Memory of the World Register

MEMORY OF THE WORLD REGISTER

The Arrest and Mistrial of Jomo Kenyatta and Five Other Nationalists

Ref N° 2010-55

PART A – ESSENTIAL INFORMATION

1. SUMMARY

The Kenya National Archives and Documentation Service submit proceedings of the original Kapenguria Resident Magistrate’s Criminal Case, Criminal Appeals in Her Majesty’s Supreme Court of Kenya at Kitale and Criminal Case No. 14 of 1959 Regina versus Rawson Mbogua Macharia.

Jomo Kenyatta was a key actor in laying the foundation of the Kenyan State. He is perceived as the founding father of the nation because of his role in the nationalist struggle in which he acted as the rallying point of Kenyan nationalists both at home and abroad. During his 15-year stay in Europe, between 1929 and 1946 he helped create greater awareness of Kenya’s problems among some British parliamentarians and also became part of the Pan –African organizations, alongside leading Pan- Africanists such as George Padmore and Paul Robeson. Padmore was instrumental in the establishment of the International African-Service Bureau (IASB) in 1937, which supported the demands of colonial peoples for democratic rights, civil liberties, and self-determination. Jomo Kenyatta became the bureau’s assistant secretary. Others in the organization included T. Ras Makonnen (formerly Griffiths) of British Guyana, Chris Jones of Barbados and Wallace-Johnson of Sierra Leone.

Yet in January 1953, this same man stood in the dock – simply as the accused, Kenyatta – for one of the most notorious in all Commonwealth history. At the height of the Mau Mau rebellion and widespread political agitation against colonialism in Kenya 1952, a state of emergency was declared over the colony and soon thereafter, Jomo Kenyatta was arrested.

Other freedom fighters were also arrested in the ensuing crackdown and among them were the other five (Fred Kubai, Richard Achieng Oneko, Bildad M. Kaggia, Paul Ngei and Kungu Karumba) who came to be arraigned in court with Kenyatta at the famous Kapenguria.

The charges preferred against the Kapenguria six were:

• Managing an unlawful society • Being members of an unlawful society namely Mau Mau

The Colonial government felt that by arresting and prosecuting what was believed to be the top leadership structure of the Mau Mau, it would stamp out the uprising in order to prevent any political power from slipping from their hands into those of the African nationalists. However, it became evident that more serious armed struggle against the colonialists was waged after the arrest of Jomo Kenyatta and the top hierarchy of the Mau Mau in 1952.

During the trial that took five months, the prosecution argued that in their capacity as Kenya African Union (KAU) officials, Jomo Kenyatta and his co-accused had attempted to persuade the outside world that they were pursuing constitutional methods in their desire for self-government and the return of land “allegedly” taken away from the Africans. Yet, at the same time, in secret, they planned, organized and developed the Mau Mau society. The judge ruled that they used their positions and legal status in KAU as a cover-up for the underlying illegal purpose, which in reality was to drive the Europeans from the colony through armed violence and armed struggle. The accused denied the charges with Kenyatta stating categorically thus;-

• “I have no room in my heart for violence or the use of force; even in my school I reprimanded any teacher who used it on children. I don’t believe in violence” and

• “We look forward to the day when peace shall come to this land and that the truth shall be known that we, as African leaders, have stood for peace”

That notwithstanding, Kenyatta was imprisoned for seven years with hard labour in 1952, and in March 1959 while still serving this sentence, was brought to Kitale in connection with the trial of Rawson Macharia, chief witness of the prosecution, who had helped secure hefty prison terms for the accused at the Kapenguria Trial. He was the only witness who claimed to have actually seen Kenyatta administering a “Mau Mau oath”. On 22nd November 1958 however, he swore an affidavit to effect that his evidence was false and that other witnesses for the prosecution had also been bribed. In January 1959, the Attorney General instituted criminal proceedings against Macharia for swearing a false affidavit. The whole subject of justice was thus raised anew. Suspicion of miscarriage of justice had hung over the of Jomo Kenyatta for six years and therefore the unexpected confession of the chief witness of the prosecution further fueled the suspicious circumstances surrounding the Kapenguria Trial.

