by Courtenay Francis Raymond Barnett
The Kenyan case
In June 2013 Her Majesty’s Government was required to pay 19.9 million pounds in compensation to some 5,000 elderly Kenyans who were tortured and abused during the Mau Mau ( an English bastardised name for “ muingi” or “ muigwithania” as the movement) uprising in the 1950s. This case bears lessons for the Caribbean and it also has much to teach about the true nature of the British Empire.
The British imposed themselves in Kenya and confiscated land. In 1948 quarter million Kenyans were confined to 2,000 square miles, while 30,000 English settlers lived on 12,000 square miles of the most fertile lands in Kenya. Africans under an apartheid and colonial policy were forbidden to enter certain areas and confined away from the most arable land. Not surprisingly, the Kenyans rebelled and started a violent campaign against the white settlers in 1952. The colonialists responded and the Kenya Human Rights Commission estimated that 90,000 Kenyans were executed, tortured or maimed. There was the use of literal concentration camps ( see the observations below of the then British Attorney General) as a nationwide network of detention for some 160,000 who were detained in the most appalling conditions. President Obama’s grandfather, Hussein Onyango Obama, happened to be one of those detained persons. He had pins placed into his fingernails and in his buttocks and his testicles were squeezed between metal rods. Other Kenyans were forcibly relocated to new villages.
Within the camps the British inflicted beatings, castrated, raped and performed other forms of sexual abuse and torture applying brutal interrogation techniques against the Kenyans. It was against this background that elderly Kenyans who had suffered abuse when detained filed a claim in the English High Court. Two of the original five claimants had been castrated and an African lady who had been raped was included in the claim.
One might be astounded that despite the repeated public and international proclamations for many years by Her Majesty’s Government about defence of all types of human rights, it fought the Kenyan claims. In 2011 the High Court finally ruled that the four test cases were “arguable cases in law”. The Foreign and Commonwealth Office went as far, on the second round of the British government’s objections, of arguing that the claims were outside time limits. But, one knows in point of law that there is no statute bar on a crime against humanity, as one is aware that for murder and serious criminal offences no statute of limitation applies. In October 2012 the cases were permitted to proceed to trial, despite the best legal resistance that HMG could muster. The British government went as far as hiding an enormous secret archive consisting of more than 8,000 files from 37 former colonies, which researchers discovered and HMG was compelled to disclose. At Hanslope Park in Buckinghamshire, this secret archive was held separate from the National Archive at Kew, London. This discovery of the several documents corroborated the Kenyans’ claims. During this time one of the four elderly claimants died before judgment, then the case was finally settled out of court.
A part of British Foreign Secretary William Hague’s statement in response to the case reads:-
“ The British Government recognises that Kenyans were subject to torture and other forms of ill-treatment at the hands of the colonial administration.”
The FCO expressed “regret” but then immediately drew semantic distinctions stating that the expressed “regret” was not an “apology”. The reason for this, one surmises is that the Caribbean has a very strong case to be brought for reparations for the Atlantic African Slave Trade once an apology is made and there is full acknowledgement of the crime against humanity.
The Caribbean case
Queen Elizabeth 1 by way of Royal Charter and ably assisted by Captain John Hawkins in the 1500s established a criminal enterprise, of funding for trips to Africa to kidnap Africans, place them on ships and via the Middle Passage sail them across the Atlantic to be enslaved on plantations and for centuries without pay, have the enslaved and each generation thereafter build wealth for Britain, being the principal slaving nation in the modern world. But while Berlin has a Holocaust museum, by contrast where are Britain’s many slave museums and public monuments of contrition? Not so, because of the persistent and prolonged collective denial about the catastrophic consequences of coercion, torture, and the damage wreaked on sizeable numbers of humanity by colonialism.
The Irish, truth be told, faced slavery, and the Irish famine, for which HMG apologised. One then knows that there is precedent for a similar apology to be tendered to the African descendants in the Caribbean, as Queen Elizabeth 11 did to the Maoris in 1995 for colonizing their lands and breaching the treaty of Waitangi in New Zealand.
