Time to pay for Colonial sins

'A number of Europeans have sued in the past; you look at the Jews suing the Nazis and the families of Lockerbie bombing victims suing Libya.
'It is a matter of morality and it boggles the mind why Africans have not seriously pursued reparations.
'Some argue that the financial assistance given to Africa is some form of reparations for centuries of looting and inhuman treatment, but that is not the case.
 'Besides that aid comes with so many conditionalities that it is a crime in itself.'
Southern Times

By Farirai Machivenyika and Tichaona Zindoga
The decision by a British court to allow four former Mau Mau fighters to sue the UK for atrocities committed by colonial soldiers in Kenya provides an avenue for Africans to claim damages for crimes against humanity perpetrated by imperial powers.

Wambugu Wa Nyingi, Paulo Muoka Nzili, Ndiku Mutwiwa Mutua and Jane Muthoni, who are in their 80s, have been battling since 2009 to get the British courts to hear their suit.

They allege brutal treatment in detention camps, including castration and sexual assault, at the hands of British colonial agents.

Some detainees interned during the 1952-1961 Mau Mau uprising in Kenya were murdered, forced into labour, starved and subjected to violence.

Among those allegedly abused was US President Barack Obama's grandfather.

The British Foreign and Commonwealth Office had argued that the responsibility for restitution devolved to the government of independent Kenya, which would be like claiming the current government of Germany is responsible for torture of Jews in Nazi-era concentration camps.

While it is a small step for Kenya, it is potentially a huge one for the rest of the continent as the Mau Mau case could set a precedent for countries brutalized by imperial powers.

Virtually no country was spared the terrors of colonialism.

In Southern Africa, Namibia, Zimbabwe, Mozambique and the DRC particularly suffered under colonial rule, and the massacres of black Africans numbering more than 100 000 could be cited as an example of genocide and crimes against humanity in European and/or international courts.

Window of opportunityA prominent lawyer in Harare, Terrence Hussein, said the Mau Mau case provided window of opportunity.

He told The Southern Times: 'I had an opportunity to see the papers in that case and it was whether or not the Mau Mau had the right to sue the British government.

'The decision was that they had the right to sue; they have an arguable case. The matter can now go to trial.

'This sets a precedent and anyone who has a claim against the British government. I will give you a contemporary example: the residents of Tripoli can sue the British government and its allies for bombing civilians using a United Nations resolution that entails the protection of civilians.'

Western forces under Nato invaded Libya on March 19, 2011 ostensibly to protect civilians from Colonel Muammar Gaddafi as spelt out in UN Security Council Resolution 1973.

But they have been bombing civilians and civilian infrastructure. Hussein said suits could be brought in classes or individually.

As in the Mau Mau case, he observed, it was cheaper to do bring class action suits where people sue as groups.
He said the British government could no longer dodge responsibility for its colonial actions.

In Zimbabwe's case, Hussein noted, Prince Charles himself pulled down the colonial flag in Harare and demonstrated British responsibility for colonialism – though the UK might try and dodge lawsuits from that country by trying to pin the blame on Ian Smith.

Time is essential
But there are some dangers.

'Time is essential,' said Hussein, 'you must find people who were affected. It was one of the reasons why the Mau Mau case was done quickly because most of the survivors are old.'

One of the applicants died before the ruling that they could sue the British government.

Hussein said victims of colonial brutality could go the Mau Mau way, noting it might be difficult for African governments to sue as they were not personally involved at the time and were not yet legally constituted.

However, in Zimbabwe's case – for example – he said the government could sue for the illegal European Union and US sanctions on the country.

The government could take the issue up in the British courts or to the International Criminal Court at The Hague, advised the lawyer.

Former Zimbabwe Attorney-General Sobusa Gula-Ndebele said it was within Africa's rights to sue for colonial wrongs.

'I remember when I was at the AG's Office we were trying a suit against Britain, specifically on the issue of land,' he said.

He said they had been emboldened by a case in Canada in which indigenous Americans successfully sued the American government.

The US – like settler Australians – attempted to wipe out indigenous peoples in some of the worst acts of genocide ever committed.

