of 80,000 detainees is propounded in the official record, whereas David Anderson estimates that the maximum number who may have been detained to be 150,000 persons, Histories of the Hanged, 5. Anderson later clarified this figure, by stating that the actual numbers detained was probably between 100,000 and 110,000 (personal correspondence with David Anderson). In Imperial Reckoning, Elkins claims that between 160,000 and 320,000 Kikuyu were detained during the emergency, but this assertion has been called into question, see Guardian article by John Willis, “External Ombudsman's decision on David Elstein's complaint,” April 7 2008 http://www.guardian.co.uk/theguardian/2008/apr/07/opendoor (April 18, 2015).

21. The National Archives (hereafter TNA) FCO 141/6321: Office of the Commissioner Kenya Prisons to the Secretary for Defence, May 31, 1956. See also, Pierce and Rao, Discipline and the Other Body, 1.

22. Cooper, Decolonization and African Society, 351.

23. Ibid., and see TNA FCO 141/5666: Athi River Rehabilitation Camp, Moral Rearmament Army, document circa August 1953.

24. Although detainees were allowed to send and receive one letter per month, the officer in charge of the detention camp could confiscate “any book or paper which, in his opinion, contains any objectionable matter,” The Emergency (Detained Persons) Regulations 1954, s 14(2).

25. Eileen Fletcher resigned her post in charge of female “rehabilitation” facilities in Kenya after a mere 7 months, in protest over the conditions of detention, and she subsequently made statements to the press about what she had witnessed; see “Conditions in Kenya Detention Camps,” The Times, June 7, 1956. Fletcher's claims were denied by the administration. The colonial secretary was deeply critical of Fletcher's allegations, “I am quite satisfied that Miss Fletcher's charges are based in the main on hearsay, on partisan opinion and personal prejudice. The negligible amount of criticism which could be levelled has proved to be wholly disproportionate to the impression that she has contrived to create. I would ask all fair-minded people to read carefully the documents in the Library of this House and to make up their own minds,” see Hansard October 31, 1956, vol. 558, cc 1418–21. See also TNA CO 822/1236: Memoranda prepared by the Colonial Office on reports by Eileen Fletcher on detention and imprisonment of children in Kenya, 1957.

26. The “Hanslope Disclosure,” refers to the discovery in 2011 of more than 8,000 files pertaining to thirty-seven former colonies at a Foreign and Commonwealth Office building in Hanslope Park, Milton Keynes. Between April 2012 and November 2013, the majority of these files were released to the National Archives, Kew Gardens. Within the National Archives, the FCO 141 series is generally referred to as the “migrated archives.”

27. Marshall S. Clough ed., Mau Mau Memoirs: History, Memory and Politics (London: Lynne Rienner Publishers, 1998); Gakaara wa Wanjaii, Mau Mau Author in Detention (Nairobi: Heinemann Kenya, 1988); Wambui Waiyaki Otieno, Mau Mau Daughter: A Life History (London: Lynne Rienner Publishers, 1998); and Josiah Mwangi Kariuki, “Mau Mau” Detainee: The Account by a Kenya African of His Experiences in Detention Camps, 1953–1960 (Transafrica Press, 2009).

28. For example, see the government's response to Victor Shuter's exposition of the brutality he witnessed in the Kenyan “rehabilitation” camps in Elkins, Imperial Reckoning, 340–44. Also, Huw Bennett notes that one settler (Denning) complained about screening teams beating up his employees. The authorities dismissed Denning's allegations, accusing him of being a man with “a rather unsavoury past,” Huw Bennett, Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency (Cambridge: Cambridge University Press, 2013), 37.

29. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011] EWHC 1913 (QB), July 21, 2011, para. 1; and Ndiku Mutua and Others v The Foreign and Commonwealth Office [2012] EWHC 2678 (QB), November 5, 2012.

30. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 1.

31. For more on the mechanisms involved in governmental denial of human rights abuses and atrocities see Stanley Cohen, States of Denial: Knowing About Atrocities and Suffering (Cambridge: Polity, 2001).

32. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 154.

33. “Statement to Parliament on settlement of Mau Mau claims,” Foreign Secretary William Hague, June 6, 2013, full text of speech available at https:// www.gov.uk/government/news/statement-to-parliament-on-settlement-of-mau-mau-claims (April 18, 2015).

34. Caroline Elkins, “Britain has said sorry to the Mau Mau. The rest of the empire is still waiting,” The Guardian, June 7, 2013 http://www.theguardian.com/commentisfree/2013/jun/06/britain-maumau-empire-waiting (April 18, 2015).

35. Hague, “Statement to Parliament on settlement of Mau Mau claims.”

36. Ibid.

37. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 32.

38. Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford, CA: Stanford University Press, 1998), 171

39. For example, the British colonial administration passed Regulation 27A in Malaya after the Batang Kali massacre in December 1948; see Mark Townsend, “Revealed: how Britain tried to legitimise Batang Kali massacre,” The Guardian, May 6, 2012. http://www.theguardian.com/world/2012/may/06/britain-batang-kali-massacre-malaysia (April 18, 2015).

