d.anderson.mau mau in the high court and the lost british empire archives:colonial conspiracy or bureaucratic bingle?

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Mau Mau in the High Court and theLost British Empire Archives:Colonial Conspiracy or BureaucraticBungle?

David M. Anderson

In April 2011, a landmark hearing before the High Court in London found that the British

government had a case to answer concerning abuse and torture allegedly carried out by

British officials in Kenya during the Mau Mau counter-insurgency. Prior to the

hearing, it was revealed that the British government had removed some 1,500 sensitive

government files from Kenya at independence, many of these relating to alleged abuses

carried our during the Emergency of the 1950s. This discovery then led directly to the rev-elation of a further tranche of 8,800 historical files relating to the decolonisation of 36

other former British colonies. This article explains the nature of the claims of torture

and abuse made in the Kenya case in the High Court, and then describes the new evidence

in the recently disclosed documents. The concluding section then discusses the Kenya case

and the implications of the larger discovery of the lost British Empire archive.

The Victorian Gothic splendour of The Royal Courts of Justice dominates the eastern

end of Londons Strand, beyond Aldwych. Nestling between the four Inns of Court,this is the beating heart of British justice. Built at the very height of empire, the

Royal Courts were opened by Queen Victoria in the frosty December of 1882. It

would be another 15 years before the East African Protectorate, later to be known

as Kenya, would be brought within the orbit of Britains empire, so her imperial

majesty could hardly have imagined the scene that would be witnessed in the vast

chambers of the Great Hall of the Royal Courts on the morning of 6 April 2011, as

four elderly Kenyans were shepherded towards Court 73 by their team of barristers.1

Here, more than a century after Britain first declared empire over Kenya, and nearly 50

years since Kenya achieved its independence in 1963, these four imperial subjects were

The Journal of Imperial and Commonwealth History

Vol. 39, No. 5, December 2011, pp. 699716

Correspondence to: David M. Anderson, St Cross College, University of Oxford, 61 St Giles, Oxford, OX1 3LZ,

UK. Email: [email protected]

ISSN 0308-6534 print/1743-9329 online/11/05069918http://dx.doi.org/10.1080/03086534.2011.629082 # 2011 Taylor & Francis


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to have their day in court. The testimony they would give, and the charges that would

be laid, would place the entire reputation of British Empire itself on trial.2

The demeanour of the four Kenyans shuffling through the labyrinth of vaulted halls

and walkways was subdued. Elderly, and all now in poor health, the four have waited

several years for this day since first giving statements to the lawyers of the KenyanHuman Rights Commission (KHRC) about their ordeal as prisoners in the British

detention system in Kenya.3 Their thoughts on this morning may have turned to a

fifth claimant, Susan Ngondi. Her statement was filed with the original papers in

the case, but she died in the year before the case could be heard. With so many

others who had experienced the prisons and detention camps of the Kenyan Emer-

gency of the 1950s now also passed on, these four claimants carried the burdens,

and no doubt felt the shade, of many, many comrades. Dressed in the ordinary

working attire of the Kenyan countryside, all four pensioners looked conspicuously

out of place in the Royal Courts, and even on this bright London Spring day theyseemed chilled and uncomfortable.

Deep in the bowels of the Royal Courts, the inner sanctum of Court 73 has a

mundane shabbiness that contrasts markedly with the outer grandeur of this magni-

ficent Victorian building. A dull room, with high windows only to one side, it is airless

and poorly furnished. The public gallery at the rear comprises four serried rows of

uncomfortable chairs, packed to overflowing on this first morning with journalists

and interested members of Londons Kenyan community. People made way for the

four claimants to take their seats in this area. In front of the public gallery, the

Defence Counsel representing the Foreign and Commonwealth Office (FCO), assem-

bles at tables to the left, and the Prosecution team from the London legal firm LeighDay to the right, representing the Kenya Human Rights Commission for the clai-

mants.4 Both QCs are virtually obscured to the gallery by mountainous piles of docu-

ments and reference works. Behind each QC are two rows of busy and attentive

juniors, whose job it is to keep track of the arguments and locate the necessary legal

references as the case unfolds. In front of the QCs, on a raised dais at the head of

the Court, sits the judge and his clerks. No wigs or gowns in this case, Judge

McCombe sits in a business-like suit, a friendly if somewhat imposing figure.

The Allegations

The prosecution alleged that the claimants had been victims of torture and abuse at the

hands of British government in Kenya and that this mistreatment was the product of

systemic practices of the security forces and administration in the conduct of the

British counter-insurgency in Kenya between 1952 and 1960.5 As the FCO sought to

have these charges struck out, the purpose of the High Court hearing of April 2011

was intended to determine whether in fact the British government had a case to

answer on these charges.

Over the full week of the proceedings, Justice McCombe would hear much detailed

legal argument about the relevance of international law to British jurisdiction andresponsibility at the handover of authority to the government of independent Kenya

700 D. M. Anderson


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at the end of 1963. The Foreign Office argued that they were not responsible for events

in Kenya prior to December 1963, on the grounds that all such liabilities had trans-

ferred to the government on independent Kenya led by Jomo Kenyatta.6 In his judge-

ment on the case, delivered in July 2011, Justice McCombe described this argument as

dishonourable,7 the implication being that this was merely a technical argument thatsought to avoid responsibilities that were obviously applicable. He thus rejected the

arguments of the Defence, finding that there were sufficient grounds to hear the

case at a full trial, and this has been set for early 2012. If the British were not respon-

sible for events in Kenya prior to 1963, asked Justice McCombe, then who was?8

Before we discuss the implications of Justice McCombes findings in this hearing, it

is important to be explicit about the allegations that were laid before the court. These

allegations question the very purpose and organisation of the British counter-insur-

gency in Kenya and raise the issue of state violence in the suggestion that the use of

brutal methods of abuse, including torture, was part of a systemic and calculatedresponse to the Emergency in Kenya between 1952 and 1960. To make the case

bluntly, this is to suggest that abuse of human rights by British security forces

during the Emergency was not the consequence of the random actions of a few mis-

guided individuals, but was rather the product of a deliberate and conscious govern-

mental policy.9 The allegations of the four claimants are the foundation of this

argument, so let us summarise each in turn.10

Mutuas Story

The first claimant, Ndiku Mutwiwa Mutua, had been a herdsmen employed on a whitesettler farm in Kenyas eastern province. His employer, Mr Dunman, was known to his

