Kenya Emergency – Personal Injuries – Limitation Period – Crown Immunities – Counterinsurgency

Back to the Future: Tort’s Capacity to Remedy Historic Human Rights Abuses C.R.G. Murray* Key Words Torture – Kenya Emergency – Personal Injuries – Limitation Period – Crown Immunities – Counterinsurgency Abstract A recent cluster of tort actions have challenged historic abuses of power by officials and soldiers engaged in late-colonial counter-insurgency operations. The preliminary judgments in Mutua, relating to the use of torture during the Kenya Emergency, produced a high-profile settlement by the UK Government and became the catalyst for much of the subsequent litigation. These judgments require a re-evaluation of competing claims which have long characterised this juncture of public and private law. They oblige us, however belatedly, to re-evaluate the impact in the context of the British Empire of A.V. Dicey’s assertion that tort is sufficient to provide redress for individual interests affected by wrongful state action, even in circumstances of emergency. They also challenge the orthodoxy, adopted by generations of public lawyers from the 1960s onwards, that a combination of Crown immunities and limited causes of action rendered Dicey’s account illusory. The outcome of the Mutua litigation, moreover, highlights the comparative failure of public law challenges to abuses of power in counter-insurgency contexts, from the Keyu case concerning extra-judicial killings during the Malaya Emergency to the controversy which has attended many of the human rights challenges related to UK military activities in Iraq between 2003 and 2011. Drawing upon archival materials released in the course of the Mutua litigation, this article first evaluates how administrators and soldiers approached legal constraints upon their conduct during the colonial emergencies of the 1950s and 1960s. Second, for all that Mutua showcases tort’s potential as a vehicle for addressing large-scale human rights abuses in the law of England and Wales, this article unpacks the ongoing efforts of the courts to restrict this litigation. This analysis of both the management of the Kenya Emergency and the recent end-of- Empire tort challenges assesses tort’s shortcomings in the 1950s and why it has since proven a rudimentary vehicle for tackling historic abuses of emergency powers. * Reader, Newcastle Law School. My thanks to Christine Beuermann (Newcastle), Conall Mallory (Newcastle), Richard Mullender (Newcastle) and Aoife O’Donoghue (Durham) for their encouragement and comments upon earlier drafts of this article. Any errors remain my own. 1 In times of Emergency Frank Corfield, a colonial administrator in Nairobi, spent 1959 agonising over an official account of the Kenya Emergency. He wanted to denounce John Whyatt, Kenya’s Attorney General at the outbreak of the Emergency, for his ‘immobile legal attitude’ which stymied efforts to institute special powers ‘until there was an actual emergency’.1 But he wondered whether he should also acknowledge that, in countering the Mau Mau insurgency, ‘much was done outside the law’.2 Subduing these scruples, he read his terms of reference as excluding official wrong-doing, and instead blamed doctrinaire attachments to legal processes for enabling unrest to flourish.3 As the UK scrambled to contain self- determination movements after the Second World War, apologists maintained that the British Empire spread ‘the values and standards of Britain’ to colonised peoples.4 Jaded colonial officials, however, placed diminishing value in legal niceties in their struggle to shore up the Empire. Those who opposed this approach had, according to Corfield, invested ‘legal processes with a “divinity” which they do not deserve’.5 He found a receptive audience in Sir Evelyn Baring, the Emergency-era Governor of Kenya, who thought ‘due legal process was a hazard, not a resource’ in a crisis.6 The considerable reliance upon ‘individual judgement’ of such officials under the UK’s governance model invited the subversion of legal processes.7 UK constitutional theorists were not oblivious to the problem; after all, as A.V. Dicey had insisted, ‘wherever there is discretion there is room for arbitrariness’.8 His adherents, however, contended that even wide-ranging official discretion in times of crisis could be effectively managed, chiefly through ministerial responsibility to Parliament.9 If specific abuses of power had harmed recognised individual interests, the ordinary rules and procedures of private law could provide a remedy. The first section of this article illustrates how, especially in the UK colonies, common law principles often weighed little upon administrators, and Parliament was a distant concern. Dicey’s prescription reinforced the illusion that executive action was subject to meaningful constraint. Dicey was unfazed by this disconnect between theory and practice, which developed during his lifetime; from repression in Ireland, to the Boer War to the First World 1 UK National Archives (UKNA), FCO 141/6595, F.D. Corfield (Government Commissioner, History of Mau Mau) to W.B. Havelock (Minister for Local Government, Health and Town Planning) (20 Feb 1959). 