40. See, for example, Elizabeth Kolsky's study of white violence in colonial India: Colonial Justice in British India (Cambridge: Cambridge University Press, 2010).

41. Klose, Human Rights in Shadow of Colonial Violence, 199. See also Burke, Decolonization and the Evolution of International Human Rights, 39.

42. Following the United States Charter, a United Nations commission was tasked with drafting the Universal Declaration of Human Rights, which came into being in 1948.

43. Cooper, Decolonization and African Society, 112.

44. Colonial Development and Welfare Act 1940.

45. Cooper, Decolonization and African Society, 120.

46. Ibid., 123.

47. Winston Churchill quoted in Ed Bates, The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights, (Oxford: Oxford University Press), 7.

48. Ibid., 61.

49. Wunyabari Maloba quoted in Klose, Human Rights in the Shadow of Colonial Violence, 199.

50. Ibid., 200.

51. Ibid.

52. Ian Cobain, Owen Bowcott, and Richard Norton-Taylor, “Britain destroyed records of colonial crimes,” The Guardian, April 18, 2012 http://www.guardian.co.uk/uk/2012/apr/18/britain-destroyed-records-colonial-crimes (April 18, 2015).

53. Ibid.

54. These administrations were Tanganyika, Singapore, Leeward and Windward Islands, and the East African High Commission, see TNA FCO 141/6957: Despatch signed by Lord Perth on behalf of the Colonial Secretary, December 9, 1959.

55. TNA FCO 141/6957: Circular 1282/59, “Security of Documents,” December 9, 1959, from Lord Perth on behalf of the secretary of state, para. vi.

56. Ibid., paras. ii, iii, vi.

57. TNA FCO 141/6957: Circular memorandum, “Operation Legacy,” February 28, 1961, para. 3.

58. Ibid., para. 4.

59. TNA FCO 141/6957: Appendix to circular memorandum, “Operation Legacy,” February 28, 1961, para. 1.

60. TNA FCO 141/6957: Undated draft entitled “The Designation Watch.”

61. Ibid.

62. Ibid., para. 9.

63. Lee Christopher, “Jus Soli and Jus Sanguinis in the Colonies: The Interwar Politics of Race, Culture, and Multiracial Legal Status in British Africa,” Law and History Review 29 (2011): 507.

64. TNA FCO 141/6957: Measures for the Protection of Special Documents: Protection of Special Branch Material, use of the marking “Watch.”

65. TNA FCO 141/6957: Minute by Geoffrey Ellerton attached to Designation Watch Circular, para. 22.

66. TNA FCO 141/6957: Letter from the Governor of Kenya to the colonial secretary with subject line “Security of Personal Records of Officers,” September 21, 1961.

67. These documents may have been retained because of their historical importance, but a more likely explanation is that there was a lack of the requisite person-power needed to destroy such volumes of material in a relatively short time frame, see TNA FCO 141/6957–6959: these files contain numerous Watch documents all bearing the “W” stamp.

68. There may be further clues as to exactly which materials were destroyed. For example, the Colonial Office should have registries for the “Watch” series, copies of annual reports from each colony on “accountable” documents, and destruction certificates from various governors detailing the documents they had destroyed.

69. The British government took over from the Imperial British East Africa Company, because it was unable to fulfil its charter obligations as a result of financial difficulties, see Charles William Hobley, Kenya from Chartered Company to Crown Colony (London: Frank Cass Publishers, 1929), 124.

70. Joireman Sandra Fullerton, “The Evolution of the Common Law: Legal Development in Kenya and India,” Commonwealth & Comparative Politics 44 (2006): 190210, see also Shadle Brett, “‘Changing Traditions to Meet Altering Conditions’: Customary Law, African Courts and the Rejection of Codification in Kenya, 1930–60,” The Journal of African History 40 (1999): 411–31.

71. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (New York: Cambridge University Press, 2005), 105.

72. Henry Morris, Government Publications relating to Kenya (including the East Africa High Commission and the East African Common Services Organisation) 1897–1963 (London: School of Oriental & African Studies, University of London, 1976), see http://www.microform.co.uk/guides/R96995.pdf (April 18, 2015).

73. Anderson, Histories of the Hanged, 29.

74. Berman, “Bureacracy and Incumbent Violence,” 145, 153.

75. Section 2 outlines that “[i]t shall be lawful for her Majesty the Queen in Council from time to time to establish any such laws and institutions, and constitute such courts and offices, make provisions and regulations for the proceedings in the said courts and for the administration of justice, as shall appear to Her Majesty to be necessary for the peace, order and good government of Her Majesty's subjects and others within any British settlement,” The British Settlement Act 1887, s. 2.

76. The Kenya (Annexation) Order June 11, 1920.

77. Kenneth Roberts-Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966), 168.

78. Letters Patent of September 11, 1920. The 1920 Letters Patent were “repealed by the Kenya Constitution Order 1958, Section 1(3) and the First Schedule. However, Section 3 of the 1958 Constitution re-produced a statement of the powers and duties of the governor in closely similar terms to Article 3 of the old instrument,” see Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 23.