African farm labourers by the nickname Luvai. As well as being a farmer, Dunmans

day job during the Mau Mau Emergency was as a police officer. Despite this, some

of Dunmans African employees regularly supplied foodstuffs to the Mau Mau fighters

hiding in the nearby forests. It seems that Dunman eventually got wind of this, and

assisted by five African police officers he began an interrogation of his African farm

labourers to try to find out information about the local Mau Mau fighters. These inter-

rogations began on the Dunman farm and then moved to a detention centre at the

nearby Lukenya prison. At Lukenya, Dunman was assisted in his further questioningof the prisoners by other Kenyan police and by members of the Home Guard, the

Loyalist African militia recruited to assist the British in combatting Mau Mau.

For Mutua, these interrogations would be an experience that would mark his life

forever. His ordeal began at dawn, when he and the three other men with whom he

shared his hut were awoken by the arrival of Dunman. The four men were dragged

out of their hut and beaten by the five African police officers accompanying

Dunman. Some of the police used batons to beat their suspects, while others hit at

them with rifle butts. Mutua was beaten so severely that he almost lost consciousness.

The four suspects were then bundled into Dunmans van and transported the 6 km to

Lukenya prison. On the journey the beatings and abuse continued in the back of thevan. Upon arrival at Lukenya, the four suspects were pushed and kicked out of the van,

The Journal of Imperial and Commonwealth History 701


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where upon the prison guards took charge of the prisoners and led them to a prison

cell where the beatings continued. During this part of the ordeal, Mutua lost

consciousness.

Mutua awoke the next morning as the sun was rising. Within an hour or so, a prison

officer removed him from the cell and took him to another building where he wasgiven porridge for breakfast. For the rest of that day, Mutua was ordered to work

with other prisoners in stone quarries adjacent to the prison. Still in pain from his

beatings of the previous day, Mutua found it difficult to work, but every time he

slowed down or tried to rest the prison warders coerced him into further labour.

On his second day at Lukenya, Mutuas interrogation resumed. This time, Mutua

was questioned by a European officer, accompanied by several African prison

warders. During this interrogation Mutua was led to a tent, where he was blind-

folded and then stripped from the waist down. Handcuffs were applied to his wrists

and he was forced to lie on his back by African officers who pinned him to theground. His legs were pulled apart and tied so as to prevent him moving. In this pos-

ition, Mutua was castrated by one of the prison officers present. Racked with pain and

only semi-conscious, Mutua was taken back to his cell and left there.

Two nights later, Mutua was freed from Lukenya by a Mau Mau attack on the prison.

This event was one of the most successful operations mounted by Mau Mau fighters

during the entire Kenyan emergency. Catching the prison guards unaware, the Mau

Mau rebels broke through the prison perimeter and overpowered the guards before

any proper defence could be mounted. They broke into the prison armoury capturing

a variety of weapons and ammunition and then went to the cells where they freed the

prisoners. Within less than an hour of the attack on the prison beginning, the assai-lants and their new-found liberated prison recruits were heading back towards the

Iveti forest.11

Nzilis Story

The second claimant, Paulo Nzili, also encountered Mr Dunman. Nzili was arrested

close to the Kamiti prison on the outskirts of Nairobi. The African police officers

who took him in for questioning first brought him to the Embakasi Detention

Centre, near Athi River. Over the next few months, Nzili was moved from Embakasito the Manyani detention camp, and then to Malindi prison, before finally being

detained at Naivasha prison. At both Embakasi and Manyani, Nzili was assaulted

and beaten by police, prison officers, and Home Guard, and while at Naivasha he

was coerced to undertake labour. Nzili was never charged with any offence, but was

held without trial on a Detention Order on suspicion of his support for the Mau

Mau cause.

The details of the torture and abuse then committed against Nzili are every bit as

gruesome as that experienced by Mutua. On the first morning of his detention,

Nzili was interviewed by Dunman at Embakasi. Nzili was stripped of his clothes

and made to lie naked on the ground. A second European officer, whom he recognisedby the nickname Kwatanze, then assaulted Nzili. The two European officers then

702 D. M. Anderson


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bound Nzilis legs in chains, and pinned down his arms, before Dunman approached

him with a pair of pliers and castrated him by cutting the veins and vas deferens leading

to the testicles. During this assault, Nzili lost consciousness.

When he awoke, Nzili found himself in Nairobis King George Hospital, where he

remained for a period of two weeks. Shortly after his stay at the hospital, Nzili wastransferred to the Manyani detention camp where he joined other allegedly hardcore

Mau Mau supporters. Manyani was among a few prison camps notorious for the

strength and conviction of the resistance mounted by its inmates. Nzili was detained

in Compound 6, where he witnessed and experienced the beatings and abuse of pris-

oners on a daily basis. Manyanis prison warders were armed with rattan sticks with

which they habitually struck the prisoners. During his first weeks in Manyani, Nzili

was spared such treatment because of his invalid status. After this period he was trans-

ferred to Malindi prison, where he was given employment sweeping and collecting

refuse. This was followed by a brief transfer to Kamiti prison, where Nzili recallsthere was a lice infestation, and then onto Naivasha prison. At Naivasha, Nzili was

forced to work collecting firewood. His castration aside, Nzili acknowledges that he

escaped the worst of treatment in the prisons in which he was subsequently

incarcerated.

