British Settlement Act 1887

In 1920, the East African Protectorate was annexed by the Kenya (Annexation) Order in Council (June 11, 1920), under Section 2 of the British Settlement Act 1887,Footnote ⁷⁵ to create the colony of Kenya.Footnote ⁷⁶ The British Settlement Act further enabled the Crown by Letters Patent or a similar instrument “to delegate to any three or more persons within the settlement” the powers conferred by Parliament.Footnote ⁷⁷ A Letters Patent (1920) fleshed out details of the new colony's governmental institutions.Footnote ⁷⁸ Article 1 set out the Office of the Governor General, whereas Article 3 conferred powers on the Governor General's Office, provided these were not repugnant to other provisions of the Letters Patent. Lawmaking powers passed to the Legislative Council; provisions and regulations were to correspond to the laws of England and local lawmaking powers were delegated such as were “necessary for the peace, order, and good government of the Colony.”Footnote ⁷⁹ The Governor had the power to veto legislation drafted by the Legislative Council, and a subsequent document affirmed the status of the governor as the “single and supreme authority responsible to, and representative of, Her Majesty,” and, therefore, entitled to the aid and assistance of military and civilian servants within the Colony.Footnote ⁸⁰ It was through this office that emergency powers, such as executive detention and warrantless arrest, were realized.

Emergency Laws and Detention Ordinances

Following an upsurge in violence against settler farmers and the assassination of the Paramount Chief for Central Province, Chief Waruhiu, on October 7, 1952,Footnote ⁸¹ the Governor of Kenya, Sir Evelyn Baring, declared a state of emergency in the territory on October 20, 1952, which lasted until January 12, 1960.Footnote ⁸² It is notable that the wartime Emergency Powers Order-in-Council 1939 was invoked,Footnote ⁸³ which provided the governor with complete discretion to introduce any regulation he thought “necessary or expedient for securing the public safety, the defence of the territory, the maintenance of public order and the suppression of mutiny, rebellion and riot, and for maintaining supplies and services essential to the life of the community.”Footnote ⁸⁴ Notwithstanding these general powers, 6(2)(a) of the order specified that the regulations could “make provision for the detention of persons and the deportation and exclusion of persons from the territory.”Footnote ⁸⁵ It was on this authority that the governor passed a number of detention ordinances during the 1950s, providing the legal basis for the incarceration of Mau Mau suspects without trial.Footnote ⁸⁶ According to a Colonial Office memorandum, “the Governor may make a detention order against any person over whom he is satisfied that it is necessary to exercise control for the purpose of maintaining public order.”Footnote ⁸⁷ Detention without trial became a cornerstone of counterinsurgency operations in Kenya and enemy suspects were held in facilities ranging from detention camps to Home Guard stations, screening centers, transit camps, and makeshift units on white settler farms.Footnote ⁸⁸

As it turns out, detention regulations were ratified on the same day that the emergency was proclaimed. Section 2(1) of the Emergency Regulations 1952 read “[w]henever the Governor is satisfied that, for the purpose of maintaining public order, it is necessary to exercise control over any person, the Governor may make an order (hereinafter called a detention order) against any such person directing that he be detained, and thereupon such person shall be arrested and detained.”Footnote ⁸⁹ Operation Jock Scott was launched in Nairobi the following day, during which 180 alleged Mau Mau leaders were arrested, including the moderate politician, Jomo Kenyatta, who was a central figure in the Kenya African Union.Footnote ⁹⁰ Kenyatta disavowed Mau Mau violence, but was sentenced to 7 years' imprisonment, after what was considered a highly politicized trial and he “thus became a martyr of the movement.”Footnote ⁹¹ Operation Anvil, launched on April 16, 1954,Footnote ⁹² gave rise to a new wave of arrests, and by December 1954, 71,346 Mau Mau suspects were being detained in camps across Kenya.Footnote ⁹³ In Kenya and in Britain, the detention camps were promoted as places of rehabilitation, so as to relieve the Kikuyu of their Mau Mau “psychopathology.”Footnote ⁹⁴ Essentially, however, the camps were sites of intelligence gathering underpinned by abusive methods, sites of cheap or free labor, and locations where sovereign power atomized communities, families, and villages in the production of dehumanized individuals or to borrow Giorgio Agamben's phrase, homo sacer, an allegorical figure from Roman history who could be killed without the commission of homicide.Footnote ⁹⁵ Emergency codes and ordinances merely gave the violent architecture a façade of legality.

In her study on the history of confinement in Africa, Bernault argues that the colonial penitentiary merely supplemented the “public violence” endemic to African colonial societies.Footnote ⁹⁶ Corporal punishment as a penal sanction was abolished in England and Wales in 1948, and shortly afterwards, the Colonial Secretary, James Griffiths, announced that the colonies should follow suit.Footnote ⁹⁷ However, “in the 1950s, sentences of corporal punishment increased in […] Kenya.”Footnote ⁹⁸ A detailed punishment regime prescribed by detention regulations was applied within the Kenyan camps. Minor offenses were punishable by one or more of the following: solitary confinement and reduced diet, removal of privileges, and reprimand.Footnote ⁹⁹ A similar punishment regime could be invoked for major offenses, such as mutiny, assault on a prison worker, or aggravated assault on another detainee, and these could also attract corporal punishment. Regulation 17 of the Emergency (Detained Persons) Regulations 1954 stipulated that corporal punishment should not exceed twelve strokes and that the officer-in-charge of the camp was to be present while the punishment was being executed.Footnote ¹⁰⁰ In their edited volume, Discipline and the Other Body, Anupama Rao and Steven Pierce argue that colonial “corporeal violence,” such as flogging, bodily violence and torture, was applied to individuals or “bodies” increasingly deemed irrational, even as they “simultaneously emerged as […] targets of humanitarian reform.”Footnote ¹⁰¹ This pattern was evident during the Kenyan Emergency, whereby the use of corporal punishment proliferated with the introduction of Mau Mau detainees into what Daniel Branch terms the “carceral archipelago;”Footnote ¹⁰² however, it was conversely underpinned by Christian concern for these damaged subjects. In particular, an experiment was launched at Athi River Rehabilitation Camp by the Moral Rearmament Army (MRA), which offered “Christian and democratic alternatives” to the Mau Mau “disease of the mind,” with the promise of curing “thousands of KEM [Kikuyu] now infected” and demolishing “their present faith” to substitute it with “a superior one.”Footnote ¹⁰³

Substantively, there were two means through which detainees could challenge the basis of detention. First, every detainee had the right to make a representation in writing to the governor in respect of his or her detention order.Footnote ¹⁰⁴ As the population was largely illiterate, this made access to justice difficult, and it is unclear from the surviving records how many detention orders were revoked as a result of these petitions. A three person “Advisory Committee on Detainees” chaired by Justice Charles Percy. Connell was established in 1953 to review detainee appeals.Footnote ¹⁰⁵ It was the chairman's duty to “inform the objector of the grounds on which the order [had] been made against him and to furnish him with such particulars as are, in the opinion of the chairman, sufficient to enable him to present his case.”Footnote ¹⁰⁶ Detainees were not entitled to legal representation before the Committee, and only received a summary of the charges in advance, with more detail being provided during the oral hearing. As such, the Advisory Committee was not a judicial fact-finding body, but had a mandate to assess the risk that a detainee posed to public security if released. Caroline Elkins maintains that fewer than 250 appellants secured their freedom through this procedure, but a letter dated January 4, 1960, from the Colonial Secretary Iain Macleod to Dingle Foot, MP outlines the number of appeals made to the Advisory Committee during the emergency and out of 2,604 submissions, 1,088 were successful, representing a 41% success rate.Footnote ¹⁰⁷ Detainees were not immediately released following the Advisory Committee's recommendations, but passed up through the “pipeline” to “open camps” for eventual reintegration into the community.Footnote ¹⁰⁸ Although the recommendations were not binding upon the governor, in a letter to the Secretary of State for the Colonies, Governor Baring asserted that he had never overruled a decision made by the Committee.Footnote ¹⁰⁹

