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The Journal of Imperial and Commonwealth History


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Alchemy of Evidence: Mau Mau, the British Empire, and the High Court of Justice
Caroline Elkins Version of record first published: 08 Nov 2011

To cite this article: Caroline Elkins (2011): Alchemy of Evidence: Mau Mau, the British Empire, and the High Court of Justice, The Journal of Imperial and Commonwealth History, 39:5, 731-748 To link to this article: http://dx.doi.org/10.1080/03086534.2011.629084

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The Journal of Imperial and Commonwealth History Vol. 39, No. 5, December 2011, pp. 731 748

Alchemy of Evidence: Mau Mau, the British Empire, and the High Court of Justice
Caroline Elkins
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Restorative justice in various forms is a phenomenon that has swept across the globe over the last three decades. Most recently, it is unfolding in the High Court of Justice in London where ve Kenyans have led a claim against the British government, alleging that they suffered acts of mistreatment and torture at the hands of British colonial and military personnel. Three revisionist Mau Mau historians have served as advisors and expert witnesses for the claimants. Judicial procedure and the positivist stance of the court have framed their production of evidence and its reading. This article will examine the production of the historians witness statements, and the impact that the recent Hanslope Disclosure has had upon their work. The discussion is framed within the broader context of Mau Mau revisionism and the critiques that ensued after the publication of Imperial Reckoning and Histories of the Hanged.

Restorative justice in its many forms is a phenomenon that has swept through the post-totalitarian and post-colonial worlds over the last several decades. During this time multiple venues, including the Nuremberg and Arusha Trials, national truth commissions (over 30 in all), cases of reparation as well as others heard in the International Criminal Court have deployed positivistic juridical means, in various forms, for the establishment of historical facts, the determination of injustices, and the provision of remedies, broadly dened. From Germany to South Africa, to Spain and Chile, there has been, as John Comaroff coined, a juridication of the past.1 The role of historians in mediating in these juridical processes over the establishment of facts and the interpretation of evidence has been uneven. So, too, has been production of historical evidence as a consequence of the juridical processes themselves. For instance, the 1997 case of Maurice Papon, the Vichy bureaucrat who deported Jews from the region of Gironde, is one in which four historians offered
Correspondence to: Caroline Elkins, Department of History, Harvard University, 1730 Cambridge Street, Cambridge, MA 02138, USA. Email: carolineelkins3@gmail.com ISSN 0308-6534 print/1743-9329 online/11/05073118 http://dx.doi.org/10.1080/03086534.2011.629084 # 2011 Taylor & Francis

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testimony to the jury based upon their accumulated research. Among them was Robert Paxton whose publication of Vichy France: Old Guard and New Order, 194044 was the subject of intense criticism at the time of its publication in France in 1973; his research from this book, as well as his co-authored Vichy France and the Jews (1981), would help serve as a basis for his expert testimony.2 In contrast, South Africas Truth and Reconciliation Commission (TRC) did not call upon a coterie of professional historians, relying largely instead on lawyers and sociologists who sought to translate, through the TRC process itself, a myriad of diffuse testimonies into historical evidence, that was at once veriable and thus truthful. The resultant TRC archive offers a particular set of evidence, reective of the Commissions focus on individuals, the truth-nding process, and the over-arching belief in redemptive purging through procedures that were judicial in many respects.3 Today, another juridication of the past is unfolding, this time in the High Court of Justice in London. Five KenyansNdiku Mutua, Paulo Mzili, Wambugu Nyingi, Jane Muthoni Mara, and Susan Ngondiled a claim against the British government in June 2009, alleging that they suffered acts of mistreatment and torture at the hands of British colonial and military personnel during the Mau Mau Emergency (195260). According to a recent summary judgement of the justice presiding over the case, the Honourable Mr Justice McCombe:
[The ve claimants] alleged that they were seriously mistreated in detention camps in Kenya, when it was a British colony, during the Mau Mau uprising in the 1950s. One claimant has died since the proceedings were begun . . . The claims are for damages for personal injuries brought against the Foreign and Commonwealth Ofce (the FCO) (representing the British government) in respect of the torts (actionable wrongs) of assault and battery, and negligence.4

In some ways, this case is not dissimilar to others, both civil and criminal, that have preceded it. The arbiter and decider of evidence, expert opinion, and ultimate outcome is not an academic forum, at times comfortable with the sociological and historical probings that can lead as much to indeterminacy as determinacy, but rather a court that is bound by juridical procedure, and that bounds the scope of academic participation to the questions particular to the case and the legal system in which it is unfolding. The claimants case rests in large part on their legal teams facility and thorough-going knowledge of the historical evidence; this evidence is drawn from experts with years of archival work at their ngertips. Historical experts, however, must parse down facts and narrative complexity, and with it render the past under` standable vis-a-vis the positivist legal scrutiny of intentions and actions. In short, history is on trial, though the courtroom and its evidentiary gaze are, at once, in harmony and dissonance with the practices of many of its journeymen.5 That Pax Brittanica is now in the grips of pax juridic should scarcely come as a surprise, however. The process of redemptive justice, and with it the documentation and arbitration of historical trauma, has developed a momentum of its own over the last several decades. What is novel in this instance is the fact that the Mau Mau case, rooted as it is in historical claims over past imperial wrongs, is the rst of its kind in the British courtroom.6 Recent historical research provided the much-needed historical

