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The Prosecution of Rape in Wartime: Evidence from the Mau Mau Rebellion, Kenya 1952–60

  • David M. Anderson and Julianne Weis
Extract

In July 2012, a landmark hearing before the High Court in London found that the British government had a case to answer concerning human rights abuses, including torture and rapes, allegedly perpetrated by British colonialists in Kenya, during the Mau Mau counterinsurgency of the 1950s. Among the four elderly Kenyan claimants in court that day was a Kikuyu woman, Jane Mara, whose testimony related the sexual abuses she had suffered. Jane had been only 15 years of age, in 1954, when she was accused of being a Mau Mau sympathizer, and along with other villagers, she was taken for interrogation. The experience Jane Mara recounted was horrific. Beaten repeatedly by her inquisitors, she was then pinned to the floor by four African guards who held her thighs apart, while another guard forced a glass bottle into her vagina, using the sole of his boot to direct the bottle deeply into her. The pain was excruciating, and Jane realized that the bottle had been heated. When this ordeal came to an end, she was compelled to sit and watch as the three other young women were subjected to the same torture.

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Corresponding author
d.m.anderson@warwick.ac.uk
Footnotes
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The authors thank Aidan Russell, Patrycja Stys, and Anna Shoemaker for assistance with data collection, and Dan Leader, Zoe Marks, Brett Shadle, Huw Bennett, and Jocelyn Alexander for comments and advice.

Footnotes
References
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1. Judgment, Mr Justice McCombe, High Court of Justice (Queens Bench), Case HQ09X02666, Ndiku Mutua et al v The Foreign & Commonwealth Office, October 5, 2012.

2. Summarized from Anderson, David M., “Mau Mau in the High Court and the ‘Lost’ British Empire Archives: Colonial Conspiracy or Bureaucratic Bungle?Journal of Imperial & Commonwealth History 39 (2011), 699716. Jane Mara's ordeal was widely reported in the media; therefore, we have used her name here. For all other cases we have preserved the anonymity of the victim.

3. Otieno, Wambui Waiyaki, Mau Mau's Daughter: A Life History (Boulder: Lynne Rienner Publishers, 1998), 8190.

4. Njama, Karari and Barnett, Donald L., Mau Mau from Within (London: MacGibbon & Kee Ltd, 1966), 128.

5. Thiong'o, Ngugi wa, A Grain of Wheat (London: Heinemann, 1972), 132.

6. Elkins, Caroline, Britain's Gulag: The Brutal End of Empire in Kenya (London: Jonathan Cape, 2005), 220–21, and 226–27 for sexual torture within detention camps and prisons; 244–45, 257, and 269–71 for rape by Kikuyu Home Guard; and 247–48, 252, 254, and 256–57 for rape by other arms of the security services, including the British Army.

7. Banton, Mandy, “Destroy? ‘Migrate’? Conceal? British Strategies for the Disposal of Sensitive Records of Colonial Administrations at Independence,” Journal of Imperial & Commonwealth History 40 (2012), 321–35; and Hampshire, Edward, “‘Apply the Flame More Searingly.’ The Destruction and Migration of the Archives of the British Colonial Administration: A South East Asia Case Study,Journal of Imperial & Commonwealth History 41 (2013), 334–52.

8. These files from the Hanslope Disclosure have now been transferred to The National Archive (hereafter TNA), Kew, and have been released under the category “Migrated Archives,” designated as TNA FCO 141. At no point in these records is a definition of rape offered. All the cases report female victims. The vast majority of cases relate accusations of forced vaginal penetration, with a small number describing the forced insertion of objects into the vagina. In a few cases, the evidence presented does not indicate the precise nature of the assault.

9. Bourke, Joanna, Rape: A History from 1860 to the Present (London: Virago Press, 2007); and Nesta H. Wells, “Sexual Offences as Seen by a Woman Police Surgeon,” British Medical Journal, December 6, 1958, 1404–8, for patterns of offending and prosecution in Manchester between 1927 and 1954.

10. Anderson, David M., Histories of the Hanged: Britain's Dirty War in Kenya and the End of Empire (New York: WW Norton, 2005); and Bennett, Huw, Fighting the Mau Mau: The British Army and Counter-insurgency in the Kenya Emergency (Cambridge: Cambridge University Press, 2012).

11. Blacker, John, “The Demography of Mau Mau: Fertility and Mortality in Kenya in the 1950s –– a Demographers View,” African Affairs 106 (2007), 205–27. The official figures are to be found at Colony & Protectorate of Kenya, The Origins and Growth of Mau Mau: An Historical Survey (Corfield Report) (Nairobi: Government Printer, 1960), appendix H.

