The British government is in secret talks to negotiate a settlement to thousands of Kenyans who were detained under the Mau Mau uprising.
Both the UK’s Foreign Office and the firm who are negotiating on the part of the three Kenyans who took the issue to the High Court in London last year would not comment on the nature of the settlement.
Dan Leader, a partner with Leigh Day, told the Guardian newspaper, which revealed the secret talks on Monday that both :parties “are currently exploring the possibility of settling the claims brought by our clients. Clearly, given the ongoing negotiations, we can’t comment further.”
The Foreign Office also said that it would be “inappropriate” to discuss the talks. In a prepared statement, however, it added: “We believe there should be a debate about the past. It is an enduring feature of our democracy that we are willing to learn from our history.
“We understand the pain and grievance felt by those, on all sides, who were involved in the divisive and bloody events of the Emergency period in Kenya. It is right that those who feel they have a case are free to take it to the courts.
“Our relationship with Kenya and its people has moved on and is characterised by close co-operation and partnership, building on the many positives from our shared history,” said Leader
During the process of decolonisation, the eight-year Mau Mau insurgency was one of the most bloody conflict in which the British became embroiled, with up to 30,000 Kenyan deaths, both insurgent and loyalist.
Thousands of people – estimates vary from 80,000 to 300,000 – were detained in a network of camps, where many were brutally tortured.
If a settlement is made by the British government it would be the first compensation settlement resulting from official crimes committed under imperial rule and could pave the way for many other claims from around the world.
Pressure to find a settlement came following considerable international political pressure, with the United Nations’ special rapporteur on torture, Juan Méndez, calling publicly on the UK government to “provide full redress to the victims, including fair and adequate compensation”, and writing privately to David Cameron, to warn that the Britain’s position was undermining its moral authority across the world.
“In our view the response of the British government to vulnerable and elderly victims of (acknowledged) British torture is shameful,” they wrote.
The result was that in April the FCO told the claimants’ lawyers, Leigh Day, that it wished to adjourn its appeal against the High Court ruling and start negotiating a settlement.
With the evidence stacked against the UK government following the discovery of a vast archive of over 8,000 colonial-era documents which the Foreign Office (FCO) had kept hidden for decades, and which shed stark light on the dying days of British rule, London knew its chances of winning the appeal were slim.
The Guardian newspaper said that up to 10,000 former prisoners may be in line for compensation, if the talks result in a settlement. Although the individual amounts will vary greatly, the total compensation is likely to run into tens of millions of pounds.
“The Foreign Office knows that compensation payments to Mau Mau veterans are likely to trigger claims from other former colonies,” the Guardian report said. “Any such claims, if successful, would not only cost the British taxpayer many millions of pounds; they could result in testimony and the emergence of documentary evidence that would challenge long-cherished views of the manner in which Britain withdrew from its empire.”
The documents show that many prisoners suffered appalling abuses. In December 1954, one Nairobi judge, Arthur Cram, compared the methods employed to those of the Nazi’s Gestapo.
It is also known that one of those abused was Hussein Onyango Obama, the grandfather of Barack Obama.
It was not until the Kenyan government lifted the ban on the Mau Mau in 2002 that survivors of the camps began to consider legal action against the UK.
UK government lawyers initially argued that the claim should not be heard, arguing that under the legal principle of state succession, Mau Mau veterans should be suing the Kenyan government and not the British.
When the claimants gave evidence at the high court in London last year, Wambugu Wa Nyingi told how he was detained on Christmas Eve 1952 and held for nine years, much of the time in manacles. He was beaten unconscious during a particularly notorious massacre at a camp at Hola in which 11 men died.
“I feel I was robbed of my youth and that I did not get to do the things I should have done as a young man,” he said. “There is a saying in Kikuyu that old age lives off the years of youth, but I have nothing to live off because my youth was taken from me.”
Foreign Office lawyers, faced with the secret archive evidence and the expert witnesses, conceded that the allegations made by Nyingi and the other claimants were true, but continued to oppose their attempt to bring their case, arguing that too much time had elapsed for there to be a fair trial.
That was rejected by the high court last October, with the judge ruling that a fair trial remained possible. “The documentation is voluminous,” he said. “And the governments and military commanders seem to have been meticulous record keepers.”
The FCO announced at the time that it would appeal against a judgment that had “potentially significant and far-reaching legal implications.”
The Guardian said that any compensation agreed would be paid only to people who can show they suffered personal injury and grievous bodily harm, such as castration or rape.