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Alchemy of Evidence: Mau Mau, theBritish Empire, and the High Court ofJusticeCaroline Elkins

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To cite this article: Caroline Elkins (2011): Alchemy of Evidence: Mau Mau, the British Empire, andthe High Court of Justice, The Journal of Imperial and Commonwealth History, 39:5, 731-748

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Alchemy of Evidence: Mau Mau, theBritish Empire, and the High Court ofJusticeCaroline Elkins

Restorative justice in various forms is a phenomenon that has swept across the globe over

the last three decades. Most recently, it is unfolding in the High Court of Justice in London

where five Kenyans have filed a claim against the British government, alleging that they

suffered acts of mistreatment and torture at the hands of British colonial and military per-

sonnel. Three revisionist Mau Mau historians have served as advisors and expert witnesses

for the claimants. Judicial procedure and the positivist stance of the court have framed

their production of evidence and its reading. This article will examine the production

of the historians’ witness statements, and the impact that the recent Hanslope Disclosure

has had upon their work. The discussion is framed within the broader context of Mau

Mau revisionism and the critiques that ensued after the publication of Imperial Reckoning

and Histories of the Hanged.

Restorative justice in its many forms is a phenomenon that has swept through the

post-totalitarian and post-colonial worlds over the last several decades. During this

time multiple venues, including the Nuremberg and Arusha Trials, national truth

commissions (over 30 in all), cases of reparation as well as others heard in the Inter-

national Criminal Court have deployed positivistic juridical means, in various forms,

for the establishment of historical facts, the determination of injustices, and the pro-

vision of remedies, broadly defined. From Germany to South Africa, to Spain and

Chile, there has been, as John Comaroff coined, a ‘juridification of the past’.1

The role of historians in mediating in these juridical processes over the establish-

ment of facts and the interpretation of evidence has been uneven. So, too, has been

production of historical evidence as a consequence of the juridical processes them-

selves. For instance, the 1997 case of Maurice Papon, the Vichy bureaucrat who

deported Jews from the region of Gironde, is one in which four historians offered

The Journal of Imperial and Commonwealth HistoryVol. 39, No. 5, December 2011, pp. 731–748

Correspondence to: Caroline Elkins, Department of History, Harvard University, 1730 Cambridge Street,

Cambridge, MA 02138, USA. Email: carolineelkins3@gmail.com

ISSN 0308-6534 print/1743-9329 online/11/050731–18http://dx.doi.org/10.1080/03086534.2011.629084 # 2011 Taylor & Francis

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testimony to the jury based upon their accumulated research. Among them was Robert

Paxton whose publication of Vichy France: Old Guard and New Order, 1940–44 was the

subject of intense criticism at the time of its publication in France in 1973; his research

from this book, as well as his co-authored Vichy France and the Jews (1981), would help

serve as a basis for his expert testimony.2

In contrast, South Africa’s Truth and Reconciliation Commission (TRC) did not call

upon a coterie of professional historians, relying largely instead on lawyers and soci-

ologists who sought to translate, through the TRC process itself, a myriad of diffuse

testimonies into historical evidence, that was at once verifiable and thus ‘truthful’.

The resultant TRC archive offers a particular set of evidence, reflective of the Commis-

sion’s focus on individuals, the ‘truth-finding’ process, and the over-arching belief in

redemptive purging through procedures that were judicial in many respects.3

Today, another ‘juridification of the past’ is unfolding, this time in the High Court

of Justice in London. Five Kenyans—Ndiku Mutua, Paulo Mzili, Wambugu Nyingi,

Jane Muthoni Mara, and Susan Ngondi—filed a claim against the British government

in June 2009, alleging that they suffered acts of mistreatment and torture at the hands

of British colonial and military personnel during the Mau Mau Emergency (1952–60).

According to a recent summary judgement of the justice presiding over the case, the

Honourable Mr Justice McCombe:

[The five claimants] alleged that they were seriously mistreated in detention campsin Kenya, when it was a British colony, during the Mau Mau uprising in the 1950s.One claimant has died since the proceedings were begun . . . The claims are fordamages for personal injuries brought against the Foreign and CommonwealthOffice (‘the FCO’) (representing the British government) in respect of the ‘torts’(actionable wrongs) of assault and battery, and negligence.4

In some ways, this case is not dissimilar to others, both civil and criminal, that have

preceded it. The arbiter and decider of evidence, expert opinion, and ultimate

outcome is not an academic forum, at times comfortable with the sociological and his-

torical probings that can lead as much to indeterminacy as determinacy, but rather a

court that is bound by juridical procedure, and that bounds the scope of academic par-

ticipation to the questions particular to the case and the legal system in which it is

unfolding. The claimants’ case rests in large part on their legal teams’ facility and

thorough-going knowledge of the historical evidence; this evidence is drawn from

experts with years of archival work at their fingertips. Historical experts, however,

must parse down facts and narrative complexity, and with it render the past under-

standable vis-a-vis the positivist legal scrutiny of intentions and actions. In short,

history is on trial, though the courtroom and its evidentiary gaze are, at once, in

harmony and dissonance with the practices of many of its journeymen.5

That Pax Brittanica is now in the grips of pax juridic should scarcely come as a sur-

prise, however. The process of redemptive justice, and with it the documentation and

arbitration of historical trauma, has developed a momentum of its own over the last

several decades. What is novel in this instance is the fact that the Mau Mau case, rooted

as it is in historical claims over past imperial wrongs, is the first of its kind in the

British courtroom.6 Recent historical research provided the much-needed historical

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documentation to get the ball rolling in the British High Court. This work includes the

simultaneous publication in 2005 of my book, Imperial Reckoning: The Untold Story of

Britain’s Gulag in Kenya and David Anderson’s Histories of the Hanged: The Dirty War

in Kenya and the End of Empire, and the recent completion of Huw Bennett’s doctoral

dissertation, ‘British Army Counterinsurgency and the Use of Force in Kenya, 1952–

56’. When read together, these works provide both new documentation and oral tes-

timonies, as well as a fresh re-examination of previously reviewed evidence to

produce a chronicling of the systematic abuses and abrogations 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.7 While there had been murmurings

of such a case for years in Kenya, it was revisionist scholarship that provided the evi-

dence necessary to launch a claim.8

The London law firm of Leigh Day, with the support of the Kenya Human Rights

Commission, is representing the Mau Mau claimants, who are seeking an apology

and damages for the torture they suffered in detention between 1954 and 1959.