Nyingis Story

The third claimant, Wambugu wa Nyingi, was a known political activist who in the

years following the Second World War became involved in the Kenya African

Union.12 Nyingi was first arrested at his family home in Central Province shortlyafter Kenyas state of emergency had begun. His home was raided by a group of

white officers from the Kenya Regiment, known as the self-styled Ngombe Squad.13

Nyingi was beaten severely on the day of his arrest, and then experienced a succession

of assaults, tortures, and abuses as he moved from one detention centre to another,

culminating in his incarceration at the Hola prison camp in northern Kenya. Like

Nzili, at no point was Nyingi charged with any offence, but instead he was held

without trial on a simple Detention Order.

Nyingis story of detention is a litany of assault and abuse. Beaten and stabbed when

arrested, Nyingi was first taken to the local police station in Aguthi location nearMuthinga. There he was informed that he had been placed under a Governors

Detention Order but he was never shown any such document and nor was the

meaning of this explained to him. The police station to which Nyingi was taken

served as a screening centrethat is to say, a place where those suspected of Mau

Mau affiliations were interrogated. Nyingi spent six months in this screening centre,

where he was regularly beaten in order to induce him to give up information about

the Mau Mau organisation and about his Mau Mau associates. Those held were

kept in small and heavily overcrowded cells, with no proper sanitation or washing

facilities. A breakfast of porridge was the only meal of the day. While in this screening

centre, Nyingi witnessed the beatings and even the deaths of many other detainees.Screening centres of this kind had no legal basis in Kenyan law, a fact that was



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repeatedly acknowledged in the judgements of the Appeal Court of East Africa during

the Emergency.

Nyingi was eventually moved to the Athi River detention camp, where he spent

almost a year in conditions of relative decency. He recalls that beatings did not take

place at Athi River and that the camp was run in a more civilised way than others.But in Athi River, Nyingi refused to confess his Mau Mau adherence, and so along

with 25 other detainees he was eventually transferred to other camps in northern

Kenya. First he was placed in leg manacles and put on a flight to Lodwar. Here

Nyingi recalls being severely beaten by both European and African guards. In the

more than two years spent at Lodwar, Nyingi claims he was caned and beaten on a

daily basis. Detainees at Lodwar were also required to perform hard physical labour,

and if they resisted these demands they were coerced and beaten.

From Lodwar, Nyingi was moved to Kodiaga transit camp and then taken to the

detention camp on Mageta Island, in Lake Victoria. Here Nyingi was placed in Com-pound 2, with 120 other detainees. During his eight months at Mageta, beatings were a

daily occurrence. Nyingi also reports that the inmates at Mageta were often denied

food as a punishment and as a means to try to gain their compliance.

From Mageta, Nyingi was then taken back to the Athi River camp. His return there

was less pleasant than his first detention, interrogations now being a regular feature of

the camp regime. These interrogations were aimed at making detainees confess. A

white prison officer conducted each interview, accompanied by African officers. In

the course of these interrogations, Nyingi was subjected to tortures and abuse. On

one occasion he was suspended by his feet from the hut roof and subjected to a

severe beating. While in this position cold water was poured onto his face and intohis mouth, so that he could not breathe. Following several interrogations featuring

torture of this kind and other forms of ill-treatment, Nyingi was moved with

around 50 other detainees to Manyani. He recalls this as the cruellest of all his dreadful

experiences. From the moment they disembarked from the camp entrance, the beat-

ings began: with sticks, whips, batons, and boots.

Next, Nyingi was transferred to the Mwea camps. Here the emphasis on interrog-

ation and confession was even more intensive than in any other camp in which

Nyingi was confined. At Mwea he recalls encountering the European camp comman-

dant, Terence Gavaghan,

14

and his African deputy and assistant, Isaiah Mathenge.Mathenge was responsible for the screening of detainees, which involved regular beat-

ings. As part of their punishments, detainees were made to dig trenches eight feet deep

and eight feet wide before filling them up again. This pointless labour was unremitting.

Nyingi also recalls being made to carry a bucket full of stones on his head while

walking around in circles. This torture was conducted for hours on end while

prison officers pushed and beat the prisoners, causing the buckets to fall to the

ground, having to be picked up, refilled and replaced on the head of the prisoner.

During these abuses European officers were always present, often Gavaghan himself.15

Finally, Nyingi was relocated to the infamous Hola camp. This was dedicated as a

camp for detainees who were considered to be recalcitrant hardcore supporters ofMau Mau, and therefore not suitable for release back into public life. The prison

704 D. M. Anderson


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regime at Hola was brutally severe. A system of forced labour had been introduced at

the camp, despite the fact that the detainees considered themselves to be political pris-

oners and therefore continually resisted efforts to make them carry out forced labour.

Confrontations, violence, beatings, and systemic abuse were a daily feature of life at

Hola.16

The brutality of the prison regime at Hola came to a head in early March 1959. That

fateful morning the detainees were brought from their cells as usual, and after break-

fast were taken out of the camp to commence a day of hard labour. The detainees were

given hoes and shovels and ordered to begin work under the supervision of a British

officer named Sullivan. Nyingi was among a large group of detainees who refused the

order. Sullivan threatened them, and when they still refused to pick up their tools and

begin work he ordered the African prison warders to beat them. At this point the

prison warders, dressed in riot gear and carrying long batons, charged the prisoners.

The detainees picked up the hoes and shovels and sought to defend themselves againstthis attack. In the pitched battle that ensued, Nyingi was beaten about the lower back,

the neck, and the head, eventually losing consciousness and falling to the ground. So

moribund was Nyingis body as a result of the assault that he was picked up and

thrown into a pile along with the 11 of prison inmate colleagues who had been

killed in the melee. Only when a European doctor came to examine the corpses in

the morgue was it belatedly realised that Nyingi was still alive. He was then transferred

to the prison hospital for treatment.