As with the Kenyan claim one expects all forms of continuing denials before the claim is filed and the case is finally compensated. Following the victory for the Kenyans, the British government hastened to state that it "…doesn't accept liability for the actions of previous colonial governments". This declaration is consistent with the central intellectual plank of resistance used by European historians to “racialise” and rationalise the kidnapping of Africans to state that Africans captured Africans to be sold, therefore no claim can be made for slavery reparations. So, might one honestly ask - when France warred with England or Germany with the rest of Europe, is that how European historians reasoned – that there was no wrong for want of European racial solidarity when lining up to fight their own kith and kin? I think not. If so reasoned then war reparations would never have been imposed by Europeans. One Hermann J. Abhs, a German Jew (Director of the Deutsche Bank Abhs) financed Auschwitz, the concentration camp in which thousands of Jews were slaughtered. As Director of the Deutsche Bank Abhs he definitely played a direct role in financially assisting the Nazi regime along with corporations that participated in war crimes. Clearly, tribes and nations exist in Africa and as with European warfare, so too did Africans fight Africans, but African leaders resisted the slave trade from its inception:
“ And we cannot reckon how great the damage is, since the mentioned merchants are taking every day our natives, sons of the land and the sons of our noblemen and vassals and our relatives, because the thieves and men of bad conscience grab them wishing to have the things and wares of this Kingdom which they are ambitious of; they grab them and get them to be sold; and so great, Sir, is the corruption and licentiousness that our country is being completely depopulated, and Your Highness should not agree with this nor accept it as in your service. And to avoid it we need from those (your) Kingdoms no more than some priests and a few people to reach in schools, and no other goods except wine and flour for the holy sacrament. That is why we beg of Your Highness to help and assist us in this matter, commanding your factors that they should not send here either merchants or wares, because it is our will that in these Kingdoms there should not be any trade of slaves nor outlet for them. Concerning what is referred [to] above, again we beg of Your Highness to agree with it, since otherwise we cannot remedy such an obvious damage.”
“And as soon as they are taken by the white men they are immediately ironed and branded with fire, and when they are carried to be embarked, if they are caught by our guards' men the whites allege that they have bought them but they cannot say from whom, so that it is our duty to do justice and to restore to the freemen their freedom, but it cannot be done if your subjects feel offended, as they claim to be.”
(Letter from African King of the Congo Nzinga Mbemba – a.k.a. Afonso 1: to the King of Portugal – letter dated October 18, 1526)
The Caribbean claim for reparations initially is academically established by Dr. Eric Williams book “Capitalism and Slavery” and more recently advanced by Professor Hilary Beckles book “Britain’s Black Debt.” Every facet of British society has been astoundingly enriched from the period of African enslavement in the Caribbean. Slavery for Britain was central to the British economy, not peripheral, and at the time was proclaimed to be central and in the “national interest” for the enrichment of Britain. Royalty; the Church of England; the British Parliament with a dense population of slave owners; families whose wealth inure to this day – Queen Elizabeth 11 second cousin, the 7th Earl of Harewood (George Henry Hubert Lascelles died July 10th, 2011) and his family in Barbados owns the plantation that produced the wealth for the family with 232 slaves, and they all owned slaves in the Caribbean. Barclays Bank was started from the profits of two plantation owners who traded in slaves. The insurers, Lloyds of London started as insurers of ships that were transporting slaves from Africa to the Caribbean.
The “Zong” case of 1781 involved the jettisoning of some 131 Africans thrown into the Atlantic ocean, for reason of a shortage of water on board ship. The case brought in the English courts was not for murder, but to reclaim the insurance money on the131 persons lost as “property”. The times and context of the case may be weighed, yet at the time the anti slavery campaigner, Granville Sharpe tried unsuccessfully to have the crew tried for murder.
The real point is the inuring British judicial denial of “human rights” ( as in contemporary times illustrated and confirmed by the British government’s response to the Kenyan case) which exposes a stark contradiction between the basic professed tenets of English law, respect for the rule of law, human rights and justice and the conflicting set of views which to this day instinctively and compulsively deny the rights of others. Historical conditioning evidently makes it hard for some to yield to the just demands of others. As an exercise in advocacy – might the lawyer ask – what would your response be if it were your English persons, enslaved in England and treated as the Africans were in the Caribbean? But, whoever the advocate and whatever the question, the British government will resist the claim for reparations once the claim is made. First by way of continuing the official British policy of no apology for enslavement complemented by efforts to refuse payment of compensation due from the British government which built its economy on African slavery and will without shame maintain that position ( as illustrated by the Kenyan case).
