Saturday, April 9, 2011

UK Denies Responsibility for Torture of Mau Mau

The hearing of a case filed by four Mau Mau veterans who waited 50 years for their day in court have commenced in London. The claim by the veterans is that the UK governmnet is responsible for torture they suffered at the hands of the colonial administration. The UK government opened by denying responsiblity, claiming that the UK government was separate from the colonial administration in Kenya which functioned as an autonomous entity. For this reason, the UK government cannot bear responsility for atrocities suffered. Without getting into the merits, the UK argument does not square with the ide of 'Empire': that all foreign possesions were part of the British Empire with London exercising varying degrees of control on the overseas territories. The case may turn on whether sufficient link is established between the two in a manner that infers responsibility for the UK government.

Although it is not clear whether this will feature in arguments, this case raises an interesting question relating to the law of state responsibility. Can governments that take over after the end of colonial rule be hel legally, and morally responsibile for the departed colonial administration?

Two theories are applicable. First, that of universal succession, in terms of which post colonial government inherits all obligations incurred by the departing power. If this were to apply to the instant case, then Kenya is liable to pay compensation to the Mau Mau veterans. The second theory is the 'clean slate' (tabula rasa) approach. This approach holds that the new governmnt starts afresh, and cannot be held liable for the conduct of the departing colonial government. This is most gavoured by newly independent states for obvious reasons. This approach was favoured by Nile basin states that rejected the Nile Water Agreement of 1929, granting Egypt the lion's share of the Nile waters. The Nile Agreement has been replaced with a multilateral one, Nile Treaty of 2010.

On the Mau Mau case, see here