Screening

Screening was a procedure organized by the district administration, working with the British army, the Kenyan police reserves, loyalist chiefs, and the Special Branch, through which entire villages were rounded up into cordoned off enclosures and “screened;” in other words, questioned by a screening team (usually the local police), who used the information for a variety of purposes, including to arrest the “interrogatee.”Footnote ¹²⁸ The common denominator across permutations of “screening” was “the extraction of information from suspects.”Footnote ¹²⁹ As such, screening was founded on the assumption that “everyone was guilty until proved innocent.”Footnote ¹³⁰ To that end, startlingly high arrest rates were achieved by some screening teams; for example, 87% of 3,800 suspects screened in Nanyuki were subsequently arrested.Footnote ¹³¹ In mid-1954, a massive screening operation dubbed “Operation Rat Catcher” was launched in Nairobi, which resulted in 17,000 individuals being screened.Footnote ¹³² Screening also formed an important cornerstone of the confessional system that operated within the detention camps. As mentioned, it was imperative for detainees to make full confessions in order to progress through the rehabilitative “pipeline” that buttressed the network of camps.

Klose notes that British counterinsurgency techniques of this period depended on “systematic mass torture to extract information about the covert operation of the enemy,” and that all available means were operationalised in the “battle for information.”Footnote ¹³³ Klose highlights some of the methods of violence utilized during screening and interrogation in Kenya.Footnote ¹³⁴ The death of Kabebe Macharia on September 15, 1958 occurred as a consequence of an “extremely severe” beating at the hands of two Embu screeners.Footnote ¹³⁵ Following Macharia's interrogation, he was removed to the camp dispensary where he died later that evening. A postmortem revealed the cause of death, and the two screeners were subsequently arrested and charged with murder. Ahead of the trial, the governor conceded that “it seems clear that brutality was used” against Macharia.Footnote ¹³⁶ It was, therefore, important that rehabilitation staff were sent the message that government “will not tolerate improper methods and where these occur the most rigorous action will be taken to punish offenders.”Footnote ¹³⁷ No European officer was present during the screening, and transcripts of the disciplinary proceedings suggested that it was “uncivilized African assistants” who were solely responsible for the murder.Footnote ¹³⁸ The two accused were charged with murder, but found guilty of manslaughter and sentenced to 3 years' imprisonment.Footnote ¹³⁹ By contrast, and indicative of the racialization of justice, in 1953, two European officers responsible for the death of Elijah Gideon Njeru “were aquitted of manslaughter and only fined fifty and one hundred pounds, respectively, for battery.”Footnote ¹⁴⁰

A judgment from 1954 noted with concern that there was evidence that the defendants had been subjected to torture during screening “[f]rom this case and others that have come to our notice it seems that it may be a common practice when a person is arrested in the commission of a terrorist offence, or on suspicion of such offence, for the police to hand him over to the custody of one of these teams where, if the accounts given are true, he is subjected to a ‘softening up’ process, with the object of obtaining information from him.”Footnote ¹⁴¹ In short, the judge disclaimed confessions extracted by “unlawful violence,” and although several branches of the colonial administration denied responsibility for screening teams, the court found that “such methods are the negation of the rule of law which it is the duty of courts to uphold, and when instances come before the courts of allegations that prisoners have been subjected to unlawful criminal violence, it is the duty of such courts to insist on the fullest enquiry with a view to their verification or refutation.”Footnote ¹⁴²

Klose highlights the exemplary prosecution and conviction of a British army captain, Gerald Griffiths, who offered incentives to his soldiers for killing Mau Mau, and had “verifiably tortured then executed prisoners,” however, as Klose observes, brutality during interrogation and detention continued unabated.Footnote ¹⁴³ In response to persistent allegations, an Inquiry into Screening Camps and Interrogation Centres was launched in 1954. Sir Vincent Glenday, who chaired the inquiry, interpreted his terms of reference narrowly, as signifying the creation of prospective recommendations, rather than a retrospective examination of the allegations that had already come to light. Glenday completely overlooked the violence of screening when he described it as “a process to obtain or extract a confession by intensive interrogation from a multiple of facts and based on a promise of clemency if the confession be judged full and a veiled threat of reprisal if it be not so considered. To avoid any possible misinterpretation of this I should explain that whereas in the beginning considerable and often undesirable pressure was applied in some Camps, to-day it has generally been reduced to what is terms ‘the psychological fear of being arrested and taken to the Camp as a detainee’.”Footnote ¹⁴⁴ Glenday assumed that screening was successful because of efficacious threats and psychological pressure, but even the Commander-in-Chief of the British Army in Kenya, General George Erskine, recognized that it was a violent process, “I am quite certain prisoners were beaten to extract information.”Footnote ¹⁴⁵ Invoking the diseased mind thesis, Glenday reported that “our Screening Camps are now mainly used for redemption or cleansing purposes so that a contaminated person may once again be accepted by his people as clear and ready to assist the Government if called upon to do so.”Footnote ¹⁴⁶ Steering clear of any evidence that testified to the violence of screening, Glenday largely supported the procedure, although he questioned the validity of “re-screening,” which entailed repeated screenings (one detainee could be screened three or four times), while accepting its purported cathartic effects. Screening continued and in a letter to Governor Baring dated November 1954, the Chief of Police, Colonel Arthur Young,Footnote ¹⁴⁷ highlighted the horrors of “some of the so-called Screening Camps which… how present a state of affairs so deplorable that they should be investigated without delay.”Footnote ¹⁴⁸ Young suggested that “elementary principles of justice and humanity” were not being observed in these camps; however, his criticisms were unacknowledged.Footnote ¹⁴⁹

Dilution

“Dilution” was a technique whereby a small number of “hard-core incorrigibles” were housed with cooperating detainees, who were tasked with “convincing” the noncooperating detainees to accept the “rehabilitative” regime of the works camp and to confess their Mau Mau activities.Footnote ¹⁵⁰ In the surviving records, the first reference to its usage is in May 1956, when a rehabilitation officer, Major James Breckenridge, wrote to senior officers at the Gathigiriri camp, drawing attention to an allegation that “Jasiel Njau [a rehabilitation assistant] had been putting detainees in the cells for refusing to confess to their Mau Mau activities and that he had either beaten them himself or instructed Warders to do so.”Footnote ¹⁵¹ Matters came to a head when a detainee, Muchiri Githuma, succumbed to the violence meted out by Njau and a number of “cooperating” detainees on January 25, 1957.Footnote ¹⁵² Initially charged with murder, Njau and the detainees were later convicted of assault causing actual bodily harm,Footnote ¹⁵³ and the event was portrayed as “an isolated incident” stemming from “the excessive and misguided zeal of the Rehabilitation Assistant.”Footnote ¹⁵⁴

Thomas Askwith, the Secretary of Community Development and Rehabilitation, wrote to the Attorney-General in consideration of the Githuma case, calling attention to a previous complaint raised by Major Breckenridge regarding the camp's Community Development Officer, C.G. Hirst, and the officer in charge of Gathigiriri, Commander Rowe.Footnote ¹⁵⁵ Writing to the Colonial Secretary, the Governor indicated that Hirst was directly involved in the Githuma case, as he did not attempt to stop the improper use of force. Hirst admitted that after Githuma “had been revived from unconsciousness,” he forced Githuma to “run up and down pursued by another detainee with a rubber strap shortly before he finally collapsed and died.”Footnote ¹⁵⁶ The Attorney-General advised Governor Baring that no criminal charges could be supported by the evidence against Hirst and Rowe, but that “disciplinary proceedings… are being considered.”Footnote ¹⁵⁷

