By Estelle Shirbon
LONDON (Reuters) - Three elderly Kenyans who accuse British colonial forces of torturing them in the 1950s took their battle for damages to London's High Court on Monday in a case that has exposed dark secrets from the dying days of empire.
The British government has tried for three years to stop the legal action for fear that it could encourage similar claims from Kenya and other former colonies. But a court last year gave the impoverished Kenyans the green light to pursue their claim.
The case stems from the so-called Kenyan "Emergency" of 1952-1961, during which fighters from the Mau Mau movement attacked British targets in a quest for land and freedom.
Tens of thousands of rebels were killed by colonial forces and an estimated 150,000 Kenyans, many of them unconnected to the Mau Mau, were held in detention camps likened by a leading historian of the period to Soviet gulag labor camps.
The three claimants, all in their 70s and 80s, are Paulo Nzili, Wambugu Wa Nyingi and Jane Muthoni Mara. Nzili says he was kidnapped and forced to join the Mau Mau for six months. Nyingi and Mara say they were never members of the movement.
A fourth claimant, Ndiku Mutwiwa Mutua, has died since the ruling in July last year that the test case could go ahead.
At a previous hearing in April 2011, the court heard that while in detention, Nzili was castrated, Nyingi was badly beaten during an incident in which 11 men were clubbed to death, and Mara was sexually abused by British troops.
The trio want Britain to apologize and to fund welfare benefits for Kenyan victims of torture by colonial forces.
Their suit led to the unearthing last year of thousands of files from the colonial era that were flown to Britain and kept in secret for decades at Hanslope Park, a country estate run by the Foreign Office. Lawyers for the three Kenyans have had access to some of the Hanslope material.
"The existence of thousands of official records (means that) you cannot conclude that the passage of time, including the death of certain participants, renders a fair trial impossible," the claimants' counsel, Richard Hermer, told the court.
"MAGNANIMITY AND COMPASSION"
At this stage, the court is not being asked to rule on the substance of the Kenyans' allegations, but to decide on whether a full trial can be held. The government says it cannot because the claims were brought after the legal time limit.
In practice, the two-week hearing may be the elderly Kenyans' only chance to tell their stories in court.
That is because if the judge rules in their favor, the government is likely to seek an out-of-court settlement that would be less embarrassing and less costly than a lengthy public trial in which decades-old records would be pored over.
The Mau Mau insurgency caused deep trauma on all sides and remains controversial in Kenya, where the first two presidents after independence in 1963, Jomo Kenyatta and Daniel Arap Moi, tried to minimize its role in the national fight for freedom.
The Mau Mau split Kenya's most numerous ethnic group, the Kikuyu, between those who joined the insurgency and so-called "loyalists" who sided with the British.
Many former Mau Mau fighters endured a lifetime of poverty after coming out of their forest hide-outs, never having won the land they fought for as it was given mostly to their loyalist foes. A legal ban on the Mau Mau movement was lifted only in 2003, after President Mwai Kibaki came to power.
The Kenyan government is now backing the alleged victims. Prime Minister Raila Odinga said on Friday the government would meet the claimants' costs. So far, their expenses are being met by an NGO, the Kenya Human Rights Commission.
"We must not forget the treatment they endured that left them with devastating and lifelong injuries," Odinga said.
South Africa's revered Archbishop Desmond Tutu, a Nobel Prize winner, has thrown his moral authority behind the case.
"It is high time the British government showed some magnanimity and compassion," Tutu wrote in a letter to Prime Minister David Cameron released by the Kenyans' lawyers.
Tutu said Britain had failed to show "these elderly victims of torture the dignity they deserve".
In an earlier letter, he said: "Our fear is that the British government's repeated reliance on legal technicality in response to allegations of torture of the worst kind will undermine Britain's reputation and authority as a champion for human rights."
(Additional reporting by James Macharia in Nairobi; editing by Mark Heinrich)