Lawyers acting for 40,000 Kenyans who claim they were variously tortured, mistreated and raped during the suppression of the 1950s Mau Mau rebellion have been warned by the Foreign Office that their arguments in court could be in “contempt of parliament”.



The extraordinary manoeuvre by government officials follows courtroom evidence alleging that a former colonial secretary of state, who died more than 30 years ago, may have withheld information from MPs about a notorious massacre of rebel detainees almost 60 years ago.

The row, involving an exchange of letters during the long-running hearing, threatens to involve the Speaker of the House of Commons, John Bercow, over suggestions that court examinations of historic debates in Hansard, the official record of parliamentary debates, could constitute “breach of parliamentary privilege”.

The FCO’s concern is understood to be related to the courtroom suggestion that a minister may not have told the truth to the House of Commons. Parliament technically has the ancient power to punish non-members of parliament for contempt which includes, according to Erskine May’s guide to parliamentary practice: “Reflections on the House, by means of words spoken or written, reflecting on the character of proceedings of the House.”



Two weeks ago, Simon Myerson QC, representing the Kenyan claimants, accused the Conservative government of the day of repeatedly trying to “kill” bad news stories that emerged from Kenya during the uprising against British rule.

He cited extracts from the contemporary memoir of a local magistrate, Willoughby Thompson, who was in the office of Kenya’s governor, Sir Evelyn Baring, when the latter was on a telephone call with the then secretary for the colonies, Alan Lennox-Boyd.

Baring was reported to have told Lennox-Boyd that the 11 inmates who died at the Hola detention camp in March 1959 were beaten to death. The colonial secretary was, according to the memoir, alleged to have replied: “I don’t want to say that, because I have already told the House [of Commons] something else.”

Thompson, a former district commissioner who is now 97, carried out an official investigation into the Hola massacre. He gave evidence to the hearing last week via a video link from his bed in an Essex care home and was the first witness to appear on behalf of the FCO. He was not, however, questioned about Lennox-Boyd.

The FCO’s concern only surfaced in court later. Myerson told the judge, Mr Justice Stewart: “Our concern is possible contempt of parliament and the possible need to involve the Speaker of the House.”

He later explained that there had been a conversation “about the Hansard material and the defendant [the FCO] saying that it may be that we were in breach of parliamentary privilege and the Speaker may need to be contacted, and they’d written to us about that and we’d replied to them”. The row raises raises questions about what can be asked in court.

For eight months, lawyers in court 17 at the Royal Courts of Justice in London have been examining suppression of the Mau Mau rebellion. The lawsuit brought on behalf of 40,000 survivors by Tandem Law, a Manchester-based firm of solicitors, against the FCO is far larger than a previous class action. The government paid out £19.9m to settle the initial mass claim.

Ministers are refusing to settle the latest claim, arguing that at this distance in time the issues cannot be tried fairly when those alleged to have inflicted the violence are now dead or untraceable. The case, which began last year, could run into 2018.

Thompson’s evidence about government policy and admissions of what happened in practice during the dying days of empire summoned up an era of officers’ cantonments clustered around hilltop golf courses, and isolated police posts surrounded by ditches filled with sharpened stakes.

“At the beginning of Mau Mau [in 1952],” Thompson, who was then a district officer in the Kandara division, recalled, “the War Council [in Nairobi] had hardly come into being. Nairobi [the Kenyan capital] was a white kingdom. It didn’t know what was happening. The governor [Sir Philip Mitchell] was not sympathetic to the administration in the field.

“We felt very alone in the districts. During 1953, several posts were overrun and a huge number of guns were lost to the enemy. Mau Mau caused terrific damage and horrendous deaths. I remember seeing whole families who had been decapitated and pregnant women disemboweled.

“Some of the killings [by the pro-government home guard] that went on were not appropriate,” Thompson admitted. “We had to make sure that discipline was re-established as soon as possible. The Kenyan police were wonderful throughout [and took action] when they found cases of wrongful killing.”

Prosecutions by local police for killings carried out by the home guard, however, left many of them feeling bewildered, Thompson said. “The home guard said: ‘We have done our best. We fought back. Now you are hounding us’.”

As a district officer, Thompson was in charge of a district with a population of 95,000 people. He was asked by Bryan Cox QC, also for the Kenyan claimants, whether the policy of forced villagisation – gathering people into one location to deny Mau Mau rebels civilian support – was popular.

“No one liked it,” Thompson conceded. “No one wanted it. The resistance came from the people themselves.”

Thompson played a central role in the aftermath of the notorious Hola massacre in March 1959 when 11 Mau Mau suspects were killed and 23 injured in a government detention camp.

He was sent to investigate what had happened. “I knew it was political dynamite,” Thompson told the court. “The bodies were covered in water. The story I was given – that they had mysteriously drowned by having water thrown over them – didn’t hold. I could see they had been beaten.

“The prisons department had expanded and recruited a lot of temporary officers. [The British prison officer in charge] was a good man. He had some command of Swahili language, but not very much, and no tribal languages.

“He briefed the warders as far as I could ascertain in poor Swahili. This was amplified by getting one of his own prison warders who spoke in English. He told them: ‘Tell those so and sos, they have got to work.’ There’s no way of knowing how that was interpreted and whether what he said was understood. There was no clear command in the first place. [The British officer] was being asked to do too much.”

The hearing continues.