12. Anderson, David M., “British Abuse and Torture in Kenya's Counter-Insurgency, 1952–1960,” Small Wars & Insurgencies 23 (2012), 700719.

13. Bennett, Fighting the Mau Mau, 8–29; and Bennett, Huw, “Soldiers in the Court Room: The British Army's Part in the Kenya Emergency Under the Legal Spotlight,” Journal of Imperial & Commonwealth History 39 (2011), 717–30.

14. Anderson, Histories of the Hanged, 85

15. Clayton, Anthony, Counter-insurgency in Kenya, 1952–60 (Nairobi: Transafrica Publishers, 1976), 313, 42–52; and Anderson, Histories of the Hanged, 85.

16. Figures collated from Kenya National Archive, Nairobi (hereafter KNA), MAA/7/761.

17. Branch, Daniel, Defeating Mau Mau, Creating Kenya: Counter-insurgency, Civil War, and Decolonization (Cambridge: Cambridge University Press, 2009), and Branch, Daniel, “The Enemy Within: Loyalists and the War Against Mau Mau in Kenya,” Journal of African History 48 (2007), 291316.

18. TNA FCO 141/6750, correspondence between May 1953 and September 1954.

19. TNA FCO 141/6209, Antony C. Small (District Commissioner, Nairobi) to officer in charge, Nairobi Extra-Provincial District, January 27, 1955, and related correspondence.

20. TNA FCO 141/6205, “Kenya: Mau Mau Unrest—Allegations at Ndithi Women's Camp.”

21. TNA FCO 141/6567, Lt Col Bevan to Cabinet Office, London, December 17, 1954.

22. The committee met biweekly until January 1955, then monthly until March 1958, and then irregularly until November 1959. The papers are in TNA FCO 141/6567, “Kenya: Mau Mau unrest—Complaints Co-ordinating Committee, 1954–55” and TNA FCO 141/6568, “Kenya: Mau Mau Unrest—Complaints Co-ordinating Committee, 1955–59.” For a shorter run of papers, see TNA CO 822/1253, “Complaints Co-ordinating Committee in Kenya 1957–59.” See also Bennett, Fighting the Mau Mau, 123–24.

23. This complaint was lodged in April 1957, emanating from a detainee using the pseudonym Njiri Magothe. The complainant alleged that she had been sexual assaulted by four female prison warders at Kirigiti, who inserted a broken bottle into her vagina causing lacerations. Njiri also experienced a broken collarbone as a consequence of this assault. The deputy director of prosecutions instructed that this injury be investigated, but ignored the sexual assault. No judicial action was ultimately taken in this case, and the investigation was closed on September 2, 1957: TNA FCO 141/5668, minutes of CSCCC, September 1957. Elkins, Britain's Gulag, 206–15, 220–21, quotes extensively from similar letters.

24. These are listed sequentially in the minutes of meetings as cases are reported: see TNA FCO 141/6567 and TNA FCO 141/6568. Aside from the fifty-six cases recorded in the minutes, two other cases for which there is no further evidence are listed in TNA FCO 141/6209, Governor Evelyn Baring to Secretary of State for the Colonies, February 2, 1956.

25. Anderson, David M., “Sexual Threat and Settler Society: Black Perils in Kenya, c.1907–1930,” Journal of Imperial & Commonwealth History 38 (2010), 4774.

26. Laws of Kenya 1948, Penal Code Chapter XV, 218–19. The law was applied in a heavily racialized manner, as Anderson, “Sexual Threat and Settler Society” makes clear.

27. TNA CO 859/636, minute by Abrahams, January 31, 1955; TNA DO 35/7368, “Memorandum on Capital Punishment in High Commission Territories,” October 1958.

28. TNA CO 859/636, “Summary of History,” R. Turrell, January 24, 1955,

29. TNA CO 859/637 “Capital Punishment and Replies to Circulars 1954–56” contains details of the parliamentary question and collated details of the replies from all forty-six colonies, protectorates, and territories.

30. TNA CO 859/636, “Summary of history”; and J.K. Thompson to Fowler, March 10, 1956. See Shadle, Brett, “Rape in the Courts of Gusiiland, Kenya, 1940s–1960s,” African Studies Review 51 (2008), 2750, for a general discussion of the operation of the law in Kenya.

31. Kenya Hansard, Legislative Council Debates, November 3, 1955, cols. 575–77, 618–20; and Shadle, “Rape in the Courts of Gusiiland,” 27–50.