As a method of dilution, sometimes “a bucket of water [was] thrown at the man,” which acted as “a form of shock treatment,” and had a “most salutary effect.”Footnote ¹⁵⁸ On one occasion, a detainee, Kariuki Muriithi, died from hypothermia following water “shock treatment” during an attempted conversion at Athi River Detention Camp on July 18, 1957.Footnote ¹⁵⁹ The coroner revealed that Muriithi had died from exposure to the cold, and seven detainees were charged with manslaughter. The accused informed the court that they were acting under the orders of the camp commandant and Major James Breckenridge, the Camp Rehabilitation Officer. Breckenridge admitted authorizing detainees to sprinkle water on the detainee's face if he appeared to be falling asleep. The judge deemed the authorization to be unfortunate, but no charges were preferred against the British officers. Although following orders was not a valid defense in law, the judge concluded that it was as a mitigating factor, and in judgment, six of the accused were found guilty and sentenced to 1 month's imprisonment.Footnote ¹⁶⁰

The Mwea Procedure

Writing to the Colonial Secretary on June 25, 1957, Governor Baring commented on the “very hopeful results” that were being achieved from the dilution technique, but noted that in its application on a “small number of very difficult men[…] risks are unavoidable.”Footnote ¹⁶¹ Apart from the Githuma killing, other incidents, such as a riot at Athi River Camp, had slowed down the progression of detainees through the “pipeline,” and to overcome these difficulties an administrative officer, Terry Gavaghan, introduced a modified dilution procedure, known as the “Mwea technique.” By this method, “hard-core” detainees arriving from Manyani camp were brought from the station in batches of twenty, with each group staggered at 15 minute intervals. Cooperating detainees accompanied the new intakes at a ratio of 10 to 1, and all steps “to deal with refractory detainees” were to be taken by staff instead of cooperating detainees. Although some success had been achieved in securing detainee compliance, Baring considered that additional regulatory powers were required. To this end, he explained:

Either the whole procedure crafted by Gavaghan must be abandoned, argued Governor Baring, or “alternatively, we must give him and his staff cover provided they do as they say they are doing.”Footnote ¹⁶³ In consequence, the Attorney-General, Eric Griffith-Jones, drafted a detailed memo outlining the Mwea procedure, and drafted a regulation to cover the violence planned under the scheme.Footnote ¹⁶⁴ Undoubtedly, this legally dubious framework gave the colonial secretary cause for concern.Footnote ¹⁶⁵ A draft memo in the Hanslope files refers to a Ministerial visit to the Mwea camp; the visiting party included the attorney-general, the Minister for African Affairs, the minister for community development, the special commissioner (Carruthers “Monkey” Johnston), the commissioner of prisons, the acting secretary for defence, and the district commissioner of Embu, and the party witnessed at first hand the Mwea intake procedure.Footnote ¹⁶⁶ Gavaghan accompanied the party, explaining the full particulars of the operation. After the new arrivals were hustled off the trucks by European prison and rehabilitation staff and through a barbed wire cul-de-sac catwalk:

Some “defiant” individuals attempted to raise the “Mau Mau moan,” and, therefore, “it was essential to prevent the infection of this ‘moan’ spreading through the camp, and accordingly a resister who started it was promptly put on the ground, a foot placed on his throat and mud stuffed in his mouth. A man whose resistance could not be broken down was in the last resort knocked unconscious.”Footnote ¹⁶⁸ Thereafter, the new intakes were forcibly shorn, and resisters were met with violence, similar to the violence at reception. In addition, when a detainee was asked if he intended to obey the camp regime “if he said ‘no’ or did not answer, he was immediately struck and, if necessary, compelled to obey by the use of force in the manner described above. Out of the total intake the party witnessed that day about a dozen needed minor ‘persuasion’ and 4 or 5 pretty rough treatment.”Footnote ¹⁶⁹

The concept of integrating the technique into the intake procedure was “to compel immediate submission to discipline and compliance with orders, and to do so by a psychological shock treatment which throws off balance and overcomes any disposition towards defiance or resistance.”Footnote ¹⁷⁰ Shock treatment was justified because those “Z” category detainees arriving from Manyani were “particularly ugly customers” according to the attorney-general, and were impervious to “orthodox methods of non-violent persuasion.”Footnote ¹⁷¹ Indeed, he added, they were the type who understood violence, when there was no appreciable response to “gentler treatment.”Footnote ¹⁷² Serious injury was to be avoided, and to this end, the attorney-general explained how violence should be delivered in practice.Footnote ¹⁷³ Placing responsibility for Mwea procedure beatings in the hands of European officers was supposed to mitigate the consequences of dilution. Griffith-Jones was concerned about the impact that the administration of violence would have on the European officers involved, and urged the colonial secretary to support these officers “charged with this most difficult, dangerous and unenviable task.”Footnote ¹⁷⁴ To convey his point, the attorney-general referred to the Prison Rules of England, 1949, and read an implied power to violence in rule 34(1) of the English code, to frame the following draft regulation

Thomas Askwith witnessed the moderated intake procedure on July 11, 1957, which was based on the attorney-general's draft regulation. A number of the procedures were “substantially the same;” however, there were some additional and troubling practices that violated the attorney-general's direction that injurious force should not be used, and Askwith “saw one man lifted up by an Officer to shoulder height and thrown down on the ground on his back three times.”Footnote ¹⁷⁶ Blows to the head were frequent, a practice that was explicitly prohibited in the attorney-general's directive: “one detainee at Mwea resolutely refused to respond in spite of a most drastic beat-up. He was thereupon dragged to the cells where Mr. Gavaghan informed me he would be subjected to third degree methods until he did, in fact, obey all orders given. The measures adopted were to be kept awake all night, having water thrown at him and to be beaten up on a variety of pretexts.”Footnote ¹⁷⁷ It is notable that Askwith's report, warning about the dangers of the Mwea procedure, was written only 6 days before Kariuki Muriithi died in his Gathigiriri cell after being subjected to water “shock treatment.”Footnote ¹⁷⁸ Askwith remained unconvinced of the technique's purported “successes,” questioning whether a state of “cowed submission” could be long-lasting, and adding that “the methods employed are the negation of everything that rehabilitation has stood for so far.”Footnote ¹⁷⁹ Given the number of staff and detainees involved in the procedure, Askwith warned that it might become public knowledge, which would clearly be disagreeable to the British public.Footnote ¹⁸⁰ There is no evidence that Askwith's report ever reached the Colonial Office in Whitehall, as he was quickly and quietly marginalized by the Kenyan administration.Footnote ¹⁸¹ Terry Gavaghan wrote a robust defense of his techniques, contested the substance of Askwith's report, and further accused Askwith of encouraging his “dirty work,” insofar as Askwith allegedly made the following comment, “Don't think I am squeamish at all about this,” during a camp visit.Footnote ¹⁸²

In the meantime, the colonial secretary was reluctant to approve Griffith-Jones's regulation, and the matter triggered great debate among colonial legal advisors in London. Shortly afterwards, Governor Baring discussed the matter with senior legal advisors at the Colonial Offices and signalled the possibility that he would accept an amended version of the Mwea procedure. First, detainees who refused a lawful order, such as the requirement to move from one compound to another, or to change their clothing, could be compelled to do so by means of “overpowering force,” for which regulatory powers were already in existence. Second, committing a major offense, such as defying a lawful order, could attract on the spot corporal punishment (caning not exceeding twelve strokes).Footnote ¹⁸³ Extant summary punishment procedures for dealing with recalcitrant detainees could be invoked.Footnote ¹⁸⁴ When the colonial secretary questioned whether these powers would be sufficient in view of the critical task of maintaining the flow of detainees through the rehabilitation system, the governor responded that whereas the “treatment proposed would not administer the same psychological shock to the detainees,” it was “adequate to be effective.”Footnote ¹⁸⁵ A telegram was duly dispatched to Kenya, and the Acting Governor, Richard Turnbull, circulated instructions for the modified procedure to the commissioner for prisons, the ministry for defence, the Ministry for African Affairs, and the attorney-general, specifying that the use of “beating force” was to be abandoned forthwith, and “overpowering force” used instead.Footnote ¹⁸⁶ Power to confirm corporal punishment was additionally delegated to the assistant commissioner and the deputy commissioner of prisons, one of whom had to be present at each new intake. In this manner, the sentence of corporal punishment could be confirmed on the spot.Footnote ¹⁸⁷ In a sense, modifying the regulatory framework of detainee “corporeal violence” was an experiment with disciplinary techniques and technologies of governance that aimed to maintain colonial power in the camps.