Nyingi later gave evidence at the inquest that was opened following these events at

Hola, events that have since become known as the Hola Massacre. We therefore have

strong and well-attested documentary evidence to confirm Nyingis presence at Holaand his role in the events described, evidence that fully corroborates Nyingis

account.17 Eventually recovering from his wounds, Nyingi was at last released from

detention in South Tetu division of Nyeri district as the Emergency came to an end

in 1960. During the final year of his detention, he was held in solitary confinement

for three months, once again due to his failure to behave compliantly while in deten-

tion. When finally released he was given a sleeping mat, two blankets, a cup, and a plate

and dropped on the roadside outside Mwea camp and left to make his own way home.

He had been incarcerated without trial for a period of more than 7 years.

Jane Maras Story

The fourth claimant is the only woman among our small group, Jane Muthoni Mara.

She was only about 15 years of age, in 1954, when her village, Ngugini, was subjected to

a cordon and search operation by African Home Guard.18 Suspected of supporting

nearby Mau Mau forest fighters, the villagers were ordered to demolish their own

houses and to move to a new village where they could be held under surveillance of

the government. This new settlement, to be known by the name Kianjiru, was estab-

lished as part of the governments villagisation programme. Mara joined the other vil-

lagers in being forced to construct a trench around the new village, protected by abarricade of bamboo spikes. One solitary bridge was constructed across the trench



9/19

to allow access in and out of the village, and each household was given a regimented

compound within the village. Kianjiru was placed under the protection of Home

Guard, who policed the village perimeter and enforced a curfew on the inhabitants.

A few weeks after moving in to the new village, Mara was accused of being a Mau

Mau sympathiser. Along with a number of other villagers she was taken to a screeningcamp at a place known as Gatithi. Here and at prisons at Embu and Kamiti, Mara

would be subject to repeated assaults and beatings by prison officers, police, and

Home Guard.

Maras experience at Gatithi was horrific. On arrival at the camp she was made to

bath fully clothed in a near by river. She and other detainees were then made to sit

on the riverbank in groups of five or six, with their legs outstretched in front of

them. Mara recalls that a white officer, whom they nicknamed Waikanja, then

walked back and forth over their outstretched legs in his heavy boots. Other African

camp officers then joined him in this assault.On the following day, Maras ordeal began with further beatings by Home Guard,

using a truncheon. Following this she was taken with three other women to a tent

where a brutal interrogation began. Mara was repeatedly asked when she had taken

the Mau Mau oath and she was pressed to tell them the whereabouts of her brother

and other local members of the Mau Mau forest gangs. Despite being repeatedly

beaten and kicked, Mara denied that she had taken any Mau Mau oath. Four of the

African guards then pinned her to the floor and prised her thighs apart, holding

them open. The senior African officer, named Edward, then produced a glass bottle,

which under Waikanjas orders was forced into Maras vagina, using the sole of the

African officers boot to direct the bottle deeply into her. The pain was excruciatingand Mara realised the bottle had been heated. When this ordeal came to an end,

Mara was compelled to sit and watch as the three other women were subjected to

the same misery.

Over the following weeks Mara was subjected to further beatings, to food depri-

vation, and to general abuse. Despite having made no confession she was eventually

brought before an African chief at Kerugoya camp, who sentenced her, along with

around 300 other detainees, to three years imprisonment for membership of the

Mau Mau organisation. The following day she was taken to Embu prison, where she

stayed for three months. Here beatings and assault were a daily regime, as was forcedlabour for all prisoners. From Embu Mara was moved to Kamiti prison, where she

served a further two years. Mara then spent seven months at Athi River detention

camp before returning to Kamiti, and then to Embu, for the remaining months of

her detention.

The Search for Evidence

In building the prosecutions case, the lawyers at Leigh Day sought to identify docu-

mentary evidence that would corroborate and elaborate the statements made by the

four claimants. This quest for documentary evidence has proved to be the most criticalaspect of the case.

706 D. M. Anderson


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Historians of empire have long suspected that documents from the former colonies

were returned to the UK at the end of empire. Gaps in the local archival records in the

former colonies give us clues to this, but even common sense should indicate that the

British might have had things they would not wish to pass on to the incoming govern-

ments. In the Kenya National Archive, there are many such glaring gaps in the fileliststhe records of the detention camps are almost entirely missing from the archival

deposit, for example, as are the detailed district level papers that one might expect to

see on the issuing of detention orders. We have long believed that records of this kind

were deliberately destroyed by British officials in 1963 prior to Kenyas decolonization,

and indeed there were reports of this destruction at the time.19 But as one follows the

sequence of files that have made it to the Kenya National Archive, it is also apparent

that papers relating to specific events, committees, or policies are also absentamong

the Kenyan Emergency period records we have been unable to find the minutes or

decisions of the War Council, for example, or the full papers relating to the Com-plaints Committee set up by Governor Baring explicitly to adjudicate upon allegations

of abuse during the Emergency.20 Were such papers destroyed in Kenya prior to inde-

pendence, or were they brought back to the UK for safe-keeping?

