Historian's book prompts court case, British government admission of torture

Historian Caroline Elkins recounted the story of her book, "Imperial Reckoning," and the court case against the U.K. government to which it gave rise. Elkins is the founding director of Harvard's Center for African Studies.

“What was striking to me was how ‘Imperial Reckoning' evoked a panoply of defenses that were quite strikingly similar to those that the British government deployed when confronted with their colonial crimes in the 1950s.”

UCLA International Institute, July 8, 2016 — When Caroline Elkins, a historian at Harvard University, published “Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya” (Henry Holt, 2005), it became a lightning rod for criticism in the history profession. The book documents the detention camps and systematic torture instituted by the British colonial government in Kenya to suppress the Mau Mau rebellion (1952–1960) in that country. Kenya gained its independence from the United Kingdom in 1963.

“Imperial Reckoning” used what Elkins calls “ashes and fragments” of documentary evidence, supplemented by ethnographic fieldwork and oral interviews, to document what the author describes as “extensive violence, cover-ups at the highest level of British government and the subsequent complicity of many historians, who turned away from this ugly business of empire and produced histories that at best, suggested that these episodes of violence were one-offs and certainly not systematized.” The book, which won the Pulitzer Prize in 2006, was sharply criticized by traditional historians for its lack of documentary evidence and reliance on interviews, with Elkins told many times that “Africans make up stories.”

Elkins recounted the story of the book, and the subsequent court case brought by five elderly Kenyans against the British government, at the Annual James S. Coleman Lecture of the UCLA African Studies Center in early May. “What was striking to me,” she said, “was how ‘Imperial Reckoning’ evoked a panoply of defenses that were quite strikingly similar to those that the British government deployed when confronted with their colonial crimes in the 1950s.”

Legal battle leads to apology and victim compensation

The case against the British government was initiated in the High Court of Justice in London in 2008. “The five claimants alleged that they suffered abuse and torture at the hands of the British colonial agents from 1954 through 1960,” explained the author, “[as] part of a larger system of mistreatment established during the British counter-insurgency operations during the Mau Mau Emergency. From the start, the Foreign and Commonwealth Office, or the FCO, was the named defendant for British government and vowed to fight the case to the end.”

Elkins was hired that same year as an expert witness by the law firm that represented the claimants, with two additional historians hired in 2010 and 2011, respectively. “I had no idea what I was getting into, it was a full-time job,” she said. The Honorable Justice McCombe, a conservative judge, presided over the case.

Against all odds and an active defense by the FCO, the claimants won the right to have their case heard before the High Court in a drawn-out process that took four years. The FCO twice attempted to end the case with “strike-out motions” (akin to U.S. motions for summary judgment). The first motion sought to dismiss the case on the grounds of state succession (i.e., that the U.K. government had been separate and apart from the colonial government, and that liability for the actions of the colonial government had passed to the Kenyan government upon independence).

Elkins' lecture drew a large audience. (Photo: Peggy McInerny/ UCLA.)

The second motion sought dismissal on the grounds of the U.K. statute of limitations (three years). The Honorable Justice McCombe, to the government’s surprise, ruled against both motions, finding the FCO “dishonorable” in its first argument and ruling that a trial could go forward in the second, finding that sufficient evidence had not been available to the claimants prior to the publication of Elkins’ book in 2005, but that such evidence was indeed now available.

The motions involved intensive, two-week court sessions in which virtually all the evidence related to a possible future trial was presented, said Elkins. She wrote two detailed witness statements for the law firm’s response to the respective motions. The first statement of 100 pages summarized all the documentary evidence in support of the claimants’ allegations – essentially a précis of Elkin’s book without the oral histories.

The second expert witness statement of several hundred pages presented evidence that the government engaged in massive document destruction in Kenya in the final years of colonial rule while simultaneously covering up its actions. The statement also confirmed that sufficient evidence remained to enable the British government to defend itself 50 years after the fact.

The contents of this document drew extensively on the Hanslope Park “Disclosure”: the so-called “discovery” of a cache of heretofore “unknown” surviving colonial documents (300 boxes) from the Mau Mau period in Kenya and from 36 other colonial territories during the final days of the British Empire. (Hanslope Park is also the location of the archives of MI5 and MI6 — the British internal and international intelligence services, respectively.)

The FCO announced the existence of the archive in 2011, after receiving document disclosure requests related to the court case for 18 months. What followed was a cat-and-mouse game to retrieve as many relevant documents as possible from the archive. Armed with the power of judicial disclosure due to the court case, the legal team succeeded in gaining access to 100,000 pages of documents, which the FCO provided only in pieces, often out of order, with many pages — and even relevant documents —missing. Elkins and the graduate students working with her wrote close to 13,000 letters, as each document request required a separate letter.

