The Gulf between Tortious and Torturous: UK Responsibility for Mistreatment of the Mau Mau in Colonial Kenya

Abstract

In June 2009, five Kenyan nationals brought a claim against the Government of the United Kingdom (UK) for acts of torture allegedly committed against them in the course of the emergency regime established following the Mau Mau uprising of 1952. The preliminary judgment handed down in this case responds to an application for summary judgment brought by the UK Government on the basis of its claims it was not legally responsible for the abuse. Many of the arguments made by the UK Government gain strength from the fact that, under UK law, the action is not in torture, but in the tort of trespass to the person. The judgment of Justice McCombe raises the prospect of an emerging disjuncture between liability for torture and liability for the tort of assault/battery where this constitutes torture. The main focus of this article is on whether the fact that the impugned conduct constitutes torture should be relevant to the resolution of liability issues relating to an action brought in tort.