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1. Filed on Behalf of: Claimants 2. Witness: Caroline Macy Elkins 3. Witness Statement: 3 4. Exhibits: CE 1 – CE5 5. Date: 25 May 2012

IN THE HIGH COURT OF JUSTICE Claim No: HQ09X02666

QUEEN’S BENCH DIVISION

NDIKU MUTUA AND 4 OTHERS

- and -

FOREIGN AND COMMONWEALTH OFFICE

WITNESS STATEMENT OF CAROLINE MACY ELKINS

I, CAROLINE MACY ELKINS, of Harvard University, 1730 Cambridge Street,

Cambridge, Massachusetts, 02138, United States of America, will say as follows:

1. I refer the court to over six hundred new documents that provide additional

evidence to that which I submitted in my Statements 1 and 2 which are relevant

to the Claimants’ allegations of wide-spread and systematic abuses in the

detention camps, villages, and screening centers during the Mau Mau

Emergency; the Colonial Office’s knowledge of and direct attempts to cover-up

these systematic abuses; a pattern of executive interference in the execution of

impartial investigations into these systematic abuses; the participation of the

British military in the formulation and execution of the systems of abuse; and the

executive direction of wide-scale document destruction and removal at the time

of decolonization in an explicit effort to shape the archival record and British

colonial legacy in Kenya.

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2. The Foreign and Commonwealth Office (FCO) has produced some 300 boxes of

files related to the Mau Mau Emergency, including those related to the British

colonial government’s policies of detention, the presence of the British military

in the screening and interrogation, the British military’s presence in the

Emergency villages and its direction of punitive operations against civilians, and

the use of torture in the camps and screening centers. These files were

undisclosed during the ten years of research that I undertook on the subject of

detention camps in Kenya during the Mau Mau Emergency. These files are

referenced here as the “Hanslope Disclosure”.

3. Beginning August 2011, I have worked with a team of five researchers at

Harvard University to review the Hanslope Disclosure that has been uploaded

onto a database. This review has consisted of several hundred hours of research,

and has yielded thousands of documents relevant to the issues in this case. It

has also yielded several hundred documents related to the destruction of and

removal of documents from Kenya, 1958-63.

4. This statement presents the most relevant materials from the Hanslope

Disclosure. It reviews materials from my Statements 1 and 2 by way of cross-

referencing previously discussed materials with the new documents from the

Hanslope Disclosure. This statement should therefore be read in conjunction

with my first two statements.

5. This statement serves the following purpose:-

i. Outlines the existence of published historical evidence prior to 2005.

ii. Identifies new Hanslope Documents pertaining to the Colonial

Administration (CA) and Colonial Office (CO) were identified in

relationship to the following items:

i. The role played by the CA and CO in the establishment and the

maintenance of the system of detention camps, prisons,

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interrogation centres and screening in Kenya, or the provision

of guidance, advice and the authorisation of the system of

detention, screening and interrogation;

ii. Nature and extent of detainee abuse and the CA’s and the CO’s

knowledge of these abuses; and, instances where the CO

sanctioned and/or suppressed evidence of systematic detainee

abuse in conjunction with the CA; and

iii. The failure of the to act with relationship to known instances of

abuse.

iii. Identifies new Hanslope Documents pertaining to the British Army

(BA) were identified in relationship to the following items:

i. Knowledge of abuse;

ii. Participation in abuse;

iii. Creation, maintenance and application of systems of abuse;

and

iv. Failure to act on knowledge of abuse.

iv. Identifies new Hanslope Documents pertaining to the destruction

and/or removal of documents from Kenya were identified in

relationship to the following items:

i. Nature of documents destroyed and/or removed; and

ii. Why the documents were destroyed and/or removed.

v. Identifies redactions and missing documents were identified.

vi. The issue of surviving witnesses is further addressed.

Published Historical Evidence Prior to 2005

6. In 2005 I published Imperial Reckoning: The Untold Story of Britain’s Gulag in

Kenya (simultaneously published in the UK and Commonwealth as Britain’s

Gulag: The Brutal End of Empire). The same year, David Anderson published

Histories of the Hanged: The Dirty War in Kenya and the End of Empire. Two years

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later, Huw Bennett published his dissertation, British Army counterinsurgency

and the use of force in Kenya, 1952-56.

7. Anderson’s work focused on the capital cases and forest war during the Mau

Mau Emergency; Bennett’s on the role of the British military in the counter-

insurgency operations during Mau Mau; and mine on the system of detention

and villagization, or the civilian side of the war. Imperial Reckoning offers a first,

full account of the structures, institutions, and personnel that gave rise to system

of detention camps and Emergency villages during Mau Mau.

8. When read together, these three works provide both new documentation and

oral testimonies, as well as a fresh re-examination of previously reviewed

evidence. As historians we concluded that the evidence emphatically chronicled

systematic abuses and abrogation of justice meted out by the British colonial and

military forces to Mau Mau suspects and detainees during the final years of

colonial rule in Kenya.

9. Prior to 2005, there existed several memoirs from detainees and members of the

Colonial Administration, police, and British military. Several of these accounts

provided details of abuse, though did not offer accounts of systematic abuse, and

were often times regarded as anecdotal or representative of “one-off” abuses.

None of these accounts provided the evidence to substantiate a claim of

systematic abuse established and maintained by the Colonial Administration,

Colonial Office, and British Military.

10. Prior to 2005 there also existed a vast historical literature on the topic of Mau

Mau. Notably, there were no books that documented the structures, institutions,

and personnel that gave rise to system of detention camps and Emergency

villages during Mau Mau. Equally no historian attempted to document fully the

growth of systematic violence and abuse over time in the screening and

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detention camps and Emergency villages; the degree of knowledge of the

systemized abuse in the Colonial Administration and Colonial Office; and the

degree of direction, sanctioning, and attempts to cover-up this systematized

abuse in the Colonial Administration and Colonial Office.

11. There did exist three books, in particular, that gestured to abuse in the detention

and screening camps, though they were not comprehensive and they lacked

substantial evidence to make the claim of systematized abuse directed and

condoned by the Colonial Administration, Colonial Office, and British Military.

12. The first such book was Anthony Clayton’s Counter-Insurgency in Kenya, 1952-60,

published in 1976. This short, 62-page book contains short entries on such

topics as capital punishment, intelligence, the Army, and detention camps,

among other things. It does not research the issue of systematized violence and

cover-up.

13. The second book is Robert B. Edgerton’s Mau Mau: An African Crucible published

in 1990. Edgerton presents one chapter, or 28 pages, on detention and

screening, and in it he offers examples of abuse. Edgerton’s evidence, however,

was thin. In terms of primary sources, he relied upon 9 memoirs written by Mau

Mau detainees, 9 archival sources, the published Hola Reports, Jack Report,

Heaton Report, Fairn Report, and Corfield Report, and 9 original interviews. While

Edgerton’s work gestured towards a rethinking of Mau Mau, it was not an

account of systematized violence backed by detailed evidence.

14. The third book is John Newsinger’s British Counter-Insurgency from Palestine to

Northern Ireland, published in 2002. This book offers one chapter, or 23 pages,

on the entire Mau Mau Emergency; it offers 5 pages on what Newsinger calls “the

scale of repression.” His accounts of abuse are limited, and are derived from

previously published sources. He does not use any archival or oral evidence to

substantiate his work.

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15. None of these works offer a full analysis of the structures and institutions of the

screening centers, detention camps and emergency villages; the executive

decision-making and responsibility for the screening centers, detention camps

and emergency villages; or the relationship between the CO, CA, and BA in the

functioning of these theatres of the emergency. Consequently, even large

volumes of new documentation, like that recently produced through the

Hanslope Disclosure, would have been extremely difficult to process historically

prior to 2005, as one would have had little knowledge either of the institutional

structures and practices, or of the key individuals and responsible

administrative units, in which to place the new evidence. For example, prior to

2005 no historical work on the Mau Mau emergency investigated Terence

Gavaghan and the dilution technique. In addition, no historical work

investigated the emergency villages beyond mentioning that they existed prior

to the publication of my work.

16. The lack of published work until 2005 on the role of the colonial government

and British military with regard to systematized violence during the Mau Mau

Emergency is significant, and reflective of the research challenges on this topic.

The archival evidence is fragmented, due to the concentrated efforts of the CO

and CA to destroy documentation on the eve of decolonization, and to remove

large amounts of documents from Kenya to the United Kingdom. Evidence from

the Hanslope Disclosure reveals that an estimated 3 ½ tons of documents were

to be destroyed in Kenya prior to December 1963, and that the British

government withheld at least some 30,000 documents prior to its recent

Hanslope Disclosure.

17. With regard to Imperial Reckoning/Britain’s Gulag, it took nearly a decade of

scouring through the extant archival record searching for any relevant

documents not destroyed or left behind in Kenya, or not destroyed and not

withheld in the United Kingdom. The process of historical reconstruction can,

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therefore, be likened to constructing a one-thousand piece jigsaw puzzle, with

the pieces being scattered across continents (Africa, Europe, and North America)

and located in multiple different archives, with evidence being written, visual,

and oral. It was crucial, therefore, that an academic expert have significant time

and funding to execute the research necessary to reconstruct the system of

detention and villagisation. In my instance, I benefitted from 3 consecutive

years of full research funding; in addition, I was also funded to conduct multiple

shorter periods of research ranging from a few weeks to several months. Finally,

I also benefitted from more than two full years of time/funding to write-up my

research findings. This was significant in that piecing together the jigsaw puzzle

required significant time outside of the archives to analyze and integrate the

multi-archival evidence together in order to form as complete as possible picture

of the processes of screening, detention, and villagisation.

18. The process of evidential reconstruction was slow and laborious, though yielded

several thousand relevant files. Many of these have been tendered to the Court

with my first Witness Statement. Furthermore, newspaper articles,

photographs, House of Commons/Lords Debates, Legislative Council Debates,

and other publicly available documents were mined. In addition, oral interviews

were conducted, as outlined in my First Witness Statement, paragraph 3. When I

read this evidence together, I was able to document:

i) the structures, institutions, and personnel that gave rise to system of

detention camps and Emergency villages during Mau Mau;

ii) the growth of systematic violence and abuse over time in the

screening and detention camps and Emergency villages;

iii) the knowledge of the systemized abuse in the CA and CO;

iv) and the direction, sanctioning, and attempts to cover-up this

systematized abuse in the CA and CO.

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19. This evidence served as the basis for Imperial Reckoning/Britain’s Gulag,

published in 2005.

The Hanslope Disclosure

20. The Hanslope Disclosure provides voluminous further evidence (running to

30,000 documents) on the following issues:

i) The nature and extent of detainee abuse during the Kenya Emergency;

ii) The CA and the CO’s knowledge of those abuses;

iii) Substantial evidence relating to decision making in the CO and the CA

during the Kenya Emergency;

iv) Further evidence on who precisely was perpetrating acts of violence.

Furthermore, the Hanslope Disclosure provides new evidence as to:

v) The precise role of the British Military both in terms of a) the

participation of the military chain of command in all aspects decision

making during the Kenya Emergency b) the detailed participation of

military personel throughout the “civilian institutions” of the colony,

such as villages, intelligence structures and the Provincial and District

Committees;

vi) The pattern of executive interference in the rule of law with regard to

allegations of violence and abuse of detainees and the compromised

nature of inquiries, investigations and prosecutions into those abuses;

vii) The approval of the use of violence via the legalization of the “Dilution

Technique” in the knowledge inherent risks of harm and death.

viii) The scale of the destruction/removal of incriminating documents.

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Extent of Abuses and Knowledge of Abuses

21. The facts relevant to the extent of abuses against detainees and the state of

knowledge of both the CA and CO are set out at length at paragraphs 64 to 134 of

my first statement. In summary, repeated reports of abuses, both internal and

public are made throughout the Kenya Emergency from 1952 through to the

Hola Massacre on 4 March 1959. I refer the Court to the following Paragraphs in

Witness Statement 1:

i. Complaints by Canon Bewes, February 1953, paragraphs 64-69.

ii. Allegations March-July 1953, paragraphs 70-73.

iii. Forced Labour, paragraphs 75-79.

iv. Alleged abuses in screening centers and detention camps, paragraphs

80-81.

v. Arthur Young, Nov-Dec 1954, paragraphs 97-91.

vi. Complaints by Barbara Castle MP, November 1955, paragraphs 97-99.

vii. Eileen Fletcher, May 1956, paragraphs 100-102.

viii. Captain Philip Meldon, January 1957, paragraphs 103-105.

ix. Internal Inspection Committees, paragraph 106, whereby inspection

committees are called “window dressing.”

x. Further complaints by Church leaders, 1954-1955, paragraphs 108-09.

xi. Lokitaung Allegations, 1958, paragraphs 116-18.

xii. Allegations by Victor Shuter, Captain Ernest Law, Leonard Bird and

Anthony Williams-Meyrick, 1959, paragraphs 119-26.

xiii. Colonial Office aware that Kenya government would not

investigate anonymous allegations of abuse, and fear of detainees of

signing letters reporting abuse, paragraphs 131-32.

22. The Hanslope Disclosure offers significant further evidence that will assist the

Court in determining whether systematic abuses occurred in screening centers,

detention camps, prisons, Home Guard Posts, and Emergency Villages and the

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state of knowledge of the Colonial Office and the Colonial Administration. In

broad terms the evidence falls into the following categories:

i) Extensive new evidence relevant to the CO’s knowledge of

abuse;

ii) The CO’s control over the CA and it role in providing guidance,

advice and the authorization of the system of detention,

screening and interrogation;

iii) The CO’s awareness of and participation in the interference in

the rule of law with regard to investigations and prosecutions

of abuses;

iv) The compromised nature of investigations and prosecutions

that did take place;

v) The CO and its role in thwarting any independent investigation

into the abuses associated with screening, detention, and

villagization.

23. The abuses of detainees are discussed in Reports, Committee Minutes, and

Internal Memorandum throughout the Emergency. The Hanslope Disclosure

contains multiple documents that contain references and details of these abuses

and discussions. Details of these abuses are set out below, as well as in Exhibit

CE1 which provides additional details drawn from specific documents in the

Hanslope Disclosure. In addition, I attach a schedule of reported cases of abuse

which have emerged from the files at Exhibit CE2.

24. There are also occasions when the Governor or another member of the CA or BA

warned against the continuation of abuses. Some of the records contained in the

Hanslope Disclosure present new instances of warnings; others duplicate such

warnings as contained in my First Witness Statement; and on other occasions

the Hanslope Disclosure provides documents that augment our understanding of

these warnings. It is important that these warnings are understood in the

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context of other documents which will assist the court in determining whether

the CO and CA in fact sought to sanction and/or tolerate systematic abuse

despite these statements of intent.