32. The general treatment of rape cases in Kenya reflects the wider tendency toward “administrative justice” in British colonial Africa. See, for example, Morris, Henry F. and Read, James S., Indirect Rule and the Search for Justice (Oxford: Clarendon Press, 1972); and Chanock, Martin, Law, Custom and Social Order: the Colonial Experience in Malawi and Zambia (Cambridge: Cambridge University Press, 1985).

33. TNA FCO 141/5724, “Political Intelligence Report—November 1952, Nairobi District, December 4, 1952”.

34. TNA FCO 141/5733, “Laikipia Special Intelligence Report, March 15, 1953.”

35. Anderson, Histories of the Hanged, 259. For the full text of Erskine's statement, see TNA CO 822/474.

36. The point is made by Bennett, Fighting the Mau Mau, 206, drawing on TNA CO 968/424, War Office to Rogers (Colonial Office), September 12, 1953. (This file was also part of the Hanslope Disclosure.)

37. TNA WO 32/31720, MacLean Court of Inquiry Proceedings, 316.

38. TNA FCO 141/6193, “Kenya; Mau Mau Unrest – Chuka Incident, 1953–1956.” This military response was justified in operational terms, but reflected wider colonial perceptions of African sexuality. For a highly insightful discussion of this, see Shadle, “Rape in the Courts of Gusiiland,” 28–31, and (more broadly) Scully, Pamela, “Rape Race, and Colonial Culture: The Sexual Politics of Identity in the Nineteenth-Century Cape Colony, South Africa,” American Historical Review 100 (1995), esp. 336–39.

39. TNA FCO 141/6567, minutes of meetings of CSCCC, between July 26, 1954 and September 1955.

40. TNA FCO 141/6567, minutes of CSCCC, from September 6 to November 6, 1954.

41. Branche, Raphaëlle, “Des Viols Pendant La Guerre d'Algérie,” Vingtième Siècle. Revue D'histoire 75 (2002), 126.

42. Sorrenson, M.P. Keith, Land Reform in the Kikuyu Country: A Study in Government Policy (Nairobi: Oxford University Press, 1967). Elkins, Britain's Gulag, reports many abuses in the villagization program. See also Branch, Defeating Mau Mau, 107–16.

43. KNA DC/EBU/9/1, Greet Sluiter, “A Study of Kabare Village in the Embu District,” May 1956.

44. Branch, Defeating Mau Mau, 109–10.

45. KNA DC/KBU/2/1, DO Gatundu, “Gatundu District Handing Over Report,” September 6, 1954, 11.

46. TNA FCO 141/6207, K.P. Hadingham (Asst. Commissioner of Police, Nyeri) to Provincial Commissioner, Central Province, December 14, 1954.

47. Colony & Protectorate of Kenya, History of the Loyalists (Nairobi: Government Printer, 1961).

48. Anderson, “British Abuse and Torture,” 714–18; and Bennett, Fighting the Mau Mau, 210–11.

49. See, for examples, TNA FCO 141/6510, “Kenya; Disciplinary Action—Mr. H.W. Richmond, DO’; and TNA FCO 141/6209, “Kenya: Complaints Against Security Forces.”

50. TNA FCO 141/6200, “Kenya: Mau Mau Unrest—Offer of Amnesty, 1955–56,” and TNA FCO 141/5684, “Kenya: Mau Mau Unrest—Offer of Amnesty, 1955.”

51. Branch, Defeating Mau Mau, 115–16.

52. TNA FCO 141/6567 and TNA FCO 141/6568.

53. “Passive wing” as the term used to denote noncombatant supporters of Mau Mau within the population of the Kikuyu Reserves of Central Province.

54. For the most infamous example, at Ruthagathi, see Anderson, Histories of the Hanged, 297–306.

55. TNA FCO 141/6174, Griffith-Jones (Solicitor General) to K.M. Cowan (Ag Chief Native Commissioner), December 15, 1953.

56. Turshen, Meredith, “The Political Economy of Rape: An Analysis of Systematic Rape and Sexual Abuse of Women During Armed Conflict in Africa,” in Victims, Perpetrators or Actors? Gender, Armed Conflict and Political Violence, ed. Moser, Caroline O.N. and Clark, Fiona C. (London: Zed Books, 2001), 5568.

57. Shadle, “Rape in the Courts of Gusiiland.”

58. Kanogo, Tabitha, African Womanhood in Colonial Kenya, 1900–1950 (Oxford; James Currey, 2005), 5564.

59. Kanogo, African Womanhood, 55.

60. Robertson, Claire, Trouble Showed the Way: Women, Men and Trade in the Nairobi Area, 1890–1990 (Bloomington: Indiana University Press, 1997).

