The “Mau Mau” Legal Hearings and Recognizing the Crimes of the British Colonial State: A Limited Constitutive Moment

Abstract

This paper considers the changing capacity of law to hear cases of “historical injustice,” in particular crimes of colonialism, and the role of the hearing of these claims in law in provoking or supporting limited constitutive change. In 2009, the British law firm Leigh Day & Co. brought a civil action for damages for personal injuries on behalf of five Kenyan claimants, for harms suffered in detention under the British colonial administration in Kenya between 1952 and 1960. The action was brought against the British government, through the Foreign and Commonwealth Office, for their part in the creation and maintenance of the system of torture during the period of the “Emergency” in Kenya. Heard in the High Court of Justice in the United Kingdom, the hearing determined that the case could proceed to trial, yet was settled in 2013 by the British government. The paper considers how we may understand this hearing as part of a moment of limited constitutive legal and social change in the recognition of the injustice of the system of the British Empire, and considers the case within the context of the current discussions in Britain around British colonial responsibility for the broader harms of Empire, together with broader reparations claims for slavery and colonialism.