The modified Mwea procedure had the unintended consequence of slowing down the passage of detainees through the pipeline, because the officer in charge had to formally confirm and oversee the execution of corporal punishment on individual detainees. To expedite the process, noncooperating detainees were physically separated from cooperating detainees and punished en masse.Footnote ¹⁸⁸ The governor met with Gavaghan, John Cowan (the senior prison officer in charge of the Mwea camps), and several government ministers at Government House on August 6, 1957, to tease out the finer details of the modified procedure.Footnote ¹⁸⁹ The governor highlighted the following points, “the force to be used should be overpowering force only,” and that “in order to defend the position it was very important that over a period of, say three months, the percentage beaten following orderly room proceedings should not exceed about 10%,” and, finally, that “we should keep up-to-date each month a dossier showing the results obtained with all detainees taken into the Mwea and particularly with those who at the time of intake had been beaten.”Footnote ¹⁹⁰ Cowan affirmed the implementation of the procedure, describing the intake of detainees at Mwea camp “[t]he first batch of 20 arrived at Mwea camp at approximately 12.15pm and immediately offered strong resistance to being shaved and clothed. Considerable overpowering force was necessary in probably 15 cases out of 20 and the final instruction to proceed to the compound was only accepted after frequent and aggressive repetition.”Footnote ¹⁹¹ “Rough methods” were similarly required in dealing with three subsequent batches, but only two men received the official punishment.Footnote ¹⁹² There was a gradual disjunction among some of the safeguards that were supposed to be applied to the modified technique, and the actual implementation in practice. A Special Branch Officer, I.P. Kelloway, noted that detainees who wished to make a confession were immediately screened, whereas “[t]he remainder are asked individually if they have taken an oath. If they deny having taken an oath they are given summary punishment which usually consists of a good beating up. This treatment usually breaks a large proportion. If this treatment does not bear fruit the detainee is taken to the far end of the camp where buckets of stones are waiting. These buckets are placed on the detainee's head and he is made to run around in circles until he agrees to confess the oath.”Footnote ¹⁹³ Kelloway observed that approximately 80% of the new detainees confessed on the day of their arrival, whereas others took a day or thereabouts to comply. He further remarked that “at Thiba Works Camp the treatment usually consists of beating the man with the regulation baton which to date and to my knowledge, has resulted in one person being placed in hospital with broken arms and a leg, and another person suffering a perforated ear-drum. At Gathigiriri one person received injuries but to what extent I have been unable to ascertain as I was not present. Any other injuries that may have been caused have not been brought to my notice.”Footnote ¹⁹⁴ When the provincial commissioner learned of Kelloway's report, he advised against investigating the matter, because “an investigation would have a strong adverse effect on the morale of officers at the Mwea Camps, who, in any event had a most difficult and distasteful job to perform and that the report was untrue or at best greatly exaggerated in certain essentials.”Footnote ¹⁹⁵ In the end, “overwhelming force” was in practice no different from “beating force,” the only difference was semantic; on September 12, 1958, a detainee arriving at Agathi camp from Nyeri Prison died after undergoing the modified Mwea procedure. A postmortem revealed significant external injuries, and the cause of death was recorded as a pulmonary embolism.Footnote ¹⁹⁶

Forced Labor and the Cowan Plan

The United Kingdom was instrumental in garnering support for the 1930 International Labour Organization (ILO) Forced Labour Convention, which had the effect of immediately prohibiting all forms of forced labor for private purposes.Footnote ¹⁹⁷ The primary task of the 1930 Forced Labour Convention was to eliminate the conditions under which individuals were coerced into slavery or slave-like situations.Footnote ¹⁹⁸ Daniel Maul notes that there were loopholes in the Convention, such as with military service, penal servitude following criminal conviction, and service that could be considered as part of the “normal civic obligations of citizens.”Footnote ¹⁹⁹ The following exemption to the prohibition on forced labor found in Article 2(2)(d) of the 1930 Convention was relied on by the British government in rationalizing its forced labor policy: “any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population.”Footnote ²⁰⁰ The limited impact of ILO norms on the colonies has been critiqued by Maul who suggested that separate and less stringent rules applied to the colonies before the Second World War, and further, that “neither the internal power structures of the ILO nor the thinking of its officials permitted the application of the regular canon of norms to the colonies.”Footnote ²⁰¹ Following the war, the self-determination ambitions of colonial states were, in principle, supported by the United States, and, therefore, postwar exploitation of the colonies had to be carefully justified by the United Kingdom.Footnote ²⁰² During a governor's emergency meeting on April 16,1953, a finance official highlighted the twin effect of making detainees work “from the point of view of morale, as well as finance.”Footnote ²⁰³ The Colonial Secretary, Oliver Lyttelton, quickly authorized a regulation that permitted the extraction of labor from detainee suspects held in camps across the colony, powers that were contained in the Emergency (Detained Persons) Regulations 1953.Footnote ²⁰⁴ The ordinance was subsequently modified in an effort to comply with international law, but on the whole, these efforts were cosmetic, and completely disregarded the illegal violence that was used to compel detainees to work. Forced labor became a flashpoint of violence between uncooperative detainees refusing to work and the camp authorities who used “compelling force” to enact the policy. The implementation of the scheme resulted in detainee deaths, most notably the notorious 1959 Hola Massacre, during which 11 detainees were killed. A closer examination of the “migrated archives” reveals several other violent incidents associated with forced labor prior to the events of March 3, 1959.

Serious allegations were promulgated in a detainee petition from Manyani Special Detention Camp, which was addressed to the secretary of state for the colonies, calling on the government to investigate “[t]he many deaths which occurred among the detainees who catered for the digging of the Embakasi Air Field. It is a fact that while the detainees performed the task they suffered malicious and brutish beatings by the warders, and this brought about an average of three “on the spot” deaths per day, during 1953–1954.”Footnote ²⁰⁵ H.F.H. Durant, the officer in charge of Manyani Special Detention Camp, categorically denied the allegations of brutality, which, in his estimation, were a “collection of wild and misleading generalities without support by any concrete evidence” and “gross and unjustified allegations” against European officers.Footnote ²⁰⁶ As it turns out, a 1955 memo by the Ministry of Defence on the “Movement of Detainees from Reception Centres to Works Camps” unequivocally states that certain development projects were “planned on the assumption that free convict labour [would] be available,” and that the Embakasi airport development was one such project,Footnote ²⁰⁷ “[i]n order to keep up the labour force on certain essential projects such as Embakasi airport, it will be necessary in the next few months to transfer convicts from a number of the more remote prisons and prison camps.”Footnote ²⁰⁸ That was to say, ex-convicts, having served their sentences, were issued detention orders and forced to work on these projects for nominal remuneration, “paid from Emergency funds.”Footnote ²⁰⁹ It was estimated that approximately half of the 6,500 Kikuyu prisoners due to be released in 1955 would be served detention orders, and immediately reassigned to these “essential projects.”Footnote ²¹⁰ A letter composed by Mageta Island detainees in November 1956 remarked that “50 detainees were charged of refusing accepting [sic] work at the pay of 8/- per month and were sentenced to 2 years hard labour,” and although the commissioner of prisons contested other allegations contained therein, this specific accusation was ignored.Footnote ²¹¹