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documentation to get the ball rolling in the British High Court. This work includes the simultaneous publication in 2005 of my book, Imperial Reckoning: The Untold Story of Britains Gulag in Kenya and David Andersons Histories of the Hanged: The Dirty War in Kenya and the End of Empire, and the recent completion of Huw Bennetts doctoral dissertation, British Army Counterinsurgency and the Use of Force in Kenya, 1952 56. When read together, these works provide both new documentation and oral testimonies, as well as a fresh re-examination of previously reviewed evidence to produce a chronicling of the systematic abuses and abrogations of justice meted out by the British colonial and military forces to Mau Mau suspects and detainees during the nal years of colonial rule in Kenya.7 While there had been murmurings of such a case for years in Kenya, it was revisionist scholarship that provided the evidence necessary to launch a claim.8 The London law rm of Leigh Day, with the support of the Kenya Human Rights Commission, is representing the Mau Mau claimants, who are seeking an apology and damages for the torture they suffered in detention between 1954 and 1959. Since the start of the case, Leigh Day has deftly marshalled historical forces on behalf of its claimants, forces that have grown as the case has unfolded. My role as an advisor for the claimants began in the spring of 2008. David Anderson and Huw Bennett later joined me in this role in late 2010 and early 2011, respectively. Individually, each of us brings a particular specialisation to the claimants and the court: Andersons work has focused on the capital cases and forest war; Bennetts on the role of the British military in the counter-insurgency operations during Mau Mau; and mine on the system of detention and villagisation, or the civilian side of the war. When taken together, this collective knowledge provides the full range of historical expertise necessary for the claimants case. In various ways, Anderson, Bennett, and I are both experts to, and subjects of, the case that has been unfolding in the High Court. With this in mind, I would like to offer a few reections on the role of the expert witnesses in this case, and the precedentsetting implications of the juridication of Britians imperial past. Before doing so, a brief background to the publication of Imperial Reckoning and Histories of the Hanged is necessary, as it provides important context to the current events both inside and outside the courtroom. The Publications of Imperial Reckoning and Histories of the Hanged I would suggest that the trial over British colonial atrocities during Mau Mau began not with the ling of the claim in the High Court in 2009, but with the publication of Imperial Reckoning and Histories of the Hanged four years earlier. The two books were often paired and reviewed jointly, with such reviews widespread in academic publications and broadsheets, alike. While a full ethnographic critique of these reviews is beyond the scope of this present reection, it is important to note that, in the context of the current trial, many reviewers deployed a variant of the legal positivist method of the courtroom, though in many instances without the same careful reading as the judge presiding over the Mau Mau case.9 In effect, by holding Imperial

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Reckoning and Histories of the Hanged side by side, many reviewers believed that (a) the books more or less covered the same historical landscape, (b) Andersons evidence was based more upon historical documents as opposed to oral testimony, and thus more reliable, and (c) the conclusions of Andersons work was more balanced, as it attributed rather evenly atrocity and excess on both sides of the war.10 I would like to comment briey on the similarities and differences between the two books. First, Anderson and I arrive at one relatively similar conclusion. That is, the Mau Mau war was a far more violent episode in Kenyas history than previously understood. Our main points of difference reside on the issue of scale and scope. This is due largely to two inter-related factors: source material and temporal focus. The originality of Andersons book is signicant by any standard, and resides primarily in his use of documents from over 800 capital cases during the Mau Mau Emergency.11 With few exceptions, these cases took place between 1953 and 1954. In addition, one of the greatest concentrations of these capital cases resulted from the Lari Massacrethe largest Mau Mau attack on loyalists, which took place in March 1953. Andersons narrative and analysis of this incident constitutes nearly 20 per cent of his book, which is understandable in light of the weight of his evidence. In addition, this analysis, and those of the other capital cases are, as Anderson points out, placed in their social and cultural setting as part of a chronological narrative of the Mau Mau war. In this larger picture, we see not just the detail of the lives of the executed men, but their relationships to those whom they fought againsttheir struggles with African loyalists, with colonial police, with white settlers and their militias, with the barristers who prosecuted them and defended them, and with the judges who ultimately presided over their fate.12 Imperial Reckonings focus is substantively different. Andersons book is concerned with what scholars of Mau Mau call the forest war, or military war, whereas my works primary concern is with the civilian war. Imperial Reckoning offers a rst, full account of the structures, institutions, and personnel that gave rise to system of detention camps and emergency villages during Mau Mau. The work describes the growth and colonial direction of systematic violence over time, and the impact that this policy had on the individuals who were held behind the wire. Only by detaining nearly the entire Kikuyu population of 1.5 million people and physically and psychologically atomizing its men, women, and children, I write, could colonial authority be restored and the civilizing mission reinstated.13 Operation Anvil in April 1954 is a key moment of hand-off between Histories of the Hanged and Imperial Reckoning. Scholars, including Anderson and myself, view Operation Anvil as the turning point in the wars military ghting. It is also the point at which the story of detention and villagisation largely takes over. Thus 1954 is an important year in the periodisation of the Mau Mau war. The focus of Imperial Reckoning is primarily on the Mau Mau war after 1954. Approximately two-thirds of the books narrative and analysis is located in the period from 1954 to 1960. These are the years in which the British colonial government directed its campaign predominantly against the civilian population (the remainder of the book is given over to pre-1954 contextualisation, and the evolution of forced removals and screening operations during this period).