79. Letters Patent of September 11, 1920, s. 10

80. Directions for a General Guidance to Colonial Governors, Colonial Regulations, 1956.

81. Klose, Human Rights in the Shadow of Colonial Violence, 70.

82. Political authorisation for the proclamation had been given by resolution of the United Kingdom Cabinet of October 14, 1952, see Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 8. Proclamation reads as follows: “IN EXERCISE of the powers conferred on me by section 3 of the Emergency Powers Order in Council, 1939, and of all other powers enabling me in that behalf, I DO by this Proclamation bring into operation the provisions of Part II of the said Order in Council with effect from the date of this Proclamation,” The Emergency Powers Order in Council, 1939, Proclamation No. 38 of 1952.

83. “His Majesty, by virtue and in exercise of the powers vested in Him by the British Settlements Act, 1887, the Foreign Jurisdiction Act, 1890, and of all other powers enabling Him in his behalf, is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows: 3. The provisions of Part II of this Order shall have effect in any territory in which they shall from time to time, in case of any public Emergency, be brought into operation by Proclamation made by the Governor, and shall continue in operation until a further Proclamation directing that they shall cease to have effect is made by the Governor, and shall then cease to have effect except as respects things previously done or omitted to be done.” The Emergency Powers Order in Council, 1939, part I, s. 3.

84. The Emergency Powers Order in Council, 1939, March 9, 1939, Part II – Regulations, s. 6(1).

85. Ibid., s. 6(2)(a).

86. The governor passed the first emergency regulation pertaining to detention in 1952 drawing from powers contained in Section 3, part 2, 6 (2) (a) of the Emergency Powers Order-in-Council, 1939, which conferred upon the governor of Kenya powers to detain individuals in an emergency context. The 1939 Order-in-Council was replaced by the Emergency Powers (Amendment) Order-in-Council 1952 to deal with the exigencies of the colonial situation, see TNA CO 822/725. Detention ordinances included: Emergency Regulations 1952, Detention Orders and Power to Detain Suspected Persons; The Emergency (Detained Persons) Regulations 1954; The Emergency (Detention Camps) Regulations 1959.

87. TNA CO 822/725: Note on detainees in Kenya, Colonial Office.

88. Anderson, Histories of the Hanged, 5.

89. Emergency Regulations 1952, s. 2(1).

90. Klose, Human Rights in the Shadow of Colonial Violence, 70.

91. Ibid. See also Montago Slater, The Trial of Jomo Kenyatta (London: Secker & Warburg, 1955). Although the administration went through the motions of a trial process for Kenyatta, he and many others were to languish in appalling camp conditions for the duration of the emergency. See John Lonsdale, “Kenyatta's trials: breaking and making an African nationalist,” in The Moral World of the Law, ed. Peter Coss (Cambridge: Cambridge University Press, 2000), 196–239. Kenyatta went on to become Kenya's first president at independence; see also, Jomo Kenyatta, Suffering without Bitterness. The Founding of the Kenya Nation (Nairobi: East African Publishing House, 1968); and Jomo Kenyatta, Facing Mount Kenya: The Traditional Life of the Gikuyu (London: Heinemann, 1979).

92. Caroline Elkins observes that 16,500 were detained in Nairobi during Operation Anvil, Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 42. Cooper points out that during Operation Anvil all Kikuyu inhabitants living in Nairobi were detained, purely on the basis of ethnicity, and that this led to a labor shortage in the city, see Decolonization and African Society, 355. However, Klose maintains that half of Kikuyu inhabitants in Nairobi were detained following Operation Anvil, whereas the other half (mainly women and children) were returned to the (already overpopulated) reservations, Human Rights in the Shadow of Colonial Violence, 75.

93. Anderson, Histories of the Hanged, 313.

94. Pierce and Rao, Discipline and the Other Body, 1. The Kenyan administration commissioned Dr. John Carothers to write a report, one of the sole surviving examples of government sponsored “ethno-psychiatry,” purportedly to help understand the causes of the Mau Mau rebellion; see John Carothers, The Psychology of Mau Mau (Nairobi: Government Press, 1954); see also TNA FCO 141/5666: Athi River Rehabilitation Camp –undated memorandum circa August 1953.

95. See Agamben, Homo Sacer. See also Duffy Aoife, “Detainee as “Exile”: Theorizing the Politico-Legal Underpinnings of Executive Detention,” Interdisciplinary Journal of Human Rights Law 7 (2012–2013): 117.

96. Bernault, A History of Prison and Confinement in Africa, 3.

97. Ibid., 109.

98. Ibid., 109–10.

99. Minor offences included, inter alia, spitting, malingering, refusing to eat, and making excessive noise, the Emergency (Detained Persons) Regulations 1954, s. 17.