25. In addition, there are documents in the Hanslope Disclosure that reveal multiple

instances which are relevant to the Court’s understanding of whether members

of the CA and CO sought to minimize abuses or thwart investigations into cases

of abuse. These documents will also be identified. A list of all the documents

referred to in this statement are attached at Exhibit CE3.

Chronological Overview of Events

Knowledge of and the reaction of the CA and CO to Abuses, 1953- 1955

26. The Hanslope Disclosure reveals significant additional evidence relevant to the

allegations of CA’s and CO’s knowledge of abuse and executive interference into

investigations and/or prosecutions into this abuse beginning in 1953 and

extending through January 1955. The Court will recall that the December 1954

resignation of Colonel Young and the numerous allegations that he and his

assistant, Duncan McPherson, made amounted to serious charges of abuse and

cover-up on the part of the CA and CO. The Hanslope Disclosure offers

additional documentation of Young and McPherson’s allegations. The Court will

also recall that following these series of allegations of abuses, as well as those

put forward by church leaders and officials in Nairobi and London, the CA

declared an Amnesty in January 1955. This Amnesty prevented any

prosecutions or further investigations into abuses perpetrated prior its January

1955 declaration. The CO was aware of this action, and the consequences it had

upon investigations into abuses. The significance of the timing of this Amnesty is

further illuminated with the Hanslope Disclosure as new documents provide

additional evidence as to the volume of cases of reported abuse prior to 1955, as

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well as the close temporal connection between these abuse cases and the

January 1955 Amnesty.

27. Previous documentation of abuses. The Court is referred to my first witness

statement, paragraphs 84 and 86, detailing allegations of abuse by church

leaders. These include that of Canon Bewes on 9 March 1953 and an internal

memorandum titled “Atrocities,” detailing alleged abuses perpetrated by British

security forces, dated c. July 1953.1 The document states: “Allegations of

“atrocities” and ill-treatment of prisoners by the security forces (including

troops, police and Home Guards) have been made virtually since the Emergency

began”.

28. Screening Abuses. There is significant additional documentation in the Hanslope

Disclosure of screening abuses. Details of select evidence are contained below;

additional evidence is in CE1.

i. Attorney General Eric Griffith-Jones interviewed several Europeans

complaining on behalf of Africans, and Africans who had been

beaten/forced to labour by screening teams:

“I am confirmed in my fears that widespread injustice is being perpetrated by screening teams, whose identifications seem in many instances to be indiscriminate and/or vindictive…Njegena’s story as a whole is, if true, distressingly reminiscent of conditions in Nazi Germany or Communist Russia.”2

ii. Embu Screening Team. Whyatt, Member for Legal Affairs to Governor,

29 May, 1953:

“Y.E. [i.e. Governor] will be very concerned to read of the appalling goings-on of the Embu screening team and of the authorities at Thika...” (AA 45/26/2A Vol 1, Bates 001597-98, Memorandum from Whyatt, Member for Legal Affairs to Governor and Chief Secretary, 29 May, 1953).

1 PRO CO 822/489/42, “Atrocities.” no date. 2 (AA 45/26/2A Vol 1, Bates 001601-02, “Record of Meeting Between the Solicitor General and Mr. Hughes, of the British Council, and Two Africans, 26 May, 1953).

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iii. On 14 December 1954 K.P. Hadingham, Assistant Commissioner of

Police, Nyeri Area, reports with regard to the area of Mathira in Nyeri

District:

“In the words of the District Officer, Mathira: ‘It must be faced up to quite openly and frankly that Summary Justice has, undoubtedly, been carried out in many instances…’ Acts of murder, rape, arson, robbery and extortion directed against the local population, even though they be Mau Mau sympathizers, can never be terms as ‘the Administration of Justice’.”3

iv. The Kenya Council of Ministers was aware of criticism about

interrogation practices. An extract from Minutes of Council of

Ministers Meeting on 31 December 1954 states:

“The European Minister without Portfolio reported that United Kingdom opinion was uneasy over methods used in screening camps, which were sometimes compared with processes of interrogation and persuasion in Iron Curtain countries.”4

29. Colonial Secretary had knowledge of abuses. In January 1954, the Colonial

Secretary sends savingram to Governor, with reference to letter from victim to

Fenner Brockway, together with two photographs, about alleged extortion and

brutality by Home Guards.5 The victim letter to Brockway, conveyed to the

Colonial Secretary, stated:

“I enclose herewith a statement and photograph which is self-explanatory and which I trust will meet your attention. It is understood that incidents similar to this one must have appeared and the fact that the C.inC. in East Africa has strongly opposed to any brutality against the inhabitants of this Country but does not indicate that his repeated orders are evidently carried out. While these warnings are escaped by Security Forces we are bound to go on suffering for longer time.”6

30. In April 1953 three Affidavits were sent to Colonial Secretary from Fenner

Brockway “alleging brutality by Security Forces.” Statements taken by F.R.S. De

3 (AA 45/55/2/2A, Bates 007765-67, K.P. Hadingham, Assistant Commissioner of Police, “The Situation in South Nyeri Reserve with Particular Reference to Mathira,” 14 December 1954). 4 (CAB 19/4/ Vol I, Bates 0117222, Extract from Minutes of Council of Ministers Meeting, 31 December 1954). 5 EMER 45/55/2A Vol 1, Bates 003140, Savingram from Secretary of State for the Colonies to Governor, 15 January 1954. 6 EMER 45/55/2A Vol 1, Bates 003141, Letter from Njuguna s/o Kabutha, Thika, to Mr. F. Brockway, 24 December 1953.

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Souza.7 The Court will recall that F.R.S. De Souza, who is still alive and lives in

Nairobi, was an Asian attorney who represented, by his estimate, thousands of

Mau Mau clients during the emergency. De Souza would later state in the End of

Empire documentary that:

i.

“[The idea of shooting people on the spot] was quite, quite, quite widely spread, I was surprised to find that many reasonable educated people, some of them in fact later became Members of Parliament, and to a very responsible position in independent Kenya supported this idea of arrest a hundred people from nowhere just shooting thirty and sending the seventy to tell the tale of who was the boss.”8

31. The Colonial Office was kept informed of abuse cases by the Colonial

Administration. On 5th May 1954 in preparation for a Parliamentary Question,

the Colonial Administration sent a list of 42 cases in which people were charged

with killing or maltreating Mau Mau suspects, includes 6 military personnel:

Capt. Griffiths; Ptes Pearson, Taylor MacGibbon; 2/Lt Green; W.O. I Tierney (all

convicted by Court Martial for offences of violence against Africans).9

CA and CO’s reaction to the allegations of abuses 1953-55.

32. The CA and CO, together with General Erskine of the BA, made various

statements calling for restraint of abuses. New documents from the Hanslope

Disclosure provides further evidence that indicates abuses continued despite

executive directives to the contrary. There is also significant evidence in the

Hanslope Disclosure which will enable the court to consider where there was

executive interference undermining the investigation and prosecution of cases.

33. The court will recall General George Erskine’s June 1953 statement against

abuses and cooperative investigations (first witness statement, paragraph 74).

In addition, the Hanslope Disclosures include the following directives:

7 EMER 45/55/2A Vol. 1, Bates 003128-32, Savingram from Secretary of State for the Colonies to Government of Kenya, 29 April 1954. 8 RH, Mss Emp. S. 527/8, End of Empire, Fitz de Souza. 9 EMER 45/55/2A, Vol II, Bates 3198-3200, Memorandum “Parliamentary Question,” 5 May 1954.

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i. Governor Baring wrote in February 1953:

“During the last few weeks a considerable number of persons have approached me and have alleged that Kikuyu in the Reserves, against many of whom nothing is known, have been beaten and maltreated, sometimes by members of the Police and sometimes by African soldiers…The whole country admires and is grateful for the work done by the Army and the Police Force in the Reserves. I am also well aware of the extreme difficulty of the task and the trying circumstances in which it is undertaken. In spite of this I feel bound to ask all ranks that there should be no behaviour of the nature alleged. If in the future there are good ground to believe that inhuman methods have been used severe disciplinary action will be taken against those responsible.” 10

ii. Further, with regard to the Kiambu Screening Team, perpetrating

abuses in Nyanza, Attorney General Griffith-Jones writes, “our slogan

must be “Clean up,” not “Cover up.”11

34. Continuation of abuses. Whilst these statements were issued, evidence cited

above, and in my First Witness Statement, paragraphs 80-93, 97-109, 116-26,

indicate that abuses continued unabated. In addition, considerable evidence will

be offered below and in CE1 of continued abuses throughout the Emergency.

35. There are numerous documents which are relevant to the question of executive

interference in the rule of law during this period including:

i. The Nairobi City District Intelligence Committee Summary for the

Week Ending 29th January 1954 stated with regard to a possible case

against three members of the Kenya Regiment and one civilian: “There

are suggestions that once again Government is hushing up yet another

case which might prove embarrassing, should it come to Court.”12

[Emphasis added]

10 (EMER 45/19A, Bates 00624, Baring, “Kikuyu Disorder, Directive by his Excellency the Governor,” 11 February 1953). 11(AA 43/26/2A, Vol 1, Bates 1517-18, Memorandum from Eric Griffith Jones to Chief Native Commissioner, 15/12/53). 12 (INT 10/4/2/6A Vol II, Bates 006390-94, “Nairobi City District Intelligence Committee Summary for the Week Ending 29th

January, 1954).

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ii. The CA states to the CO that it is impossible to explain “subtleties of

the law” to subordinates, and that applications of the “ordinary law” is

not reasonable:

“It is impossible to instruct fully the lower ranks of the security forces in all the subtleties of the law in this respect, neither would it be reasonable in emergency conditions to judge their actions in the light of the strict limitations of the ordinary law.” (EMER 45/19A, Bates 000574-75, Memorandum from Potter to Rogers, 27 March, 1953).

ii. Notably, General Erskine privately contradicted his his famous June

1953 statement denouncing the “beating up” of the inhabitants of

Kenya, General Erksine stated:

“That he feared that if the full severity of the law were exerted against members of the Kikuyu Guard there might well be disaffection amongst them. There had already been some desertions and he was most anxious that the Kikuyu Guard, who were not a disciplined force in the normal sense of the term, should not be expected to come up to the standard of conduct which was demanded from Regular Forces. He thought that where members of the Kikuyu Guard were proved to be in sympathy or league with Mau Mau, then extreme penalties were justifiable; but where breaches of discipline by the Kikuyu Guard were committed in good faith, the penalty might be dismissal.” 13

Judicial Records 1953-55

36. The persistence of abuses and tortures is further recorded by the judicial

records at the time. The CA and CO’s reaction to judicial criticism is also highly

relevant to the question of the impartiality of investigations into abuses. The

Court is referred to the judicial records set out in Prof Anderson’s second report

and, in particular, the Judgment in East Africa Court of Appeal Criminal Appeal

No. 818 of 1954, Trial Judge stated:

“The First Accused alleges that he was beaten on the abdomen by a European Officer after arrest, and medical evidence supports his contention that he was beaten. I have often protested against the ill-treatment of captives from this bench, but in vain. The practice still prevails, and I can only assume that it is condoned by the authorities in charge of local Security Forces. Otherwise it would cease. I shall draw the attention of His Excellency the Governor to this latest instance.”14

13 CAB 19/4, Vol 1, Bates 001791, Extract from Minutes of War Council Meeting, 11 June 1954. 14 (EMER 45/55/2A, Vol 1, Bates 3169, Jones, for DC Nyeri, to Provincial Commissioner, “E.A.C.A Criminal Appeal No. 818 of

1954,” 16 November 1954; EMER 45/55/2A, Vol 1, Bates 003170-71, Registrar to Minister for Internal Security and Defence, “E.A.C.A Criminal Appeal No. 818 of 1954,” 3 November 1954; EMER 45/55/2A, Vol 1, Bates 3172-74, “E.A.C.A Criminal Appeal

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37. The Court also reminded of the Ruthagathi Judgment of December 1954, one of

many judicial decisions with regard to torture and abuse as outlined in Professor

Anderson’s second statement. On 10 December 1954, Acting Justice Cram’s gave

judgment in a trial of Home Guards at Ruthagathi. He found that:

“Looking at the evidence in this case that there exists a system of guard posts manned by

headmen and chiefs and these are interrogation centres and prisons to which the Queen’s

subjects whether innocent or guilty are led by armed men without warrant and detained and as

it seems tortured until they confess to the alleged crimes and are then led forth to trial on the

sole evidence of those confessions, it is time that this Court declared that any such system is

constitutionally illegal and should come to an end and these dens emptied of their victims and

those chiefs and headmen exercising arbitrary power checked and warned.”15

38. The Court is referred to paragraphs 32 to 34 of Prof Anderson’s second statement as

to the CA and CO’s reaction to these judicial findings. In essence, an investigation

into the allegations were conducted by Judge Holmes and upon the intervention of the

President of the East African Court of Appeal the second part of the report was not

published, with the agreement of the Colonial Office, on the grounds that the matter

had not been properly investigated by the Kenyan administration. The President of

the East African Court of Appeal commented:

“This Report as it stands will give the impression to the casual reader in Kenya that the criticisms of the Judge in Criminal Case No. 240 of 1954 (Regina v. Muiru & Others) have been answered, when in fact they have not; and will not satisfy the trained critic in London who will detect at a glance that no really searching enquiry has been made”.

Chief Secretary’s Complaints Co-ordinating Committee, January 15th, 1954.

39. Important new evidence as to the Colonial Administration’s response to

allegations of abuse has emerged from the complete set of minutes of the

Complaints Co-ordinating Committee that were contained in the Hanslope

materials. The purpose of the Committee was “to receive complaints of ill-

No. 818 of 1954, Emergency Assize Criminal Case No. 289 of 1954 (Nyeri), Extract of Judgment of the Trial Judge, Statement Made

by Appellant at the Trial, Evidence of Medical Officer, Native Civil Hospital, Nyeri). 15 Criminal Case No. 240 of 1954 of HM Supreme Court of Kenya at Nyeri

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treatment by members of the Security Forces and to direct such complaints to

the appropriate authorities (viz. the CID or Security and Intelligence Branch.”16

40. The Committee met from June 1954 until November 1959. During this time, the

Committee reviewed 308 individual cases of abuse. Of these cases, members of

the military perpetrated 31. Of all of the cases, 62 were reported rapes.

41. All minutes of the Committee were sent to the Colonial Secretary. The CO had

full knowledge, therefore, of the cases, and commentary from the CO on certain

cases is contained in the Hanslope Disclosure.

42. These include:

i. Alleged Burning of Kikuyu (144)

“….a Kikuyu Wairuiru s/o Muchire had been badly burned by S.P.R.O. Harris i/c Dundori Police Post who was alleged to have placed a boiled egg under the arm-pit of the complainant…”17

ii. Alleged Burning of an African Child (151)

“… a preliminary report alleging that the District Officer Kangema had on the 2nd February set fire to a hut at Miruthi Home Guard Post in Location 14 Fort Hall as a result of which an African baby was burnt to death.” 18

iii. Assault on Ndegwa s/o Rudiri (214).