2. DETAILS OF THE NOMINATOR

2.1 Name Director, Kenya National Archives and Documentation Service

2.2 Relationship to the documentary heritage nominated Custodian

2.3 Contact person(s) Director: Mr. John G. M’reria Deputy Director: Mrs. Agnetta Akhaabi

2.4 Contact details Kenya National Archives and Documentation Service P.O. Box 49210 – 00100 NAIROBI Tel: (254-02) 2228959 Fax: (254-02) 2228020 e-mail: [email protected] [email protected] [email protected]

3. IDENTITY AND DESCRIPTION OF THE DOCUMENTARY HERITAGE

3.1 Name and Identification details of the items being nominated

This is a unique collection of eight criminal court cases referred to as: Kapenguria Resident Magistrate’s Criminal Case No.1 of 1952; Criminal Appeal court s Nos. 276, 277,278, 279,280 and 281 of 1953 in Her Majesty’s Supreme Court of Kenya at Kitale, Regina versus Jomo Kenyatta and six others; Criminal Case No. 14 of 1959 Regina versus Rawson M. Macharia.

3.2 Description

File folders and bound volumes, typed or handwritten constituting all the proceedings of the original Kapenguria Resident Magistrate’s Criminal Case , Criminal Appeals in Her Majesty’s Supreme Court of Kenya at Kitale and Criminal Case No. 14 of 1959 Regina versus Rawson Mbogua Macharia (this is in 9 Volumes). There are twenty-four (24) files all together with verbatim transcripts in seven (7) volumes. The first hearing of the Case took five months, appeals and a petition added another fifteen months; the transcripts of the proceedings runs to nearly a million words as appended here below;

RR/9/1 - Magistrate’s Manuscript (all handwritten) VOL. 1. 1952-53 for Criminal Case No. 1 of 1952, Regina Vs. Jomo Kenyatta and five others. Contains lists of prosecution witnesses and exhibits and Magistrate’s notes – 194 pages-(hard-cover bound).

RR/9/2 – Magistrate’s Manuscript VOL. 2 (all handwritten) – 291 pages – (hard-cover)

RR/9/3 – Magistrate’s Manuscript VOL. 3 (all handwritten) – 266 pages – (hard-cover)

RR/9/4 – Magistrate’s Manuscript VOL. 4 (all handwritten) - 199 pages – (hard-cover)

RR/9/5 – Verbatim Transcript VOL. 1 (typed) – 338 pages (hard-cover), for Criminal Case No.1 of 1952. Contains charge sheets and statement of offences, which is managing an unlawful society contra section 70 of the Penal Code. Particulars of the offences were that Jomo Kenyatta between the 12th August 1950 and 21st October 1952 in the colony of Kenya, managed an unlawful society commonly known as Mau Mau, which society had been declared by an order of the Governor in Council dated 12th August 1950, published in the official gazette of the Colony and Protectorate of Kenya as Govt. Notice No. 913 of 1950, to be a society dangerous to the good governance of the said colony. The specific charges for the other accused were those of assisting in the management of an unlawful society contra to section 70 of the Penal Code and being a member of an unlawful society contra to section 71 (a) of the Penal Code. The second charge sheet accuses Kenyatta with conspiracy to commit felony contrary to section 62A of the Penal Code, that is, use of physical force, or by threat or intimidation, to compel persons in the colony of Kenya to take an oath purporting to bind the person taking the oath to act or not to act in any way. Other charges on the sheet include; Conspiracy to excite to disaffection against the government of the colony as by law established; conspiracy to raise discontent amongst the inhabitants of the said colony and conspiracy to promote feelings of ill will and hostility between different classes of the population of the colony.

RR/9/6 – Verbatim Transcript VOL. 2 (typed) – 280 pages (hard-cover) bearing cross examinations of prosecution witnesses.

RR/9/7 – Verbatim Transcript VOL. 3 – 212 typed pages (hard-cover) bearing cross examinations of prosecution witnesses.

RR/9/8 – Verbatim Transcript VOL. 4 - 235 typed pages (hard-cover) contains proceedings of defense witness No. 1 Jomo Kenyatta being examined by his lawyers.