100. Ibid., s. 17(a).

101. Pierce and Rao, Discipline and the Other Body, 6.

102. Corporal punishment constituted 17% of penalties for personal violence offenses in 1938, but this rose to 61% by 1951; see Branch Daniel, “Imprisonment and Colonialism in Kenya, C. 1930–1952: Escaping the Carceral Archipelago,” International Journal of African Historical Studies 38 (2005): 256.

103. TNA FCO 141/5670: Working Party on Future of Athi River Detention Camp, May 11, 1955, various government ministers were in attendance.

104. Emergency Regulations, 1952, s. 2(3)(b).

105. Ibid., s. 2(3)(c).

106. TNA CO 822/1234: Letter from Dingle Foot to John Profumo, November 25, 1957.

107. TNA CO 822/1234: Letter from Ian Macloed, Colonial Secretary, to Dingle Foot, January 4,1960.

108. Elkins, Imperial Reckoning, 111, 120, 237.

109. TNA CO 822/1234: Letter from Governor Baring to the secretary of state for the colonies, June 24, 1958.

110. Bennett, Fighting the Mau Mau, 8.

111. TNA FCO 141/5667: A petition from more than 1,000 detainees, Athi River Internment Camp to all party Parliamentary delegation, c/o Government House, Nairobi, January 20, 1954.

112. The Embu and Meru people were closely linked to the Kikuyu tribe and also targeted by emergency regulations.

113. Bennett, Fighting the Mau Mau, 16.

114. Villagization was a counterinsurgency strategy adopted in Malaya, and transposed to the Kikuyu reserves, where it was portrayed as a security measure designed to protect the Kikuyu population from Mau Mau “infection;” see Carothers, “The Psychology of Mau Mau,” 20. See also TNA FCO 141/5666 for a detailed report on detention and rehabilitation in Malaya, compiled by the Community Development Organisation following a visit to Malaya, with recommendations for Kenya, August 27, 1953. The creation of these new villages was “an unprecedented opportunity for the introduction of liberal reform and British civilising values” according to one influential settler; see Elkins, Imperial Reckoning, 236. The strategy's true purpose was to destroy the supply lines issuing from bases of Kikuyu support to active Mau Mau fighters, and Elkins believes that the villages were “detention camps all but in name,” and were punitive in nature, 237.

115. Bennett notes that there were 18,000 Home Guards in Central Province, Fighting the Mau Mau, 13, 16.

116. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 42.

117. The petition dates from January 1954.

118. The King's African Rifles was a battalion of the territorial Kenya Regiment.

119. TNA FCO 141/5667: A petition from more than 1,000 detainees, Athi River Internment Camp to all party Parliamentary delegation, c/o Government House, Nairobi, January 20, 1954.

120. Ibid.

121. Ibid., and see Ndiku Mutua and Others v The Foreign and Commonwealth Office [2012], para. 37.

122. Ibid.

123. TNA FCO 141/5671: Letter from more than 2,000 detainees, Mageta Island to Argwings Kodhek, November 20, 1956. TNA FCO 141/5667: A petition from more than 1,000 detainees, Athi River Internment Camp to all party Parliamentary delegation, c/o Government House, Nairobi, January 20, 1954.

124. TNA FCO 141/5671: Letter from more than 2,000 detainees, Mageta Island to Argwings Kodhek, November 20, 1956.

125. Bennett also refers to the security forces flogging Mau Mau suspects in “Fighting the Mau Mau,” 161.

126. TNA FCO 141/5671: Letter from more than 2,000 detainees, Mageta Island to Argwings Kodhek, November 20, 1956.

127. TNA FCO 141/5667: Letter from Saiyusi Island Camp, petition to the chief secretary Nairobi, January 22, 1956.

128. For more on screening, see Elkins, Imperial Reckoning, 76–90.

129. Bennett, Fighting the Mau Mau, 15.

130. Ibid., 162.

131. Ibid., 163.

132. Ibid., 21.

133. Klose, Human Rights in the Shadow of Colonial Violence, 173.

134. Ibid., 173–78.

135. Elkins, Imperial Reckoning, 339–40.

136. TNA FCO 141/6332: Draft telegram from the governor (undated).

137. Ibid.

138. Even though, as Elkins points out, it is likely that the officer in charge, Hugh Galton-Fenzi, who was physically present elsewhere in the compound, heard Macharia's screams during interrogation, Elkins, Imperial Reckoning, 340.

139. Ibid.

140. Klose, Human Rights in the Shadow of Colonial Violence, 176.

141. Criminal Appeals 988 and 989 of 1954 (from Emergency Assize Criminal Case No. 584 of 1954 of HM Supreme Court of Kenya at Nairobi), Kenya National Archives (hereafter KNA): Ministry of Legal Affairs (MLA) 1/1098, cited in Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 126.

142. Ibid.

143. Klose, Human Rights in the Shadow of Colonial Violence, 178.

144. TNA FCO 141/6521: “An Inquiry into Screening Camps and Interrogation Centres under the Control of the Provincial Administration,” (The Glenday Report), 1954.