“Man beaten by three prison warders and dragged behind a Landrover by an ALDEV officer at Mwega Works Camp. “The man alleges that whilst in custody at Mwega Works Camp he was beaten up by three Prison Warders and dragged along the ground behind a Landrover driven by an ALDEV officer Salman E. Taljaard.”19

iv. Assault of Njiri d/o Magothe (222).

Woman alleges that while at Kirigithi Reception Camp, she was assaulted by four wardresses who fractured her collar bone and inserted broken glass into her vagina. “The woman alleges that on the 11th April at Kirigiti Reception Camp she was assaulted by four wardresses and 9a) had her collar bone fractured; and (b) had her vagina cut by broken glass being inserted.”20

16 Bates 011726, Memorandum from Cabinet Office to General Heyman, Chief of Staff, 17 December 1954. 17 Chief Secretary's Complaints Co-Ordinating Committee, 20 September 1954, Rec. 301, CAB 19/4 Vol. I, 011768-011769. 18 Chief Secretary's Complaints Co-Ordinating Committee, 7 March 1955, Rec. 301, CAB 19/4 Vol. I, 011709-011710. 19 Chief Secretary's Complaints Co-Ordinating Committee, 5 September 1956, Rec. 302, CAB 19/4 Vol. II, 011916-011920). 20 Chief Secretary's Complaints Co-Ordinating Committee, 19 June 1957, Rec. 302, CAB 19/4 Vol. II, 011879-011883.

19

v. Allegation of assault and burning with stones (224). Gitonga s/o Mugo complains of being burned with hot stones on his abdomen and pubes by T.P. Gitau s/o Nganga. “… he alleges he was beaten, kicked and burned by the Accused. Hot stones were placed on his abdomen and pubes.”21

43. Despite the existence of the Complaints Co-ordinating Committee beginning

January 1954, Thomas Askwith, the Commissioner for Community Development,

and the Committee he chaired on the sociological causes for Mau Mau, expressed

concern over the lack of redress for victims of abuse and torture. The

Sociological Committee recommended in February 1955 that those Africans who

suffered abuse should have an opportunity to have their cases heard and redress

offered.22 This recommendation was not executed.

44. This statement is augmented by oral testimony offered by Askwith whereby he

states, “The Detention Camp system was not an efficient one…We relied upon

peoples humanity, and if they were inhumane then we had a hard time doing

anything about it. This happened over and over again. Abuses I mean, terrible

abuses against detainees. I tried, but there was nothing I could do to stop it.”23

(See Exhibit CE4)

Arthur Young and Duncan McPherson, Allegations of Abuse, 1954-55.

45. The Court will recall from my Witness Statement 1, Paragraphs 87-91, that Sir

Arthur Young was posted in February 1954 to Kenya as Commissioner of Police

from his position as the City of London’s police commissioner with the purpose

of cleaning up Kenya’s police force and transforming it into an impartial

instrument of the rule of law. Young resigned less than a year later due to his

inability to execute his role. Importantly, the Chief Secretary’s Complaints Co-

21 Chief Secretary's Complaints Co-Ordinating Committee, 16t July 1958, Rec. 302, CAB 19/4 Vol. II, 011841-011842. 22 ADM 1/1/5/9A Vol II., Bates 00397-003410, “Report on the Sociological Causes Underlying Mau Mau with some Proposals on the Means of Ending It,” with cover memorandum from T.G. Askwith, Chairman, et. al., to Acting Governor, 13 February, 1955 23 Documents submitted to the FCO from Professor Elkins, Extract from Interview with Thomas Askwith, June 8, 1998.

20

ordinating Committee directed complaints, though it did not ensure an ability on

the part of Young and the C.I.D. to investigate freely. This evidence is central to

the Court’s appreciation of the degree to which the CO and CA compromised the

rule of law in Kenya. The new evidence contained in the Hanslope Disclosure

provides further details of the widespread abuses that Young, and his assistant,

Duncan McPherson, were attempting to investigate. These extensive details are

new and important for the Court to consider in conjunction to my previous

description of Young’s resignation and the Colonial Secretary’s suppression of

Young’s resignation letter in Witness Statement 1.

46. The Hanslope Disclosure provides significant more detail on the findings of

Young, his reasons for resignation, and the details of particular cases of abuse

and torture perpetrated by the forces of law and order, particularly those

identified by Duncan McPherson, Assistant Commissioner of Police, who worked

closely with Young during his tenure. As Lennox-Boyd would not publish

Young’s resignation letter, the new files in the Hanslope Disclosure provide

significant evidence behind Young’s resignation. The primary concern of Young

was the continuation of extensive abuses, and direct executive interference on

the part of the Governor in the Police Department’s investigation of abuse

allegations – investigations that were crucial to the follow-up, in part, of cases in

front of the Complaints Co-ordinating Committee.

47. The Court will recall that Young later stated about his resignation letter in

January 1955 that:

“It is clear that if my report had been published to Parliament, the Governor in the very least would have been recalled and the Colonial Secretary himself would have been in a very hazardous position.” (See First Witness Statement , paragraph 89).

48. In a letter dated 22 November 1954, Young writes to the Governor regarding the

lack of impartial investigations into allegations of abuse:

“As things are at present there is no one who can investigate such allegations and no independent authority who is responsible for the conduct at these camps. An African who is unfortunate enough to suffer from the brutalities which are clearly evident has

21

no one to whom he can complain and no one to regard his interests since the local Administrative Officer is, himself, the authority for the camps. Moreover, the injured person is unlikely to appeal to the police for redress if they are to be regarded as subordinate to the Executive…I do not consider that in the present circumstances Government have taken all the necessary steps to ensure that in its Screening Camps the elementary principles of justice and humanity are observed.”24 [Emphasis Added] [See CE1 for full quotation].

49. The new documentary evidence goes to the Colonial Administration’s

willingness to deal with allegations of abuse and will assist the Court in

determining whether there is evidence of a pattern of executive interference in

investigations. On 14 December 1954 Young wrote to the Governor in which he

stated:

“In a recent interview which you had with the Assistant Commissioner in charge of the Criminal Investigation Department, my officer detailed to you specific instances in which there had been interference by officers of the Administration with Police Investigations into alleged brutality and murder by Tribal Police and Home Guards. Interference which, in some cases, had been carried to the point of hostility and even willful prevarication and deception.”

50. Young received no response to this letter from Baring. Nor did he receive

responses to two subsequent letters and he states in a letter to the Governor

dated 28 December 1954:

“all dealing with the subject of the brutality committed by the Home Guard under the control of Government’s Administrative officers…Your Excellency stated your intention of holding an “off the record” meeting between Police and Administration in order to avoid such troubles in future. So far as I am aware no arrangements for such a meeting have yet been made.”25

51. Young refers to individual cases currently under enquiry by the C.I.D., as

outlined by his assistant, McPherson. These cases total 19 in all, and are detailed

in documents in the Hanslope Disclosure. They include multiple cases of torture

in Home Guard posts. One such case is that of a deceased prisoner detained at

Magumu Home Guard Post. The Post Mortem revealed an otherwise healthy

African male who had “multiple bruises on various parts of the body” including

his forearms, both knees, left leg, right foot, chest, back, scalp, and left shoulder.

24 (AA 45/55/2/2A, Bates 007783-84, Letter from Young to Governor Baring, 22 November 1954). 25 E19/14171, Bates 010918-19, Letter from Young to Baring, 28 December 1954.

22

“The bruises vary in size and shape, some were only about the size of a penny,

others were as big as a cigarette case.”26

52. In a separate letter, McPherson provided extensive details of abuse and torture

in Home Guard Posts and during screening, raising 19 cases. He details beatings

resulting in deaths, torture for 10 days resulting in death, death as a result of

violence during “screening operations,” death as a result of whipping (over 50

marks on back), and summary executions. McPherson summarizes his findings

in a letter to Young dated 23 December 1954 which I quote at length, in which he

concluded:

““These cases have brought to the surface a state of affairs that confirms strong suspicions I had entertained during my perusal of similar cases. In my view, political expediency, or any other ingredient, is a clear interference with the course of Justice and completely conflicts with the basic principle of police procedure. Police have a clear statutory duty to perform in such cases and any “pressure” to deviate from that duty strikes hard at that basic absolute impartiality that Police Officers on Oath to their Queen have sworn to observe in the course of their duties……. There is no feeling of usefulness that would indicate a helpful attitude to assist us in our enquiries. On the contrary there is an ever present air of nuisance value and a more than necessary endeavour to “white-wash” the culprits and to infer that the allegations are the produce of fertile minds directed against the Government. 27

53. Several more examples, including rape, summary execution, and tortures in

Home Guard posts are included in the McPherson documents.28

54. My first witness statement explains that the Colonial Office refused to publish

Young’s report or resignation letter despite calls from Parliament to do so. The

Colonial Office press release contained no particulars of Young’s original

resignation letter.

26 E19/14171, 010920-27, Letter with enclosures from R.C. Catling to Pritchard, 3rd March 1955. 27 E19/14171, Bates 010910-17, Letter from McPherson to Young, 23 December 1954. 28 See E19/14171, Bates 010907-909, Letter from McPherson to Young, 10 December 1954; E19/14171, Bates 010928-31, McPherson, “Special Report,” October 5, 1955).

23

55. Governor Baring commented on the abuse of Kikuyu Guard in a December 1954

directive, after Young’s resignation, concluding that:

“But now that conditions are becoming more normal it is essential that the problem of the holding and interrogation of suspected persons should be dealt with more in accordance with normal peacetime practices.”29 (See CE1 for full quotation).

Amnesty, January 1955.

56. The Court will recall in my First Witness Statement, paragraphs 94-96, I outlined

the Amnesty for all crimes and offenses committed prior to January 1955, Prime

Minister Churchill and his cabinet approved. Governor Baring officially declared

an amnesty on 18 January 1955.

57. The Hanslope Disclosure reveals important background to the 1955 Amnesty,

including the fear than any process of accountability would show that “the

Administration have been guilty of innumerable war crimes”. On 2 September

1954, the Minister for African Affairs wrote to the Attorney General demanding

an indemnity for the District Officers in Fort Hall:

“On each of my visits to Fort Hall the District Officers have expressed some concern about possible legal action against them at the end of the Emergency…What the District Officers fear is…an atrocities commission intended to show that the Administration have been guilty of innumerable war crimes. I need not stress the undesirability of a witch hunt of this sort. Would you please consult the Solicitor General and ask him what he has in mind by way of a general indemnity ordinance to cover the action taken by the administration and the Security Forces during the Emergency.” 30

58. In response, Eric Griffith-Jones, the Attorney General, stated that “‘atrocities’

would not be an appropriate subject for indemnity but would be dealt with

under ordinary criminal law.”31 However, it is important to note that a few

months later, in January 1955, a blanket Amnesty is granted, thus preventing any

prosecutions. See Paragraphs 94-96, First Witness Statement.

29 AA 45/79/3A, Bates 008216-008221, “H.E. The Governor’s Directive No. 4 of 1954,” 31 December 1954. 30 (CAB 19/4, Vol I, Bates 011732, Memorandum from Minister for African Affairs, 2 September 1954). 31 (CAB 19/4, Vol I, Bates 011733-34, Memorandum from Griffith-Jones).

24

59. At least 8 European officers – including those accused of roasting detainees alive,

beating suspects, and murdering suspects – had cases pending prior to the

January 1955 Amnesty, and therefore their cases were dismissed. In one case, an

officer was transferred “to another job where he would have no further

opportunity for such alleged misdeeds.”32 For additional documentation on

those left unprosecuted due to the Amnesty, see CE1.

60. The Government of Kenya strictly applied the Amnesty to the worst cases of

abuse, even in the face of questions from parliament. When Carruthers

“Monkey” Johnston, was asked to provide a response to MP Dingle Foot’s inquiry

into the “Griffiths” case whereby 21 Home Guard of the Magumoni and Karingani

locations in Chuka Division, Meru District, were killed by members of the 5th

K.A.R, he refused to look into any allegations prior to 1955. 33 See CE1, paragraph

17 for further details.

61. My first witness statements records the protests with regard to the 1955

Amnesty from bodies such as the Anglican Church, who commented that despite

public statements by the Governor condemning the abuse of detainees, the

practices continued and that there was a reluctance to investigate and prosecute

allegations of abuse. (see para 94 – 96 of First Witness Statement).

32 (E16/3/8A, Bates 010760-57, Memorandum from Deputy Governor to Permanent Secretary, 20 February, 1955). 33 AA 45/135/1A, Bates 4071, C.M. Johnston to Eric Griffith-Jones, Minister for Legal Affairs, 20 January 1956.

25

Knowledge of and Reactions to Abuses by CA and CO, February 1955-December

1956

Fuller and Waters Case.

62. Immediately after the Amnesty, the case of Kamau Kachina came to light,

whereby two British officers, Fuller and Waters, allegedly tortured Kachina for

five days to force him to confess to the theft of money. According to Mr.

Harrison, the resident magistrate, who oversaw the hearing, Kachina was

“flogged, kicked, handcuffed with his arms between his legs and fastened behind

his neck, made to eat dirt, pushed into a river, denied food for a period and left

out for at least two nights…”34 See CE1 for additional details. The papers show

the following:

i. The CO followed the Fuller and Waters case carefully, in light of the

recent Amnesty. See CE1 for details.

ii. The CO felt significant pressure with the Fuller and Waters case,

which CO officials noted was a result of another series of abuse cases

coming in the wake of Young’s resignation and the blanket Amnesty.

iii. In November 1955, the Colonial Office was aware of inconsistencies in

what the CA had called “isolated instances.” The Colonial Secretary

wrote to the Governor:

“I should be grateful for your comments on the passage in Waters and Fuller judgment in which it is stated that the Crown Counsel suggested that offences of this kind by security forces were prevalent and asked for this to be taken into account. It will certainly be noticed that this statement is inconsistent with the statement which I have made in accordance with information you have given me that we are satisfied that the Kamau case was an isolated one. “35

34 AA 45/55/2A, Bates 007202, East African Standard, “3 ½ Years’ Jail for Officers,” 22 October 1955). 35 AA 45/55/2A, Bates 007137, Secretary of State to Governor, 2 November 1955.

26

iv. In January 1956, the Governor raises at least 41 other cases of abuse

with the Colonial Secretary in context of Kamau Gachina case. These

cases include both civilian personnel and military personnel

(including British Army). Offences include rape, assault, murder, and

wounding by shooting.36

Glenday Report, July 1955.