Malachy Postlethwayt, a political economist, frankly and honestly wrote in 1745: “British trade is a magnificent superstructure of American commerce and naval power on an African foundation.”
It is no more or less than moral and intellectual dishonesty to attempt, as many European scholars and some African sympathisers have less than ably tried to do, to blame the Atlantic African Slave Trade on Africans, when the financing, the maritime and shipping arrangements, the insurance, the manning of the ships, the organisation and ownership of the plantations and slaves related directly to a coordinated European led criminal enterprise, with profits directed back to Europe, without pay to the Africans.
Were one to ask – how many persons killed in Auschwitz received reparations from the German government for the crimes committed against humanity - the answer – not one – it was the descendants of the Jews and the group that was paid reparations. In the debates leading up to the 1838 Emancipation British parliamentarians actually debated having the slaves pay to their English masters a sum for the loss of the services to the master as a precondition for their freedom. In the Kenyan case an equivalent modern day debasement of justice occurred when the British state’s lawyer actually advanced the legal concept of states succession to claim that the modern Kenyan state and government should be the defendant and potential payer of reparations.
There is further illustrative consistent European historical parallel, in Haiti, after the slave revolution, when France demanded that the Haitian self-freed slaves pay reparations for the loss of the property the French had owned, and so by borrowing, the debt was paid in the sum of 21 million French Francs to France. There was operative French and Euro-American blackmail, because Haiti could not trade internationally unless the debt was paid. In 1914 the United States of America bought the debt from France and continued collecting payments until the 1950s.
In the British Caribbean colonies, after ensuring delay of emancipation until satisfactory payment of reparations were arranged, it was the slave owners who received £ 21 million (approximately£ 200 billion in today’s currency) from the British Treasury for the loss of their “property”, when African slaves were freed. The enslaved throughout received not a penny from the British for the centuries of free labour. No land, no compensation, not a jot paid for the original captured nor to their generations. And to this day - no apology from Britain.
Let it not come from the writings or words of a mere “colonial” born under British rule in the waning days of Empire, but from the words of no less a person than a British colonial Attorney General, Eric Griffith- Jones and his description of the abuses of Kenyans which at the time read: "…distressingly reminiscent of conditions in Nazi Germany or Communist Russia."
The foregoing is the true modern legacy of Britannia, coming undeniably from high authority who knew from the British side. But, one need not so much be astounded, nor even be annoyed by the depths of contemporary denials and contrivances, based as British views are, moulded and conditioned over centuries and assisted by handmaiden intellectual support, for purposes of historical distortion, by sections of European academia. The misconceptions and cleverly constructed colonial myths inure against the crimes of British colonialism and imperialism that actually were committed against humanity, then become understandable, but not condoned.
Admission of the crimes committed would actually cause psychological shock inversion from the initial acceptance of “truths” to the shock of the rejection of an embrace of the romanticisation of the illegality, exploitation, slavery and theft by the ‘benign Empire’ once anyone is compelled to view the truly barbarous nature of the operations of the British Empire. Kenya was a good and wonderful place to be born or live and be white in colonial times, as Elspeth Huxley tells us in her book “The flame trees of Thika” - but not so for the displaced Africans – and so through whose eyes do we see truth? If the Kenyan case was one of the darkest episodes of Britain’s imperial past, what then, in comparison would the Caribbean claim for reparations constitute? The Caribbean has a challenge, now bolstered by the Kenyan case, to take collective steps to commence a claim for reparations.
It is not that, on the demonstrated record Britain wants to learn from the past, rather there is a decisive willfulness to distort, avoid, hide and minimise the true levels of compensatory payments and/or restorative sums lawfully due. This observation is factually supported by reference to certain colonial files being placed out of reach despite the stipulations of the UK Freedom of Information Act. Additionally, there is a case to be brought in England that the provisions of the Public Records Act 1958 have been breached.
The claim for reparations can be made in one or more of the following ways:-
1. Placing the matter before the UN General Assembly. This was the declared intent of Chief Abiola, the elected leader of Nigeria. Sadly, it appears that he was killed by the military when he had been imprisoned and the intent to claim reparations through the Nigerian government’s efforts at the UN died a death with him.