145. TNA WO 32/15834: Letter from Erskine to the secretary of state for war, December 10, 1953.

146. TNA FCO 141/6521: The Glenday Report, 1954.

147. For more detail on Colonel's Young position in relation to detention violence.

148. Klose, Human Rights in the Shadow of Colonial Violence, 179.

149. Ibid.

150. TNA FCO 141/6301: Letter from Governor Baring to Ministry for Community Development (MCD) regarding the death of detainee called Muchiri at Gathigiriri Works Camp, February 4, 1957.

151. TNA FCO 141/6301: Thomas Askwith, on behalf of the minister for community development to the attorney-general, February 11, 1957.

152. TNA FCO 141/6301: Letter from Governor Baring to the minister for community development regarding the death of detainee called Muchiri at Gathigiriri Works Camp, February 4, 1957.

153. Elkins, Imperial Reckoning, 333.

154. TNA FCO 141/6301: Benaiah Appolo Ohanga, Minister for Community Development letter to Baring, February 7, 1957.

155. TNA FCO 141/6301: Askwith correspondence to the attorney-general, February 11, 1957.

156. TNA FCO 141/6301: Letter from the Governor to the secretary of state for the colonies, March 21, 1957. On another occasion, Hirst discovered a detainee hanging upside-down by his ankles, and although he ordered his staff to cut the detainee down, he took no further action, Ibid.

157. Ibid., and see TNA CO 1017/535: C.G. Hirst, Community Development Officer, Kenya: termination of contract, 1955.

158. TNA FCO 141/6301: Undated memorandum on the rehabilitation of “Zs” by an unnamed government ministry.

159. FCO 141/6304: Judgment of seven men charged with manslaughter of Kariuki Muriithi, July 18, 1957.

160. Ibid.

161. FCO 141/6303: Letter from Governor Baring to the Colonial Secretary, dated June 25, 1957.

162. Ibid.

163. Ibid.

164. TNA FCO 141/6303: ‘“Dilution” Detention Camps. Use of Force in Enforcing Discipline.”

165. A draft of this document is contained in the Hanslope files under the new catalogue reference: TNA FCO 141/6303.

166. TNA FCO 141/6303: details of the ministerial visit are omitted from the final draft sent to the Colonial Office, see TNA CO 822/1251.

167. TNA FCO 141/6303: ‘“Dilution” Detention Camps. Use of Force in Enforcing Discipline,” exactly the same text appears in the final document.

168. Ibid.

169. Ibid., exactly the same text appears in the final document.

170. Ibid.

171. Ibid.

172. Ibid.

173. “Serious injury must be avoided; kicking with boots or shoes should not be permitted; vulnerable parts of the body should not be struck, particularly the spleen, liver and kidneys; accordingly any blows should be confined to the upper part of the body and should avoid any area below the chest, front or back,” Ibid.

174. Ibid.

175. TNA CO 822/1251: ‘“Dilution” Detention Camps. Use of Force in Enforcing Discipline.”

176. TNA FCO 141/6303: Rehabilitation – Mwea Camps, report by Thomas Askwith, Provincial Secretary for Community Development, July 12, 1957.

177. Ibid.

178. TNA CO 822/1251: ‘“Dilution” Detention Camps. Use of Force in Enforcing Discipline.”

179. TNA FCO 141/6303: Rehabilitation – Mwea Camps, report by Askwith, July 12, 1957.

180. Ibid.

181. As a result of going against the tide, Askwith's colonial career abruptly ended and his contract was terminated in December 1957; see Tom Askwith, From Mau Mau to Harambee: Memoirs and Memoranda of Colonial Kenya (Cambridge: Cambridge African Monographs, 1995).

182. TNA FCO 141/6303: “Report on Mwea Intake by Secretary for Community Development,” addressed to Frank Loyd, Provincial Commissioner, Nyeri, July 22 ,1957.

183. TNA CO 822/1251: Note of a meeting by Ian Buist, July 16, 1957.

184. The Emergency (Detained Persons) Regulations 1954, s. 17(a).

185. TNA CO 822/1251: Note by W.A.C. Mathieson, July 18, 1957.

186. TNA FCO 141/6303: Mwea Procedure by Acting Governor, R.G. Turnbull, July 17, 1957.

187. Ibid.

188. TNA FCO 141/6303: Letter to Jack Cusack from Gavaghan, July 27, 1957.

189. TNA FCO 141/6303: Meeting at Government House, August 8, 1957. In attendance at this meeting were Governor Baring, John Cowan, Terry Gavaghan, and government ministers.

190. Ibid.

191. TNA FCO 141/6303: Letter to the commissioner of prisons from Cowan, dated August 10, 1957.

192. Ibid., in a subsequent report from Cowan, the Commissioner of Prisons, “No resistance was encountered from the Gathigiriri intake with the exception of the first man into the compound who instantly fought like a fanatic. This man was dangerous, striking both officers and warders, and had to be severely restrained apart from receiving twelve strokes.” The man who received the beating remained “uncompromising,” August 16, 1957.

193. TNA FCO 141/6303: I.P. Kelloway, Officer in Charge of Detainee Section, Special Branch, Embu, writing to the senior assistant commissioner of police, November 28, 1957.