Since the start of the case, Leigh Day has deftly marshalled historical forces on

behalf of its claimants, forces that have grown as the case has unfolded. My role as

an advisor for the claimants began in the spring of 2008. David Anderson and Huw

Bennett later joined me in this role in late 2010 and early 2011, respectively. Individu-

ally, each of us brings a particular specialisation to the claimants and the court: Ander-

son’s work has focused on the capital cases and forest war; 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 villagisation, or the civilian side of the war. When taken

together, this collective knowledge provides the full range of historical expertise

necessary for the claimants’ case.

In various ways, Anderson, Bennett, and I are both experts to, and subjects of, the

case that has been unfolding in the High Court. With this in mind, I would like to offer

a few reflections on the role of the expert witnesses in this case, and the precedent-

setting implications of the juridification of Britian’s imperial past. Before doing so,

a brief background to the publication of Imperial Reckoning and Histories of the

Hanged is necessary, as it provides important context to the current events both

inside and outside the courtroom.

The Publications of Imperial Reckoning and Histories of the Hanged

I would suggest that the trial over British colonial atrocities during Mau Mau began

not with the filing of the claim in the High Court in 2009, but with the publication

of Imperial Reckoning and Histories of the Hanged four years earlier. The two books

were often paired and reviewed jointly, with such reviews widespread in academic

publications and broadsheets, alike. While a full ethnographic critique of these

reviews is beyond the scope of this present reflection, it is important to note that,

in the context of the current trial, many reviewers deployed a variant of the ‘legal posi-

tivist’ method of the courtroom, though in many instances without the same careful

reading as the judge presiding over the Mau Mau case.9 In effect, by holding Imperial

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Reckoning and Histories of the Hanged side by side, many reviewers believed that (a) the

books more or less covered the same historical landscape, (b) Anderson’s evidence was

based more upon historical documents as opposed to oral testimony, and thus more

reliable, and (c) the conclusions of Anderson’s work was more balanced, as it attrib-

uted rather evenly ‘atrocity and excess on both sides’ of the war.10

I would like to comment briefly on the similarities and differences between the two

books. First, Anderson and I arrive at one relatively similar conclusion. That is, the Mau

Mau war was a far more violent episode in Kenya’s history than previously understood.

Our main points of difference reside on the issue of scale and scope. This is due largely

to two inter-related factors: source material and temporal focus. The originality of

Anderson’s book is significant by any standard, and resides primarily in his use of docu-

ments from over 800 capital cases during the Mau Mau Emergency.11 With few excep-

tions, these cases took place between 1953 and 1954. In addition, one of the greatest

concentrations of these capital cases resulted from the Lari Massacre—the largest

Mau Mau attack on loyalists, which took place in March 1953. Anderson’s narrative

and analysis of this incident constitutes nearly 20 per cent of his book, which is under-

standable in light of the weight of his evidence. In addition, this analysis, and those of

the other capital cases are, as Anderson points out, ‘placed in their social and cultural

setting as part of a chronological narrative of the Mau Mau war. In this larger picture,

we see not just the detail of the lives of the executed men, but their relationships to those

whom they fought against—their struggles with African loyalists, with colonial police,

with white settlers and their militias, with the barristers who prosecuted them and

defended them, and with the judges who ultimately presided over their fate’.12

Imperial Reckoning’s focus is substantively different. Anderson’s book is concerned

with what scholars of Mau Mau call the forest war, or military war, whereas my work’s

primary concern is with the civilian 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. The work describes the growth

and colonial direction of systematic violence over time, and the impact that this

policy had on the individuals who were held behind the wire. ‘Only by detaining

nearly the entire Kikuyu population of 1.5 million people and physically and psycho-

logically atomizing its men, women, and children’, I write, ‘could colonial authority be

restored and the civilizing mission reinstated’.13

Operation Anvil in April 1954 is a key moment of hand-off between Histories of the

Hanged and Imperial Reckoning. Scholars, including Anderson and myself, view Oper-

ation Anvil as the turning point in the war’s military fighting. It is also the point at

which the story of detention and villagisation largely takes over. Thus 1954 is an

important year in the periodisation of the Mau Mau war. The focus of Imperial Reck-

oning is primarily on the Mau Mau war after 1954. Approximately two-thirds of the

book’s narrative and analysis is located in the period from 1954 to 1960. These are

the years in which the British colonial government directed its campaign predomi-

nantly against the civilian population (the remainder of the book is given over to

pre-1954 contextualisation, and the evolution of forced removals and screening oper-

ations during this period).

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That Anderson and I differ on points of scale and scope, as well as the locations and

perpetrators of violence, is understandable given the different foci of our research. The

years prior to 1954 witnessed a war that unfolded largely outside of Britain’s control in

the reserves, forests, and in Nairobi, something Anderson analyses well. After 1954, the

British government contained nearly the entire Kikuyu population within different

modes of confinement, and attempted through various means to co-opt Kikuyu loy-

alists into the structures of detention to assist in its war against Mau Mau civilians. In

effect, the civil war was brought into the system of detention, though on terms that

began to differ from those prior to 1954. The relative success that the British govern-

ment had in this strategy, and in limiting Mau Mau attacks, is indicated, in part, by the

precipitous decline in new capital cases after 1954. As these cases are the basis of

Anderson’s primary research, they dictate, in part, the temporal scope of his original

analysis. Anderson and I go on to draw conclusions based upon our emphasis on

different aspects of the war. Imperial Reckoning, for example, spends less than four

pages analysing the Lari Massacre, as opposed to Anderson’s 70 pages. In contrast,

Anderson spends 2 pages on villagisation and some 20 on the detention camps,

whereas the bulk of my book is focused on these two aspects of the civilian war. In

effect, I suggest that Anderson emphasises certain events like Lari, because of his

source base, and that this emphasis does not necessarily balance the significance of

the pre-1954 events within the larger context of the war.