RR/9/9 – Verbatim Transcript VOL. 5 – 399 typed pages (hard-cover) also contains examination of defense witness Jomo Kenyatta.

RR/9/10 – Verbatim Transcript VOL. 6 – 256 typed pages (hard-cover) basically examination of the witnesses and the accused.

RR/9/11 – Verbatim Transcript VOL. 7 – 275 typed pages (hard-cover) contents are on examination of witnesses and the accused.

RR/9/12 – Verbatim Transcript VOL. 8 – 79 typed pages (hard-cover) contains submissions by the prosecution and the defense attorneys.

RR/9/13 – Regina versus Jomo Kenyatta and five others – VOL 1. Pages 1 – 609

RR/9/14 – Regina versus Jomo Kenyatta and five others – VOL II. Pages 610 – 1148

RR/9/15 – Regina versus Jomo Kenyatta and five others – VOL III. Pages 1149 – 2064

RR/9/16 – Regina versus Jomo Kenyatta and five others – 99 Pages both handwritten and typed being the original copy of the judgment at Kapenguria delivered on 8th April 1953.

RR/9/17 – Jomo Kenyatta versus Regina (Appeal) –Criminal Appeals No. 276, 277, 278, 279, 280 and 281 of 1953 from convictions under Section 71 of the penal code of being members of an unlawful society, namely the Mau Mau and convictions under Section 70 of the penal code of managing or assisting in the management of the same unlawful society. The Appeals were lodged before Judges G. B. Rudd and H. Mayers at Kitale who consolidated them. The appeal was eventually dismissed.

RR/9/18 – Jomo Kenyatta and five others versus Regina –

RR/9/19 - Mr. D. N. Pritt (QC) 1952 - 1960 – File cover 34 typed pages being a secret file on Jomo Kenyatta’s lawyer by the judicial department.

RR/9/20 – Hard cover Criminal Case No. 22 of 1952 Queen versus Denis Nowel Pritt Q.C. 1952 – 1954.

There are also nine volumes of Criminal Case No.14 of 1959 between Regina versus Rawson Mbogwa Macharia on offences of false swearing amounting to perjury. He was the Crown’s first witness whose evidence had contained obvious untruths which the defence exposed, but its main significance was it was the strongest of only three statements that implicated Kenyatta directly with oath-giving ceremonies. Almost six years later, towards the end of 1958, Macharia signed an affidavit swearing that his evidence against Kenyatta was false. He was then prosecuted himself for perjury – but for what the government said was a perjured affidavit, not for the perjury at Kapenguria to which he confessed. Proceedings against Macharia began at the end of January 1959, and in early April, this man was sent to prison for twenty one (21) months.

RR/9/21 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 1 – 149 typed pages.

RR/9/22 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 2 – 183 typed pages.

RR/9/23 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 3 – 188 typed pages.

RR/9/24 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 4 – 188 typed pages.

RR/9/25 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 5 – 187 typed pages.

RR/9/26 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 6– 179 typed pages.

RR/9/27 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 7 – 180typed pages.

RR/9/28 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 8 – 195 typed pages.

RR/9/29 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 9 – 160 typed pages.

RR/9/29 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 VOL. 10 – 149 typed pages.

RR/9/30 – Regina versus Rawson Mbogwa Macharia Criminal Case No. 14 of 1959 – 149 typed pages.

4. JUSTIFICATION FOR INCLUSION/ASSESSMENT AGAINST CRITERIA

4.1 Authenticity

These records were generated by the Judicial Department and they were in the custody of the High Court in Nairobi until they were transferred to the Kenya National Archives and Documentation Service for permanent preservation in 1987. As such the authenticity of these records is established beyond doubt since they comprise the original magistrates’ handwritten manuscripts and verbatim transcripts of the proceedings.

