Channel 4 News learns that knowledge of abuse and torture against Kenyan prisoners in the 1950s was discussed at the time by the Government and recorded in Cabinet minutes.
A High Court case case began on Thursday brought by four Kenyans who allege they are victims of torture and assault at the hands of British colonial officials during the Mau Mau uprising between 1952 and 1961.
Three men and one woman, in their 70s and 80s, allege that they were among thousands of people held by the British in camps where it they say many were tortured and killed. Beyond their own, personal claims of abuse, lawyers for the four claimants say they represent the masses of Kenyans who were abused during the anti-colonial rebellion throught the 1950s.
The lawyers allege that strategic violence was used on those involved in the Mau Mau uprising as well as against those who were simply sympathetic to the cause. The Kenyan Human Rights Commission has said that 90,000 Kenyans were executed or tortured and 160,000 people detained in all during the lengthy quashing of the uprising.
Knowledge of it (the crimes) went right up to the very top of British governance with notes found within Cabinet meeting minutes Professor Caroline Elkins, Harvard University, expert witness
The British Government argues that the alleged crimes are not contemporaneous enough for them to be held accountable and will defend the case brought against them.
On day one of the hearing Justice Jay QC for the defence told the court that the crimes committed within the camps were done so under the instruction of a legitimate independent colinial Kenyan Government and not by the British. Any British involvement was through soldiers deployed to deal with forest based uprisings.
However, documents that have been released relating to the period are believed to hold paper trails back to Whitehall.
Lawyer Martyn Day, who has been defending the rights of the Mau Mau claimants since 2006, laid out their claims on the steps of the High Court before the hearing began.
“They were subjected to unspeakable acts of torture and abuse at the hands of British officials in the 1950s and 1960s, including castrations, sexual abuse and repeated beatings.
“The treatment they endured has left them all with devastating and lifelong injuries. There is no doubt that endemic torture took place in Kenya before independence.
“What they primarily seek is recognition in the form of an apology that what was done to them was wrong. It is incumbent on this government to treat such people with the respect and dignity they deserve.”
The High Court decision must decide whether it is the UK legal system that should deal with claims against official individuals accused of the crimes or whether this jurisdiction passed with the removal of the colonial administration.
Documents relating to the uprising are to be released as part of the Foreign Office decision to release files detailing the actions of former colonial administrations. Of 2,000 boxes of papers, 300 are related to Kenya and 30 of those are directly relevant to the Mau Mau case. The claimant’s lawyers from Leigh Day and Co had been examining the notes for over a month and as a result of their research the Foreign Office have agreed to transfer documents to the National Archives.
The Mau Mau documents were transferred to the UK at the time of independence and not left as reference for the new regime. Foreign Minister Lord Howell this week explained why this was done at the time.
“It was however the general practice for the colonial administration to transfer to the United Kingdom, in accordance with Colonial Office instructions, shortly before independence, selected documents held by the Governor which were not appropriate to hand on to the successor Government,” he said.
Despite this retention of information from former colonial territories, the British Foreign Office claims that post the 1963 Declaration of Independence, it was the new Kenyan authorities, not UK, that were liable for any actions brought by its citizens.
Speaking to The Times newspaper, David Anderson, Professor of African History at Oxford University, was clear about the possible implications of damaging content from the newly released files.
“These documents were hidden away to protect the guilty… And it’s not just Kenya. What other colonial skeletons are rattling in the FCO basement? Are there secret files from Cyprus and Malaya, or from Nigeria and Rhodesia? It’s time to know the truth, however uncomfortable that may be.”
With documents set to be released that include information about colonial rule across the planet, a precedent case such as this could decide whether a number of actions are brought agains the UK Government in years to come.
Professor Caroline Elkins is one of the leading authorities on the Mau Mau Uprising. Her first book, "Imperial Reckoning: The Untold Story of Britain's Gulag in Kenya", was awarded the 2006 Pulitzer Prize for General Non-Fiction. She supplied a 100-page expert witness statement to the High Court on Thursday.
Professor Elkins spoke to Channel 4 News from outside the court.
"Thousands of Kenyans were tortured, held in camps and received minimal food and supplies subject to many violations of international law. We have only heard small pieces of the thousands of pages of documents and this is just a needle in the haystack of the content that so far we have only had a few weeks to go through. What we are finding just confirms what we already know, layers upon layers and adding new atrocities that before now we knew nothing about.
"We are also learning that in fact the Foreign Office are going to trawl through the documents before they release them censoring them in a process that in actuality could take years. We can only speculate as to the extent of the evidence they are holding.
"It has been incredible to hear their defence, not contesting fact, but now saying what occured is no longer their legal responsibility. the court of public opinion will hopefully see this defence as absurd. It is now a case where the Foreign and Commonwealth Office has to stand up and take responsibility.
"They withheld the documents and it has taken years and years of research to make this case happen as a consequence. It has taken years of my work and other historians to get a genuine picture of what happened in this emergency without access to this hidden information.
"Men were castrated, women raped and sodomised with broken bottles and vermin. This atrocity was not contained to the authorities in Kenya, knowledge of it went right up to the very top of British governance with notes found within Cabinet meeting minutes.
"I have not seen any evidence that an apology will be offered but from my experience having interviewed many survivors, an apology would go a very long way."