In preparing the case for the four claimants, the lawyers at Leigh Day were anxious

to ensure that all the documentary evidence held by the British government should be

made available. Attention initially focused on those files transferred to the National

Archives at Kew, but then withheld from public scrutiny for periods longer than the

statutory 30 years. At a preliminary hearing before Justice Seymour in 2009, the pro-

secution drew attention to the need for disclosure of all documents relating to the

Kenyan Emergency that were held by the British government and received a rulingthat the FCO should make a full disclosure of all documents in their possession relat-

ing to the case.21

Over the months leading up to the April 2011 hearing, Leigh Day pressed the FCO

to properly fulfil this requirement for disclosure. In response to this, the Kenya desk

officer with the FCO, Edward Inglett, diligently undertook a wide-ranging search

through the many depositories and offices of the department. Inglett worked hard

at his task and was able to gain the release of several documents held at Kew, but

his assiduous inquiries to the FCOs records management staff drew a complete

blank with regard to other holdings relating to the Mau Mau Emergency. In November2010, Inglett filed a witness statement for the court detailing the extent of his searches

and explaining that no further materials had been found.22

In response to Inglett, a witness statement was then submitted to the Court for the

Prosecution, dated 21 December 2010, and written by the author of this article, setting

out evidence that the British administration in Kenya took steps before December 1963

to remove the UK records relating to the administration of the Mau Mau Emergency,

so that these would not be among the records handed over to the incoming indepen-

dent Kenyan government.23 The reference for this claim was correspondence held in

the National Archives at Kew between the Kenyan government and the FCO, dating

to 1967.24 At this time, Kenyan officials had written to London alleging that docu-ments had been illegally removed from Nairobis Secretariat on the eve of



11/19

independence. They asked for acknowledgement of this fact and the return of any

documents now in the possession of Her Majestys Government. The origins of this

request stemmed from papers that had been found among the archives of the

Secretariat in Nairobipapers mistakenly left behind by the Britishdetailing the

arrangements made for air-lifting retrieved documents to London.In my opinion, Londons response to this inquiry was as cynical as it was deceitful. A

minute on the file now held in Kew, dated August 1967, notes that a large cache of

documents had indeed been retained from Kenya. It is stated that this collection com-

prised over 1,500 files, in more than 300 boxes, taking up some 100 linear feet of

storage. The minute acknowledged that among the retained files were intelligence

summaries, files on unrest, collective punishments, and allegations of abuse during

the emergency, along with files relating to detainees and detention camps. These

papers came from several different ministries within Nairobis colonial administration,

including internal security and defence, the Governors Office, the office of the Attor-ney General, and the office of the Chief Secretary. A further note on this file, dated 7

November 1967, admits to the removal of these sensitive documents from Kenya in

1963. It reports that this exercise had been carried out in a meticulous fashion, the

retained files being candidly described as those which might embarrass Her Majestys

Government, embarrass members of the police or army, or compromise intelligence

sources. The vast majority of the retained files were said to relate to members of the

police or army and their anti-Mau Mau activities.25

The reply sent to Kenya before the end of 1967 did not provide this level of detail.

Instead, the British government admitted that they did hold a cache of files from Kenya

but arrogantly and dismissively told the Kenyan government that the files were with-drawn because they were relevant to UK policy and that this was none of Kenyas

business.26

On receiving this information, Inglett embarked upon a further search for the

Kenyan migrated documents, contacting the records management staff asking

them to search yet again for the missing files. Inglett expressly pointed out that the

reputation of the government was at stake in this matter and that failure to disclose

documents might be viewed as obstructionist and therefore construed to imply culp-

ability. After being told yet again that there was no trace of the Kenyan files, finally,

apparently in exasperation, Inglett informed the records management staff at theFCOs document depository at Hanslope Park that he would be making a personal

visit to their stores to search for himself. He gave a date and time for his visit in the

following week. A few days prior to Ingletts proposed visit, the staff at Hanslope

Park at last announced they had located the missing Kenya documents.

The Hanslope Disclosure

The extent of the Kenya documents revealed at Hanslope Park was set out in further

statements made for the court by Mr Inglett, including listings of the files. Numbering

more than 1,500 files in all, the titles alone suggest that around one-third of thesematerials relate specifically to the Mau Mau Emergency and might be relevant to

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the claimants case. In preparation for the April 2011 hearing, the FCO and the

Defence barristers first reviewed the relevant files. Any file they selected for review

was then disclosed to the Prosecution. A team of Oxford graduate historians, under

my direction, then reviewed these files for the Prosecution, providing summaries

and, where necessary, detailed analysis of the contents. This procedure was carriedout over the period between early February and the end of March 2011.27

The task presented several challenges. First, the sheer quantity of material was

daunting and ultimately overwhelming. Perhaps 500600 files have a potential

bearing on this case, the average being more than 100 folios but the most important

files often amounting to a hefty load above 250 folios. As our efforts focused on the

most relevant, and often the most substantial files, it proved possible to review only

round 300 of these files in time for the April hearing. Indeed, it would take many

more months of diligent work to properly analyse materials of this extent, density,

and complexity.Secondly, the process by which documents were released to the Prosecution team

was highly unsatisfactory. We were only permitted access to documents once they

have been reviewed first by the FCO and then by the legal team working for the

Defence. This caused considerable delay. Furthermore, the order in which documents

were disclosed to the Prosecution appeared to be random, with no clear effort to

follow a logical sequence in the files. This made the coherent analysis of the files

exceedingly difficult. As I commented in my second witness statement to the Court,

this was too often like reading a novel with the pages all in the wrong sequence.28 Fur-

thermore, because we were unable to request specific files, we were entirely in the

hands of the FCO in determining which documents they considered to be relevantto the case. Many files which I would consider should be prioritised in reference to

the case were completely ignored by the FCO, for example, a large group of files relat-

ing to Collective Punishments are highly likely to contain information on the role of

the military in repressive and illegal actions, yet none of these files (there are around 40

files listed under this heading) was released.

Thirdly, the value of these documents is to be found in the information they can

provide that is additional to that which is already known. These documents do

indeed contain a highly significant amount of new information, especially facts relat-

ing to decision-making and responsibility for actions carried out by British forces inKenya. This is unsurprising, given that the documents were removed from the

Kenya government archive primarily on the grounds of their sensitivity. The detailed

review and analysis of this material is therefore an essential element to any reconstruc-

tion of the additional knowledge that this material holds.