2. Use of a specially constituted international tribunal to decide upon the terms of payment through a negotiated settlement.
3. A contested case argued before an international court. There being at present no international court with specific jurisdiction for the award of African reparations, the claim becomes one of political will to make the claim and establish a specially constituted court.
4. Reliance can be placed on the International Court of Justice through which an advisory opinion can be sought. This fourth point relates back to the first in that the General Assembly of the United Nations could make this request.
For some, the matter may seem something related to the distant past that has no contemporary bearing. History however is not disjointed. The negative self images of the African, in psychological, literary, economic and social terms are not conditions biologically determined, but rather are historical constructs. To the extent that an individual owes certain moral duties to self, to family, to community, to nation, to humanity, that mental state of moral resoluteness can be aggregated through Caribbean nation states and into the Caribbean community. Power never conceded anything without a demand, it never has and it never will. The conditions of African-Americans or Africans in Southern Africa under Apartheid seemed at a point in time immutable and was so proclaimed by Ian Smith for a thousand years to come. But, a vision accompanied by avowed collective purpose did within fleeting political time change the existing segregated and disconsolate order. Of course, there first had to be the will.
The value that may be assessed due from Britain relates to a starting point of the sum of £200 billion, ably and vigorously debated in no less an august place than the British Parliament. Much of British aid money serves purposes that are disguised to promote sales of British produce and services abroad (arms included). Reconfiguring the existing aid funding and redesigning British foreign policy can do much good in shifting from hand outs of beguiling aid and supportive pursuit of wars of aggression to constructive payments of reparations for sustainable Caribbean development and indeed stepping along a path of global justice.
It is not that the source of funding for reparations would have increased nor changed, but the acknowledgment of the criminal wrong inflicted and the purpose of the same funds would have. Reparations so paid would then involve mutual respect and the acceptance and acknowledgement of the crime against humanity that had been committed, as distinct from projecting to the world that some benign British aid money has yet again been handed out to the needy living in the post-independence exploited and dependent British colonies. If one were to take the first quarter estimate for expenditures on the Iraq war up to March 2013 of £8.3billion ( and when the maimed and psychologically wounded are returned from the lies ( not lines) of this WMD war there will be medical costs to the British state that will increase that figure for the remainder of the lives of the soldiers for their medical care ) then, even on the basis of a hugely discounted settlement sum, if HMG can find the money to pay for destructive war there surely can be sums found for constructive reparations payment s to the Caribbean for reparations and sustainable development.
The result as with other reparations claims realistically will involve consultation and negotiation. The judgment thereafter might be quite simple, such as total British debt relief for all English speaking Caribbean nations accompanied by a 50 year educational trust for any Caribbean citizen who matriculates to be educated free of cost at any British university, and a reasonable sum in monetary reparations paid to each Caribbean government in the English speaking Caribbean.
Of the total sum payable, there can be a tripartite weighted division of the total value between the proportions allocated for debt relief, education, and direct reparations payments. Her Majesty’s Government cannot now afford the greater embarrassment of fighting a case of far larger historical significance than the Kenyan cases, so might avoid the cost of further debasing the professed value system of the British government and state and its global reputation, such as it stands. Little compensation indeed, to claim for the centuries of exploitation and co-related economic benefits bestowed on Britain; so reparations do remain justly due and a case inviting settlement might now be advanced.
Since the idea of collective punishment came easily as policy for the British in Kenya, there then should not be a problem, in terms of the best traditions of British jurisprudence in addressing collective restorative justice for the people of the Caribbean. The people of the Caribbean should now decisively bend the arc of history from assumptions of benevolent associations with Empire towards direct efforts in pursuit of this claim for justice.
Courtenay Francis Raymond Barnett is a graduate of London University. His areas of study were economics, political science and international law. He has been a practising lawyer for over thirty years, has been arrested for defending his views, has survived an attempt on his life and death threats, and has argued public interest and human rights cases.
Editor's note: This blog post was first published on June 16, 2013. In light of the case for reparations against the British, The Dutch, and the French, it was republished again October 25, 2013. We present it again in light of the interest in Ta-Nehisi Coates' The Case for Reparations in the Atlantic. From time to time we will re-post articles of great importance.