4.2 World significance, uniqueness and irreplaceability

Probably no other British African colony experienced so turbulent a period before independence than Kenya. Throughout the period from 1946 until his arrest and during his trial which became world news Kenyatta was a dominant figure, a nationalist leader. Therefore the significance of this Case is that it was a political trial of decisive significance to the immediate future of Africa as it had tremendous impact in the re-awakening of nationalism and freedom struggles across the continent. In fact it can be asserted that the underlying theme of the trial was rooted in the clash between two great forces in history – those of British Imperialism and African Nationalism. In his opening remarks while in the witness-box, Kenyatta spoke of the growth of the Africans’ early political associations and his role in them. He described the grievances of which they sought redress and the aims of Kenya African Union (KAU). He also gave his views of the Mau Mau picture and explained

5 how he had publicly cursed it at the famous Kiambu meeting of August 1952. He said “I am just an ordinary man striving to fight for rights of my people and to better their conditions without necessarily hating anybody”. Hence these records occupy a very vital niche in the Africa’s liberation struggle from the clutches of imperialism since the impact of Jomo Kenyatta as a leading ant—colonial resistance transcends the boundaries of Kenyan national; history. The proceedings give insights into the nature of colonial administration and its impact on the African peoples. Lots of international researchers have utilized these materials in their works.

There are also those who have visualized Kapenguria as one of the most notorious trials in Commonwealth history, especially due the fact that it was unfairly conducted. The records in themselves are therefore a unique collection of original proceedings on the trial of African leaders facing a hostile colonial judicial system.

4.3 Criteria of (a) time (b) place (c) people (d) subject and theme (e) form and style.

(a) Time

The time span covered by these records is of historical significance not only to Kenya, but for almost the entire continent. This was during the phase of active African resistance to colonial rule. The Mau Mau explosion came as the culmination of a period of growing yet frustrated nationalism which had been powerfully reinforced, first by the returning African soldiers at the end of the Second World war, and then by the return of Kenyatta in 1946 to provide the leadership.

(b) Place

On 17th November 1952 an acting Superintendent of the Kenya CID, Special Branch, Supt. K.R.T. Goodale, applied before a District Commissioner, who was also a Magistrate, for warrants to arrest Jomo Kenyatta and five others on charges of membership and management of Mau. He made his application in a remote country station near the Northern boundaries of Kenya, 280 miles from Nairobi and homes of the accused. The place chosen was Kapenguria, a station so little known even to the officials in Nairobi that when they came to appoint a Resident Magistrate to hear the case they appointed him to the wrong province by mistake. Outside the houses of the District Commissioner and District Officer there was not much to see in Kapenguria.

Jomo Kenyatta is remembered as a great Nationalist and leading Pan Africanist. He is the founder of the State called Kenya and also an advocate of Continental unity alongside other great Pan-Africanist such as Kwame Nkrumah, Haile Selassie, Leopold Sedar Songhor and Patrice Lumumba to mention but a few.

The other five accused have also been recognized as national heroes in this country due to their contribution either individually or severally in the liberation struggle.

(d) Subject and theme

The underlying theme of this trial is provided by the clash between two great forces in history – those of British imperialism and African nationalism.

(e) Form and Style

The collection is basically in English. Where Kiswahili and vernacular have been used, translations exist. The correspondence is quite matter-of-factly official with a touch of judicial-like scenes being “replayed on paper”.

(f) Social, Spiritual and Community Significance

Jomo Kenyatta was known in Europe and America long before the trial. His life had been so closely bound up with the growing political problems of Kenya, that to describe one is to describe the other. In his evidence he gave a very full account of his life and his political beliefs, so they can be left in very broad outline here. He described himself as “about 50”. Coming to Nairobi in his twenties he worked first in a minor post in Government service - according to Crown Counsel, as a meter-reader in the gas department. At this time, Kenyatta says, he was a sympathizer with the East African Association which was busy denouncing what was described as forced labour for Africans. In about 1922 or 1923 this body was replaced by the Kikuyu Central Association (KCA) which took over this and several other topics of agitation. By 1925 Kenyatta was an official of the new body, and by 1928 he says “I took up political work as full-time job”. From then onwards he concentrated upon pan-kikuyu consciousness. He travelled to meetings all over Kikuyuland, and this proved to be the real start of his own effective political career. In 1928 the KCA started its own paper, Muigwithania, “the Reconciler” and Kenyatta was to edit the first nine issues. Its contents were a mixture of advice, proverbs and news. The issue of September 1928, for example, contained a long article by Kenyatta on making the land productive, since the boundaries of the reserves had then just been gazetted. Thus Kenyatta demonstrated early his interest in the land at a practical level. Editing Muigwithania was the beginning of Kenyatta’s journalistic experience. Muigwithania was the first newspaper of Kenya Africans and its effects were dual: to unite progressive elements among all Africans; and to act in a tribal “nationalist” sense among the Kikuyu by its use of riddles, proverbs and stories which aimed to foster pride in being both Kikuyu and African. As its General Secretary, Kenyatta led a head-on clash with the Christian missions over the subject of female circumcision before going to London in 1929 to represent the KCA there.