To illustrate this important point, let us refer specifically to the question of the state

sanctioning of torture and abuse. Many of these documents contain discussion of

torture and abuse and the legal implications for the British administration in Kenya

of the use of coercive force in prisons and detention camps, by so-called screening

teams, and in other interrogations carried out by all members of the security forces.

These documents show how, in a way that has not been apparent from other docu-ments already in the public domain, officials debated the legal limits of coercive



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force. They reveal that changes to legislation, and additions to the Emergency Powers

regulations, were commonly made retrospectively in order to cover practices that

were already normal within camps and detention centres. Following the paper trail

around these debates, we are also able to see the extent to which officials at differing

levels of authority, right up to the Governor and beyond to the Colonial Office andSecretary of State in London, were aware of these policies and shared in the

decision-making that led to the imposition of regulations and the authorisation of

specific practices.

What, then, do the Kenyan files in the Hanslope Disclosure add to our knowledge of

British conduct during the Emergency? Our preliminary review of the materials high-

lights a number of key issues. Many of the documents provide copious detail on the

administration of torture and substantive allegations of abuse. Indeed, these are so

commonplace that our listing of individual notified cases now stands at close to 500

examples. One voluminous file on abuse, for example, contains a telegram from Gov-ernor Baring to the Secretary of State for the Colonies, dated 17 January 1955, detailing

brutal allegations against 8 British district officers regarding the murder of detainees

under screening (i.e. interrogation). This included the burning alive of detainees.29

There is much other material relating to the need to use coercive force, and the need

to protect British officers and their African subalterns from prosecution for doing so. A

strong impression is given that the avoidance of legal consequence is a foremost issue

in administrative discussions. Striking examples of this are noted in relation to the

aftermath of an atrocity known locally as the Chuka Massacre, and to the enquiries

set up by Col Young into abuses committed by the Home Guard, administration,

and police. Another document on this same file shows Provincial CommissionerC.M. Monkey Johnson writing to the Attorney General, urging him to use the

amnesty of January 1956 as a basis to refuse to institute any enquiry into allegations

of malpractices. In a further letter, dated 2 February 1956, Monkey Johnson acknowl-

edges that if prosecutions are to go ahead, then: It would now appear that each and

every one of us, from the Governor downwards, may be in danger of removal from

public service by a commission of enquiry as a result of enquiries made by the

C.I.D. in respect of incidents which occurred prior to 18 January 1955 [the date of

the amnesty announcement].30

The administration of forced labour is a feature of many of the files. One fileincludes details of the implementation of forced labour upon detainees in Kenyas

detention camps. A lengthy note here from the Attorney General makes it clear that

the Emergency Regulations in operation in this regard are in breach of the Forced

Labour Convention and cannot be sanctioned or defended in law if challenged. It is

noted that the breaches of the Convention are being carried out every day, but the

Attorney General concludes: If, therefore, we are going to sin, we must sin quietly.

The file also contains documents from meetings of senior officers at Government

House, Nairobi, to discuss the forced labour policies, and here, again, the illegality

of Kenyan practice is plainly admitted.31

The legal definitions of coercion and the levels of force to be used in screening or incompelling detainees to work became obsessions among British administrators: in

710 D. M. Anderson


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effect, having decided to use torture and abuse as normal, systemic practices, they then

sought to define how they would conduct these matters. These discussions are signifi-

cant because they include correspondence from Governor Baring and the Secretary of

State for the Colonies, showing that officials at the highest level were directly engaged

in defining these actions, many of which lacked any legal basis. Among the Hanslopepapers is a note of a lengthy discussion with Governor Baring, from July 1957, regard-

ing the degree and type of physical violence to be deployed. Baring acknowledges that

he has contacted the Secretary of State on these matters, especially in connection with

the political difficulties that such actions will cause.32 Another related file includes

candid admission of beatings and abuse to extract confessions from detainees, and

provides detailed descriptions of the methods used, including gross physical torture.

In a letter on this file, dated 23 November 1959, the Attorney General admits that con-

fessions obtained by screening teams run by the Special Branch were not voluntary. 33

At certain camps, specific methods of interrogation were devised, involving the sys-tematic beating and torture of detainees. Mwea Camp provides a clear example, as

indicated in the statement of the third claimant, Wambugu wa Nyingi, summarised

above. Several documents discuss the conduct of interrogations at Mwea, including

detailed descriptions of what was done to detainees. Much of this corroborates oral

evidence presented by Caroline Elkins in her study of the detention camps.34 Numer-

ous documents detail practices at Mwea, categorically showing that the daily beating of

prisoners, followed by repeated torture of those who proved recalcitrant, was part of a

system of treatment devised by the camp officers and implemented thoroughly and

consistently as each party of prisoners arrived at the camp.35 The latter papers in

this file deal with attempts to legalise these systematic tortures through disguisingthe beatings and abuse within the terms of the Prison Act. The file shows that Gover-

nor Baring was fully consulted on the decisions taken at Mwea and was fully aware of

the practices taking placeat one point he even asked for statistics on the men

beaten. Others who visited Mwea were horrified by what they saw, and the file con-

tains a number of papers regarding concerns raised by other administrative staff and

officials. Among these accounts is one from Askwith, the Secretary for Community

Development, who describe the use of deprivationfood denial with starvation for

up to three days, sleep deprivation through water been thrown over detainees to

wake themand regular brutal beatings on a variety of pretexts. Askwith noted: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 hewould be subjected to third degree methods until he did, in fact, obey all ordersgiven. . . Blows struck were solid, hard ones, mostly with closed fists and aboutthe head, stomach, sides and back.36

Lastly, in many senses, the culmination of abuse came with the Hola Camp massacre

of 1959, in which 11 detainees died as a result of beatings when they refused to work

an incident in which Wambugu wa Nyingi was grievously injured. Many aspects of

events at Hola have remained obscure, because despite the availability of officialreports on the killings many of the key documents have until now been missing.



