Following the British government’s refusal to resolve historical injustices meted on Kenyan communities, the United Nations (UN) has now asked President Uhuru Kenyatta’s administration to share crucial information on the matter.
The UN Human Rights Council wants to know whether the colonisers had offered any form of reparation, psychological and physical rehabilitation to the Talai and Kipsigis communities who suffered human rights violations and forceful evictions a century ago.
The letter addressed to President Uhuru Kenyatta follows a petition filed before the UN in Geneva by Kericho Governor Paul Chepkwony through the Queens Counsel Rodney Dixon and lawyer Kimutai Bosek.
“…we would be grateful for your observations on the following matters: Please indicate if financial support has been granted by the government of the UK, of Great Britain and Northern Ireland and/or the multinational tea companies to provide social, medical and educational services, infrastructure and essential utilities to alleviate or compensate for the victims’ suffering, as recommended by the National Land Commission,” reads the dispatch from six special rapporteurs.
They are Fabian Salvioli, special rapporteur on promotion of truth, justice, reparation and guarantees of non-occurrence, Balakrishnan Rajagopal (adequate housing), Jose Francisco Cali Tzay (rights of indigenous people), Cecilia Jimenez-Damary (internally displaced persons), Tendayi Achiume (racial discrimination and xenophobia) and Nils Melzer (torture and degrading treatment).
The case against the British government was formally initiated in 2014 by Mr Chepkwony on behalf of the victims.
Intense collection of evidence was done with the help of Queen's Counsel Karim Khan, who is now the prosecutor at the International Criminal Court.
According to the detailed statement, the UK jumped the gun. They created an immunity by setting a timeline for launching cases touching on land and also bodily harm, making the case “virtually impossible”.
The UK’s 1980 Limitation Act and the succeeding decision of the British courts has everything to do with it.
Section 11 sets the limitation for claims related to damages for personal injury to three years and for land claims to 12 years (Section 15).
However, Section 33 of the Act gives the court a discretion to disapply the limitation period in personal injury claims only (and not land) where the action occurred after June 1954.
In previous Kenyan cases, the court refused to exercise its discretion to disapply the limitation period for victims alleging mistreatment in 1950s.
In November 2018, a request was sent to the British government to consent to arbitrate the dispute with the Kipsigis and Talai people and meet with their representative.
“However, on 27 February 2019, the government replied that it had “no intention to enter any process” to resolve these claims,” indicates the UN letter dated July 2.
Locally, the complainants had petitioned the NLC on the matter in 2018. The panel of four chaired by former Commissioner Samuel Tororei ruled in their favour.
In the letter to the President made public on Friday, the six special rapporteurs expressed concern over the failure by both Kenyan and UK governments to implement the NLC ruling.
“We welcome the 2019 decision and recommendations adopted by NLC in Kenya in connection to the confiscation of land belonging to the Kipsigis and Talai peoples. However, we express concern at the apparent insufficient implementation addressed to the Kenyan government,” the council said.
The special rapporteurs noted that Kipsigis and Talai, together with other indigenous people, were subjected to gross violations of human rights such as unlawful killing, sexual violence, torture, inhuman and degrading treatment, arbitrary detention, arbitrary displacement and violations of rights to privacy, family life and property.
An estimated 500,000 Kipsigis and Talai people suffered the violations.