Colonial reckoning: ICJ and English courts’ approach to colonial claims

Two recent cases relating to UK government colonial activities in Kenya and Mauritius highlight the contrasting ways that the International Court of Justice (ICJ) and English courts treat colonial activities. The ICJ exhibited some flexibility in its approach by subjecting the activities of those under colonial authority to “heightened scrutiny” owing to their right to self-determination while English courts appear constrained by limitation periods under the Limitation Act 1980.

Kimathi v Foreign and Commonwealth Office [2018] EWHC 3144

In Kimathi—a claim before the High Court of England and Wales—the Claimant was part of a Group Litigation against the Foreign and Commonwealth Office (FCO) for its activities in Kenya during the Mau Mau uprising in the period 1952 to 1960 when Kenya was a British colony. In 1952, the Colonial Administration declared a state of emergency during which time the Claimants allege torture and ill-treatment at the hands of the Colonial Administration. In 2013, the UK Foreign Secretary apologised for the torture and ill-treatment of Kenyan’s during that period and agreed a settlement with some Kenyans who were not part of the Group Litigation. However, the UK’s policy was to continue to deny liability in the courts.

The issue before the court was whether the judge should exercise his discretion under the Limitation Act 1980 to extend the limitation period for bringing such claims—three years of the date when the injury occurs or the date of knowledge (if later) of the person injured.

Exercising his discretion under section 33 of the Act, the judge declined to extend the limitation period. He ruled that the Claimants had not acted promptly enough in bringing their claim and it would be prejudicial to the FCO to defend itself at this late stage. [See also Mutua & Ors v The Foreign And Commonwealth Office [2012] EWHC 2678 (QB) for a similar decision].

Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, ICJ Advisory Opinion, 25 February 2019

In a 2017 General Assembly Resolution, the UN called upon the ICJ to issue an Advisory Opinion on whether:

(1) The process of decolonisation was lawfully completed when Mauritius gained independence from the UK in 1968, following an agreement in 1965 between Mauritius officials (while still under colonial rule) and the UK to separate the Chagos Archipelago from Mauritius and;

(2) The consequences under international law of the UK’s continued administration of Chagos Archipelago.

ICJ Opinion:

(1) Self-determination was the international law applicable to the Chagos Archipelago between 1965 and 1968 when the separation agreement was reached. Crucially, the Court gave “heightened scrutiny” to the fact that officials from Mauritius who agreed to the separation of the Chagos Archipelago could not have expressed the “free and genuine will of the people concerned” while under the authority of the United Kingdom. By reference to a UN General Assembly Resolution from 1960 which called upon the United Kingdom to respect the territorial integrity of Mauritius, the ICJ concluded that the UK’s actions in respect of the separation of the Chagos Archipelago and its incorporation into a new colony were not lawful.

(2) The UK’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing international responsibility and should therefore end.

Analysis of the two cases

The judge in Kimathi was wrong to refuse to exercise his discretion to extend the time limit under s 33 Limitation Act 1980. The conclusion that the defendant would have been able to defend the claims well into the 1960s ignored the fact that Kenya did not gain independence until 1963 and actions against former colonial powers would have been unprecedented for indigent Claimants. Moreover, the Court’s own conclusion that the FCO would not have been expected to keep records of everyone incarcerated during the state of emergency demonstrates the challenges for a powerful colonial government in respect of historical events let alone the Claimants.

By contrast, the ICJ’s “heightened scrutiny” of the agreement reached by Mauritius in respect of the Chagos Archipelago was the right and appropriate thing to do taking into account the fact that under colonial rule, Mauritius was not in a position to exercise its right to self-determination or free consent. While cautious of not stretching the comparison between the two cases, English courts’ treatment of colonial claims lack the benefit of viewing such claims in the context of self-determination. Doing so would have enabled the English court to appreciate the uniquely weak position of the Claimants during and in the immediate aftermath of colonisation.

Lastly, trials are not appropriate for examining colonial claims. Justice for the claimants would be better achieved by subjecting such claims to a specially constituted inquiry. The judge in Kimathi hinted at this when he highlighted that the case was a trial not an inquiry. To be fair to the English court, the case was brought as a claim in personal injury and therefore had to be decided on that basis. What the decision does reveal however is that such issues cannot be decided appropriately through a trial.

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