15/19

Some of these have turned up among the disclosed files from Hanslope, including two

files detailing the character of the prison regime at Hola. These papers give a much

clearer picture of the systematic use of violence as a policy in Hola long before the

murders of the detainees, showing also the complicity of senior officers in the deter-

mination of policy. It is openly acknowledged that the methods adopted might resultin someone getting hurt or killed. These papers also add credence to the reported

efforts of the Kenya administration, at the highest level, to initially cover up what

had happened at Hola.37 The significance of this event is to be seen in the Parliamen-

tary Debate that the deaths generated in London in 1959, in which both Barbara Castle

MP and Enoch Powell MP made important speeches.38

Beyond Kenya: A British Empire Archive

It may be easy for a records management system to misplace a single document, oreven to loose a whole file. It is more difficult to believe that over 100 linear feet of

files can be lost in a depository without anyone knowing where or what they are,

yet this is what we are asked to believe happened at Hanslope Park with the Kenyan

materials. This seems incredible enough, but the discovery of the Kenya files was to

lead directly to an even more stunning revelation regarding historical records from

other parts of the British Empire.

When, in March 2011, the staff at Hanslope Park were asked to account for the

delays in unearthing the Kenyan documents, the statement submitted to the Court

by the Head of Corporate Records in the FCO, Mr Martin Tucker, contained infor-

mation suggesting that the stacks of Hanslope Park contained much more than justthe Kenya files. As well as referring to a further deposit of 13 boxes of Top Secret

files from Kenya that could no longer be traced,39 the documents submitted by

Tucker included listings of papers apparently held at Hanslope from many other

former colonies, including Cyprus, Rhodesia, Aden, Palestine, Uganda, Nigeria,

Malaya and Ghana. Though none of these holdings was as extensive as that for

Kenya, some were nonetheless of a very significant scale.40

No doubt realising that the release of this document to the Court would eventually

put these listings in the public domain, the British government took the decision to act

on the matter. On the evening of 5 April 2011, the day before the Mau Mau hearingwas to commence in the High Court, Lord Guildford made a statement to the

House of Lords acknowledging that the FCO irregularly held historical papers relat-

ing to no fewer than 37 former British colonies, amounting to more than 8,800 files in

total.41 Secretly removed from each colony in turn at the time of independence, these

files had been held in the FCOs records stores ever since, not acknowledged to the

PRO or listed for the purposes of the Freedom of Information (FoI) Act after 2000.

Though Lord Guildford warned that it might take many years to review this vast

tranche of material before placing it in the National Archive, by the end of the week

the Foreign Secretary, William Hague, had declared in an interview in The Times news-

paper the governments intention to process the files and make them accessible to thepublic as speedily as possible.42

712 D. M. Anderson


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In the first step towards that goal, Anthony Cary, a former diplomat, was appointed

to conduct an internal review into how the Kenya files and other migrated archives at

Hanslope came to be misplaced. His report was released on 5 May.43 The account he

gives of the history of the migrated archives will do little to reassure historians that

Britains treatment of such records as it might hold is yet robust enough or even trans-parent. Lack of resources, administrative muddle, carelessness, and a prevailing culture

of secrecy all enter this story. Worst of all, however, is the account given of the reaction

of the PRO (now the National Archive) when invited to review the migrated archives in

1995. This presented an opportunity to have the migrated archive brought into the

public domain, but the PRO passed up the opportunitydeclaring that as these

records emanated from the colonies they were not public records to Britain and so

could not be accepted.44 This should make historians who regard the National Archives

as guardians as well as custodians of our records think more deeply about the effective-

ness of the systems we have in place for procuring and retaining records. We are fortu-nate indeed that a decision was not taken in 1995 to destroy the migrated archive.

For historians of empire, the revelation of long-lost documents brings excitement

and anticipation, but the story of their retention and eventual revelation is a deeply

depressing tale that raises many troubling questions. It indicates the ease with

which departments of government can still withhold historical records, and the diffi-

culties that historians still face in trying to access retained materials even when they

may know that such files exist. The FoI Act was supposed to ease our burdens in this

regard, but it is clear that if a department has not listed records under the terms of the

Act, as they should properly do, then those records are not searchable to FoI requests.

The Cary report makes it abundantly clear that staff within the records managementgroup at the FCO were well aware that the migrated archives held at Hanslope Park

had not been listed under the provisions of FoI at the time of the Acts introduction.45

Did other departments then behave in the same way with difficult or expensive sets

of records that may have been irregularly held? Does the Ministry of Defence, for

example, hold records from the former colonies in a similar category to those at

Hanslope Park? And if they do, how can we ever find out?

The Cary report does its best to exonerate past FCO staff from blame for the neglect of

the migrated archives, and there is certainly good reason to praise the current staff for

their diligence in pursuing the matter and finally bringing to light the full extent of theproblem. But this should not blind us to the fact that this saga was both a colonial con-

spiracy and a bureaucratic bungle. It began as a conspiracy to covertly remove sensitive

files from our former colonies at the time of independence. This was successfully accom-

plished in a systematic way over a period of some 20 years, between the British withdra-

wals from Palestine and Aden. We now know that the retrieval of these documents was

a formal part of Britains process of decolonisation. The conspiracy turned into a bungle

as these documents diminished in importance to the FCO in the 1970s and staff then lost

track of them in the various relocations of department and reorganisations of records

management practices in the 1980s and 1990s. By the time of the introduction of the

FoI Act in 2000, as Cary concedes, the migrated archives were best forgotten by adepartment that lacked the resources to properly deal with the implications of the Act.46



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It is somewhat ironic that what began as a quest to find documentary evidence of

systematic British torture in Kenya should end up revealing a potential treasure

trove of documents on the decolonisation of Britains vast empire in the years follow-

ing the Second World War. Professor Tony Badger has been given the very considerable

responsibility of reviewing the migrated archives and overseeing the selection andrelease process.47 Historians of empire will hope that this proceeds speedily and that

the vast majority of these files can indeed be released, preferably without too much

redaction, into the public domain. In the meantime, the first indications that these

important historical materials might lead to a significant revision of the history of

British decolonisation will be seen in the full trial of the Mau Mau case in the High

Court early in 2012.

