Law Reform is Needed to Address Colonial Legacies of Racism and Abuse

Amid recent calls to confront the colonial roots of systemic racism in British society – including its criminal justice system, trade relations, and cultural institutions – there is a need for legal reforms to enable a full historical accounting of colonial era abuses and, in some cases, to seek damages against the government and its officers. The question here is not only one of justice for the victims of colonial abuses but also confronting the racial injustices in today’s British society that are rooted in its imperial past.

The first legal reform must curb the government’s ability to hide colonial era evidence (see the Cary Report 2011). In the case of Mutua & Ors v Foreign and Commonwealth Office [2012] EWHC 2678 (QB), it was revealed that the government had intentionally destroyed and hidden thousands of colonial files documenting horrific abuses of detainees during the emergency period in Kenya. While these and other colonial files were subsequently released, other files may well remain hidden. The Freedom of Information Act [2000] must be amended to reduce the exemptions to disclosure that can be claimed by the Foreign and Commonwealth Office. New law should create a duty to release all colonial era files, as well as provide for their digitization and international public discovery.

A second legal reform must open other paths to justice besides civil litigation. In the case of Kimathi and Ors v Foreign and Commonwealth Office [2018] EWHC 2066 (QB), filed on behalf of more than 40,000 Kenyan claimants who shared similar historical circumstances to those in Mutua, the judge ruled that too much time had passed for the government to gather the witnesses and documentation necessary for its defense. While the test case had specific defects that might have been avoided, the passage of time will mean fewer civil cases will be able to reach trial. Suing for compensation should not be the only path to justice for surviving victims. The threat of using closed material procedures to resolve colonial era claims must be part of any reform of the secret courts enabled by the Justice and Security Act, 2013.

New law should create a path of open justice through a professional, non-partisan commission operating along the lines of consent-based alternative dispute resolution. This commission would provide for early neutral evaluation to distinguish cases that are ripe and justiciable from those better served by an amnestied truth and reconciliation proceeding, in which surviving victims and perpetrators may express themselves openly with appropriate expert assistance and socio-emotional support. Examples of commissions in other countries underscore the personal, communal, and national significance of truth telling as part of a transitional justice mechanisms. As Dr Komo Koram argued in the Guardian in June 2020, it is vital that the United Kingdom examine the colonial past as prologue to its current problems. Britain’s social order and its global future depend on telling the truth about its past (See Anderlini 2020). It would be best for Britain and its former colonies to see that history is told in full, making amends where possible, no matter the short-term political cost.

Anderlini, J “Britain’s colonial crimes come back to haunt trade negotiations,” Financial Times, March 17, 2020.

Koram, K “Britain needs a truth and reconciliation commission, not another racism inquiry,” The Guardian, June 16, 2020.

 

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