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That Anderson and I differ on points of scale and scope, as well as the locations and perpetrators of violence, is understandable given the different foci of our research. The years prior to 1954 witnessed a war that unfolded largely outside of Britains control in the reserves, forests, and in Nairobi, something Anderson analyses well. After 1954, the British government contained nearly the entire Kikuyu population within different modes of connement, and attempted through various means to co-opt Kikuyu loyalists into the structures of detention to assist in its war against Mau Mau civilians. In effect, the civil war was brought into the system of detention, though on terms that began to differ from those prior to 1954. The relative success that the British government had in this strategy, and in limiting Mau Mau attacks, is indicated, in part, by the precipitous decline in new capital cases after 1954. As these cases are the basis of Andersons primary research, they dictate, in part, the temporal scope of his original analysis. Anderson and I go on to draw conclusions based upon our emphasis on different aspects of the war. Imperial Reckoning, for example, spends less than four pages analysing the Lari Massacre, as opposed to Andersons 70 pages. In contrast, Anderson spends 2 pages on villagisation and some 20 on the detention camps, whereas the bulk of my book is focused on these two aspects of the civilian war. In effect, I suggest that Anderson emphasises certain events like Lari, because of his source base, and that this emphasis does not necessarily balance the signicance of the pre-1954 events within the larger context of the war. Of the numerous reviews of Imperial Reckoning and Histories of the Hanged, few draw connections between the books uses of evidence and temporal emphases, and hence differing conclusions. Mahmood Mamdanis assessment is one exception, as he makes distinctions between the two books methodologies, as well as their connection to the signicant shifting nature of the civil war based upon Britains counterinsurgency tactics, which included the use of their time-honored divide-and-rule strategy.14 He also suggests that the books should be read as complements, because they cover different ground. In addition, Bernard Porter writes that the camps and emergency villages are where Elkins takes up the story; John Newsinger notes Anvil as the turning point, with the story of villagisation and detention camps to follow; and Ogot points out Andersons work as one on the forest war and mine as one on the civilian war.15 He goes on to add that her conclusion is that the assault against Mau Mau civilian populationorchestrated and executed by Governor Baring, with the approval of the Colonial Ofcewas far more signicant in scope and impact than the military campaign against the guerrillas. This is denitely a fair assessment.16 As in all cases, historical revisionism is received in a particular set of contemporary contexts, and the case of Mau Mau is no exception. In 2005, Britain was grappling with the implications of the ongoing war in Iraq, with parallels continually drawn in the press and scholarly publications between Britains imperial past and present; colonial ofcialsincluding Terence Gavaghan, the Ofcer-in-Charge of Rehabilitation in the Mwea Campswere contending with the continued implications of the BBC documentary, Kenya: White Terror; and the questions of claims on the independent Kenyan state and fears of Kikuyu ascendancy were given new life with the unfolding

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historical revisionism of Mau Mau. Within this context, it is understandable that the conclusions that Anderson draws in Histories of the Hanged have often times been received within the scholarly and public arenas as a more palatable revision of the Mau Mau and imperial pasts, despite the fact that his work only provided a partial account of the long duration of the Mau Mau war. At issue were also questions of my author positionality, methodology, and use of quantitative data. Implicit in much of this critique was a fetishisation of a Rankean approach to writing history. Yet, when examined carefully, such critiques largely fall short on their own termslet alone on the broader terms of a sociologicalhistorical approach to reconstructing the past. Let me explain. First, several reviewers, both explicitly and implicitly, suggest that I wrote Imperial Reckoning as kind of Exhibit A for the claimants. She demands reparations for [Mau Mau adherents], Pascal Imperato wrote in the African Studies Review, and later continues, Elkins attempts not so much to present truth supported by incontrovertible evidence, but rather to solicit broad public support for her crusade on behalf of Mau Mau adherents and sympathizers who were detained.17 To the extent that I believe all parties involved with Mau Mauor any other war, for that matterhave a right to seek restorative justice on their own terms, Imperato is correct. To suggest, however, that I somehow foreshortened the historical process because of a bias towards the future claimants in this case, or any other, is not only a distortion, but also does not square with the historical evidence (including archival evidence, which Imperato favours), or the timing of the case. For certain, rumours abounded about possible reparations for years, but this is quite different from the extensive legal process and investment required for a legitimate claim. The methodology of my work has also come under scrutiny. Objectivist reasoning the lifeblood of the legal processand the yardstick of choice for some reviewers, elided with the use of sources, to call into question the validity of Imperial Reckonings evidence. In effect, the suggestion is that if one impugns the oral testimonies of detention survivors in my workseveral hundred in allthen my argument and conclusions collapse into a ctive account of Mau Mau memories. Yet, to dismiss my argument based on either explicit or implicit objectivist reasoning it is necessary to place emphasis on the oral testimonies as opposed to written sources.18 That I rely primarily on oral testimonies, however, misrepresents my research structure, and the manner in which I construct the historical narrative. It would not have been possible to write Imperial Reckoning primarily using oral testimonies. Before examining detainee experiences, I had to understand the institutions and structures of colonial rule, particularly as they pertained to the proliferation of the detention camp Pipeline. I also had to reconstruct the logic of the Pipeline itself, that is, how and why detainees were being moved to different camps throughout the colony. Because of the fragmented nature of the remaining ofcial documentsa point to which I will later returnthis exercise required an integration of multiple written sources from a variety of archives in Britain and Kenya. Were one to go through my footnotes and compare the number referencing primary archival or written evidence versus those referencing oral testimonies, the comparison weighs towards my reliance on archival/written documentation. There are over 600