Notes

[1] For the details of the case, see Royal Courts of Justice, Ndiku Mutua and Others, Summary of

Judgment.

[2] The Times carried daily coverage of the case between Monday 3 April and Friday 14 April 2011.

[3] The case was first discussed in Kenya in the late 1990s, provoked by a number of Mau Mau

veterans associations, and then formally taken up by the KHRC in 2003. The current civil

proceedings commenced in 2006.

[4] Leigh Day website for details and background to the case: www.leighday.co.uk

[5] The five grounds set out for the claim in the Prosecution statement are usefully summarised by

Justice McCombe: (i) that the liabilities of Kenyas colonial government passed to the UK on

independence in December 1963; (ii) that the British government was liable for instigating a

system of torture and abuse in Kenya; (iii) that this system was designed by colonial officialsin Kenya with the British Army and the Colonial office in London; (iv) that in July 1957 the

British government specifically authorized a policy for the mistreatment of detainees; and

(v) that the British government owed a duty of care to Kenyas peoples at this time. Royal

Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

[6] Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

[7] Ibid. See also the press coverage in The Times, 18 July 2011.

[8] Royal Courts of Justice, Ndiku Mutua and Others, Summary of Judgment.

[9] This argument was first clearly stated in Anderson, Histories of the Hanged in 2005.

[10] The summaries that follow are compiled from the witness statements of the claimants. Copies

of the full statements were presented to the Court and are available on the Leigh Day website:

www.leighday.co.uk[11] For an account of the Lukenya Prison break-out and its consequences, see Anderson,The Battle

of Dandora Swamp, 15577.

[12] For a history, see Spencer, KAU.

[13] See Doble, The Kenya Regiment. Also, Parker, The Last Colonial Regiment.

[14] For his memoirs, see Gavaghan, Of Lions and Dung Beetles, and his novella, Corridors of Wire,

about the Kenyan Emergency and in which the identities of the most prominent colonial

officials are only thinly disguised. Gavaghan died in August 2011. For his obituary, see The

Times, 12 August 2011, and the Daily Telegraph, 14 August 2011.

[15] See Elkins, Britains Gulag, for a detailed account of the violent regime at Mwea under

Gavaghans command.

[16] Government of the UK, Documents Relating to Hola Camp; Government of the UK, Further

Documents Relating to Hola Camp

[17] Government of the UK, Record of Proceedings at Hola Camp.

714 D. M. Anderson
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[18] For a full history of the role of Home Guard in the Emergency, see Branch, Defeating Mau Mau.

[19] Most recently, a staff member in the Secretariat has publicly admitted the burning of selected

documents at Government House prior to the British departure, and a leading Kenyan lawyer

of the 1960s has attested to witnessing the destruction of documents at a district office in

Central Province.

[20] See BNA CO 822/1276 for extracts from noe set of minutes from this committee.

[21] RoyalCourtsof Justice,Ndiku Mutua and Others, WitnessStatement of Edward Inglett, 18 Nov. 2010.

[22] Ibid.

[23] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David Anderson, 21 Dec.

2010.

[24] The key file is British National Archive (BNA) FCO 31/211/11. These materials were first drawn

to my attention by Professor Tim Parsons.

[25] BNA FCO 31/211/11, Scott to Arthur, 7 Nov. 1967. See also BNA FCO 31/2119, Reid to Scott, 2

Nov. 1967, and various minutes describing the documents in BNA FCO 31/211/4.

[26] BNA FCO 31/211/11. Further requests to have these documents returned to Kenya were made

in the 1974 and again in the early 1980s: Cary, The Migrated Archives.

[27] The students who assisted in this process were Daniel Ostendorff, Jacob Wiebel, EmmaLochery, Patrycya Stys, Michelle Sikes, Yolana Pringle, and Michelle Osborn.

[28] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of David McBeath

Anderson, 24 March 2011.

[29] Hanslope Disclosure[HD] E 16/3/8A, Governor Baring to the Secretary of State for the

Colonies, 17 Jan. 1955.

[30] These examples are from HD AA 45/35 1A.

[31] HD REC/7.

[32] HD AA 57A, vol. V.

[33] HD AA 45/55/2/17.

[34] Elkins, Britains Gulag.

[35] HD AA 57A, vol. V.[36] Ibid.

[37] HD EMER 45/13/1/5/1A, vol. ii, and HD EMER 45/13/1/5/1A, vol iii.

[38] For a brief discussion, see Anderson, Histories of the Hanged, intro.

[39] It has now been acknowledged that these 13 boxes are lost. A listing of their titles shows that

around 60 per cent relate to the Mau Mau Emergency.

[40] Royal Courts of Justice, Ndiku Mutua and Others, Witness Statement of Martin Tucker, and

Exhibits 1, 2 and 4, 8 March 2011.

[41] Hansard, available at: http://services.parliament.uk/hansard/Lords/byDate/20110405/written

ministerialstatements/part012.html

[42] Hague quoted in The Times, 8 April 2011.

[43] Cary, The Migrated Archives.[44] Ibid., 4 5.

[45] Ibid.

[46] Ibid.

[47] Hansard, available at: http://services.parliament.uk/hansard/Commons/ByDate/20110630/writte

nministerialstatements/part009.html

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