Of the numerous reviews of Imperial Reckoning and Histories of the Hanged, few

draw connections between the books’ uses of evidence and temporal emphases, and

hence differing conclusions. Mahmood Mamdani’s assessment is one exception, as

he makes distinctions between the two books’ methodologies, as well as their connec-

tion to the significant shifting nature of the civil war based upon Britain’s counter-

insurgency tactics, which included the use of ‘their time-honored divide-and-rule

strategy’.14 He also suggests that the books should be read as complements, because

they cover different ground. In addition, Bernard Porter writes that ‘the camps and

emergency villages are where Elkins takes up the story’; John Newsinger notes Anvil

as the turning point, with the story of villagisation and detention camps to follow;

and Ogot points out Anderson’s work as one on the ‘forest war’ and mine as one

on the ‘civilian war’.15 He goes on to add that ‘her conclusion is that the assault

against Mau Mau civilian population—orchestrated and executed by Governor

Baring, with the approval of the Colonial Office—was far more significant in scope

and impact than the military campaign against the guerrillas. This is definitely a fair

assessment’.16

As in all cases, historical revisionism is received in a particular set of contemporary

contexts, and the case of Mau Mau is no exception. In 2005, Britain was grappling with

the implications of the ongoing war in Iraq, with parallels continually drawn in the

press and scholarly publications between Britain’s imperial past and present; colonial

officials—including Terence Gavaghan, the Officer-in-Charge of Rehabilitation in the

Mwea Camps—were contending with the continued implications of the BBC docu-

mentary, ‘Kenya: White Terror’; and the questions of claims on the independent

Kenyan state and fears of Kikuyu ascendancy were given new life with the unfolding

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historical revisionism of Mau Mau. Within this context, it is understandable that the

conclusions that Anderson draws in Histories of the Hanged have often times been

received within the scholarly and public arenas as a more palatable revision of the

Mau Mau and imperial pasts, despite the fact that his work only provided a partial

account of the long duration of the Mau Mau war.

At issue were also questions of my author positionality, methodology, and use of quan-

titative data. Implicit in much of this critique was a fetishisation of a Rankean approach

to writing history. Yet, when examined carefully, such critiques largely fall short on their

own terms—let alone on the broader terms of a sociological–historical approach to

reconstructing the past. Let me explain. First, several reviewers, both explicitly and

implicitly, suggest that I wrote Imperial Reckoning as kind of ‘Exhibit A’ for the claimants.

‘She demands reparations for [Mau Mau adherents]’, Pascal Imperato wrote in the

African Studies Review, and later continues, ‘Elkins attempts not so much to present

truth supported by incontrovertible evidence, but rather to solicit broad public

support for her crusade on behalf of Mau Mau adherents and sympathizers who were

detained.’17 To the extent that I believe all parties involved with Mau Mau—or any

other war, for that matter—have a right to seek restorative justice on their own terms,

Imperato is correct. To suggest, however, that I somehow foreshortened the historical

process because of a bias towards the future claimants in this case, or any other, is not

only a distortion, but also does not square with the historical evidence (including archi-

val evidence, which Imperato favours), or the timing of the case. For certain, rumours

abounded about possible reparations for years, but this is quite different from the exten-

sive legal process and investment required for a legitimate claim.

The methodology of my work has also come under scrutiny. Objectivist reasoning—

the lifeblood of the legal process—and the yardstick of choice for some reviewers,

elided with the use of sources, to call into question the validity of Imperial Reckoning’s

evidence. In effect, the suggestion is that if one impugns the oral testimonies of deten-

tion survivors in my work—several hundred in all—then my argument and con-

clusions collapse into a fictive account of Mau Mau memories. Yet, to dismiss my

argument based on either explicit or implicit objectivist reasoning it is necessary to

place emphasis on the oral testimonies as opposed to written sources.18

That I rely primarily on oral testimonies, however, misrepresents my research struc-

ture, and the manner in which I construct the historical narrative. It would not have

been possible to write Imperial Reckoning primarily using oral testimonies. Before

examining detainee experiences, I had to understand the institutions and structures

of colonial rule, particularly as they pertained to the proliferation of the detention

camp Pipeline. I also had to reconstruct the logic of the Pipeline itself, that is, how

and why detainees were being moved to different camps throughout the colony.

Because of the fragmented nature of the remaining official documents—a point to

which I will later return—this exercise required an integration of multiple written

sources from a variety of archives in Britain and Kenya.

Were one to go through my footnotes and compare the number referencing primary

archival or written evidence versus those referencing oral testimonies, the comparison

weighs towards my reliance on archival/written documentation. There are over 600

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footnotes citing non-oral primary evidence (i.e. archival documents, government

reports, legislative debates, newspapers, and memoirs); less than 300 footnotes

citing oral evidence (from all informants, African and European); and some 20

instances where non-oral and oral testimonies are cited together. There are also

scores of archival documents that chronicle in discomforting detail the ongoing

abuses in the detention camps and villages, documents that are now at the centre of

the ongoing case in London’s High Court of Justice. Critical reviews of Imperial Reck-

oning missed this rather ‘objective’ aspect of the book’s evidentiary scaffolding.

The truth, as it were, of oral testimonies cannot be consecrated simply through the

act of telling and recording. Instead, oral testimonies must form one part of a larger

mosaic of evidence, with each evidentiary tile read against and with the others. More-

over, it is well-understood that oral testimony—particularly the recollection of

anguish and trauma—is not communicated in a way that can be reduced to a coherent

narrative, and certainly not one that would afford the institutional and structural

reconstruction of the system of detention during Mau Mau. Were oral histories the

bedrock of historical reconstruction in the case of Imperial Reckoning, then the

work would read more like the TRC evidence of individual, parochial testimonies

and less like a narrative reconstruction of the entire system of Mau Mau detention.