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footnotes citing non-oral primary evidence (i.e. archival documents, government reports, legislative debates, newspapers, and memoirs); less than 300 footnotes citing oral evidence (from all informants, African and European); and some 20 instances where non-oral and oral testimonies are cited together. There are also scores of archival documents that chronicle in discomforting detail the ongoing abuses in the detention camps and villages, documents that are now at the centre of the ongoing case in Londons High Court of Justice. Critical reviews of Imperial Reckoning missed this rather objective aspect of the books evidentiary scaffolding. The truth, as it were, of oral testimonies cannot be consecrated simply through the act of telling and recording. Instead, oral testimonies must form one part of a larger mosaic of evidence, with each evidentiary tile read against and with the others. Moreover, it is well-understood that oral testimonyparticularly the recollection of anguish and traumais not communicated in a way that can be reduced to a coherent narrative, and certainly not one that would afford the institutional and structural reconstruction of the system of detention during Mau Mau. Were oral histories the bedrock of historical reconstruction in the case of Imperial Reckoning, then the work would read more like the TRC evidence of individual, parochial testimonies and less like a narrative reconstruction of the entire system of Mau Mau detention. Indeed, one of the long-standing lacunae in the historiography on Mau Mau was not the complete lack of evidence of individual acts of brutality or suffering, but rather a coherent narrative structure in which to place and analyse them. It is this narrative structure, based on documentary evidence, that is crucial to the Mau Mau claimants allegations in the High Court, a point to which I shall return. The use of quantitative evidence in Imperial Reckoning has been the subject of much debate. I will address this in brief here, as a longer discussion of this topic is outside the scope of this piece. In short, the controversy over numbersboth the revision of detainee numbers and the scale of unaccounted for Kikuyuhas been a red herring for the larger issues at stake. The criticism for my use of quantitative data began with David Elstein and his rather strident letters, to The New York Review of Books and the London Review of Books. In one of his letters, Elstein wrote, Elkins disbelieves the ofcial gure of 12,000 Mau Mau deaths and 80,000 Mau Mau detainees in the seven-year Emergency. She suggests hundreds of thousands of Kikuyu died at British hands perhaps 300,000. She claims detainees numbered up to 320,000. She offers minimal evidence.19 It should be pointed out that Elstein is not a historian, but rather an independent television executive. He is also a long-standing advocate of Terence Gavaghan, the Ofcer-in-Charge of Rehabilitation in the Mwea Camps. Gavaghan was responsible for implementing systematised violence in several of the detention camps after 1957 ` vis-a-vis the dilution technique, and there are multiple sources, written and oral, which implicate him in grave acts of colonial brutality perpetrated against detainees.20 The point here is not that Elstein should not have intervened, but rather his own positionality and presentation and misrepresentation of my claims helped set into motion a maelstrom over the question of the quantication of moral enormity, among other things, that exceeded reasonable proportions and that distracted scholarly attention

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away from the revisionist issues at hand, including the systematisation of violence in Gavaghans Mwea Camps. Indeed, some academics seemed to take particular delight in jumping uncritically onto Elsteins bandwagon, jettisoning reexive criticism and stymieing reasonable academic debate.21 This is not to suggest that I have not taken these criticisms seriously. Rather I seek to process them in a sociological as opposed to an objectivist framework. Let us look briey at the two quantitative issues at hand. On the question of detention gures, I suggested that if one reconstructs and factors in the intake and release rates of detainees, then the daily average gure of some 80,000 detainees is inaccurate. The best possible range that I could deduce was an upward revision of somewhere between 160,000 and 320,000 detainees.22 Many critics doubted this assertion. However, in more recent work, John Lonsdale accepts new evidence pertaining to detention camps during Mau Mau, and he cites Andersons work. Lonsdale writes
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Many KikuyuAnderson thinks probably 150,000 in all, about 71,000 at the peak, in late 1954were also detained, on suspicion rather than on evidence, in a pipeline of wired-in work camps. Almost all were released by late 1958, after between three and ve years of detention and after confessing their Mau Mau oaths.23

Andersons conclusions about detention, however, are limited to a small portion of his book, and those that are included are partially derived from my work. In addition, Andersons 150,000 gure is offered unfootnotedthus implying fact to my upward revisionand his conclusions about the release rates and length of time in detention that Lonsdale cites are derived from my doctoral dissertation.24 In effect, Lonsdale validates my ndings, though fails to attribute them to me, despite the fact that he knew my work well as one of my dissertation supervisors, and as a co-editor of Mau Mau and Nationhood.25 The issue of unaccounted for Kikuyu is the one that has generated the most controversy, and with it a diversion from the deeper issues at hand. While there has been much written on this subject, I will turn briey to John Blackers demographic analysis, which concludes that 50,000 Kikuyu died as a result of the war, with children under the age of 10 comprising approximately half of that number.26 This work, primarily assisted with input from Anderson and Lonsdale, is now held uncritically by some to be the denitive statement on the topic. Yet Blacker, himself, acknowledges that there are signicant limitations to his work, noting that, Given the fragile nature of the data and assumptions, our estimates are subject to large margins of error, but at least give us an order of magnitude.27 These large margins for error are due to numerous factors in Blackers analysis, including his comparison of the 1969 and 1948 censuses, rather than the 1962 and 1948 censuses. This technique leads him to calculate weighted averages of mortality rates based upon unpublished data in his possession, and he notes how the implications of these gures for our purposes are fraught with uncertainties.28 Moreover, Blackers 50,000 gure pertains only to Central Province, and the calculation is furthered skewed by the fact that he cannot fully sort out boundary changes between censuses. Finally, Blackers analysis is based upon his premise that, Elkins believed that there was a short fall in the numbers of Kikuyu enumerated in the 1962 census of between