194. Ibid.

195. TNA FCO 141/6303: C.M.H. Trent to the Commissioner of Police, Richard Catling, December 19, 1957.

196. TNA FCO 141/6305: Letter to the Permanent Secretary for Home Affairs from the Provincial Commissioner Central Province, September 17, 1958.

197. Maul, Human Rights, Development and Decolonization, 24, 25. For more background on the United Kingdom's engagement in this process, see TNA CO 323/1027: “Proposed International Convention on forced labour.”

198. Cooper, Decolonization and African Society, 29.

199. Maul, Human Rights, Development and Decolonization, 27.

200. C029 - Forced Labour Convention, 1930 (No. 29), Convention concerning Forced or Compulsory Labour, (Entry into force: May 1, 1932) Adoption: Geneva, 14th International Labour Conference (June 28, 1930), article 2(2)(d).

201. Maul, Human Rights, Development and Decolonization, 27.

202. Cooper, Decolonization and African Society, 112.

203. TNA FCO 141/5666: Governor's Emergency Meeting, Memo for the Member of Legal Affairs, April 16, 1953.

204. TNA FCO 141/5666: Memorandum on the Forced Labour Regulation by Robert Isles Guthrie, Assistant Legal Drafstman, April 30, 1953.

205. TNA FCO 141/5667: Petition sent from J.G. Kariuki and S.M. Macharia from Manyani Special Detention Camp to the secretary of state for the colonies, April 1956.

206. TNA FCO 141/5667: H.F.H. Durant to the commissioner of prisons, May 12, 1956.

207. An allegation submitted by Captain Ernest Law, a former officer in the prisons systems, refers to “alleged beatings of Embakasi convicts in March 1958 and implies that convicts were merely refusing to come out and were not violent and that excessive forces was used by Turner, Haig-Thomas, Carnie, Bird and Morton. There was no resistance and prisoners could not defend themselves – ‘it was just a murderous onslaught’.” It is not clear whether Law was referring to detainees working on the Embakasi project, see TNA FCO 141/6307: telegram from the Colonial Secretary to the Governor, September 29, 1959.

208. TNA FCO 141/6520: Movement of Detainees from Reception Centres to Works Camps, Council of Ministers on the Resettlement Committee. Memorandum by the Ministry of Defence, May 5, 1955.

209. It is unclear from the Ministry of Defence memo whether these individuals had been convicted of ordinary crimes or terrorist-related offenses, see ibid.

210. Ibid.

211. TNA FCO 141/5671: A letter on behalf of 2,000 detainees at Mageta Island, November 20, 1956.

212. TNA FCO 141/6322: War Council, the Emergency (Detained Persons) Regulations, 1954, memorandum by the minister for defence.

213. The new regulation covered: “Disobedience in such manner as to show wilful defiance of authority, of any order lawfully given,” in ibid.

214. Ibid.

215. TNA CO 822/802: Memo by W.A.C. Mathieson, August 27, 1956.

216. Ibid.

217. Ibid.

218. TNA CO 822/802: telegram from the colonial secretary to the governor of Kenya, August 28, 1956.

219. TNA CO 822/802: telegram from Governor Baring to the colonial secretary, September 19, 1956.

220. TNA CO 822/802: telegram from Governor Baring to the colonial secretary, October 3, 1956.

221. TNA FCO 141/5671: a letter on behalf of 2,000 detainees at Mageta Island, November 20, 1956. (The date on the letter precedes an event described therein.)

222. TNA FCO 141/6322: Disturbances at Mageta Island, report written by J.H. Lewis, Commissioner of Prisons, November 28, Commissioner of Prisons.

223. Ibid.

224. Ibid.

225. TNA FCO 141/5662: This letter is mentioned in a memorandum by Diarmaid William Conroy, Attorney-General, May 27, 1959.

226. TNA FCO 141/5662: Letter from Brooks to the Minister of Home Affairs, May 13, 1959.

227. Ibid.

228. Ibid.

229. TNA FCO 141/5662: Memorandum by Diarmaid William Conway to the Ministry for African Affairs and the Ministry of Defence, May 27, 1959.

230. Ibid.

231. TNA FCO 141/5662: Letter from C.M. Johnston to the minister for legal affairs, June 3, 1959.

232. TNA FCO 141/5653: Ministry of Defence minute of a meeting held at Government House, December 1, 1958.

233. TNA FCO 141/5653: Directive from the Permanent Secretary to the District Officer i/c Settlement Camps, Hola, D.A. Marsden.

234. TNA FCO 141/5662: The medical register at the hospital recorded that Mutai Theuri, Mbuthia Thairu, Ndeqwa Gacheo, and Mwema Kinuthia were: “Beaten by squad for refusing duty.” This incident occurred toward the end of August 1958.

235. TNA FCO 141/5658: “Discipline – Hola Closed Camp,” letter from J.H. Lewis, Commissioner of Prisons to Officer in Charge at Hola, February 5, 1959.