'There is a possibility; it can be done and those who were detained during colonialism can sue in British courts,' Gula-Ndebele emphasized.

He said Attorneys-General, as governments' chief lawyers and advisors, were critical to the whole matter.
A political commentator at the Harare Polytechnic, Brighton Nkala, agreed that the Kenyan case had set a precedent for former colonies.

'A number of Europeans have sued in the past; you look at the Jews suing the Nazis and the families of Lockerbie bombing victims suing Libya.

'It is a matter of morality and it boggles the mind why Africans have not seriously pursued reparations.

'Some argue that the financial assistance given to Africa is some form of reparations for centuries of looting and inhuman treatment, but that is not the case. 'Besides that aid comes with so many conditionalities that it is a crime in itself.'

Zimbabwe's Deputy Minister of Public Works, Aguy Georgias, has sued Britain over the imposition of illegal sanctions and early this month President Robert Mugabe urged other patriotic Zimbabweans to do likewise.

Georgias believes that such cases will expose Western hypocrisy and make rich countries accountable for their actions.

The evidenceThe UK Foreign and Commonwealth Office admitted to holding 1 500 colonial files on Kenya that it previously claimed were lost.

These files could expose Britain as they are believed to contain evidence of 'the burning alive of detainees'.

Martin Day, head of the legal team representing the four Mau Mau atrocity survivors, recently said: 'The paper trail went all the way up to the colonial secretary here in the UK.'

The papers were removed from Kenya's national archive in the run-up to independence.

A colonial office memo at the time said their contents 'might embarrass HMG (Her Majesty's government), might embarrass members of the police, military forces, public servants or others'.

In Namibia, German colonial forces massacred two-thirds of the Herero population between 1904 and 1907.

A group of Herero's have for three years tried to claim US$4 billion in damages in US courts for the annihilation of as many as 60 000 of their kinsfolk.

The Namibian government however, has appeared reluctant to lend support to their cause.

In Zimbabwe, 10 000 people were killed by colonial agents and dumped in mine shafts in the Mt Darwin area between 1972 and 1979, in addition to the massacres of women and children at refugee camps.

In South Africa, workers who suffered in apartheid era mines could potentially claim up to US$100 billion from companies that treated them inhumanely.

There are numerous examples of British, Portuguese, German, Belgian and apartheid atrocities across Africa.

Legal precedents
Since 1945, Jews have successfully claimed millions of dollars in reparations from Nazi criminals.

As it was simply put by Mburumba Kerina, a Herero activist, a few years ago: 'The concerns of the Hereros must be seen in the same light as that of the Jewish people.'

 Africa can also draw on the example of Italy which in 2008 'voluntarily' paid Libya compensation of US$5 billion for its 30-year colonial rule.

Germany paid reparations to European nations for World War I and Japan did the same for its sins to South Korea in World War II.
All this is based on sound principles of international law.

On July 29, 1899 The Hague Convention on the Laws and Customs of War by Land was signed and took effect on September 4, 1900.

It regulates warfare and contains several provisions that were openly violated throughout the colonial era.

Article 4 says 'prisoners of war in the power of the hostile government . . . must be honorably treated', while Article 7 adds that 'the government into whose hands prisoners of war have fallen is bound to maintain them'.

Article 23 goes on to say 'it is especially prohibited to kill or wound treacherously individuals belonging to the hostile nation or army; to declare that no quarter will be given; to destroy or seize the enemies property, unless such destruction or seizure be imperatively demanded by the necessity of war'.

Article 46 reinforces it all by stating that 'family honours and rights, individual lives and private property . . . must be respected'. This was buttressed by the Nuremburg trials of Nazis and the Mau Mau case only adds to the precedents that Africa can draw from.

Sidney Harring, in an article for the West Virginia Law Review in 2002 ('German reparations to the Herero Nation: An Assertion of Herero Nationhood in the Path of Namibian Development?) summed it up thus; 'The concept of reparations is rooted in natural law, the common law, and international law; it is an equitable principle that the beneficiary of an ill-gotten gain should make restitution, both as an act of contrition and good will, but also simply to restore the victim to some part of their previous life.'