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130,00 and 300,000, most of which could be attributed to excess deathsi.e. deaths over and above those which would have occurred in times of normality (emphasis original).29 However, I state in the epilogue to Imperial Reckoning that, I believe the lower growth rate was likely due to two factors: actual deaths and a slower birthrate due to lower female fertility. This lower fertility would have been caused by such factors as malnourishment, disease, miscarriage, the absence of regular male partners, and the psychological stress resulting from war trauma. I go on to underscore the indeterminate nature of the numerical exercise: I would argue that at the very least it is safe to assume that the ofcial gure of some eleven thousand Mau Mau killed is implausible given all that has been uncovered. Of course, we will never know exactly how many Kikuyu died during the last years of British colonial rule in Kenya. But does that matter? The impact of the detention camps and villages goes well beyond statistics.30 Beneath the cloud hanging over disputed quantitative evidence are layers of contestations over the production and control of knowledge and, to varying degrees, whose work is more or less objective and therefore the truth based upon the evidence they have marshalled. Also at issue is claim-making to historical expertise among a group of revisionist historians, myself included. My gures have been put forward here, and they stand beside those of Blacker, as well as those of Anderson, who offers a revised, though unsubstantiated and unfootnoted, assessment that the real gure is likely to have been more than 20,000.31 The signicance and meaning of Andersons underestimation has yet to be explored. Disputes aside, what appears to have emerged is that we each come to the issue of Mau Mau revisionism with a particular knowledge set that has led us to conclusions that are, at once, compatible and at variance. Importantly, each of our different works, when taken together, have brought us much closer to a fuller understanding of the nature, scale, and scope of the Mau Mau war. For some time the hope, at least for me, has been that as a community of scholars we could engage in healthy and productive debate, as well as collaborative investigations and further revisionism. Since the joint publications of Imperial Reckoning and Histories of the Hanged, such an aspiration appeared far from the realm of possibility. That is, until the ling of the Mau Mau case. With the ve claimants bringing their case to Londons High Court, the academic trial over Mau Mau revisionism has stepped into the courtroom. The claimants expert witnessesmyself, Anderson, and Bennettare charged with marshalling our particular sets of historical knowledge to substantiate, collectively, the allegations of torture, systematised violence, and ofcial knowledge of these acts. In so doing, there is little room for bluster, much less academic ego. Positivist judicial procedure, though not of the ilk masquerading in revisionist critiques, has and will continue to shape our witness statements, the nature of the evidence that we set forth, and the scrutiny that it endures. The Mau Mau Case In the spring of 2008, I agreed to serve as an advisor to the law rm of Leigh Day in their capacity as legal representatives for the ve Mau Mau claimants in their case

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against the Foreign and Commonwealth Ofce (FCO). I was asked to provide expertise, based upon the evidence accumulated through my research for Imperial Reckoning, on the detention camp system; villagisation; screening; the nature and extent of abuses and torture in the detention camps, villages, and screening centres; the participation of British colonial and military personnel in the detention camps, villages, and screening centres, as well as their participation and/or knowledge of abuses and tortures in these sites. I was also asked to point to specic documents that substantiated these facets of my research, as well as those that, either individually or cumulatively, substantiated an assertion of systematised violence in the detention camps, villages, and screening centres, as well as the knowledge of such a system by the British government in London and/or their direct approval of such a system. In April 2011, the FCO attempted to have the claimants case struck out, and a summary judgement entered in its favour, in advance of a full trial, on the basis that the contemporary British government does not bear legal responsibility for incidents that occurred in Kenya during the 1950s. In response, the claimants argued that
[The] British government are at least arguably liable to them for their injuries on ve different legal bases. First, they say that the liabilities of the old Colonial Government (which ceased to exist in 1963) devolved upon the UK Government on independence, under the common law incorporating general principles of public international law. Secondly and thirdly, it is said that the UK Government was and is directly liable to the claimants for having instigated and procured, through (a) the Army and (b) the Colonial Ofce, a system of torture and ill-treatment of detainees as part of a common design shared with the Colonial Government in Kenya. Fourthly, the claimants argue that in July 1957 the British government expressly instructed, authorised or approved a policy of mistreatment of detainees, as shown by a series of exchanges between the Governor of the colony and the Colonial Ofce in London . . . Fifthly, it is said that the UK Government, as paramount colonial power, owed a duty of care in law to the claimants to prevent abuses, which it knew were being committed and which it had the power to prevent; it is alleged that the UK Government is liable to the claimants for breach of that duty.32

In preparation for the April 2011 hearing, I produced two witness statements, the rst of which was led in February 2011. I was charged by the court to prepare a statement to explain the documentary material served with my statement that related to the following issues:
a. (i) the alleged abuses in the detention camps/prisons/screening centers during the Kenya Emergency; (ii) the Colonial Administrations role during the Kenya Emergency and the extent of their knowledge of and participation in the abuses in the detention camps/ prisons/screening centers; (iii) the Colonial Ofces role during the Kenya Emergency and the extent of their knowledge of and participation in the abuses in the detention camps/prisons/ screening centers; (iv) the British Armys role during the Kenya Emergency and the extent of their knowledge of and participation in the abuses in the detention camps/prisons/ screening centers;

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b. to identify, the extent to which archival material exists in addition to the specic documents specically referred to in this statement; c. to identify, where possible, the extent to which witness evidence survives which would address items a) i, ii, iii, and iv, above; d. to identify, where possible, the extent of, and reasons for, document destruction and/or removal prior to independence by the British Colonial Government; e. to identify, where possible, the extent to which individual records of detention survive; and f. to explain the nature of my historical research and what new evidence emerged as a result.33

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My February 2011 witness statement was, in effect, a trimmed-down version of Imperial Reckoning, devoid of indeterminacy, technical in its reference to archival documentation throughout, and such as it is possible, devoid of interpretation. The nature of the evidence that I was to produce for the court was the topic of some debate in October 2010, the outcome of which would govern the nature of my work through legal limitations. These same limitations would also apply to Anderson and Bennett once they comprised the tripartite team of historical experts. In effect, our roles as historical experts aligned with the conventions of our profession insofar as it was based upon the identication of sources, though it also deviated from our conventions insofar as we were to provide no analysis or interpretation. Rather it would be up to the court to decide the relevance of the documentation to the case at hand. As this circumscription of the historians role is of great relevance to understanding how I have gone about my tasks of producing witness statements and how the court has utilised these statements, it is worthwhile to quote from Justice McCombe:
Tugendhat J dealt with the position of evidence which the claimants wish to call. That was the evidence of Professor Elkins. She had written one of the seminal texts in 2005. He accepted that her evidence was relevant in identifying documents or other material, but should not be admitted as expert evidence (that is evidence of opinion) as to what was to be inferred from those documents taken as a whole. Because of her familiarity with documents, she is thus able to identify documents which are likely to be of greatest interest in the arguments of the respective parties. She has a greater facility for this than do the parties themselves because of her great experience gained over some ten years of looking through archives in the course of which she researched a text in which she has interest. Plainly she makes efcient the process of identifying documents and material. . .34