63. In December 1954, in the wake of Young’s resignation, Governor Baring enlisted Sir

Vincent Glenday to undertake a special, internal inquiry into abuses taking place

screening camps and interrogation centers. The Glenday Report was completed in

July 1955.37

The Report contains contradictory evidence (a) within the Report

and (b) between the report and other documents chronicling screening abuses,

together with the incompleteness of Glenday’s investigation.

64. The Report was an internal enquiry and most selective in nature. Glenday visited

a few, carefully selected detention camps. Several cases of reported screening

abuses, including those in Nakuru and Naivasha screening camps were not

reviewed, because of the 1955 Amnesty. For example, the Report stated: “Mr.

Hopcraft’s case was ruled out by the Chief Secretary’s Complaints Co-ordinating

Committee under the terms of the Amnesty before I reached Nakuru. I should

add in answer to that Committee that the Elmenteita Screening Camps functions

no longer whilst…” In addition, the Report makes no mention of the multiple un-

gazetted screening camps, which cause the Governor concern.

65. Glenday interviewed senior officers about their practices and did not seek any

independent verification of what he was told. This might have included, for

example, cross-referencing the Complaint’s Co-Coordinating Committee.

36 AA 45/55/2A, Bates 007129-007132, Savingram from Governor to Secretary of State for the Colonies, 16 November 1955; AA 45/55/2A, 007123-24, Savingram from Governor to Secretary of State for the Colonies, 27 January, 1956. 37 EM 6/1/6/1, Bates 015852, “The Glenday Report,” 19 July 1955.

27

66. The Glenday Report addresses the definition of screening. The Report states:

“The ”Screening” What is meant by this term? I have discussed its possible meaning with many Government Officers and Settlers and none has been able to define it satisfactorily….”Screening” is 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 misinterpretations 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 termed “the psychological fear of being arrested and taken to the Camp as a detainee”. The degree of fear naturally still depends on the past reputation of some Camps!”

67. Despite this definition of screening (e.g. “to obtain or extract a confession by

intensive interrogation…”), the Report only addressed the technical use of

screening in detention camps as a means to classify Kikuyu detainees upon

arrival in a camp. The Report did not examine the many other uses of screening,

as defined in the Report itself, undertaken by the security forces.

68. By focusing his investigation only on the classification aspect of screening,

Glenday did not examine the more aggressive (and abusive) forms of screening,

and did not explore the legality of any of the methods being used.

69. Glenday concludes that, in light of stricter controls declared by the Governor,

“such abuses as ‘softening-up’ or irregularities such as illegal detention should

not occur; and in any event they should be detected at once and the Officer

concerned dealt with.”

70. Extensive documentation in my First Witness Statement of continued abuses

after July 1955, together with new, extensive evidence of abuses contained in the

Hanslope Disclosure after July 1955, also raises concern about the credibility of

the Glenday Report.

28

Continuation of Abuses – willingness to investigate and prosecute

71. In addition to the cases considered by the Chief Secretary’s Complaints Co-

ordinating Committee, the CA and CO were aware of multiple other instances of

abuse from 1955 through 1956 and there a numerous cases where allegations of

abuse are not followed up with any investigation or prosecution. These include:

i. Home Guard Post, Makadara. Allegation that two women [Wangoi

w/o Mathew and Njoiki d/o Kamau] were arrested and subsequently

tortured with the use of glass bottles in the Makadara Home Guard

Post. There was no prosecution; only the head of the Post was

transferred. The report states:

“Following the beating one of these women [perpetrators] obtained an empty beer bottle and while Wangoi was behind held by the others, pushed the bottle into Wangoi’s vagina and kicked the bottle in. The bottle was then extracted and Wangoi taken away and locked up again…This medical examination corroborated her story insofar as it showed great inflamation and tenderness in the region of her vagina…The same procedure appears to have been adopted with Njoki, although, in this case, she states that the neck only of the bottle was introduced into her vagina, and there is no medical evidence as to any injury or damage to her in that region of the body.”38

ii. Similar uses of broken glass and foreign objects inserted into vaginal

cavities were reported, including one in 1954 and another in 1957. In

the first instance, the chairman of the Commonwealth Parliamentary

Committee received a letter detailing the abuses. The investigation

was dropped. In the second instance, the Attorney General

determined there was “no case.”39

iii. For further examples of ongoing abuses, see CE1.

iv. The Court is further referred to my first witness statement (para 100

– 102) with regard to the complaints by Elieen Fletcher in May 1956

with regard to detainee abuse and poor conditions in the transit camp

38 AA 45/55/2A, Bates 007311-32, Macpherson, “Report- Home Guard Post, Makadara,” January 11, 1955. 39 Convict Njiri D/O Wanjiku (Female), Report to Secretary of Defence from Commissioner of Prisons, 18 October 1954, EMER

45/55/2A Vol. I, 003175;Letter to the Secretary of Defence from the Secretary of Intelligence & Security, 28 August 1954, EMER 45/55/2A Vol. I, 003186; and Letter to the Chairman of the Commonwealth Parliamentary Association, Nairobi from Njiri Wanjiku, 20 August 1954, EMER 45/55/2A Vol. I, 003187; and CAB 19/4/ Vol II, 011882, 011862).

29

at Gilgil, Langata, Manyani, Narok, Athi River, Kamiti, and Embakasi.

The Colonial Office rejected calls for an independent investigation and

sought to undermine Ms Fletcher’s character.

72. The CA was concerned that prosecutions could affect the trust between the

police and loyalists and the decision was taken not to investigate anonymous

letters of complaint. This, despite the fact that the CA was also aware that

detainees who identified themselves in allegations of abuse were subject to

retribution for leveling such allegations.

i. Carruthers “Monkey” Johnston, [the Minister for African Affairs],

stated in July 1955, at the same time of the Glenday Report:

“The aim is that the rule of law should return to the reserve, but at the same time we should not destroy the mutual trust that has grown up between the Police and loyalists in the field during two years of fighting…The CID must not intervene unless called for…Anonymous letters should be destroyed on receipt.”40

ii. There is also evidence of further efforts by the executive to interfere

with cases after the 1955 Amnesty. The continued interence with the

Chief Mundia case is one example:

a. In September 1954, Mundia and some of his Home Guards were

accused of beating several detainees, one of whom died. At the time,

the Governor spoke directly to the investigating assistant police

commissioner, K.P. Hadingham, about dropping the charges.

Hadingham reported:

“HE [Baring] said that his discussion with me was “off the record,” and while he would not give me any directions in the matter he considered it would be politically most inexpedient to prosecute a loyal chief who had taken a leading part in the fight against Mau Mau.”41

40 (AA 45/55/2/2A, Bates 007750, Memorandum from C.M. Johnston, Provincial Commission to District Commissioner’s

Office, Fort Hall, 24 July 1955). 41 RH, Mss. Afr. S. 486, Sir Arthur Young, papers, box 5, file 6, memorandum from assistant commissioner of police, Nyeri, to Young, 22 November 1954, 1.

30

b. Subsequently, after Young expressed outrage over Baring’s

interference, Mundia and the others were tried and convicted on

the lesser charge of assault. However, in March 1955, after

Young’s resignation, Baring directly interfered again with the case.

This time, he recommended the release of Mundia, stating:

“The Mundia Case has been a notorious one. The sooner it is forgotten the better, and part of the process of causing it to be forgotten is the release of these two comparatively minor characters.”42

Investigation Committees

73. Investigation Committees as “window dressing.” The Court is also referred to the

internal inspection committees which had the remit of investigating the

condition of the detention camps. Internal memos concede that the committees

were “window dressing” (First Witness Statement, paragraphs 106-07).

Detainee Letters

74. Detainee letters contained in the Kenya National Archives, Nairobi are

referenced in Witness Statement 1, Paragraph 115. There are scores of letters in

the KNA. The detainee letters in the Hanslope Disclosure are notably more

detailed than those contained in the KNA. The Hanslope Disclosure also reveals

the extent to which the Colonial Administration and the Colonial Office discussed

these letters. Summarized in exhibit CE1 to this Statement are 44 letters that

were contained in the Colonial Administration files, either in their original form

or as copies dispatched from the Colonial Office or from Members of Parliament

in Britain. I also attach a schedule of letters which refers to types of injury

similar to those complained of by the Claimants at Exhibit CE5.

42 AA 45/55/2/2A, Bates 00745, Memorandum from Governor Baring to Minister for African Affairs, 8/3/55.

31

The “Dilution Technique”, Systematized Violence, and Hola, December 1956-59

75. In July 1957, whilst the CA and CO were aware of ongoing abuses in multiple

detention camps, the Colonial Secretary approved of the “dilution technique.”

The “dilution technique” brought official authorization of systematic violence in

the detention camps. John Cowan initially devised the “dilution technique” in

Gathigiriri Camp in December 1956. Terence Gavaghan, the Officer-in-Charge of

Rehabilitation, Mwea Camps, honed the “dilution technique” in concert with John

Cowan, for its full implementation in July 1957 in the five Works Camps – Thiba,

Mwea, Kandongu, Gathigiriri (aka Tebere), and Karaba – that comprised the

Mwea Camps. The “dilution technique” was exported in late 1957 and 1958 to

other camps in the “Pipeline,” including Aguthi, Mariira, Athi River, and Mweru

Camps. John Cowan would also oversee the later exportation of the “dilution

technique” to Hola Camp, where it was known as the “Cowan Plan.”

76. The Court will recall First Witness Statement, Paragraphs 110-15, whereby I

outline the “dilution technique.” The Hanslope Disclosures contain significant

number of additional documents pertinent to the Mwea Camps, the evolution

and use of the “dilution technique,” and the legal measures introduced to permit

the use of force against detainees.

77. The Hanslope documents provide additional evidence that the CA and CO were

aware of the deaths and severe abuses resulting from the “dilution technique”

and the persistence of this policy – and indeed its expansion to other camps –

despite the knowledge of deaths and abuses.

The Gathigiriri Murder, January 1957 78. Prior to Baring and Lennox-Boyd’s approval of the “dilution technique” for the

Mwea Camps, they were aware of detainee Muchiri Githuma, who died at

Gathigiriri Works Camp “after ill-treatment in the camp.” Githuma was “tied to a

rafter and beaten with rubber hoses to make him “confess”.” After a CID

32

investigation, Baring and his ministers came to the conclusion that “the death of

the detainee at Gathigiriri was an isolated incident due to the excessive and

misguided zeal of the Rehabilitation Assistant who is charged with murder.”43

79. New evidence reveals that the Attorney-General and Chief Secretary initially

framed disciplinary charges against European staff in relation to the “dilution

technique” and beating death of Muchiri Githuma at the Gathigiriri Camp in

January 1957. These European staff included Major MacInnes and Mr. Rowe, as

well as the Superintendent of Prisons, John Cowan. The Court will recall that

Cowan and the “dilution technique” would provide the basis for the “Cowan

Plan,” which was put into place at the Hola Detention Camp, and would result in

the deaths of 11 detainees in March 1959.44

80. European Officer in charge of Gathigiriri, Hirst, was later found guilty on three

charges and dismissed from his contract; MacInnes was put on probation. Jasiel

Njau, the Africa Assistant Rehabilitation Officer, was acquitted of the charge of

murder for the death of Muchiri Githuma, though convicted of a lesser charge

and sentenced to 12 months in prison. 45

81. Justice Pelly Murphy presided over the case. No charges were pursued against

Cowan or Rowe, though the Judge “suspected strongly the orders were given and

carried out with the tacit approval of the assistant’s [Njau’s] superior officer.”46

Knowledge of Risks and Cover-ups associated with the Dilution Technique.

82. Despite the Colonial Secretary’s presentation to the House of Commons and

other public statements, it is now understood that the death of Muchiri Githuma

43 (AA57A, Vol IV, Bates 004537-38, Memorandum by Governor Baring, 4 February 1957; AA 57A, Vol IV, Bates 00435-36, Memorandum from Ohanga to Governor, 4 February 1957; CAB 19/4, Vol II, Bates 011898-011901, Chief Secretary’s Complaints Co-ordinating Committee, 12 February 1957). 44 (AA 57A, Vol IV, Bates 4516-18, Memorandum from Johnston to Minister for African Affairs, 10 April, 1957). 45 CS, VOL XXXV-45B, Bates 021556-57, Memorandum by the Chief Secretary, “Disciplinary action against officers of the public service arising out of the ill-treatment of detainees at Gathigiriri Works Camp, 13 August 1957). 46 East African Standard, “Five Acquitted of Works Camp Murder – Jail for Assault,” 11 July 1957.

33

was not the only incident of abuse that took place at Gathigiriri Camp in January

1957. In July 1957, Barbara Castle challenged Lennox-Boyd in the House of

Commons, arguing that the record showed there were at least 27 other known

cases of assault in Gathigiriri Camp.

83. The Colonial Secretary replied, “I cannot agree with what the hon. Lady has said.

If she cares to give us those details or come and see the Governor of Kenya, who

is now in London, and give him personally the details, I should be only too

anxious, as is the Governor, that nothing should be covered up.”47 At the time of

this exchange, however, Lennox-Boyd was aware that evidence of further abuse

existed. The Governor telegrammed the Colonial Secretary on 21st March, 1957,

whereupon he informed the CO that there were “a number of cases of ill-

treatment of detainees to extract confessions”:

“Investigations into the incident of 25th of January at Gathigiriri have continued and unfortunately show results worse than I had anticipated…It has been disclosed by the investigation, by evidence not only of detainees but also of certain members of rehabilitation staff, that there was a number of cases of ill-treatment of detainees to extract confessions and that this was common knowledge among detainees and junior rehabilitation staff at the Camp. Jasiel Njau seems to have been mainly responsible for organizing and directing the ill-treatment but Hirst, the European officer in charge of rehabilitation at the Camp, is alleged at least to have been aware that some improper force was used and to have done little or nothing to prevent it.”48

84. A fortnight after Castle’s query, Lennox Boyd admitted that there were 37, not

27, cases of known abuse at Gathigiriri Camp. He assured the Commons that the

incidents had been judicially reviewed in Kenya, and that those accused of the

beatings – all of whom were Africans – had been sentenced to a few weeks in

prison.49

85. There were internal concerns, both in the CO and CA, of the extreme risks of the

“dilution technique.” This includes that raised by the Secretary for Community

47 PRO, CO 912/19/30, Parliamentary Questions, 16 July 1957. 48 AA 57A, Vol IV, Bates 004512, Telegram from Governor to Secretary of State, 21 March 1957. 49 PRO, CO 919/19/30, Parliamentary Questions, 29 July 1957. See also, AA 57A, Vol 1, Bates 004572-75, “Detention Camps,” no date, whereby an internal memoranda c. January 1957 states, “All went well until a few months ago when a harder type of detainee began to come forward. It was then discovered that in the Mwea Camps there was a good deal of secret beating of detainees and an example of this was the Jasiel Njau case.”