There may have been some truth to the charge that detainees who refused to work at Mageta Island were criminalized for disobedience, and, therefore, received additional penal servitude. There was one such reported incident at the camp in June 1956, when detainees refused to work at bush clearing.Footnote ²¹² Up until that point, refusing to work was deemed a minor offense, a violation that could only be punished by a verbal reprimand, reduced diet, denial of privileges, or solitary confinement for up to 7 days. The Kenyan administration sought to redefine disobedience as a major offense, punishable by corporal punishment.Footnote ²¹³ Repeat offences, under Section 23 of the Regulations, could result in “prosecution before a subordinate court and on conviction […] imprisonment for a term not exceeding two years.”Footnote ²¹⁴ Will Mathieson, a senior legal advisor with the Colonial Office, realized that “in effect, therefore, the Governor is asking for authority to employ corporal punishment to break this strike.”Footnote ²¹⁵ He sought counsel from Colonel George Herbert Heaton, a member of the Colonial Office's Advisory Committee on the Treatment of Offenders and a former commissioner of prisons in Kenya, who, although doubtful as to whether the punishment would expedite the forced labor scheme, considered that “discipline must be reasserted and that it would be wrong to withhold the use of this weapon from those in Kenya who have the responsibility for enforcing discipline.”Footnote ²¹⁶ Mathieson accepted this view, and advocated for the “authority to use this weapon.”Footnote ²¹⁷ The next day, the colonial secretary sent Governor Baring a telegram authorizing the creation of the additional major offense;Footnote ²¹⁸ the amending regulation was published on September 4, and on September 10, strikers at Mageta Island were informed of the new powers.Footnote ²¹⁹ Disciplinary action was taken against the detainees who persistently refused to work, and a telegram from Baring to the colonial secretary indicates that fifty Mageta Island detainees who refused to work were to be prosecuted under Regulation 23, corroborating the detainees' complaint mentioned previously.Footnote ²²⁰

The matter did not end there. The Mageta Island petition alluded to a violent incident during which detainees were beaten, “shorts [sic] were fired in one of the camps holding 800 men, and 13 people were wounded.”Footnote ²²¹ By contrast, the official version recounted a story of violent detainees armed with “stones and other materials” attacking a prison party, and in this narrative, Greener guns were only discharged so that the party could withdraw.Footnote ²²² The “belligerent” detainees were deprived of water and food for a number of days, after which point a military squad went into the compound to “disarm” them “[t]his was done and in the course of the operation some 30 to 40 detainees suffered from minor superficial injuries, of whom some 22 had their cuts subsequently stitched by the Medical Officer. At the same time 15 ringleaders were extracted from the compounds and placed in the small cells where disciplinary action under Section 17 of the Emergency (Detained Persons) Regulations, 1954 is to be undertaken.”Footnote ²²³ The commissioner of prisons sanctioned the use of corporal punishment, not only for the “ringleaders,” but also for the remaining 860 detainees.Footnote ²²⁴

A letter written by Mbirua Githua smuggled out of Aguthi camp to a British MP alleged that eighty-seven detainees had been badly beaten upon reception to the camp on October 24, 1958.Footnote ²²⁵ A former officer in charge of the camp wrote a most forthright account of the intake when “some Kikuyu detainees started to boo and taunt those who had submitted confessions to the Screening teams,” and he realized that “something had to be done…”Footnote ²²⁶ and that “they had obviously to be brought under control, and as they would not listen to commands from me or the camp staff I called in the Special Platoon to deal with them. These warders used batons on the more aggressive detainees, and inevitably some were badly bruised. The doctor considered that a few men, (I think, four), should be treated at the camp dispensary.”Footnote ²²⁷ Men who refused to work the following day “received” lights blows with batons, whereas on the 3rd day the “recalcitrants” were put on half rations. The strike lasted until November 22, 1958, when thirteen “non-cooperating detainees” were sent to Karaba camp. Nine of these detainees “confessed” and were returned to Aguthi, where they subsequently retracted their confessions. Permission was granted to cane these nine men; eight of whom were caned on December 16. The officer in charge of the camp admitted certain irregularities as regards the punishment:

The attorney-general instituted a Criminal Investigation Department (CID) probe into the caning because there had been no inquiry prior to sentencing, a regulation cane was not used, and excessive strokes had been delivered.Footnote ²²⁹ However, instead of criminal charges being made against the officer who authorized the use of the “kiboko,” “severe disciplinary action” was instituted by Carruthers “Monkey“ Johnston, the Minister for African Affairs.Footnote ²³⁰ In a sense, defining the action as a “disciplinary violation” sabotaged the CID inquiry, and the criminal investigation was subsequently abandoned.Footnote ²³¹

The violence of the state in enforcing the forced labor policy was laid bare when detainees persistently refused to work at Hola detention camp. In a meeting at Government House, the permanent secretary of the Ministry for African Affairs stated that Hola received “the dregs of the Mau Mau barrel.”Footnote ²³² In receiving these “violent men from Manyani” and “persons unacceptable in the Central Province,” the permanent secretary reminded D.A. Marsden, the district officer in charge of the settlement camps at Hola, that “certain persons are always ready to listen to complaints from detainees, even though the statements made are false and exaggerated. It is essential that there should be no grounds for any legitimate complaint. Prisons rules and detention camp regulations must be followed precisely.”Footnote ²³³ However, in August 1958, a number of detainees were “beaten because they refused duty,” resulting in the hospitalization of four detainees.Footnote ²³⁴ This incident would have been assigned to the annals of historical amnesia, were it not for the killings at the camp later in March 1959.

From the declassified archives, it appears that there were two key factors that led to the creation of the Cowan plan, the forced labor policy implemented at Hola on March 3, 1959. First, the Commissioner of Prisons, John H. Lewis, noted with frustration on February 5, 1959, that there were a number of “apparently able-bodied men” “malingering” about Hola, refusing to work outside the camp.Footnote ²³⁵ A second source of frustration for camp officials was that even the detainees who were working (“out on shamba”) were adopting a “go slow” policy and were not achieving their designated labor targets.Footnote ²³⁶ The Cowan plan would tackle both of these problems; summary punishment, that is on the spot corporal punishment, was the preferred solution for dealing with the “go-slow” policy, but ensuring “absolute obedience from the 66 recalcitrant” detainees refusing to work required a more sophisticated strategy.Footnote ²³⁷ On the selected day “difficult cases” were to be divided into four smaller groups, and each group was to be locked into an A-frame building. A special platoon was to target the first group, enter their compound, and usher them into the catwalk, at which point the officer-in-charge would order the detainees to work on a labor scheme “requiring no tools or implements… it is assumed that the party would obey this order but should they refuse they would be man-handled to the site of work and forced to carry out the task.”Footnote ²³⁸ Each group in turn would be removed “until all were working,”Footnote ²³⁹ and Cowan insisted that “obedience must be maintained by more firmness on the part of the staff,” but that this did not “imply a brutal and harsh regime but a high standard of personal example and insistence always on immediate obedience.”Footnote ²⁴⁰ Not everyone supported Cowan's plan, and less than a week later, the commissioner of prisons wrote to the Kenyan minister of defence, warning that the plan “would mean the use of a certain degree of force in which operation someone might get hurt, or even killed.”Footnote ²⁴¹