Indeed, one of the long-standing lacunae in the historiography on Mau Mau was

not the complete lack of evidence of individual acts of brutality or suffering, but

rather a coherent narrative structure in which to place and analyse them. It is this nar-

rative structure, based on documentary evidence, that is crucial to the Mau Mau clai-

mants allegations in the High Court, a point to which I shall return.

The use of quantitative evidence in Imperial Reckoning has been the subject of much

debate. I will address this in brief here, as a longer discussion of this topic is outside the

scope of this piece. In short, the controversy over numbers—both the revision of detai-

nee numbers and the scale of unaccounted for Kikuyu—has been a red herring for the

larger issues at stake. The criticism for my use of quantitative data began with David

Elstein and his rather strident letters, to The New York Review of Books and the London

Review of Books. In one of his letters, Elstein wrote, ‘Elkins disbelieves the official figure

of 12,000 Mau Mau deaths and 80,000 Mau Mau detainees in the seven-year Emer-

gency. She suggests “hundreds of thousands” of Kikuyu died at British hands—

perhaps 300,000. She claims detainees numbered up to 320,000. She offers minimal

evidence.’19

It should be pointed out that Elstein is not a historian, but rather an independent

television executive. He is also a long-standing advocate of Terence Gavaghan, the

Officer-in-Charge of Rehabilitation in the Mwea Camps. Gavaghan was responsible

for implementing systematised violence in several of the detention camps after 1957

vis-a-vis the dilution technique, and there are multiple sources, written and oral,

which implicate him in grave acts of colonial brutality perpetrated against detainees.20

The point here is not that Elstein should not have intervened, but rather his own posi-

tionality and presentation and misrepresentation of my claims helped set into motion

a maelstrom over the question of the quantification of moral enormity, among other

things, that exceeded reasonable proportions and that distracted scholarly attention

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away from the revisionist issues at hand, including the systematisation of violence in

Gavaghan’s Mwea Camps. Indeed, some academics seemed to take particular delight

in jumping uncritically onto Elstein’s bandwagon, jettisoning reflexive criticism and

stymieing reasonable academic debate.21

This is not to suggest that I have not taken these criticisms seriously. Rather I seek to

process them in a sociological as opposed to an objectivist framework. Let us look

briefly at the two quantitative issues at hand. On the question of detention figures,

I suggested that if one reconstructs and factors in the intake and release rates of detai-

nees, then the ‘daily average figure’ of some 80,000 detainees is inaccurate. The best

possible range that I could deduce was an upward revision of somewhere between

160,000 and 320,000 detainees.22 Many critics doubted this assertion. However, in

more recent work, John Lonsdale accepts new evidence pertaining to detention

camps during Mau Mau, and he cites Anderson’s work. Lonsdale writes

Many Kikuyu—Anderson thinks probably 150,000 in all, about 71,000 at the peak,in late 1954—were also detained, on suspicion rather than on evidence, in a ‘pipe-line’ of wired-in work camps. Almost all were released by late 1958, after betweenthree and five years of detention and after confessing their Mau Mau oaths.23

Anderson’s conclusions about detention, however, are limited to a small portion of

his book, and those that are included are partially derived from my work. In addition,

Anderson’s 150,000 figure is offered unfootnoted—thus implying fact to my upward

revision—and his conclusions about the release rates and length of time in detention

that Lonsdale cites are derived from my doctoral dissertation.24 In effect, Lonsdale

validates my findings, though fails to attribute them to me, despite the fact that he

knew my work well as one of my dissertation supervisors, and as a co-editor of

Mau Mau and Nationhood.25

The issue of unaccounted for Kikuyu is the one that has generated the most contro-

versy, and with it a diversion from the deeper issues at hand. While there has been

much written on this subject, I will turn briefly to John Blacker’s demographic analysis,

which concludes that 50,000 Kikuyu died as a result of the war, with children under the

age of 10 comprising approximately half of that number.26 This work, primarily

assisted with input from Anderson and Lonsdale, is now held uncritically by some

to be the definitive statement on the topic. Yet Blacker, himself, acknowledges that

there are significant limitations to his work, noting that, ‘Given the fragile nature of

the data and assumptions, our estimates are subject to large margins of error, but at

least give us an order of magnitude.’27 These large margins for error are due to numer-

ous factors in Blacker’s analysis, including his comparison of the 1969 and 1948 cen-

suses, rather than the 1962 and 1948 censuses. This technique leads him to calculate

weighted averages of mortality rates based upon unpublished data in his possession,

and he notes how ‘the implications of these figures for our purposes are fraught

with uncertainties’.28 Moreover, Blacker’s 50,000 figure pertains only to Central Pro-

vince, and the calculation is furthered skewed by the fact that he cannot fully sort

out boundary changes between censuses.

Finally, Blacker’s analysis is based upon his premise that, ‘Elkins believed that there

was a short fall in the numbers of Kikuyu enumerated in the 1962 census of “between

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130,00 and 300,000”, most of which could be attributed to excess deaths—i.e. deaths

over and above those which would have occurred in times of normality (emphasis

original).’29 However, I state in the epilogue to Imperial Reckoning that, ‘I believe

the lower growth rate was likely due to two factors: actual deaths and a slower birthrate

due to lower female fertility. This lower fertility would have been caused by such

factors as malnourishment, disease, miscarriage, the absence of regular male partners,

and the psychological stress resulting from war trauma.’ I go on to underscore the

indeterminate nature of the numerical exercise: ‘I would argue that at the very least

it is safe to assume that the official figure of some eleven thousand Mau Mau killed

is implausible given all that has been uncovered. Of course, we will never know

exactly how many Kikuyu died during the last years of British colonial rule in

Kenya. But does that matter? The impact of the detention camps and villages goes

well beyond statistics.’30

Beneath the cloud hanging over disputed quantitative evidence are layers of contesta-

tions over the production and control of knowledge and, to varying degrees, whose

work is more or less objective and therefore the ‘truth’ based upon the evidence they

have marshalled. Also at issue is claim-making to historical expertise among a group

of revisionist historians, myself included. My figures have been put forward here, and

they stand beside those of Blacker, as well as those of Anderson, who offers a revised,

though unsubstantiated and unfootnoted, assessment that ‘the real figure is likely to

have been more than 20,000’.31 The significance and meaning of Anderson’s underesti-

mation has yet to be explored. Disputes aside, what appears to have emerged is that we

each come to the issue of Mau Mau revisionism with a particular knowledge set that has

led us to conclusions that are, at once, compatible and at variance. Importantly, each of

our different works, when taken together, have brought us much closer to a fuller

understanding of the nature, scale, and scope of the Mau Mau war.

