Why Britain chose to settle Mau Mau case out of court

By  PETER MWAURA, May 10  2013

In Summary

• And if the British Government apologises for its dark colonial past in Kenya, as it has said it will, that will be edifying. An apology will speed up healing and reconciliation, and bring some form of closure to the unhappy chapter of British colonial history in Kenya. An apology will also help the British to confront the ghosts of their colonial past.

It’s a public and diplomatic relations coup. Britain was reported this week saying it is willing to negotiate an out-of-court settlement to pay compensation to the Mau Mau veterans who sued because they were tortured and mistreated during the 1952-1960 nationalist uprising.

The offer comes after four years of stonewalling in a London court.

Whitehall is not just capitulating to the much-publicised class-action suit — brought on behalf of all Mau Mau tortured in concentration camps — by a group of Kenyans who travelled to London in June 2009 to personally file their case. It is being pragmatic and calculating.
Settling out of court without the involvement of a judge or a lengthy trial process is the way many civil cases are settled.

It is also usually the best way to settle a dispute.

It is cheaper, faster, and more convenient for both sides. It generates fewer hard feelings.

It is particularly advantageous and beneficial to the British government. For one thing, Whitehall will pay the price it is willing to pay and not one imposed by the court.

For another, it will be spared the embarrassing spectacle of detailed disclosures in an open court of the reprehensible ways in which its agents carried out torture and other war crimes during the Mau Mau war.

The British official policy has always been to cover up the brutal treatment of the Mau Mau until 2011 when thousands of files secretly removed from Kenya on independence surfaced.
The files seriously undermined the British government’s claim that it could not be held responsible for the atrocities.

The British Government will also be safeguarding its relations with Kenya by indirectly admitting wrongdoing. At the same time, by not opting for a trial, it will avoid a court judgment that will set a judicial precedent that could be followed in future cases.

One of the fears of the British has been that the Kenyan case, if successfully prosecuted, could set a precedent which could open the floodgates for similar lawsuits from other parts of the former British Empire, in particular Malaya (West Malaysia), Aden (Yemen) and Cyprus, where its agents perpetrated similar atrocities and war crimes.

And if the British Government apologises for its dark colonial past in Kenya, as it has said it will, that will be edifying. An apology will speed up healing and reconciliation, and bring some form of closure to the unhappy chapter of British colonial history in Kenya. An apology will also help the British to confront the ghosts of their colonial past.

By apologising, the British will not be alone. They will be in the good company of the Germans, who apologised for the Holocaust and in 2004 to the Herero of Namibia for the 1904-1907 genocide.
They will also be in the good company of the Italians who in August 2008 apologised to Libyans for their equally horrendous colonial history in Libya.

Apologising, after all, is a moral issue, a sign of good breeding. By apologising, the British Government will be redeeming its image.

For Mau Mau veterans, an out-of-court settlement means the process of compensation gets completed quickly, before they die as most of them are in their sunset years.

But it also means they may not be getting the right compensation as they would have if the the case goes to full trial. But a bird in hand is worth two in the bush.

Besides, they will also save a bundle of money in legal fees and other costs, to say nothing of the psychological strain and uncertainty of waiting.

gigirimwaura@yahoo.com