To produce my witness statement, I relied upon the some 600 footnotes of archival evidence contained in Imperial Reckoning, together with multiple other documents accumulated during my ten years of research for the book. The witness statement contained no transcripts from oral interviews. It included a chronology of the Kenya Emergency as well as detailed descriptions of the structure of the detention system (holding camps, works camps, special detention camps, exile camps, chiefs camps, and women & juvenile camps); screening; rehabilitation; confession and interrogation; forced labour; the dilution technique and the Mwea Camps; the Cowan Plan; the Colonial Ofce and its administrative system; the Kenya Administration; and the

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British Army. Extensive detail and references to the documentary evidence contained primarily in the National Archives, the Kenya National Archives, the Rhodes House Library, and Imani House (Nairobi) that pertained to the charges of the court were proffered. This evidence was organised chronologically. It began with the complaints of Canon Bewes in February 1953, and ended with Colonial Secretary Macleods decision in November 1959 to draw a veil over the past.35 The purpose of this approach was to demonstrate through the narrative of the witness statement the institutional structures and practices of detention, the mounting allegations of abuses and deaths, the knowledge of colonial ofcials of these instances of torture and death, the systematisation of colonial violence over time, and the efforts on the part of the colonial government in Nairobi and London to cover up abuses and sidestep any independent investigations. I was also charged by the court to identify, where possible, the extent of, and reasons for, document destruction and/or removal prior to independence by the British Colonial Government. I detail in my witness statement observations of archival gaps similar to that which I put forward in Imperial Reckoning. Missing from the archives in Kenya were, among other les, the Police Department and Special Branch les relating to interrogations and/or screening; District and Provincial Commissioner les and, with them, material related to villagisation; and individual detainee les. Of course, thousands of documents remain in the ofcial archives in London and Nairobi, many of which pertain to the more mundane practices of the camps, including their bureaucratic structures and functions. This evidence, as I have indicated, is not unimportant as it is crucial to the reconstruction of the system of detention. As for the more sensitive documents, while many had clearly been removed or destroyed, I note in Imperial Reckoning that even the most assiduous purges, however, often fail to clean up all of the incriminating evidence.36 This evidence that escaped the purgesincluding hundreds of letters written by detainees at the time of the emergency chronicling in detail the abuses and deprivations in the camps; colonial ofcials acknowledgement and cover-up of forced labour in the detention camps; the ofcial sanctioning of the dilution technique in the Mwea Camps in spite of the colonial governments knowledge that the practice resulted in detainee abuse and death; and the creation of legal mechanisms to enable the use of force in the campswas submitted with my witness statement. The production of evidence in the Mau Mau case has proven a two-way street. The Hanslope Disclosureor the FCOs production of some 300 boxes of documents containing some 1,500 les removed from Kenya at the time of Britains decolonisation in 1963 and eventually held at Hanslope Parkwas a direct consequence of the legal proceedings taking place in the High Court. Also a result of this legal process was the FCOs disclosure that it holds 9,500 les from 36 other former British colonies. In the instance of Kenya, multiple efforts to retrieve these les have been waged since the time of Kenyan independence. The Kenyan government asked that the les be returned in 1967, 1974, and again in the early 1980s; in each instance, the British government refused the request. Today, the FCO is still searching for the 13 boxes of top-secret les relating to the Mau Mau Emergency.37

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As expert witnesses in the ongoing Mau Mau case, Anderson, Bennett, and I have privileged access to the Hanslope Disclosures. We were afforded little time between the FCOs slow release of the documents (the FCO and then its legal team rst reviewed the les before forwarding them on) and the start of the strike-out hearings on 4 April 2011. Nonetheless, we each submitted a second witness statement based upon our cursory review of the les, noting that it would take considerable time to review methodically and with care the contents of the Hanslope Disclosure. In addition to my initial commentary on the Hanslope Disclosure, I was also asked, as were Anderson and Bennett, to review and rebut with archival evidence the witness statement of Mr Edward Inglett, the FCOs expert on the historical evidence in the case, as well as the Defendants Skeleton Argument. Each instance required, again, that I marshall archival evidence; this was particularly the case in the section of my statement that chronicles, with supporting documentation, the historical inaccuracies in the Defendants Skeleton Argument. These inaccuracies pertained particularly to the practice of screening, the participation of the British Army in screening and interrogation, investigations into allegations of abuse and torture during the period of the Mau Mau Emergency, the British governments attempts to curb discipline, the dilution technique, and villagisation. In each case of historical rebuttal, my task was not to overload the court with narrative, but rather to provide the historical facts supported by the relevant archival documentation. In July 2011, Justice McCombe issued his judgement on the FCOs strike-out motion. His decision was clear: the claimants have arguable cases, t for trial on four of the ve grounds put forward, the exception being the issue of liability passing from Nairobi to London on independence. His ruling has moved the case forward to another round of hearings in early 2012, this time on the British Governments attempt to strike out the case on the basis of statute of limitations. As a historic document unto itself, Justice McCombes Approved Judgment, mediated as it is through legal positivism, offers historians a number of signicant insights into my role and that of Anderson and Bennett in the juridication of Britians imperial past in Kenya. First, McCombe comments in various parts of his judgement on the extent of the documentation at hand, nearly all of which was accumulated prior to the Hanslope Disclosure. McCombe writes, There is ample evidence even in the few papers that I have seen suggesting that there may have been systematic torture of detainees during the emergency. He notes elsewhere, The materials evidencing the continuing abuses in detention camps in subsequent years [195455] are substantial, as is the evidence of the knowledge of both governments that they were happening and of the failure to take effective action to stop them. And, he further states, At this stage of the proceedings it seems to me that there is a substantial body of evidence suggesting that both governments well knew that those in charge of the camps and/or those under their command were not t and proper persons to be given custody of prisoners.38 McCombe also quotes at length from the witness statements of all three historical experts. In so doing, he spotlights the areas in which we each have specialisation and facility with archival sources. While our scope as professional historians has been limited by legal procedure, the courtroom provides little space in which to