61. Throup, David, “Crime, Politics and the Police in Colonial Kenya, 1939–63,” in Policing and Decolonisation: Nationalism, Politics and the Police, 1917–65, ed. Anderson, David M. and Killingray, David (Manchester: Manchester University Press, 1992), 141.

62. Baker, Stephen J. and Muller, William A., Report of the Kenya Police Commission, 1953 (Nairobi: Government Printer, 1953), 67.

63. Campanaro, Jocelyn, “Women, War and International Law: The Historical Treatment of Gender-Based War Crimes,” Georgetown Law Journal 89 (2000), 2557–79, and Osiel, Mark, Obeying Orders: Atrocity, Military Discipline, and the Laws of War (Edison: Transaction Publishers, 1999). See also, Mitchell, Neil, Agents of Atrocity: Leaders, Followers, and the Violations of Human Rights during Civil War (New York: Palgrave Macmillan, 2004); and Green, A. Hoover, “Statistical Evidence of Sexual Violence in International Court Settings,” in Understanding and Proving International Sex Crimes, ed. Bergsmo, Morten, Skre, Alf Butenschon, and Wood, Elisabeth J. (Oslo: Torkel Opsahl Academic Epublisher, 2012), 294314.

64. Salzman, Todd A., “Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical Responses to Rape Victims in the Former Yugoslavia,” Human Rights Quarterly 20 (1998), 348–78; Watch, Human Rights, Bosnia–Hercegovinia, “A Closed, Dark Place”: Past and Present Human Rights Abuses (New York: Human Rights Watch, 1998); and Allen, Beverly, Rape Warfare: The Hidden Genocide in Bosnia–Herzegovinia and Croatia (Minneapolis: University of Minnesota Press, 1996).

65. Watch, Human Rights, Shattered Lives: Sexual Violence during the Rwanda Genocide and its Aftermath (New York: Human Rights Watch, 1996); Watch, Human Rights, Soldiers Who Rape, Commanders Who Condone: Sexual Violence and Military Reform in the Democratic Republic of Congo (New York: Human Rights Watch, 2009); Baaz, Maria and Stern, Maria, The Complexity of Violence: a Critical Analysis of Sexual Violence in the Democratic Republic of the Congo (Uppsala: Nordic Africa Institute, 2010); and Bijleveld, Catrien, Morssinkhof, Aafke, and Smeulers, Alette, “Counting the Countless: Rape Victimization During the Rwanda Genocide,” International Criminal Justice Review 19 (2009), 208–24. Sierra Leone has also become an important case––see Marks, Zoe, “Sexual Violence in the Sierra Leone Civil War: ‘Virgination’, Rape and Marriage,” African Affairs 113 (2014), 6787; and Dara K. Cohen, “Explaining Sexual Violence During Civil War” (PhD diss., Stanford University, 2010).

66. Campanaro, “Women, War, and International Law,” 2563. Chang, Iris, The Rape of Nanking: The Forgotten Holocaust of World War II (New York: Penguin, 1997); and Parker, Karen and Chew, Jennifer F, “Compensation for Japans' World War II War-Rape Victims,” Hastings International and Comparative Law Review 17 (1993), 497549, discuss the delay in recognition for these victims. On Japanese institutionalized prostitution, see Yoshimi, Yoshiaki, Comfort Women, expanded 2nd ed. (New York: Columbia University Press, 2002); and Hicks, George L., The Comfort Women: Japan's Brutal Regime of Enforced Prostitution in the Second World War (New York: WW Norton, 1997).

67. Nebesar, Darren Anne, “Gender–Based Violence as a Weapon of War,” University of California Davis Journal of International Law and Policy 4 (1998), 160.

68. Enloe, Cynthia, Bananas, Beaches and Bases: Making Feminist Sense of International Politics (London: Pandora, 1989).

69. Enloe, Cynthia, Maneuvers: The International Politics of Militarizing Women's Lives (London: University of California Press, 2000).

70. Brownmiller, Susan, Against Our Will: Men, Women and Rape (New York: Simon & Schuster, 1975), 14. For the deeper complexities of the Bangladeshi case, see Mookherjee, Nayanika, “Denunciatory Practices and the Constitutive Role of Collaboration in the Bangladesh War,” in Traitors: Suspicion, Intimacy and the Ethics of State-Building, ed. Kelly, Tobias and Thiranagama, Sharika (Philadelphia: University of Pennsylvania Press: 2009), 4867.

71. “Germany: Crackdowns,” Time XLVI, September 17, 1945, quoted in Richard Drayton, “An Ethical Blank Cheque,” The Guardian, May 9, 2005.