For some time the hope, at least for me, has been that as a community of scholars we

could engage in healthy and productive debate, as well as collaborative investigations

and further revisionism. Since the joint publications of Imperial Reckoning and His-

tories of the Hanged, such an aspiration appeared far from the realm of possibility.

That is, until the filing of the Mau Mau case. With the five claimants bringing their

case to London’s High Court, the academic trial over Mau Mau revisionism has

stepped into the courtroom. The claimants’ expert witnesses—myself, Anderson,

and Bennett—are charged with marshalling our particular sets of historical knowledge

to substantiate, collectively, the allegations of torture, systematised violence, and offi-

cial knowledge of these acts. In so doing, there is little room for bluster, much less aca-

demic ego. Positivist judicial procedure, though not of the ilk masquerading in

revisionist critiques, has and will continue to shape our witness statements, the

nature of the evidence that we set forth, and the scrutiny that it endures.

The Mau Mau Case

In the spring of 2008, I agreed to serve as an advisor to the law firm of Leigh Day in

their capacity as legal representatives for the five Mau Mau claimants in their case

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against the Foreign and Commonwealth Office (FCO). I was asked to provide exper-

tise, based upon the evidence accumulated through my research for Imperial Reckon-

ing, on the detention camp system; villagisation; screening; the nature and extent of

abuses and torture in the detention camps, villages, and screening centres; the partici-

pation of British colonial and military personnel in the detention camps, villages, and

screening centres, as well as their participation and/or knowledge of abuses and tor-

tures in these sites. I was also asked to point to specific documents that substantiated

these facets of my research, as well as those that, either individually or cumulatively,

substantiated an assertion of systematised violence in the detention camps, villages,

and screening centres, as well as the knowledge of such a system by the British govern-

ment in London and/or their direct approval of such a system.

In April 2011, the FCO attempted to have the claimants’ case struck out, and a

summary judgement entered in its favour, in advance of a full trial, on the basis

that the contemporary British government does not bear legal responsibility for inci-

dents that occurred in Kenya during the 1950s. In response, the claimants argued that

[The] British government are at least arguably liable to them for their injuries on fivedifferent legal bases. First, they say that the liabilities of the old Colonial Govern-ment (which ceased to exist in 1963) devolved upon the UK Government on inde-pendence, under the common law incorporating general principles of publicinternational law. Secondly and thirdly, it is said that the UK Government wasand is directly liable to the claimants for having instigated and procured, through(a) the Army and (b) the Colonial Office, a system of torture and ill-treatment ofdetainees as part of a common design shared with the Colonial Government inKenya. Fourthly, the claimants argue that in July 1957 the British governmentexpressly instructed, authorised or approved a policy of mistreatment of detainees,as shown by a series of exchanges between the Governor of the colony and the Colo-nial Office in London . . . Fifthly, it is said that the UK Government, as paramountcolonial power, owed a duty of care in law to the claimants to prevent abuses, whichit knew were being committed and which it had the power to prevent; it is allegedthat the UK Government is liable to the claimants for breach of that duty.32

In preparation for the April 2011 hearing, I produced two witness statements, the

first of which was filed in February 2011. I was charged by the court to prepare a state-

ment ‘to explain the documentary material’ served with my statement that related to

the following issues:

a. (i) the alleged abuses in the detention camps/prisons/screening centers during theKenya Emergency;

(ii) the Colonial Administration’s role during the Kenya Emergency and the extentof their knowledge of and participation in the abuses in the detention camps/prisons/screening centers;

(iii) the Colonial Office’s role during the Kenya Emergency and the extent of theirknowledge of and participation in the abuses in the detention camps/prisons/screening centers;

(iv) the British Army’s role during the Kenya Emergency and the extent of theirknowledge of and participation in the abuses in the detention camps/prisons/screening centers;

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b. to identify, the extent to which archival material exists in addition to the specificdocuments specifically referred to in this statement;

c. to identify, where possible, the extent to which witness evidence survives whichwould address items a) i, ii, iii, and iv, above;

d. to identify, where possible, the extent of, and reasons for, document destructionand/or removal prior to independence by the British Colonial Government;

e. to identify, where possible, the extent to which individual records of detentionsurvive; and

f. to explain the nature of my historical research and what new evidence emerged asa result.33

My February 2011 witness statement was, in effect, a trimmed-down version of

Imperial Reckoning, devoid of indeterminacy, technical in its reference to archival

documentation throughout, and such as it is possible, devoid of interpretation. The

nature of the evidence that I was to produce for the court was the topic of some

debate in October 2010, the outcome of which would govern the nature of my

work through legal limitations. These same limitations would also apply to Anderson

and Bennett once they comprised the tripartite team of historical experts. In effect,

our roles as historical experts aligned with the conventions of our profession

insofar as it was based upon the identification of sources, though it also deviated

from our conventions insofar as we were to provide no analysis or interpretation.

