Private Law Theory

INTRODUCTION
… Kenya became independent in 1963 and the violent colonial-era conflict receded from public memory, in the UK at least. Any subsequent attempts to challenge the Crown’s conduct during the colonial era in Kenya’s courts would have faced the insurmountable obstacle of state immunity. There thus appeared to be no viable route to redress for the victims of Emergency-era abuses of power, and hagiographies were left to laud UK counter-insurgency practice’s supposed commitment to ‘minimal force’. In October 2012, however, the judgment in Mutua v Foreign and Commonwealth Office permitted thousands of claimants to pursue actions for battery and negligence against the UK Government for their treatment during the Kenya Emergency. The UK Government promptly settled the case, establishing a £19.9 million scheme which compensated 5228 Kenyans. The final section of this article evaluates whether this outcome somehow took challenges against notorious abuses of power back to the future. Whereas cases like Keyu, seeking an independent inquiry into killings by UK soldiers during the Malaya Emergency, were demonstrating the limitations of human rights approaches, a distinctly Diceyan approach, reliant upon ‘tort’s role in vindicating constitutional rights’, had come to the fore. Multiple copycat actions have since been launched, prompting calls for the UK Government to ‘restore its immunity from tortious action … arising out of … military deployment abroad’. Few of these successor actions, however, have enjoyed any measure of success, and preventing such cases would therefore be otiose. This work is by no means a history of the Kenya Emergency. Instead it traces the ‘genealogy’ of the contemporary disputes, seeking to understand how these recent decisions have been conditioned by the legal approaches which prevailed during the Emergency …

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CRG Murray, Back to the Future: Tort’s Capacity to Remedy Historic Human Rights Abuses, King’s Law Journal. Published online: 19 July 2019. https://doi.org/10.1080/09615768.2019.1615747.

First posted 2019-07-20 07:57:50