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hide. Ambiguity has no place in the High Court of Justice, and historical sleights of hands are rendered difcult, if not impossible. This arena has thus brought together three revisionist historians of Mau Mau, each with a particular roadmap through the archives based upon years of research on specic facets of the Mau Mau Emergency. In effect, the courtroom has succeeded in what academic forums have largely failed to achieve over the last six years. That is, it has identied, through positivist juridical procedure, the specic archival expertise of each historian. Equally as noteworthy is the fact that, through a particular set of circumscribed processes, revisionist historians are deploying their complementary knowledge sets for a collective purpose. While this is still a distant second to productive historical debate, it is a start. Conclusion
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Going forward, Anderson, Bennett, and I will each produce a third witness statement, this one addressing more fully the contents of the Hanslope Disclosure. There are currently teams at both Oxford and Harvard assisting us in the review of this massive and relatively disorganised set of newly released les. Unquestionably, the Hanslope Disclosure is of great signicance to this case, as well as to the future work of historians not only on Kenya, but insofar as the FCO releases the full set of some 9,500 les from 36 other former British colonies, including Malaya and Cyprus, on the former British Empire writ large. In the case of Kenya, the Hanslope Disclosures, in my opinion, will not fundamentally alter what we already know: Kenya was the site of systematic torture and violence, perpetrated at the hands of British colonial and military agents, with the knowledge and support of individuals at the highest levels of colonial governance. What they have, and will offer, is a signicant amount of archival evidence that offers, among other things, (1) further, voluminous documentation and details on British colonial brutality, including acts perpetrated in connection with screening and detention; (2) much more evidence on the question of colonial decision-making and responsibility for British actions in Kenya during Mau Mau; (3) further evidence on who precisely was perpetrating acts of violence; (4) the extent of the knowledge of acts of brutality at the highest levels of British colonial governance; and (5) considerable evidence on the legal denitions and manoeuvrings around the question of illegal uses of force in Kenya, and the actions undertaken by British ofcials from the lowest to the highest ranks, to inquiries into the acts of British colonial violence in Kenya. Importantly for the ve claimants, and for observers of the case and the events surrounding the Hanslope Disclosure, the newly released evidence can be richly understood and processed because there existed, prior to the Hanslope Disclosure, a body of revisionist history that had articulated the institutions and structures of detention and the systematised violence that evolved over the course of the war within the detention systems (Elkins); the scope and function of Kenyas Emergency legal system, particularly in the realm of capital cases that led to the hangings of over 1,000 Mau Mau suspects (Anderson); and the command, organisational, and operations structures of the British military in relationship to the various facetsboth military and civilianof

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Britains counter-insurgency campaign in Kenya (Bennett). In effect, because of the historiographical shifts which have punctuated the Mau Mau eld over the last decade, historiansand with them, the courtcan move beyond impressionistic understandings of the new evidence as it can be read and processed within the context of the British colonial and military institutions, structures, and operational organisations, as well as alongside the evidence of British colonial and military abuse that already exists in the public domain. For historians of the British Empire, the Hanslope Disclosure signals a crucial moment in the production of archival evidence. Once released, even in part, these les will undoubtedly prompt a considerable re-evaluation of British colonial violence at the end of empire. Historians will be confronted with questions as to whether systematised violence and ofcial cover-up were hallmarks of imperial retreat. And, if so, whether or not previous historical probings, and positionalities, afforded the analytical and intellectual space to process publically available documents in a manner similar to that which the Kenyan revisionists deployed prior to the Hanslope Disclosure. Indeed, the historical exercises currently taking place in the High Court arenaparticularly with regard to the Hanslope Disclosurecan be of value to future research on colonial violence and the end of empire in other British colonies insofar as they demonstrate the necessity for making sense of the institutions, structures, operational and administrative organisations, and legal systems that formed the backbone of counter-insurgency operations at the time of decolonisation. Without this knowledge of how end of empire structured itself and functioned on the ground, evidence of colonial violencewhether from the Hanslope Disclosure or elsewherecannot be understood and thus lends itself to anecdotal analysis. Emerging from Justice McCombes courtroom is also a cautionary tale. The contents of the McCombes recent judgement substantiate the existence of signicant archival evidence, identied by the team of specialised revisionist historians (Elkins, Anderson, and Bennett), prior to the Hanslope Disclosure.39 Moreover, the Hanslope Disclosure itself further validates the ndings of revisionist Mau Mau historians and, together with McCombes judgementframed in positivist legal conventioncall into question the reception of Mau Mau revisionism, and in particular, the positionality, motives, and evidentiary logic of its critics, so often framed either explicitly or implicitly in objectivist terms. With the shift of the Mau Mau trial into the courtroom, the maelstrom of revisionist controversy and the misrepresentations and historical slights of hand that underwrite much of it, particularly in relationship to Imperial Reckoning, should give us pause as we seek to utilise the Hanslope Disclosure and McCombes precedent-setting ndings to push the end of empire eld, and with it our understanding of colonial violence, in new directions.

