Show compassion over Kenyans fighting for damages, says Tutu

In a letter to Prime Minister David Cameron he accuses the Government of continuing to refuse to deal with “these elderly torture victims with the dignity they deserve”.

Two letters sent by Tutu to the Government in February and this month were released by lawyers for the three Kenyans at the centre of the case as the latest round of their legal battle was about to begin.

A year ago they won a “historic” ruling which took them one step nearer to achieving their goal when Mr Justice McCombe said they had “arguable cases in law”.

The fresh hearing at London’s High Court will focus on the Government’s argument that the claims cannot proceed because they have been brought outside the legal time limit – but lawyers for the Kenyans will argue that it is an exceptional case in which the judge should exercise his discretion in their favour.

In the February letter to Mr Cameron, Archbishop Tutu accuses the Government of “relying on legal technicalities in response to allegations of torture of the worst kind”.

During the two-week hearing, the court will consider evidence about events in detention camps during the 1950s from Jane Muthoni Mara, Paulo Muoka Nzili and Wambuga Wa Nyingi.

The court has heard that Mr Nzili was castrated, Mr Nyingi beaten unconscious in an incident in which 11 men were clubbed to death, and Mrs Mara was subjected to appalling sexual abuse.

The claims are being brought with the support of the Kenya Human Rights Commission and the Kenya government.

Solicitor Martyn Day, senior partner from law firm Leigh Day & Co, said: “Desmond Tutu has firmly called on the British Government to deal with these elderly victims of torture with the dignity, compassion and magnanimity that they deserve.

“We leave the door open to the British Government to meet with us to resolve this claim even at this 11th hour.”

Mr Day says that the claimants want an apology and a Mau Mau welfare fund to ensure that they, and their fellows, can live with an element of dignity in their final days.

When Mr Justice McCombe gave his ruling last year, he emphasised that he had not found there was systematic torture in the Kenyan camps nor that, if there was, the UK government was liable to detainees, such as the claimants, for what happened.

Opening the case for the Kenyans, Richard Hermer QC said that the crux issue was whether a fair trial was still possible.

He argued that the existence of thousands of official records and other sources of primary contemporary documentation meant a fair trial was possible, despite the passage of time and the death of certain witnesses. If the court came to such a conclusion, it should apply the “greatest caution” before shutting it out – not least because the claims concerned allegations of severe torture and because it had already held that the claimants had reasonable prospects of success, he said.

There was no doubt that the passage of time would have a material impact on the overall quality of evidence but there was still a vast amount of high quality evidence covering every aspect, particularly since the release of the Hanslope archive.

There were comprehensive records of key decision making at all levels of government plus committee minutes.

The evidence also came from a wide range of different sources where allegations could be checked, cross-checked, corroborated and so proved or disproved.

Mr Hermer said that, although key decision makers were no longer alive, high quality witnesses had been identified and traced.

It was far from certain, he added, that the Foreign and Commonwealth Office did not still possess relevant documentation which was potentially of high probative value, as it was assessed that 40% of the Hanslope materials had been received.

The hearing continues today.