Rather it would be up to the court to decide the relevance of the documentation to

the case at hand. As this circumscription of the historian’s role is of great relevance

to understanding how I have gone about my tasks of producing witness statements

and how the court has utilised these statements, it is worthwhile to quote from

Justice McCombe:

Tugendhat J dealt with the position of evidence which the claimants wish to call.That was the evidence of Professor Elkins. She had written one of the seminaltexts in 2005. He accepted that her evidence was relevant in identifying documentsor other material, but should not be admitted as expert evidence (that is evidence ofopinion) as to what was to be inferred from those documents taken as a whole.Because of her familiarity with documents, she is thus able to identify documentswhich are likely to be of greatest interest in the arguments of the respectiveparties. She has a greater facility for this than do the parties themselves becauseof her great experience gained over some ten years of looking through archives inthe course of which she researched a text in which she has interest. Plainly shemakes efficient the process of identifying documents and material. . .34

To produce my witness statement, I relied upon the some 600 footnotes of archival

evidence contained in Imperial Reckoning, together with multiple other documents

accumulated during my ten years of research for the book. The witness statement con-

tained no transcripts from oral interviews. It included a chronology of the Kenya

Emergency as well as detailed descriptions of the structure of the detention system

(holding camps, works camps, special detention camps, exile camps, chiefs camps,

and women & juvenile camps); screening; rehabilitation; confession and interrogation;

forced labour; the dilution technique and the Mwea Camps; the Cowan Plan; the

Colonial Office and its administrative system; the Kenya Administration; and the

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British Army. Extensive detail and references to the documentary evidence contained

primarily in the National Archives, the Kenya National Archives, the Rhodes House

Library, and Imani House (Nairobi) that pertained to the charges of the court were

proffered. This evidence was organised chronologically. It began with the complaints

of Canon Bewes in February 1953, and ended with Colonial Secretary Macleod’s

decision in November 1959 to ‘draw a veil over the past’.35 The purpose of this

approach was to demonstrate through the narrative of the witness statement the insti-

tutional structures and practices of detention, the mounting allegations of abuses and

deaths, the knowledge of colonial officials of these instances of torture and death, the

systematisation of colonial violence over time, and the efforts on the part of the colo-

nial government in Nairobi and London to cover up abuses and sidestep any indepen-

dent investigations.

I was also charged by the court ‘to identify, where possible, the extent of, and reasons

for, document destruction and/or removal prior to independence by the British

Colonial Government’. I detail in my witness statement observations of archival

gaps similar to that which I put forward in Imperial Reckoning. Missing from the

archives in Kenya were, among other files, the Police Department and Special

Branch files relating to interrogations and/or screening; District and Provincial Com-

missioner files and, with them, material related to villagisation; and individual detai-

nee files. Of course, thousands of documents remain in the official archives in London

and Nairobi, many of which pertain to the more mundane practices of the camps,

including their bureaucratic structures and functions. This evidence, as I have indi-

cated, is not unimportant as it is crucial to the reconstruction of the system of deten-

tion. As for the more sensitive documents, while many had clearly been removed or

destroyed, I note in Imperial Reckoning that ‘even the most assiduous purges,

however, often fail to clean up all of the incriminating evidence’.36 This evidence

that escaped the purges—including hundreds of letters written by detainees at the

time of the emergency chronicling in detail the abuses and deprivations in

the camps; colonial official’s acknowledgement and cover-up of forced labour in the

detention camps; the official sanctioning of the dilution technique in the Mwea

Camps in spite of the colonial government’s knowledge that the practice resulted in

detainee abuse and death; and the creation of legal mechanisms to enable the use of

force in the camps—was submitted with my witness statement.

The production of evidence in the Mau Mau case has proven a two-way street. The

Hanslope Disclosure—or the FCO’s production of some 300 boxes of documents con-

taining some 1,500 files removed from Kenya at the time of Britain’s decolonisation in

1963 and eventually held at Hanslope Park—was a direct consequence of the legal pro-

ceedings taking place in the High Court. Also a result of this legal process was the

FCO’s disclosure that it holds 9,500 files from 36 other former British colonies. In

the instance of Kenya, multiple efforts to retrieve these files have been waged since

the time of Kenyan independence. The Kenyan government asked that the files be

returned in 1967, 1974, and again in the early 1980s; in each instance, the British

government refused the request. Today, the FCO is still searching for the 13 boxes

of top-secret files relating to the Mau Mau Emergency.37

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As expert witnesses in the ongoing Mau Mau case, Anderson, Bennett, and I have

privileged access to the Hanslope Disclosures. We were afforded little time between

the FCO’s slow release of the documents (the FCO and then its legal team first

reviewed the files before forwarding them on) and the start of the strike-out hearings

on 4 April 2011. Nonetheless, we each submitted a second witness statement based

upon our cursory review of the files, noting that it would take considerable time to

review methodically and with care the contents of the Hanslope Disclosure. In

addition to my initial commentary on the Hanslope Disclosure, I was also asked, as

were Anderson and Bennett, to review and rebut with archival evidence the witness

statement of Mr Edward Inglett, the FCO’s expert on the historical evidence in the

case, as well as the Defendant’s Skeleton Argument. Each instance required, again,

that I marshall archival evidence; this was particularly the case in the section of my

statement that chronicles, with supporting documentation, the historical inaccuracies

in the Defendant’s Skeleton Argument. These inaccuracies pertained particularly to

the practice of screening, the participation of the British Army in screening and

interrogation, investigations into allegations of abuse and torture during the period

of the Mau Mau Emergency, the British government’s attempts to curb discipline,

the dilution technique, and villagisation. In each case of historical rebuttal, my task

was not to overload the court with narrative, but rather to provide the historical

facts supported by the relevant archival documentation.

In July 2011, Justice McCombe issued his judgement on the FCO’s strike-out

motion. His decision was clear: the claimants have ‘arguable cases, fit for trial’ on

four of the five grounds put forward, the exception being the issue of liability

passing from Nairobi to London on independence. His ruling has moved the case

forward to another round of hearings in early 2012, this time on the British Govern-

ment’s attempt to strike out the case on the basis of statute of limitations.