236. TNA FCO 141/5658: Situation report from Hola camp to the commissioner of prisons, February 13, 1959.

237. TNA FCO 141/5658: Notably, the work scheme manager, Mr. Filgate, “asked to be dissociated entirely” from Cowan's plan; situation report from Hola camp to the commissioner of prisons, February 13, 1959.

238. TNA FCO 141/5658: “The Cowan Plan,” February 11, 1959.

239. Ibid.

240. Ibid.

241. TNA FCO 141/5658: Note from John Lewis, Commissioner of Prisons, to the Minister of Defence, February 17, 1959.

242. Elkins, Imperial Reckoning, 347.

243. TNA CAB 129/97 C92: Memorandum from the Colonial Secretary to the Cabinet, June 2, 1959, para. 13.

244. TNA CAB 128/33/CC32: Cabinet minutes, June 20, 1959.

245. KNA, MSS, 115/51: Press Office, handout number 142, “Death of 10 Detainees at Hola,” March 4, 1959.

246. TNA CAB 129/97 C92: Memorandum from the Colonial Secretary to the Cabinet, June 2, 1959, para. 15.

247. Ibid., para. 14.

248. “Section 18 of the Prisons Ordinance authorises the use of weapons, where necessary, by prison officers against detainees escaping or attempting to escape, engaged in a combined outbreak or using violence to any prison officer or other person. Prison Standing Orders forbid the striking by prison officers of persons in custody save to the extent necessary in defence or to overcome violence or resistance to escort. The Emergency (Detained Persons) Regulations, 1954, prescribe the circumstances and manner in which corporal punishment may be applied to detainees for offences against discipline,” Secret memorandum detailing the attorney-general's reasons for deciding not to prosecute, TNA CAB 129/97 C92, annex I, para. 9.

249. Secret memorandum detailing the attorney-general's reasons for deciding not to prosecute, TNA CAB 129/97 C92, annex I.

250. TNA CAB 128/33/CC32.

251. Walter Coutts was a district commissioner and deputy to Sullivan, the Camp Commandant. Hansard, House of Commons, vol. 610, col. 181, July 27, 1959.

252. Ibid., col. 216.

253. Ibid., col. 220.

254. Ibid., col. 237.

255. Ibid., col. 222.

256. Elkins, Imperial Reckoning, 353.

257. Ibid., 349. See also, Klose, Human Rights in the Shadow of Colonial Violence, 182.

258. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], witness statement of David Anderson.

259. Anderson, Histories of the Hanged, 298–99; Elkins, Imperial Reckoning, 276.

260. Anderson, Histories of the Hanged, 298.

261. Ibid., 301.

262. Ibid., 302.

263. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], appendix C, para. (i).

264. Two European officers committed perjury and one gave a false statement to the court, Anderson, Histories of the Hanged, 303.

265. Criminal Case No. 240 of 1954 of HM Supreme Court of Kenya at Nyeri.

266. Ibid., 8.

267. Ibid.

268. Ibid.

269. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], appendix C, para (i).

270. Anderson, “Histories of the Hanged,” 306.

271. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], witness statement of David Anderson, s. 16.

272. Ibid.

273. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], appendix C, para (j).

274. Anderson, Histories of the Hanged, 300.

275. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], appendix C, para (j).

276. This case was the attempted prosecution of Home Guard Chief Mundia, Klose, Human Rights in the Shadow of Colonial Violence, 179–80.

277. RH, Mss. Afr. s. 486, Sir Arthur Young, papers, box 5, file 1, Arthur Young, “Introduction to Sir Arthur Young,” n.d., 14.

278. Bennett, Fighting the Mau Mau, 27.

279. Anderson, Histories of the Hanged, 308.

280. Elkins, Imperial Reckoning, 280.

281. Mallinder Louise, “Can Amnesties and International Justice Be Reconciled?” The International Journal of Transitional Justice 1 (2007): 210, 213. Mallinder recommends prosecuting the most guilty perpetrators of the worst atrocities, whereas conditional amnesties for lower level offenders may be commensurate with international law, treaty, and custom.

282. Alfred Venn Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund: Indianapolis, 1982), 145.

283. Alfred Venn Dicey, England's Case Against Home Rule, 3rd ed. (London: John Murray, 1887).

284. Criminal Appeals 988 and 989 of 1954 (from Emergency Assize Criminal Case No. 584 of 1954 of HM Supreme Court of Kenya at Nairobi), KNA: MLA 1/1098. See witness statement of David Anderson for a list of relevant cases.

285. Criminal Appeal No.818 of 1954 of Criminal Case No.289 of 1954 (Nyeri).

286. Criminal Appeals 549, 550, 551, and 552 of 1954 (from Emergency Assize Criminal Case No. 330 of 1954 of HM Supreme Court of Kenya at Nairobi) KNA: MLA 1/905.

