Kenya: UN Council Asks Britain to Pay for Atrocities Against the Talai

The United Nations (UN) has ordered the United Kingdom government to make a public apology and adequately compensate the Kispigis and Talai victims who suffered horrendous violations in their hands.

The UN Human Rights Council, in a letter to the Prime Minister Boris Johnson, expressed serious concern at the lack of accountability and remedy for the inhumane acts, the failure of the UK government to establish facts on the victims and the nature of harm as well as lack of reparations in accordance with international laws.

"In addition, we express concern at the failure to provide public apologies for the human rights violations committed against the Kipsigis and Talai people, which include an official acknowledgement of the light of the victims and the share of responsibility of the British Government, and which is aimed at restoring the dignity of the victims," reads the statement signed by six rapporteurs of the council.

The letter follows a petition filed before the UN in Geneva, Switzerland by Kericho Governor Paul Chepkwony through his lead counsel Kimutai Bosek and the Queens Counsel Rodney Dickson.

The Human rights council members who considered the case 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).

Gross violations

Council noted that Kipsigis and Tailai, and 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.

Estimated 500,000 Kipsigis and Talai people suffered the violations.

The greatest testimony of the violations is not only the scars and mental agony documented by doctors from existing survivors and their children, but also the extensive fertile agricultural land measuring about 2,000 acres which was expropriated and is still under multinational tea companies.

"In connection with the above alleged facts and concerns, we would like to remind Your Excellency's Government of the obligation of States to adopt measures to ensure justice, truth, reparation and guarantees of non-recurrence of past human rights violations, as guaranteed by various international human rights instruments," reads the document.

As an example of the many serious violations suffered by members of these communities, a Kipsigis victim reported that during her family's eviction, the soldiers raped her and burnt down her house with one of her children inside

Killings and torture

Many victims who were children at the time also reported having been raped and others witnessing killings and torture. They all reported being evicted from their land.

The UN was particularly concerned about the treatment of the powerful clan of Talai who were forcibly exiled to Gwasi, in 1934 through the Laibon Removal Ordinance because they were deemed a threat. They were wiped out in hundreds by diseases, wild animals, harsh climatic conditions, lack of food among other challenges.

But the global agency now says: "Reparation should be proportional to the gravity of the violations and the harm suffered. Victims should be provided with full and effective reparation, which include; restitution, compensation, rehabilitation and guarantees of non-repetition."

According to the detailed statement, the UK, like Pontius Pilate, cleaned their hands off the mess they created and transferred the liability to independent Kenya.

Furthermore, they created an immunity by setting a timeline for launching cases touching on land and also bodily harm, making the case "virtually impossible"

"The Kipsigis and Talai people have tried to pursue their claims in Kenyan jurisdiction but the limited scope for ordinary legal proceedings on the matter has made it challenging, particularly due to the existence of limitation periods, the state immunity and the immunity of the UK to newly independent Kenyan jurisdiction; and the transfer of liability from the UK to newly independent Kenya pursuant to section 26 of the Constitution of Kenya (Amendment) Act 1964," reads the statement.

Apologise

The victims instead submitted their claims to the National Land Commission, which can only investigate and make recommendations.

In 2019, NCL ruled in their favour, calling on the British government to acknowledge their misdeed and apologise to the Talai and Kipsigis and provide direct reparation, the government to acknowledge that the corn land was unlawfully take away from them and should have been returned at independence, among other recommendations.

The case against the British Government was formally initiated in 2014 by Governor Chepkwony on behalf of the victims. Intense collection of evidence was done with the help of lawyer Bosek and Queens Council Karim Khan, who is now the prosecutor at the International Criminal Court.

However, it was not possible to issue proceedings in the UK due to limitations imposed by the UK's 1980 Limitation Act and the Succeeding decision of the British Courts. Section 11 of the 1980 Acts 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 permits the court a discretion to disapply the limitation period in personal injury claims only (and not land) where the action occurred after June 1954.

Going as per previous Kenyan cases where the court refused to exercise its discretion to disapply the limitation period for victims alleging mistreatment in 1950s, spells doom for the Talai and Kipsigis to issue proceedings in the UK.

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 the claims, the documents indicate.

Crown Lands Ordinance

The trouble began in 1895 when the United Kingdom proclaimed a protectorate in East Africa, which was administered by the colonial office in London where the Governor General sat with an Executive council in Kenya until the enactment of the Independence Act of 1963 by the British parliament that brought about freedom.

In 1902, through the Crown Lands Ordinance, 90,000 acres of land in Londiani, Kericho County was confiscated and subsequently given to foreign settlers. The Kipsigis who lived in the area were forcibly evicted without compensation and relocated to create "reserves" in Belgut, Bureti and Sotik where families were kept as slaves with restricted movements.

The impunity to grab more pieces was created through the Crown Land Ordinance 1902, 1907, 1915 and 1919 legislations which took the title to land away.

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