As a historic document unto itself, Justice McCombe’s Approved Judgment, mediated

as it is through legal positivism, offers historians a number of significant insights into

my role and that of Anderson and Bennett in the juridification of Britian’s imperial past

in Kenya. First, McCombe comments in various parts of his judgement on the extent of

the documentation at hand, nearly all of which was accumulated prior to the Hanslope

Disclosure. McCombe writes, ‘There is ample evidence even in the few papers that I

have seen suggesting that there may have been systematic torture of detainees during

the emergency.’ He notes elsewhere, ‘The materials evidencing the continuing abuses

in detention camps in subsequent years [1954–55] are substantial, as is the evidence

of the knowledge of both governments that they were happening and of the failure

to take effective action to stop them.’ And, he further states, ‘At this stage of the proceed-

ings it seems to me that there is a substantial body of evidence suggesting that both

governments well knew that those in charge of the camps and/or those under their

command were “not fit and proper persons” to be given custody of prisoners.’38

McCombe also quotes at length from the witness statements of all three historical

experts. In so doing, he spotlights the areas in which we each have specialisation

and facility with archival sources. While our scope as professional historians has

been limited by legal procedure, the courtroom provides little space in which to

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hide. Ambiguity has no place in the High Court of Justice, and historical sleights of

hands are rendered difficult, if not impossible. This arena has thus brought together

three revisionist historians of Mau Mau, each with a particular roadmap through

the archives based upon years of research on specific facets of the Mau Mau

Emergency. In effect, the courtroom has succeeded in what academic forums have

largely failed to achieve over the last six years. That is, it has identified, through posi-

tivist juridical procedure, the specific archival expertise of each historian. Equally as

noteworthy is the fact that, through a particular set of circumscribed processes, revi-

sionist historians are deploying their complementary knowledge sets for a collective

purpose. While this is still a distant second to productive historical debate, it is a start.

Conclusion

Going forward, Anderson, Bennett, and I will each produce a third witness statement,

this one addressing more fully the contents of the Hanslope Disclosure. There are cur-

rently teams at both Oxford and Harvard assisting us in the review of this massive and

relatively disorganised set of newly released files. Unquestionably, the Hanslope

Disclosure is of great significance to this case, as well as to the future work of historians

not only on Kenya, but insofar as the FCO releases the full set of some 9,500 files from

36 other former British colonies, including Malaya and Cyprus, on the former British

Empire writ large.

In the case of Kenya, the Hanslope Disclosures, in my opinion, will not fundamen-

tally alter what we already know: Kenya was the site of systematic torture and violence,

perpetrated at the hands of British colonial and military agents, with the knowledge

and support of individuals at the highest levels of colonial governance. What they

have, and will offer, is a significant amount of archival evidence that offers, among

other things, (1) further, voluminous documentation and details on British colonial

brutality, including acts perpetrated in connection with screening and detention; (2)

much more evidence on the question of colonial decision-making and responsibility

for British actions in Kenya during Mau Mau; (3) further evidence on who precisely

was perpetrating acts of violence; (4) the extent of the knowledge of acts of brutality

at the highest levels of British colonial governance; and (5) considerable evidence on

the legal definitions and manoeuvrings around the question of illegal uses of force in

Kenya, and the actions undertaken by British officials from the lowest to the highest

ranks, to inquiries into the acts of British colonial violence in Kenya. Importantly

for the five claimants, and for observers of the case and the events surrounding the

Hanslope Disclosure, the newly released evidence can be richly understood and pro-

cessed because there existed, prior to the Hanslope Disclosure, a body of revisionist

history that had articulated the institutions and structures of detention and the sys-

tematised violence that evolved over the course of the war within the detention

systems (Elkins); the scope and function of Kenya’s Emergency legal system, particu-

larly in the realm of capital cases that led to the hangings of over 1,000 Mau Mau sus-

pects (Anderson); and the command, organisational, and operations structures of the

British military in relationship to the various facets—both military and civilian—of

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Britain’s counter-insurgency campaign in Kenya (Bennett). In effect, because of the

historiographical shifts which have punctuated the Mau Mau field over the last

decade, historians—and with them, the court—can move beyond impressionistic

understandings of the new evidence as it can be read and processed within the

context of the British colonial and military institutions, structures, and operational

organisations, as well as alongside the evidence of British colonial and military

abuse that already exists in the public domain.

For historians of the British Empire, the Hanslope Disclosure signals a crucial

moment in the production of archival evidence. Once released, even in part, these

files will undoubtedly prompt a considerable re-evaluation of British colonial violence

at the end of empire. Historians will be confronted with questions as to whether sys-

tematised violence and official cover-up were hallmarks of imperial retreat. And, if so,

whether or not previous historical probings, and positionalities, afforded the analytical

and intellectual space to process publically available documents in a manner similar to

that which the Kenyan revisionists deployed prior to the Hanslope Disclosure. Indeed,

the historical exercises currently taking place in the High Court arena—particularly

with regard to the Hanslope Disclosure—can be of value to future research on colonial

violence and the end of empire in other British colonies insofar as they demonstrate

the necessity for making sense of the institutions, structures, operational and

administrative organisations, and legal systems that formed the backbone of

counter-insurgency operations at the time of decolonisation. Without this knowledge

of how end of empire structured itself and functioned on the ground, evidence of

colonial violence—whether from the Hanslope Disclosure or elsewhere—cannot be

understood and thus lends itself to anecdotal analysis.

Emerging from Justice McCombe’s courtroom is also a cautionary tale. The con-

tents of the McCombe’s recent judgement substantiate the existence of significant

archival evidence, identified by the team of specialised revisionist historians (Elkins,

Anderson, and Bennett), prior to the Hanslope Disclosure.39 Moreover, the Hanslope

Disclosure itself further validates the findings of revisionist Mau Mau historians and,

together with McCombe’s judgement—framed in positivist legal convention—call

into question the reception of Mau Mau revisionism, and in particular, the position-

ality, motives, and evidentiary logic of its critics, so often framed either explicitly or

implicitly in objectivist terms. With the shift of the Mau Mau trial into the courtroom,

the maelstrom of revisionist controversy and the misrepresentations and historical

slights of hand that underwrite much of it, particularly in relationship to Imperial

Reckoning, should give us pause as we seek to utilise the Hanslope Disclosure and

McCombe’s precedent-setting findings to push the end of empire field, and with it

our understanding of colonial violence, in new directions.

