1 Introduction: A contested case

Between 2008 and 2011, three academic historians, Caroline Elkins, David Anderson, and Huw C Bennett prepared expert statements derived from archival documents and oral testimonies.Footnote 1 Their expert statements supported a legal action taken by five Kenyans against the Foreign and Commonwealth Office, United Kingdom (UK) (FCO–also referred to as ‘the UK government or defendant’) before the High Court of Justice, Queen’s Bench Division (the Court). The five Kenyan individuals asserted claims for personal injuries resulting from the systemic abuse, ill-treatment, and torture inflicted by the Colonial Office, the British and military forces, during the violent suppression of the Mau Mau uprising in the final years of British colonial rule.

The Mau Mau uprising was a response to British colonial practices in Kenya.Footnote 2 In the early 1920s, British settlers arrived in Kenya, leading to discriminatory policies and practices against the native Kikuyu population.Footnote 3 Those included forced labour and land confiscation, which threatened the livelihoods and traditional way of life of the Kikuyu people. In the face of the injustice practices, the Kikuyu and other indigenous groups rose against British rule, forming a resistance movement known as the Mau Mau.Footnote 4 To counter the growing violence and unrest caused by the Mau Mau revolt against the British, Governor Sir Evelyn Baring declared a state of emergency in 1952, which remained in effect until 1960.Footnote 5 During this period, the Colonial Office enacted Emergency Regulations 1952, granting wide-ranging powers to arrest and detain several individuals suspected of involvement in the Mau Mau rebellion.Footnote 6 The Colonial Office established detention camps to detain those deemed connected to the Mau Mau. The claimants alleged, they were held as Mau Mau members in the detention camps and tortured, in varying periods between 1954 and 1959.Footnote 7

The FCO did not dispute the nature of the abuse but raised two arguments contesting its liability for the alleged abuses. Firstly, they asserted that the period of limitations to seek redress for the crimes had expired, rendering the claims non-triable due to the passage of time. Secondly, they contended that the Colonial Office and Administration in Kenya was separate and distinct from the current FCO.Footnote 8 Thus, the liability for those alleged acts had transferred to the Kenyan government upon independence.Footnote 9

Given the nature of the claim and defence, the Court had to adjudicate upon ‘technical legal argument, as well as a historical assertion regarding the British government’s level of awareness of, and complicity towards, the use of violence in Kenya prior to decolonisation’.Footnote 10 While courts do hear claims of past liability, but when requested to review colonial-era historical documents, they often lack the expertise to identify and understand the relevance of each document to the historical context.Footnote 11 That is where historians can play a crucial role in assisting the court by identifying and interpreting these documents in such situations.

In the Mau Mau case, the three historians studied relevant historical documents and systemically shed light upon Britain’s constitutional and administrative structure in Kenya and its role in facilitating brutality within the Mau Mau detention camps. Their expert statement helped the Court determine that there existed a ‘substantial body of evidence’ suggesting that both Governments (British and local administration) knew the detention camps were inhumane.Footnote 12 However, the extent of the historians’ contribution in the proceedings before the Court is insufficiently explored in the existing literature.Footnote 13 To bridge this gap, this case note aims to outline the role of the historians in the case, including when they became involved, the individuals they collaborated with, and how their work was internally distributed (Section 2). Additionally, a brief description of the final judgment is provided, followed by an analysis of the impact of the historians on the court's decision (Section 3).

2 Historians in court: The ‘Hanslope Disclosure’ and exposing the skeleton argument

In preparation of the claim, the claimants’ lawyer, Leigh Day, enlisted the assistance of Elkins in 2008, a year before filing the claim.Footnote 14 The foundation of the claim largely relied on Elkins’ historical evidence presented in Imperial Reckoning.Footnote 15 Subsequently, in 2010 and 2011, Leigh Day sought the expertise of Anderson and Bennett, respectively.Footnote 16 Each historian was called upon due to their specialised knowledge of specific aspects of the case. Elkins focused on the ‘detention and villagisation’Footnote 17 system, which pertained to the civilian side of the war.Footnote 18 Anderson’s expertise centred on capital cases and the forest war,Footnote 19 while Bennett examined the role of the British Military in counterinsurgency operations during the Emergency period.Footnote 20 Collectively, their expertise provided the Court with a comprehensive range of historical perspectives to evaluate the FCI’s defence.

For example, early on during the judicial proceedings, the historians played a pivotal role in helping the Court to source historical documents and present a summary of those documents, which were voluminous.Footnote 21 Their collective testimony led to the revelation of a cache of over 300 boxes taken from Kenya and secretly returned to Britain prior to decolonisation in 1963.Footnote 22 These documents exposed the endorsement and implementation of systematic human rights abuses by the highest levels of British administration during the Emergency.Footnote 23 While the Court acknowledged that the defendant’s delayed disclosure of these documents did not violate any court rules or orders,Footnote 24 their discovery was made possible solely through the historians’ evidence. Consequently, Elkins, Anderson, and Bennett’s interpretation of these documents, known as the ‘Hanslope Disclosure’ formed the bedrock for the claimants to debunk the defendant’s case.Footnote 25