34

Development to the War Council on 8 March, 1957: “It must be realized that this

system [i.e. “dilution technique”] is fraught with danger. The death of one

detainee has already occurred and precautions have had to be taken to avoid

recurrence. Incidents have occurred where detainees have tried to injure

themselves and even to commit suicide in some camps.”50

86. There was also concern of future prosecutions due to “dilution technique.” The

War Council discussed on 8 March 1957, the fact that officers may be in danger

of prosecution themselves:

“The present policy of Government is to persevere with the dilution process, but I [Secretary for Community Development] feel compelled to point out that the officers of this Ministry will be confronted with the greatest difficulties during the coming year and may well be in danger of prosecution as a result of incidents occurring during the process or engineered by the detainees themselves. They therefore deserve the full protection and support of Government in all their work undertaken in the course of their duties.”51 [Emphasis added]

Retrospective Legal Approval of the Practice of “Dilution”.

87. The CO worked with the CA to provide legal approvals, ex post facto, for the

“dilution technique” and the abuses that were resulting from this policy.

Lennox-Boyd approved of the “dilution technique” after Baring’s submission of a

detailed memorandum to the Colonial Office on 25 June 1957. In this

memorandum Baring discussed the creation of legal mechanisms to enable the

use of the “dilution technique” to put on a legal footing the use of force against

detainees which was known at the time to be unlawful. On 25 June 1957 Baring

wrote to Lennox Boyd:

“We have felt that either we must forbid Gavaghan and his staff to proceed in this way [i.e. deal with the detainees on their first arrival in a rough way], in which case the dilution technique will be ineffective and we will find that we cannot deal with many of the worst detainees, or, alternatively, we must give him and his staff cover provided they do as they say

50 AA57A, Vol. IV, Bates 4522-23, “War Council, Rehabilitation of Category ‘Z’ Detainees: Memorandum by the Secretary for Community Development, 8 March 1957. 51 War Council Memoranda Vol. XII, Bates 013769-70, “War Council, Rehabilitation of Category ‘Z’ Detainees: Memorandum by the Secretary for Community Development, 8 March 1957.

35

they are doing. That is the reason why the Attorney General has prepared a new draft regulation and that is the reason why, unless you disagree, I will accept the proposals and sign the new regulation in the first week of July.” 52

88. A subsequent internal memorandum in Kenya noted Lennox-Boyd’s approval of

the new regulations: “The “beating” procedure under the Prisons and Emergency

Regulations evolved by the C.S. [i.e. Chief Secretary] and H.E. [i.e. Governor

Baring] just before the latter went to London was accepted by the Secretary of

State.”53

Reports of extreme force and deaths due to the “dilution technique”.

89. By July 1957, internal reports in Kenya indicated that there was significant use

of force being deployed with the “dilution technique”. The Permanent Secretary

for Community Development expressed the view that the force being used was

excessive:

“I attended an intake of 80 detainees ex-Manyani by rail and road to Thiba Camp and of about the same number ex-Athi River and Kajiado by road to Mwea Camp on Thursday 11th July, 1957…Mr. Griffiths-Jones gave instructions that in the use of force serious injury must be avoided. I myself saw one man lifted up by an Officer to shoulder height and thrown down on the ground on his back three times. I should have thought that this was potentially dangerous….My impression was that the violence used at Gathigiriri [e.g. where detainee was killed in January 1957] was mild compared to that meted out at the present time.” 54 [Emphasis added] [KEY DOC]

90. On 27 July 1957, the Commissioner of Prisons wrote to Minister of Defence

Cusack stating, “In view of the need for overpowering force in a number of cases,

it is my firm opinion that the officers concerned should receive some form of

indemnity for there might easily be a fatal accident.”55

52 AA 57A, Vol 1, Bates 004554-57, Memorandum from Governor to Secretary of State for the Colonies, June 25th, 1957). 53 (AA 57A, Vol 1, Bates 004582-85, “Detention Camps and Movement of Detainees,” 5 September 1957).

54 AA 57A, Vol 1, Bates 004637-39, Permanent Secretary for Community Development, “Rehabilitation – Mwea Camps,” 12 July 1957. 55 AA 57A, Vol 1, Bates 004621, Lewis to Cusack, “Intake of ‘Z’ Detainees,”27 July 1957).

36

91. After the CO’s authorization of the “dilution technique” and its export to other

Pipeline camps, there were a number of incidents of reported deaths due to

dilution and similar interrogation techniques.

Death of detainee, Aguthi Camp/Sam Githu Case, September 1958.

92. On September 5, 1958, Kabugi Njuma died at Aguthi Camp. On 15th September

1958, a letter was written to Lennox-Boyd from 5 detainees at Aguthi. It

complained of severe screening abuses to force confessions, and included the

beating death of Njuma. Sam Githu, a Rehabilitation Assistant trained in the

dilution technique by Gavaghan in the Mwea Camps, was said to be

responsible.56 The CA informed the CO that Njuma died of a “pulmonary

infection,” and that Resident Magistrate, Nyeri, returned a verdict of “Death from

Natural Causes.” The same report to the Colonial Secretary stated, “No prisoners

were dismembered or beaten in any manner.”57 Lennox-Boyd subsequently

learned that the CA gave him false information, which he then conveyed to

Barbara Castle on 31 October, 1958. Samuel Githu was later tried and found

guilt of assault causing bodily harm, with a sentence of two years’ imprisonment.

There was significant intervention on behalf of Githu both before and after his

trial and conviction.

93. It was noted that “feeling on the case is running very high in Nyeri as it is

considered that Githu has been thrown to the wolves.” European officers in

Nyeri also commented, “that any rough stuff which occurred at Aguthi was mild

compared to the reception treatment given to detainees in the Mwea and

Government authority and that the A.G’s refusal to allow evidence to be given on

the Mwea procedure has very seriously hampered the Defence.”58

56 AA 57/21A, Bates 009058, Memorandum, “Death of Kabugi Njuma at Aguthi Works Camp, 7 January 1959.

57 AA 57/21A, Bates 009058, Memorandum, “Death of Kabugi Njuma at Aguthi Works Camp, 7 January 1959. 58 AA 57/21A, Vol II, Bates 009697, Permanent Secretary to Minister for African Affairs, 11 April, 1959.

37

94. There was executive intervention in the Githu prosecution to ensure the

magistrate was lenient, and to ensure that questions about the broader legal

coverage for force would not be at issue. Government prosecutor, DW Conroy,

sent Baring a memo that outlined his position on the Githu case. This position

was sent to the Colonial Office as it addressed questions about the illegality of

force and legal coverage. Conroy wrote that he would discuss mitigating

circumstances with Githu’s defence:

“I propose to tell him [Defence advocate] he should call [no evidence in mitigation], and to suggest that he and I agree the law with reference to compelling and overwhelming force. This will allow him to say, in mitigation, that he has discussed the law with Law Officers, that the law is as follows, that the dividing line between permissible force and illegal violence is difficult for a rugged and simple character like Githu, therefore the Magistrate should be lenient.”59

95. Significantly, in response to the Githu verdict, Terence Gavaghan, architect of the

Mwea Camps and “dilution technique,” and mentor to Githu, wrote to the

Provincial Commissioner stating that he too could have been in danger of

prosecution and that both he and Githu had been chosen for “a certain degree of

ruthlessness”:

“He has, indeed, in the past been rewarded for activities which at a later time have involved him in legal action. There seems little doubt that he was chosen for the post of rehabilitation in Aguthi Camp because, within the confines of that camp, it was considered his toughness would still be of value. My own experience in the Mwea Camps does not seem to differ widely from Samuel Githu. At any time I could have been in exactly the same danger of prosecution as he has been. Government, I believe, chose both of us, among others, for a certain degree of ruthlessness.60

96. Despite the amount of abuse in Aguthi, and associated abuses in the Mwea

Camps, the Governor discussed with the Minister for African Affairs the

extension of the “full Mwea procedure into Aguthi,” connoting that it was

already, in part, practiced in Aguthi. Moreover, pending the outcome of the Githu

trial, Baring noted he would think of alternatives for Aguthi and the Mwea

59 AA 57A, Vol IX, Memorandum from Conroy to Baring, 10 April 1959. 60 AA 57/21A, Vol II, Bates 009651-52, Letter from T.J.F. Gavaghan to F.R. Wilson, Acting Provincial Commissioner, “Samuel Githu, G.M.,” 27 April, 1959.

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Technique, perhaps Kandongu Camp. The Mwea Technique was eventually

transferred, in total, to Aguthi Camp.61 Additional details of the Githu case are

provided in CE1.

Other abuses and deaths in “dilution technique” camps.

97. The CA and CO were aware of multiple other cases whereby the “dilution

technique” resulted in severe cases of abuse and torture. These include:

i. Mariira Works Camps, July 1958. It is brought to the direct attention of

the CO that abuses are ongoing in Mariira. A detainee letter is forwarded

to the SofS, detailing tortures and deaths of detainees in the camp:

[Mariira] is a place where many wonderful tortures and maltreatment are meted to us by a South African born European, D.E. Hardy…Here is a camp comparable to none – perhaps a Nazi Concentration camps could be better. The Government pays no heed whatsoever, although deaths after severe beatings have been reported to us. The first death was of a detainee who on 23rd January 1958 was beaten by warders to death. On the 9th June a convict was battered to death. His name is Mwaura Gathirwa, and 3 others Kariuku s/o Mwangi, Gilhutha s/o Wahoga, and Irungu s/o Karikui were seriously injured are were rushed to the Fort Hall Hospital unconsciously.” The letter details denial of water, and lack of medical care. Also states, “In this camp about 50 detainees are cripples, having been beaten, and other suffering from asthma and policmyelitis are forced to do heavy duties in the quarry.”62

ii. Gathigiriri Camp, Death of Detainee, 4 September 1958. On 4th September

1958, Kamau Chege collapsed and died at Gathigiriri Camp. The post-

mortem report stated that he died of “natural causes.” In an extract from

the War Council on 23 September, 1958, a different story emerged:

A convict transferred to Gathigiriri as a detainee had died shortly after being interrogated. There were indications that his death might have been due to rough handling by detainee interrogators; investigations were not yet completed and no detailed report had been received. The press had been informed briefly of the incident and in result the matter had been given little

61 AA 57/21A, Vol 1, Bates 009101, Memorandum from Minister of African Affairs, 18 November 1958. 62 AA 57/21A, Vol 1, Bates 008967-68, Telegram from Acting Governor to Secretary of State, 3 July 1958.

39

publicity. The Minister for Legal Affairs would, if necessary, report the matter in due course to the Secretary of State. 63

iii. Gathigiriri Camp, Death of Detainee, 15 September 1958. On 15th

September, 1958 two African rehabilitation assistants screened Kibebe

s/o Machari. He was “severely beaten by the two accused because he

would not confess to having taken the third Mau Mau oath…The

deceased died of injuries received.”64 The two African Rehabilitation

Assistants found guilty of manslaughter and sentenced to three years in

prison.65

Abuses of Detainees at Aguthi Camp, October 1958.

98. In April 1959, Mbirua Githua sent a letter to Eirene White, MP, which was then

forwarded to the Secretary of State, with the following allegations:

That 87 detainees (or prisoners) taken to Aguthi Camp on 24th October, 1958, were badly beaten up, and were then transferred to Karaba the following day. There they were again badly beaten to make them confess, so much so that some became helpless; That 12 (named) detainees were locked up, day and night, in a “house” at Aguthi Works Camp; That 10 detainees were being kept in a cell at Kandongu awaiting transfer to Athi River.66

99. It was subsequently determined that there was merit to these allegations.

Prior to the letter to Eirene White, Delmege, DC Nyeri, on 15 January 1959,

“was guilty of aggravated assault in illegally inflicting corporal punishment

on detainees at Aguthi, when he had been specifically warned by a Senior

Prisoners Officer that what he proposed to do was illegal.” In addition,

investigation into White’s letter showed that “more than 12 strokes were

given and a kiboko [i.e. whip], not a light cane, was used. This was done

deliberately, because a light cane was considered not to be sufficiently

63 AA 57A, Vol III, “Maltreatment of a Detainee,” 23 September 1958. 64 CAB 19/4, Vol II, Bates 011838, Chief Secretary’s Complaints Co-ordinating Committee, 12 December 1958. 65 CAB 19/4, Vol II, Bates 011831-32, Chief Secretary’s Complaints Co-ordinating Committee, 1 January 1959. 66 EMER 45/13/1/15A, Bates 00527-29, Memorandum from Conroy, 27 May 1959.

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punitive…a kiboko was used, apparently with full knowledge that it was

unauthorized. Moreover an excessive number of strokes was given.”67

100. Conroy, the Acting Attorney-General, then writes, “We have now got

ourselves into a position of particular political peril. Mrs. White complained

to the Secretary of State on 10th April. We have not yet replied and we must

do so without further delay.” He then goes on to write that they must

disclose, among other things, the “allegation of illegal corporal punishment

and showing how we are dealing with it by C.I.D. investigation.”68

101. With regard to the beating of detainees at Aguthi, C.M. Johnston was well

aware of the use of the kiboko, and drew attention the “narrow dividing line

between legal and illegal force” when he wrote to the Minister for Legal

Affairs:

I myself supervised some of the intakes from Kandongu to Karaba in December, 1958 when robust force was used and I do not consider that in cases where there is such a narrow dividing line between legal and illegal force subordinate officers should bear the full responsibility. I would say here that it was I who first informed Mr. Griffith Jones [i.e. Attorney General] after a meeting at Government House, that I suspected that corporal punishment had been inflicted at the request of the District Commissioner, Nyeri with a kiboko and that more than the authorized number of strokes were given.69

102. The documentary evidence from Hanslope is therefore clear cut. Both the

CO and the CA were informed of the risk of death or injury as a result of the

dilution technique. They took action to provide legal cover for those who

were implementing the dilution technique, in the case of the Secretary of

State by approving the amendment of the Regulations. Even though there

were multiple cases of death and injury both prior and after the amendment

of the Regulations it continued to be used both in the Mwea camps and was

exported to other camps.

67 EMER 45/13/1/15A, Bates 00527-29, Memorandum from Conroy, 27 May 1959. 68 EMER 45/13/1/15A, Bates 00527-29, Memorandum from Conroy, 27 May 1959. 69 EMER 45/13/1/15A, Bates 000524-25, Memorandum from Johnston to Minister for Legal Affairs, “Aguthi Camp – Mrs. Eirene White’s Allegations,” 3 June 1959.

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Cowan Plan and Hola Massacre, 4 March 1959

103. John Cowan’s plan for Hola was derivative of the practices and the “dilution

technique” that he, Gavaghan, and others carried out in the five Mwea Camps

– Thiba, Mwea, Kandongu, Gathigiriri (also known as Tebere), and Karaba –

as well as in Aguthi Camp, Mweru Camp, Mariira Camp, and Athi River Camp,

where the “dilution technique” had been exported upon approval of the CA,

with knowledge of the CO. Prior to March 1959, there was significant

knowledge on the part of Governor Baring and Colonial Secretary Lennox-

Boyd of abuses and torture that were consistently associated with the

“dilution technique,” as detailed in this Statement.

