Three elderly Kenyans claim they were victims of colonial atrocities during the Mau Mau uprising in the 1950s and claim damages at the high court in London.
The cases of Jane Muthoni Mara, Paulo Muoka Nzili and Wambuga Wa Nyingi, who are in their 70s and 80s, are being heard during a two-week hearing which began on Monday.
The British government argues that their claim should not proceed because it is outside the legal time limit, while lawyers for the Kenyans say it is an exceptional case and the judge should exercise his discretion.
Richard Hermer, representing the Kenyans, told the court that the existence of thousands of official records and other sources of documentation meant a fair trial was possible, despite the passage of time and the death of certain witnesses. There were comprehensive records of key decision making at all levels of government, he said.
Mr Hermer said: “It is going to take a long time, cost a lot of money and occupy court time. All that gives rise to notions of proportionality. But, in a case of this importance, after a finding rejecting a strike-out application, the complexity, length and cost of the case should not impact on the exercise of your discretion.”
Before the case opened, Archbishop Desmond Tutu said the government should show “magnanimity and compassion”. In a letter sent to David Cameron in February, the South African church leader said the government was relying on legal technicalities in response to allegations of torture of the worst kind”.
The court will consider evidence about events in detention camps during the 1950s. Mr Nzili is alleged to have been castrated, while it is claimed that Mr Nyingi was beaten unconscious in an incident in which 11 men were clubbed to death. Mrs Mara was allegedly sexually abused.
A year ago, the three won the right to the hearing, with Mr Justice McCombe saying they had “arguable cases in law”.
But the judge said at the time that he had not found there was systematic torture in the Kenyan camps. Nor had he found that if torture occurred, the British government was liable to detainees.
Martyn Day, the solicitor representing the Kenyans, says they want apologies and the establishment of a Mau Mau welfare fund.
According to Professor Caroline Elkins, a leading authority on the Mau Mau uprising against British colonial rule, thousands of Kenyans were tortured and held in camps during the rebellion.
She says men were castrated and women raped, with the government in London aware of these atrocities.
Who were the Mau Mau?
The Mau Mau were a nationalist movement who advocated violent resistance to British colonial rule in Kenya, their aim to drive the imperialists out of the country.
They were banned by the British authorities in the 1950s, while the Kenyan government declared a state of emergency in 1952 after a Mau Mau campaign of assassination and sabotage. British troops were sent to Kenya, with fighting lasting until 1960, when this state of emergency came to an end.
Although the Mau May were defeated, within three years Kenya had achieved independence from Britain, with the nationalist Jomo Kenyatta elected prime minister in Kenya’s first multi-racial elections following years of house arrest.
What happened during the uprising arouses fierce debate, the British administration accused of waging a violent counter-insurgency campaign, relying on beatings and killings to subjugate Mau Mau fighters.
Governor-general Sir Evelyn Baring imposed the death penalty on anyone administering the Mau Mau oath, which often involved forcing tribesmen at knifepoint to kill European farmers when ordered to do so.
Sir Evelyn later offered an amnesty to Mau Mau fighters, but the killings continued and the amnesty was withdrawn in 1955.
Estimates vary about how many Kenyans were killed. The Kenya Human Rights Commission argues that 90,000 were executed or tortured and 160,000 people detained during the lengthy suppression of the uprising. Others say between 11,000 and 25,000 died.
Camps were also used, with inmates suffering deprivation and mistreatment. But Mau Mau fighters meted out their own punishment to pro-British Kenyans, raiding loyalist villages and killing those living there.
Although British tactics have been widely criticised, and were condemned by some MPs at the time, the Mau Mau were also capable of great cruelty.