The historians played a crucial role in not just uncovering the ‘Hanslope Disclosure’ but also exposing Britain’s complicity in authorising and implementing a systematic regime of torture and abuse during the Kenyan Emergency.Footnote 26 For example, the FCO’s skeleton argument was that the brutalities were isolated incidents or were committed by ‘bad apples’ or ‘dispositional individuals’.Footnote 27 Contrary to FCO’s claims Elkins extensively documented widespread abuses committed by British colonial authorities in Kenya, through detention techniques: ‘villagisation’,Footnote 28 ‘screening’,Footnote 29 and ‘dilution’Footnote 30 She highlighted the role of John Cowan, the senior Prisons Officer of the Mwea Camps,Footnote 31 in devising the dilution technique. This technique was subsequently systematised under the leadership of Terence Gavaghan in the Mwea Camps, with its methods disclosed to the Colonial Office in March 1957. Notably, the Colonial Secretary approved using the dilution technique and ‘compelling force’.Footnote 32

Furthermore, Elkins countered the FCO’s claim that Governor Baring took steps to end the brutality. She argued that most of the Defendant’s public declarations to cease the abuses occurred early in the Emergency, specifically in 1953.Footnote 33 These declarations preceded the substantial documentary and witness evidence highlighting the brutalities committed by British colonial administration and security forces members. Elkins also emphasised deliberate efforts by Baring and the Colonial Office to make the detention camp Pipeline increasingly brutal over time.Footnote 34 This systematic violence culminated in the Cowan Plan, as supported by the evidence in her initial witness statement.Footnote 35 Thus, the historical evidence was able to successfully countered the FCO’s skeleton argument, teaching the Court, through the litigation process, about the complicity of the UK Government in the alleged acts of torture.Footnote 36

3 Impact of historians

The three expert statements exerted significant influence on multiple dimensions of the case. Firstly, the research conducted played a pivotal role in bolstering the claimants’ position. Secondly, it facilitated the Court in ascertaining potential liability on the part of the FCO. Lastly, it effectively challenged and refuted the prevailing public narrative of their innocence during the Emergency, propagated by the UK, thereby prompting consequential political measures. This section will provide a detailed explication of these three consequential impacts.

First, to pursue claims of reparation or compensation for colonial-era wrongs in a court of law, such as a tort claim for personal injuries in the Mau Mau case, it is necessary to provide strong supporting historical evidence.Footnote 37 Such evidence must tell a story of what happened, how it happened, when it happened, and who was responsible for the alleged wrong. Here, historians typically gather this evidence by meticulously searching through archives and conducting oral interviews, a well-established research methodology in historical work.Footnote 38 When presented with this evidence, judges gain a deeper understanding of the historical context and factual scenario surrounding the claim, which may have been previously unknown to them.Footnote 39 In the Mau Mau case, for example, the Court acknowledged that ‘the factual presentation of the case [...] has been based principally upon the statements of the three academic historians’.Footnote 40 This statement begins to highlight historians’ crucial role in providing valuable evidence to support legal claims.

Second, regarding the impact of the expert evidence on the issue of the FCO’s liability, Elkins’ historical work successfully presented a shortcoming in the FCO’s reliance on the skeleton argument to absolve itself of any liability. The Court acknowledged the ‘stark evidential dispute’ between the parties, as evidenced by the contrasting submissions on the facts presented in the defendant’s skeleton argument and the statements provided by the three historians.Footnote 41 However, the weight of the expert evidence proved compelling and impossible for the Court to not make some preliminary remarks. The Court stated that even in the limited papers it had reviewed and bearing the judgment was only a summary application, there was ample evidence suggesting the existence of systematic torture of detainees during the Emergency. For example, given that the Commander-in-Chief possessed sufficient power and resources to intervene and prevent such abuses, the Court found it untenable to argue that a trial court could not conclude that the Commander had played a role in instigating or procuring the torture as part of a common design. At the current stage of the case, a court meeting such a conclusion was deemed implausible.Footnote 42 Such preliminary remarks, though not binding on the trial court, could have only been made with the support of historical evidence.Footnote 43

Finally, the historians’ expert statement paved the way for the consequential unearthing of the ‘Hanslope Disclosure’, which Howe contends could be viewed as one of the most significant instances of historians directly influencing the trajectory of history or exerting a noticeable impact on legal and political systems.Footnote 44 The revelation of the ‘Hanslope Discloure’ brought about substantial embarrassment and media scrutiny, prompting the UK’s Foreign Secretary, William Hague, to publicly declare a renewed dedication to transparency.Footnote 45 Swiftly thereafter, efforts were made to release the documents to the public through The National Archives (TNA).

4 Conclusion

The Mau Mau case stands as a counterargument to the notion that a judicial forum may not be suitable for litigating colonial-era crimes due to the difference between historical and legal arguments and a lack of historical expertise. First, both history and courtroom arguments deal with past events, especially when both have to ‘grapple’ with colonial-era crimes. Second, while historians cannot ‘monopolise’ the study of history, but they sure have techniques that can help courts to make sense of historical events and put those in context.Footnote 46

In conclusion, despite the case settling without a trial,Footnote 47 the invaluable contributions of three historians demonstrated the atrocities committed during colonialism before the Court and to the public. Through their expert evidence, meticulously recorded in the Court’s judgment, a lasting record of these crimes was established and, via its public accessibility, ensures the crimes would not be forgotten.Footnote 48 Although the Mau Mau case primarily concerned individual tort liability, its underlying public interest exposed the ‘fault lines in the belief in the benevolence of Empire’.Footnote 49 This significant impact could only be achieved through the dedicated efforts of historians who unearthed vital documents and presented indisputable historical facts to the Court.