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Alchemy of Evidence: Mau Mau, theBritish Empire, and the High Court ofJusticeCaroline Elkins
Version of record first published: 08 Nov 2011
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: [email protected]
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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