It took the historian nine months to analyze the documents in order to write her second expert witness statement. Not only did she find document after document supporting the claims of her book, but the Hanslope Disclosure archive provided new layers of evidence that were crucial to overcoming the FCO’s second strike-out motion.

Crucially, said Elkins, “We had, for the first time, documents documenting the document destruction.” The British government had introduced a “Watch System” in the final years of colonial rule in Kenya: colonial government documents were divided into “watch” documents (designated by a “W” in the upper right-hand corner) and “legacy” documents. The former were boxed up and sent to Nairobi and kept under lock and guard, she explained. Eventually they were either destroyed or shipped back to London. When files were destroyed, a “document destruction certificate” was completed in duplicate, with one intended for the London Colonial Office and one for the colonial government.

“This was absolutely, soup to nuts, a very, very highly organized system and not only did it take place in Kenya, but from the files we found out it took place everywhere else in the empire,” she continued. “What we now know is that there was massive and wholesale document erasure at the end of empire.” To illustrate how thorough the document erasure had been, the historian noted that not once had she ever encountered a document in the Kenyan archives marked with a “W.” Nor had she ever located a document destruction certificate in the U.K. National Archive prior to the Hanslope Park Disclosure.

Although the FCO vowed to appeal McCombe’s second ruling of October 2012, which allowed the court case to proceed, the British government settled the case without admitting legal liability in June 2013. Foreign Secretary William Hague offered into the record of the House of Commons a formal apology to the Kenyan claimants and other victims of colonial-era torture. In addition, he announced the payout of some 20 million pounds sterling in reparations and funding for a memorial to be built in Nairobi in honor of the Mau Mau victims of the camps. The remaining Hanslope files have been transferred to the National Archive, but contain only day-to-day administrative files regarding Britain’s other 36 colonial territories, an outcome best explained by the lack of the kind of judicial disclosure imperative that prevailed in the Kenya case.

Lessons of court case

Elkins drew a number of lessons from the court case and its outcome. Most important, the settlement and apology represented a long-awaited vindication of the Kenyan claimants’ allegations. These individuals and the many, many others who underwent unspeakable torture in the detention camps had been vilified as liars by the British government for decades, said the speaker.

In a strange twist of fate, she said that the court also ended up arbitrating the ongoing methodological debates within historical circles about the primacy of written sources and the legitimacy of alternative evidence, such as interviews and oral histories. On a personal note, Elkins observed that she believed it was a great mistake that historians did not work more often in teams. “I had eight to nine graduate and undergraduate students who worked with me for nine months; [we had a] War Room that was like something out of Hollywood,” she remarked. “It was one of the most incredible and intense teaching and learning experiences that I have ever had.”

Another significant lesson concerned the role of secrecy and its use by the British government to shape perceptions of the past. “[T]he administrative rituals of document destruction and removal at the end of empire, the restrictions around gaining knowledge of Britain's colonial past, the organizational approach to the management of colonial secrets, and the theatrics surrounding the so-called disclosure are all as important, if not more so, than the object of secrecy itself,” she added, “which in this case is the scale and scope of British-directed violence at the end of empire.”

Elkins then drew attention to the link between liberalism and imperialism, noting that since the middle of the 19th century, the paradox between “the lived imperial experiences of the colonized and the laudatory claims of Britain’s civilizing mission” had produced a “Janus-faced Britain… that internalized a contradictory impulse toward equality and liberal democracy that embodied the nation state, on the one hand, and exploitation and dependence of its large colonial underbelly, on the other.”

Perhaps most striking, said the historian, “the privileged media through which liberalism did and continues to do its work — with bureaucracy, mass media, the law, literacy, archives, the scholarly academy — became the means of emancipation and inclusion as well as tools of repression and obfuscation — it's both.”

For Elkins, the ability of liberalism’s tools to simultaneously obfuscate and illuminate remains one of the great unexplored questions of imperial history. She was scathing in her criticism of establishment historians in Britain who failed to address the coercion, terror and violence of the British Empire, particularly in its waning days — including their fidelity to the written materials preserved in the National Archive as most reliable source material. “[T]he historical profession, with all its claims to neutrality,” she remarked, “has been deeply implicated in the reproduction of archival realities and with it, the British government’s end-of-empire fictions.”

May 1, 2016. The Annual James S. Coleman lecture brought together seven of the eight scholars who have served as director
of the African Studies Center. From left: Edmond Keller, Allen Roberts, Françoise Lionnet, Steven Nelson, Andrew Apter,
Merrick Posnansky and Mike Lofchie.

Published: Friday, July 8, 2016