2 UKNA, FCO 141/6595, F.D. Corfield (Government Commissioner, History of Mau Mau) to E. Carey Francis (Alliance High School) (22 Apr 1959) para.2. 3 Colonial Office, Historical Survey of the Origins and Growth of Mau Mau (1960) Cmnd.1030, 237-238. 4 P. Mitchell, African Afterthoughts (Hutchinson, 1954) 275. 5 Colonial Office, n.3 above, 250. 6 J. Lonsdale, ‘Kenyatta’s Trials: Breaking and Making an African Nationalist’ in P.R. Cross (ed.), The Moral World of the Law (CUP, 2000) 196, 211. 7 C. Townshend, Making the Peace: Public Order and Public Security in Modern Britain (OUP, 1993) 42. See also T.R.S. Allan, The Sovereignty of Law: Freedom, Constitution, and Common Law (OUP, 2013) 119. 8 A.V. Dicey, An Introduction to the Study of the Constitution (8th Ed., first published 1915, Liberty Fund, 1982) 110. 9 D. Jackson, ‘Individual Rights and National Security: A Comparative Study’ (1957) 20 MLR 364, 364. 2 War he was prepared to afford the executive considerable latitude in maintaining imperial security.10 A veneer of legality, underscoring the Empire’s civilising mission, could sustain the ‘colonial hegemony’.11 Anything more might be dangerous.12 Many accounts highlight how Dicey’s ideas stymied legal constraints upon executive action,13 and contributed to the instrumentalisation of law across the British Empire.14 Drawing on this research and archive materials, the second section of this article evaluates how Diceyan theory suffused official thinking during the Kenya Emergency and operated to routinise abuses of power. The early-1950s saw increasing unrest amongst Kenya’s Kikuyu, Embu and Meru populations, fanned by decades of land dispossession to establish settler-run farms.15 Over-blown concerns about Communist influence over Kikuyu-led political movements, including the nascent Mau Mau, permeated alarmist situation reports.16 By 1952, colonial administrators feared the violent collapse of colonial rule; ‘law and order … had virtually disappeared from many parts of Kenya some months before the Emergency was declared’.17 If pre-Emergency levels of violence hardly sustained this apocalyptic appraisal, the resultant counter-insurgency helped to precipitate widespread unrest in Kenya’s Rift Valley and Central Provinces.18 It deepened the crisis and subverted Dicey’s rule-of-law homilies, being all-too- frequently characterised by extra-judicial killing, torture, inhuman and degrading treatment and rape as a weapon of war. Enforced villagisation and detention without trial affected hundreds of thousands suspected of Mau Mau proclivities.19 10 R.A. Cosgrove, ‘The Boer War and the Modernization of British Martial Law’ (1980) 44 Journal of Military History 124. Dicey notably disregarded his own theory and supported resistance to the state during the Home Rule crisis; see T. Bingham, ‘Dicey Revisited’ [2002] PL 39, 43. 11 B. Ibhawoh, ‘Stronger than the Maxim Gun Law; Human Rights and British Colonial Hegemony in Nigeria’ (2002) 72 Africa: Journal of the International African Institute 55, 55. 12 Mara Malagodi notes that Sir Ivor Jennings’ work in decolonising states was likewise characterised by the ‘strengthening of unconstrained and often unaccountable executives’; M. Malagodi, ‘Ivor Jennings’s Constitutional Legacy beyond the Occidental-Oriental Divide’ (2015) 42 JLS 102, 122 13 See T.R.S. Allan, ‘Legislative supremacy and the rule of law: democracy and constitutionalism’ (1985) 44 CLJ 111; D. Dyzenhaus, The Constitution of Law: Legality in a time of Emergency (CUP, 2006); K.D. Ewing and C.A. Gearty, The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain, 1914-1945 (OUP, 2000). 14 See D. Lino, ‘The Rule of Law and the Rule of Empire: A.V. Dicey in Imperial Context’ (2018) 81 MLR 739; J. Reynolds, Empire, Emergency and International Law (CUP, 2017) and A.W.B. Simpson, Human Rights and the End of Empire: Britain and the Genesis of the European Convention (OUP, 2001). 15 UKNA, FCO 141/6581, The Bell-Penfold Paper: The History of Political Movements and Unrest among Kikuyu, with their emergence into Mau Mau (4 Jun 1951) 3. See also J. Lonsdale, ‘The Moral Economy of Mau Mau: Wealth, Poverty & Civic Virtue in Kikuyu Political Thought’ in B. Berman and J. Lonsdale, Unhappy Valley: Conflict in Kenya & Africa, (James Currey, 1992) 315. 16 ibid., Bell-Penfold Paper, 2. See also F. Furedi, ‘The Social Composition of the Mau Mau Movement in the White Highlands’ (1974) 1 Journal of Peasant Studies 486. 17 Colonial Office, n.3 above, 243. 18 See A. Duffy, ‘Legacies of British Colonial Violence: Viewing Kenyan Detention Camps through the Hanslope Disclosure’ (2015) 33 Law and History Review 489, 492. 19 See D.M. Anderson, Histories of the Hanged: Britain’s Dirty War in Kenya and the End of Empire (Phoenix, 2006), C. Elkins, Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya (Owl, 2006) and H. Bennett, Fighting the Mau Mau: The British Army and Counter-Insurgency in the Kenya Emergency (CUP, 2012).

Load more