104. Detainee letters and Dilution. New detainee letters from the Hanslope

Disclosure discuss the effects of the “dilution technique” in the camps at Athi

River, Aguthi, and Mariira. These letters provide vivid accounts of murders

(with multiple specific names of victims), beatings and tortures, and the use

of tear gas. Details of these letters are provided in CE1.

105. The Cowan Plan was derivative of the “dilution technique.” Hola Camp began

integrating the “dilution technique” into its intake process in early 1958.

Insofar as the Cowan Plan differed from this, or from the dilution technique

practiced in other detention camps, it did so only insofar as it was committed

fully to writing. Cusack, Johnston, and Lewis from the CA reviewed the

“Cowan Plan.” Lewis would later tell the Hola Inquest that, “It [the Cowan

Plan] would mean the use of a certain degree of force in which operation

someone might get hurt or even killed.” Johnston would also concur with

Lewis’ statement.70

70 Cmnd. 816, Further Documents relating to the deaths of eleven Mau Mau detainees at Hola Camp (London: HMSO, 1959), 18. See also First Witness Statement, Paragraphs 127-133.

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106. Immediately after the Hola Massacre, the CA and CO had knowledge of 1958

Hola beatings that proceeded the Massacre. This was gleaned from an

intercepted detainee letter of March 1959, intended for African Elected

Members and Barbara Castle. In a memorandum investigating the 1958 Hola

beatings, the Acting Attorney General in Kenya, DW Conroy, wrote, “There is

no indication that a copy [of the detainee letter] reached Mrs. Castle, but on

27th April we sent a copy to the Secretary of State and told him that we would

keep him informed of developments.”71

107. The CA and CO made deliberate efforts not to make any allegations public, or

to deliver the letter to the intended recipients. The detainees at Hola allege

they were beaten from 18th August to 2nd September, 1958. This allegation

was investigated by a CID officer.

108. In July 1959, the D.W. Conroy submitted his report, “Allegations of Beating of

Detainees at Hola in August, 1958.”72 The report includes:

i. Extensive details on the beating of the detainees. Detainees sent to

hospital “as a result of Hopf using the Special Platoon to enforce

discipline.”

ii. According to the hospital register, “Written alongside the four names

[of admitted detainees] in red ink appears the words “Beaten by

squad for refusing duty.”

iii. Report goes on to note that the incident did take place, that the

Sergeant i/c Closed Camp Karanja Kago observed that detainees

bodies bore signs of injuries during August, 1958; Hola hospital

verifies medical treatment; the Closed Camp Sick Register shows that

Nos. 2, 3, 4, 5, 8 and 10 received medical treatment during September,

1958.

71 AA 55/3A, Vol IV, Bates 2285, Memorandum from Conroy to Governor Baring,” 6 July, 1959. 72 AA 55/3A, Vol IV, Bates 2286-2305, D.W. Conroy, Acting Attorney-General, 6 July 1959.

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iv. Nevertheless, despite these findings, Conroy stated that, “I can only

come to the conclusion that if a charge of assault (whether aggravated

or simple) were brought against Hopf, Mwanika or any member of the

Special Platoon in respect of the incident which occurred on 18th

August, 1958, it would certainly fail and the accused would be

acquitted. For this reason I have decided that no prosecution shall be

instituted.”

v. The Chief Secretary followed-up on Conroy’s investigation, stating “I

accordingly recommend that no further action be taken in respect of

Hopf. I think it would be as well if he were kept away from duties

concerning detainees, at any rate for a time; I do not think that any

officer should be kept on such duties for very long at a stretch, and I

am not much impressed with Hopf’s judgment in this affair.”73

vi. In addition, Conroy writes to Baring: “There is one matter which

arises on this incident. Hopf did not behave in a very sensible way…I

incline to the view that Hopf’s conduct does not merit disciplinary

proceedings.”74

109. In summarizing his Report on the 1958 Hola beatings to the Governor,

Conroy was fully aware of the ongoing proceedings with regard to the March

1959 beating deaths at Hola, and his investigation and disclosure of the

results were greatly influenced by the political climate in July of 1959. In

addition, Conroy infers that “normal practice” was not to review in writing

the evidence of an abuse case under investigation. Conroy wrote to the

Governor:

“In view of Hola’s political notoriety I thought it proper in this case to depart from the normal practice and to record my analysis of the evidence, and the reasons for my decision not to prosecute, at some length. This I have done and I attach a copy [referred to above, paragraph 108]. Y.E. [Governor] may consider that a copy of this should be sent to London; if

73 AA 55/3A Vol IV, Bates 2283, Memorandum from Chief Secretary to Governor, 13 July 1959. 74 AA 55/3A Vol IV, Bates 2285, Memorandum from D.W. Conroy to Governor Baring, 6/7/59.

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the Secretary is attacked on this issue, it would provide him with ammunition with which to protect himself.”75

Executive Interference and Inquiries into the Dilution Technique and Hola

110. In the aftermath of the Hola Massacre, the CO directly oversaw independent

inquiries into the Mwea Camps and the dilution technique vis-à-vis the

International Committee on the Red Cross, as well as the charge and composition

of the Fairn Commission. In addition, the UK Attorney General intervened

directly in the legal coverage necessary to protect the CO and the British

government in the aftermath of the Hola Massacre and the illegality of the Cowan

Plan.

The International Committee on the Red Cross

111. The Colonial Office and the Colonial Administration worked together to bring Dr.

H.P. Junod from the International Committee on the Red Cross to Kenya to

survey the evolving “dilution technique” in the Mwea Camps and provide a

report. A delegation from the Kenya Red Cross visited Kenya in February-April,

1957. Dr. H.P. Junod and Dr. Louis Gailland toured the detention camps.

Importantly, the Governor was personal friends with Junod from their mutual

time together in South Africa, and Baring appealed to Junod separately for his

assistance.

112. In a letter to the Ministry of African Affairs on June 25th, 1957, Baring raised the

issue of Gavaghan’s procedures at Mwea, the dilution technique, to deal with the

“worst detainees.” Baring wrote that Gavaghan can deal with these detainees

but “he can only do it if the hard cases are dealt with on their first arrival in a

rough way.” He then discusses the safeguards used to make this orderly. In order

to implement this technique Baring wrote, “we must give him and his staff

75 75 AA 55/3A Vol IV, Bates 2285, Memorandum from D.W. Conroy to Governor Baring, 6/7/59.

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cover.” Baring then went further to say that this process can be even more

successful if accompanied by a “phase of violent shock.”76

113. In this same letter, a copy of which was sent to the Colonial Secretary, Baring

referred to a conversation with Dr Junod, and continued:

I privately discussed this question with Dr. Junod of the International Red Cross, who I knew well in South Africa and who has spent his whole life working with Africans and most of it with African prisoners. He has no doubt in his own mind that if the violent shock was the price to be paid for pushing detainees out to the detention camps near their districts, away from the big camps, and then onward to release, we should pay it…I agree and if we get into trouble would be quite prepared to ask Dr. Junod, at the invitation of the Kenya government to visit us again and examine the methods used.”77

114. According to the Fort Hall District Intelligence Summary for the Period Ending

24th March 1957, Junod and Gailland were particularly interested in confession

and were “impressed by the work being done by the Government in local

camps.”78 After touring the Mwea Camps and witnessing dilution firsthand,

Junod turned to Gavaghan and said, “Ne vous inquietez pas [Do not worry].

Compared to the French in Algeria, you are angels of mercy.”79 Importantly, in

Junod’s final report there is no mention of the dilution technique, despite the fact

that he witnessed it in practice and counseled the Governor on its merits.80

115. In July 1957, when the CA was concerned that the CO would need further

coverage for the dilution technique, Attorney General Griffith Jones suggested a

second visit and report by Junod. Griffith Jones wrote that it would “go a long

way towards persuading H.M.G. to accept our proposals and towards mitigating

uninformed and malicious criticism which might arise in the political sphere if

76 Letter from Governor Baring, 25 June 1957, Rec. 134, AA 57A Vol. 5, 004556-004558; see also PRO, CO 822/1251/1, letter from Baring to Secretary of State for the Colonies, 25 June 1957. 77 Letter from Governor Baring, 25 June 1957, Rec. 134, AA 57A Vol. 5, 004556-004558; see also PRO, CO 822/1251/1, letter from Baring to Secretary of State for the Colonies, 25 June 1957. 78 Fort Hall District Intelligence Summary for the Period Ending 24th March 1957, 24 March 1957, Rec. 342, INT 10/4/2/4/3A

Vol. IV, 015055-015061. 79 Terence Gavaghan, Of Lions and Dungbeetles, 235. 80 PRO, CO 822/1258/E/27, “General Report on the Mission of the International Committee of the Red Cross,” no date.

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and when the manner of our dealing with these most difficult detainees becomes

generally known.”81

116. On July 9th, Baring wrote to Dr. Junod about visiting Kenya to examine the

dilution technique. He wrote, “the force used is robust and not merely

restraining.” He explained to Junod, “we must be quite open about this and being

quite open implies political difficulties. I have been in consultation with the

Secretary of State for the Colonies. We both feel that it would be an immense

help to us if you, with you unique experience of Africans in prisons, could pay

Kenya a second visit at the earliest date possible… For the time being I suggest

no publicity.”82 [Emphasis added]

117. Junod did not return for a second tour of Kenya’s detention camps. In the

aftermath of Hola, it was again proposed by Baring to invite Junod for a return

visit to Kenya’s camps. In response, the Secretary of State wrote that he agreed

with the suggestion, specifically for Junod and Gailland. He added: “An enquiry

would not spotlight the tragedies but would overhaul future administration of

detention camps.”83

Legal Coverage and the Hola Massacre

118. In the wake of the Hola Massacre, the CO focused on (1) attributing any legal

authorization for the Cowan Plan to the CA, and (2) avoiding an independent

inquiry. On the former, the CO worked closely with the UK Attorney General. On

the latter, the Colonial Secretary worked closely with the Governor. With regard

to Cowan and the use of force, the CO determined to state that it was Kenya and

NOT London that gave legal authorization. The CO wrote to the Governor:

We have been considering what line to take if asked whether the use of force envisaged in the Cowan plan to make detainees work, was legally justifiable bearing in mind not only Soskice’s

81 Note from Griffiths-Jones, 5 July 1957, Rec. 134, AA 57A Vol. 5, 004638-004640. 82 Letter from Governor Baring, 9 July 1957, Rec. 134, AA 57A Vol. 5, 004637.

83 Letter from Governor Baring to Secretary of State, 29 April 1959, Rec. 254, CS3/10A, 012634- 012638.

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comments on this (column 254 of Hansard June 16th) but also Lewis’s evidence at disciplinary enquiry (proceedings page 7) with reference to exhibit…May we take it therefore that if Secretary of State is asked he may reply that you had been advised by your repeat YOUR Law Offices that use of force envisaged in Cowan plan to make detainees was justifiable under Kenya law? If not what should he say?”84 [Emphasis added]

119. The UK Attorney General expressed significant concern over the Cowan Plan and

the use, of what he inferred, of “illegal force.” He wrote directly to Baring to

procure statements of support from Kenya Ministers for the Secretary of State.

These statements, which were to be “if possible differently worded. The British

Attorney General wrote:

I have suggested to the Secretary of State that you should get from the Minister of Defence, the Minister of African Affairs, and from Commissioner statements on the following lines if they are able to make them, namely that when they read Cowan plan they did not understand Cowan was putting forward a plan which involved the use of illegal force, and that is to say beating of detainees to make them work; that they would never have approved the use of illegal methods and that by expression “force to carry out the task” they understood no more than that employment of legal means to achieve the object was envisaged. Statements on these lines if possible differently worded from each of the three might be very useful in reserve.85 [Emphasis added]

Fairn Commission

120. In the aftermath of Hola, the Colonial Secretary and Governor faced enormous

pressure for an independent inquiry into the camps, particularly in light of the

pending judgment on the Aguthi case. There exists significant documentary

evidence that both the CO and CA were determined (a) to thwart any

independent inquiry, and (b) to influence the composition of the Fairn

Commission which was, as a result of CO and CA pressure, to make

recommendations only on the future of the detention camps, with no reference

to historical allegations.

84 AA 57/22/1A, Bates 009962-63, Telegram from Webber to Governor Baring, 24 July 1959. 85 AA 55/3/3A, Vol 1, Bates 002428, Telegram from UK Attorney General to Governor Baring, et. al., 14 June 1959.

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121. The Governor wrote to the Colonial Secretary regarding a potential judicial

enquiry and the need, despite all of the founded accusations, to keep Hola Camp

open:

As you know, I have in the past advised you to resist demands for a judicial enquiry…The Hola Affair is by far the worst which has occurred in Kenya and troubles me greatly. That, and the Aguthi judgment will, I know cause you serious difficulties, which I greatly regret. In these circumstances I think we should look carefully at our policy and actions for future….86 (See CE1 for full quotation).

122. The Colonial Secretary wrote to the Governor, equally determined to conspire

with the CA to avoid any “impartial judicial enquiry”:

We had also been turning over how best to meet the inevitable demand for an ‘impartial judicial enquiry’ with a bias to raking up muck which will break upon us as soon as the Hola verdict is announced and members of Parliament have studied Aguthi judgment. We are advised that even if criminal proceedings were taken as a result of Hola Inquest this could not prevent the demand for an inquisition without prejudice to those proceedings, into the system which allowed these eleven deaths to occur… We agree with you that the aim of any enquiry should be to set Hola on its feet. An enquiry would not spotlight the tragedies but would overhaul the future administration of detention camps (but not prisons) where those who are virtually irreconcilable will stay with a view to ensuring that inspection and other arrangements are now in force to prevent a repetition of part tragedies. 87 (Emphasis added. See CE1 for full quotation).

123. With regard to the appointment of the members of the Fairn Commission,

Secretary of State states explicitly that he does not want a lawyer on the

Commission and that in the CO, “We are anxious not to mention Hola or Aguthi

by name in terms of reference.”88 (See CE1 for full quotation). Despite the

Governor and Colonial Secretary’s explicit charge, the Fairn Commission did

investigate into some past abuses.89 (See CE1 for full quotation). The Governor

directly informed the Colonial Secretary that he sought to influence the actual

drafting of the Fairn Commission Report in the Government’s favor, despite the

fact that it was to be an independent Commission. He wrote:

86 AA 57A, VOL IX, Bates 2715-2719, Governor Baring to Secretary of State for the Colonies, Telegram, 29 April 1959. 87 CS 3/10, Bates 010018-19, Secretary of State to Governor, “Detention Camps,” 1 May 1959. 88 CS 3/10, Bates 010015, Secretary of State to Governor, “Detention Camps,” 6 May 1959; and CS 3/10, Bates 010013, Secretary of State to Governor, “Detention Camp Enquiry,” 11 May 1959. 89 CS 2/10A, Bates 010010, Acting Governor to Secretary of State for the Colonies, “Immediate,” 16 June 1959.