72. Weaver, Gina Marie, Ideologies of Forgetting: Rape in the Vietnam War (Albany: State University of New York Press, 2010).

73. Weaver, Ideologies of Forgetting, quotes at xii, xiv, and 5. For the Winter Soldier Investigation testimony, see http://www3.iath.virginia.edu/sixties/HTML_docs/Resources/Primary/Winter_Soldier/WS_entry.htm1 (April 4, 2013).

74. Nick Turse, “Rape was rampant during the Vietnam war. Why doesn't US history remember this?” Mother Jones, March 19, 2013, http://www.motherjones.com (March 21, 2013). See also his revisionist history, Kill Anything That Moves: The Real American War in Vietnam (New York; Metropolitan Books, 2013).

75. For an excellent introduction to such sources for World War II in Europe, see Burds, Jeffrey, “Sexual Violence in Europe in World War II, 1939–1945,” Politics & Society 37 (2009), 3573.

76. “Introduction,” in Weaver, Ideologies of Forgetting.

77. Beck, Birgit, Wehrmacht und sexuelle Gewalt: Sexualverbrechen vor deutschen Militargerichten 1939–1945 (Paderborn: Schoningh, 2004); and Beck, Birgit, “Rape: the Military Trials of Sexual Crimes Committed by Soldiers in the Wehrmacht, 1939–44,” in Home/Front: The Military, War and Gender in Twentieth Century Germany, ed. Hagemann, Karen and Schuler-Springorum, Stefanie (New York and Oxford: Berg, 2002).

78. Naimark, Norman, The Russians in Germany: A History of the Soviet Zone of Occupation, 1945–1949 (Cambridge, MA: Belknap Press, 1995); and Merridale, Catherine, Ivan's War: Life and Death in the Red Army, 1939–1945 (New York: Metropolitan Books, 2006). German sources are extensively used by Wendy Jo Gerjejanssen, “Victims, Heroes, Survivors: Sexual Violence on the Eastern Front During World War II” (PhD diss., University of Minnesota, 2004).

79. Lilly, J. Robert, Taken By Force: Rape and American GIs in Europe during World War II (New York: Palgrave Macmillan, 2007). See also: Grossmann, Atina, “A Question of Silence: The Rape of German Women by Occupation Soldiers,” in West Germany Under Reconstruction: Politics, Society and Culture in the Adenauer Era, ed. Moeller, Robert (Ann Arbor: University of Michigan Press, 1997), 3352; and Biddiscombe, Perry, “Dangerous Liaisons: The Anti-Fraternization Movement in the US Occupied Zones of Germany and Austria, 1945–48,” Journal of Social History 34 (2001), 611–47.

80. Beck, Birgit, “Sexual Violence and its Prosecution: Courts Martial of the Wehrmacht,” in A World at Total War: Global Conflict and the Politics of Destruction, 1937–1945, ed. Clickering, Roger (Cambridge: Cambridge University Press, 2006); and Szobar, Patricia, “Telling Sexual Stories in the Nazi Courts of Law: Race Defilement in Germany, 1933–1945,” Journal of the History of Sexuality 11 (2002), 131–63.

81. Lilly, Taken by Force, 91–94, 153–64.

82. For comparative studies of race and prosecution in the context of empire, see Kolsky, Elizabeth, Colonial Justice in British India (Cambridge; Cambridge University Press, 2010); and, Weiner, Martin J., An Empire on Trial: Race, Murder and Justice Under British Rule, 1870–1935 (Cambridge: Cambridge University Press, 2007).

83. The best accounts of this remain McClintock, Anne, Imperial Leather: Race, Gender and Sexuality in the Imperial Contest (New York: Routledge, 1995); and Stoler, Ann, Race and the Education of Desire: Foucault's History of Sexuality and the Colonial Order of Things (Durham, NC: Duke University Press, 1995).

84. Shadle, “Rape in the Courts of Gusiiland,” 33.

85. KNA, Jud 4/114, Acting DPP to Registrar, Supreme Court, 2 March 1956; Phillips, Arthur, Report on Native Tribunals (Government Printer: Nairobi, 1944), 266. For discussion, see Shadle, “Rape in the Courts of Gusiiland,” 33.

86. Branche, “Des Viols Pendant,” 123–32.

87. Ibid., 126–27; and Martin, Jean-Clement, “Violences sexuelles, etude des archives, pratiques del'histoire,” Annales HSS 3 (1996), 643–61.

The authors thank Aidan Russell, Patrycja Stys, and Anna Shoemaker for assistance with data collection, and Dan Leader, Zoe Marks, Brett Shadle, Huw Bennett, and Jocelyn Alexander for comments and advice.

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