The Hola Massacre

Despite the warnings, on March 3, 1959, a group of “hard-core” detainees who persistently refused to work were savagely beaten by warders implementing the Cowan plan at Hola detention camp. Eleven detainees were killed, and dozens more were hospitalized with severe injuries.Footnote ²⁴² A coroner's inquest revealed some of the injuries sustained, such as, “one received a fractured skull… another's brains were damaged, one had a fractured jaw and two had fractured forearms.”Footnote ²⁴³ The first official account to emerge can be seen as a complete whitewash. W.M. Campbell, Assistant Commissioner of the Prison Service, reported that it was “the opinion of all with whom we spoke that the compelling exercise was in no way connected with the cause of death of the detainees,”Footnote ²⁴⁴ and the government issued a press statement claiming that “the deaths occurred after [the detainees] had drunk water from a water cart.”Footnote ²⁴⁵ When W.H. Goudie, the inquest magistrate, revealed that the deaths “were due to shock and haemorrhage due to multiple bruising caused by violence,” the official press release was exposed as false.Footnote ²⁴⁶

Despite the gravity of the case, the magistrate was unable to identify those responsible, and he expressed the view that some of the violence directed at the detainees was justifiable and lawful.Footnote ²⁴⁷ In deciding not to prosecute, the attorney-general relied on similar arguments, citing numerous ordinances and standing orders that permitted the use of force against detainees in limited circumstances.Footnote ²⁴⁸ He argued that unlawful violence could not be established in this case because of the lack of reliable evidence and the failure of witnesses to cooperate with the CID investigation. Blame shifted to the survivors, who were categorized as uncooperative and unreliable, and whose testimony was regarded as “valueless.”Footnote ²⁴⁹ Unsurprisingly, the investigation stalled and the European officers and African subwardens avoided criminal prosecution.

A disciplinary commission, the Conroy Committee, was subsequently established, and it reported that the governor was concerned that “a further formal enquiry might have damaging effects on the morale of the Kenya Prison Service,” and advised that no further judicial action was needed.Footnote ²⁵⁰ The only resulting “sanction” was that the Camp Commandant, G.M. Sullivan, was forced to retire without any loss of gratuity, and the Commissioner of Prisoners, John Lewis, was forced to retire 6 months early, whereas Walter Coutts, Sullivan's deputy, was absolved of any wrongdoing in the matter.Footnote ²⁵¹ Several British MPs argued that responsibility for the events lay with those ranked above Sullivan and Coutts, with the government of Kenya, with Governor Baring, and, ultimately, with the secretary of state for the colonies. The failure of the inquiry to “pin down responsibility all along the chain of command” was criticized by Ronald Robinson, MP, who believed that it was a breach of ministerial responsibility to permit junior officers to shoulder the blame for this atrocity.Footnote ²⁵² Criminal charges were not pursued, he argued, because “quite instinctively, sincerely and genuinely, without even being aware of it, hon. Members opposite do not believe that an African life is as important as a white man's life.”Footnote ²⁵³ This sentiment was echoed by the Conservative MP Enoch Powell, who departed from the Tory party line, and criticized the idea of African standards for Africa or lower standards of justice than those applicable in Britain. Powell argued that it was inappropriate to “pick and choose where and in what parts of the world we shall use this or that kind of standard… We must be consistent with ourselves everywhere. All Government, all influence of man upon man, rests upon opinion. What we can do in Africa, where we still govern and where we no longer govern, depends upon the opinion which is entertained of the way in which this country acts and the way in which Englishmen act. We cannot, we dare not, in Africa of all places, fall below our own highest standards in the acceptance of responsibility.”Footnote ²⁵⁴ Finally, Barbara Castle, a great advocate of detainees' rights in Kenya, recognized that to accept the government's recommendations would result in “one of the gravest miscarriages of justice in British colonial history.”Footnote ²⁵⁵ In the end, the opposition made a tactical error when it failed to submit a motion on the question of holding an independent inquiry into the massacre, and, therefore, no vote was taken after the debate, which allowed the government to evade accountability.Footnote ²⁵⁶ Although an internal review (the Fairn Commission) was established to investigate the procedures along the pipeline, similar to the Glenday Inquiry, it had no mandate to investigate past incidents, but could only make prospective recommendations.Footnote ²⁵⁷

Contemporary Accountability

The case against Muriu Wamai, a Home Guard headman, and his five codefendants, stemmed from the deaths of two Kikuyu farmers who were beaten and tortured at the Ruthagathi Home Post. The two Kikuyu refused to confess Mau Mau allegiance and were taken outside the town and executed.Footnote ²⁶⁰ Initially, Wamai claimed that their deaths occurred as a result of a shootout between Home Guards and Mau Mau insurgents, although evidence given by former detainees indicated that detainees were routinely beaten at the Home Guard post. The European officers compelled to give evidence supported Wamai's account of events.Footnote ²⁶¹ However, on the 3rd day in the witness stand, Wamai dramatically changed his plea and gave a full confession.Footnote ²⁶² The British officers were well aware that the Home Guard post was a “screening center” where torture was institutionalized, and Wamai had been encouraged to cover up the incident by a British District Officer.Footnote ²⁶³ Alterations to the Home Guard post logbook concerning the prisoners were made after the killings. Wamai's confession implicated five British officers and an African chief in the subsequent conspiracy.Footnote ²⁶⁴

Issuing his judgement on December 4, 1954, Justice Cram found Wamai and his codefendants guilty of murder and the judge, a former prisoner of war, was vitriolic about the conduct of European officers in the South Nyeri district.Footnote ²⁶⁵ Unchecked arbitrary powers contributed to a barbaric detention and interrogation system that Justice Cram declared was illegal.Footnote ²⁶⁶ Contrary to the officials' claim that the allegations of murder were part of a Mau Mau plot to discredit loyalist Home Guards, Cram found “the only plots revealed by their evidence [the European officers] is a plot to execute innocent prisoners, and then a plot to defeat the ends of justice, and maintain the barbarous tortures of Ruthagathi… They were a prey [sic] on the countryside…”Footnote ²⁶⁷ Justice Cram recognized that it was a short step from brutalized beatings and torture to “taking life without qualm.”Footnote ²⁶⁸ Governor Baring attempted to suppress publication of the judgment; however, copies were leaked, causing quite a stir in the United Kingdom.Footnote ²⁶⁹ An inquiry resulted, presided over by a conservative judge, Justice Holmes, who concluded that Justice Cram had “grossly exaggerated the problems.”Footnote ²⁷⁰ Many were dissatisfied with the Holmes report, including the president of the East African Court of Appeal, who wrote to Governor Baring to request that the first section of the report, which gave the impression that outstanding issues from the Wamai case had been settled, be withheld.Footnote ²⁷¹ The governor agreed to this proposal, which, according to Anderson, was a “tacit admission that the matters raised by Justice Cram in his judgment in the Ruthagathi case had not in fact been properly investigated by the Kenya administration, despite the establishment of a full judicial inquiry.”Footnote ²⁷²