On return to Kenya, he became Principal of the Githunguri Teachers’ Training College in 1947, and through it he came to exercise enormous influence over education; in 1948, with one Koinange, he formed the African Education Council to amalgamate under a central organization the independent school groups – the Kikuyu Independent Schools Association and the Kikuyu Karinga Education Association, which were backed by the African Orthodox Church and the African Independent Pentecostal Church. He opposed the Beecher Report on education, which aimed to reorganize the independent schools by advocating greater government supervision and grants-in-aid, since he saw that any such reforms would lessen the nationalist hold on the schools.

As nationalist agitator, writer and teacher, politician, statesman, mediator, and later on President, Kenyatta played many political and social roles in his long life. His own book, facing Mount Kenya, was itself a nationalist milestone, and shows the two keys to Kenyatta’s life: his deep-rooted sense of belonging to his own tribe, the Kikuyu; and his attachment to the land. His determination that Africans should rule Kenya was the driving force of his career.

4.4. Issues of rarity, integrity, Threat and Management

It was in Kenya that the clash between settler and African produced the so-called Mau Mau rebellion, the only prolonged and bloody revolt against British colonialism on the continent. And it was here that the settlers – unlike their counterparts in Rhodesia to the south – came to terms with African nationalism and later on accepted as leader of the nation the man whom previously they had so virulently condemned. Colonialism, settlers, nationalism, Mau Mau – these records portray how Kenyatta’s career is interwoven with them.

The entire collection is managed in accordance with the requirements of the Public Archives and Documentation Service Act Chapter 19 (Revised 1990) and any other in-house Rules and Regulations. This means that the department has full physical and intellectual control of the records since their information content is still intact and no gaps exist in the proceedings. Physically, these records are stored in archival boxes and mobile shelving units in a natural environment where humidity (45%) and temperatures (17-25celcius) are self-regulating. Since these records are paper-based, the only serious threat to their longevity is the susceptibility to agents of degradation. To avert such dangers, the collection has been microfilmed and plans are at an advanced stage to have them digitized alongside other documents that are currently undergoing the process.

5. Legal Information

5.1 Owner of the documentary heritage (name and contact details)

Kenya National Archives and Documentation Service P.0. Box 49210 – 00100 NAIROBI Tel:(254 – 02) 2228959, 2223977 Fax: (254 – 02) 2228020 e-mail: [email protected]

5.2 Custodian of the documentary heritage (Name and contact details, if different to owner)

Same as above

5.3 Legal Status

(a) Category of ownership – Government (b) Accessibility – For research and public inspection (c) Copyright Status- Belongs to the Kenya National Archives (d) Responsible Administration – As above

6. MANAGEMENT PLAN

This collection forms part of the rich documentary heritage in the custody of the Kenya National Archives and Documentation Service. The entire collection is managed in accordance with the requirements of the Public Archives and Documentation Service Act Chapter 19 (Revised 1990) and any other in-house Rules and Regulations. Currently the records are stored in modern Bulk storage facilities in a natural environment where humidity (45%) and temperatures (17-25celcius) are self-regulating; thanks to the stable climatic conditions prevailing all the year round in Nairobi. However other house-keeping practices such as cleanliness and physical security for the collection are guaranteed.

REFEREES

1. Dr. Anne Thurston International Records Management Trust (IRMT)

3639 KEONIAUA ROAD PLAINSVILLE HAWAII 96722 E-mail: [email protected]

2. Professor Caroline Elkins Harvard University E-mail: [email protected]

3. Professor Timothy Parsons Washington University – St. Louis E-mail: [email protected]

4. Richard Waller 502 Matlack Avenue Lewisburg PA 17837 USA E-mail: [email protected]