287. Anderson, Histories of the Hanged, 310, 311; Elkins, Imperial Reckoning, 278, 282–84.

288. A commandant of Mara River detention camp, L.W. Lemon, was charged with causing actual bodily harm, but he was convicted of the lesser offence, common assault, and fined sh.500. Jasiel Njau, an African rehabilitation officer in the Gathigiriri Works Camp, was acquitted of murdering a detainee in January 1957, but convicted and sentenced to 12 months imprisonment for manslaughter. The attorney-general decided not to prosecute the senior European officers associated with this case, although they were subject to disciplinary charges. In October 1957, Mr C.R. Harrison and two of the European officers were acquitted of the charge of causing actual bodily harm, when using force to extract labor from detainees. And finally, another case of the unlawful killing of a detainee during interrogation in the Gathigiriri camp resulted in the acquittal of two African interrogators on murder charges, with the imposition of a 3 year sentence for manslaughter, whereas the camp supervisor, Mr Daniel Derek Luies, who was absent from the camp at the time of the incident, only received a reprimand. TNA CAB 129/97 C92.

289. There are several other interlocking articles (including articles 2, 7, 8, 9, 10, 11, 12, 13, 19, and 20) that were contravened in Kenya during the emergency.

290. It may now have standing as part of customary international law.

291. Burke, Decolonization and the Evolution of Human Rights, 1.

292. Ibid.

293. Brian Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, New York: Oxford University Press, 2001), 409.

294. Elkins, Imperial Reckoning, 319–321. See also: TNA CO 822/1251: “Dilution Detention Camps,” and Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], appendix B.

295. For more on the International Military Tribunal at Nuremburg and the codification of crimes against humanity, see chapter entitled: “‘Unimaginable Atrocities’: Identifying International Crimes,” in William Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (Oxford: Oxford University Press, 2012), 25–46.

296. The Convention (III) Relative to the Treatment of Prisoners of War, August 12, 1949, which applied to conflict not of an international nature, was only extended to the colonies in 1959. Humanitarian law instruments applicable in the colony before that time were the Hague Conventions and the Geneva Convention of 1929.

297. Klose, Human Rights in the Shadow of Colonial Violence, 194, 234.

298. Ibid.

299. See note 197. TNA CO 822/1420: Regulation 22 denotes that the officer in charge should be satisfied that the work “will assist in bringing the Emergency to an end.”

300. Ibid.

301. TNA CO 822/402: petition detailing conditions in the camps and presented to Dingle Foot MP upon his inspection of various camps in September 1956.

302. Negligence being a common law duty to intervene or stop systematic abuses once that became known, see Ndiku Mutua and Others v The Foreign and Commonwealth Office, 21/07/2011, Summary of Judgment.

303. Ibid.

304. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2012], para. 140.

305. Ibid., para. 38, citing Arnold v CEGB [1988] AC 228 and McDonnell v Congregation of Christian Brothers and others [2004] 1 AC 1101.

306. Ndiku Mutua and Others v The Foreign and Commonwealth Office, Summary of Judgment, para. 2.

307. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 81(a).

308. Ibid., para. 116.

309. Ibid., para. 130.

310. Ibid., para. 154.

311. Ed Bates, The Evolution of the European Convention on Human Rights: From its Inception to the Creation of a Permanent Court of Human Rights (Oxford: Oxford University Press, 2010), 185.

312. Lord Lester of Herne Hill, “UK Acceptance of the Strasbourg Jurisdiction: What Really Went on in Whitehall in 1965,” Public Law (1998): 237.

313. Ibid., 252.

314. Ibid., 253.

315. European Court of Human Rights, Practical Guide on Admissibility Criteria, 47, para. 199.

316. This test criteria is set out in Blečić v. Croatia, (Application no. 59532/00), March 8, 2006, para. 67.

317. Silih v. Slovenia, (Application no. 71463/01), April 9, 2009, paras. 161–63.

318. Yatsenko v Ukraine, (Application no. 75345/01), February 16, 2012, para. 40; Lyubov Efimenko v. Ukraine, (Application no. 75726/01), November 25, 2010, para. 63.

319. Janowiec and Others v Russia, (Applications nos. 55508/07 and 29520/09), April 16, 2012, para. 139.

320. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2012], paras. 142, 147.

321. The Practical Guide on Admissibility Criteria states “not exceeding ten years,” para 212.

322. Ibid., 214.

323. Elkins, Imperial Reckoning, 293.

324. Anderson, Histories of the Hanged, 65–68; 208–209.

325. Ndiku Mutua and Others v The Foreign and Commonwealth Office [2011], para. 1.

326. Esmeir, Juridical Humanity, 93.

327. Klose, Human Rights in the Shadow of Colonial Violence, 236.

328. Hague, “Statement to Parliament on settlement of Mau Mau claims.”

329. Ibid.

330. French, The British Way in Counter-Insurgency. See also Klose, Human Rights in the Shadow of Colonial Violence.

This research was partially funded by the Department of Foreign Affairs’ Andrew Grene scholarship in conflict resolution. The author thanks Dr. Kathleen Cavanaugh, Professor David Anderson, and Dr. Noelle Higgins for invaluable comments on earlier drafts of this article, and is indebted to the beneficial comments provided by Law and History Review's anonymous reviewers. The author is responsible for any remaining errors.

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