At every level, the CID experienced obstruction in their attempts to further criminal prosecutions against colonial staff.Footnote ²⁷³ The colonial government's approach was to maintain the detention pipeline and security force morale, even at the expense of justice in individual cases.Footnote ²⁷⁴ Colonel Young sent Governor Baring a series of communications between November and December 1954, highlighting the difficulties he was encountering, but this correspondence was unacknowledged, and in his frustration he resigned his post pointing to “the continuance of the rule of fear rather than that of impartial justice.”Footnote ²⁷⁵ At the center of his predicament were “malpractices committed against Mau Mau suspects” that were “condoned by officers of the Provincial Administration,” and in his resignation letter, which he submitted to Governor Baring, Young stated that the governor himself had attempted to interfere in the prosecution of one of these cases.Footnote ²⁷⁶ Young's letter was not made public and he was forced to tone down the language contained therein. Later, Young recalled how he had sent “an official report to HE [His Excellency] expressing my apprehensions in writing, with the belief that supporting evidence would soon be forthcoming. I also requested that he should take an initiative in administration of action which would indicate his own repugnance of brutality committed by security forces and do what he could to bring this to an end. I received no acknowledgement of this appreciation, far less an answer to it, in spite of a number of reminders.”Footnote ²⁷⁷ On January 18, 1955, the government announced a general amnesty for all violent actions committed by both the security forces and “Mau Mau surrenderers” up until that point.Footnote ²⁷⁸ On paper, the amnesty was accessible to insurgents, however, to avail themselves of it, the rebels had to emerge from hiding and surrender their arms. Overall, it had the effect of preventing CID investigations into security force malpractices from coming to trial.Footnote ²⁷⁹ The amnesty perpetuated the lack of security force accountability, and, according to Elkins, “the blanket pardon left little doubt that the colonial government, including Churchill and his cabinet, who discussed and approved the amnesty, were wholly willing to abandon the enforcement of law and order and to subordinate the basic human rights of Mau Mau adherents in order to maintain the support of the security forces and, ultimately, uphold British colonial rule in Kenya.”Footnote ²⁸⁰ Today, blanket amnesties are inimicable to international law principles, such as the duty to prosecute and punish gross human rights violations and the fulfilment of a right to a remedy.Footnote ²⁸¹ However, at that time, acts of indemnity had historical precedent in England, with the English jurist, Alfred Venn Dicey admitting that although “it is the legalisation of illegally,” the statute is essentially law, and could only be questioned if indemnification pertained to, for example, “reckless cruelty to a political prisoner,” or “the execution of a political prisoner.”Footnote ²⁸² That said, there is a deep ambivalence in Dicey's legal scholarship, whereby his principles of nondiscrimination and equality before the law were largely abandoned in his wholehearted support of Irish coercion laws.Footnote ²⁸³ Therefore, his exceptions to indemnification probably would not have stretched to colonial violence and counterinsurgency.

Up until that point, there were several judgements at the East African Court of Appeal that queried whether the unlawful violence of detention could have continued “without the condonation [sic] of the authority.”Footnote ²⁸⁴ Corruption was pervasive, and the appeals court protested against “the ill treatment of captives.”Footnote ²⁸⁵ Judicial recommendations for security force prosecution were ignored, and the lack of consequences for criminal violence resulted in the police force of Kenya becoming “a law unto itself.”Footnote ²⁸⁶ Convictions were few and far between, and punishment was often perfunctory.Footnote ²⁸⁷ A memorandum prepared by the colonial secretary defending the administration's response to security force violence referred to six cases, none of which resulted in a custodial sentence for the European officers involved.Footnote ²⁸⁸

The foregoing discussion raises the question of whether the detention regime instituted by the British government in the colony of Kenya was permissible under international law. Article 3 of the Universal Declaration of Human Rights (1948) holds that “Everyone has the right to life, liberty and security of person,” whereas Article 5 provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”Footnote ²⁸⁹ Although the Declaration was not a legally binding instrument,Footnote ²⁹⁰ there was unanimity among the diverse member states involved in legislating “on behalf of all peoples and all nations” regarding the importance of human rights norms after the war.Footnote ²⁹¹ Colonized peoples were not represented in these negotiations, although Third World activists, according to Roland Burke, played a more significant role in contributing to the new human rights discourse after decolonization.Footnote ²⁹² Although there was an assumption that the Declaration would apply to all colonies and dependencies,Footnote ²⁹³ “screening,” “dilution,” and the “Mwea procedure” as practised in detention facilities across Kenya were contrary to the spirit of the Declaration.Footnote ²⁹⁴ The emergency in Kenya began shortly after crimes against humanity were first prosecuted by the International Military Tribunal at Nuremberg, and international humanitarian law was already an established body of law.Footnote ²⁹⁵ Mau Mau insurgents would not have met the strict criteria for “irregular forces” set out by customary humanitarian law, which would have allowed them to benefit from prisoner of war protections.Footnote ²⁹⁶ Although jurisdiction was lacking, humanitarian law offered states a powerful normative framework for upholding standards in the treatment of detainees and prisoners, especially when considering that Nazi concentration camps were liberated by British and American soldiers. These ideals, alongside other obligations of international law that extended to the colony, should have elicited moral abhorrence at what was occurring in the Kenyan camps. However in the 1950s, Britain and other colonial states took a minimalistic approach to international law obligations vis-à-vis the rights of their colonial subjects, and Klose regards the colonial response to demands for national independence as a combination of measures incorporating rule by emergency laws, an “emphasis on the new military doctrine of antisubversive warfare,” and the “refusal to recognize the validity of international humanitarian law,” and that these factors underpinned “the unleashing of colonial violence.”Footnote ²⁹⁷

The United Kingdom government signed the 1930 ILO Forced Labour Convention on June 3, 1931 and it was accepted into Kenya without modification. However, on February 17, 1954 the British Cabinet approved a forced labor policy for the Kenyan detention camps in the following terms “[…] the regulation authorising compulsory employment should contain words to the effect that any person detained in a special detention camp might be usefully employed in work which, in the opinion of the officer in charge, would assist in bringing the Emergency to an end. He [the Colonial Secretary] proposed to instruct the Governor to make the regulation in this form. In these circumstances it would probably be unnecessary to pay market rates of wages for work undertaken by prisoners in the detention camps.”Footnote ²⁹⁸ Therefore, Regulation 22 of the Emergency (Detained Persons) Ordinance was worded so as to bring it within the meaning of the 2(2)(d) emergency clause.Footnote ²⁹⁹ Notwithstanding these efforts, the ILO Committee of Experts criticized the government's use of forced labor in Kenya

Descriptions of coerced labor depicted in detainees' testimonies are entirely at odds with the idea of purposeful work contributing to the end of conflict. Some of the tasks were manifestly designed to be cruel or punitive, as one detainee reported “[…] at Takwu Detention Camp detainees are working in sea-water, breaking stones along a canal for a continuous period of four hours, clearing mangrove forest trees in water and road making through where canal surface was to be broken with picks… We consider that removing of sanitary buckets for the Officer in charge and warders is purely punitive.”Footnote ³⁰¹ These testimonies suggest there was a violation of the ILO Forced Labour Convention 1930 when the labor exacted did not fall under the treaty's emergency clause, and in instances in which the forced labor policy continued after the emergency officially ended. Could there have been an actionable tort arising from the use of forced labour in the Kenyan camps? Although there may have been a violation of the 1930 Forced Labour Convention, ultimately, allegations of unlawful killing and torture are much more compelling, with the latter forming the backbone of the Ndiku Mutua and Others v The Foreign and Commonwealth Office claim.

