Is Mau Mau compensation lawsuit worth the trouble?

The so-called, Mau Mau compensation lawsuit” had led a ghost-like existence since at least 1999 in the Kenyan and international press, now and then re-materialising like a ghost-light over the large and bleak swamps of history that hold the bones and the rotten flesh of tens of thousands of victims on both sides of what was known as Manjeneti (the “Emergency”).

Usually, folklore has it that ghosts and ancestral presences grow weaker and weaker with time, until their sway and spell over the living has faded.

This one, however, has become an exception from the rule: on June 23rd, the well-publicised English law firm of Leigh Day & Co (first famous for Kenyan compensation cases of true British explosives’ victims, then notorious for often false British soldiers’ rape victims) will bring their claim to the United Kingdom, to the Royal Courts of Justice (still widely known as High Court).

The team leader of this case, barrister Daniel Leader, has an extensive experience of human rights activities and legal prowess. But the case goes far beyond a mere legal request for compensation.

It has been the practice of Leigh Day to go for settlement over contentious adjudication in previous comparable lawsuits, and this no doubt will be the primary aim here too.

But legal observers expect the monetary side to be only one of the aims that this lawsuit carries. The plaintiffs, mostly in their 70s and 80s now, have been disappointed and silenced for a long time.

One thus may rightly concede these wazees that the hope for “quick riches” is not their motivation here, unlike the spurious rape cases which had severely damaged not only the reputation of the law firm and of its senior partner Martyn Day, who was accused of having become unduly gullible and increasingly reality-blind, but which by association had also greatly hurt the standing and credibility of the many bona fide victims of rape and sexual violence in Kenya.

No, what is maybe more important for the plaintiffs and their local supporters (notably the Kenya Human Rights Commission( KHRC) , whose executive director Muthoni Wanyeki inherited this case from her predecessors when she took office), are other aspects.

Moral aspect
There is the strong moral aspect of a formal recognition and apology for the misdeeds and human rights violations of the colonial powers and their African loyalists.

This may not be easily appreciable for the sober African historian who will contend that present mainstream scholarship has by now fully recognised the civil war character of the emergency, and the brutal human rights violations on both sides, which we now see one by one repeated in the deadly spiral of terror and counter-terror by Mungiki and vigilantes.

But what is true for academic scholarship, is not true for Kenyan public perception, press and popularised lore; Tuf Mulokwa’s excellent graphic novel “Komerera, the runaway bride” from 2001 remains almost the only attempt to pictorialise and to soberly render the moral complexity of these bitter times.

His modest yet differentiated comic book still stands head and shoulder above many present writings.

Rough times
In contrast, only a few of the contemporary witnesses have withstood the temptation to glorify their deeds and especially their misdeeds, and have instead striven to relate their history as it really was; notable for their honesty are on the rebels’ side Eliah Kinyua Ng’ang’a (General Bahati) in his memoirs “A Walk in the Fire” as rendered by Dunstan Magu Ngumo, and Kassam Gicimu Njogu, rendered by Peter Thatiah; and David Lovatt Smith on the government and white side.

The African loyalists, however, and the many wananchi-torn and shredded between the milling stones, have not yet had their voice and their remembrance asked for and heard.

A single and solitary radiant laughter on the first gallery of the National Archives, the photo of a courageous young woman fighter of a loyalist “pseudo gang” smiling at the photographer, focuses and captivates the spirit of the anti-rebel fighters and she challenges historians to open the eyes and to accept the fullness of history .

Another aspect is a procedural one.

Though the lawyers can hardly hope to get their claims through the courts, one main first step for them would be to impugn the existing statute of limitations, lest the suit be dismissed .

About the only viable way to do so, would be to demonstrate that the many and often atrocious injustices and injuries suffered, were not simply “rough means in rough times” as only a few surviving myopic colonial apologists might still hold, but could constitute “crimes against humanity” in the modern legal sense. Such a procedural recognition would doubtlessly already be considered an important triumph.

Yet what Kenya needs, is not historical window-dressing nor legal tourism; but historical understanding.

This lawsuit, as it is presented and intended, does nothing to further and to promote such understanding, nor to support and encourage the — often painful and soul-searching —query for the truth that could set us free.

It is, as it is done now, the very opposite of “transitional justice.

Whatever its outcome will be, it will have squandered immense financial resources, in a blatant attempt to falsify and forge history.

But the time for hypocrisy is over: the victims of the emergency on either side, both the dead and the surviving, deserve better.

Because, as Muthoni Wanyeki wrote: “our past can still kill us”.

And it will continue to do so, until such sham lawsuits finally yield the place for the recognition of historical truth.

Mr Eichener is a Germany-based lawyer with roots in Kenya.