Notes

[1] Comaroff, ‘Reflections on the Rise of Legal Theology’. I have also benefitted enormously fromvarious conversations with John and Jean Comaroff regarding issues of lawfare, history, and theongoing Mau Mau court case in the High Court of Justice in London. I am indebted here to

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their discussions of restorative justice in their forthcoming book, Theory from the South, par-ticularly chapter 6, ‘History on Trial: Memory, Evidence, and the Forensic Production of thePast’.

[2] Paxton, Vichy France; Marrus and Paxton, Vichy France and the Jews.[3] Comaroff and Comaroff, Theory from the South, Chapter 6. See also Harries’ thoughtful piece,

‘From Public History to Private Enterprise’.[4] McCombe, Summary of Judgment.[5] Again, I am indebted to Comaroff and Comaroff for their reflections of ‘history on trial’, par-

ticularly as contained in their forthcoming work, Theory from the South.[6] Justice McCombe recently underscored this point when he wrote, ‘It will readily be appreciated

that this is novel type of clam on which there is not direct precedent to determine the matter ina court of first instance.’ McCombe, Summary of Judgment.

[7] Elkins, Imperial Reckoning; Anderson, Histories of the Hanged; Bennett, British Army.[8] See, for example, the remarks of Dan Leader of Leigh Day and George Morara of the Kenya

Human Rights Commission in ‘Strong Evidence’, Harvard Gazette, 3 Aug. 2011.[9] Wilson, Politics of Truth, 59, as cited in Comaroff and Comaroff, Chapter 6.

[10] Anderson, Histories of the Hanged, 2.[11] See, for example, Anderson’s description of his use of capital case records, Histories of the

Hanged, 6–8.[12] Anderson, Histories of the Hanged, 8.[13] Elkins, Imperial Reckoning, xv. For references to systemised violence, see, for example, Imperial

Reckoning, 324, 328, 329, 339, 349, 352.[14] Mamdani, ‘Colonial Legacies’.[15] Porter, ‘How Did They Get Away with It?’, 4; Newsinger, ‘English Atrocities’, 156–57; Ogot,

‘Britain’s Gulag’, 494, 499.[16] Ogot, ‘Britain’s Gulag’, 499.[17] Imperato, ‘Differing Perspectives’, 147.[18] See, for example, Lewis, ‘Nasty, Brutish’; Carruthers, ‘Being Beastly’; Ogot, ‘Britain’s Gulag’.[19] Elstein, ‘The End of Mau Mau’. See also, Elstein, ‘Tell Me Where I’m Wrong’. Elstein has also

published a variety of other critiques, including those in The Guardian and on Open Democracy.[20] Elkins, Imperial Reckoning, 318–31; BBC Documentary, ‘Kenya: White Terror’, aired in Britain

17 Nov. 2002; and Hanslope Disclosure (HD), File AA 57A, Vol. V.[21] For example, Murphy in his ‘Book Review of Histories of the Hanged and Britain’s Gulag’, 427;

Lewis, ‘Nasty, Brutish’, 220, fn 27.[22] Elkins, Imperial Reckoning, xiii, 430.[23] Lonsdale, ‘Britannia’s Mau Mau’, 270.[24] See Anderson, Histories of the Hanged, 314, 384, fn. 51. Note that these findings were included

in my dissertation, as cited by Anderson. They were also published variously prior to ImperialReckoning including in my contribution to Mau Mau and Nationhood. See Elkins, ‘Detention,Rehabilitation’. For the mention of the 150,000 figure, see Anderson, Histories of the Hanged, 5.

[25] For my contribution to this volume, Elkins, ‘Detention, Rehabilitation’. For a co-authoredwork, see Elkins and Lonsdale, ‘Memories of Mau Mau’.

[26] Blacker, ‘Demography of Mau Mau’.[27] Blacker, ‘Demography of Mau Mau’, 205.[28] Blacker, ‘Demography of Mau Mau’, 224.[29] Blacker, ‘Demography of Mau Mau’, 209–10.[30] Elkins, Imperial Reckoning, 366.[31] Anderson, Histories of the Hanged, 2.[32] McCombe, Summary of Judgment.[33] Witness Statement of Caroline Macy Elkins (20 Feb. 2011). McCombe, Approved Judgment,

4–5.

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[34] McCombe, Approved Judgment.[35] TNA, CO 822/471/5, ‘Canon T.F.C. Bewes, African Secretary of the CMS on his special mission

to the “Mau Mau” area of Kenya’, 9 Feb. 1953; TNA, CO 822/471/7, cable from GranvilleRoberts to Potter, 10 Feb. 1953; and TNA, CO 822/1230, Macleod to Renison, 10 Nov. 1959.

[36] Elkins, Imperial Reckoning, xiii.[37] See http://services.parliament.uk/hansard/Lords/bydate/20110811/writtenanswers/part102.html.[38] McCombe, Approved Judgment.[39] There was significant media coverage around the April 2011 proceedings in the High Court of

Justice and the Hanslope Disclosure. The media, while to be applauded in its coverage of theseevents, often failed to recognise the significance of the previously identified archival evidencebefore the court (indeed, without it there likely would not have been a case, and with it theHanslope Disclosure). This is the case in instances of media coverage around the MweaCamps and the dilution technique, the uses of forced labour in the camps, and officialefforts at cover-up. Nor were many journalists able to distinguish newly released files fromfiles previously in the public domain. See, for example, Ben MacIntyre’s extensive coveragein The Times.

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Blacker, John. ‘The Demography of Mau Mau: Fertility and Mortality in Kenya in the 1950s: ADemographer’s Viewpoint’. African Affairs 106, no. 423 (2007): 205–27.

Carruthers, Susan. ‘Being Beastly to Mau Mau’. Twentieth Century British History 16, no. 4 (2005):489–96.

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