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Griffith-Jones and I saw Fairn today. We said to him that, in our view, paragraph 61 of his report especially the sentence, “We have seen and talked with injured men in the camps and we have had impressive testimony from responsible people on all sides that violence, not just corporal punishment, was often used in the past by the “screening teams” to compel confessions” would, as it stood, lead to an irresistible demand for a high level of inquiry into the past…We said that if there was a further inquest into the past, the admirable programme for the future would collapse because we would be unable to restore the morale of our staff, and the detainees themselves would suffer….Fairn took these arguments. He is going to propose to his colleagues to add a sentence to paragraph 61 to the effect that they do not recommend an inquest into the past because this would damage the future prospects of the detainees.” 90

124. The Colonial Secretary explicitly sought to minimize the impact of the Fairn

Report’s publication:

Ministers are anxious that if possible Report of your views should be published during President Eisenhower’s visit to ensure it receives no undue publicity here.”91

The British Army and Screening, Detention, and Villagization

125. The Hanslope Disclosure provides significant new evidence of the role of the

British Army (BA) in the drafting and directing of emergency policy vis-à-vis

General Erskine and the War Council. In addition, new documents shed

additional light onto the BA’s role in screening and on emergency committees at

the district and provincial levels. They also point to the significant presence the

BA had in the emergency villages where they conducted sweeps, inaugurated

and enforced the food denial campaign, as well as collective punishments.

Members of the BA are directly implicated in sexual assaults in the emergency

villages as well as in other abuses.

90 AA 57/22A, Bates 009921, Governor to Secretary of State, telegram, 11 July 1959. 91 AA 57/22A, Bates 009900, Secretary of State to Governor, “Fairn Report,” 27 August, 1959.

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The British Army and Screening and Detention.

126. Both through directives of General Erskine and the War Council, and through

direct activities of MIOs, FIOs, and FIAs, participated in the design and execution

of screening through screening teams and screening camps.

127. A March 1953 memorandum records agreement by Kenya Intelligence

Committee on the formation of JAPOIT’s, or Joint Army Police Operational

Intelligence Team. These units, as of March 1953, existed in most of the major

districts effected by Mau Mau in Kenya: Nyeri, Nanyuki, Fort Hall, Embu,

Thompsons Falls, Nakuru, Naivasha.92

128. July 1953 memorandum on “Development & Integration of Intelligence Services”

states: “In an Emergency such as the present one, Special Branch plays a major

part in providing the operations intelligence required for planning operations.

To enable it to carry out this task, it has been reinforced by military officers.”

The memorandum continues under the heading “Operational Intelligence”:

Little can be said in public on this subject, but every effort has, and is being, made by the civil and military authorities to ensure that operational Intelligence is obtained, assessed and passed on to the user with the greatest possible speed. To this end the Special Branch has been augmented by military and Kenya Police Reserve Officers and, in addition, CID teams have been established in all the operational districts to deal with, inter alia, the interrogation of captured terrorists. The closes liaison is maintained between these teams and Special Branch.93

129. Special Branch operated within the detention camp pipeline.94 The Office of the

Director of Intelligence and Security created a guide to the “main sources of

intelligence,” including among them as, “Prisoners, Surrendered gangsters,

Chiefs and Headmen, Home Guard, and Self-confessed adherents to Mau Mau.”95

92 DO 3/2, Bates 01066-82, Memorandum from Colonel, Chief of Staff, Subject: JAPOIT,” 16 March, 1953. 93 CAB MM/3/4A, Bates 012439-442, “Extracts from Secretariat Top Secret File No. INT/10/4AA, Volume I – intelligence, Notes for Chief Secretary on Development & Integration of the Intelligence Services,” 23 July 1953. 94 EMER 45/22/OA, Bates 000908, Director of Intelligence and Security to Secretary for Defence, “Mageta Island,” 9 March, 1956. 95 D06, Bates 012606-10, Gribble, Director of Intelligence and Security, “The Routing of Intelligence,” 29 October, 1953.

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Military personnel, including FIAs, were attached to, and living in, Screening

Camps.96

130. The British army and its Intelligence teams were conducting work in the

Reserves and Kikuyu villages, including screening. Francis Erskine of the Kenya

Regiment verifies this in his testimony of October 1954 with relationship to

Dagoretti location and the surrounding villages.97. In a report from the Central

Province Emergency Committee, references to PMIO reports, and paragraph on

“Techniques for Dealing with Known Bad Villages,” details how Special Branch is

conceiving of a plan of village checks modeled on Malaya.98

131. There is photographic evidence that General Erskine and his troops were

present in the detention camps. See photographic evidence from Anthony

Clayton, Counter-insurgency in Kenya (Nairobi: Transafrica Press, 1976) Exhibit

CE6.

The British Army in the Reserves and Villages

132. On paper, July 1955 was a key turning point in the transference of responsibility

for the “maintenance of local law and order” from the British Army to the

Administration and Police in the Kikuyu Reserves and Settled Areas. It was at

this time that the BA was to transfer responsibility for “the maintenance of law

and order” in the Reserves and Settled Areas to the CA. In practice, as evidenced

by the new documentation, the British Army remained a dominant, active force

in the Reserves and Settled Areas through 1956. See CE1 for further

documentation and description. The Commander-in-Chief of the British Army

remained in operational control of all security forces, even after the 1955

96 E16/3/8a, Bates 010771-72, Catling, Commissioner of Police to Chief Secretary, “Alleged Offences by District Officers,” 6 February 1955; and E16/3/8A, Bates 010731-30, A.C.C Swann to Turnbull, Chief Secretary, 31 October 1955. 97 AA 45/55/2A, Bates 007343-44, Witness statement of F.D.M. Erskine, 9 October, 1954 98 AA 45/23/1/3A, Vol II, Bates 006840-43, Central Province Emergency Committee Meeting Held on Friday 17th February 1956.

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transfer of responsibilities for “law and order” to the Administration and Police,

as stated in “Operational Responsibility” memorandum, June 1955:

In spite of the fact that the army will no longer have operational duties in the districts names in Paras 1 and 2, the responsibilities of the Commander-in-Chief are unchanged and he still remains charged with the overall operational command of all security forces taking part in the Emergency.99

133. The Court will recall that it was during this time, from June 1954 when the War

Council decided to enforce mandatory villagization in the Kikuyu Reserves, until

then end of 1955 when some 1 million Kikuyu were forcibly relocated into some

800 emergency villages throughout Kenya’s Central Province Reserves.100

134. The War Council in March 1956 clearly lays out the joint responsibility of all

planning of operations, with the Commander-in-Chief maintaining operational

control. This would include screening, detention, villagization, communal

punishments, and food denial campaigns.101

135. The Commander-in-Chief viewed villagization as part of the military’s overall

strategy. He wrote, “The K.E.M. tribes must ALL be concentrated in villages. The

Commissioner of Police supports this view. It is the key to the whole problem of

tighter control. Once villages are established curfews, roll calls, searches, and

food control become merely a matter of organisation.” He further writes, “The

aims should be to place all K.E.M. in villages by 31st August, 1955. Once this has

been done al efforts must be directed towards breaking the Passive Wing by

means of closer administration; the firm intention must be to destroy it

completely by the end of 1955.102

136. The Commander-in-Chief viewed villagization as a punitive strategy. He wrote,

“It is, therefore, of the utmost importance that no time should be lost in

99 AA 45/56A Vol 1, Bates 008038-39, “Operational Responsibility, c. June 1955. 100 KNA, AB 2/53/1, “Memorandum on the Aggregation of the Population into Villages in Rural Areas,” 12 April, 1954; and PRO, CO 822/481/1, Press Office, Hanout no. 28, 19 March, 1953. 101 CAB 1/46, Bates 015891-94, “War Council Directive No. 9, Emergency Policy,” 27 March 1956. 102 AA 45/56A Vol I, Bates 007979-8000, “Appreciation by the Commander-in-Chief of the Operational Situation in Kenya in June 1955.”

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tightening administrative control by increased villagization and the creation of

conditions which will enable drastic sanctions to be applied to those sections of

the African population which actively support the terrorist cause.”103 For more

specific details, see CE1.

137. That villagization was considered a “punitive” policy was discussed in the War

Council, with the Council authorizing the “punishment of the civil population for

lack of co-operation.”104 General Erskine directed in August 1953 that Kikuyu

villages were to be “surrounded by thorn or wire, and within hailing distance of

a European.” He further stated that new planting will be forbidden and June and

July plantings taken off.105

138. The British Army played a central role in barb-wiring the Emergency villages. In

particular, the Royal Inniskilling Fusiliers participated in this operation.106 The

British Army defined and executed collective punishments and communal,

forced labor. For example, The War Council in 1956 specified the types of

communal labour to be undertaken vis-à-vis villagization policy. Civilian

villagers were to engage in agricultural work, or in clearing a mile-long strip or

digging ditches around the forest edge. 107See CE1 for additional details,

including the burning of huts, the creation and execution of the “food denial”

campaign, the use of starvation tactics, and the imposition of punishments.

139. The British Army and the War Council took deliberate steps to ensure their

practices in the Reserves/villages were not made public. For example, The “food

denial” campaign continued throughout the Emergency, and publicity of the

campaign was purposefully suppressed. The War Council Minute 1387 (16)

103 AA 45/56A Vol 1, Bates 008098-102, “Forecast of Security Operations in 1955”. 104 E19/12492A, Bates 015439-43, Letter from Committee of Enquiry into Thumaita Village to Baring, 5 January 1956; and “punitive” policy, for example, EMER 45/23/1/3A, Vol. II, Bates 014277-84, Central Province Emergency Committee, 8 January 1954. 105 ECM 12, Bates 024071-72, Extract of a letter from H.E. the Governor, 18 August, 1953.

106 AA 45/51A Vol. I, Bates 021868, “Future Planning,” 4 April, 1955.

107AA 45/51A Vol. II, Bates021911, “Communal Labour,” 24 January 1956.

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recorded “that publicity for food denial measures should be kept to a

minimum.”108

140. The punitive policies against the civilian population and food denial campaign

resulted in numerous charges of assault, torture, rape, and starvation in the

villages in the Kikuyu Reserves. These include charges against European officers

in the Army and Administration, as well as African members of the security

forces (including the Home Guard) and in the Administration.

141. The abuses that arose from villagization policy are well-documented in the Chief

Secretary’s Complaint Coordinating Committee, which includes 62 allegations of

rape, all of which took place in the Reserves, and 21 acts of alleged brutality

perpetrated by members of the military. Extensive interview data supports the

data in the Chief Secretary’s Complaint Coordinating Committee. For example, in

the End of Empire documentary, Christina Wambui, who lived in the villages

during the emergency recalled:

Later Home Guards plus army soldiers would come to our village early at 6am. You would hear doors being hit thus (ku ku) – open the doors! “Open up. Open the doors.” Once they got in they went straight into beating you. They would beat us and take some to the guard post – in a critical condition. Once there she would be beaten further until she was completely dead. Once the police soldiers got in, they would search the house while the army soldiers would rape the woman. Ten of the army soldiers would rape one woman. In other cases five of them would rape one woman….”109

142. Similarly, the documentary “Kenya: White Terror,” provides oral testimony

relating army soldiers, or “Johnnies,” in the village where they perpetrated

abuses.

Document Destruction and Removal

143. Document destruction and removal in Kenya took place between 1958 and 1963.

The process was a highly systematized operation, choreographed between high- 108 AA 45/51A Vol. I, Bates 021782, “Food Denial Measures – Draft Press Announcement,” 30 September 1955. 109 RH, Mss. Emp. S. 527/8, End of Empire, Interview of Christina Wambui.

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ranking officials in the CO and CA, including the Colonial Secretary and the

Governor. There is considerable of new evidence from the Hanslope Disclosure

evidencing this systematized and deliberate operation of document removal and

destruction. The entire Rec.#488, 1943/17/B, “Security of Instructions for

Handling Classified Documents, released with Hanslope Disclosure,”; and Rec.

#487, CS 10/2 Vol. II, “Security of Documents Including those in Transit to and

from Government House,” provide further details of summary of

removal/destruction of documents in Kenya that follows here. The most

important files will be referenced in my summary below of document

removal/destruction.

144. Document destruction/removal began as early as October 1958. The Kenya

Intelligence Committee, which including Major I.J.D. Stevenson-Hamilton,

representative of the General Officer Commanding, East Africa, began to outline

and carry out document destruction of materials related to the Emergency. This

included the “Downgrading and Destruction of Classified Material” as outlined

by the Ministry of Defence. Authorization was not required by the originating

office to destroy files since “security can only be improved, and not endangered,

by the destruction of secret material.”

145. By September 1959 the “Destruction of Classified Waste” was underway through

“burning”. Memoranda were also generated to estimate the amount of time and

means needed to destroy documents under Emergency circumstances. It was

estimated at that time that approximately 1 to 1 ½ tons of documents would

need to be destroyed in total. It was suggested that “Using all available means, it

is estimated that under proper supervision, a bonfire would dispose of

approximately 1120 lbs per hour.”110 A later, detailed report estimated the

110 CS 10/2/4, Bates 013173-75, Kenya Intelligence Committee, “Down Grading and Destruction of Classified Materials,” 6 October 1958; CS 10/2/4, Bates 013178, “Destruction of Classified Waste,” 24 September 1959; CS 10/2/4, Bates 013179, “Method of Destroyed Classified Documents,” 24 September 1959.

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amount of documents to be destroyed in Government House and each Ministry

to total nearly 3 ½ tons, with destruction means either by fire or incinerator.111

146. In May 1961, the “Watch” file designation is introduced. G.J. Ellerton, Kenya’s

Permanent Secretary for Defence announces its introduction in a widely

circulated memorandum, including to the Governor. The “Watch” system, which

Ellerton acknowledges “will inevitably impose a burden on some Ministries and

Departments” is devised to divide all classified files and papers held in Kenya

into two categories:

i. Watch: papers which can only be seen by “authorised” officers and

which will ultimately be destroyed or removed to the UK; and

ii. Legacy: all papers which “may be safely and appropriately be seen in

the course of duty by persons who may not fit the definition of

“authorised” officers, and which will eventually be inherited by an

independent Government.” (1943/17/B, Bates 024225-231,

Memorandum from Ellerton, “The Designation of “Watch”,” 13 May,

1961).