Retrospective Accountability

The claimants in Ndiku Mutua and Others v The Foreign and Commonwealth Office submitted an action to the United Kingdom High Court for alleged torts of “assault and battery, and negligence.”Footnote ³⁰² Civil actions of the sort rely on a balance of probabilities test. As highlighted in Justice McCombe's summary of the 2011 judgment,Footnote ³⁰³ the relevant tort law pertaining to the case is the 1980 Limitations Act, and through Article 33 of that Act, judicial discretion may extend the usual 3 year limitation clause for personal damages. Public interest may be a factor in issuing judicial discretion, and in the instant case, the state's duty was to investigate allegations of torture. At the same time, claimants needed to have a reasonable chance of success, to outweigh the huge costs associated with historic actions. Surviving historical documentation may illuminate the “aims and purposes” that the British government had in relation to the colonial emergency, which could establish responsibility for torts. A factor that could influence judicial discretion in waiving the limitation is evidence that the United Kingdom government and the colonial administration had inhibited investigations into camp abuses and restricted the remit of contemporary inquiries.Footnote ³⁰⁴ However, no action in tort may be brought for wrongs that occurred prior to June 23, 1954.Footnote ³⁰⁵ Claims arising from other colonies would need to furnish a United Kingdom court with compelling reasons for a prolonged delay in submitting such a claim. It is notable that in the Kenyan case, the Mau Mau organization was proscribed until 2002–2003, and many of the elderly survivors of abuse resided in remote and rural areas.

Justice McCombe had to decide whether the claimants had a “viable claim in law,” and if they had any realistic chances of success with their claim.Footnote ³⁰⁶ As defendants, the FCO argued that acts committed by the colonial government essentially were not acts of the United Kingdom government, and that legal liability for these acts passed to the successor state at independence. This was unchartered legal territory, as counsel for the claimants explained, “Neither the Kenya Independence Act 1963, nor any other UK statute or instrument, addresses the question of the succession of liabilities of the Colonial Administration for assaults against the Claimants.”Footnote ³⁰⁷ In such a case, the matter must be decided at common law, but common law has to incorporate international customary law into its decision making. Following consideration of arguments, including the claimants' reliance on postcolonial Algerian jurisprudence against France, and the defense drawing from R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs case, Justice McCombe decided that the liabilities of the old colonial regime did not transfer to the United Kingdom at Kenyan independence in 1963. However, under the principle of “joint liability for torts,” the United Kingdom government, named as a joint tortfeasor, could still have a case to answer for historic wrongs committed by the army or the Colonial Office, and such matters were fit for trial.Footnote ³⁰⁸ Justice McCombe further examined General Erskine's role in the emergency and he concluded that there was sufficient documentary evidence to suggest Erskine's involvement in the detention system, and that, therefore, the issue was triable. He made similar conclusions in respect of the colonial secretary and the Colonial Office, “[a]ll these matters are, in my judgment, properly triable issues on the evidence before me, including the evidence of the continuing and still incomplete disclosure by the defendant of previously unseen materials. The evidence shows that those new materials were removed from Kenya upon independence precisely because of their potential to embarrass the UK Government.”Footnote ³⁰⁹

A significant point of dispute between the parties pertained to the role played by the United Kingdom government in the development and control of the detention camps. Both the Kenyan colonial government and the United Kingdom government were very much aware of the “extent of continuing misconduct in the treatment of detainees,” and by not making any concerted efforts to stop the abuses, the United Kingdom government neglected their duty of care and could have been found guilty of negligence. However, the role of the United Kingdom government may have gone beyond simple negligence through acts of omission, and if the facts of the case presented by the Mutua claimants could be established, it suggested to Justice McCombe “the distinct possibility of an active direction of policy and an active part in its implementation on the part of Her Majesty's Government” which could only be clarified if the matter went to trial. Given the gravity of the matters being considered, Justice McCombe criticized the United Kingdom government for relying on technical constitutional legal theory so early in the proceedings (in an effort to get the case struck out), in a way the judge described as “dishonourable.”Footnote ³¹⁰

The British Prime Minister, Sir Harold Wilson, first accepted the optional clauses to the European Convention (pertaining to individual petitions and the compulsory jurisdiction of the Court) in 1966 for an initial 3 year period.Footnote ³¹¹ At the time, it was considered that acceptance would apply only to prospective cases, which was a response to litigation taken by the Burmah Oil Company against the United Kingdom government for the destruction of its oil refineries in 1942. Lord Anthony Lester's examination of the period leading up to acceptance tellingly reveals little or no discussion of the possibility of colonial legacy issues.Footnote ³¹² In this event, a temporal limitation was incorporated, “into the U.K.'s declaration of acceptance a limitation making it clear that acceptance applied only to matters arising after its effective date, thereby excluding a once-and-for-all action of the kind taken in connection with the Burmah Oil claims, occurring before that date.”Footnote ³¹³ This declaration effectively annulled approximately eighty applications that had been received by the Commission in anticipation of Britain's acceptance of the optional clauses, but equally, the declaration “did not extend to petitions relating to matters arising in any dependent territory, or to anything done or occurring in the United Kingdom in respect of any such territory or of any matters arising there.”Footnote ³¹⁴ The 2014 “Practical Guide on Admissibility Criteria,” produced by the European Court of Human Rights, notes that when countries have drafted declarations with temporal limitations, “the Commission and the Court have accepted temporal limitations of their jurisdiction with respect to facts falling within the period between the entry into force of the Convention and the relevant declaration.”Footnote ³¹⁵ However, the evolving jurisprudence of the Court has provided for exceptions to the test criteria on admissibility per ratione temporis,Footnote ³¹⁶ and such consideration can occur when the right to life (Article 2) is violated or breaches of the prohibition on torture (Article 3) are alleged. It is significant that the Court in Silih v Slovenia elaborated the concept of procedural detachability applying to the right to life. In essence, this means that the state's investigation into a death may be examined by the Court even if the substance of the claim occurred prior to the Court assuming jurisdiction in that member state's territory. The criteria outlined in Silih v Slovenia are not unlimited, and must be in accordance with the principle of legal certainty:

Of these, perhaps the latter Convention values test is most significant to the current discussion, but it is also notable that the detachability principle has been invoked by the Court to examine investigations into torture and ill-treatment, where, in the main, proceedings occurred after the entry into force of the Convention, whereas the actual violation preceded that critical date.Footnote ³¹⁸ Therefore, although the United Kingdom only accepted individual petition mechanism in 1966, applicants to Europe could argue that they were prevented from accessing a remedy for these most serious violations, not merely because of the temporal limitation on the state's declaration, but because of historic, structural, and evidentiary legal obstacles, and that fresh evidence coming into the public domain via the Hanslope Disclosure casts a new light on the circumstances of historic violations.Footnote ³¹⁹ Claimants in the Ndiku Mutua and Others v The Foreign and Commonwealth Office case argued that the coming into being of the Human Rights Act, and the unearthing of voluminous documentation in 2005 and 2011, triggered a duty upon the state to investigate allegations of torture, and that the procedural obligation attached to this article was “revived.”Footnote ³²⁰

Another possibility would be to argue the Convention values test, as a short period in between the violation and the entry into force of the Court's jurisdiction was established in the Silih judgment.Footnote ³²¹ The Court may depart from this rule and permit a “further extension of the Court's jurisdiction into the past… if the triggering event has a larger dimension which amounts to a negation of the very foundations of the Convention (such as in cases of serious crimes under international law), but only to events which occurred after the adoption of the Convention, on 4 November 1950.”Footnote ³²² Torture was “institutionalised and systematic, but also casual and haphazard” during the emergency in Kenya.Footnote ³²³ Practices associated with “screening” or the interrogation of Mau Mau suspects included whipping, beatings, use of electric shock, administering cigarette burns, Chinese water treatment, sexual violence, and sterilization.Footnote ³²⁴ The claimants in Ndiku Mutua and Others v The Foreign and Commonwealth Office experienced “physical mistreatment of the most serious kind, including torture, rape, castration and severe beatings” while in detention.Footnote ³²⁵ In this light, the scale of the abuses that occurred within a network of extrajudicial camps established not 10 years after the liberation of Nazi concentration camps might be considered a negation of the very values enshrined in the European Convention that encapsulated a postwar abhorrence of violence and human degradation.