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Notes
[1] Comaroff, Reections on the Rise of Legal Theology. I have also benetted enormously from various conversations with John and Jean Comaroff regarding issues of lawfare, history, and the ongoing Mau Mau court case in the High Court of Justice in London. I am indebted here to

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their discussions of restorative justice in their forthcoming book, Theory from the South, particularly chapter 6, History on Trial: Memory, Evidence, and the Forensic Production of the Past. Paxton, Vichy France; Marrus and Paxton, Vichy France and the Jews. Comaroff and Comaroff, Theory from the South, Chapter 6. See also Harries thoughtful piece, From Public History to Private Enterprise. McCombe, Summary of Judgment. Again, I am indebted to Comaroff and Comaroff for their reections of history on trial, particularly as contained in their forthcoming work, Theory from the South. Justice McCombe recently underscored this point when he wrote, It will readily be appreciated that this is novel type of clam on which there is not direct precedent to determine the matter in a court of rst instance. McCombe, Summary of Judgment. Elkins, Imperial Reckoning; Anderson, Histories of the Hanged; Bennett, British Army. See, for example, the remarks of Dan Leader of Leigh Day and George Morara of the Kenya Human Rights Commission in Strong Evidence, Harvard Gazette, 3 Aug. 2011. Wilson, Politics of Truth, 59, as cited in Comaroff and Comaroff, Chapter 6. Anderson, Histories of the Hanged, 2. See, for example, Andersons description of his use of capital case records, Histories of the Hanged, 6 8. Anderson, Histories of the Hanged, 8. Elkins, Imperial Reckoning, xv. For references to systemised violence, see, for example, Imperial Reckoning, 324, 328, 329, 339, 349, 352. Mamdani, Colonial Legacies. Porter, How Did They Get Away with It?, 4; Newsinger, English Atrocities, 15657; Ogot, Britains Gulag, 494, 499. Ogot, Britains Gulag, 499. Imperato, Differing Perspectives, 147. See, for example, Lewis, Nasty, Brutish; Carruthers, Being Beastly; Ogot, Britains Gulag. Elstein, The End of Mau Mau. See also, Elstein, Tell Me Where Im Wrong. Elstein has also published a variety of other critiques, including those in The Guardian and on Open Democracy. Elkins, Imperial Reckoning, 318 31; BBC Documentary, Kenya: White Terror, aired in Britain 17 Nov. 2002; and Hanslope Disclosure (HD), File AA 57A, Vol. V. For example, Murphy in his Book Review of Histories of the Hanged and Britains Gulag, 427; Lewis, Nasty, Brutish, 220, fn 27. Elkins, Imperial Reckoning, xiii, 430. Lonsdale, Britannias Mau Mau, 270. See Anderson, Histories of the Hanged, 314, 384, fn. 51. Note that these ndings were included in my dissertation, as cited by Anderson. They were also published variously prior to Imperial Reckoning including in my contribution to Mau Mau and Nationhood. See Elkins, Detention, Rehabilitation. For the mention of the 150,000 gure, see Anderson, Histories of the Hanged, 5. For my contribution to this volume, Elkins, Detention, Rehabilitation. For a co-authored work, see Elkins and Lonsdale, Memories of Mau Mau. Blacker, Demography of Mau Mau. Blacker, Demography of Mau Mau, 205. Blacker, Demography of Mau Mau, 224. Blacker, Demography of Mau Mau, 209 10. Elkins, Imperial Reckoning, 366. Anderson, Histories of the Hanged, 2. McCombe, Summary of Judgment. Witness Statement of Caroline Macy Elkins (20 Feb. 2011). McCombe, Approved Judgment, 45.

[2] [3] [4] [5] [6]

[7] [8]

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[9] [10] [11] [12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24]

[25] [26] [27] [28] [29] [30] [31] [32] [33]

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[34] McCombe, Approved Judgment. [35] TNA, CO 822/471/5, Canon T.F.C. Bewes, African Secretary of the CMS on his special mission to the Mau Mau area of Kenya, 9 Feb. 1953; TNA, CO 822/471/7, cable from Granville Roberts to Potter, 10 Feb. 1953; and TNA, CO 822/1230, Macleod to Renison, 10 Nov. 1959. [36] Elkins, Imperial Reckoning, xiii. [37] See http://services.parliament.uk/hansard/Lords/bydate/20110811/writtenanswers/part102.html. [38] McCombe, Approved Judgment. [39] There was signicant media coverage around the April 2011 proceedings in the High Court of Justice and the Hanslope Disclosure. The media, while to be applauded in its coverage of these events, often failed to recognise the signicance of the previously identied archival evidence before the court (indeed, without it there likely would not have been a case, and with it the Hanslope Disclosure). This is the case in instances of media coverage around the Mwea Camps and the dilution technique, the uses of forced labour in the camps, and ofcial efforts at cover-up. Nor were many journalists able to distinguish newly released les from les previously in the public domain. See, for example, Ben MacIntyres extensive coverage in The Times.

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Marrus, Michael R., and Robert O. Paxton. Vichy France and the Jews. New York: Basic Books, 1981. McCombe, Hon. Mr Justice. Ndiku Mutua and 4 Others and the Foreign and Commonwealth Ofce: Approved Judgment, Case No: HQ09X02666. London: Royal Court of Justice, 2011. McCombe, Hon. Mr Justice. Ndiku Mutua and 4 Others and the Foreign and Commonwealth Ofce: Summary Judgment, Case No: HQ09X02666. London: Royal Court of Justice, 2011. Murphy, Philip. Book Review of Histories of the Hanged and Britains Gulag. History 91, no. 303 (2006): 427 28. Newsinger, John. English Atrocities. New Left Review 32 (2005): 15657. Ogot, Bethwell A. Britains Gulag. Journal of African History 46, no. 3 (2005): 493505. Paxton, Robert O. Vichy France: Old Guard and New Order, 194044. New York: Columbia University Press, 1985 [1972]. Porter, Bernard. How did they get away with it?. London Review of Books, 3 March 2005. Wilson, Richard. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-apartheid State. Cambridge: Cambridge University Press, 2001.

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