147. “WATCH” documents were described as any which might:

i. “prejudice the security of the Commonwealth or of any friendly state; or

ii. embarrass H.M.G., the present or any future Kenya Government, or any

friendly Government; or

iii. give a political party in power an unfair or improper advantage over an

opposition party, by the possession of delicate information liable to be

exploited in a party interest; or

iv. endanger a source of intelligence, or render any individual vulnerable to

victimisation” (I&S.137/O2(S), Bates 013042, Letter from the Ministry of

Defence to various departmental heads, Provincial Commissioners and

Permanent Secretaries, 13 May 1961).

111 CS 10/2/4, Bates 0131782-83, “Routine Destruction.”

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148. “Watch” designation – that is, files to be marked by hand with a stamp “W” on

the top right hand corner – is clearly outlined in Ellerton’s March 1961

memorandum. Documents to be designated as “Watch” fell into a very broad

category, and required individual Ministries and Departments to review tens of

thousand of documents to determine whether or not to mark them with a “W” on

the top right corner, hence designating as a “Watch” material. In his

memorandum, Ellerton indicates the wide scope of “Watch” materials:

“WATCH” material, which must be classified, may be Confidential, Secret, or Top Secret, and the designation is quite distinct from such security classifications: it bears more resemblance to the “restricted series” of designations, namely “U.K. Eyes only”, “Guard” (not to be seen by U.K citizens), and “….& Personal” (not to be seen by unofficial Ministers). But it is more comprehensive than these three, and includes them all; thus, whatever is designated “U.K. Eyes only”, “Guard” or “… & Personal” is “WATCH” material, but the converse does not apply.

149. In May 1961, Ellerton circulates original Memorandum for “Watch” designation

to all Provincial Commissioners, with the purpose of the procedure being carried

out in all Provinces and Districts throughout Kenya. Ellerton offers assistance

from Nairobi for the process by those individuals who had the task of “purging”

files there. Ellerton goes on to note that the process for “purging” is tedious and

time consuming and “may well cause you to tear out your hair.”112

150. Numerous memoranda exist emphasizing the need to destroy/remove

documents that might cause embarrassment or which might be explosive in the

future. For example, Governor’s Office states that documents to be destroyed

“must include in the first instance, any papers which are in themselves explosive

or dangerous and which, unless absolutely necessary, do not need to be

transferred to the U.K.”113

112 CS 10/2 Vol II, Bates 024180, Ellerton, “The Designation “Watch”,” 13 May 1961. 113 GO/ DS3, Bates 012888-89, Internal Memorandum, 8 April 1963.

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The Role of the Colonial Office

151. The Colonial Office had knowledge of the document destruction and removal

processes and played a direct role in its orchestration and execution during the

final years of British colonial rule in Kenya. For example, in a September 1962,

Colonial Office memorandum entitled “Protection and Disposal of Classified and

Accountable Documents and Records Generally,” considerable direction is

given, including the destruction of all correspondence referring to the “Colonial

Office print series,” “Joint Intelligence Committee papers,” “and all other TOP

SECRET non-accountable material.” Particular emphasis is placed in the

memorandum on documents that “might embarrass Her Majesty’s Government

or other governments” and that “”might embarrass members of the Police,

military forces, public servants or others (such as Police agents or

informers).”114

152. There was also a defined procedure to document the destruction of documents,

whereby any material destroyed would require a “destruction certificate

submitted in accordance with Rule 3 (vi) of Colonial Office secret circular

dispatch No. 1282/59.”115

153. By 1961, the public became aware of document destruction in Kenya, with

publicity in Britain under such headlines as “State Bonfire.” Mr. Archer, Public

Relations Officer in London, was involved with the Kenya government in issuing

statements. For example, in October 1961, Governor Renison stated upon

queries from Margery Perham, Oxford University, that “Any documents

destroyed are documents of no historical interest or surplus copies of original

preserved elsewhere.” 116

114 1943/17/B, Bates 024198-200, Colonial Office “Protection and Disposal of Classified and Accountable Documents and Records Generally,” September 1962. 115 1943/17/B, Bates 024198-200, Colonial Office “Protection and Disposal of Classified and Accountable Documents and Records Generally,” September 1962. 116 CS 10/2/4, Bates 013110-11, Minute by T. Neil, 5 October 1961; CS 10/2/4, Bates 0131107, Letter from Renison to Margery Perham, 17 October 1961.

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154. In the final months before Kenya independence, there was considerable

telegraph correspondence between the Governor and Secretary of State for the

Colonies regarding the “final purgings of records” and the removal of documents

to the UK. Documents removed to the UK were done so on H.M. ships and R.A.F.

planes. Included in those items returned to the United Kingdom were “Corfield

Papers, Provincial & District Intelligence Summaries (March 1953/August 1961)

and other sensitive material.”117

155. A 45-page handlist of documents and files to be destroyed and removed can be

found at CS 10/2/4, Bates 013057-102. The categories of files which were

destroyed pursuant to the policy were:

i. Interrogation reports on Mau Mau terrorists, cited as a “typical

example” of a document which would cause the British government

“considerable embarrassment” if they fell into the hands of the

independent Kenyan government, and which should therefore be

destroyed (GO DS 3, Bates 012976, draft memorandum “Future

Custody of Personal Records” by the Permanent Secretary to the

Governor’s Office, undated);

ii. Any personnel files of officers which included references to

“operations against Mau Mau” (Bates 012976, draft memorandum

“Future Custody of Personal Records” by the Permanent Secretary to

the Governor’s Office, undated);

iii. ‘Mau Mau’ (Detention Camps)” (GO DS 3/3, Bates 013275,

“Destruction Lists”, March 1962);

iv. Security files for various Mau Mau detention centres (Lokitaung

Prison, Mariira Works Camp, Gathigiriri Camp, Othaya Works Camp,

Aguthi Works Camp, Hola Camp, Thiba Works Camp, Kandongu and

Karaba, Manyani Camp and Senya Camp) (GO DS 3/3, Bates 013275,

“Destruction Lists”, March 1962);

117 1943/17B, Bates 024193, Telegram from Governor to Secretary of State, “Intel and Guidance Papers from Foreign Office,” 23 November 1963; 1943/17B, Bates 0241935, Telegram from Secretary of State to Governor, “Disposal of Records,” 10 May 1953.

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v. Inquest files, including a file about the Hola Works Camp inquiry, also

cited as a “typical example” of a document which would cause the

British government “considerable embarrassment” if they fell into the

hands of the independent Kenyan government, and which should

therefore be destroyed (GO DS 3/3, Bates 013275, “Destruction Lists”,

March 1962);

vi. Files entitled “Control of Africans”, which may have contained

information on screening operations (as did a similarly named file

with reference Bates 004053, AA45/30A Vol I) (GO DS 3/3, Bates

013275, “Destruction Lists”, March 1962);

vii. Files of telegrams transmitted between the Colonial Office and

Colonial Administration (GO DS 3/3, Bates 013275, “Destruction

Lists”, March 1962);

156. Therefore, the Hanslope documents confirm that the following categories

described in my first statement are missing due to a deliberate policy of

document destruction:

i. Police Department and, with it, CID and Special Branch files. Such files

would relate to interrogations and/or screenings. Such files existed at

one time, including files and note cards for individual detainees, as

they are referenced in other, existing files;

ii. District and Provincial Commissioner files and, with them, material

related to villagization; and

157. In addition, individual detainee files are nonexistent. Each of the three

Departments/Ministry (i.e. Prisons Department, Department of Community

Development and Rehabilitation, and Ministry for African Affairs) with

responsibility for detainees/prisoners references files for each individual

detainee. Almost none of these files exist in Nairobi or London. It is

uncertain whether these files are contained in the Hanslope documents

which are yet to be released to the Claimants or whether they were

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destroyed. Based upon the official number of 70,000 to 80,000 detainees,

this would mean that some 210,000 to 240,000 files are missing.

Redactions/Missing Documents

158. Missing from the Hanslope Disclosure are the following items:

i. I have compared the full list of files that the FCO has provided the

Claimants and compared that with the full list of files that the FCO

discovered at Hanslope Park. By my estimate, the FCO has only

produced approximately 1/3 of the files that were discovered at

Hanslope. Several hundred of these files have titles that appear

relevant to the Claimants.

ii. It is noteworthy that in the FCO’s first release of “migrated archives”

to the British National Archives, Kew, there are five files (i.e. FCO

141/6957, FCO 141/6958, FCO 141/6959, FCO 141/6964, and FCO

141/6965) that contain highly relevant documents pertaining to

document destruction and removal. These five files were not released

to the Claimants as part of the Hanslope Disclosure. Contained within

these documents are details of “Watch” and “Legacy” processes, the

only extant copies of a handful of destruction certificates, details on

the dumping of documents into the Indian Ocean, and listings of

Special Branch destructions, including “Dead Card Index.”

iii. There are a considerable number of correspondences between the

Governor/Kenya Government and Colonial Secretary/Colonial Office

in the Hanslope Disclosure on sensitive matters. This would include,

but is not limited to, correspondence about detainee abuses, detainee

deaths at Aguthi and Gathigiriri Camps, and correspondences about

screening abuses and detainee letters. There would exist, for the

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historical record, two copies of each of these correspondences: one in

Kenya and one in London. However, it is noteworthy that many of the

correspondences in the Hanslope Disclosure, all of which represent

coming/going to Kenya, are not matched by a similar set of

correspondences in the British National Archives. While

approximately 10 percent of documents are placed in the National

Archives due to volume, it is noteworthy that those of a particularly

sensitive nature (and hence removed from Kenya), are not in the

London archives. Moreover, it is also noteworthy that files mandated

by the Colonial Office for document destruction in Kenya included

“Colonial Office print series.”

iv. To the best of my knowledge, only a few of the Destruction

Certificates submitted in accordance with Rule 3 (vi) of Colonial Office

secret circular dispatch No. 1282/59, and which were, according to

procedure, sent to the Colonial Office, are currently in the British

National Archives. Those that reside in the National Archives were

recently transferred there as part of the FCO’s “migrate archive”

release. I ask for the production of the original Colonial Office copies

of these documents so that we can more accurately assess which

documents were, in fact, destroyed, and which were removed.

Witnesses Evidence

159. I have read with witness statements of Major Carol Gurney and Federick Lovatt-

Smith with regard to surviving members of the Kenya Regiment who could be

called to give oral testimony. I have also read the statement of Ian Buist. It is

incorrect to state that all the key witnesses from the period are no longer alive. I

would refer the Court to paragraph 137 of my first witness statement with

regard to the list of key witnesses who are still alive. These include:

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i) John Cowan, the author of the Cowan Plan;

ii) Ian Buist, the senior colonial official with

responsibility for Kenya;

iii) Sir Frank Kitson, a senior Army office who was an

MIO during the Kenya Emergency and had

significant knowledge of the British Military’s role in

interrogation and screening;

iv) Ian Henderson, senior member of Kenya’s Special

Branch during the Emergency.

160. There are also important transcripts of interviews which I undertook with some

seniors officials who have since died, which I have now disclosed (Exhibit CE3).

These include Thomas Askwith, Commissioner for Community Development and

Rehabilitation:

“The Detention Camp system was not an efficient one, there was an enormous number of people – it was a very overwhelming thing. We relied upon peoples’ humanity, and if they were inhumane then we had a hard time doing anything about it. This happened over and over again. Abuse I mean, terrible abuses against detainees. I tried, but there was nothing I could do to stop it. You believe me when I say that no one wanted to listen. All the way to the highest authorities in the Governor’s House and the Colonial Office, I pleaded with them, but they were deaf.”

161. In my interview with Terence Gavaghan, the District Office in charge of the

Dilution Technique in the Mwea Camps he stated:

“We used strong armed brute force but there was nothing wrong with that. That was our job, and we knew it. We did what we had to do and we were approved at the highest levels by Baring and the others. We were rewarded for our work [ie OBEs/MBEs]. We did what they wanted. Unless you were there you would not understand. Liberal know-it alls thought they knew everything. But we knew the situation and addressed it appropriately. These men were animals before we got hold of them.”

162. Furthermore, numerous former Colonial Officials who served at a lower level are

still alive in the UK and in Kenya. During my research I interviewed in the region

of 20 former Colonial Officials. Former Kenya Regiment members have an

association both in the United Kingdom and in Kenya. A selection of names is

listed at paragraphs 141 to 143 of my first statement.

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163. In addition, there are hundreds of former Kenyan detainees who are still alive,

who were detained in detention camps and screening centers and who are able

to provide detailed evidence as to the abuses they were subjected to. During my

research I personally interviewed 300 to 400 Kenyans who were detained

during the Emergency and who were able to provide detailed testimony.

Conclusion

164. In addition, there are hundreds of former Kenyan detainees who are still alive,

who were detained in detention camps and screening centers and who are able

to provide detailed evidence as to the abuses they were subjected to. During my

research I personally interviewed 300 to 400 Kenyans who were detained

during the Emergency and who were able to provide detailed testimony. I am

informed that the key factual issues which arise in these proceedings concern:-

a. The nature of the policies and systems implemented to restore law

and order such as Operation Anvil, screening, villagization, the

creation of detention camps.

b. The nature and frequency with which suspected Mau Mau were

subject, in the course of implementing such policies, to ill-treatment

including torture .

c. The role of the BA in the restoration of law and order through the

creation and/or implementation of such policies and systems;

d. The role of the CO in the restoration of law and order through the

creation and/or implementation of such policies and systems;

e. The knowledge of the BA, its officials, the SSC and CO officials of ill-

treatment of Mau Mau suspects including torture in Kenya.

f. Their responses to such ill-treatment.

165. I further understand that the issues of whether torture and ill-treatment

were systematic, and whether the BA or CO were in some sense complicit in

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such ill-treatment or systematic ill-treatment is a matter of inference from

the basic facts and legal argument.

166. I confine my observations therefore to the quantity of evidence that exists in

relation to the issues a. to f. In my view there is a wealth of evidence relating

to each of those issues. From a historian’s point of view it is unquestionably

sufficient both in quantity and quality (by which I refer to its direct

connection to primary witnesses and/or key decision makers) for it to be

possible to make sound factual findings in relation to all of these issues. This

is a view which I have firmly held since I completed my research for Imperial

Reckoning. The Hanslope disclosure has served to strengthen that already

firm evidential base very considerably.

167. Finally, I wish briefly to address the Defendant’s Defence. It largely repeats

what the Defendant put forward by way of ‘historical background’ in the

Defendant’s Skeleton Argument for the hearing in April 2011. In my second

witness statement from paragraph 9 forwards, I made detailed criticisms of

the Defendant’s factual assertions. I repeat those same criticisms in relation

to the Defence. What I have seen of the Hanslope materials has served only

to reinforce those criticisms, not to weaken them.

I believe that the facts that I have stated in this statement are true.

Signed: Date: May 25, 2012

Professor Caroline Macy Elkins

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